State Appeals Court Orders New Trial Based on Error Admitting "Similar Incidents"

In product litigation over a plane crash, a  Florida appeals court has ordered a new trial because of the improper admission of evidence of "similar incidents." Godfrey v. Precision Airmotive Corp., No. 5D07-4389 (Fla. 5th Dist. Ct. App., 9/10/10).

Plaintiffs' suit alleged that the airplane they were in crashed as the result of a faulty Precision Airmotive Co. MA-3SPA carburetor.  Plaintiffs were the  flight instructor and student, flying a 1973 Cessna 150.  Its engine had been overhauled three times. The most recent overhaul included installation of a new carburetor a few months before the accident.  Plaintiffs alleged design and manufacturing defects that allegedly either allowed fuel to leak or allowed too much fuel into the carburetor. A jury had awarded approximately $55 million. 

Defendants sought a new trial, arguing, inter alia, that the trial court erred in admitting evidence of other supposedly similar incidents at trial. The trial court agreed in post-trial motions, and both sides appealed. Readers know that such evidence is often used to attempt to prove that the defendant was on notice of the risk or hazard, and/or that the defect was the factual cause of the accident.  Here, the documents were purportedly offered solely to show that defendant was on notice of the carburetor defect that allegedly caused its engine to fail. Generally, in this context, evidence of the occurrence or non-occurrence of prior accidents is admissible only if it pertains to the use of the same type of appliance or equipment under substantially similar conditions. Florida law, as is typical, places the burden on the proponent of this type of evidence to demonstrate "substantial similarity" before the evidence can be admitted.

The problem here was that most of the "similar" incidents involved a different, larger aircraft engine built by a competing manufacturer and using a different carburetor than the one defendant Teledyne certified for use with the engine at issue in this case. Basically, the plaintiffs relied upon testimony from one of their experts, who opined that the engine at issue in this case was similar to the other engines, and offered a long list of carburetors that he opined to be similar in that they all share the defects alleged to exist in the carburetor that allegedly contributed to the engine failure in this case.

The DCA agreed with defendant Teledyne that the trial court committed reversible error by allowing the plaintiffs to introduce this evidence of more than 100 problem occurrences involving other aircraft engines without a sufficient showing that the other incidents were caused by defects substantially similar to the defect that the plaintiffs alleged. 

The different engines was not a trivial factor.  But even if all of the accidents had involved the same Teledyne engine, that showing, alone, would not have been sufficient to secure admission of evidence regarding all of the other accidents. For example, said the court, one of the effects of the defects alleged by the plaintiffs was a build-up of carbon in the engine exhaust valve that can
interfere with the engine's operation and, ultimately, cause the engine to fail. But the plaintiffs' expert conceded that, among other things, failing to change the engine oil when specified can cause this exact same condition. Since all that was known about some of the supposedly similar accidents is that they involved engines with carbon build-up, it was impossible to say they were similar -- because there was no way of knowing whether the build-up was caused by the same condition alleged as a defect in this case. Any accident caused by a failure to change an engine's oil when required would not have put Teledyne on notice of the defects alleged in this case.

Given the volume of other accident evidence introduced in this case without a sufficient similarity showing, the court of appeals could not conclude that the error in admitting this evidence was harmless. Accordingly, a new trial was indeed warranted.

Interestingly, the dissent suggested that a different (easier) standard should apply when plaintiffs are trying to show the defendant was on notice, as opposed to trying to prove the existence of a dangerous condition or other usage of similar accidents.   

State Supreme Court Overturns Verdict In Sudden Acceleration Case

A recent state supreme court decision offers an interesting take on the use of experts in product liability cases. Watson v. Ford Motor Company , No. 26786 (S.C. March 15, 2010).

Plaintiffs filed a products liability suit against Ford, alleging that the cruise control system on the accident vehicle was defective and the cause of a serious accident. Watson testified that when she entered the interstate, she promptly set the cruise control, but shortly thereafter, the vehicle began to suddenly accelerate. Watson testified that she pumped her brakes to no avail before crashing. Plaintiff's theory of the case was that the vehicle's cruise control system was defective because it allowed electromagnetic interference (EMI) to affect the system. To support this theory, they presented Dr. Antony Anderson, an electrical engineer, who testified as to his theory that EMI can interfere with the speed control component of a cruise control system and cause a vehicle to suddenly and uncontrollably accelerate. Dr. Anderson further opined that this was the cause of the accident, and that Ford could have employed a feasible alternative design to prevent EMI.  Plaintiffs also presented testimony from Bill Williams who was qualified as an expert on “cruise control diagnosis.”

The jury found Ford liable on the cruise control products liability claim, and awarded compensatory damages of $15 million to Watson and $3 million to the estate of passenger Patricia Carter.

The appeal presented three issues: did the trial court err in qualifying Bill Williams as an expert in cruise control systems; did the trial court err in allowing Dr. Anderson’s expert testimony regarding EMI and alternative feasible design; did the trial court err in allowing evidence of other incidents of alleged sudden acceleration in Explorers?

On question one, the court found error. Williams testified that he had worked in the automotive industry since the early 1980s and was currently conducting seminars to train automobile technicians who focus on the brake systems in vehicles. While Williams may have been qualified as an expert in other aspects of automobile components, such as the brake system, the trial court failed to properly evaluate Williams’ qualifications specific to cruise control systems. Notwithstanding this error, the court did not believe that this error alone prejudiced Ford’s defense. Williams’ testimony essentially consisted of a description of the system accompanied by models and diagrams of the components. Furthermore, the trial court prohibited Williams from testifying to matters outside of his scope, specifically noting he could not testify as to electrical engineering matters.

On the second issue, the court addressed an issue that reflected the lack of fit between the opinion and the witness' qualifications in the particular area of expertise. Beyond that, Ford claimed that Dr. Anderson's theory regarding EMI as the cause of the sudden acceleration failed to meet the reliability requirements for the admission of expert testimony. The court reiterated several factors that the trial court should consider when determining whether scientific expert evidence is reliable:(1) the publications and peer review of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures.

Dr. Anderson’s background involved working with massive generators which have entirely different electrical wiring systems and different voltage levels. He had no experience in the automobile industry, never studied a cruise control system, and never designed any component of a cruise control system. Dr. Anderson had not even operated an automobile with a cruise control system before this litigation; yet, he offered testimony regarding EMI and its effect on the cruise control system.  While he was an expert, perhaps not in the area he opined about.

Even assuming Dr. Anderson was properly qualified as an expert in this area, his testimony was found not reliable. Dr. Anderson declared that the alternative design (twisted pair wiring) would have prevented EMI but did not explain how twisted pair wiring could be incorporated in to a cruise control system and did not offer any model comparison. Furthermore, Dr. Anderson concluded that this design was economically feasible, but offered no basis to support this conclusion.

Dr. Anderson admitted that his theory had not been peer reviewed, he had never published papers on his theory, and he had never tested his theory. He also admitted that he would not be able to determine exactly where the EMI (which he opined caused the cruise control to malfunction) originated or what part of the system it affected. He further testified that it would not be possible to replicate the alleged EMI malfunction of a cruise control system in a testing environment.

The court concluded that there was no evidence indicating that Dr. Anderson’s testimony contained "any indicia of reliability." He had never published articles on his theory nor had he tested his theory. Importantly, Dr. Anderson admitted that it was not possible to test for EMI. Furthermore, although it is not a prerequisite in South Carolina that scientific evidence attain general acceptance in the scientific community before it is admitted, the court found it instructive that not only had the underlying science not been generally accepted, Dr. Anderson’s theory was rejected in the scientific community.  Next, the court found that Ford was prejudiced by the admission of this testimony. Indeed, the only evidence plaintiffs presented to support their theory that the vehicle was defective was Dr. Anderson’s testimony.

On the third issue, evidence of similar accidents, transactions, or happenings is admissible in South Carolina where there is some special relation between the accidents tending to prove or disprove some fact in dispute. Typically, a plaintiff must present a factual foundation for the court to determine that the other accidents were substantially similar to the accident at issue. The court will look at whether (1) the products are similar; (2) the alleged defect is similar; (3) causation related to the defect in the other incidents; and (4) exclusion of all reasonable secondary explanations for the cause of the other incidents.

Here, plaintiffs failed to show that the incidents were substantially similar and failed to establish a special relation between the other incidents and the relevant accident. The other incidents involved Explorers that were made in different years and were completely different models with the driver’s seat located on the right side of the vehicle. More importantly, plaintiffs failed to show a similarity of causation between the malfunction in this case and the malfunction in the other incidents. Plaintiffs presented only the testimony of the other drivers and did not present any expert evidence to show that EMI was a factor in the malfunction in the other incidents.

This evidence was highly prejudicial. Courts require a plaintiff to establish a factual foundation to show substantial similarity because evidence of similar incidents may be extremely prejudicial. Plaintiffs' counsel highlighted this improper evidence in closing arguments and thereby possibly induced the jury to speculate as to other causes of the accident not supported by any evidence.