Stecher v. Ford Motor Co.

779 A.2d 491

• Court: Superior Court of Pennsylvania
• Decided: May 8, 2001
• Status: Published

Opinions

TODD, J.:

¶ 1 In this products liability action, we are called upon to decide whether a plaintiff in an enhanced injury case bears the burden of proving the precise extent of injuries arising from a defect when the injury suffered is indivisible by nature. Sharon R. Stecher, Joseph Stecher and Ford Motor Company (“Ford”) have cross-appealed the judgment¹ entered in favor of Ford. For the reasons that follow, we vacate the judgment and remand this matter for a new trial consistent with this Opinion.

¶ 2 This action arises from a traffic accident in February 1992. Sharon Stecher was driving a 1983 Ford LTD westbound on a snow and ice covered road when the vehicle spun as she approached a curve. Mrs. Stecher’s vehicle crossed the center-line of the road and its front end struck an embankment on the opposite side of the road. The vehicle then spun back onto the roadway and continued to move westbound, with the driver’s side of the vehicle leading, but in the eastbound travel lane. The LTD then collided with an eastbound pickup truck. The point of impact on the LTD was approximately at the “B” pillar, the post that runs vertically from the floor to the roof of the vehicle, behind the driver’s left shoulder. Mrs. Stecher suffered a serious brain injury and a pelvic fracture as a result of the collision.

¶ 3 The Stechers brought this products liability action in 1994. Although they pursued several theories of liability during the pretrial phase of the litigation, at trial they withdrew all claims except for liability based on a manufacturing defect.² The Stechers’ sole theory of liability at trial was that the vehicle’s B pillar was unreasonably dangerous because its base welds failed, causing it to detach at the base and strike Mrs. Stecher’s head.

¶ 4 Prior to trial both sides filed motions in limine. The Stechers sought to preclude Ford from introducing video tapes of crash tests that had been produced for this case and from introducing any testimony based on statistics about similar incidents. Ford sought to preclude the Stechers from introducing a “Dynaman” animation that had been produced for this case and was designed to depict Mrs. Stecher’s movements within the vehicle during and after the impact. The trial court excluded both the Ford video of the crash tests and the Stechers’ Dynaman animation. The trial court refused to exclude all testimony based on statistics, but directed the Stech-ers to provide specific objections to any such proposed testimony.

¶ 5 This matter was tried before a jury in April 1999. The jury returned a verdict finding that the Ford LTD driven by Mrs. Stecher was defective, but that the defect was not a substantial factor in causing Mrs. Stecher’s injuries. This timely cross appeal followed the denial of the parties’ post-trial motions.

¶ 6 On appeal, the Stechers raise four issues:

1. Whether the trial court erred by instructing the jury that plaintiffs were required to prove an enhanced injury attributable to the manufacturing defect.

2. Whether the trial court erred by refusing to instruct the jury on concurring causes based on the rationale that this case is a products liability action rather than a negligence action.

B. Whether the trial court erred by permitting [Ford’s] experts to testify about statistical analysis and accident frequency/severity studies where [Ford’s] own experts acknowledge such information had no relevance to the specific issues in this case.

4. Whether the trial court erred in precluding [the Stechers’] expert’s testimony without an evidentiary hearing.

(Stecher Brief, at 3.)

¶ 7 In its cross appeal, Ford presents two issues:³

1. Whether the trial court erred in denying Ford’s motions for a compulsory nonsuit and directed verdict when the Stechers failed to present evidence that Mrs. Stecher suffered enhanced injuries above and beyond those she would have sustained as a result of the initial collision?

2. Whether the trial court erred in precluding Ford from introducing the videotapes of the crash tests to illustrate “general physical principles” . and not as a purported reconstruction of the accident?

(Ford Brief, at 7.)

¶ 8 We begin with the central issue — the propriety of the trial court’s instructions regarding a plaintiffs burden of proof under the enhanced injury doctrine, also known as the crashworthiness or second collision doctrine.⁴ In reviewing the trial court’s refusal to grant post-trial motions for a new trial on the basis of alleged errors in the jury instructions, we will reverse only if the trial court “committed a clear abuse of discretion or an error of law which controlled the outcome of the case.” Dickens v. Barnhart, 711 A.2d 513, 515 (Pa.Super.1998) (citation omitted). Moreover, we examine “the charge in its entirety against the background of evidence in the case to determine whether error was made and whether it was prejudicial. [This Court] will not consider only portions taken out of context, nor will it reverse for isolated inaccuracies.” Id.

¶ 9 The enhanced injury doctrine is “a subset of a products liability action” and “provides that a manufacturer/seller is liable in ‘situations in which the defect did not cause the accident or initial impact, but rather increased the severity of the injury over that which would have occurred absent the ... defect.’ ”⁵ Kupetz v. Deere & Co., 435 Pa.Super. 16, 644 A.2d 1213, 1218 (1994) (citations omitted). In this case, the issue is whether a plaintiff in such an action must quantify precisely the extent of the enhanced injuries arising from the defect or whether the plaintiff need only prove that the defect increased the harm.⁶

¶ 10 In the present case, the trial court instructed the jury that, in addition to proving the vehicle was defective and the defect was the proximate cause of Sharon Stecher’s injuries, the Stechers had the burden to “show some method of establishing the extent of the ... enhanced injuries attributable to the defect.” (N.T. Trial, 4/21/99, at 1905.) The trial court then elaborated: “It is the plaintiffs’ burden to establish the extent of the enhanced injuries. If the defect increased the severity of the injury over what would have occurred without that defect, the manufacturer is hable for the increased injuries suffered by the plaintiff.” (Id. at 1907-08, 644 A.2d 1213.)

¶ 11 In its opinion, the trial court stated that Kupetz, supra, compelled this instruction. We disagree. In Kupetz, this Court endorsed the enhanced injury doctrine as a “permissible theory of recovery in this Commonwealth.” Kupetz, 644 A.2d at 1219. In so doing, we quoted the elements necessary to recover under this doctrine from two decisions from the United States District Court for the Eastern District of Pennsylvania⁷ that followed the United States Court of Appeals for the Third Circuit’s decision in Huddell v. Levin, 537 F.2d 726 (3rd Cir.1976). Id. at 1218. In Kupetz, however, this Court affirmed the judgment in a case where a jury trial resulted in a defense verdict. Thus, this Court did not have the occasion in Kupetz to consider the burden of proof regarding allocation of damages.

¶ 12 Similarly, we disagree with Ford’s contention that the Supreme Court of Pennsylvania “defined the elements of a crashworthiness claim” in Schroeder v. Pennsylvania Dep’t of Transp., 551 Pa. 243, 710 A.2d 23 (1998). (Ford’s Brief, at 19.) While the Court in Schroeder did cite to Kupetz in a footnote for the elements of an enhanced injury claim, the specific issue of the allocation of the burden of proof was not before the Court. Thus, we find that this specific question is an issue of first impression in the appellate courts of Pennsylvania.

¶ 13 The jurisdictions that have grappled with this issue previously have developed two contrary approaches. The Fox/Mitchell8 approach requires a plaintiff to prove only that a defect “was a substantial factor in producing damages over and above those which were probably caused as a result of the original impact or collision.”⁹ Mitchell, 669 F.2d at 1206. If the plaintiff does so, “the burden of proof shifts to the tortfeasors to apportion the damages between them.” Trull, 761 A.2d at 481. However, if the defect “is found to be a substantial factor in causing an indivisible injury such as paraplegia, death, etc., then absent a reasonable basis to determine which wrongdoer actually caused the harm, the defendants should be treated as joint and several tortfeasors.” Mitchell, 669 F.2d at 1206.

¶ 14 The Fox/Mitchell approach has been adopted in the majority of jurisdictions to consider this issue¹⁰ and by the Restatement (Third) of Torts. Specifically, Section 16 of the Restatement (Third) of Torts provides:

§ 16. Increased Harm Due to Product Defect

(a) When a product is defective at the time of commercial sale or other distribution and the defect is a substantial factor in increasing the Plaintiffs harm. beyond that which would have resulted from other causes, the product seller is subject to liability for the increased harm.

(b) If proof supports a determination of the harm that would have resulted from other causes in the absence of the product defect, the product seller’s liability is limited to the increased harm attributable solely to the product defect.

(c) If proof does not support a determination under Subsection (b) of the harm that would have resulted in the absence of the product defect, the product seller is liable for all of the plaintiffs harm attributable to the defect and other causes.

Restatement (Third) Torts, § 16 (2000).

¶ 15 In contrast, the Huddell/Caiazzo¹¹ approach requires a plaintiff to quantify the extent of his or her injuries that were caused by the defect and permits recovery from the manufacturer of the product that allegedly enhanced the injures only for the precise injuries caused by the defective product. Huddell, 537 F.2d at 738. This approach was first articulated by the United States Court of Appeals for the Third Circuit, predicting New Jersey law, in Huddell.12 and has been followed by the Third Circuit and the district courts within Pennsylvania when predicting Pennsylvania law.¹³

¶ 16 After careful consideration, however, we conclude that the Fox/Mitchell approach toward allocation of the burden of proof in enhanced injury cases is more consistent with Pennsylvania tort law than the Huddell/Caiazzo approach. The rational behind the Fox/Mitchell approach is that:

This placement of the burden of proof is justified by considerations of fairness. If we were to impose upon an injured party the necessity of proving which impact in a chain collision did which harm, we would actually be expressing a judicial policy that it is better that a plaintiff, injured through no fault of his own, take nothing, than that a wrongdoer pay more than his theoretical share of the damages arising out of a situation which his wrong has helped to create. In other words, the rule is a result of a choice made as to where a loss due to failure of proof shall fall — on an innocent plaintiff or on defendants who are clearly proved to have been at fault.

Mitchell, 669 F.2d at 1208. The Supreme Court of New Hampshire found that its adoption of the Fox/Mitchell approach was:

supported by our treatment of products liability actions, where we have, based upon a “compelling reason of policy,” abandoned the higher burden of proof of negligence actions in lieu of adopting the less stringent burden of proof of strict liability. Our rationale has been that the plaintiffs burden “had proven to be, and would continue to be, a practically impossible burden.” Similar policy reasons compel us to allocate the burden of apportionment to the defendants once the plaintiffs prove causation.

Trull, 761 A.2d at 482 (citations omitted).

¶ 17 We agree with the reasoning set forth by the United States Court of Appeals for the Eighth Circuit in Mitchell and by the Supreme Court of New Hampshire in Trull and note that the appellate courts of this Commonwealth have adopted principles of strict liability, successor liability and joint and several liability in recognition of similar public policy concerns. See, e.g., Walton v. Avco Corp., 530 Pa. 568, 576, 610 A.2d 454, 458 (1992) (“The exigencies of our complex technologies required the development and adoption of strict liability when it became clear that the circumstances behind some injuries would make negligence practically impossible for an injured plaintiff to prove.”); Glomb v. Glomb, 366 Pa.Super. 206, 530 A.2d 1362, 1365 (1987) (en banc) (“A court can direct the apportionment of liability among distinct causes only when the injured party suffers distinct harms or when the court is able to identify ‘a reasonable basis for determining the contribution of each cause to a single harm.’ ”) (quoting Restatement (Second) of Torts, § 433A(1) (1965)).

¶ 18 Moreover, the Fox/Mitchell approach does not relieve a plaintiff of his or her burden of proving damages. See Trull, 761 A.2d at 483. Indeed, as the First Circuit explained in its opinion certifying the question of which approach was to be followed in New Hampshire to the Supreme Court of New Hampshire in Trull:

[t]he Fox\f]Mitchell approach does not relieve a plaintiff of the threshold obligation of proving causation, and thus liability; it is only after a plaintiff has demonstrated that the design defect was a ‘substantial factor’ in producing damages over and above those that otherwise would have occurred that the burden shifts to the defendant to apportion damages.

Trull v. Volkswagen of America, Inc., 187 F.3d 88, 102 (1st Cir.1999). Accord Poliseno, 744 A.2d at 685 (plaintiff still must meet the threshold burden of proving that “the alleged defect was a substantial factor in increasing the harm beyond that which would have resulted from the first collision”). Meeting this threshold is sufficient to comply with the mandate that a plaintiff in this Commonwealth must prove the existence and amount of his or her damages with sufficient certainty. .

¶ 19 As the Superior Court of New Jersey recently recognized, “[wjhich party has the burden of proof on [this] issue can be determinative of whether a plaintiff recovers damages in such cases.” Poliseno, 744 A.2d at 685. Indeed, under the Huddell approach, “a plaintiff would be ‘relegated to an almost hopeless state of never being able to succeed against a defective designer’”, Trull, 761 A.2d at 482 (quoting Mitchell, 669 F.2d at 1204), because this approach requires a plaintiff to “prove a negative based on a hypothetical set of facts.” Tracy, 524 S.E.2d at 893 n. 12 (quoting Oakes v. General Motors Corp., 257 Ill.App.3d 10, 194 Ill.Dec. 844, 628 N.E.2d 341 (1993)).

¶20 For all of these reasons, we find that application of the Fox/Mitchell approach in the present case is more consistent with the law and public policy of this Commonwealth. We hold, therefore, that the trial court erred in instructing the jury that the Stechers bore the burden of quantifying the extent of the enhanced injures caused by the alleged defect in the Ford vehicle. Accordingly, we vacate the judgment of the Court of Common Pleas of Lancaster County and remand this matter for a new trial.

¶ 21 Our decision to grant a new trial on this basis renders moot Ford’s challenge to the trial court’s denial of its motions for a compulsory nonsuit and directed verdict. This result also eliminates the necessity of our considering the Stechers’ challenges to the trial court’s failure to grant their requested instruction on concurrent causation. On retrial, the trial court will be called upon to fashion jury instructions that encompass the appropriate apportionment of the burden of proof under the Fox/Mitchell approach. Similarly, we decline to consider the parties’ arguments regarding the admissibility of particular evidence and expert testimony. On retrial, if the Stechers meet their burden of proving by a preponderance of the evidence that a defect in the Ford vehicle was a substantial factor in increasing Mrs. Stecher’s injuries, then the burden shifts to Ford to quantify the extent of those injuries caused by the alleged defect. We leave it to the trial court to determine whether particular evidence or testimony is relevant to either party’s burden of proof on retrial under the Fox/Mitchell approach.

¶22 Accordingly, we vacate the judgment in favor of Ford and against the Stechers and remand this matter for further proceedings consistent with this Opinion.

¶23 Judgment vacated and case remanded. Jurisdiction relinquished.

¶ 24 TAMILIA, J., files a Dissenting Opinion.

1 . We note that the parties initially purported to appeal the trial court's September 20, 1999 Order denying their post-trial motions, prior to having judgment entered on the verdict. Such an appeal would be interlocutory absent final judgment and this Court would be without jurisdiction to hear it. See Johnston the Florist, Inc. v. TEDCO Constr. Corp., 441 Pa.Super. 281, 657 A.2d 511, 514 (1995). Upon the Stechers' praecipe, however, the trial court entered final judgment on October 3, 2000. Since entry of final judgment during the pendency of an appeal is sufficient to perfect our jurisdiction, see id. at 513, we will address the appeal on its merits and have corrected the caption accordingly.

2 . Reed Chevrolet was dismissed from the action without prejudice by stipulation of the parties and with approval by the trial court on August 16, 1996.

3 . We have paraphrased Ford’s issues on appeal for ease of review.

4 . Ford argues that the Stechers waived any alleged error in the trial court’s instructions on the burden of proof by submitting a proposed jury instruction that Ford contends conceded that they bore the burden of proving Mrs. Stecher’s enhanced injuries. (Ford’s Brief, at 25.) The Stechers counter that the instruction in question was related to their design defect claim only, a claim that they later withdrew. (Stechers’ Reply Brief, at 9.) Our review of the record leads us to conclude there was no waiver. Accordingly, we shall address this issue on the merits.

5 . In Kupetz, the alleged defect was a design defect. Id. In the present case, the Stechers proceeded to trial under the theory that the Ford vehicle was manufactured defectively. While the elements of these claims vary slightly, this doctrine has been applied to manufacturing defects as well as design defects. See, e.g., Poliseno v. General Motors Corp., 328 N.J.Super. 41, 744 A.2d 679 (App.Div.), appeal denied, 165 N.J. 138, 754 A.2d 1213 (2000).

6 . This issue arises only in situations, such as the catastrophic brain injury in the present case, where the injury is indivisible. See, e.g., Trull v. Volkswagen of America, Inc., 761 A.2d 477, 481 (N.H.2000) (death and brain injury); General Motors Corp. v. Edwards, 482 So.2d 1176, 1190 (Ala.1985) (severe burns), overruled on other grounds, Schwartz v. Volvo North America Corp., 554 So.2d 927 (Ala.1989); Czarnecki v. Vollkswagen of America, 172 Ariz. 408, 837 P.2d 1143, 1148 (Ct.App.1991) (paraplegia caused by spinal cord injury).

7 . Dorsett v. American Isuzu Motors, Inc., 805 F.Supp. 1212 (E.D.Pa.1992), aff’d without opinion, 977 F.2d 567 (3d Cir.1992); Craigie v. General Motors Corp., 740 F.Supp. 353 (E.D.Pa.1990).

8 . See Fox v. Ford Motor Co., 575 F.2d 774 (10th Cir.1978) (predicting Wyoming law), and Mitchell v. Volkswagenwerk, AG, 669 F.2d 1199 (8th Cir.1982) (predicting Minnesota law).

9 . Enhanced injury cases frequently, as in the present case, arise from automobile accidents. The precise language used by the cases to consider issues relating to enhanced injury cases, therefore, often is couched in terms of impacts and collisions. We note, however, that enhanced injury situations are not limited to collisions. See, e.g., Hillrichs v. Avco Corp., 478 N.W.2d 70, 75 (Iowa 1991) (injury from grain harvesting machinery), abrogated on other grounds by Reed v. Chrysler Corp., 494 N.W.2d 224 (Iowa 1992); Murphey v. Georgia Pacific Corp., 331 N.C. 702, 417 S.E.2d 460 (1992) (injury while rewiring electric meter).

10 . In addition to the United States Court of Appeals for the Eighth and Tenth Circuits, at least three other circuit courts, predicting state law in the absence of controlling precedent, and the appellate courts of at least 20 states either have adopted this approach explicitly or expressed a consistent rationale. See McInnis v. A.M.F., Inc., 765 F.2d 240 (1st Cir.1985) (predicting Rhode Island law); Shipp v. General Motors Corp., 750 F.2d 418 (5th Cir.1985) (predicting Texas law); McLeod v. American Motors Corp., 723 F.2d 830 (11th Cir.1984) (predicting Florida law); General Motors Corp. v. Edwards, supra; GMC v. Farnsworth, 965 P.2d 1209 (Alaska 1998); Czarnecki v. Volkswagen of America, supra; McGee v. Cessna Aircraft Co., 139 Cal.App.3d 179, 188 Cal.Rptr. 542 (1983); Polston v. Boomershine Pontiac-GMC Truck, Inc., 262 Ga. 616, 423 S.E.2d 659 (1992); Fouche v. Chrysler Motors Corp., 103 Idaho 249, 646 P.2d 1020 (1982), aff'd 107 Idaho 701, 692 P.2d 345 (1984); Buehler v. Whalen, 70 Ill.2d 51, 15 Ill.Dec. 852, 374 N.E.2d 460 (1977); Jackson v. Warrum, 535 N.E.2d 1207 (Ind.Ct.App.1989); Lally v. Volkswagen Aktiengesellschaft, 45 Mass.App.Ct. 317, 698 N.E.2d 28 (Mass.1998); Lahocki v. Contee Sand & Gravel, Inc., 41 Md.App. 579, 398 A.2d 490 (1979), rev’d on other grounds, 286 Md. 714, 410 A.2d 1039 (1980); McDowell v. Kawasaki Motors Corp., 799 S.W.2d 854 (Mo.Ct.App.1990); Kudlacek v. Fiat, S.p.A., 244 Neb. 822, 509 N.W.2d 603 (1994); Trull v. Volkswagen of America, Inc., supra; Poliseno v. General Motors Corp., supra; Staas v. McAllister, 2000 WL 262661 at *1 (Ohio Ct.App. March 10, 2000); Lee v. Volkswagen of America, Inc., 688 P.2d 1283 (Okla.1984); May v. Portland Jeep, Inc., 265 Or. 307, 509 P.2d 24 (1973); Tracy v. Cottrell, 206 W.Va. 363, 524 S.E.2d 879 (1999); Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis.2d 338, 360 N.W.2d 2 (1984); Chrysler Corp. v. Todorovich, 580 P.2d 1123 (Wyo.1978).

11 . See Huddell, supra, and Caiazzo v. Volkswagenwerk A.G., 647 F.2d 241 (2nd Cir.1981) (predicting New York law). This approach has been followed or supported by at least one other circuit court predicting the law of two states and by the appellate courts of at least seven other states. See Chretien v. General Motors Corp., 959 F.2d 231 (4th Cir.1992) (applying Virginia law); Stonehocker v. General Motors Corp., 587 F.2d 151 (4th Cir.1978) (predicting South Carolina law); Mazda Motor Corp. v. Lindahl, 706 A.2d 526 (Del.1998); Hillrichs v. Avco Corp., supra; Sumner v. General Motors Corp., 212 Mich.App. 694, 538 N.W.2d 112 (1995), overruled on other grounds, Lopez v. General Motors Corp., 224 Mich.App. 618, 569 N.W.2d 861 (1997); Duran v. General Motors Corporation, 101 N.M. 742, 688 P.2d 779 (Ct.App.1983), overruled on other grounds, Brooks v. Beech Aircraft Corp., 120 N.M. 372, 902 P.2d 54 (1995); Garcia v. Rivera, 160 A.D.2d 274, 553 N.Y.S.2d 378 (N.Y.App.Div.1990); Murphey v. Georgia Pacific Corp., supra; Couch v. Mine Safety Appliances, Co., 107 Wash.2d 232, 728 P.2d 585 (1986).

12 . As discussed below, however, when eventually faced with this issue, the appellate courts of New Jersey adopted the Fox/Mitchell approach. Poliseno, supra.

13 . See Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir.2000), cert. denied - U.S. -, 121 S.Ct. 1357, 149 L.Ed.2d 287 (2001); Dorsett v. American Isuzu Motors, Inc., supra; Craigie v. General Motor Corp., supra.