Randal R. Palmer v. Volkswagen of America, Inc. ( 2001 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2001-CT-00875-SCT
RANDAL R. PALMER AND LYNN I. PALMER
INDIVIDUALLY AND ON BEHALF OF ANNE
PALMER, A MINOR
v.
VOLKSWAGEN OF AMERICA, INC., VAN-TROW
VOLKSWAGEN, INC., VOLKSWAGEN A.G. a/k/a
VOLKSWAGENWERK AKTIENGESELLSCHAFT
AND VOLKSWAGEN DE MEXICO, S. A. DE C. V.
a/k/a VOLKSWAGEN OF MEXICO
ON MOTIONS FOR REHEARING
DATE OF JUDGMENT: 03/28/2001
TRIAL JUDGE: HON. W. SWAN YERGER
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: MICHAEL J. MALOUF, JR.
MICHAEL JAMES MALOUF
ATTORNEYS FOR APPELLEES: J. COLLINS WOHNER, JR.
ROBERT H. PEDERSEN
DAVID L. AYERS
JIMMY B. WILKINS
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS AFFIRMED IN PART AND
REVERSED IN PART AND THE
JUDGMENT OF THE CIRCUIT COURT OF
HINDS COUNTY IS AFFIRMED IN PART
AND REVERSED AND REMANDED IN
PART - 04/07/2005
MOTIONS FOR REHEARING FILED: 02/09/2005, 02/10/2005
MANDATE ISSUED:
EN BANC.
DICKINSON, JUSTICE, FOR THE COURT:
¶1. The motions for rehearing are denied. The original opinions are withdrawn, and
these opinions are substituted therefor.
¶2. Sixteen-year-old Anne Palmer left school in Madison, driving a 1995 Volkswagen
Jetta that her parents allowed her to use. She picked up her ten-year-old sister, Jennifer, and
went home. There, she called her mother and secured permission to drive the Jetta to a
nearby convenience store to buy a Coke.
¶3. After leaving the store, Anne traveled along U.S. Highway 51 in heavy, "stop and go"
rush hour traffic, behind an unmarked Ford Crown Victoria driven by Madison City Police
Officer Thomas Mikula. Jennifer was seated in the front passenger seat, and neither Anne
nor Jennifer wore a seat belt. A minivan in front of the Crown Victoria stopped suddenly,
and the Crown Victoria braked to avoid hitting the minivan. Anne applied her brakes, but
the Jetta struck the rear end of the Crown Victoria, which then hit the minivan. The Jetta's
driver-side and passenger-side air bags deployed, causing only minor injuries to Anne, but
inflicting severe injuries to Jennifer, eventually resulting in her death.
¶4. Jennifer's family filed suit against Volkswagen of America, Van-Trow Volkswagen,
Inc., Volkswagenwerk Aktiengesellschaft, and Volkswagen de Mexico, alleging claims for
negligence, breach of express and implied warranties, and violation of the Mississippi
Product Liability Act, Miss. Code Ann. § 11-1-63 (Rev. 2002).1
1
This included a claim for defective design, defective manufacture and inadequate
warning.
2
¶5. During the course of the trial, the court made several evidentiary rulings, over
plaintiffs’ objection, which are at issue in this appeal:2
1. The trial court erred in excluding a picture and caption from the
owner’s manual.
2. The trial court erred in excluding the National Transportation Safety
Board’s safety recommendations of November 2, 1995.
3. The trial court erred in allowing videos of litigation testing.
4. The trial court erred in refusing to allow certain expert testimony from
Dr. Michael Wogalter and Myra Kruckenburg.
5. The trial court erred in refusing to exclude certain expert testimony
from Greg Miller.
6. The trial court erred in allowing evidence of seat belt use by Anne
Palmer and the Palmer family.
7. The trial court erred in excluding SCI reports and evidence of properly
belted occupants injured by air bags.
¶6. The trial court directed a verdict for defendants on the plaintiffs’ claims of
negligence, breach of warranty, and defective manufacture, and submitted the case to the
jury on the issues of defective design and inadequate warnings. After deliberation, the jury
returned a verdict for the defendants on both claims, with a unanimous defense verdict on
defective design, and a vote of eleven to one, in favor of the defendants on the claim of
inadequate warnings.
2
We will not address the assignments of error rejected by the Court of Appeals, as none
were the subject of a petition for writ of certiorari.
3
¶7. The Palmers’ appeal was assigned to the Court of Appeals, which affirmed the
directed verdicts3 granted to the defendants, and affirmed some of the trial court’s
evidentiary rulings, but reversed others and remanded the case for a new trial. Palmer v.
Volkswagen of Am., Inc., 2003 WL 22006296 (Miss. Ct. App. 2003).
ANALYSIS
¶8. The precise question before us is whether one or more of the trial court’s evidentiary
rulings raised by plaintiffs on appeal were erroneous, requiring reversal of the jury verdict
for the defendants on one or both issues submitted to the jury. This requires that we now
examine each of those evidentiary rulings under the appropriate standard of review.
The picture and caption from the owner’s manual.
¶9. The trial court allowed the defendants to remove a picture found on one page of the
Owner’s Manual for the Jetta, which depicted a small child in a child seat, facing backward,
in the front passenger seat, and a caption under the picture.
3
The Court of Appeals affirmed both directed verdicts, neither of which are at issue
before this Court.
4
Your child may travel on the front passenger’s seat only if you
have a child restraint system which is specifically designed and
approved by the child restraint system manufacturer for use in
the front together with the restraint system installed at that
position.
¶10. Plaintiffs claim the picture was probative and admissible with respect to the
inadequate warnings claim submitted to the jury. We must address whether the picture was
admissible and, if so, whether the jury verdict might have been different, had it been allowed
into evidence. The Court of Appeals addressed the issue as follows:
The picture depicted a small child in a rearward facing child seat on the
front passenger seat. The caption stated, “Your child may travel on the front
passenger’s seat only if you have a child restraint system which is specifically
designed and approved by the child restraint system manufacturer for use in
the front together with the restraint system installed at that position.” The
picture and caption directly contradicted information located in the
“Supplemental Air Bag System” section of the manual, that stated,
“WARNING Never install rearward facing child seats or infant carriers on the
front passenger seat,” that doing so can cause serious injury to the child from
the inflating air bag, and to always install rearward facing child seats in the
rear seat.
The trial court granted Volkswagen’s motion in limine and excluded
the picture and caption. The [trial] court held that the picture of a small child
in a rear-facing child seat placed in the front passenger seat was not relevant.
Alternatively, the [trial]court held that the picture’s probative value was
5
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury.
Palmer, 2003 WL 22006296, at *2 (footnote omitted).
¶11. The Court of Appeals then analyzed the trial court’s two bases (relevance and
prejudice) for exclusion of the picture, recognizing the trial court’s reasoning that “material
depicting a small child in a rearward facing passenger [child’s] seat was not similar enough
to the instant case [involving a ten-year old child sitting forward on the Jetta’s seat] to be
relevant,” but nevertheless finding these dissimilarities were “insufficient to erode the
logical probative value of [the picture and caption].”
¶12. The Court of Appeals then provided a lengthy discussion of what might have
happened, had the plaintiffs read the Owner’s Manual. It then addressed its view of the
importance (or lack thereof) of the fact that the plaintiffs never read the Owner’s Manual.
Specifically, the Court of Appeals stated:
Further, the [trial] court could not exclude the material as irrelevant
based upon the Palmers’ admission that they did not rely upon any
information in the owner’s manual. This is because reliance on the
manufacturer’s warning is not an element of an inadequate warnings case.
Miss. Code Ann. §11-1-63 (Rev. 2002). The Palmers introduced evidence
that they would have noticed and heeded an alternative warning.
Palmer, 2003 WL 22006296, at *4 (footnote & citation omitted) (emphasis added).
¶13. Defendants take great issue with the Court of Appeals’ statement, “reliance on the
manufacturer’s warning is not an element of an inadequate warnings case,” characterizing
it as dramatic error, a “non-sequitur declaration,” and “an invitation for the pursuit of
6
hypothetical claims.” This holding, defendants forcefully argue, effectively removes the
“causal connection” requirement of Miss. Code Ann. § 11-1-63(c).4
¶14. It seems to us the Court of Appeals’ statement, and the defendants’ argument, are
both partially correct, that is, reliance on the manufacturer’s warning may, or may not, be
an element of an inadequate warnings case.
¶15. Complaints of inadequate warnings may charge that certain warnings which were not
given, should have been. In such cases, the Court of Appeals is certainly correct that
“reliance on the manufacturer’s warning is not an element of an inadequate warnings case.”
The absence or a warning is the gravamen of such claims, and a plaintiff can certainly not
be expected to show reliance on a warning which was not given.
¶16. However, plaintiffs also may, for a variety of reasons,5 complain that certain warnings
which were given, were defective. In such cases, a plaintiffs must have read and relied upon
the defective warnings to complain of them.
¶17. In the case before us, the defendants provided warnings regarding the air bags in two
places: on the sun visors and in the Owners’ Manual. The Court of Appeals found these
warnings to be confusing, misleading and thus defective. The picture, according to the
Court of Appeals, renders the Owner’s Manual even more confusing, misleading and
defective.
4
Miss. Code Ann. § 11-1-63(a)(iii), provides that, in order to recover, the plaintiff must
prove “[t]he defective and unreasonably dangerous condition of the product proximately caused
the damages for which recovery is sought.”
5
Typical complaints are that the warnings were confusing, misleading, or difficult to
follow.
7
¶18. Defendants, on the other hand, claim that the warnings in the Owner’s Manual and
on the sun visors were adequate and, even if they weren’t, the plaintiffs -- by their own
admission -- did not read or rely on them. This, according to defendants, amounts to an
absence of the proximate cause required by Miss. Code Ann. § 11-1-63(a)(iii).
¶19. Plaintiffs respond by agreeing that they must prove proximate cause, but refer to the
possibility pointed out by the Court of Appeals that “an inadequate warning may
proximately cause an injury precisely because the plaintiff failed to notice it.” Plaintiffs
further point out that the Court of Appeals “acknowledged that if the manufacturer’s
warning is not visible, then such is further evidence that said warning is inadequate.”
¶20. These arguments stray miles from the issue before the trial court when it refused to
admit the picture. The Court of Appeals’ statement that the Palmers “introduced evidence
that they would have noticed and heeded an alternative warning” completely ignores the fact
that the Palmers admitted that they didn’t read the manual. Having not read the manual, the
Palmers would not have “noticed and heeded an alternative warning,” an adequate warning,
the picture, or anything else in the manual.
¶21. The presence or absence of anything in an unread owner’s manual simply cannot
proximately cause a plaintiff’s damages.6 That is precisely the case here, with respect to the
picture. Plaintiffs make the following statement regarding the picture:
6
This, of course, does not eliminate the possibility that some other failing on the part of a
defendant may prevent or discourage a consumer from accessing the owner’s manual. In such
cases, it is the “other failing,” which would serve as the proximate cause. This is so, whether or
not the content of the manual is defective. We discuss this possibility, as it might apply to this
case, infra.
8
The exclusion of the pictorial and language was extremely prejudicial
to Plaintiffs’ warning case. The pictorial clearly shows that the air bag
“warnings” were inconsistent and very misleading. Plaintiffs’ expert, Dr.
Wogalter, proffered that the pictorial suggested to Plaintiffs’ [sic] and other
consumers that “it’s a-okay to put a rear-facing child seat here and no doubt
an older child as well.” A plain reading of the manual would lead any
reasonable person to believe that if an infant is safe in the front seat, then
certainly a ten (10) year old is safe in the front seat.
¶22. Plaintiffs, and Dr. Wogalter, may very well be correct. However, this case does not
involve plaintiffs who were misled by the manual. The plaintiffs in this case did not read
the manual at all. Thus, they hardly can claim to have been harmed or misled by it.
¶23. Although this Court has never addressed this precise issue, we are provided
instruction from other jurisdictions, which have.
¶24. In Graves v. Church & Dwight Co., 631 A.2d 1248, 1258 (N.J. Super. Ct. App. Div.
1993), the New Jersey court affirmed a judgment for the defendant manufacturer where,
even though it provided an inadequate warning, there was inadequate evidence that warning
had ever been read.
¶25. Similarly, in General Motors Corp. v. Saenz ex rel. Saenz, 873 S.W.2d 353, 361
(Tex. 1993), the Supreme Court of Texas reversed a jury verdict for the plaintiff, finding no
evidence that the inadequacies in the manufacturer’s warning caused the accident. The
evidence indicated that the driver ignored the warning plate attached to the doorjamb and
the warning contained in the owner’s manual.
¶26. Also, in Bushong v. Garman Co., 843 S.W.2d 807, 811 (Ark. 1992), the Arkansas
Supreme Court affirmed summary judgment for the defendant manufacturer. The court
found an absence of proximate cause based on the plaintiff’s testimony that he had not read
9
a label on a cleaner in “over three years,” and that any different or improved warning would
have been “futile” and would not have prevented the injuries which the plaintiff sustained.
¶27. In Gauthier v. McDonough Power Equip., Inc., 608 So. 2d 1086, 1088-89 (La. Ct.
App. 1992), the court affirmed a verdict for the manufacturer defendant because the father
of the 12-year-old injured child testified that he did not read the warnings contained in the
owner’s manual, and that he routinely failed to read warnings provided with products.
¶28. In Bloxom v. Bloxom, 512 So. 2d 839, 850-51 (La. 1987), the plaintiff had not read
the warning provided in the automobile operator’s manual before parking his car over
combustible materials. The court held that even an improved warning or set of instructions
would have been “futile” and would not have prevented the injury.
¶29. We do recognize that, in some inadequate warning cases, "the very nature of the
alleged breach is such that it causes a potential plaintiff to fail to read the warning which
causes his injury. . . . [In such a case], the warnings are potentially inadequate because they
are presented in a manner that prevents a customer from reading them and being warned."
E.R. Squibb & Sons, Inc. v. Cox, 477 So. 2d 963, 970 (Ala. 1985).
¶30. In the case before us, however, plaintiffs do not argue that it was improper for
defendants to place air bag warnings in the owner’s manual. They do, however, assert that
the warning on the sun visor was inadequate to direct the owner (and others) to the manual.
The Court of Appeals stated:
The Palmers contend that they did not notice the sun visor warnings because
they were defective, but would have noticed adequate sun visor warnings.
The sun visor warnings directed the reader to the owner’s manual. Had the
10
Palmers heeded the sun visor warnings, they would have read the manual and
encountered the potentially misleading picture and caption.
Palmer, 2003 WL 22006296, at n.2.
¶31. This is an argument best suited for the jury. Had the jury in this case found the
Jetta’s warnings, including those on the sun visors, to be defective for failure to properly
direct the plaintiffs to the owner’s manual for air bag warnings, the plaintiffs’ proximate
cause requirement would have been met – not by anything in the manual which might
constitute a defective warning – but by the failure to properly warn the Palmers that they
should refer to the manual.
¶32. The plaintiffs (and the Court of Appeals) overlook the critical reality that the
inadequate warnings claim (including their claim that the sun visor warning was inadequate)
was rejected by the jury. Since the Palmers were unable to convince the jury that the sun
visors’ warnings were defective, they cannot now credibly argue that, “[had they] heeded
the sun visor warnings, they would have read the manual and encountered the potentially
misleading picture and caption.” The fact is, they did not heed the sun visors’ admonition
to refer to the owner’s manual.
¶33. Here, the issue of the picture does not involve the absence of warning, or an invisible
warning, or an unnoticeable warning. Rather, the question is whether the picture was
admissible and, if so, whether jury’s verdict for the defendants on the issue of inadequate
warnings might have been different, had the trial court admitted the picture. Given that the
jury rejected the plaintiffs claim that the sun visor warning was defective, and that the
Palmers did not read the owner’s manual, we conclude that the trial court’s exclusion of a
11
picture and caption, located within the manual, was not an abuse of discretion. This picture
(never seen by any of the plaintiffs) which was contained in an owner’s manual (never read
by any of the plaintiffs) could not have proximately contributed to Jennifer’s death. Indeed,
nothing in the manual can be said to have contributed to the accident or to damages in this
case. Thus, the trial court’s exclusion of the picture and caption was not error.
National Transportation Safety Board’s Safety Recommendations of
November 2, 1995
¶34. On November 2, 1995, the National Transportation and Safety Board (NTSB)
informed automobile manufacturers by letter of seven accidents in which small children
were killed or seriously injured by air bags. The letter further stated that parents were not
being adequately warned of the danger posed by air bags to children. The letter
recommended that manufacturers provide a follow-up warning by mail.
¶35. Plaintiffs claim that the trial court erred in preventing the Palmers from using this
NTSB letter to cross-examine one of defendants’ witnesses, Richard Bandstra, and one of
defendants’ experts, Alan Dorris.
¶36. We have carefully reviewed the record and find no indication that plaintiffs attempted
to use the letter to cross-examine Bandstra. Although plaintiffs’ counsel does not direct us
to it, the record does reflect that counsel made a proffer of the letter through his expert, Dr.
Wogalter. He testified, however, that he had not reviewed the letter in connection with this
case.
¶37. With respect to Dorris, plaintiffs’ counsel asked whether he was familiar with the
letter. Counsel for defendants immediately objected, followed by an unrecorded bench
12
conference. Thereafter, the trial court sustained the relevance objection, and counsel for
plaintiffs moved on to other questions. Counsel for plaintiffs did not suggest or proffer the
purpose for which he wished to use the letter. Nor did counsel attempt to authenticate the
letter, or proffer any proof that the letter was even received by defendants. Thus, the letter
was properly excluded by the trial court.
¶38. Plaintiffs argue that the NTSB letter “detailed seven child fatalities that were
substantially similar to the subject accident.” Plaintiffs further claim that the letter states
“that consumers and parents were unaware that a danger existed.” We read the letter
differently.
¶39. First, four of the seven cases addressed by the letter are totally inapposite to the
case before us.7 The letter also addresses a 5-year-old child whose injuries resulted both
from the air bag and head contact with the roof of the vehicle. The only instances cited in
the letter which are at all similar to the case before us include a 6-year-old child and a 7-
year-old child.
¶40. Most of the letter addresses the dangers posed by using rear-facing child seats.
Furthermore, and most importantly, the letter states that in both cases which are similar to
this case, “[t]he safety board also believes that the non-use or improper use of the vehicle
lap/shoulder belts . . . resulted in the child being positioned too close to the air bag
compartment module on the dashboard, so that when the air bag deployed, the child’s head
and upper body were struck by the air bag at its peak deployment force.” The letter
7
These four cases involve a 3-month old child, a 20-day old child, a 5-month old child,
and a 6-month old child, none of whom were sitting in the passenger seat unassisted.
13
discusses in detail the considerable efforts made by the NHTSA to inform the public as to
the dangers posed by air bags to infants in rear-facing infant seats. The letter states that the
seven accidents described in the letter, however, “raise some concerns about the
effectiveness of the approach that NHTSA has taken.”
¶41. With respect to the dangers posed to small children, the letter recognizes that the
NHTSA has promoted air bags as supplemental restraint systems. However, the letter states
that “the Board is concerned that air bags may kill or severely injure small children under
certain circumstances...” The letter then states:
Therefore, the Safety Board believes that an immediate, highly visible
nationwide multi-media campaign should be conducted to advise current
owners of vehicles with passenger-side air bags, current owners of rear-facing
child safety seats, and the motoring public of the dangers of placing a rear-
facing child safety seat or an unrestrained or improperly restrained small
child in the front seat of an air bag-equipped vehicle.
(emphasis added).
¶42. Thus, the letter arguably had probative value as some evidence that the public needed
to be warned that small children (such as Jennifer) should not ride in the front passenger seat
without using the seat belt restraints. However, Jennifer’s father freely admitted that the
entire family, including Jennifer, knew they were supposed to use the seat belts.
Specifically, he testified
Q. Let me ask you what the family’s policy was about wearing seat belts.
A. We would always buckle up, and there were always – because that was
just a policy that we had that we all buckled up, and we always
buckled from my knowledge. They were always buckled, and the kids
were very good about buckling up.
14
Q. Let me ask you this. When you were in the car with all four family
members, you and Lynn and the two girls, what was your policy with
regard to it and what did you observe?
A. We would always buckle up, and a lot of times when we would get in
the car, my daughter Jenny would be the first one to say don’t forget
to buckle up.
¶43. This testimony by Jennifer’s father leaves little doubt that the warning envisioned by
the November 2 letter would serve only to admonish the Palmers to do that which they
already knew to do. Thus, its probative value is not such that it could rise above harmless
error. Additionally, while there certainly may be some value to evidence which shows lack
of public awareness, the potential for prejudice is certainly evident, and was weighed by the
trial judge who did not abuse his discretion.
Videos recreating the accident
¶44. The trial court allowed the defendants to show the jury three videos which depicted
several sled tests with dummy occupants. The purpose of the tests, according to defendants,
was to demonstrate “occupant kinematics,” or the movement of persons inside a vehicle
during a crash. Plaintiffs, on the other hand, argue that there are too many differences in the
staged demonstration and the real accident, rendering the videos prejudicial and misleading.
These matters are left to the sound discretion of the trial judge. We cannot say he abused
that discretion in allowing the videos.
Plaintiffs’ experts (Dr. Wogalter).
15
¶45. The trial court accepted (without objection) plaintiffs’ expert, Dr. Michael S.
Wogalter, as an expert in human factors and warnings.8 Dr. Wogalter testified that he
thought the warning labels in the Volkswagen were inadequate. Specifically, in response
to questions asked by plaintiffs’ counsel, he testified:
Q. I’ll ask you if you have had an opportunity to review the warning
labels that were in the 1995 Jetta that was the subject of this accident.
Have you done so?
A. Yes, I have.
Q. I think they have been actually introduced. The actual sun visor is in
evidence, and here is one that’s marked as Exhibit 7, which is the
actual sun visor, and ask if you can identify that or if you’ve seen that
previously, not the exact label – I mean the label and not the exact
visor in your hand.
A. Yes, I’ve seen this label.
Q. I’ll ask if at my request if you had an opportunity to review that label
and if you have an opinion as to whether or not it complies with the
requirements and mandates of Federal Motor Safety Standard Act 208?
A. I have reviewed it, and I do have an opinion about it.
Q. And what is that opinion, Dr. Wogater?
A. That it does not comply.
Q. With 208?
A. Yes.
8
Dr. Wogalter has a B.A. in psychology, an M.A. in experimental psychology and a
Ph.D. in human factors psychology. He is an associate professor of psychology at North
Caroline State University, and his area of expertise was warnings.
16
¶46. At that point, Dr. Wogater then proceeded to explain why, in his opinion, the sun
visor warnings were defective. However, when plaintiffs’ counsel announced that he was
going to ask “questions with regard to the warnings about the dangers of passenger air bags
to young children in the right front seat,” counsel for defendants objected, pointing out that
Dr. Wogater was not qualified to testify regarding the dangers presented by air bags to
young children. This was followed by a proffer, out of the presence of the jury, which
clearly demonstrated that Dr. Wogater had no expertise in the mechanics or dangers of air
bags in general, or the Jetta’s air bags, in specific. For instance, when asked whether the
dangers presented to a child by an air bag depended on how fast it deploys, Dr. Wogater
testified, “I would assume so, yes.” Then, when asked how fast the Jetta’s air bags
deployed, he testified, “I don’t know the miles per hour or the velocity.” He further testified
that he did not know the peak performance of the Jetta’s air bags. The trial judge observed:
He's read a few articles, but there's been no showing to the Court that he has
factual information or such knowledge for him to give an opinion as to what
specific types of warnings there need to be for this kind of air bag in this
automobile.
I mean I could come up with some warnings or anybody else could that we
think may be appropriate warnings, but unless we have some knowledge about
air bags and the dangers and have either done testing ourselves or have read
extensively in the field where tests were conducted and has some definite
knowledge as a recognized expert on this, then it's nothing more than a lay
person would have.
¶47. Then, based upon Dr. Wogater’s lack of knowledge or expertise in the dangers
presented by air bags, the trial court held that he could not testify regarding such dangers.
¶48. We recognize that, in many cases, experts must stray slightly, and briefly, from their
field of expertise to arrive at opinions and conclusions. However, the area found by the trial
17
court to be off limits involved an evaluation by Dr. Wogater of the extent of the danger
posed by the Jetta’s air bags, and then matching that danger with an appropriate warning.
This clearly was outside his expertise, and such opinions and testimony was properly
excluded. We do not find, however, that the trial court prevented Dr. Wogater from
testifying whether, in his opinion, the warnings on the sun visor were effective, likely to be
seen or likely to be heeded. He was allowed to testify that, in his opinion, the sun visor
warnings did not comply with federal law, and he was allowed to explain why he held that
opinion.
¶49. We cannot find that the trial court abused its discretion in refusing to allow Dr.
Wogater to testify about the dangers presented by air bags to children.
Plaintiffs’ experts (Myrna Kruckenburg).
¶50. During discovery, it appears9 that one or more of the defendants filed interrogatories
to the plaintiffs, seeking information concerning experts, as allowed by M.R.C.P. 26(b)(4).
Plaintiffs’ only response to this interrogatory stated, “Plaintiffs have not yet determined who
they may call as an expert at the trial of this matter, but will timely supplement this
response.” The record does not reflect that this supplemental interrogatory response was
ever filed.10
9
The record before us does not include the interrogatories or other discovery. We do
note, however, that certain discovery information is included as various exhibits to various
motions. We have no way to know if the discovery and responses provided to us is complete.
10
Unlike most other discovery documents, including responses to a scheduling order,
answers to interrogatories must be sworn. M.R.C.P. 33(b)(1).
18
¶51. We note that the trial court entered several scheduling orders which required the
parties to “designate their trial expert witnesses.” We further note that, at some point,
plaintiffs filed a document titled “Plaintiffs’ Designation of Expert Witnesses,” which
purports to “comply” with “Rule 26.” However, outside the requirement that parties
properly respond to interrogatories, we find no compliance requirement under Rule 26. We
find it more likely that the designation of experts filed by plaintiffs was in response to the
scheduling order.
¶52. In their designation of experts, plaintiffs named Myrna Kruckenburg as a fact and
expert witness to testify to “[t]he extent and nature of injuries sustained by Plaintiffs, Randal
Palmer, Lynn Palmer, and Ann Palmer, as well as the treatment rendered.” Plaintiffs further
stated that they had “not yet received Mr. and Mrs. Kruckenburgs’ [sic] curriculum vitae or
estimated cost for deposition or trial testimony, but will supplement as soon as said
documents are received.” Finally, plaintiffs stated whey were not in possession of any
reports by Mr. and Mrs. Kruckenburg. No other information was provided to defendants
prior to trial.
¶53. At trial, when plaintiffs attempted to call Kruckenburg, defendants objected, claiming
plaintiffs had not provided sufficient expert information pursuant to the requirements of the
Mississippi Rules of Civil Procedure. Plaintiffs responded that they had contacted counsel
for defendants prior to trial and offered to present Kruckenburg for deposition. The trial
court found the offer of a deposition to be inadequate and refused to allow any testimony
from Ms. Kruckenburg.
19
¶54. Only in cases of abuse of discretion will we reverse a trial court’s ruling on discovery
matters. Harkins v. Paschall, 348 So. 2d 1019, 1022 (Miss. 1977). The Court of Appeals
found that the trial judge abused his discretion in refusing to allow Ms. Kruckenburg to
testify, based upon inadequate discovery responses. Specifically, the Court of Appeals
stated: “Volkswagen had the burden to request further discovery or file a motion to compel,
but it failed to complain until the trial. Because Volkswagen did not meet its burden, the
trial court erred by excluding Kruckenburg’s testimony on this ground.”Palmer, 2003 WL
22006296, at *16 (citation omitted).
¶55. We cannot agree that parties who file appropriate interrogatories seeking expert
information acquire the additional burden of filing a motion to compel, where they are
provided an answer which promises supplementation. The trial court was well within its
discretion in disallowing the testimony of Ms. Kruckenburg, based upon the failure of
plaintiffs to provide expert information in response to either the interrogatory filed by
defendants and the trial court’s scheduling order.
Defendants’ expert, Greg Miller.
¶56. Defendants filed their designation of expert witnesses on June 30, 2000, which was
the deadline set by the trial court in its March 16, 2000, scheduling order. Greg Miller was
not included. However, when defendants filed their supplemental responses to
interrogatories on December 22, 2000, they stated:
All defendants supplement their prior responses to state that they may call as
a witness at trial Greg Miller, an engineer . . . . Defendants expect Mr. Miller
to testify, generally speaking, regarding the pertinent airbag technology
utilized in the subject vehicle, and compare it to other vehicles of the same
20
generation. Mr. Miller is also expected to testify regarding his analysis of
TRW’s11 validated data from the test lot that pertains to and includes the
passenger airbag inflator for the subject vehicle, and how it compares to
competitive vehicles, as well as how it compares to the tank test curve that is
being relied upon by Mr. Rudnitsky for his opinions that the subject airbag
was “aggressive.” The test lot data rebuts Mr. Rutnitsky’s opinions in this
regard. Specifically, Mr. Miller has obtained the ballistic tank test lot data
from TRW and scaled it for comparison to the inflator information in
Appendix A. . . , being relied upon by Mr. Rudnitsky. Based on this
comparison, the rise rate for the subject inflator is much closer to the average
for the 1995 model year than the comparison conducted by Mr. Rudnitsky.
By way of example, the rise rate, normalized for a 100 liter tank, is
approximately 9.2 kpa/ms. Mr. Miller is also expected to testify in general
rebuttal to the testimony of Mr. Rudnitsky regarding the so-called “dual
stage” inflators that Mr. Rudnitsky claims to have been analyzed while at
General Motors when he was developing the “F” car.
To the extent the above detailed information is considered to be expert
testimony, defendants hereby supplement their expert designation to list Mr.
Miller.
¶57. When plaintiffs objected to this expert designation, six months after the deadline, the
trial court found that Miller would be precluded from testifying as an expert. However,
defendants persuaded the trial court to allow “lay testimony” from Miller. The trial judge
stated that “[Mr. Miller’s going to] authenticate some engineering laboratory tests, or
whatever, some engineering tests. He’s going to testify as a fact witness.” The trial court
further stated that “the defendants are proceeding with only factual testimony from Mr.
Miller, and he will not be able to give opinion testimony. . . . Mr. Miller . . . cannot get into
opinion testimony, and specifically comparisons.”
11
TRW Vehicle Safety Systems, Inc., an independent company which manufactured the
air bag used in the Palmers’ Jetta.
21
¶58. Counsel for plaintiffs then requested a continuing objection to Miller’s entire
testimony, claiming that it would be expert testimony disguised as lay testimony. The trial
court overruled the continuing objection, and defendants called Miller to the witness stand.
¶59. During his testimony (which defendants characterize as simply factual), Miller
offered inter alia the following answers:
Q. What different temperatures to you utilize in conducting those tests?
A. Well, the procedure at the time was to conduct three ambient, which
is room temperature, and one hot deployment, which is 185 degrees
Fahrenheit.
Q. Why would you conduct a hot deployment?
A. In a worst case scenario if a car were to be sitting in Phoenix up in the
instrument panel and it were to be heat soaked and you were to drive
away and have a crash in a deployment, what happens with this
particular type of inflation, and for that matter just about any type of
inflation, is it becomes more energetic. The output can rise based on
the temperature, so one of the things that we want to check is to make
sure that the warmer temperature that the tank curve is still within its
corridor. If it’s too high, you can have trouble hanging on to the door
or you can overexpand the module, that sort of thing.
***
Q. Would you demonstrate that for us and give us the peak pressure and
rise rate based on Exhibit 46B.12
Q. All I want is your calculation based on your experience at TRW, the
calculation of the peak pressure and the rise rate on this particular one.
A. If I use this as a straight edge and line it up with the marks here,
looking for the approximate peak, I’m drawing a line here and saying
the maximum slope occurred someplace in this 10 millisecond window
12
At this point, counsel for plaintiffs lodged another objection to the expert testimony.
The trial judge overruled the objections, stating, “he hasn’t given any opinions yet.”
22
here. Now, what I would do is simply pick up where this point crosses
and find out where this crosses, come down here, and then you can
look at what the peak pressure is based on this chart, and if you do the
calculations, this is 300 kpa minus zero, and then this would be 54
milliseconds minus the 8 milliseconds here to find out what this
distance is, and if you plug that in your calculator – I happen to know
what the answer is – it is 6.5, and the units on that are kpa per
millisecond. The peak slope over here is between these two marks
which would be about 212.
¶60. Throughout his testimony, Miller was asked to make and explain highly technical
calculations, and then apply his results to industry standards and to explain why the testing
and calculations he approved were necessary.
¶61. The problem appears to be a misunderstanding of expert testimony. M.R.E. 702 does
not limit expert testimony to that which is expressed in the form of opinion. The rule states:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience training or education,
may testify thereto in the form of an opinion or otherwise.
Miss. R. Evid. 702 (emphasis added).
¶62. The testimony provided by Miller, a highly-skilled, specially educated engineer, very
definitely required scientific, technical knowledge beyond that of the randomly selected
adult. Such testimony therefore constituted expert testimony. Cotton v. State, 675 So. 2d
308, 311 (Miss. 1996), citing Sample v. State, 643 So. 2d 524, 530 (Miss. 1994); Miss.
State Hwy. Comm’n v. Gilich, 609 So. 2d 367, 377 (Miss. 1992) (lay opinions require no
specialized knowledge); Wells v. State, 604 So. 2d 271, 279 (Miss. 1992) (testimony
requiring particular knowledge to assist trier of fact is expert testimony).
23
¶63. In Cotton, the controversy involved a witness who explained to the jury the
mechanical features of a particular brand of gun. The witness stated that the gun would not
fire unless a specific sequence of events was followed. We found that, “[i]n order to assist
the jury, he was indeed required to reveal particular knowledge about the Llama .45 caliber
semi-automatic pistol. We find that the testimony . . . constituted expert opinion.” Id. at
311.
¶64. To be clear, the test for expert testimony is not whether it is fact or opinion. The test
is whether it requires “scientific, technical, or other specialized knowledge” beyond that of
the randomly selected adult.” If so, the testimony is expert in nature, and must be treated
in discovery, and at trial, as such.
¶65. This Court has held that it “will not reverse the admission or exclusion of evidence
unless the error adversely affects a substantial right of a party.” Crane Co. v. Kitzinger, 860
So. 2d 1196, 1199 (Miss. 2003) (citing Floyd v. City of Crystal Springs, 749 So. 2d 110,113
(Miss. 1999)). “[F]or a case to be reversed on the admission or exclusion of evidence, it
must result in prejudice and harm or adversely affect a substantial right of a party.” Id.
(citing Terrain Enter., Inc. v. Mockbee, 654 So. 2d 1122, 1131 (Miss. 1995)).
¶66. On this issue, we find the conclusion reached by the Court of Appeals was exactly
correct:
The trial court abused it discretion by allowing Miller’s testimony to stray into
the realm of scientific, technical and specialized knowledge that only could
be admitted as expert testimony after assessment pursuant to Rule 702.
Further, the Palmers were prejudiced by Miller’s impermissible expert
testimony because Miller’s testimony rebutted that of the Palmer’s expert,
24
Rudnitsky. Rudnitsky opined that the average air bag inflation rise rate was
6 kilopascals per millisecond, and that the Jetta inflator’s rise rate was 10.5
kilopascals per millisecond. He stated that this was 84% higher than the
average for 1995 cars. He also stated that the Jetta’s peak pressure was 26%
higher than average for 1995 cars. He concluded that the Jetta’s air bag was
overly aggressive. Miller calculated and charted the 1995 Jetta inflator’s peak
pressure and rise rate at three different temperatures. He averaged the three
peak pressures and arrived at an average rise rate of 6.7 kilopascals per
millisecond. He averaged the three rise rates and arrived at an average rise
rate of 211 kilopascals. Rudnitsky’s higher calculations were offered to show
that the Jetta’s air bag was aggressive, and Miller’s lower calculations of the
Jetta’s peak pressure and rise rate were offered to rebut Rudnitsky’s
conclusions. The trial court had already held that the Palmers were
unprepared for expert testimony by Miller.
Palmer, 2003 WL 22006296, at *19.
Seat belt use by Anne Palmer and the Palmer family.
¶67. Defendants introduced evidence tending to show that the Palmer family did not
regularly use their seat belts. The purpose of this evidence, according to defendants, was
the inference that, given all the warnings and admonitions concerning seat belt use, persons
who ignored such warnings would probably not heed air bag warnings. The Court of
Appeals found that Jennifer's seat belt use was admissible,13 but the rest of the family's was
not. The reason stated by the Court of Appeals for finding seat belt use by Anne Palmer and
the Palmer family inadmissible, was that such evidence could have been interpreted as
negligence, violating Miss. Code Ann. § 63-2-3, which provides:
This chapter shall not be construed to create a duty, standard of care, right or
liability between the operator and passenger of any passenger motor vehicle
which is not recognized under the laws of the State of Mississippi as such
13
The Court of Appeals held that, “if the jury accepted the argument that the air bag was a
supplemental restraint, it went to the crux of whether Jennifer used the air bag as it was
designed.” Palmer, 2003 WL 22006296, at *24.
25
laws exist on the date of passage of this chapter or as such laws may at any
time thereafter be constituted by statute or court decision. Failure to provide
and use a seat belt restraint device or system shall not be considered
contributory or comparative negligence, nor shall the violation be entered on
the driving record of any individual.
¶68. In Estate of Hunter v. General Motors Corp., 729 So. 2d 1264 (Miss. 1999), General
Motors persuaded the trial court to admit evidence of seat belt non-use. On appeal, we held:
This Court concludes that evidence of seat belt non-usage may constitute
relevant evidence in some (but by no means all or even most) cases, so long
as (1) the evidence has some probative value other than as evidence of
negligence; (2) this probative value is not substantially outweighed by its
prejudicial effect (See Miss. R. Evid. 403) and is not barred by some other
rule of evidence and (3) appropriate limiting instructions are given to the jury,
barring the consideration of seat belt non-usage as evidence of negligence.
Estate of Hunter, 729 So. 2d at 1268. Since no limiting instruction was given in Hunter,
this Court found reversible error. See also Herring v. Poirrier, 797 So. 2d 797 (Miss. 2000)
(use of seat belts admissible on the issue of injuries and their severity). See also Golonka
v. General Motors Corp., 65 P.3d 956 (Ariz. Ct. App. 2003); Graves v. Church & Dwight
Co., 631 A.2d 1248 (N.J. Super. Ct. App. Div. 1993) (plaintiff's smoking notwithstanding
cigarette warning labels was relevant evidence as to whether he would have followed
adequate warning on baking soda) (plaintiff's propensity for following other warnings in her
truck's owner's manual could cause jury to infer that she would have heeded better warning
about shifting defect);
¶69. Inadequate warnings cannot serve as the proximate cause of injuries where adequate
warnings would have resulted in the same injuries. Where a plaintiff claims inadequate
warnings, the defendant must be allowed to introduce evidence which would tend to
26
persuade a jury that, even if the warnings had been adequate, the plaintiff would not have
heeded them. Where, as here, evidence of non-use of seat belts is offered for that purpose,
and provided it passes all other tests of admissibility, it may be admitted. The trial court
should caution the jury and instruct it on the limited use of the evidence.
¶70. In this case, the trial court was correct to admit the evidence, but should have given
a cautionary instruction. On remand, however, the adequacy of warnings will not be an
issue, and the evidence of seat belt use by the Palmer family (other than Jennifer) will not
be relevant.
CONCLUSION
¶71. For these reasons, we affirm in part and reverse in part the judgments of the Court of
Appeals and the Circuit Court of the First Judicial District of Hinds County, and we remand
this case to the circuit court for a new trial consistent with this opinion limited to the
plaintiffs’ claim of defective design.
¶72. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART
AND REVERSED IN PART, AND THE JUDGMENT OF THE CIRCUIT COURT OF
HINDS COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED
IN PART.
SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND RANDOLPH JJ.,
CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., CONCURS
IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.
DIAZ, J., NOT PARTICIPATING.
EASLEY, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶73. I concur with the majority’s decision to affirm the jury verdict in favor of
Volkswagen on the issue of inadequate warnings. The Palmers admitted that they never
read the Volkswagen owner’s manual. Therefore, the argument that the picture and caption
27
contained in the owner’s manual was confusing, misleading and defective is not relevant or
applicable to the issue of inadequate warning. I support the trial court’s decision to exclude
the picture and caption as irrelevant, based on the admission that the Palmers did not rely
on or read the owner’s manual.
¶74. However, I must respectfully dissent from the majority’s decision to reverse the
verdict in favor of Volkswagen and remand for retrial based on the testimony of
Volkswagen’s witness, Greg Miller. According to the record, Miller was not properly
designated as an expert to the Plaintiffs by Volkswagen. The trial court allowed Miller to
testify as a fact witness providing only factual testimony. Miller was not allowed to provide
opinion testimony. The majority finds Miller’s testimony constituted expert testimony
pursuant to M.R.E. 702. In my opinion, the trial court properly limited Miller’s testimony
to prevent him from rendering an expert opinion. I disagree that Miller’s testimony, limited
to that of a factual witness, constituted expert testimony.
¶75. Therefore, I must respectfully concur in part and dissent in part, as I would affirm the
trial court’s decision in favor of Volkswagen in toto.
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