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I. PUNITIVE DAMAGES/POST STATE FARM CASES

A. Pretrial Issues

In Smith v. American General Life and Acc. Ins. Co., Inc. , 337 F.3d 888 (7 th Cir. 2003), the court applied State Farm to determine whether plaintiff = s claim met the $75,000 amount-in-controversy threshold for removal to federal court. The beneficiary of a life insurance policy sued the insurer, claiming common-law and statutory fraud and vexatious delay under the Illinois Insurance Code. Plaintiff sought damages for delay in payment, excess premiums that were never refunded, and costs incurred in securing complete payment and punitive damages. At most, the compensatory damages were only $2,536.54. However, both parties contended that the amount-in-controversy requirement was satisfied because plaintiff was also seeking a $25,000 statutory penalty under her vexatious delay claim and $1 million in punitive damages. The trial court found jurisdiction but the court of appeals reversed. It held that the statutory penalty claim for $25,000 looked like a frivolous claim and that, giving plaintiff every benefit of the doubt, there was no way she could recover sufficient punitive damages in order to exceed the $75,000 amount-in-controversy requirement because she would have to justify a ratio between punitive and compensatory damages of 29 to 1. The court noted that A if it appears to a legal certainty that the claim for the requisite level of punitive damages cannot be sustained, the regardless of how much the plaintiff seeks in punitive damages relative to compensatory damages, she cannot count the punitive damages towards the jurisdictional minimum. @

In Montgomery v. Karkut Industries, Corp. , 259 F. Supp.2d 952 (E.D. Mo. 2003), the district court rejected defendant = s motion to strike plaintiff = s request for a jury determination of punitive damages in light of State Farm and Cooper Industries. Defendant argued that because Cooper Industries established a rule that punitive damages should be reviewed de novo as a matter of law, they are not a A fact @ to be found by a jury. The court rejected that argument, concluding that under State Farm , an appellate court must apply de novo review in evaluating a trial court = s determination whether punitive damages violate due process, but that nothing in State Farm or Cooper Industries took away the right to have punitive damages decided by a jury in the first instance.

In In re Baycol Products Litigation , 218 F.R.D. 197 (D. Minn. 2003), the court denied plaintiff = s motion for class certification in a product liability and negligence action against the manufacturer of Baycol . Plaintiffs argued that defendants = punitive conduct was appropriate for class certification because all claims had common issues about whether the manufacturer provided false information to the FDA and concealed adverse events reports. The court rejected this claim, noting that under State Farm the reasonableness of a punitive damages award must be based in part upon the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award and the punitive damages verdict could not be based upon harm that bore no relation to the plaintiff = s harm. The court concluded that a class trial on punitive damages as proposed by plaintiffs would pose due process concerns because the conduct upon which plaintiffs would base their punitive damages claim would not be specific to a particular plaintiff = s claim. Furthermore, there were significant variations in the law of punitive damages among the states. Accordingly, the motion for class certification was denied.

In Hayes v. Wal-Mart Stores, Inc. , 294 F. Supp.2d 1249 (E.D. Okla. 2003), the court excluded plaintiff = s proffered expert on punitive damages. The expert was called to testify that punitive damages in the amount of defendant = s annual dividend to its shareholders was appropriate since the money would simply flow to a claimant rather than to the shareholders, and reduced dividends would create incentives for shareholders to insure that corporate management avoids repetition of the behavior giving rise to the punitive damages award. The court excluded the expert testimony as speculative and inadmissible under Rule 702. It concluded that there was no methodology revealed by which the expert reached his conclusion and that the use of corporate-wide aggregates is similar to the overall use of net worth which is questionable after State Farm . Such testimony is within the normal experiences and qualifications of lay jurors and expert testimony was determined not to be helpful.

See also, Barnes v. Ford Motor Co. , infra , p. 24, which held that plaintiff could not meet the amount-in-controversy requirement based on punitive damages when the recoverable economic damages could not reasonably be expected to exceed $300.

B. Post-Verdict Review

In Mathias v. Accor Economy Lodging, Inc. , 347 F.3d 672 (7th Cir. 2003), the court upheld an award of $186,000 in punitive damages to each of two motel guests who were bitten by bedbugs but who were awarded only $5,000 in compensatory damages. Even though the ratio was well beyond 10 to 1, the award was upheld as appropriate because in small damage/indignity cases, unlike big damages cases, a defendant could otherwise act with impunity provided he was willing to pay.

In Williams v. Kaufman County , 352 F.3d 994 (5th Cir.2003), the court upheld a punitive damages award of $15,000 per plaintiff even though plaintiffs were awarded only $100 each as nominal damages. Defendant had conducted a search without probable cause or articulable reasonable suspicion and, without any legal authority, conducted a strip search. The strip search was conducted in an atmosphere of questionable privacy. Racial slurs were used. The court noted that a ratio analysis cannot be applied effectively in cases where only nominal damages were awarded. Accordingly, the $15,000 punitive damages award was not unreasonable in light of the violations that took place, despite the high ratio between punitive damages and the nominal damages awarded.

In In re The Exxon Valdez , 296 F. Supp.2d 1071 (D. Alaska 2004), the jury awarded compensatory damages to fisherman of $287 million. A claim by Alaska natives was settled for $22.6 million. A separate jury awarded $5 billion in punitive damages. Defendant spent over $2 billion in cleanup and another $300 million in voluntary settlement of economic loss claims. Defendant plead guilty to various environmental crimes and was fined $25 million and ordered to pay $100 million in restitution. The Ninth Circuit remanded the case to the Alaska district court for reconsideration in light of State Farm . On remand, the District Court reduced the $5 billion punitive damages award to $4.5 billion. The court noted that the total of settlements and judgments in the litigation stemming from the incident generated a total actual harm of $513 million. The District Court refused to follow Ninth Circuit precedent in a prior appeal in the same case and therefore refused to include pretrial settlements as part of the potential harm to be considered in determining the excessiveness of the punitive damages. In any event, the jury was instructed to consider pre-trial settlements as a mitigating factor in computing punitive damages. The actual harm to plaintiffs caused by defendant = s conduct was $513 million. The punitive damages award of $5 billion was a ratio of 9.74 to 1, even without considering potential harm, the oil spill disrupted the lives of thousands of claimants and their families. The trauma was real, although not physical. There was additional potential harm from the captain = s attempt to remove the ship from the reef which could have caused a much larger spill of the entire cargo. Because there was no way to quantify the non-economic, potential, and yet-to-be litigated economic harms, the appropriate approach was to accommodate the unknowns by allowing a higher ratio to pass constitutional muster. Because the lawsuit was a class action including 30,000 class members, each member = s average share of the compensatory damages was less than $16,000, which cannot be considered a A substantial @ award of compensatory damages. The compensatory damages awards were solely for economic loss and did not include punitive damages, nor emotional distress. Thus, because plaintiff = s compensatory damages did not already contain a punitive element, a higher single digit ratio was appropriate to the case. The court also considered three other factors justifying a higher single digit ratio: (1) a large number of claimants suffered harm that was not purely economic, but also affected their lifestyle and put their health and safety at risk; (2) there was no evidence that defendant passed its cleanup and other costs on to the public and nothing demonstrated the availability of moderately-priced fuel was threatened; (3) defendant was so wealthy that full payment of the judgment would not have a material financial impact.

In Eden Elec., Ltd. v. Amana Co., L.P. , 258 F. Supp.2d 958 (N.D. Iowa 2003), the jury awarded $2.1 million in compensatory damages and $17.258 million in punitive damages. The trial court held the award to be excessive and reduced the punitive damages to $10 million. The jury = s ratio of punitive to compensatory damages was 8 to 1 and the compensatory award was substantial. The court concluded that even where all reprehensible considerations are present, but where compensatory damages are significant, the punitive damages award cannot ordinarily exceed the 10-to-1 ratio and still be constitutional. Even when plaintiff has suffered physical harm as a result of a recidivist defendant = s intentional and malicious disregard for the health and safety of others, and the defendant targeted his victim because the victim was financially vulnerable, a punitive damages award could probably not constitutionally exceed the 10-to-1 ratio. Therefore, the jury = s 8.5-to-1 ratio was constitutionally excessive and the court upheld an award which was just under 5 to 1 and was 3% of net worth.

In McClain v. Metabolife Intern., Inc. , 259 F. Supp.2d 1225 (N.D. Ala. 2003), the court upheld verdicts ranging as high as $1 million in punitive damages and ratios as high as 25 to 1, albeit on different verdicts. The trial court refused to set aside the verdicts where the ratios were 20 to 1 and 25 to 1, because other damages were awarded to the same plaintiffs under other theories of liability. The court used the A top one-digit multiplier @ suggested by State Farm and accordingly reduced the $1 million punitive damages award to $450,000, or 9 times the highest compensatory award of $50,000.

In Romo v. Ford Motor Co. , 113 Cal. App.4th 738, 6 Cal. Rptr.3d 793 (Cal. App. 2003), the jury = s award of $290 million in punitive damages had previously been upheld by the California Court of Appeal, but was vacated and remanded by the U.S. Supreme Court in light of State Farm . On remand, the California Court of Appeal determined that an award of punitive damages to the estate of each deceased parent of $5 million was constitutionally reasonable. The court noted that the legal standard for the award of compensatory damages in wrongful death actions ensures that there is no A punitive component @ in the compensatory damages award in such actions; as a result, there is no danger of duplicative damages in a wrongful death punitive damages award. By contrast, individual personal injury claims include non-economic damages as a large portion of the compensatory damages award. Some component of this award likely involved considerations similar to those of the punitive damages award and therefore a somewhat lower multiplier is appropriate to the injury claims. Thus, the court determined that a punitive damages award of triple the compensatory award was appropriate for the individual injured plaintiffs and that a maximum award of $5 million was an appropriate maximum for the estate of each deceased parent on the wrongful death claims.

In Henley v. Philip Morris Inc. , 114 Cal. App.4th 1429, 9 Cal. Rptr.3d 29 (2004), a claim by a smoker against the tobacco company, the jury awarded $1.5 million in compensatory damages and $50 million in punitive damages. The punitive damages award was remitted to $25 million. That award was affirmed prior to State Farm. However, following State Farm , the prior decision was vacated. On remand, the Court of Appeal reduced the punitive damages award to $9 million. The ratio of 6 to 1 was justified by the extraordinarily reprehensible conduct of which plaintiff was a direct victim. The compensatory damages were not inflated so as to duplicate elements of the punitive award.

In Stroud v. Lints , 790 N.E.2d 440 (Ind. 2003), arising from an automobile accident, a bench trial resulted in a compensatory damages award of $1,381,500 and $500,000 in punitive damages. The Indiana Supreme Court set aside as excessive the $500,000 punitive damages award against an impecunious teenager. Even though the punitive damages award was much less than the compensatory award, it was far beyond the appropriate amount given the defendant = s financial circumstances. The court cited State Farm = s language that a defendant = s wealth cannot justify an otherwise unconstitutional punitive damages award, but it is nevertheless an appropriate consideration. The defendant = s wealth is ordinarily cited as a reason to escalate a punitive award, and that is consistent with the goal of deterrence, but that door swings both ways. An award that not only hurts but exposes a defendant to a life of financial hopelessness goes too far.

In Bocci v. Key Pharmaceuticals, Inc. , 190 Or.App. 407, 79 P.3d 908 (2003), a drug manufacturer was sued both by the patient and the prescribing physician. The patient received $5 million in compensatory damages and $35 million in punitives. The doctor received $500,000 in compensatory damages and $22 million in punitive damages. The patient then settled. The Oregon Court of Appeals reduced the physician = s punitive damages from $22 million to $3.5 million, the same ratio as with the settled plaintiff. The court found that the ratio should be the same for the doctor as for the patient because the conduct was the same and there was no error in punishing the defendant in the same way in the doctor = s action as in the patient = s. There was evidence of deceitful conduct involving the promotion of a prescription drug as safe when it was not which resulted in misdiagnosis and consequent severe personal injury. Such conduct was much more reprehensible and blameworthy than an isolated incident or mere accident. The court held that the manufacturer = s nationwide misconduct in disseminating false and misleading information to the FDA and to physicians about the drug led to plaintiff = s damages and was not the sort of evidence that State Farm suggests is inappropriate to consider in evaluating punitive damages.

In Waddill v. Anchor Hocking , 190 Or.App. 172, 78 P.3d 570 (2003), the jury awarded $100,854 in compensatory damages and $1 million in punitive damages. The Oregon Court of Appeals held that the punitive damages award was excessive and that the maximum constitutional award was four times the compensatory damages, or $403,416. In light of State Farm's focus on ratios in the usual case, the court concluded that the maximum constitutionally permissible award was four times compensatory damages. Defendant failed to preserve any objection to other incident evidence involving accidents that occurred outside the state.

In Mack Trucks, Inc. v. Witherspoon , ___ So.2d ____, 2003 WL 21246555 (Ala. 2003), a wrongful death case arising from the crash of a truck trailer loaded with logs which resulted in a fire that engulfed the cab and killed the decedent, the jury awarded a verdict including punitive damages of $50 million. The trial court granted a remittitur, reducing punitive damages to $25 million. On appeal, the Alabama Supreme Court ordered a remittitur of $6 million in punitive damages. The decision did not discuss the relationship of the punitive damages award to the compensatory damages, nor did the decision discuss State Farm .

C. Other Effects of State Farm .

In Bridgestone/Firestone North America Tire, L.L.C. v. Naranjo , 206 Ariz. 447, 79 P.3d 1206 (2003), injured motorists brought a lawsuit against a car rental agency for wrongful death and personal injury. Plaintiffs recovered a substantial judgment for compensatory damages and filed a satisfaction of judgment. Subsequently, Bridgestone obtained summary judgment, arguing that collateral estoppel and the satisfaction of judgment entered on behalf of the car rental agency precluded plaintiff = s claims against Bridgestone. The trial court agreed and the court of appeals affirmed. As to the punitive damages, the court held that because plaintiffs had already fully recovered compensatory damages, they could not circumvent the satisfaction of judgment by virtue of their additional claim for punitive damages against Bridgestone. Because plaintiffs could no longer recover actual damages against Bridgestone, their claim for punitive damages could not proceed, either. Otherwise, plaintiffs would need to try the entire case a second time because, under State Farm , punitive damages could only be assessed in relation to the compensatory damages that might be awarded. The court held that public policy generally favors one action, when possible, to resolve all claims against all known, potential tortfeasors. Because plaintiffs chose to exclude Bridgestone from the original litigation and then recovered their full compensatory damages, they could not pursue a second lawsuit against Bridgestone arising from the same accident.

• PROOF OF DEFECT

A. General

In Anderson v. Raymond Corp. , 340 F.3d 520 (8th Cir. 2003), defendant successfully excluded the testimony of both of plaintiff = s experts, the first because he was not qualified and the second because his expert report was not timely disclosed. Thereupon, defendant moved for summary judgment. The district court granted the motion and the Eighth Circuit affirmed. Plaintiff argued that a jury could infer a defect from the circumstances of the case but the Eighth Circuit disagreed. It noted that plaintiff was not proceeding on a A malfunction @ theory but was alleging a specific defect in the truck. Given the allegation of specific defect, plaintiff had to prove the existence of a safer alternative design and could not meet such a burden without an expert. Accordingly, the grant of summary judgment was affirmed.

In Ahrens v. Ford Motor Co., 340 F.3d 1142 (10th Cir. 2003), plaintiffs = decedent was fatally injured while driving a Ford tractor manufactured in 1967. Decedent was on a country road pulling a folded rake when an unidentified motorist crashed into the rake from behind, throwing decedent from the tractor. It ran over decedent, crushing and killing him. Plaintiffs claimed that the tractor was defective and unreasonably dangerous due to the absence of a ROPS and seat belt. However, the district court granted summary judgment to defendant and the Tenth Circuit affirmed. Plaintiffs = experts relied primarily on evidence of risks associated with rollover accidents. Plaintiffs = primary expert, John Sevart, submitted an affidavit asserting that the tractor was unreasonably dangerous because the risks associated with operating without a ROPS are significantly greater than the ordinary consumer would expect. However, he relied almost entirely on the risks of rollover. Plaintiff failed, either through his testimony or elsewhere, to introduce evidence that the absence of a seat belt rendered the tractor unreasonably dangerous. Because the case did not involve a rollover but rather an accident in which the operator was thrown from the tractor, the Tenth Circuit concluded that the district court properly found evidence of rollovers to be irrelevant to the determination of whether the tractor was unreasonably dangerous. Under the consumer expectation test in effect in Oklahoma, evidence that ordinary consumers underestimate the risks of rollover accidents is not probative of consumers = contemplation of risks associated with operating a tractor without a seat belt. Accordingly, the Tenth Circuit affirmed the trial court = s grant of summary judgment.

In In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation , 287 F. Supp.2d 936 (S.D. Ind. 2003), the tires were lost or destroyed and were never available for physical inspection. Plaintiff claimed she had retained one or more photographs and a videotape of the vehicle taken after the accident, but did not submit them to the court, nor did her expert rely on any examination of them. The only evidence of defect and causation was an affidavit indicating that the type of Firestone tire involved in the accident was defective and that if the tires were properly maintained, if their inflation pressures and loading instructions were routinely and habitually followed, and if the tires were not damaged or harmed in any fashion, or required any sort of repair, then tread belt separation would have resulted from the alleged defect and not from some other reason. This affidavit was insufficient to create an issue of fact. The affidavit did not say that the accident was caused by a tread separation nor that the tread separation, if it occurred, was caused by the defect. There was no evidence in the record that the tire suffered any tread separation at all. The expert = s conclusions were based purely A on multi-layered hypothetical scenarios and not on any record evidence or facts @ and therefore did not meet the standard for admissibility. Accordingly, the court granted summary judgment to Firestone.

In In re Bridgestone/Firestone Tire, Inc., Products Liability Litigation , 287 F. Supp.2d 943 (S.D. Ind. 2003), plaintiff was allegedly injured when her Ford Explorer rolled over following a defensive maneuver. She contended that Firestone gave inadequate warnings because the tire inflation level Firestone imprinted on its tires (35 psi) exacerbated the rollover propensity of the vehicle and that Ford advised the tires be inflated to 30 psi. Plaintiffs = expert opined that under-inflation or the use of larger tires such as those on the subject vehicle raised the center of gravity one inch and produced a difference in the rollover probability from 34% to 45%. The court granted summary judgment. Nothing in the expert = s report, nor any other evidence in the record, offered any proof on two crucial points: (1) there was no evidence in the record about what inflation level plaintiffs = tires had at the time of the accident; (2) nor was there any evidence in the record that over-inflation, even if it existed at the time, caused the rollover in this case. Accordingly, the court granted summary judgment to Firestone.

In Klootwyk v. DaimlerChrysler Corp ., 2003 WL 21038417(N.D. Ill. 2003), decedent had a history of severe arteriosclerotic cardiovascular disease. While driving his 1998 Dodge Ram 2500 van, he came to a complete stop at a stop sign and suffered a sudden cardiac arrest. Moments later the van slowly proceeded through the intersection and veered off to the right, traveling off the street and over the curb across three properties. It finally came to a rest when it collided with a house. The driver = s side airbag did not deploy in the collision and the impact in the accident was below the deployment threshold. The injuries from the accident were not, in all medical probability, fatal injuries. Plaintiff alleged that the driver = s side airbag was defective because it failed to deploy in the collision, but the court granted summary judgment to defendant. The court noted that plaintiff presented no evidence on causation. Therefore the court was obliged to accept as true the testimony of defendant = s experts who stated that the injuries sustained in the collision were not fatal and that the most likely cause of death was the sudden cardiac arrest the driver experienced just before the collision. Likewise, plaintiff offered no proof that the drivers side airbag was unreasonably dangerous or that a defective condition existed at the time the vehicle left defendant = s control. Absent expert testimony, there was no basis for a jury to infer that the airbag system was defective in design. The negligence claim was legally insufficient for the same reason; the threshold question was whether the product design was unreasonably dangerous, and plaintiff failed to create an issue of fact as to that element of proof.

In Fremaint v. Ford Motor Co. , 258 F. Supp.2d 24 (D.P.R. 2003), plaintiff was injured while driving his 1999 Ford Explorer which crashed after the failure of a front tire while traveling approximately 45 mph. Plaintiff braked and the Explorer spun out of control, hit a post and fell on its side. Plaintiff contended that his seatbelt, which remained fastened throughout the event, was ineffective because his body struck the steering wheel and window. However, following the completion of discovery, plaintiff did not designate any expert witnesses. The court granted summary judgment to Ford, holding that plaintiff could not establish either strict liability or negligence in design without expert testimony. Mere reliance upon documents produced by Ford was insufficient. Likewise, under both the consumer expectation test and the risk benefit test,

plaintiff needed to come forward with evidence, either of what the ordinary consumer would reasonably expect from a motor vehicle in the circumstances or whether a safer alternative design existed which was mechanically feasible. Because plaintiff failed to provide any such evidence, the court granted summary judgment.

In General Motors Corp. v. Jernigan , 2003 WL 22929111 (Ala. 2003), plaintiff was a front-seat child passenger in a 1993 Oldsmobile Delta 88 that sustained a serious injury in a high-speed offset frontal collision with a 2000 Pontiac Grand Prix. Plaintiff's front feet were pinned the wreckage, and his head was thrown forward. The A-pillar was deformed rearward, resulting in a skull fracture that caused permanent and severe brain damage. Plaintiff claimed that the Delta 88, which was built on the second-generation GMH-chassis, was defective in design because of a variety of design decisions which made it weaker than the first-generation H car. Plaintiff's biomechanical expert testified that plaintiff would not have sustained a head injury had the A-pillar not been displaced by six inches. Plaintiff's expert did not test his alternative designs. Although he testified that alternative designs were available which would have reduced or prevented plaintiff's injuries, he did not identify a single vehicle which constituted an alternative design, although he did compare the performance of the Delta 88 with that of first-generation H-cars, the 2000 Grand Prix, and the Ford Taurus, which he described in deposition as embodying his proposed alternative designs. GM conducted a crash test of a Ford Taurus and a Grand Prix comparable to that involved in the crash. The crash test produced a HIC score of 7300 and A-pillar deformation six inches greater than the Delta 88. However, the trial court excluded the test because it was not sufficiently similar to the accident in terms of car heights, weights, and the types and styles of the cars. The Alabama Supreme Court found the experts' testimony sufficient to support a verdict of design defect, although the court remanded for a new trial for errors in refusing jury challenges for cause.

In Phillips v. Cricket Lighters , 2003 WL 22860315 (Pa. 2003), a two-year-old child started a house fire by playing with a cigarette lighter, resulting in multiple deaths. Plaintiffs alleged that the lighter was defective for failing to incorporate child-safety design features. Defendants moved for summary judgment on the ground that the child was not an "intended user" and that lighter was not unreasonably dangerous for use by its intended users. The trial court granted summary judgment. The Pennsylvania intermediate appellate court reversed, but the Pennsylvania Supreme Court reversed. It noted that under Restatement (Second), Torts, § 402A, a product is not unreasonably dangerous is it is safe for its intended use. It follows that a product is not rendered unreasonably dangerous when used by an unintended user. It declined to extend strict liability to any "foreseeable" users. However, the court held that plaintiffs could pursue a common-law negligence claim against the manufacturers and distributors of the lighter.

B. Indeterminate Defect.

In Peaco v. G.F. Management of Pennsylvania, Inc. , 2003 WL 22700977 (E. D. Pa. 2003), plaintiff was a passenger in a hotel van which crashed, allegedly as a result of sudden acceleration. The vehicle had more than 35,000 miles on it. No party was able to substantiate the driver = s description of the van and he admitted he had never experienced a similar problem in the van nor had ever heard of any other drivers complain about such an event. Likewise, none of the other drivers who worked for the hotel ever experienced or heard of a similar incident. The property damage appraisal report did not describe any mechanical problems relevant to the van = s alleged automatic acceleration. Post-accident repairs did not identify any problems with the van = s mechanical systems and neither party = s experts identified any defects in the mechanical systems that would support the malfunction described by the driver. One expert listed several hypothetical defects that could potentially cause a vehicle to accelerate automatically, but did not identify any such defective condition in the van. The van was later placed back in service and driven over 200,000 miles with no complaints of inadvertent acceleration. Plaintiffs sought recovery under Pennsylvania = s A malfunction theory. @ The court granted summary judgment to defendant, noting that despite the liberal construction of the malfunction rule, the Pennsylvania Supreme Court had held that in cases of prolonged use of a product before the alleged malfunction and successful continued use afterward, plaintiff could not meet her burden of presenting a case in chief free of secondary causes. In that type of case, a jury would not be permitted to infer a defect from the malfunction. Accordingly, the court granted summary judgment to defendant.

In Ford Motor Co. v. Ridgway , ___ S.W.3d ___, 2004 WL 250898 (Tex. 2004), plaintiff was injured when his two-year-old Ford F-150 pickup truck caught fire while he was driving. Plaintiff was the truck = s third owner. The first drove the truck approximately 7,000 miles and installed a spotlight on the front, left A-pillar. The second owner drove the truck approximately 47,000 more miles and had the truck repaired four times at a dealership. Each repair attempted to fix a A clunking @ noise that appeared during hard turns. Three of the four repairs also involved the fuel system and attempted to improve the truck = s poor gas mileage. Plaintiff and his family drove the truck for only one month before the fire. The fire occurred while plaintiff was driving home from work on a paved county road at or below the speed limit. Plaintiff looked into the rear-view mirror and noticed flames curling up around the cab of the truck. Plaintiff sustained second degree burns to 20% of his body. Ford moved for summary judgment. The trial court granted the motion. The Texas Court of Appeals reversed, but the Texas Supreme Court reversed the court of appeals and upheld the trial court = s grant of summary judgment. Plaintiff = s expert conducted a visual inspection of the truck, a visual inspection of an undamaged exemplar. Based upon the areas of greatest damage to the truck and an indication of a A hot spot @ within the engine compartment, the expert concluded that the fire originated within the engine compartment and that a malfunction within the electrical system in the engine compartment was suspected of having caused the fire. However, he declined to eliminate all portions of the fuel system as a possible cause of the accident and conceded that A the actual cause of the fire has not been determine [sic] yet. @ The Texas Supreme Court concluded that the circumstantial evidence was legally insufficient to prove a manufacturing defect in existence when the truck left the manufacturer = s hands. It established only that a fire occurred and a suspicion that the electrical system caused the fire. Because the expert could not rule out part of the fuel system as a possible cause and because there was no evidence identifying a defect of the truck at the time it left the manufacturer, the expert = s affidavit was insufficient to raise an issue of fact. Plaintiff argued that the proof was sufficient under ' 3 of Restatement (3 rd ) of Torts which allows circumstantial evidence of defect. The court declined to decide whether to follow ' 3. However, it concluded that even if ' 3 were the law of Texas, it would generally apply only to new or almost-new products which have not been modified or repaired, therefore making a product defect the likely cause of the accident. Accordingly, the court concluded that plaintiffs failed to meet their burden of showing a genuine issue of material fact regarding a manufacturing defect and upheld the trial court = s grant of summary judgment.

C. Component Parts Suppliers .

In Thorndike v. DaimlerChrysler Corp. , 2003 WL 21212591 (D. Me. 2003), the court denied a motion for summary judgment by a component part supplier which sought summary judgment on a cross-claim for contribution or indemnity by the vehicle manufacturer. The component supplier, Ingersoll, furnished spare tire retention bolts which failed in the accident. The spare tire flew forward and into the back of plaintiff = s bench seat, causing serious injuries. The court applied the rule of Restatement (3d), Products Liability, ' 5, under which a component parts manufacturer who does not take part in the design or assembly of the final system or product is not liable for defects in the final product if the component part itself is not defective. The court concluded that this test applied to plaintiff = s theories of negligent manufacture and breach of warranty, as well as to strict product liability, because each of these claims depended on plaintiff = s ability to prove that the manufacturing process rendered the subject bolt or retention system defective. In reviewing the expert reports and depositions, the court concluded that there was a genuine issue of material fact, because there was evidence that had the bolt been perfect rather than an imperfect bolt, it would have been capable of withstanding the necessary G = s and that the spare tire would not have released in the collision.

D. Sophisticated Users

In David v. Machinery Distribution, Inc. , 2003 WL 21920396 (Mich. App. 2003), the court applied the Michigan sophisticated user statute and held that the manufacturer of a forklift truck which back over plaintiff did not have a duty to warn because the purchaser of the forklift, plaintiff = s employer, was experienced in using and handling the product. The general manager of plaintiff = s employer had been working for lumber companies since the early 1970s and operated forklifts at everyone of those jobs and testified that he did not think that backup warning devices were necessary in a lumber yard setting because there are not people such as retail shoppers or customers around. He also testified that at monthly meetings safety issues were addressed, including A just watch the other fellow @ when working with lift trucks. The court concluded that plaintiff = s employer was in the best position to warn its employees of the dangers associated with the operation of the forklift. Accordingly, the defendants owed no duty to plaintiff to warn of the risks and dangers associated with its use.

E. Post-Sale Duties.

In Ostendorf v. Clark Equip. Co. , 122 S.W.3d 530 (Ky. 2003), plaintiffs alleged, inter alia , a breach of a duty to retrofit a forklift with operator restraints and negligent conduct of a retrofit campaign. The circuit court granted summary judgment on these claims. The Kentucky Supreme Court affirmed. Like the majority of courts that have considered the issue, it held that there is no duty to retrofit a product which was not defective when sold. The court reached this conclusion for two reasons: first, a duty to retrofit is properly the province of administrative agencies or legislative bodies; second, there is no reason to create a duty to retrofit a product not defective when sold because traditional principles of negligence and strict products liability suffice. Plaintiffs also argued that defendant should be liable because its voluntary retrofit program begun in 1983 was inadequate. Plaintiff claimed that defendant A failed to adequately notify customers of the availability of and the need for the new safety features, and that it failed to provide its dealers with sufficient incentives to implement the retrofit program. @ Plaintiff argued that, under the common-law principle of voluntary assumption of a duty, defendant negligently conducted its retrofit campaign. The Kentucky Supreme Court disagreed. Under ordinary tort principles, the court noted, defendant = s voluntary undertaking to carry out a duty, even if done negligently, does not create liability unless its negligent performance of the task either increased the risk of harm to plaintiff, was incompatible with the discharge of the duty owed by plaintiff = s employer or caused plaintiff to suffer harm because either the plaintiff or his employer relied on the manufacturer to complete the retrofit. Plaintiff failed to show that any of these conditions existed. Plaintiff argued that the provisions of Restatement (3d) of Torts: Products Liability ' 11 created a more lenient standard. Citing comment c , ' 11: A in the context of products liability, courts appear to assume that voluntary recalls are typically undertaken in the anticipation that, if the seller does not recall voluntarily, it will be directed to do so by a governmental regulator. Having presumably forestalled the regulatory recall directive, the seller should be under a common-law duty to follow through on its commitment to recall. @ However, the court noted that ' 11 has not been adopted in Kentucky, and plaintiff could not cite a single case from any jurisdiction that relied on ' 11 to impose liability on a manufacturer for a negligent retrofit campaign. The court noted that applying the ' 11 approach, A with its lax requirements - would have the perverse effect of discouraging voluntary retrofits and recalls ... moreover, a company that would have begun a voluntary campaign in the absence of such strict liability but refrains in the face of such liability might never be compelled to perform that campaign. @ The court concluded that the better course is to impose liability for negligent recall under the dictates of ' 324(a) of the Second Restatement. Accordingly, the court upheld summary judgment for the manufacturer.

F. Causation

In Stahlecker v. Ford Motor Co. , 266 Neb. 601, 667 N.W.2d 244 (2003), decedent was raped and murdered after her 1997 Ford Explorer, equipped with Firestone Wilderness AT tires was rendered inoperable when one of the tires failed. Plaintiff alleged that the tire failure left decedent A alone and stranded @ and as a direct result of the tire failure she was assaulted and murdered. The Nebraska Supreme Court upheld defendants demurrer, holding that the perpetrator = s intervening conduct was a superseding cause of the harm. Therefore, as a matter of law, no act or omission of defendants was the proximate cause of the injury.

• WARNINGS

In Hiner v. Deere & Co. , 340 F.3d 1190 (10 th Cir. 2003), plaintiffs alleged a post-sale failure to warn. The district court granted summary judgment but the Tenth Circuit reversed. Deere argued that such a warning was unnecessary because plaintiff understood the overall danger of accidents such as the one that occurred and because it would not have been feasible to issue a post-sale warning because of the impracticability of doing so. Plaintiff had purchased his tractor and loader second hand and there was no evidence that Deere even know plaintiff owned such a product. However, the Tenth Circuit disagreed. It held that even though plaintiff was aware of the danger, there may still be a duty to warn if users incorrectly believe that a recognized danger can be avoided by a particular safety measure. Deere did not challenge plaintiff = s assertion that he thought he was avoiding the hazard because he did not know that his alternate method of operation might create a hazard of its own. Therefore, plaintiff = s knowledge of the dangers did not preclude his warning defect claim. As for the practicability of issuing such a warning, the court noted that even when it may not be feasible for a manufacturer to issue post-sale warnings to consumers, there may still be a duty to issue warnings to retailers and that such warnings may, in certain contexts, be sufficient. Even if Deere could not have identified plaintiff as the owner of the tractor and loader, there was an issue of fact whether plaintiff could show that a warning to dealers of the problem might have been effective.

In Palmer v. Volkswagen of America, Inc. , 2003 WL 22006296 (Miss. App. 2003), plaintiff's decedent, a ten-year-old girl riding unbelted in the front passenger seat of a 1995 VW Jetta, was killed in a collision as a result of deployment of the passenger-side airbag. The trial court excluded as irrelevant a picture in the Owners Manual which depicted a small child in a rear-facing child seat in the front passenger seat and VW obtained a defense verdict, but the court of appeals reversed. Although plaintiffs admitted that they did not read or rely on the owners manual, the court held that this fact was immaterial because reliance was not an element in a warnings case. The court also held that, under Rule 106, the diagram was admissible as a "related writing." Because the trial court admitted the portions of the manual showing that warnings were adequate, the picture was admissible to provide context to the other information. It was unnecessary to establish independent relevancy of the picture for it to be admissible under Rule 106, as long as the evidence tends to enable the jury to see the context of other relevant evidence. Likewise, the court rejected VW's argument that the picture was inadmissible because it was unduly confusing and therefore inadmissible under Rule 403, noting that if the manual was confusing, that was exactly what plaintiffs were trying to prove in their warnings claim.

In Levey v. Yamaha Motor Corp., U.S.A. , 361 N.J. Super. 312, 825 A.2d 554 (2003), the prospective buyer of a jet boat sued the distributor based on injuries allegedly sustained during a demonstration by a retail dealer = s salesperson. The Yamaha district sales representative had promoted its jet boat by conducting a demonstration program for dealers = representatives, showing sales people how to operate the boat. During the presentation, the Yamaha representative reviewed the benefits of the product, including its safety features, with the retailer = s salesmen and took them for a ride. He drove the boat for part of the ride and then turned the controls over to the retailer = s sales manager. The water was calm, but the sales manager later drove it over ocean waves and jumped at least partially out of the water in the presence of the Yamaha district sales representative. During the presentation, the ocean was A extremely rough @ with approximately three-foot-high waves. The following spring, the salesperson gave a demonstration ride to plaintiff and her boyfriend and followed substantially the same route in his demonstration that the Yamaha representative had taken before, first riding on the smooth water and then entering the ocean surf. Plaintiff alleged she was bounced out of her seat when he drove the boat over a wave, as a result of which she was injured. Yamaha claimed that the owner = s manual and labels on the boat contained adequate warnings concerning the dangers posed by unsafe use and that the sole cause of the accident was the sales representative = s A jumping @ the boat in rough waters, contrary to those warnings. The trial court granted summary judgment, but the New Jersey appellate court reversed. It noted that what otherwise might be an adequate warning can be undermined and made ineffective by counteracting representations. A reasonable fact finder could conclude that the original sales manager = s live demonstration of the use of the jet boat constituted a counteracting representation that undermined the effectiveness of the printed warnings accompanying the product. A trier of fact must consider all communications from a seller to anticipated user = s product in determining whether the seller has discharged its duties as a reasonably prudent seller. Accordingly, there was an issue of fact and the case was remanded for trial.

In Williams v. Super Trucks, Inc. , 842 So.2d 1210 (La. App. 2003), plaintiffs were injured as a result of a failure of the axle on a 1977 Ford Bronco. In 1990, a mechanic from Super Trucks had made repairs to the Bronco by replacing both wheel bearings at the rear of the vehicle by using a cutting torch, applying heat to the axle. The mechanic admittedly had not read the shop manual which contained the warning not to apply heat. He testified that no one had ever told him not to use a cutting torch. Plaintiff = s expert testified that the axle failure was caused by the heating process which changed the metallurgical structure of the steel in the axle, causing A auto-quenching. @ Plaintiffs contended that the Ford shop manual = s instruction not to apply heat to the axle was not really a warning, at all, and that an additional warning not to apply heat should have been placed on the axle itself. However, he admitted that he had made no study of how such warning would hold up to the corrosion experienced by axles in everyday use and that an inscribed warning on the axle could induce failure in the axle. There was also no way of telling whether an etching on the axle could actually survive Ford = s manufacturing process. Ford presented expert testimony that there were as many as 35 other potential hazards associated with bearing repair which could not all be warned of on the axle, itself, and that the manual was therefore the appropriate place to put any such warnings. The jury returned a verdict for Ford and the court of appeals affirmed. The court of appeals concluded that the jury finding was reasonable based upon the evidence and therefore affirmed.

In Morgen v. Ford Motor Co. , 797 N.E. 2d 1146 (Ind. 2003), the trial court instructed the jury that the manufacturer could be held liable for failure to warn of A danger[s] about the product but rejected plaintiff = s proposed instruction that would have told the jury there was a duty to warn of A hidden defects @ and A concealed dangers. @ The instruction given allowed the jury to find for plaintiff based on hidden defects and concealed dangers, and so plaintiff was not damaged by the failure to make the instruction more specific. Furthermore, plaintiff failed to present evidence of what warnings would have made the product reasonably safe. Absent such evidence, the court held that it could not find reversible error in the instructions the trial court gave.

• EVIDENCE

A. Post- Daubert/Kumho Tire Cases

1. Federal cases.

In Calhoun v. Yamaha Motor Corp ., U.S.A., 350 F.3d 316 (3d Cir. 2003), the Third Circuit upheld the district court = s exclusion of much of the testimony of three experts proffered by plaintiffs. The case involved an accident in which a 12-year-old crashed a jet ski into a boat and died from the injury. The first expert, Dr. Edward Karnes, was called to testify that the warnings on the jet ski should have restricted operation to those 16 years of age and older, but was precluded from doing so. The trial court permitted Dr. Karnes to testify in general about how to design an effective warning and that the warning on the jet ski deviated from the proper criteria, making it unreasonably dangerous and defective, especially for youthful operators. However, the court prohibited him from testifying that the warning should have restricted operations to those 16 years and older because he had no specific knowledge or expertise on that subject. The second expert, Albert Bruton, was called to testify that the jet ski = s accelerating mechanism was not as safe as other alternative designs and that the warning should have limited operation to those 16 and older. He was permitted to testify about how to frame an effective warning in general, but not on the proper substance of a particular warning, including the proposed testimony that jet ski operations should be restricted to those 16 and older. He had no education or experience in product design of jet skis or accelerating mechanisms, nor did he provide scientific, statistical or other evidence evaluating the relative safety of different jet ski models or their accelerating mechanisms. He had never designed a warning for any consumer product and had no support for his belief that use of the product should be restricted to those 16 years of age and older. The Third Circuit upheld the District Court = s limitation upon the expert. The third expert, Dr. Robert Warren, had a Bachelor = s degree in naval architecture and marine engineering as well as higher degrees in other fields. However, the court held that he failed to apply his expertise to the matter at hand. At the time he wrote his report, he had never operated a jet ski, and by the time of trial had only managed to ride a different model. He had never examined diagrams of the different throttles used on jet skis. He acknowledged he could have conducted tests to determine the relative merits of alternative throttle designs, but did not do so. Thus, it was held he was unable to give reliable testimony on whether the accelerating mechanism on the throttle was unsafe.

In Rivera Pomales v. Bridgestone Firestone, Inc. , 217 F.R.D. 290 (D.P.R. 2003 ), the court struck the testimony of plaintiffs = expert. The case involved an alleged tire failure. Plaintiffs = expert acknowledged that he was not a tire expert and did not use any common methodology or protocol in examining the tire. He testified that some of the protocols commonly used for tire inspection were A silly. @ Plaintiff presented no evidence supporting the expert = s use of his methodology nor any of the theories he applied in rendering his opinions. The court noted that while the expert may have utilized the A scientific method @ to examine the tire, A he most certainly did not use > reliable principles and methods = that are commonly utilized in the study of tires. @ The court refused to A allow for a mechanical engineer to render an expert opinion merely because he is a mechanical engineer. @ The court warned the Bar that A guns for hire will be scrutinized with a highly critical eye in order to preserve the sanctity of the common law legal system. @

In Owens v. Ford Motor Co. , 297 F. Supp.2d 1099 (S.D. Ind. 2003), plaintiffs = wrongful death action alleged that a Ford Taurus manufactured by defendant was defective because the vehicle = s air bag failed to inflate fully , causing additional injuries and contributing to decedent = s death. The court excluded three expert witnesses. The first expert, a professor of chemistry, testified that if the Taurus = air bag did not fully inflate, the likely cause was the failure of the sodium azide to fully decompose, which resulted in the production of insufficient nitrogen gas. He acknowledged, however, that he had no opinion as to the critical question: whether the air bag did or did not fully inflate. His opinion that the sodium azide reaction was incomplete was based on his finding of unreacted azide remnants in some solid material on the interior and exterior of the air bag canister. He made this finding by using a A spot test @ derived from the scientific literature. This was envisioned as a A very quick test @ but the expert recommended that an ion chromatography test be performed to quantify the amount of unreacted azide. However, plaintiffs = attorneys did not authorize him to perform the test. Nor was the expert able to determine the quantity of unreacted azide. The court excluded his testimony because there was no reliable basis for his opinion that the chemical reaction was incomplete because he never performed any quantitative tests. The result of the spot test would have been the same regardless of the quantity of unreacted azide remaining in the canister. The fact that the expert assumed the very thing he was retained to prove A renders his opinion conditional at best and tautological at worst. @ The court also excluded the testimony of a second expert, who opined that the air bag was defectively manufactured. His opinion was found to be improper for three reasons. First, he relied upon the opinion of the chemist that the chemical reaction necessary to inflate the air bag was incomplete. Because the court had excluded the chemist = s opinion, the second expert could not rely upon it as an adequate basis for his own opinion. Second, the expert relied upon his A general experience @ observing other air bag systems and a comparison of the inflator to another inflator removed from another Taurus of the same vintage. The expert recommended the 6-10 for their comparisons be conducted, but was never authorized to do so. Thus, although he felt that the solid material found on the air bag inflator was abnormal, his opinion was devoid of quantitative information about the amount of azide in the material. Furthermore, his limited experience with air bag systems did not provide an adequate basis for him to judge whether the supposedly excess material was aberrant. Furthermore, the single comparison he conducted did not constitute the rigorous and A scientifically valid @ methodology that Daubert requires. The expert himself recognized this and testified that he would need a sample of additional air bags to demonstrate by comparison that the presence of the solid material was unusual. Finally, the expert relied upon his examination of the interior to conclude that the decedent struck the lower instrument panel as a result of the crash, but admitted that he neither performed nor reviewed any test that would support that opinion. He acknowledged that it would be possible to test his opinion by conducting measurements of occupant positioning and by reviewing crash test data but never did so in this case. He conducted a visual inspection of the junked car and made some preliminary measurements of the driver = s seat but did not perform an actual reconstruction, as he had done on hundreds of other cases. It was therefore clear that his opinion did not display the same A intellectual rigor @ of experts in the accident investigation field and rendered his conclusions inadmissible.

See also, Hayes v Wal-Mart Stores, Inc., supra, p. 2, excluding a punitive damages expert.

2. State cases.

In Jones v. Goodyear Tire and Rubber Co. , 2003 WL 22657851 (Fla. App. 2003), the Florida Court of Appeals reversed a trial court which granted a directed verdict and new trial based on the testimony of plaintiff = s expert. Applying Florida = s Frye rule, the court held that expert opinion based on an expert = s own experience or training is deemed A pure opinion @ and is not subject to the Frye test. Frye applies when an expert witness reaches a conclusion by deduction, or when applying a new and novel scientific principle, formula or procedure developed by others. Because the expert made no reference to a new or novel scientific principle or discovery, but relied solely on his experience, the testimony did not implicate Frye. The trial court = s exclusion of his testimony because it failed the Frye test therefore constituted an abuse of discretion.

B. Disclosure Requirements.

In Rivera Pomales v. Bridgestone Firestone, Inc. , 217 F.R.D. 290 (D.P.R. 2003), the court struck the proposed testimony of defendant = s expert because defendant failed to include a copy of the expert = s CV with the submission of the expert report. The court noted the mandatory nature of both Rule 26(a)(2)(B) and the court = s initial scheduling order. It also clearly set forth the requirement that a CV satisfying the requirements of Rule 26 be submitted with a report and stated that if the report of the expert A is not as described herein, the expert = s testimony will not be permitted on direct examination. @ Defendant contended that its failure to submit the CV was merely an oversight and that plaintiff could have requested a copy of the CV upon discovery that it was not included with the report. However, the court found that plaintiff did not have a duty to further request the CV after disclosure was specifically ordered by the court. Rather, the sanction was automatic. The court noted that defendant could conceivably avoid this sanction by showing that its failure to include the CV was A substantially justified @ and whether its failure should be considered harmless. The court concluded that the failure to disclose was not harmless in this case because the disclosure of the CV is considered an essential part of the disclosure process. The fact that plaintiffs chose not to depose defendant = s expert did not eliminate the fact that plaintiffs were deprived of the opportunity to utilize this information in preparation for trial.

C. Miscellaneous.

In Grimes v. Mazda North American Operations , 355 F.3d 566 (6th Cir. 2004), the trial court allowed the introduction of evidence of the driver = s drug and alcohol use as well as that of plaintiff on the night of the accident. Plaintiff objected to such evidence as irrelevant. The district court overruled the objection and the Sixth Circuit affirmed. It noted that there was a dispute about whether plaintiff was wearing her seatbelt. She testified that she always wore her seatbelt and was wearing it at the time of the accident. There was testimony that she told one of the responding emergency medical technicians and the emergency room nurse that she was not wearing her seatbelt that evening. The court held that alcohol or drug use before the accident could have impaired plaintiff = s memory of the evening or caused her to not use a seatbelt even if she normally would use it. Therefore, the evidence was relevant. As to the driver, the trial court ruled that evidence of her drug and alcohol use on the night of the accident went to the credibility of her testimony describing the accident. Furthermore, as the driver of the truck and a defendant in the case, evidence that she was under the influence of drugs or alcohol was clearly relevant because it may have caused or contributed to the accident.

In Williams v. Ford Motor Co. , 2003 WL 21010601 (Tex. App. 2003), review denied (Nov 21, 2003), plaintiff = s decedent lost control of a 1994 Taurus SHO ( A Super High Output @ ) while he was driving at a speed of 90-100 mph. Plaintiffs contended the accident was caused by a stuck throttle held open by a cruise control cable that had become jammed in the servo pulley. Ford contended the decedent was simply driving too fast. The jury found no design defect. The trial court excluded plaintiff = s exhibit containing Ford and Mazda recall notices, stating that certain vehicle models contained defectively manufactured cruise control cables which had an inadequate layer of plastic over the ends of the conduit lay wire of the speed control servo end of the cable which creates the potential for a stuck throttle. The court of appeals affirmed the trial court = s exclusion of this evidence because the recall notices related only to specific vehicle model year makes not including the Taurus or Taurus SHO and did not include the same cruise control system used in the 1994 Taurus that were manufactured in different assembly plants during different periods of time. There was no evidence that the defectively-manufactured part listed in the recall notices was used in the 1994 Taurus SHO. Accordingly, the trial court properly excluded the evidence. The trial court also excluded, as hearsay, the A CQIS Detail Reports @ which consist of compilations by Ford of customer complaints regarding unintended acceleration in 1993-1995 Tauruses. Plaintiff argued that the reports were not offered to prove the truth of the matters asserted, but the court of appeals disagreed, noting that the only way that reports of other incidents could be relevant is if they were offered to prove the truth of the matters asserted. Although the reports were generated by Ford, they consisted of hearsay statements made by customers, unidentified technicians, service managers and dealers or other unidentified people. Therefore, they did not constitute admissions of a party opponent and the trial court did not abuse its discretion by excluding them as hearsay. Furthermore, the vast majority of the complaints did not involve vehicles with the same cruise control system or did not involve similar complaints and were therefore irrelevant. Plaintiff also argued that the trial court erred in admitting the statement in the police report of the investigating officer that decedent = s father A liked to drive fast. @ The court held that the report was properly admissible either as a business record or as an admission of a party opponent and was further admissible under Rules 404(b) and 406 to rebut plaintiff = s claim that decedent was driving fast unintentionally.

In McLaughlin v. Fisher Engineering ,150 N.H. 195, 834 A.2d 258 (2003), plaintiffs instituted wrongful death actions against a snow plow manufacturer. The 1982 snow plow was attached to the front of a pickup truck which collided with the vehicle in which plaintiffs = decedents were riding. Plaintiffs appealed primarily on three critical evidentiary decisions of the trial court. First, the trial court created an in limine motion to exclude evidence of fourteen other lawsuits filed against Fisher concerning its snow plow mount. Plaintiffs argued that evidence of other lawsuits was relevant to the issue of Fisher = s knowledge that the snow plow mount was potentially dangerous. However, the trial court ruled the lawsuits arising after the 1982 sale of the snow plow mount were irrelevant but that evidence of other lawsuits might be relevant if plaintiffs were to establish the criteria concerning a duty to warn after the sale. Furthermore, prior to trial, Fisher admitted that it recognized a risk of automobile accidents involving vehicles, one of which has a snow blade hitch assembly without a snow blade affixed to the assembly. At trial, plaintiffs elicited testimony from a number of witnesses, including Fisher = s expert and employees concerning their knowledge of the existence of other claims. Given such testimony, admitting specific evidence concerning fourteen other claims was likely to produce a trial within a trial and confuse the jury and the court was within its discretion to exclude the proffered evidence. Plaintiffs also sought to introduce a color photograph taken of the scene that depicted the outline of the snow plow mount on decedent = s head and face. The trial court initially ruled that plaintiffs would be allowed to introduce the photograph to rebut the assertions of the defendant that the snow plow mount did not cause the deaths of the decedents. During the trial, however, Fisher stipulated that A as a result of the snow [sic] mount coming into contact with Mr. McLaughlin, he died of a brain injury. @ The trial court thereafter found that the probative value of the photograph was A somewhat lessened @ by the stipulation, but the prejudicial effect of the photograph remained the same. Despite the stipulation, Fisher continued to maintain that McLaughlin would have died as a result of other injuries and the trial court ruled that in lieu of admitting the photograph, plaintiffs could elicit testimony describing McLaughlin = s injuries in a A verbal fashion @ and could use a A computer image @ or a drawn up image of the injuries incurred by decedent. The New Hampshire Supreme Court held that this ruling was within the trial court = s discretion under Rule 403. Finally, plaintiffs argued that it was error to allow Fisher to introduce evidence of one decedent = s substance abuse and another decedent = s incarceration. Defendant argued that the evidence was relevant to rebut plaintiffs = claims for hedonic damages and loss of income. The trial court agreed and the New Hampshire Supreme Court affirmed, holding that such material was proper cross-examination for plaintiffs = economist when accompanied by a cautionary instruction to the jury.

In Palmer v. Volkswagen of America, Inc ., 2003 WL 22006296 (Miss. App. 2003), plaintiffs sought to introduce a special crash investigation report prepared for NHTSA by Calspan, an independent, non-government crash investigator. Defendant objected to the report as hearsay, and plaintiffs claimed that the report was admissible under Rule 803(8) as a governmental report. The trial court excluded the report, and the Mississippi Court of Appeals upheld the ruling, noting that the disclaimer on the report disclaiming the reliability of the report gave the trial court discretion to exclude it. The trial court also held that plaintiffs' experts could not rely on the report because it was inadmissible. The court of appeals held that this decision was erroneous because, under Rule 703, the report need not be admissible for the experts to rely on it in forming their opinions, as long as it was of a type reasonably relied on by experts in the particular field. However, the error was harmless because the experts were allowed to offer the same opinions, with or without the report. The court also held that the trial court erred by preventing plaintiffs from using a letter from the NTSB to cross-examine defendant's expert. The letter was directed to vehicle manufacturers informing them of accidents involving front-seat child passengers killed or seriously injured by deploying airbags. The court agreed with plaintiffs that the letter was relevant to rebut defendant's claim that there was widespread public awareness that airbags posed an open and obvious hazard to children. (See additional discussion of warnings issues in this case, supra , at. p. 13).

V. CLASS ACTIONS

In Bridgestone/Firestone Tire Products Liability Litigation , 333 F.3d 763 (7 th Cir. 2003), the court revisited a case in which it had earlier held that it to be improper to certify a nationwide class covering multiple models of Ford vehicles and Firestone tires sold between 1990 and 2001. See, In re Bridgestone/Firestone Tire Products Liability Litigation , 288 F.3d 1012 (7 th Cir. 2002), cert. denied , 537 U.S. 1105 (2003). Following the prior decision, lawyers representing the plaintiffs tried to accomplish similar results in class action suits filed in many other jurisdictions, including a number of state courts. One state judge certified a nationwide class on the day the complaint was filed, without awaiting a response from the defendants and without giving reasons. Ford and Firestone asked the district to enjoin the other class actions. The district court denied the motion and defendants immediately appealed. The court noted that the preclusive effect of the federal court = s prior decision was a matter of federal rather than state law. A Having sought and obtained a decision on the master complaint, class counsel are in no position to treat the resolution as irrelevant and start anew. @ Accordingly, they were barred from circumventing the order by bringing similar class action claims in other jurisdictions. Class counsel argued that only named class representatives, and not members of putative classes should be treated as parties to the litigation and that unnamed class members therefore should not be bound by the result. The Seventh Circuit concluded otherwise, noting that unnamed class members have the status of parties for many purposes and are bound by the decision whether or not the court otherwise would have had personal jurisdiction over them. A Just as they received the fruits of victory, so an adverse decision is conclusive against them. @ A decision with respect to the class is conclusive only if the absent members were adequately represented by the named litigants and class counsel. That requirement was met and the decision was not challenged on the first appeal nor in the present case as to the adequacy of representation. Although the district could did not offer unnamed class members an opportunity to opt out of the certification decision, no statute or rule required notice, nor an opportunity to opt out, before the certification decision is made; opting out is a post-certification step. In any event, a person who opts out receives the right to go it alone, not to institute competing class actions. Preserving the right to litigate individually, as one = s own champion, is the point of opting out. This opt-out plaintiff avoids the risk of the class = loss on the merits and also foregoes an opportunity to take advantage of the class = victory. Thus, each unnamed class member still had the right to proceed on his or her own and had merely lost the right to represent a national class of others similarly situated. Thus, unnamed class members and their lawyers were prohibited from attempting to have nationwide classes certified over defendant = s opposition to the same claims.

• PRE-EMPTION

In Anthony v. Abbott , 289 F. Supp.2d 667 (D.V.I. 2003), plaintiff alleged that the vehicle was defective in design for failing to include a side air bag was preempted by the National Traffic and Motor Vehicle Safety Act. Relying on Geier v. American Honda Motor Co. , 529 U.S. 861 (2000), the court held that plaintiff = s allegation of a common-law duty to install a particular passive restraint conflicted with FMVSS 208 and thereby impliedly preempted.

• JURISDICTIONAL ISSUES

A. Supplemental Jurisdiction.

In Grimes v. Mazda North American Operations , 2004 WL 63417 (6 th Cir. 2004), plaintiff sued Mazda and Ford for injuries sustained in a rollover truck accident. Defendants filed a third-party action against the Kentucky Department of Transportation after they learned that plaintiffs had brought a separate action against the Department in state court for failing to warn about an existing road hazard and thereby contributing to the same accident. Under Kentucky law, only by bringing a third-party claim against the Department could defendants seek contribution from it for any damages awarded the plaintiff. Based on the joinder, plaintiff moved to remand the action, arguing that joinder of the Department destroyed complete diversity. The district court denied the motion, on the basis that Kentucky law required joinder in order to receive an apportionment instruction, even if there was no legal right to recover from that wrongdoer. The district court denied the motion to remand and the Sixth Circuit affirmed. It determined that third-party claims by defendants for contribution generally do not require an independent jurisdictional basis, but rather fall within the court = s supplemental jurisdiction if the defendant = s action and the underlying claim share a A common nucleus of operative fact. @ The court cited the supplemental jurisdiction statute, 28 U.S.C. § 1367(b), which provides that supplemental jurisdiction is intended to prevent original plaintiffs, but not defendants or third parties, from circumventing the requirements of diversity by the simple expedient of initially naming only those defendants whose joinder satisfies the diversity requirements. By contrast, when defendants are brought into court, their claims are not deemed to be as suspect as those of plaintiff, who is the master of his complaint. Because there was complete diversity between plaintiff and the original defendants, and the third-party claim arose from the same nucleus of operative facts, joinder of the Department did not destroy diversity.

B. Removal

1. Time Limitations for Removal

In Tedford v. Warner-Lambert Co. , Inc., 327 F.3d 423 (5 th Cir. 2003), two plaintiffs brought a product liability suit against a drug manufacturer in Texas state court and included a non-diverse treating physician as a defendant. In venue-related discovery, defendant learned that the doctor had treated one of the plaintiffs but not Tedford. On motion, the court severed Tedford = s claim and transferred her suit to another county. Defendant informed Tedford of its intent to remove because the physician was not a proper defendant and the case was otherwise diverse. Three hours later, Tedford = s counsel amended the complaint to add Tedford = s non-diverse treating physician. Defendant removed, claiming that the defendant had been fraudulently joined, and the district court agreed and remanded the action. However, Tedford had not given proper notice to the doctor under the Texas Medical Liability and Insurance Improvement Act and sought to abate the action. Plaintiff filed and post-dated a Notice of Nonsuit before the one-year anniversary of the commencement of her action but did not notify defendant of the nonsuit until after the one-year anniversary had expired. Promptly upon learning of the nonsuit, but ten days after the one-year anniversary, defendant removed the action again to federal court. On plaintiff = s motion to remand, defendant argued that the eleventh-hour joinder and then nonsuit of the treating doctor justified application of an equitable exception to the one-year time limit. The district court agreed and denied the motion to remand, and the Fifth Circuit affirmed, noting : A Congress may have intended to limit diversity jurisdiction, but it did not intend to allow plaintiffs to circumvent it altogether. Strict application of the one-year limit would encourage plaintiffs to join nondiverse defendants for 366 days simply to avoid federal court, thereby undermining the very purpose of diversity jurisdiction. @

In Anderson v. Ford Motor Co ., 2004 WL 116613 (W.D. Okla. 2004), plaintiffs filed an action in state court but did not serve a copy of the complaint on either defendant. A year and a half later, plaintiffs filed an amended complaint. Defendants filed a notice of removal within thirty days of service of the amended complaint. Plaintiffs contended that the removal was prohibited because more than one year had elapsed since the time the original complaint was filed. The court concluded that the one-year limitation in the removal statue was inapplicable, inferring that the court A except clause @ was not intended to apply to such a case. It looked at the statutory history and purposes behind the removal statute and concluded that the A except clause @ was intended to apply only to cases not originally removable. The court noted that a prior Supreme Court precedent reinforced the basic rule that a defendant is not obliged to engage in litigation before being brought under a court = s authority by formal process. To conclude otherwise would A lead to the absurd result of requiring a defendant to attempt to remove a case before being served @ or A forfeit its right to do so later. @ The court also concluded that federal courts must A vigilantly protect the defendant = s right to proceed in federal court against abuses and manipulations by the plaintiff. @ By waiting over a year to serve defendants and then seeking remand after removal, plaintiffs attempted to deprive defendants of their right to have their case heard in federal court and the court should not sanction such conduct.

In In re Bridgestone/Firestone Tire Products Liability Litigation , 287 F. Supp.2d 940 (S.D. Ind. 2003), plaintiffs filed suit against Ford and Firestone in state court on March 6, 2001. They served Ford shortly thereafter, but Ford agreed to settle and on March 24, 2001 had issued a settlement check. Ford, however, filed an answer because all steps necessary to effect dismissal had not yet occurred. Plaintiffs did not sue Firestone until June 18, 2001. Firestone removed within 30 days after receiving service. Firestone = s counsel contacted counsel for Ford regarding removal and was told that Ford had settled with plaintiffs. Plaintiffs argued that the case should be remanded because Ford did not consent to the removal and because Firestone = s removal papers were not filed within 30 days of service on Ford. The court did not address whether a A first-served @ rule applied (i.e. that the 30-day removal period begins from the date of service of the first defendant). Rather, the court upheld removal because it was not necessary for Ford = s consent to be obtained given that Ford had already agreed to settle. Accordingly, plaintiffs = motion to remand was denied.

In Caudill v. Ford Motor Co. , 271 F. Supp.2d 1324 (N.D. Okla. 2003), plaintiffs sued Ford in state court and included a non-diverse defendant. One year and six days after filing suit, plaintiffs dismissed without prejudice the non-diverse defendant, whereupon Ford promptly removed. Plaintiffs served no discovery on the other defendant and did not depose her prior to dismissing her from the suit. Ford claimed that plaintiffs fraudulently joined the other defendant solely to defeat jurisdiction and avoid removal. Plaintiffs = motion to remand was granted. The court noted the conflict among the courts as to this issue and that some courts have held that the one-year limit did not apply to cases involving fraudulent joinder but that other courts have held that the one-year limitation for should be strictly construed. The Oklahoma court determined that the statutory one-year period should be strictly construed even if the non-diverse defendant was fraudulently added. When it became apparent that plaintiffs were not pursuing their case against the non-diverse defendant, the court observed, Ford could have 1) moved for dismissal of the non-diverse defendant as a fraudulently-joint party in state court; 2) taken discovery in state court to show fraudulent joinder; or 3) removed within one year and made its fraudulent joinder argument to this court. Ford knew the clock was ticking. @ The court granted the motion to remand.

2. Fraudulent Joinder

In Jones v. General Motors , 2004 WL 213000 (S. D. Miss. 2004), defendants removed an action, claiming that the non-diverse dealer was fraudulently joined because, based on the discovery and the conclusory allegations of the complaint, plaintiff had no evidence that the fuel system of the GM pickup truck involved in the collision was defectively designed. Defendants further argued that the absence of defect was confirmed by a visual inspection of the truck which clearly revealed that the truck = s fuel system was in no manner involved in the fire. However, the district court concluded that there was an issue of fact which precluded a determination that the dealer and GM had been fraudulently joined. The evidence of record revealed disputes as to the facts both as to the existence of a design defect and as to the role the fire played in decedent = s death. Accordingly, the case was remanded.

In In re Bridgestone/Firestone, Inc. , 260 F. Supp.2d 722 (S.D. Ind. 2003), defendants removed cases from Mississippi state court and plaintiffs in each case filed a motion to remand. Plaintiffs brought claims against strict liability, negligence, and breach of warranty under state law. The cases included automobile and tire dealers as defendants who defeated diversity. Defendants alleged that the cases belong in federal court because both federal question and diversity jurisdiction existed. They argued that federal question jurisdiction existed because, in order to prevail on their negligence claims, plaintiffs would have to demonstrate that Ford and Firestone violated the Federal Motor Vehicle Safety Act. Defendants further claimed that the court should disregard the dealer-defendants because they were fraudulently joined in order to defeat diversity jurisdiction. The district court rejected both contentions. As to the federal question claim, the fact that plaintiffs = state law claims might implicate certain provisions of the Act was not sufficient to create federal question jurisdiction, especially in light of the fact that the Act does not create a private right of action. As to diversity jurisdiction, the court noted that the complaints did not allege any independent fault by the dealers. Defendants argued that the only possible reason the dealer-defendants were added was to keep the cases in state court. However, the court said that, even assuming, that the plaintiffs = motivation for adding the dealer-defendants was to keep the case in state court, that was an insufficient basis upon which to find their joinder to be fraudulent. A The relevant question is not why the plaintiffs chose to sue the non-diverse defendants but whether the plaintiffs have viable claims against the non-diverse defendants under the applicable law. @

In Stanton v. Ford Motor Co. , 2003 WL 22244169 (N.D. Miss. 2003), the court remanded a case which had been removed on the basis of fraudulent joinder of the dealer. The court noted that the standard for judging whether a defendant was fraudulently joined was whether there A is a reasonable possibility that the plaintiffs will be able to state a claim against the allegedly fraudulently joined defendant. @ The court concluded that the retailer can be held liable for damages for selling a defective product in an unreasonably dangerous condition and that the allegations where therefore sufficient to potentially state a cause of action in state court and the defendant was not fraudulently joined.

3. Post-Removal Amendment of Pleadings

In Zuccaro v. Ford Motor Co., Inc., 2003 WL 22668834 (N.D. Ill. 2003), 21 days after the case was removed to U.S. district court, plaintiff sought leave to amend to add the non-diverse dealer as a defendant. The court initially granted plaintiff = s motion to amend, but on reconsideration reversed its ruling. The court found it likely that plaintiff = s purpose in adding the dealer subsequent to removal was to defeat jurisdiction. Plaintiff was fully aware of the identity of the dealer and offered no reason to add the dealer as a defendant other than to defeat removal. This was sufficient to raise questions as to the motive for adding the dealer as a defendant. While the twenty-one day delay in seeking leave to amend was not dilatory, the court also found that other equitable considerations favored denial of the motions. Particularly significant was Ford = s interest in permitting the case to become part of coordinated multi-district litigation proceedings if the action remained in federal court. This would eliminate duplicate discovery, prevent inconsistent rulings and conserve resources of the parties, their counsel, and the judiciary. Accordingly, the motion to remand was denied.

4. Amount in Controversy

In Barnes v. Ford Motor Co. , 2003 WL 21277209 (S.D. Ind. 2003), plaintiffs filed a class action lawsuit in state court claiming that Ford committed fraud by failing to disclose defects on the torsion bars of Ford F150 trucks. Plaintiffs sought compensatory and punitive damages but did not specify an amount. Ford removed, based on both diversity and federal question jurisdiction. The district court remanded the action, holding that Ford could not show that the amount in controversy requirement was satisfied. Ford argued that plaintiffs = allegations A set the predicate for a claim of refund of all or part of the purchase price @ and the compensatory damages could therefore be as much as $30,000. It argued that adding punitive damages on top of that figure would place the amount in controversy in the named plaintiff = s claim well over a $75,000 threshold. However, the complaint described a defect in plaintiffs = truck that was repaired for about $300. The court concluded that the complaint did not seek the full purchase price of the truck, nor was there any reasonable possibility that the purchase price would be a suitable measure of damages under applicable state law. The court distinguished other cases in which plaintiffs = allegations requested relief in the form of all or part of the sums plaintiffs paid to purchase or lease their automobiles and disgorgement of defendant = s A ill-gotten profits @ received from the sale or lease of the subject vehicles. By contrast, in the present case plaintiffs = allegations supported compensatory damages only to the extent of the cost of repair. Furthermore, punitive damages could not reach the jurisdictional threshold. Given that plaintiffs = compensatory damages would be in the neighborhood of $300, such a compensatory award could not support a punitive damage claim of more than $$74,000, or nearly 250 times the claimed actual damages. Relying upon State Farm Auto Ins. Co. v. Campbell , there was no reasonable possibility that any award of punitive damages could be sustained which would meet the amount in controversy requirement. Furthermore, Ford could not rely upon potential damages for injunctive relief because plaintiffs had not made any such request in the complaint. Likewise, the court rejected Ford = s argument for federal question jurisdiction because plaintiffs did not request a recall, but merely compensatory damages. In any event, federal preemption as a defense would not support removal under federal question jurisdiction based on the A well pleaded complaint @ rule, even when a federal preemption defense is available, it does not transform the case into one that arises under federal law.

5. Personal Jurisdiction over Non-diverse Defendants.

In Burks v. General Motors Corp. , __ F. Supp.2d ___, 2003 WL 23104722 (N.D. Miss. 2003), one of the defendants, a Tennessee automobile dealer, moved to dismiss for lack of personal jurisdiction. Because plaintiff was also a Tennessee resident, it was apparent that if the court decided subject matter jurisdiction first, then the court lacked diversity jurisdiction. On the other hand, if the court decided personal jurisdiction first, then complete diversity would exist and remand would be improper. The court concluded that the subject matter jurisdiction question posed no difficult or novel question, at all, and that therefore it should decide in the first instance whether subject matter jurisdiction existed. Accordingly, the court granted the motion to remand.

C. Service of Process

In Froland v. Yamaha Motor Co. Ltd. , 296 F. Supp.2d 1004 (D. Minn. 2003), Yamaha Motor Co. Ltd. moved to dismiss for insufficient service of process by reason of plaintiff = s failure to serve according to the Hague Service Convention. The court denied the motion to dismiss, but quashed service of process. The court noted that Minnesota law required transmittal of documents abroad in order to effect international service via the Secretary of State and that the Hague Service Convention applied to the service requirements. Therefore, service was insufficient because the Japanese Central Authority requires documents being served to be translated into Japanese. Therefore, service of an untranslated summons and complaint by certified mail either from plaintiff or from the Minnesota Secretary of State directly to a Japanese corporation failed to comply with Articles 2 and 5 of the Hague Convention. The court noted that the better practice was to quash service rather than dismiss the complaint unless it is clear that plaintiff cannot effect proper service. Because it was not clear that plaintiff would be unable to effect proper service, the court quashed the purported service of process but did not dismiss the action.

• DEFENSES

A. Limitations of Actions

In In re Bridgestone/Firestone, Inc., Tires Products Liability Litigation , 287 F. Supp.2d 929 (S.D. Ind. 2003), plaintiff brought suit against Firestone and Ford Motor Company nearly three years after the accident. Firestone moved for summary judgment based upon the applicable one-year California statute of limitations. Plaintiff contended that the statute did not run from the date of the accident, but rather from the date that the alleged defects in the Firestone tire were widely reported by the media. It further argued that Firestone = s fraudulent concealment of the defect in its tires tolled the statute of limitations. The court held that plaintiff was on notice of her claim because she suspected or reasonably should have suspected that her injury was caused by the wrongdoing of another. The doctrine of fraudulent concealment under California law was inapplicable. Nor could it apply absent evidence of plaintiff = s reliance. There was no indication that Firestone did anything to keep plaintiff from engaging an attorney, obtaining the tires, and hiring an expert. Accordingly, the claim was time barred.

In In re Bridgestone/Firestone, Inc. , 287 F. Supp.2d 938 (S.D. Ind. 2003), the court denied defendant = s motion for summary judgment on statute of limitations grounds under California law. She sustained a rollover accident in her Ford Explorer on May 13, 1999. In December of 1999, she asked her insurance company if the vehicle was still around for inspection and requested any reports that have been made regarding investigation of the vehicle. She filed her complaint in November 2000, more than a year after the accident but less than a year after she wrote to the insurance company. The court held that obtaining the accident report did not indisputably signal suspicions sufficient to start running of the statute of limitations. Her request for her insurance company = s investigative reports, even if indicative of suspicion, was made more than a year before filing the complaint and therefore summary judgment was denied.

In Bado-Santana v. Ford Motor Co. , 283 F. Supp.2d 520 (D. P.R. 2003), the court faced a similar claim in which Puerto Rico had a one-year statute of limitation and the accident occurred more than one year before the suit was filed. Here, too, plaintiffs claimed that they did not become aware that the accident was caused by the faulty design and manufacture of the tires until Firestone = s recall, which was less than one year before the lawsuit was filed. Applying Puerto Rico law, the court noted that the actual test was whether, by due diligence, plaintiffs should have become aware of the damage and who caused the damage. A Once a plaintiff is made aware of facts sufficient to put on notice that she has a potential Ford claim, she must pursue that claim with reasonable diligence, or risk being held to have relinquished her right to pursue it later after the limitation period has run. @ Plaintiffs contended there were no available means to learn of the Ford-Firestone A problem @ earlier, but the court disagreed, it noted that there was abundant public information in relation to A rollover @ allegations involving SUVs, including the Ford Explorer, as well as intensive government and media scrutiny, and numerous lawsuits as well as consumer reports publications on repeated occasions discussing statistics which showed the rollover propensity of SUVs. The court concluded that there can be no concealment when plaintiff has access to the allegedly concealed information. Considering the widespread attention that the A rollover @ propensity in SUVs and the Explorer had received, and the abundant information publically available, plaintiffs had an affirmative responsibility to exercise due diligence and reasonable care to discover the existence of a possible claim against Ford Motor Company and the lawsuit was therefore untimely.

In Hartford v. General Motors Corp ., 316 Mont. 532, 77 P.3d 551 (2003), the Montana Supreme Court held that a plaintiff injured in a motor vehicle accident could not toll the statute of limitations by reason of the fact that she did not know the extent of her injuries until later. In an unpublished decision, the Montana Supreme Court held that A latent @ injuries did not toll the statute of limitations and she sustained some injuries in the initial collision. Accordingly, summary judgment for GM was affirmed.

• Comparative Fault

In Morgen v .Ford Motor Co. , 797 N.E. 2d 1146 (Ind. 2003), the Indiana Supreme Court held that a rear-seat passenger = s failure to use a seat belt raised a jury question as to misuse. A plaintiff = s failure to use available safety devices can constitute misuse in a crashworthiness case. Therefore, it was not error to give defendant = s requested misuse instruction to the jury. Such evidence did not constitute misuse as a matter of law, but it was a matter for the jury to decide. The Indiana statute stating that misuse was a defense only when the misuse was not reasonably foreseeable to the manufacturer did not prevent the jury from considering the defense.

In Barnard v. Saturn Corp. , 790 N.E.2d 1023 (Ind. App. 2003), decedent drove the front wheels of his Saturn onto the sidewalk in front of a family home and jacked up the vehicle to change the oil. His wife found him pinned underneath the car. The front wheels were no longer on the sidewalk but flush against the sidewalk curb with the passenger side front wheel off the ground. The jack was leaning to one side, wedged in and stuck on the passenger side of the vehicle. The trial court granted summary judgment to GM and the jack manufacturer because decedent = s conduct constituted misuse as a matter of law. The vehicle and the jack contained specific warnings only to use the jack for changing tires, that the vehicle can slip off the jack and roll over persons under the vehicle, never to get under a vehicle when supported only by a jack or when changing the oil, and to park at a level surface. The Indiana Court of Appeals affirmed. It held that decedent = s conduct constituted misuse as a matter of law. It noted that the Indiana Code made misuse a defense to a product liability action if the misuse was not reasonably expected by the seller at the time of sale. The court interpreted the statute to mean that a reasonably expected use must mean the manufacturer = s reasonably expected permitted uses. If not, the moment a seller or manufacturer provided a specific warning against the particular use, it would have admitted to foreseeing use of the product in that proscribed manner. The court also concluded that misuse was not a complete defense but rather that misuse should be assessed in accordance with Indiana = s rules of comparative fault. However, the court concluded that no reasonable jury could find that the decedent was less than 50% at fault and therefore that the manufacturers were entitled to judgment as a mater of law. Plaintiff also argued that a design feature of the jack enhanced decedent = s injuries because if the jack reached its full extension, and an additional 70-foot pounds of torque were applied, the jack nut sheared off and rendered the jack inoperable. Plaintiff claimed that had the jack not malfunctioned in this fashion, decedent = s life might have been saved. However, the court concluded that even if this were true, it was immaterial because no reasonable trier of fact could find decedent less than 50% at fault in light of his particular misuse. Accordingly, the court upheld summary judgment in favor of defendants.

In Griffith v. Chrysler Corp. , 2003 WL 21500037 (Ohio App. 2003), plaintiff = s decedent fell asleep in his 1992 Plymouth Laser in his driveway in the middle of the night with the radio playing. Most likely, he pressed his foot down on the accelerator while he was passed out, causing the temperature in the exhaust system to rise. The high temperature in the exhaust system ignited various rubber combustibles, and the fire spread to the interior of the car through a hole in the floor pan on the rear passenger side. The jury returned a verdict for Chrysler and the Ohio Court of Appeals affirmed. Plaintiff argued that the trial court erroneously permitted Chrysler to raise an A unforeseeable misuse @ defense. Plaintiff argued on appeal that when the Ohio legislature passed a product liability statute it specifically preempted all common-law claims and common-law defenses within the purview of the product liability statute. The statute specifically abolished contributory negligence as a defense to product liability claims except in certain limited circumstances inapplicable to the case. The court of appeals agreed that contributory negligence was abolished as a defense. However, the court noted that the Act defines A a foreseeable risk @ as one that is A associated with an intended or reasonably foreseeable use. @ The statute requires the plaintiff to prove that the foreseeable risks associated the design exceeded the benefits associated with the design and that it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. The court concluded that, in order to rebut plaintiff = s claim that a product is defective in its design, a defendant would necessarily argue that the risks associated with the product were unforeseeable or that the consumer used the product in an unforeseeable manner. Inasmuch as the plaintiff must prove foreseeability as an element of its case, it is only logical that the defendant will prevail if it proves unforeseeablility. To prevent a defendant from doing so would preclude it from presenting a legitimate defense to the claim against it. In this case, defendant = s experts testified that a stationary car would have to run at the rev limiter for some extended period of time, in order to start a fire in this manner. The expert further testified that he could not conceive that someone would run a stationary car in that manner. This evidence was sufficient to permit the jury to be instructed on unforeseeable misuse. Accordingly, the Court of Appeals affirmed the judgment of the lower court.

C. Allocation of Fault.

In Alliedsignal, Inc. v. Moran , 2003 WL 22014805 (Tex. App. 2003), plaintiff = s decedent suffered fatal injuries when the 1997 Dodge Caravan in which he was driving was struck by another vehicle driven by a high school student. The impact caused the minivan to roll over. Plaintiff was ejected from the vehicle and suffered fatal injuries. Plaintiff contended that the seat belt was defective because it was susceptible to inadvertent release. Alliedsignal and Chrysler offered conflicting testimony as to which company was ultimately responsible for the design. The trial court charged the jury in terms of A the seat belt buckle @ rather than the individual defendants. The jury found the other driver one percent responsible and A the seat belt buckle @ 99 percent responsible. The Texas Court of Appeals reversed, noting that the Texas statute required the jury to determine the percentage of fault of A each defendant. @ Therefore, apportionment of responsibility in terms of the product rather than each defendant, was contrary to the statute and constituted reversible error. Plaintiff argued that the charge was not erroneous because, in a products liability case, the focus A is solely on the product. @ However, the court concluded that the focus A on the product @ is to establish a prima facie case for product liability, not allocation of fault. Accordingly, the Texas Court of Appeals remanded the case for a new trial.

IX. SANCTIONS.

A. Generally.

In Kennedy v. Ford Motor Co. , 2003 WL 22476273 (10 th Cir. 2003), plaintiff attempted to undo a prior settlement arising out of a product liability case against Ford. Plaintiff released the earlier claim in exchange for $270,000. Several years later, plaintiff learned of a memo of which, she claimed, induced one of Ford = s experts to alter his testimony about the subject vehicle model. Accordingly, she alleged that Ford illegally concealed evidence that contained perjured testimony of a crucial fact witness and brought a fraud claim against Ford. However, the district court, applying Oklahoma law, granted summary judgment to Ford, finding that the claim was encompassed in the release, which purported to release all claims now existing or hereafter accruing which arose out of the accident. Furthermore, the court noted that plaintiff already had suspicions that the witness had improperly changed his testimony at the time she signed the release. Therefore, she could not set aside the prior settlement. The Tenth Circuit affirmed on the same basis.

In Teaford v. Ford Motor Co. , 338 F.3d 1179 (10 th Cir. 2003), a dispute between co-counsel for plaintiffs resulted in a hearing in which one plaintiff = s lawyer falsely asserted that plaintiff staged the accident in order to avoid trial on criminal charges. However, the district court concluded there was no evidence to support the lawyer = s broad allegations and invited other parties and counsel to move for sanctions against her. The judge also indicated he would send copies of the transcript to disciplinary authorities in the states where the lawyer was licensed. The lawyer contended that the district judge should have provided the lawyer with notice and a hearing for imposing sanctions and referring her conduct to a disciplinary board. The court denied the motion on the grounds that the judge had not imposed Rule 11 sanctions and that no due process hearing was required. On appeal, the Tenth Circuit agreed that mere referral to the relevant bar authorities was not a Rule 11 sanction, even though Rule 11 permits the court to take such action for a violation of the rule. The letter simply stated that the judge was enclosing the transcript and submitted the matter for consideration and appropriate action. Although such a letter, unaccompanied by specific findings, may imply some level of judicial disapproval of the attorney = s conduct and may affect the attorney = s reputation, the judgment implicit in such a letter is below the level of censure or a specific finding of misconduct. Therefore, it is not an appealable sanction. The Tenth Circuit accordingly dismissed the appeal.

In Chewning v. Ford Motor Co. , 354 S.C. 72, 579 S.E.2d 605 (2003), the South Carolina Supreme Court held that it was error for a trial court to dismiss a lawsuit which alleged that Ford committed fraud on the court by allegedly suborning perjury by an expert witness it had retained. The court held that subornation of perjury by an attorney and or the intentional concealment of documents by an attorney constitutes extrinsic fraud which calls into question the integrity of the judicial process and erodes public confident in the fairness of the system of justice. In such circumstances, a litigant who has been defrauded need not establish prejudice. The court held that the allegations of fraud upon the court must be alleged with specificity but concluded that plaintiff = s amended complaint pled fraud upon the court with adequate specificity to survive the motion to dismiss. Accordingly, the Supreme Court remanded the case to the trial court for further proceedings.

B. Spoliation

In In re Bridgestone/Firestone Tire Products Liability Litigation , 287 F. Supp.2d 938 (S.D. Ind. 2003), Firestone argued that plaintiff = s failure to preserve the tire for inspection should result in dismissal or sanctions for spoliation. Plaintiff told her insurance company that she did not want to retain the salvage. None of the experts on whose opinions she relied to establish liability physically inspected the tire. She did have photographs of the tire taken after the accident. There was no evidence of bad faith but only the fact that disposal of the tire occurred soon after the accident. The court found that dismissal or preclusion of evidence was not warranted but reserved the question whether plaintiff could produce sufficient evidence to satisfy her burden of proof on causation.

In Andersen v. Mack Trucks, Inc. , 341 Ill. App.3d 212, 793 N.E.2d 962 (2003), decedent was killed in a work-related accident when a hydraulic hose in the hoist mechanism in the truck he was operating ruptured, causing the mechanism to fail and the load to lower onto him. Galbreath, manufacturer of the hoist mechanism, filed a third-party complaint against decedent = s employer for contribution arising from its alleged negligence in the repair and maintenance of the equipment and in the training of its employees. This claim was dismissed when the employer agreed to release its worker = s compensation lien in compliance with Illinois law. Galbreath then filed an amended complaint alleging negligent spoliation of the truck and related equipment. The employer notified Galbreath of the accident and requested a service representative to inspect the equipment. Galbraith = s engineering manager made a brief visual inspection of the equipment and shortly thereafter Galbreath sent a letter requesting that the employer turn over evidence relating to the accident, including the ruptured hose. Galbreath also asked that the hose be preserved if it could not be turned over. The letter was undated. Soon thereafter, the employer sold the equipment to a third party as part of its sale of the entire facility. The employer did not inform Galbreath of the sale of the equipment at the time the third-party complaint was filed and did not comply with discovery demands for the equipment. Galbreath ultimately located the truck, but the hoist and the hose were not recovered. OSHA wrote a report on the accident, suggesting that the employer had modified the truck, hoist and hose. Galbreath alleged that had the equipment been preserved, it would have established the lack of defect attributable to Galbreath and that it might have prevailed on one or more affirmative defenses, including modification and superseding cause. The trial court granted the employer = s motion to dismiss, finding that the complaint failed to allege a duty owed by the employer to Galbreath, the breach of such a duty and the proximate cause of damages to Galbreath.

The Illinois Court of Appeals upheld the dismissal of the complaint but reversed and remanded to give Galbreath an opportunity to amend. The court held that no general duty to preserve evidence exists, but that a duty can arise out of an agreement or contract, a statutory requirement, or other special circumstance, such as the assumption of the duty by affirmative conduct. Under such circumstances, a defendant owes a duty of care to preserve evidence if a reasonable person in the defendant = s position should have foreseen that the evidence was material to a potential civil action. Galbreath did not allege any contract or agreement, nor did it allege that the employer had any statutory or regulatory duty to preserve the evidence. Nor did it present evidence that the employer voluntarily undertook to preserve the evidence. The court declined to hold that a mere request that a party preserve evidence is sufficient to impose a duty absent some further special relationship. Furthermore, Galbreath had the opportunity to, and in fact did, inspect the equipment before it was lost. Galbreath failed to plead any facts that would indicate that the employer should have known, prior to selling the equipment, that further inspection or testing of the equipment would provide additional information material to a potential civil action. The court was therefore unwilling to say that the employer owed any duty to Galbreath and had no reason to assume that Galbreath was dissatisfied with the inspection that had been provided. Furthermore, the complaint failed to allege, except in conclusory fashion, that destruction of evidence caused plaintiff to be unable to defend the underlying lawsuit. It was not enough to show that a specific defense would be unavailable to it. Furthermore, the OSHA report did not support Galbreath = s claim. To the contrary, Galbreath was required to plead what evidence it could have obtained from the equipment that it could not obtain from the report. Notwithstanding these failings, the court commented that it was a close case. In light of the ambiguity in other Illinois decisions as to what constitutes a A special circumstance @ leading to a duty, the court determined that Galbreath should be permitted to amend. A concurring opinion proposed that Galbreath should only be required to plead and prove that the destruction of evidence significantly impaired its ability to advance a meritorious defense.

In Thornhill v. A.B. Volvo , 304 A.D.2d 651, 757 N.Y.S.2d 598 (2003), the New York Appellate Division affirmed dismissal of a product liability claim by reason of spoliation. Plaintiff alleged that her Volvo had a defective tie rod which caused her to lose control of the vehicle and strike a guard rail. Within a week of the accident, her son took photographs of the vehicle at the shop where it was towed after the accident and hired an expert to inspect the vehicle. The expert subsequently sent plaintiff a letter suggesting the accident was caused when the left side outer tie rod snapped and recommended that it should be removed from the car and checked for proper material strength. In deposition, plaintiff admitted that after she had consulted an attorney in connection with a possible product liability claim, she was contacted by her insurance company and told that the Volvo was in storage if she wanted it. However, she neither attempted to retrieve it nor asked the insurance company to continue to store it. After the action had been commenced, defendants sought to inspect it and plaintiff notified them that the vehicle had not been in her possession since the day of the accident. The court concluded that it was plaintiff = s responsibility to preserve the vehicle from spoliation. At the time it was lost, plaintiff was the only party with knowledge of potential litigation concerning an alleged defect in the vehicle and was sufficiently aware of the importance of having the vehicle inspected in connection with such a lawsuit to have hired her own expert. The expert had put her on notice that further analysis would be appropriate but she made no attempt to preserve even that one part of the vehicle. Access to the post-accident photographs and her expert = s report did not adequately substitute for defendant = s own expert = s inspection of the key piece of evidence in the case. Accordingly, dismissal was upheld.

In Courtney v. Big O Tires, Inc. , 2003 WL 22998805 (Idaho 2003), plaintiff sought damages as a result of a blowout of a tire on a Suburban while towing an 18-foot trailer. After the tire failed, it was taken to the dealer for warranty replacement. The dealer gave him a replacement tire and shipped the blown out tire to the dealer = s warehouse, where it was lost. Plaintiff brought suit against the dealer and the manufacturer. The trial court instructed the jury that "if you determine that the loss of the tire was deliberately or negligently brought about by the actions of [the dealer] you may infer that the tire was unfavorable to their position." Plaintiff contended that the dealer's state of mind should have no bearing on the sanction for the loss of the product. He also claimed that the presumption should apply to all defendants, not just the defendant who lost or destroyed the evidence. The Idaho Supreme Court rejected both contentions. The court also commented that a negligent loss of the product was insufficient to sustain the inference; the circumstances must show bad faith.

X. DISCOVERY

In Dwelly v. Yamaha Motor Corp., USA , 214 F.R.D. 537 (D. Minn. 2003), plaintiff was injured when she fell off the back of a Yamaha WaveRunner on which she was a passenger. She alleged she was injured by the force of the water stream which was generated by the water impulsion jet system. Plaintiffs noticed corporate depositions of defendants to be held in Minneapolis. With some intervention of the court, it was agreed that the witnesses designated would be deposed in California and that a third corporate representative would be deposed in Florida. One of the witnesses was designated to respond to questions about the design and testing of the water craft at issue. Plaintiffs contended that during the course of the deposition it became apparent that the witness was unable to testify on the designated topics because, although he had supervised the development of the initial jet propulsion system and was involved in the design of several models of water craft, he had left Yamaha Motor Company Ltd. in 1995 and had not been involved in the design of the specific product at issue. Plaintiffs contended that in light of his inability to testify competently on the topics listed in their deposition notice, they asked defendants to produce another corporate witness who had been identified in defendants = interrogatories and who resided in Japan. Defendants were unwilling to produce the witness in the United States. Defendants acknowledged that they must designate another corporate deponent, but claimed there was no cause to deviate from the general rule which would require the deposition to be taken in the location where the deponent lives and works (Japan) and at the plaintiff = s expense. The court denied plaintiff = s motion to compel production of the corporate witness in the United States. It noted that Rule 30(b)(6) creates reciprocal obligations, requiring the requesting party to reasonably particularize the subjects about which it wishes to inquire and the responding party to produce a deponent who has been suitably prepared to respond to questioning within the scope of inquiry. The responding party is required to make a conscientious good faith effort to designate knowledgeable persons and to prepare them to fully and unevasively answer questions about the designated subject matter. The court noted that the rule operates effectively only when the requesting party specifically designates the topics for deposition and when the responding party produces such number of persons as will satisfy the request and prepares them so that they may give complete, knowledgeable and binding answers on behalf of the corporation. If no person exists who is able to speak on a corporation = s behalf, on all of the topics noted in the deposition notice, the corporation cannot avoid the deposition by such a claim, but must prepare a deponent to testify as to those matters, as any other interpretation of the rule would allow the responding corporation to A sandbag @ the depositional process by conducting a half-hearted inquiry before the deposition, but a thorough and vigorous one before the trail. In this case, defendants did not claim that plaintiffs failed to reasonably particularize the subjects, but the court concluded that defendants complied with their obligation to produce in good faith a knowledgeable deponent, competently prepared to fully and responsibly address the questions posed by plaintiff. The court noted that defendants had forewarned plaintiff that the witness being produced in the United States might not be able to respond to all questions, and suggested that it might make sense to complete his deposition after which the parties would determine whether plaintiffs needed to depose witnesses from over seas. The court rejected plaintiff = s argument that defendants should have prepared this witness to testify as to all the noted topics. That burden of preparation A is not required by the Rule, when another deponent, who does not require such preparation, may be designated as a successive deponent. @ Accordingly, the court held that defendants should not bear any onus in disclosing the potential limitations of the witness = s knowledge and in agreeing to the conduct of a supplemental deposition, if necessary. Plaintiffs had ample time to register their objection before the deposition. The court concluded that plaintiff should bear the expense of any supplemental Rule 30(b)(6) deposition. The court also rejected plaintiff = s contention that the deponent should be produced in the United States. Plaintiff argued that the court should require the witness to come to the United States because the corporation which employed him conducts business in the United States and is subject to the court = s jurisdiction and has the advantage of being able to use the Federal Rules to conduct its own discovery in the case. Plaintiffs were also concerned because Japan is not a signatory to the Hague Evidence Convention, therefore the scope of inquiry might be narrower if the deposition occurred in Japan. The court rejected plaintiff = s arguments and held that the deposition of a supplemental Rule 30(b)(6) deponent should be taken in the location where the corporation, for whom the deponent testifies, is located. The court acknowledged that its ruling would have been different but for defendant = s waiver of any insistence on adherence to Japanese procedures if the deposition were taken in Japan. Plaintiffs were entitled to the full degree of discovery that is allowed under the Federal Rules, and plaintiffs could bring to the court = s attention any failure to provide proper discovery in the deposition.

In Anthony v. Abbott, 289 F. Supp.2d 667 (D.V.I. 2003), plaintiffs sought to compel production of the supply agreement between Mazda and Ford under which the subject 1995 B-3000 truck was marketed. Mazda filed an affidavit from its assistant corporate secretary as a supplemental discovery response which summarized the corporate relationship between Ford and Mazda concerning the vehicle. It also stated that the supply agreement contained A highly proprietary, confidential and trade secret information @ and the A wholesale release of such information could be used by Mazda = s competitors to undermine its marketing. The magistrate judge ordered the agreement to be produced, but the district judge disagreed. The court stated that the affidavit disclosed its existence and its relevant contents and that plaintiffs had failed to show how the actual contents of the agreement were relevant to any issues of the case.

XI. CONFLICTS OF LAW

In Johnson v. Ford Motor Co. , 2003 WL 22317425 (N.D. Ill. 2003), the court applied the A most significant relationship @ test from Restatement (Second), Conflict of Laws ' 145 to determine the choice of law as to four issues related to comparative fault and allocation of fault. The court held that Illinois law applied to all issues except for the effect of plaintiff = s failure to wear seat belts. The latter issue was governed by Kentucky law, where the conduct causing the injury occurred. The court noted that Kentucky has a strong interest in enforcing its seat belt laws and thereby promoting safety on its roads. Kentucky assessed comparative negligence to plaintiffs that failed to wear a seat belt during an accident, whereas Illinois precluded evidence of a plaintiff = s failure to wear a seat belt. As to the other issues, the court noted that the relationship was centered in Illinois, where the renter of the vehicle obtained the vehicle from Hertz and where the vehicle was placed into the stream of commerce. The vehicle was also owned and maintained by Hertz in Illinois. By contrast, Kentucky = s contacts were the fortuitous place of the accident and the state of manufacture of the allegedly defective tire stem. The court noted that plaintiffs could not reasonably expect that a foreign state = s law would govern the allocation of damages awarded in a single car incident merely because an accident fortuitously occurred outside of Illinois but they know they are subject to the traffic laws of another state when driving in that state. Laws that apportion fault most directly affect the state where the parties are domiciled.

In Mann v. Cooper Tire Co. , 306 A.D.2d 23, 761 N.Y.S.2d 635 (2003), plaintiff brought a product liability action in New York arising out a motor vehicle accident in Quebec allegedly caused by a defective tire. Defendants moved to dismiss on the basis that Quebec had enacted a no fault statute that prohibits actions to recover non-economic loss for injuries sustained in car accidents on its roadways no matter how serious the injury. However, the New York trial court denied defendant = s motion to dismiss and the Appellate Division affirmed. It held that because the allegedly defective tire was purchased in New York, the motor vehicle was registered in New York, and owned by a New York domiciliary who was a passenger, and was operated by a New York domiciliary with a New York driver = s license who was killed in the accident, New York law applied and therefore Quebec = s no-fault statute was inapplicable.

XII. PROCEDURE

In Ford Motor Co. v. Jones , 266 Va. 404, 587 S.E. 2d 579 (2003), the Virginia Supreme Court affirmed the trial court = s decision to permit a plaintiff = s request for nonsuit following a trial, appeal, and remand for retrial. The Virginia statute permitted a plaintiff to take a nonsuit if the case has not been submitted to the trier of fact for decision. Because the Supreme Court had reversed the prior decision, the prior verdict A had no legal efficacy @ and therefore did not preclude plaintiff from taking a nonsuit before the retrial of the case.

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