PILED
NO. 03-35326 UNITED
STATES FOR
KENNETH the Estates GERALD minor;
THE
L. JARAMILLO, of ANGELA
COURT NINTH
as guardian
and BRADFORD
OATHy _ _
.
CIRCUIT
individually
and as Personal
L. JARAMILLO
R. TARUTIS
set, z s Zoo3
OF APPEALS
Representative
and McKENNA ad litem
LEE
for RILEY
J. FULTON as guardian JARAMILLO a minor,
JARAMILLO;
R. JARAMILLO,
ad litem
of
for SAWYER
a D.
Plaintiffs-Appellants,
V,
FORD
MOTOR
COMPANY,
a Delaware
corporation,
Defendant-Appellee.
On Appeal Western
from
the United
District
States
District
of Washington,
Court
Tacoma
for the
Division
Honorable J. Kelly Arnold U.S.D.C. No. CV-01-05311-JKA
APPELLEE'S
ANSWERING
David
D. Swartling
Raymond
S. Weber
Caryn Geraghty MILLS MEYERS 1000
Second
Seattle,
Jorgensen SWARTLING
Avenue,
30 th Floor
WA 98104-1064
Telephone:
(206)
382-1000
Facsimile:
(206)
386-7343
Attorneys
BRIEF
for Defendant-Appellee.
e_
CORPORATE
DISCLOSURE (Fed.
Ford
Motor
has a financial domestic interest
Company
interest
and foreign of at least
United
States
R. App.
P. 26.1)
has no parent
in this matter. companies
FRN FRN
Ford
Motor
and no other
Company
Inc. Technology
Partners
III
of San Diego, LLC of Tulsa, LLC
J.D. Power
Clubs,
Metropolitan Vastera, Inc. Argentina
Ford
Credit
Canada
Ballard
Denmark
Ford
Finland
Oyj Ford
Germany
Ford
Japan
Mazda
Norway
Ford
Motor
Vietnam
Ford
Vietnam
L.L.C.
Compafifa
Power
Motor
Inc.
Realty
Financiera
Systems
Company
A/S
Abp
Werke-Aktiengesellschaft Motors
Corporation
Norge
A/S
Limited
corporation
is a list of publicly
100%.
Ceradyne, Edelson
corporation
The following
in which
10% but less than
STATEMENT
S. A.
owns
traded an equity
Executed on behalf of Ford Motor Company this 23rdday of September, 2003. MILLS MEYERS SWARTLING Attorneys for the Defendant-Appellee Ford Motor Company
! bavid D_ Swa_t_t(g WSBA
No. 69,72
Raymond S./Weber WSBA No. tt 8207 Caryn Geraghty Jorgensen WSBA No. 27514
"'"
-
/J" ///
"
TABLE
OF CONTENTS P_
CORPORATE
DISCLOSURE
STATEMENT
(Fed.
R. App.
i
P. 26.1)
iii
TABLE
OF CONTENTS
TABLE
OF AUTHORITIES
V
I.
STATEMENT
OF JURISDICTION
1
II.
STATEMENT
OF THE
1
III.
STATEMENT
OFFACTS
A.
The Jaramillos'
B.
The Accident
C.
Plaintiffs'
D.
Bronco
2.
Plaintiffs'
3.
Evidence
Ford's 1.
Ford's
2.
Evidence
SUMMARY
V.
ARGUMENT The
to Lease
4 5
Strategy
II evidence
5
comparative of other
6
risk analysis
accidents
offered
by plaintiffs
8 8
comparative of other
risk analysis accidents
OF ARGUMENT
Standard
3
the Explorer
Defense
IV.
A.
3
Decision
Liability
1.
CASE
9 ll 13 14
of Review
14
iii
P_
B.
The "Substantial Similarity" Requirement Does Not Apply to the Disputed Evidence
15
C.
Plaintiffs are Barred from Challenging the Comparative Risk Evidence Because They Invited its Admission
18
D.
A Comparative Risk Analysis is Particularly Probative of the Proof Necessary Under the Washington Product Liability Act
2O
,
The
accident
Explorer's designs 2.
.
4.
was probative
design
and its risks
Accident
data is probative
ordinary
consumer
The accident
data
whether
Ford
had a duty
rollover
associated
Evidence is relevant
VI.
data
relative
was relevant with
of the
to other
of the expectation
of the
of an undue
within
the automotive
industry
F.
Evidence
Regarding
and Astro
Van Was
Accidents
Involving
Court's Any
the Escort
PROOF
29
30
OF COMPLIANCE RULE 32-1 FOR OF RELATED
28
Admitted
CONCLUSION
STATEMENT
27
law
The Jaramillos Did Not Assign Error to the District Fed. R. Evid. 702 and Daubert Ruling; Consequently, Such Basis for Appeal Has Been Waived
CERTIFICATE AND CIRCUIT
26
risk of
E,
Properly
of
24
the Explorer
Washington
Rollover
21
vehicle
to a determination
to warn
of performance under
on the utility
TO FED. R. APP. CASE NO. 03-35326
CASES
- CIRCUIT
OF SERVICE
32(a)(7)(C)
RULE
28-2.6
31
32 33
iv
TABLE FEDERAL Barker
OF
AUTHORITIES
CASES
v. Deere
Bammerlin
& Co., 60 F.3d 158,
v. Navistar
Int'l
Transp.
162-63 Corp.,
(3d Cir.
1995)
_
30 F.3d 898,901
17 17, 23
(7 th Cir. 1994) Brown
v. Seirra
Nevada
Mere. Hosp.,
849 F.2d
1186,
1190
(9 th Cir.
30
1988) Burgess
v. Premier
Corp.,
Cooper v. Firestone (9 th Cir. 1991) Coursen
727 F.2d 826,
Tire and Rubber
834 (9 th Cir. 1984)
Co., 945 F.2d
v. A. H. Robins
Co., Inc.,
764 F.2d
v. Merrell
Pharmaceuticals,
1329,
1103,
18 1105
15
1333 (9 th Cir.
15
1985) Daubert
Dow
Inc.,
509 U.S.
579,
597
28
(1993) Drabik
v. Stanley-Bostitch,
Inc.,
997 F.2d 496,
508-09
(8 th Cir.
17
1993) Heath
v. Suzuki
Johnson
Motor
v. Ford
Corp.,
Motor
Co., 988 F.2d
Mukhtar v. California n. 6 (9 th Cir. 2002) Trull
v. Volkswagen
United (D.D.C. United
States 1987), States
126 F.3d
State
Univ.,
of America,
v. General aft'd, v. Kessi,
Motors
Inc.,
(11 th Cir. (5 th Cir.
299
187 F.3d
Corp.,
F.3d
1555,
1997)
1993)
1053,
88 (1 s' Cir.
656 F. Supp.
(D.C.
1097,
1396
573,579-80
Hayward,
841 F.2d 400 868 F.2d
1391,
1063
16 17 18
1999)
15, 16, 22
1575
23
Cir. 1988)
1107 (9 th Cir.
1989)
14
FEDERAL United
CASES
States
White
(cont.)
v. Segal,
v. FordMotor
852 F.2d Co.,
1152,
1155
312 F.3d 998,
18
(9 th Cir. 1988)
1009
(9 th Cir. 2002)
15, 17
i
STATE
CASES
Bittner
v. American
(Wis.
Honda
Motor
Co., 533 N.W.2d
476,
23
487
1995)
Crittendon
v. Fibreboard
794 P.2d 554,
559 (1990)
Falk
Corp.,
v. Keene
Corp.,
58 Wash.
113 Wash.
App.
27
649, 658-59,
2d 645,654-55,782
P.2d
974, 980
25,28
(1989) Ruiz-Guzman
v. Amvac
7 P.3d 795,800 Seattle-First 774,
Chem.
Corp.,
141 Wash.
24
2d 493,504,
(2000) Nat'l
Bank
v. Tabert,
86 Wash.
2d 145,
154, 542 P.2d
21, 25
779 (1975)
Stark v. Allis-Chahners, (1970)
2 Wash.
App.
399,406,
467 P.2d
854,
23
858
STATUTES RCW
7.72,
Washington's
Product
Liability
Act
20
RCW
7.72.030(1)
RCW
7.72.030(1)(a)
RCW
7.72.030(1)(b)
RCW
7.72.030(1)(c)
1, 26
RCW
7.72.030(3)
1, 24
21 1,21,22 1
vi
STATUTES RCW
(cont.) 27
7.72.050(1)
OTHER
AUTHORITIES
Fed. R. Evid.
401
15
Fed. R. Evid.
402
15
Fed.
R. Evid.
403
14
Fed. R. Evid.
702
28
Fed. R. Evid.
703
16
Fed.
803(8)
15
R. Evid.
Restatement
(Third)
of Torts
§ 2 cmt. d, at 19 (1998)
vii
24
I. STATEMENT Ford
Motor
Company
OF JURISDICTION
("Ford")
agrees
with
plaintiffs'
Statement
of
Jurisdiction. II.
This injuries
is a product
and
contended designed
STATEMENT
death
liability
resulting
at trial
that
in at least three
it unstable,
respects:
crashes,
it "unspooled"
allowing
one
failed
to provide
contended
under and
Ford
Upon these
RCW
7.72.030(1)(a),
whether maintained manufacture violation
the
and
that in of RCW
strength
occupant
Ford
was
which RCW
is
Ford violation
7.72.030(3),
unsafe
failed of
7.72.030(1)(c).
requires
to
an
to provide RCW
accident.
Plaintiffs
Explorer,
was
high
of gravity
center
SER
argued
ordinary adequate
7.72.030(1)(b)
26.
In addition, rollover
the vehicle
was
in that they
risks. defective
of a product's
involves consumer. warnings and
occupants
defective
a consideration which
made
was
regarding
for
defectively
to protect
seatbelts
warnings
plaintiffs
law
insufficient
to be ejected.
adequate
contentions,
under
product
a 1998
Washington
rollover
and (3) one of the vehicle
Based
utility,
under
(1) the vehicle's
roof
in foreseeable
brought
a high-speed
product,
(2) the vehicle's
CASE
action
from
the
OF THE
risk
a determination Plaintiffs at the
post-manufacture
also time
of in
Ford presented evidence that the rollover
was caused by Angela
Jaramillo's abrupt and extreme steering inputs as she attempted to avoid deer while driving over 75 mph at night on an unlit, rural highway.
The deaths of
Angela and McKenna Jaramillo resulted from the severity of the accident - one of the most violent 1 - 2 % of all rollovers. The deaths were not a result of any lack of a "crashworthiness" or failure to warn. After a 16 day trial in the Federal District Court for the Western District of Washington, the 7-member jury returned a unanimous defense verdict. The special verdict form included the following interrogatories, each of which the jury answered "No": Was the subject Vehicle not reasonably safe in design with respect to its stability and was this a proximate cause of injury and damage to plaintiffs? Was the subject Vehicle not reasonably safe because Ford failed to provide adequate warnings or instructions with the subject Ford Explorer at the time of manufacture and was this a proximate cause of injury and damage to the plaintiffs? Was the subject vehicle not reasonably safe because Ford was negligent in failing to provide adequate warnings or instructions after the subject Ford Explorer was manufactured and was this a proximate cause of injury and damage to plaintiffs? Was the roof of the subject vehicle not reasonably safe in design and was this a proximate cause of Angela Jaramillo's death? Was the roof of the subject vehicle not reasonably safe in design and was this a proximate cause of McKenna Jaramillo's death?
°
Was the rear middle safety belt of the subject vehicle not reasonably safe in design and was this a proximate cause of McKenna Jaramillo's death?
SER 420-24. Plaintiffs
now contend that the trial judge abused his discretion with
respect to two evidence issues. III. A.
The Jaramillos' In April
traded
risk
SER
F150
4x4
based
75-76,
a motor upon
80-81.
evidence
of the substance
the Ford
advertising,
have
"was
the
safest
in favor
also testified vehicle.
with
82.
Angela
and watching his
to an extent
Jaramillo's told
that Angela
they
research 75-76.
research,
wanted
that rollovers
television
SER
They
of off-road
Jaramillo
wife's
the jury
Explorer.
because
the capability
for families.
plaintiffs
a new Ford
that he understood
testified
of Angela
SER 25.
leased
of an SUV
SER
research
vehicle
but
dangerous
contemplated."
Jaramillo
Mr. Jaramillo
was
OF FACTS the Explorer.
for camping
internet
Explorer
Explorer
pickup
be used
Mr. Jaramillo
of operating
Explorer
to Lease
Mr. and Mrs.
that could
SER 78-79.
Decision
1998,
in their
• vehicle
STATEMENT
a use.
were a
selected
the
commercials. showed was
no
or of the content
of
in opening in her research
There
the
statement could
the never
B.
The Accident. The accident occurred on August 5, 1998 on Idaho State Route 20, which
is a two-lane rural highway with a posted speed limit of 65:miles per hour. SER 382. Signs in both directions warn of deer and of adjoining open range for cattle.
SER 28, 29, 382.
Both Ken and Angela Jaramillo had driven this
section of SR 20. SER 83-85. The accident occurred at approximately 10:00 p.m. The Jaramillos had been driving almost continuously since 3:00 p.m. that afternoon. SER 86-88. Angela hours She
Jaramillo later,
Ms.
steered
took
the wheel
Jaramillo
suddenly
initially
to the left
passenger
side wheels
entered
effort
regain
the
yaw,
slid
to
clockwise
five or six times,
at approximately
and
sideways
and came
encountered then
back
the shoulder.
roadway.
ER about
8:00 deer
117 feet,
vehicle
at which
to rest 275 feet from
87.
the
Two
roadway.
at which
overcorrected
The
SER
entering
to the right,
She
65-67.
p.m.
point
the
to the left in an entered
point
a counter-
it tripped,
the trip point.
rolled
SER
39-40,
89-
yaw
mark
was
94. Plaintiffs' between Ford's yaw
expert
testified
65 and 73 mph expert
mark.
testified SER
95.
the vehicle
- it was probably the vehicle
Assuming
speed light
speed
higher
before
was between braking,
4
at the first that
point.
71 and 73 mph
the vehicle
was
SER
41-43.
at the first
traveling
in the
high 70s or low 80s when Angela Jaramillo first made an evasive maneuver. SER 95-99.
This accident was one of the most severe of the hundreds of
accidents reconstructed by Ford's expert. SER 100-01. C.
Plaintiffs'
Liability
Strategy.
From the beginning, plaintiffs attempted to prove liability by reference to SUVs as a class and to vehicles other than the subject 1998 Ford Explorer. Despite repeated objections by Ford, plaintiffs opened the door to evidence of other vehicles and other accidents. 1.
Bronco
Plaintiffs'
liability
Plaintiffs
claimed
The
was
jury
1998
One which
gravity.
A higher
Plaintiffs' generations known
there
with
stability,"
case
focused
the Bronco
told
Explorer
SER 416.1
II evidence.
of Ford
as the UN
inheriting
was Explorer. 105.
generation Explorer known Bronco II. SER 131-63.
number
complicated The
It has
1998
many
the
the alleged
width
Explorer different
defects by
fact
was
features
as the UN 46, and is substantially
former. "static
of its center
of
ER 45-48.
were
was of the second design
II and the
stability.
there
II.
defective.
of the
plaintiffs
greater
the
the Bronco
Bronco
and the height
indicates
by
called
and therefore
between
emphasized
of an object's
stability
vehicle
to rollover link"
characteristic
is a ratio
strategy
a "genetic
latter
vehicle
static
II was prone
was
the
on a Ford
multiple generation,
from dissimilar
the
first to the
Plaintiffs contended that the centers of gravity of the Bronco were
II and the Explorer
too high. In opening
statement,
plaintiffs'
counsel
that
relationship
the two
vehicles
and
"design
of these
vehicles
counsel
questioned Reports
The
compared
GMC
Jimmy
information
he was
components
67-68.
unaware
between
Safe
that
Bronco
of the
to that
of
because
the
case-in-chief,
rollover,
is the Bronco rate
he (and
as well
II?"
SER
of the Chevy
by implication
should
have
been
on cross-examination,
extent
II and the 1998 the two
track
photos
as a
36-38. Blazer,
38.
II that
However,
important
In plaintiffs'
II test
II rollover SER
testified
of the Bronco
on any similarity
"How
side-by-side
was
SER 22-23.
a Bronco
entitled
Cherokee.
the earlier
SER
about
the Bronco
expert
from
the Explorer. admitted
article
and Jeep
Plaintiffs'
their
is so similar."
a witness
Consumer article
stated
displayed
of similarity, Explorer
vehicles
useful
could
in most
expert
of the
he was
his opinions.
draw
in designing
plaintiffs'
and that
in reaching
Ford)
critical
not relying SER
63-
66. 2.
Plaintiffs'
Although comparative
plaintiffs risk
analysis
comparative now
assign
regarding
risk
analysis.
error different
to admission vehicles
of a portion and classes
of Ford's of vehicles,
plaintiffs themselves introduced these concepts in their case-in-chief. Plaintiffs elicited the following testimony from a Ford employee: Ford has estimated that about one-fourth of passenger car occupant fatalities result from accidents in which the vehicles have overturned. SER 31. Fatalities in rollover accidents, which may or may not be accompanied by roof crush or occupant ejections, are more prevalent in light trucks than in cars. SER 32. The rate of fatalities for small utility vehicles exceeds other types of vehicles. SER 33. Utility vehicles exhibit relatively higher rollover frequency and, given a rollover, the injury consequences can be more severe. SER 34. Overall, light truck rollovers are two to four times the car rate. SER 34. Injury rates in a rollover are at least double the rates of nonrollover accidents for both cars and light trucks. SER 35. Plaintiffs called two experts who testified about Fatal Accident Reporting System ("FARS")
data.
FARS is a database maintained
Highway Traffic Safety Administration ("NHTSA")
by the National
containing information on
all fatal accidents that occur within the United States. SER 268. Plaintiffs' expert, Robert Anderson, described a Ford document entitled "Observations on utility vehicle FARS incidents and implications for vehicle design and testing" that discussed drivers losing directional
control of vehicles after an initial
excursion off the paved roadway. ER 506-08; SER 72-74. He considered this
document significant because it allegedly showed Ford was aware of this FARS data which described "the kind of thing that the vehicle encounters, so you need to design to protect - or make a vehicle that will be able iO do it safely." SER 62.
In addition, plaintiffs'
expert, Joseph Burton, relied upon FARS
accident data to conclude that, had McKenna Jaramillo remained restrained in the vehicle, she would have survived the accident.
SER 70-71.
Finally,
plaintiffs called a rebuttal expert on statistics. SER 383-412. 3.
Evidence
Over
Ford's
accidents
these
of the 1998 D.
Explorer.
Ford's The
rolled
to the Jaramillo
should
have
offered
plaintiffs
an Explorer
similar"
six incidents
accidents
objection,
in which
"substantially
of other
placed
by plaintiffs.
introduced
evidence
over
circumstances
under
accident.
SER 48-57.
Ford on notice
of
other
deemed
Plaintiffs
of a defect
six
argued
in the design
SER 413-14.
Defense.
principal
focus
of Ford's
Ford's
reconstruction
expert
severe
1 to 2% of all rollovers
defense
testified
was
the severity
that this accident
with
respect
to the speed
Ford
demonstrated
of the accident.
was
among
and the number
the most of rolls.
SER 100-01. With higher
respect
centers
of
to design, gravity
to
conform
with
that
SUVs
government
necessarily regulations
require and
to
perform on and off road. SER 241-47. Ford's design expert, Donald Tandy, explained how the architecture of the Explorer (and other SUVs) was largely dictated by functionality.
A higher center of gravity and ground clearance are
critical aspects of the design's utility in off-road uses. In addition, the Explorer complied with applicable government standards for SUVs. SER 241-47. Thus, the Explorer is reasonably safe for its intended uses. Ford also presented evidence that the 1998 Ford Explorer incorporated design modifications that made it substantially
distinct from the Bronco II, and the first generation
Explorer, that had been the focus of much of plaintiffs' case. SER 63-66. With respect to warnings,
Ford introduced
evidence regarding
warnings
and
instructions relating to handling and stability provided in owners' manuals, other literature, and on the Explorer's visor sticker. SER 257. Ford contended that additional warnings were neither necessary nor would they have prevented the accident. 1.
Ford's comparative
risk
Ford
offered
vehicle
analysis admission
through of
comprehensively to allowing
comparative expert
this
witness
evidence
briefed,
the testimony.
and
Dr. Dr.
and the court ER 79-194;
analysis. accident
Michel]e
and
Vogler.
Vogler's
injury
Plaintiffs
challenged
testimony.
conducted SER
occupant
258-59.
The
an evidentiary The
issue
hearing
trial court
noted
risk
was prior that
plaintiffs "opened the door" to this type of evidence and that it was probative on plaintiffs' liability claims. ER 145-46; SER 258-59. Dr. Vogler's analysis was based on statistical calculations derived from state and federal accident databases, including plaintiffs.
SER 60-61, 70-71, 268-69.
the FARS database used by
Dr. Vogler's
analysis allowed her to
present to the jury real-world accident data reflecting, for example: (1)
The 1995-1999 Explorer had a 0.27% risk of involvement in a rollover accident, SER 294, 296;
(2)
The 1995-1999 Explorer had a 0.010% risk of involvement in a rollover accident involving a fatal injury, SER 301;
(3)
The 1995-1999 Explorer had 0.041% risk of involvement in a rollover accident involving a fatal or severe injury to an occupant, SER 299-300;
(4)
The 1995-1999 Explorer had 0.78% a risk of involvement in a rollover accident involving a fatality to a belted occupant, SER 318-21. Dr. Vogler then compared these risks across vehicle
classes.
She
presented comparisons both of the Explorer to other vehicles and of SUVs relative to other vehicle classes. Her analyses show that the Ford Explorer is in the middle of the range for rollover risk among SUVs, and that SUVs, as a class, have a higher risk of rollover than other classes of vehicles. SER 294-96. Further, the risk of fatal or severe injuries in a rollover accident in an Explorer
10
is comparable to other SUVs. SER 296-99. Dr. Vogler's analysis also showed that SUVs are the least likely to be involved in side impact crashes. SER 283, 286-88.
Dr. Vogler's
testimony demonstrated that the Ford Explorer was
reasonably safe in comparison
with comparable vehicles
and across the
spectrum of possible accidents. See also ER 217; SER 290, 302, 305,309, 319, 322 (the remainder 2.
Evidence
In opening "A
properly
of other
statement,
designed
pavement."
a family
stated
steering
plaintiffs
"Instead
vehicle
this
criteria
at all, at any speed
charts).
stated
of sliding
vehicle,
his design
analysis
accidents.
passenger
SER 27.
especially expert
of the risk
315,
their
defect
should
not
out, which
theory rollover
rolled
over."
in starker
terms
- if a human
a vehicle
SER
roll
terms:
on smooth
is what a vehicle
vehicle
at all, can make
in simple
should
24.
do,
Plaintiffs'
being,
over,
dry
with
any
it's defective.
SER 69. As part of its defense, Ford
Escort
trial court
and a Chevrolet articulated
those.
terms
of steering
What
Van.
Before
for allowing
the conditions inputs,
of supporting
plaintiffs'
Astro
evidence
of two rollovers any testimony
experts
were.
frame, the
have
roll,
11
was offered,
about
to describe, at least Tell what he knows
How
as this
defendant's talked
involving
its introduction:
is that Mr. Tandy is going the Escort and the Astro Van.
about
that
offered
the basis
My understanding for the moment,
purpose
Ford
they
are similar
in
all for
the
situation,
contention in terms
that
the criteria
of what
makes
a
a the
vehicle
SER
roll
aren't
apparently
roll, because
these
rolled
portion
that
make
a vehicle
as well.
of Ford's
Q:
Can you tell rolled over?
A:
Sure.
The
driver
ER 76. know
Do you recall
A:
Well
this
was
work rolls.
at.
We
the
subject
point;
specific
evidence under
related
which
it to go off the
to the Escort:
that
right
vehicle
side
of the
it back on to the road, and it came He overcorrected, and at some point
the paved
roadway,
the
vehicle
overturned,
side leading.
Q:
At this
allowed
yanked slide.
in the roadway, passenger
case involved
us the circumstances
road, and then into a broadside
how many
static
times
reconstructed have
by my old in here,
established
stability
ceased.
it rolled?
a diagram
plaintiffs
of the Escort
77.
and
on voir dire
of the Escort ER
company,
Ford
and
offered
I used
it looks
that
further
like
to two
the witness questioning
no exhibits
did not on the
in connection
this testimony. Testimony
sentence was
criteria
102. A fleeting
with
the only
of testimony
abandoned.
evidence
about
showed
SER that
the Astro describing 248.
vehicles
Van
was
an Astro No exhibits other
equally Van were
than SUVs
12
abbreviated.
rollover, offered roll over.
After
the line on
the
a single
of questioning subject.
This
IV. SUMMARY In
response
to
evidence
of comparative
involved
in various
impact
collision)
testimony risk.
kinds
across
or fatal
injury
associated
vehicle.
This
quantitative
routinely
relied
insurance
industry. in a rollover
fatal
severe
comparison
andSUVs
Explorer
lies
severity
utility
defect for
of gravity
review
vehicle
produce
mid-range
was
is whether
of off-road directly under
admission
other
fatal
SUVs evidence
of becoming collision, risk
national
and state
safety
regulators
of vehicles,
accident
is not
all
types
and severe in terms that
Washington of this
13
evidence
of
data bases the to be of
excessive
of accidents, injuries.
the marginal
in the
The Ford risk
and
elevation
directly
related
of to its
-
to the statutory product
type
the risk
operation.
relevant
of serious
likely
of rollover
was
side
and
are more
kinds
as the Explorer
introduced
in a given
SUVs
Across
fewer
among
such
of accident
upon
rollover
also introduced
capable
to warn
some
frontal
and the relative
although
classes.
in an SUV
evidence
and duty
SUV
Ford
as a vehicle This
in
as a class
in the
of injury.
the center
than
Ford the risk
over,
government that,
accident
other
kind
was based
industry,
an
roll
types,
a particular
plaintiffs,
quantified
(e.g.,
vehicle
analysis by
by
evidence
of accidents
with
injury
with
Explorer
This
It demonstrated
involved or
introduced
different
upon
OF ARGUMENT
standards
liability was
law.
an abuse
for design
The
sole issue
of discretion
under general standards of relevance and not under the more particularized "substantial similarity"
standard that only applies when a plaintiff
seeks to
introduce evidence of other accidents as direct proof of productdefect or notice. The trial court did not abuse its discretion in admitting this relevant evidence. The trial court was also correct in finding that plaintiffs
"opened the
door" through their own introduction of comparative risk evidence. This Court need not reach the issue of the relevance of such evidence because plaintiffs "invited error" by introducing such evidence and argument early and often. Ford's evidence regarding two roll over accidents involving and Astro Van was also relevant given the plaintiffs' means that a vehicle is defectively susceptible to rollover.
position that a rollover
designed and that SUVs are uniquely
In any event, the approximately
devoted to these incidents
an Escort
16 lines of testimony
makes any alleged error harmless and easily
neutralized had plaintiffs sought a curative instruction. V. A.
The Standard
This
of evidence
States
v. Kessi,
exclusion
of Review.
Court reviews
value
ARGUMENT
against 868
of evidence
F.2d
the district
court's
its prejudicial 1097,
under Fed.
"decisions
effect
for abuse
1107
(9 _h Cir.
R. Evid.
403...
14
1989).
balancing
the probative
of discretion." "The
is reversible
United
admission
or
only for a clear
abuse of discretion." (9 th Cir. B.
Coursen
"Substantial
Disputed The
Similarity"
appeal
similarity"
'showing
of substantial
introduce
evidence or notice
• (9 th Cir. 2002)
evidence under
Federal
When
evidence
for other
1103,
Rules
F.2d
plaintiffs
1329,
and
Apply
upon
the
evidence a plaintiff
as direct
proof
of negligence,
v. Ford
Motor
accidents White quoting,
(9 'h Cir.
accidents
accidents
Cooper
1991).
lacks
of Evidence
1333
to the
401
rule
Fed.
requirement
verdict
evaluating
FARS
not relevant.
Id.
at 97-98.
The
was
admissible
under 15
data
F.3d in
on
Fed.
1009
that
for admissibility 945
F.2d
accidents
at 1105. is offered
401 and 402,
88 (1 st Cir.
part,
that
lap-belt-only
First
998,
as it
not apply.
187
arguing,
to
a design
on the concern
R. Evid.
does
Inc.,
experts,
tracking
"A
Tire and Rubber
Cooper,
data
under
rests
the
attempts
312 F.3d
required
402."
or industry
of America,
a defense
"The
and
Co.,
that
at issue.
v. Firestone
the relevance
the criteria
similarity
data
premise
when
v. Volkswagen
the FARS
false
to
the
required
and meets
appealed
Volkswagen's
Not
similarity,is
1105
the substantial
In Trull
Does
applies
added),
of other
purposes
did below,
Requirement
is based
of the defect.'"
of dissimilar
regarding
764
requirement
of other
(emphasis
945 F.2d
hearsay
lnc.,
Evidence.
Jaramillo's
"substantial
Co.,
Co.,
1985).
The
defect,
v. A. H. Robins
Circuit
held
R. Evid.
1999),
the
testimony restraints, that 803(8)
by was
testimony and Fed.
R. Evid. 703. substantial
ld.
at 97.
similarity
Appellants
The
requirement rely
on
accidents
is admissible
accidents
occurred
those
at issue
involve
rejected
applied
case
law
only under
holding
The cases
form
defendant's "substantially
assertion similar"
that its product requirement
of
other
here,
where
accidents,
determine
more
if so, whether
that
we
think
generally
it was unfairly
citations
onfitted).
Motor
1391,
(I 1'" Cir.
1997)
the
reasons
and
policies
not
apply.
doctrine
do
vehicles
was offered The
of other needed order it only
1396
which The
are
the
evidence
by Suzuki
to explain
distinction
applies
rollover
accidents
to be probative
for statistical needed
in absolute
similar
evidence
terms
and
relative
for
how
for
to counter
a
In the evidence
the
court
was probative
See also
to and,
Heath
v. Suzuki
("In
this evidentiary
dispute,
the
"substantial
rollovers
rollovers
in this case.
In order
of defect
accident
to the safety
and
to other 16
vehicles
that
of three
dissimilar
for plaintiffs'
evidence
notice,
accidents
those
On the other
and injury
of the Explorer
similarity"
occur.")
to the one in this case.
regarding
to be relevant
basis involving
same
to be substantially
a
prejudicial.
in original,
126 F.3d
of danger,
At bottom, the particularized
adequate
Id. at 98 n. 9 (emphasis Corp.,
all
accidents
to introduce
the evidence
to
however,
be probative.
sought
it was
whether
used
is safe. is a more
evidence
defendants
the earlier
of other
when
the
prior
similar
or notice
of evidence
to the requirement
of
that
cite,
evidence
dangerousness
prejudicial
circumstances
evidence
they
that
evidence:
substantially
to bring
to demonstrate
argument
shows
"'circumstances
particularly
approach
that
if the proponent
by plaintiffs
the jury
plaintiffs'
to the defendant's
in the case at bar.'"
attempts
before
court
rates
in
to be probative,
and other plaintiffs
hand,
SUVs,
claimed
both were
safer. See Bammerlin 1994)
("That
'defect'
a product
.
failed
. . data
arguments.").
The
them
to introduce
prone
to fatal
show
that
similar
v. Navistar
on trial
every
to this one.
cited
the "substantial
evidence
of other (plaintiff
demonstrating 573,
admitted);
Barker
(plaintiffs'
evidence
Stanley-Bostitch, of dissimilar With this evidence
v.
accidents
other
to
Deere
997
more
(7 th Cir.
not necessarily loudly
standard
that
without
show
than
abstract
to plaintiffs,
to show
vehicles,
898,901
allowing
SUVs
are more
requiring
evidence
was
them
to
substantially
60-62. simply
illustrate
of defect
introduce
to the Escort
was in the dissimilar
of
60
F.3d
(8 _hCir.
to impeach
and Astro nature
17
other
Van
1993)
defendant's accidents,
of the vehicles.
312
Co.,
case
offering F.3d
accidents
Motor
162-63
erroneously
508-09
a plaintiff
of dissimilar 158,
Each
White,
v. Ford
evidence
accidents
not allowed
or notice.
Johnson
Co.,
F.2d 496,
involves
evidence
(plaintiff's &
this distinction.
test is applied
similarity);
1993)
30 F.3d does
in that statistical
of dissimilar
bzc.,
regard
than
as proof
allowed
(5 t_ Cir.
purporting
similarity"
substantial
579-80
evidence
31-35,
accidents
speak
the same
by plaintiffs
in which
accident
rates
included
SER
Corp.,
applied
accidents
accident
The cases
1009
accident
statistical
Transp.
in a particular
court
rollover
hu'l
at
after 988
F.2d
accidents
not
(3d
admitted); (plaintiff's
Cir.
1995)
Drabik
v.
evidence
witness). the probative
value
It rebutted
plaintiffs'
of
claim that the design characteristics of the Explorer and other SUVs make them uniquely susceptible to rollover and that any possibility
of rollover makes a
vehicle defective. In the case of Dr. Vogler's testimony, the data presented was exactly the opposite of evidence of specific "other incidents."
Far from asking
the jury to conclude defect from a hand-picked collection of other incidents, Dr. Vogler's testimony informed the jury of the relevant probabilities based on a comparison of overall vehicle performance and rollover rates. The relevance of Dr. Vogler's data comes from its inclusiveness, which allows overall trends to be identified, not from the similarity
of each individual incident included
within those statistics. Because the substantial similarity requirement does not apply to the evidence at issue, the trial court had only to determine whether the evidence was relevant. C.
Plaintiffs
are
Evidence
Because
"Invited testimony
by
Mukhtar
see
United
States
review
evidence
introducing
also
State
Burgess
v. Segal, plaintiffs'
because
from
They
occurs
v. California
2002);
not
error
Barred
Invited
when
it, rather
than
Univ.,
Hayward,
852 F.2d assignment
1155
of error
"opened
the 18
opens
waiting
Corp.,
1152,
the
Comparative
Risk
Its Admission.
the appellant
v. Premier
plaintiffs
Challenging
the door
for
the
299 F.3d 727
F.2d
(9 'h Cir. on
1988).
admission
door"
in
appellee
1053, 826,
their
to objectionable
1063
834
to do
n. 6 (9 th Cir.
(9 th Cir.
This
so."
Court
1984); should
of comparative
risk
case-in-chief.
If
admission of the evidence was error - a proposition Ford disputes - it was invited error. In opening statement, plaintiffs stated the Explorer "was dangerous to an extent that Angela in her research could never have contemplated."
SER 25.
Although there was evidence that Ms. Jaramillo conducted internet research and watched commercials,
there was no evidence of the substance of the
information she reviewed, and the jury was left with the impression that shehad been deceived by Ford. In their case-in-chief, plaintiffs
introduced comparative risk evidence
similar to that introduced by Ford, including the percentage of passenger car occupant fatalities in rollovers, comparison of rollover fatalities in light trucks and cars, and the rate of fatalities for small utility vehicles as compared to all other vehicles. See supra
pp. 6-7.
FARS
relied
data
on notice evidence too,
(the
same
of a defect of six other
constituted
additional
upon
notice
of
design.
accidents. a defect
introduced
Dr. Vogler),
in the Explorer's Explorer
also
and
arguing Finally,
Plaintiffs that
Ford
a report the report plaintiffs
argued was
based
that
on
put Ford introduced
this
obligated
evidence, to issue
warnings.
In the comparative
data
Plaintiffs
first risk,
two
instances,
including
plaintiffs
statistical
introduced
evidence,
19
selective
in an effort
evidence
to establish
of
defect
and a duty to warn.
In the third instance, the six other accidents potentially
illustrated a risk of harm, but without any context regarding the magnitude of that risk relative to other vehicle designs and the number of vehicles on the road. Thus, this evidence was extremely misleading.
After plaintiffs "opened
the door," Ford was entitled to demonstrate what a more rigorous and inclusive study of accident data demonstrated in terms of risk and magnitude of harm and the corresponding utility of the Explorer design. Accordingly,
the trial court properly permitted Ford to rebut plaintiffs'
assertion, based on other accidents, that the Explorer was defectively designed and that Ford failed to exercise reasonable care. Ford did so by showing that the risk of rollover and the risk of serious injury in a rollover accident are not excessive, either in absolute terms or compared to other vehicles, particularly when considered in the context of the benefits provided by the Explorer design. Whether a product is not reasonably safe and whether a manufacturer exercised reasonable care are issues that necessarily allow, if not require, a comparison of the risks and benefits provided by other vehicle designs. D.
A Comparative Necessary The
analysis "WPLA").
Under
benchmark
was
relevant Plaintiffs
Risk
Analysis
is Particularly
the Washington
Product
Probative Liability
Act.
for determining
whether
Dr. Vogler's
is Washington's
Product
Liability
had
to prove
the 20
Explorer
was
of the Proof
comparative
Act, "not
RCW
reasonably
7.72
risk (the safe."
RCW 7.72.030(1).
In considering whether a product is not reasonably safe,
"[i]t must be borne in mind that we are dealing with a relative, not an absolute concept." 774,
Seattle-First
779
relevant
(1975).
The
on a number 1.
One
v. Tabert,
makes
data
the comparative
was probative
and its risks for
by the product
relative
design
with
defect
the utility
reasonably
safe
manufacture, claimant's
the likelihood harm or similar
that harms,
outweighed that
the
would
burden
have
effect
that
an alternative
would
have
on the usefulness
7.72.030(1)(a).
"risk-utility
154, 542
analysis
This
on the utility
under
is not
product
2d 145, risk
to other
A product
harms,
86 Wash.
P.2d
particularly
of fronts.
of the tests
risk posed
Bank
WPLA
The accident design
RCW
Nat'l
the WPLA
balances
design.
as designed,
if, at the
the product would and the seriousness
prevented
manufacturer
those that
harms
was
of liability
a specific
time
of
cause the of those to design
and
practical
of the product
theory
designs.
of the product's
on the
design
vehicle
of the Explorer's
a
the
adverse
and
feasible
.... is commonly
referred
to as the
test."
Plaintiffs perform
with
requires
an
Dr. Vogler's
challenged
the design
reasonable
safety
assessment testimony
risks
and
benefits
RCW
7.72.030(1)(a).
of
of
the
in
manifestly
the
Explorer accident
a wide
overall
was
The
of a mass-produced variety
risks relevant
design
benefits
to the jury's and
that
of circumstances.
and
data Dr. Vogler 21
product
the
of
presented
This
the
assessment
"likelihood
must
of
at trial
design. of the harm." revealed
that the Explorer's SUVs.
performance in rollover accidents is comparable to other
This evidence negated any inference that the Explorer presents an
unreasonable risk of harm to SUV occupants.
Similarly,
Dr. Vogler's
testimony that Explorers and compact SUVs as a class result in fewer injuries in other types of accidents, compared to different vehicle designs, reflected that the benefits of the SUV design characteristics challenged by plaintiffs outweigh any increase .in rollover specifically
risks associated with that design.
This evidence
addressed the statutory criteria of RCW 7.72.030(1)(a),
requires an evaluation of the "likelihood of harm."
Indeed, plaintiffs'
which counsel
argued in closing that Dr. Vogler's analysis showed that the likelihood of harm was too high. SER 414-15,417.
Dr. Vogler's data also undermined plaintiffs'
effort to link the Bronco II and the Explorer. Despite plaintiffs'
claim the two
vehicles are Substantially similar, the real world data shows the Bronco II has a higher rollover risk than the Explorer. ER 212-13. Other courts have recognized that comparative statistical analysis is probative on the issue of defect and helpful to a jury charged with making that determination.
See
admission
of evidence
explained,
"[a]
defective
because
Trull,
threshold its rear
187
F.3d
of a study question seats
at 97
based
on
for the jury were
equipped
22
(in
upholding
FARS
the
accident
was
whether
only
with
trial
data,
court's the
the Vanagon
lap belts ....
court was [T]he
company could be neither negligent nor strictly liable if more comprehensive, up-to-date information demonstrated that a seat belt system using only lap belts was reasonably safe."); Bammerlin, in a particular lawyers
accident
and
principles,
the
asking
risk of injury. than
Motors (D.C.
abstract
Cir.
656
1988)
accident
direct
1555,
Motor
introduced
a chart
published
. . . have dangerous
v. Allis-Chalmers,
X-cars
to begin
Co.,
533
N.W.2d
and trailbikes
or that
that
Honda
2 Wash.
476,
23
in
speak
States
1980
841
and ATVs the
ATV
399,
406,
was
braking
in
Bittner
v.
1995)
injury
rates
From neither
("Honda associated
this evidence defective
designed
a safe
467
854,
P.2d
400
involved
(Wis.
....
F.2d
circumstantially
yaws.");
487
more
v. General
X-cars'
be inferred
comparing
reasonably
App.
the
aft'd,
skid-related
by the CPSC
inferred
1987),
of first
increased
rates
United
the
than
to be disproportionately with
Both
. . . rather
unduly
on accident
(D.D.C.
failed
is a question
truck
e.g.,
nevertheless
. . .
engineers
of a 'defect'
might
likely
minibikes
1575
evidence
showing
Honda
Stark
of a particular
a product
'defect.'
were
also,
American
unreasonably
the design
see
("That
'defect'
arguments.");
of the
might
that
and data
accidents
the jury
to think
show
are not engineers,
statistics
with snowmobiles,
necessarily
at 901
as if they
its presence
sort
898
by jurors
F. Supp. ("If
is lacking,
not
seemed
whether Jurors
Corp.,
systems from
experts
to be resolved
observers
loudly
does
30 F.3d
nor
vehicle."); 858
(1970)
(upholding admission of evidence of a lack of accidents based on statistics compiled by the defendant's chief engineer). The Washington Supreme Court recognizes that comparisons to other similarly used products and competing designs are relevant to the issue of whether a particular design is defective. Ruiz-Guzman 141 Wash.
2d 493,504,
Circuit).
"How
in actual
use is [also]
defective."
7 P.3d 795,800
the defendant's
Dr.
Vogler's
evidence
available
the jury
to compare
the risk
the same
or similar
do not
serve
demonstrating market
showing
to the Jaramillos
the
same
how
was relevant
the
Accident consumer.
RCW
7.72.030(3)
trier of fact
posed
function
they
(SUVs
the Ninth
competing
designs
§ 2 cmt. d, at 19 (1998).
relative
safety
purchased
and light
vehicle
Explorer
allowed
their
design
with
trucks) cars
Explorer
performed
relative
to other
provides whether
a product
consider
and
whether
was
means
vans).
that Thus,
vehicles
on
the
not reasonably
the product
of the ordinary
of proving
was
/
24
classes
safety.
of the expectations
an alternate
vehicle
and vehicles
(passenger
of its overall
is
of various
function
is probative
design
of Torts
or similar
data
shall
other,
Corp.,
from
the defendant's
by the Explorer
to a determination
2.
In determining
the
when
with
of whether
(Third)
Chem.
(on certification
compares
to the issue
Restatement
designs
that serve
design
relevant
Id., quoting
(2000)
v. Amvac
a design
defect:
safe..,
the
unsafe
to an
extent beyond consumer. Dr. Vogler's also
testimony
are relevant
113
industry
vehicle, • informs
Wash. will
families."
SER
was
Explorer
have
782
be relevant
First,
974, which The
vehicles
980
the Explorer
to introduce
evidence
of the real-world
understanding
reasonable
expectation
2d at 154, 542 P.2d
available
performance
Ken
[vehicle]
market.
evidentiary
that
the purchaser
of a Volkswagen
as the purchaser
of a Cadillac.
25
basis
for
for
testimony,
an
at 779.
Jaramillo
performance the
of a
to a consumer,
conclusionary
on
of
for ordinary
was the "safest this
v. Keene
(evidence
Second,
offered
provided
(1989)
available
plaintiffs
vehicles
Falk
actual
consumer.
databases
the expectations
is reasonable
Because
to other
accident
in a vacuum.
P.2d
to the other
revealed
and state
safety).
ordinary
by the ordinary
analysis.
to that
of product
of the
testimony
consumer's
654-55,
research
FARS
be evaluated
as compared
as compared
the same
86 Wash.
often
75.
entitled
Dr. Vogler's ordinary
645,
expectations
his wife's
be contemplated
expectation
cannot
in way
particularly
testified
Ford
2d
to expect
the
would
and the underlying
consumer
custom
consumer
which
to the consumer
of an ordinary Corp.,
that
evaluating
of the Finally, the cannot Tabert,
3.
The
accident
Ford
had
data a
associated
adequate product
RCW
connected
governments, safety what
have
of the six isolated in which
those
context.
The
exposed
to the
Applying
a basic
accident
and the
SER
272-79.
nation's
This
of
roilover
injured
of being was
about
a
to as "post-
that NHTSA, rely
upon
the Explorer's
introduced, testimony
to Ford's
actual,
of on-
would
not just evidence
but also the context provided each
roadways.
in an accident
to detect
manufacturer
and years
the percentage
state
was probative
to consider
state's)
indispensable 26
referred
this evidence
of vehicles
a particular
data
a reasonable
Dr. Vogler's
risk
the
or where
learned
industries
regarding
plaintiffs
formula,
learned
very
was entitled
mathematical
after
to the jury.
if anything,
the number (or
if
provided
is commonly
the
known"
The jury
occurred.
evidence
risk
safe"
have
SER 4. Thus,
accidents
data revealed
not
and automotive
have
to it.
accidents
of liability
169-70;
Explorer
of whether
after it was manufactured.
highlighted
and what,
done in response
reasonably
should
and was presented
or "should
performance,
undue
a manufacturer
the product theory
149-51,
Ford "knew"
the-road
with
testimony
ER
an
were
where
and the insurance
issues.
of
is "not
manufacture
duty to warn"
Dr. Vogler's
warn
or instructions
This
to a determination
the Explorer.
prudent
7.72.030(1)(c).
manufacture
to
manufactured
a reasonably
relevant
law, a product
warnings was
danger
duty
with
Under Washington
was
that global vehicle
SER
risk were
of being then
defense
was
268-70. in an
evaluated. because
it
provided
the data a reasonable manufacturer
would
have evaluated in
determining whether or not to issue additional warnings or recall its product. The jury was entitled to consider whether Ford acted reasonably in not issuing additional warnings in light of six similar accidents within the context of nearly 3 million vehicle years in which the Explorer was operated. SER 48-57, 27578. 4.
Evidence
of performance
relevant The evaluating
under
WPLA
Evidence relating
a product
of custom to design,
7.72.050(1).
658-59,
794
trial court
P.2d
erred
regarding
defendants'
products. such
expectation
significant
in the
information
559
evidence
seller's
of
is
custom
in
industry
industry
or performance
v. Fibreboard
(1990),
. . . whether
of the product...
The
Court
was
not
held
the jury
automotive asbestos
The
be
information
to the 27
have
been
held
the
evaluating permitted test
and
to
and the
by Dr. Vogler
medical,
649,
and scientific in
risk-utility
construction
App.
of Appeals
considered
presented
as scientific,
Wash.
medical
should
the WPLA's
industry was
to
58
Court
that historical,
in applying ld.
Corp.,
the Washington
the jury
asbestos
tests,
regarding
industry
by the trier of fact.
information
consumer
automotive
safe.
in the product
in instructing
knowledge
consider
is reasonably
In Crittendon 554,
the
law.
authorizes
construction
may be considered RCW
Washington
specifically
whether
within
is as
historical
and manufacturing
industries. Government data regarding accidents informs both the industry and the
ordinary
consumer
regarding
the
safety
of
particular
vehicles.
Consequently, the real world performance revealed through that data provides a basis upon which
to evaluate whether the Explorer's
unreasonable risk of harm to its occupants. See also Falk, 782 P.2d
at 980 (evidence
of the
reasonable
product
safety).
E.
The
expectation
Jaramillos
Evid.
702
Appeal
of industry
Has
Although
Not
opening
and methodology,
plaintiffs
Fed.
R. Evid.
and Daubert
579,
597
(1993),
nor
Appellants'
Opening
before
Court.
the
propriety Dr. Vogler database
met accident
have
have Brief
Even
of the trial
Ruling;
be relevant
consumer
Error
to the
113 Wash.
on the issue
to expect
District
Consequently,
2d at 655,
in way
of
Fed.
R.
Court's
Any
Such
Basis
for
Waived.
plaintiffs'
702
Assign
Daubert
Been
will often
of an ordinary
Did
and
custom
design posed an
brief
criticizes
not assigned
v. Merrell they
error
Dow
provided
court's
the applicable data turned
ruling.
the record ER
standards, on whether
147-194;
to the Court's
legal
ruling Inc.,
analysis
Consequently, on
this
SER
the admissibility the information
28
qualifications
Pharmaceuticals,
any
at 1-2; SER 425-27. if it were,
Dr. Vogler's
issue
on
509 this
under U.S. issue.
this issue
is not
establishes
the
1-21,258-59. of FARS was relevant.
Because and
state
F.
Evidence Astro The
dispute
Regarding
Van
Was
evidence
two
static
therefore,
evidence
steering
of the
24, 27, 44-46,
with
higher
static
This
was
sound.
That
Escort,
complaints
this
circumstance
instruction.
that
invalid
evidence, with
of the validity
of the Escort's
static
Astro
was
the trial court's
failed
Plaintiffs
Van
have
and
did not seek
static
Ford
stability
higher
than
original
did not
this relief.
to
could
roll
rollover"
trial
court's
position,
rolled
under
was similar
theory.
"tie
up"
it erred
its foundation
in stating
the static
Neither
of these
Explorer.
decision
a motion
The
defect
under
vehicles
"no
extreme
stability,
foundation,
29
expert's
and,
ER 45-48;
designs,
standard.
the
rollover
that even
different
to
(1) that a to roll,
will
to show
and that
relevant
to stability.
of plaintiffs'
that
been
sought
of plaintiffs'
to lay an adequate
would
relative
as a defect
a higher
on appeal
that
the plaintiffs'
in light
complain
renders
ultimately
SUVs,
show
and
is probative
Ford
is defective
was
case-in-chief:
vehicle
and much
unrealistic
of the
any
than
such
stability
and (2) that
to
Escort
of its propensity
Ford
to admit
evidence
predictor
69,418-19.
stability
the
rollovers
in the Jaramillos'
58-59,
decision
with
Van
speed
was
Plaintiffs'
Involving
at any
criterion
circumstances
and Astro
is an accurate
relevant
the
Escort
of defect,
inputs
Accidents
Admitted.
asserted
stability
SER
over.
Properly
propositions
vehicle's
any
Rollover
an abuse
of discretion.
the appropriate
remedy
strike
a curative
and
for
If in
Finally, plaintiffs fail to show how admission of 16 lines of testimony regarding the Escort and Astro Van, in the middle of a 16 day trial, was harmful, regardless of error. If anything, the evidence was not-helpful to Ford. Plaintiffs could have highlighted the similar static stability of the Astro Van and the Explorer - a fact that could have served to support, not refute, their theory. ER 78. Under these circumstances it cannot be established that the challenged evidence "more probably than not tainted the verdict." Mere.
Hosp.,
Ford evidentiary
849 F.2d
1186,
1190
(9 th Cir.
VI.
CONCLUSION
v. Seirra
Nevada
1988).
respectfully
requests
this Court
rulings
dismiss
this
and
Brown
affirm
appeal.
the trial court's
The
trial
court
did
discretionary not
abuse
discretion. DATED:
September
24, 2003. MILLS
MEYERS
Attorneys Ford
_R
Motor
SWARTLING
for the Defendant-Appellee Company
aYB2 , N S 182b;
r
Caryn Geraghty Jorgensen WSBA No. 27514
30
its
CERTIFICATE OF COMPLIANCE TO FED. AND CIRCUIT RULE 32-1 FOR CASE
,
This brief complies with P. 32(a)(7)(B) because: X
this
brief
the
contains
_23/_
exempted
by Fed.
R. App.
this brief
uses
type-volume
words,
R. APP. 32(a)(7)(C) NO. 03-35326
limitation
excluding
of Fed. "
the
parts
R. App.
of the
brief
P. 32(a)(7)(B)(iii),
or
text,
a monospaced
e.xcluding
the parts
typeface
of the brief
and contains exempted
___
lines
of
by Fed.
R. App.
P.
of Fed.
R. App.
P.
32(a)(7)(B)(iii).
.
This
brief
32(a)(5) because:
X
complies and
the
with type
the typeface
style
requirements
requirements
of Fed.
R. App.
this brief has been prepared in a proportionally using Microsoft Word X in 14 point Times style,
P. 32(a)(6)
spaced
typeface
or
this
brief
has
been
prepared
with ___
in
characters
Attorney
31
a monospaced per inch in the
for Aylee
typeface
using font.
STATEMENT
OF
CIRCUIT No other DATED:
cases
in this Court
September
RELATED RULE
are deemed
23, 2003.
32
CASES
28-2.6 related
to this case.
PROOF OF SERVICE I, Sherri perjury on
Wolford,
that I am over
September
Appellee's of Record
24,
declare
personal
knowledge
the age of 18 and otherwise
competent
2003,
Answering by legal
upon
I caused
Brief
to be
and one copy
messenger
at or before
served
two
such
penalty
tO testify,
copies
of Appellee's the time
under
of the
and that foregoing
Supplemental documents
Excerpts were
in this Court: Paul
L. Stritmatter
Paul
W. Whelan
Peter
O'Neil
Stritmatter Kessler Whelan 200 Second Avenue West Seattle,
WA
September
Coluccio
98119
Attorneys DATED:
Withey
for Appellants. 24, 2003.
J
Sherri
33
Wolford
V
of
filed
