RICHMOND, Va. (Legal Newsline) - Ford Motor Company won a major victory in a products liability lawsuit when the Virginia Supreme Court confirmed the circuit court's order granting a motion in limine that excluded evidence thought critical to the plaintiff's case.

A prior opinion rendered June 7, 2012, was withdrawn by the Court after a petition for rehearing was granted by an order of Sept. 17, 2012. The justices had voted 4-3 on the ruling.

The new 4-3 majority opinion, issued Jan. 10, was written by Justice Cleo E. Powell and joined by Chief Justice Cynthia D. Kinser and Justices S. Bernard Goodwyn and LeRoy F. Millette.

Millette, reversed his position and joined the dissenters from the prior opinion, creating the new majority.

Justice Elizabeth A. McClanahan, concurring in part and dissenting in part, wrote an opinion joined by Justices Donald W. Lemons and William C. Mims.

The case came about as a result of the tragic death of three year old Emily Funkhouser in May 2006. While playing in the family's 1999 Ford Windstar, the child was badly burned in a fire that erupted in the passenger compartment of the van and she died later that afternoon.

Court records indicate the van was not running at the time and the keys may not have been in the ignition.

"In August 2007," the opinion states, "Funkhouser, as administrator of Emily's estate, filed a wrongful death action against Ford alleging 'a design defect in a particular electrical connector behind the dashboard of the Ford Windstar van that caused it to ignite.'

Ford was then granted a motion in limine to exclude evidence of seven other Windstar fires and Steven K. Funkhouser, representative of Emily's estate, took a voluntary nonsuit.

In January 2010, Funkhouser again filed a wrongful death action against Ford, this time alleging negligence and breach of implied warranty.

"Funkhouser's action was based on the theory that Ford failed to adequately warn consumers about the fire hazards existing in Windstar vans when they are parked with the engine off and no key in the ignition."

A Funkhouser designated expert, Michael J. Schulz, testified that the origin of the fire in the family's van "was located within the vehicle's instrument panel area with the key in an off position."

Schulz went on to say that although there were multiple options in the instrument panel where the fired could have originated, "the most likely origin point of the fire was in the lower portion of the panel in the vicinity of the wiring harness, cigarette lighter and the controls for the heating and AC system."

Schulz explained that he thought the fire was caused by heat energy generated in the wiring harness area and he opined that, "Ford possessed information that should have placed a reasonably prudent final-end manufacturer on notice that Ford's Windstar minivans manufactured between 1999 and 2003 were or were likely to be dangerous for the use for which they were sold because Ford knew or should have known that the electrical components in the instrument panel area of these vans had the potential to fail and result in a fire with the key in an "off" position."

In order to prove that Ford knew or had reason to know of the danger of "key-off dashboard electrical fires", Funkhouser sought to introduce evidence of specific Windstar fires that occurred prior to the Funkhouser fire.

Following discovery Ford filed a motion in limine asking the circuit court to reconfirm its ruling from the previous case, the case Funkhouser filed and ultimately dropped, excluding the same evidence.

The circuit court granted Defendant Ford's motion in limine, "because the exact defect is not known in the Funkhouser fire ... it is not fair to Ford to say it is the 'same or similar defect and danger' as those in the other seven fires."

Funkhouser then requested clarification as to whether this ruling precluded Funkhouser's experts from relying on the evidence of the other seven fires in forming their opinion as to whether Ford knew or had reason to know of the dangerous condition.

The court clarified that not only could the evidence not be presented in the Funkhouser trial but the experts were precluded from relying on the evidence as the basis for their opinion.

Funkhouser appealed this ruling to the state supreme court.

"On appeal, Funkhouser argues that the circuit court erred in excluding evidence of the seven other Windstar fires. In the alternative, Funkhouser contends that, even if evidence of the other Windstar fires was inadmissible, the circuit court erred in ruling that Funkhouser's experts could not rely on those other fires as a basis for their opinions."

"To establish that a manufacturer knows or has reason to know of the danger in a duty to warn case, a plaintiff may present evidence of similar incidents, provided the prior incidents occurred under substantially the same circumstances, and had been caused by the same or similar defects and dangers as those in issue," Powell wrote.

"In the present case, all Funkhouser can show is that the incidents occurred under substantially the same circumstances; he cannot show that the fires were caused by the same or similar defects. Indeed, Funkhouser implicitly concedes this fact, as he amended his initial complaint from a design defect claim to a failure to warn claim because he realized that he could not definitively prove the specific defect that caused the fire.

"Similarly, he cannot prove what defect, if any, caused the fires in the other vehicles. Therefore, the circuit court did not err in excluding the evidence of the other seven fires."

"Funkhouser also argues the circuit court erred in ruling that his experts could not rely upon the evidence of the prior fires in their testimony regarding how a reasonable automobile manufacturer would react to those prior fires.

"Funkhouser relies upon Code § 8.01-401.1, which allows an expert to express an opinion or draw inferences from sources that are not allowed into evidence.

"In pertinent part, Code § 8.01-401.1 states:

The facts, circumstances or data relied upon by [an expert] witness in forming an opinion or drawing inferences, if of a type normally relied upon by others in the particular field of expertise in forming opinions and drawing inferences, need not be admissible in evidence.

However," Powell writes, "the fact that an expert witness may rely upon otherwise inadmissible evidence in forming an opinion does not relieve the court from its responsibility, when proper objection is made, to determine whether the factors required to be included in formulating the opinion were actually utilized."

"[W]e today hold that an expert cannot offer opinion testimony based on evidence that fails the substantial similarity test. To hold otherwise would be to allow an expert to offer an opinion based on speculative or otherwise irrelevant evidence.

"In the present case, none of the seven prior fires were the same or substantially similar to the Funkhouser fire ... Accordingly, the trial court did not err in precluding Funkhouser's experts from relying on the evidence of the seven other Windstar fires as a basis for their opinions."

McClanahan, concurring in part and dissenting in part, wrote, "In my view, the circuit court applied incorrect legal principles in ruling on the admission of evidence of prior Ford Windstar fires and in prohibiting the reliance upon such fires by Funkhouser's experts.

"The majority justifies the circuit court's rulings by crafting a new standard for admission of similar occurrences proof, incorporating this new standard into the elements of a cause of action for failure to warn, and creating its own exception to Code § 8.01-401.1."

"We have traditionally permitted a plaintiff to prove notice of a dangerous condition through evidence of another similar incident or occurrence provided the prior incident occurred under substantially the same circumstances and was caused by the same or similar defects and dangers as those in issue.

"Applying these principles, the evidence in the record establishes the Mulkey, Tirone, Carf, and Roth fires occurred under substantially the same circumstances and were caused by the same or similar defects and dangers as those in [the Funkhouser fire]."

"Unlike the majority, I would hold that evidence of the Mulkey, Tirone, Carf, and Roth fires is admissible. However, because I would hold that, under the proper analysis, evidence of the Arencibia, Bryan, and Pell fires is inadmissible, I concur in the majority's holding to that extent."

McClanahan then moved to the "admission of expert testimony" issue.

"Pursuant to Code § 8.01-401.1, "any expert witness may give testimony and render an opinion or draw inferences from facts, circumstances or data made known to or perceived by such witness at or before the hearing or trial during which he is called upon to testify."

"Although Funkhouser's expert witnesses may not make reference to inadmissible fires during their direct examination, Code § 8.01-401.1 expressly permits expert witnesses to rely upon inadmissible information in formulating their opinions if it is of a type normally relied upon by others in the particular field of expertise in forming opinions and drawing inferences."

McClanahan states, "[T]he majority has amended Code § 8.01-401.1 to provide that information relied upon by an expert witness need not be admissible in evidence unless it is inadmissible because it fails the substantial similarity test."

"Because I would apply Code § 8.01-401.1 as written, I dissent from the majority's holding that the circuit court did not err in precluding Funkhouser's experts from relying on information regarding the other Windstar fires in formulating their opinions.

"Therefore, while I conclude that evidence of the Arencibia, Bryan, and Pell fires is inadmissible, I would hold that Funkhouser's experts may rely upon the information regarding those fires in formulating their opinions if such information is "of a type normally relied upon by others in the particular field of expertise in forming opinions and drawing inferences."

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