Herrington v. Ford Motor Co.

Citations: 376 S.W.3d 476; 2010 Ark. App. 407; 2010 Ark. App. LEXIS 417Docket: No. CA 08-624

Court: Court of Appeals of Arkansas; May 12, 2010; Arkansas; State Appellate Court

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The appeal involves a lawsuit against Ford Motor Co. concerning a 1987 van that overturned in 2003, resulting in two fatalities and nine injuries. The injured parties and the estates of the deceased sued Ford in 2004 alleging products liability, negligence, failure to warn, and breach of warranty. The circuit court bifurcated the trial into liability and damages phases, ultimately ruling in favor of Ford in the liability phase. The appellants sought a new trial, which was denied, prompting this appeal. They contend that the trial court erred in three areas: seating biased jurors, excluding certain evidence during cross-examination of Ford’s expert, and using improper verdict interrogatories. The court found these arguments unmeritorious and affirmed the denial of a new trial.

The background details reveal that on March 15, 2003, a group from the First Baptist Church in Gentry, Arkansas, was traveling in a Ford van when it lost control, resulting in ejections and fatalities. Specifically, two passengers were killed, including one who died while aiding victims of the accident. The appellants' claims centered on alleged defects in the van’s stability and occupant protection features. During jury selection, concerns arose regarding potential juror bias, specifically that certain jurors expressed views that could impose a higher burden of proof on the appellants. Under Arkansas law, the burden to prove juror bias lies with the challenging party, and the trial court has discretion over juror qualifications. A specific instance involved a juror, Gerald Baxter, who indicated strong feelings against high damage awards in cases perceived as having no clear fault, which the appellants' attorney argued could affect the jury's judgment.

During jury selection, counsel established that certain venirepersons felt a greater burden of proof was necessary due to their strong beliefs. Specifically, fifteen venirepersons, including Baxter, Hulse, Fiser, and Foggiano, affirmed this sentiment. When asked how many would impose a greater burden on the plaintiffs, only two, Clark Bailey and Joe DeSoto, indicated they would. Baxter later clarified he would not impose a higher burden as he deemed the lawsuit non-frivolous. Counsel questioned numerous venirepersons on related topics, including damage caps and tort reform.

An in-camera hearing followed, where counsel challenged the three jurors who indicated they would impose a higher burden. The court, recalling only two or three jurors who suggested a higher burden, denied the challenge for cause but decided to address the venire in open court. The judge reminded jurors of the serious nature of the case, confirmed Mr. Baxter’s ability to follow the burden of proof instructions, and queried those who had expressed a higher burden sentiment, receiving no negative responses.

Ultimately, the jury selected did not include Baxter, Bailey, or DeSoto, but did include Fiser, Wyant, Hulse, and Foggiano, who had initially raised their hands. Appellants argue these jurors should have been struck for cause due to a predisposition to impose a greater burden. However, it is unclear whether appellants formally challenged these jurors, focusing instead on Baxter, Bailey, and DeSoto. Juror challenges must be made for cause to preserve the issue on appeal, and appellants failed to demonstrate a basis for striking Fiser, Wyant, Hulse, and Foggiano.

Four jurors indicated a strong belief in a higher burden of proof but did not raise their hands in response to questions about imposing a greater burden on the appellants or favoring the defendant, Ford. The circuit court found no abuse of discretion in not striking these jurors for bias, as their responses suggested they would not impose a greater burden. The court's inquiries and instructions addressed any potential bias, and jurors who claim they can set aside preconceived opinions are generally acceptable. Appellants argued the court's measures were insufficient and sought individual questioning of certain jurors, but the record did not show a formal request for this or an objection to the group questioning approach. The court's discretion in managing voir dire was upheld.

In terms of evidence exclusion, Dr. Mariusz Ziejewski, appellants’ expert, discussed vehicle crashworthiness, asserting that vehicle roof deformation should not occur. He referenced off-road and racing vehicles but did not support building to NASCAR specifications. Ford's expert, Larry Ragan, introduced NASCAR vehicle images to address design feasibility. During cross-examination, Ragan noted that rollover crash testing was not part of Ford's design protocol due to repeatability issues but acknowledged that Volvo conducts such testing.

Counsel for the appellants attempted to establish that the XE90, a 2003 vehicle, could be rolled over without causing window damage or roof crush, which was met with an objection from Ford's counsel on the grounds of relevance to the time frame. The court upheld this objection but allowed questioning about the rollover testing of vehicles by other manufacturers. Appellants' counsel sought to impeach Ragan by referencing Volvo’s rollover testing, to which Ragan initially denied familiarity with past tests but later acknowledged Volvo had conducted some testing in recent years. Despite the circuit court's limitations on cross-examination, the appellants successfully impeached Ragan, which was their objective, and thus did not demonstrate prejudice from the court's ruling. The court maintained discretion over the scope of cross-examination, and the exclusion of detailed evidence from Volvo was not deemed significant. 

Additionally, the appellants challenged two verdict interrogatories presented to the jury regarding Ford's fault in connection to the handling and stability of the 1987 Econoline E250, and its crashworthiness related to plaintiffs who had been ejected from the vehicle. The first interrogatory asked whether the jury found fault with Ford regarding handling and stability, while the second focused on crashworthiness for ejected plaintiffs, both requiring a preponderance of evidence for determination.

The jury responded negatively to both interrogatories. Appellants contended that, due to the bifurcation of the trial and the absence of evidence on damages, the jurors should not have been asked if Ford's conduct was the proximate cause of any damages. This argument was deemed procedurally barred, as appellants did not raise this objection until their motion for a new trial, despite previously contesting the bifurcation of claims. They had also submitted a similar interrogatory themselves, which prevents them from challenging the court's actions on appeal.

Appellants further claimed that the term "crashworthiness" confused the jury, particularly when the court provided a definition that included technical terms. However, they did not object to this until the motion for a new trial, and they had previously agreed to the definition given by the court. Consequently, there were no grounds for reversal on this issue.

Additionally, appellants argued that the separation of ejected and non-ejected plaintiffs in the crashworthiness interrogatory presented an unfair advantage to Ford. However, they failed to object contemporaneously when Ford moved for a directed verdict on this basis during the trial. By not raising this objection at the first opportunity, they waived the argument for appeal.

The court affirmed the decision, agreeing with the reasoning presented. The jury had been informed multiple times that liability would be addressed before damages, and appellants' brief argument regarding the term "handling and stability" was rejected for the same reasons as the crashworthiness argument. The procedural issues raised by appellants ultimately did not provide a basis for appeal.