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Mazda Motor Corporation v. Hurst

Supreme Court of Alabama

July 7, 2017

Mazda Motor Corporation
Jon Hurst and Barbara Hurst, as parents of Natalie J. Hurst, deceased, and Sydney McLemore

         Appeal from Jefferson Circuit Court, Bessemer Division (CV-12-900498)


         Mazda Motor Corporation ("Mazda") appeals from a judgment entered against it on two jury verdicts resulting from two complaints asserting product-liability claims filed in the Jefferson Circuit Court. The claims stem from a single-car accident that occurred on November 22, 2010, involving a 2008 Mazda3 automobile driven by Sydney McLemore ("Sydney") in which Natalie Hurst ("Natalie") was a passenger. We affirm in part, reverse in part, and remand.

         I. Facts

         On the night of November 21, 2010, 15-year-old Natalie was spending the night with Sydney at the McLemore residence. At approximately 3:00 a.m. on November 22, 16-year-old Sydney was driving the vehicle; Natalie was in the front passenger seat. The vehicle was traveling on Ross Bridge Parkway heading south in the 4900 block when Sydney lost control of it. The applicable speed limit was 35 m.p.h.; it was estimated at trial that the vehicle was traveling at a speed of 55 to 60 m.p.h. when Sydney lost control. Initially, the vehicle hit a curb and Sydney "overcorrected, " causing the vehicle to begin spinning. The vehicle hit a light pole on the driver's side of the vehicle at a speed of 30 to 35 m.p.h. It spun around the pole before coming to a stop and bursting into flames.

         At trial, the plaintiffs' medical expert testified that both Sydney and Natalie survived the impact with non-life-threatening injuries. Sydney managed to get out of the vehicle, but not before suffering third-degree burns to her back, trunk, neck, right arm, and hand, covering approximately 15 percent of her body's surface. Natalie did not escape the vehicle and died from burn injuries.

         On August 2, 2012, John Hurst and Barbara Hurst ("the Hursts"), Natalie's parents, filed an action in the Jefferson Circuit Court against Mazda and Sydney. The complaint asserted wrongful-death claims against Mazda based on the Alabama Extended Manufacturer's Liability Doctrine ("the AEMLD") and on the alleged negligence and wantonness of Mazda and a wrongful-death claim against Sydney based on her alleged negligence. With regard to Mazda, the Hursts alleged that the 2008 Mazda3 was not crashworthy because its fuel system was defectively designed.[1] Specifically, they alleged that Mazda erred by designing the 2008 Mazda3 so that a plastic fuel tank was positioned one-half inch from a steel muffler that had sharp protruding edges. The complaint alleged that, when the vehicle hit the pole, the muffler smashed into the fuel tank and the muffler's sharp edge cut the fuel tank, causing the fuel tank to fail and allowing gasoline vapors to escape and to ignite, which caused the post-collision fuel-fed fire.

         In November 2012, Sydney, through her father Richard McLemore, and Richard McLemore individually (collectively "the McLemores"), filed a cross-claim against Mazda in which they also alleged AEMLD, negligence, and wantonness claims. The McLemores' complaint alleged the same design defect as did the Hursts' complaint. The McLemores sought only damages for Sydney's fire-related injuries.

         Before trial, the Hursts settled their negligence claim against Sydney with the McLemores' insurance company for $100, 000 and dismissed their negligence claim against her. The Hursts also dismissed their negligence and wantonness claims against Mazda, leaving to be tried only their AEMLD wrongful-death claim against Mazda. The McLemores dismissed their negligence claim against Mazda, but they maintained their wantonness and AEMLD claims against Mazda.

         The trial lasted 11 days. The Hursts and the McLemores (hereinafter referred to collectively as "the plaintiffs") presented testimony from 15 witnesses that included, among others, a medical expert, an accident-reconstruction expert, a fire-causation expert, and a causation-and-design-defect expert. A proper understanding of Mazda's arguments in this appeal and of some of the responses presented by the plaintiffs necessitates that we describe in detail some of the trial testimony and evidence.

         At the time the Mazda3 model at issue was designed and manufactured, Ford Motor Company ("Ford") owned approximately one-third of Mazda. The Mazda3 was jointly designed by Ford and Mazda. The Ford Focus automobile and the Mazda3 were built on the same platform but were sold under different brand and model names. It is undisputed that Mazda designed the fuel system of the Mazda3. The muffler in the subject Mazda3 model was made of steel, was rectangular, and was surrounded by a sharp edge called a flange. The muffler was placed next to a high-density polyurethane ("HDPE") fuel tank; the two components were within one-half inch of each other. A thin aluminum heat shield ran the length of the exhaust system between the muffler and the fuel tank. The heat shield was designed to protect the fuel tank from the heat generated by the exhaust.

         The plaintiffs introduced evidence of a survey of 80 automobiles similar in size and model year to the subject Mazda3, revealing that all but three had designs in which the mufflers were located behind the rear axle and the fuel tanks were located in front of it, i.e., the rear suspension was between the two components and they were not adjacent to one another.[2] The plaintiffs introduced a picture from the service manual of a Mazda3 model that depicted the muffler located behind the rear axle, close to the rear tip of the exhaust pipe. The plaintiffs also introduced evidence indicating that a version of the Mazda3 produced only for California during the relevant period had a rounded muffler with no sharp edge. The Ford Focus designed and manufactured during the relevant period also had a muffler with a smooth, rounded surface area.

         Mazda countered by introducing evidence indicating that in the same period during which the subject Mazda3 was designed and manufactured, four other automobile models had a design in which a flanged muffler was placed next to a fuel tank: the 1997 Volkswagen Jetta, the 2000 BMW 323, the 2008 BMW 328, and the 2008 BMW 528.[3]

         Michael Schulz, the plaintiffs' "fire-cause-and-origin" expert, testified as follows:

"So my opinion is that the origin of this fire is at the inboard side of the muffler where it impacted and intruded to the left side or the driver's side of the plastic fuel tank.
"I cannot tell you from the fire patterns whether it is that seam or flange that sticks out, which is very sharp -- if you run your hand on it, it is very sharp, and you would slice open your finger -- or whether it is the connection where the inlet pipe comes into the muffler, because they are both within the area of the fire patterns. It is one or the other or a combination of the two. I cannot make the distinction for you."

         Schulz further testified that pinpointing whether the cause of the fire was the connection from the inlet pipe or the flange on the muffler was difficult because the fuel tank had disintegrated in the fire. He noted, however, that following the accident the muffler was positioned where the fuel tank had been located.

         Mazda's "fire expert" testified that he believed the fire originated from the fuel lines. Schulz expressly rejected such a possibility, stating that "all of these fire patterns come from the area occupied by the fuel tank and not the area occupied by the fuel lines." More specifically, Schulz stated that the fire patterns

"come out of this fuel tank on the side here. It did not come out in the front here, where these fuel line connections are. It is along the side. And the only plausible mechanism that we see there are the sharp edges on that fuel tank seam and the flange of that fuel tank."[4]

         In this appeal, Mazda does not challenge Schulz's testimony.

         Jerry Wallingford testified as a "design-defect-and-causation" expert on behalf of the plaintiffs. At the time of trial, Wallingford was a senior forensic engineer with Verifact Corporation. Wallingford testified that he is trained in mechanical engineering, failure analysis, and fire-safety analysis and that he has over 40 years' experience in the automotive industry. Wallingford has worked for Ford, Clark Equipment Company, and EG & G Automotive Research, Inc., the last of which has one of the world's largest automotive-test facilities. At Ford, Wallingford was a developmental engineer in the durability-test department performing vehicle tests intended to reveal potential design failures. He is a member of the Society of Automotive Engineers ("SAE"), and he serves on the SAE's Fire Safety Committee and the Crash Data and Analysis Committee. Wallingford has written and published several peer-reviewed articles about automotive design and testing, including one paper specifically concerning fuel spills in post-collision fuel-fed fires. Wallingford has investigated between 100 and 150 post-collision vehicular fires that involved some aspect of the fuel system.

         Wallingford testified that he reached his conclusions based on his examination of the vehicle involved in this case and on a scan and measurement of an exemplar Mazda3. He also reviewed photographs of the subject Mazda3 at the scene of the accident. He further considered testimony from those on the scene, the opinions of the plaintiffs' accident reconstructionist Ron Kirk and fire-cause-and-origin expert Schulz. Wallingford also testified that, using his knowledge and experience, he employed principles from "failure analysis" and "hierarchy of design." At trial, Wallingford explained "failure analysis" as follows:

"Failure analysis kind of flops over on accident reconstruction because I kind of have to do two of them. During an accident, there's always three phases that we need to look at.
"We need to know what happened during the event itself, but equally as important, what was going on before the event occurred, the accident, the impact, and then what happened immediately afterwards, how did the vehicle move and so forth.
"And failure analysis is looking at various components that most often we think of as breaking or failing and ascertaining through a system of utilizing a scientific method whether that component failed before the event, during the event, or after the event. And the after the event, most often we think about when debris was picked up, did somebody pull on stuff the wrong way and break it.
"So in failure analysis, we really hone in on the physical evidence, and we try to establish the probabilities of the types of failure. And then after going through a hypothesis that we test, we establish what most probably occurred during the event."

         Wallingford also explained what "hierarchy of design" entails. He testified that it is a process for designing a product that is initially taught in "college level courses of engineering." He explained that "hierarchy of design" involves a four-step process of eliminating a problem in the design of a product. The first step is to "design the problem away." If that cannot be done, the next step is to "guard the problem away on the piece of equipment." The third step is to "warn the user of the hazards." If none of those steps adequately addresses the safety concern, the final step is not to release the product. Wallingford specifically testified that "hierarchy of design" is something automobile manufacturers employ in evaluating "fuel system integrity or crashworthiness."[5]

         Applying the foregoing information and tools, Wallingford testified that during the crash the muffler moved "a foot and a half" inward toward the fuel tank and that the sharp edge of the muffler "cut" the fuel tank, allowing gas vapors to escape the tank, and that those vapors ignited to cause the fire.

         On cross-examination, Mazda's counsel asked Wallingford if he had performed any tests using an exemplar muffler and fuel tank to verify his theory. Wallingford admitted he had not performed such tests, and he offered two reasons for not doing so. First, he stated:

"No, sir, it wasn't necessary. Utilizing the principles, the scientific method and realizing the number of cases I have performed testing in the past, I proved the hypothesis by a deductive process. There's no question when I move a fuel tank, excuse me, when I move a sharp object, in this case the muffler, a foot to a foot and a half into the space of a liquid container that can easily be cut, there was a failure."

         Second, Wallingford explained:

"We're not talking about a situation in which we simply push [the muffler] in [the fuel tank]. We have a situation where the muffler cut ... as it moved in and rotated rearward. Without knowing the exact angles that it rotated ..., we cannot accurately replicate this accident event.
"Q. Could you have rotated this muffler edge against the fuel tank, designed such a test so that the jury could see whether or not it is susceptible to cutting, as you say it is?
"A. No sir. I could do a test, but it would not replicate the movement that actually occurred in this event, because I cannot tell you exactly how the muffler moved. All I can tell you is it rotated in and back, creating a cutting surface.
"Q. All right.
"[A.] You can generate a test to do almost anything, but the problem is, it needs to represent something relatively close to the events that occurred in the subject accident."

         Wallingford also testified that the fuel and exhaust system in the subject Mazda3 was defectively designed. In reaching that conclusion, Wallingford relied primarily on some Ford documents written by Michael Harrigan, a senior fuel-systems specialist for Ford.[6] The documents were intended for use in educating Ford fuel-system engineers. Wallingford testified that "the purpose of the documents was to educate [fuel-system engineers] on ... safe fuel systems" and that the documents "contain information relative to the industry standards used for fuel system design in the late '90's and early 2000's." He also stated that the documents "generally" evidence what he understood "to be universally accepted standards in the auto industry." Wallingford added that the documents were "a guideline to be utilized throughout Ford Motor Company, all the vehicular lines, for the purpose of making a better, more effective, safer fuel system." More generally, "[t]hese were meant to make Ford vehicles and Ford-related at that point in time, Mazda vehicles, safer." He admitted, however, that the documents were "generated within Ford Motor Company" and that they were not distributed to the auto industry as a whole. Still, Wallingford emphasized that, "although they are specific to Ford Motor Company, " based on his knowledge and experience, the Ford documents "generally embody what would be considered the standard for designing fuel systems and their components within the industry."

         The Ford documents stated in a section titled "Clearance and Friendly Surfaces" that "[a]ny component that impinge[s] should have smooth, rounded surfaces next to the [fuel] tank." Second, the documents stated that engineers should "[e]nsure that trim edges and flanges do not project in the direction of the fuel system components, both before and after crash tests." Third, they stated that any "[s]hields should be steel and have a material hardness which exceeds that of adjacent components." Wallingford specifically testified that the heat shield between the muffler and the fuel tank was not harder than the muffler and that it could not have prevented the muffler from impinging on the fuel tank. More generally, the Ford documents stated: "Fuel system crash integrity also provides occupant protection by preventing fuel-fed post-crash fires. Fuel system integrity is easiest to achieve if there is little or no deformation of the fuel system components during the crash event."

         Wallingford testified that the exhaust and fuel system in the subject Mazda3 violated the guidelines in the Ford documents. He explained that it violated the guidelines by placing a heavy steel muffler with a sharp edge within one-half inch of the fuel tank, by pointing the sharp edges of the muffler in the direction of the fuel tank, and by lacking a steel shield to protect the plastic fuel tank from the steel muffler in the event of a crash.

         Tom Patterson, a design expert presented by Mazda, admitted that the Ford documents contained "guidelines" that had "been around since at least the '70s." Patterson also conceded that the design of the muffler and its placement in the subject Mazda3 violated the guidelines in the Ford documents, but he also said that those guidelines were pre-collision goals and that those goals could not be attained in an accident as severe as the one that occurred in this case. Patterson testified that it is the practice throughout the automotive industry to put the muffler behind the rear axle and the fuel tank in front of the rear axle, but he explained that the reason for this was not fuel-system integrity but, rather, a concern about noise for front-seat passengers. He stated:

"The gas tank is almost always in front of the rear axle, and it's been the practice in the industry for a variety of reasons. Number one, as far as the muffler is concerned, noise abatement to, of course, put it in the rear -- at the rear of the axle because you want it as close as possible to the end of the exhaust pipe, end of the exhaust system. And that's so that it can attenuate the noise that develops throughout that exhaust pipe all the way from the engine back to the rear.
"So you want it in the furthermost position rearward to successfully attenuate all those undesirable vibrations and noise that you get in the exhaust system. So, yeah, it's always put back there when you can.
"Q. ... It is the practice in the industry, in the automotive industry, to place the muffler aft of the rear axle and the tank in front of the rear axle, isn't it?
"A. By virtue of the fact that aft of the rear axle gets that muffler closest to the end of the exhaust system, that's true."

         Wallingford suggested that the California Mazda3 design was a function of the unique emissions standards applicable in California, stating: "California has different emissions requirements than the rest of the world, different NORD requirements, so very often California emission carburetion exhaust system has what we call a different calibration. It requires different components."

         At the close of the plaintiffs' case-in-chief and at the close of all the evidence, Mazda moved for a judgment as a matter of law as to all of the plaintiffs' claims, but the trial court denied Mazda's motions. Before deliberations, Mazda requested that the trial court instruct the jury on contributory negligence and/or product misuse as a defense to the McLemores' AEMLD claim. The trial court refused the requested instructions.

         The jury deliberated for three days before rendering a verdict in favor of the Hursts and Sydney. The jury awarded the Hursts wrongful-death damages in the amount of $3.9 million (subtracting from a $4 million award the $100, 000 received from the settlement with Sydney); the jury awarded Sydney $3 million in compensatory damages and $3 million in punitive damages.[7]

         After the trial, Mazda filed postjudgment motions, including a motion for remittitur of the damages awards. Following a hearing, the trial court denied Mazda's post-judgment motions. Mazda appealed.

         II. Analysis

         A. The Admission of Jerry Wallingford's Testimony

         Mazda first contends that the trial court erred in refusing to exclude the testimony of Wallingford, the plaintiffs' design-defect-and-causation expert, because, it says, his testimony should have been considered "scientific testimony" under Rule 702(b), Ala. R. Evid., and his testimony did not meet the requirements of that rule.

         "'[A]n expert witness' competence to testify is an inquiry substantially within the discretion of the trial judge. [An appellate court] will not disturb the trial judge's finding of expert qualifications vel non, unless there is a clear abuse of this discretion.'" Slay v. Keller Indus., Inc., 823 So.2d 623, 625 (Ala. 2001) (quoting Cobb v. State, 50 Ala.App. 707, 710, 282 So.2d 327, 329 (1973)).

         1. Timeliness of Mazda's Objection

         Before we address the substance of Mazda's contention, we note that the Hursts and Sydney argue that Mazda did not preserve this issue for appeal. It is undisputed that before trial Mazda filed a motion in limine titled "Motion to Preclude Testimony of Jerry Wallingford" in which Mazda contended that Wallingford's testimony was due to be excluded because, it said, his testimony did not meet the requirements of Rule 702(b).[8] In its "Preliminary Rulings on All Pending Motions" issued before trial, the trial court denied Mazda's motion to exclude Wallingford's testimony, stating that "[t]he Court finds that the Daubert[9] provisions of Rule 702(b) are inapplicable as Wallingford's opinions and testimony do not involve scientific evidence."

         The Hursts and Sydney note that

"'[a]n appellant who suffers an adverse ruling on a motion to exclude evidence, made in limine, preserves this adverse ruling for post-judgment and appellate review only if he objects to the introduction of the proffered evidence and assigns specific grounds therefor at the time of the trial, unless he has obtained the express acquiescence of the trial court that subsequent objection to evidence when it is proffered at trial and assignment of grounds therefor are not necessary.'"

Baldwin Cty. Elec. Membership Corp. v. City of Fairhope, 999 So.2d 448, 454 (Ala. 2008) (quoting Owens-Corning Fiberglass Corp. v. James, 646 So.2d 669, 699 (Ala. 1994), citing Liberty Nat'l Life Ins. Co. v. Beasley, 466 So.2d 935 (Ala. 1985)). Mazda did not obtain express acquiescence from the trial court that it need not renew its objection to Wallingford's testimony at trial.

         Wallingford presented his testimony on October 3, 2014, the fifth day of trial. During his testimony, Mazda objected to the use of the Ford documents, an objection the trial court overruled, but Mazda did not specifically object to Wallingford's testimony about the cause of the fire on the ground that it constituted "scientific evidence" under Rule 702(b). Following Wallingford's testimony, the plaintiffs introduced one witness's videotaped deposition, which concluded that day's testimony. At the beginning of the next trial day, Monday, October 6, 2014, Mazda filed a renewed motion to strike Wallingford's testimony. The parties waited to argue that motion until the close of the plaintiffs' case.

         At the close of the plaintiffs' case, Mazda filed a motion for a judgment as a matter of law in which it also challenged Wallingford's testimony as failing to meet the requirements of Rule 702(b). The trial court then heard arguments from the parties on Mazda's renewed motion to exclude Wallingford's testimony. During this exchange, the plaintiffs argued that Mazda's objection was not timely. The trial court expressly concluded that "[Mazda] made a timely objection. [It] didn't want [Wallingford] to get up there and testify at all." The trial court then reviewed its notes about Wallingford's testimony, and it concluded that Wallingford "didn't testify to any type of scientific principles. He just made his observations based upon his forty years of experience and his knowledge of the automotive industry and his observations of data that he had been given by others." Accordingly, the trial court denied the motion and stated: "Again, it is on the record now, both of you. Let's go on to something else that you all might be able to change my mind on."

         At the close of all the evidence, Mazda filed a "Renewed Motion for a Judgment as a Matter of Law" in which it again challenged Wallingford's testimony. The trial court denied the motion. Following the jury verdict, Mazda filed its postjudgment motion, in which it yet again challenged Wallingford's testimony. In its order denying Mazda postjudgment motion, the trial court did not rule that Mazda had failed to preserve its objection to Wallingford's testimony. Instead, it concluded that Wallingford's testimony met the requirements of both Rule 702(a) and 702(b) and that, therefore, the court did not err in admitting his testimony.

         Based on the foregoing, we conclude that Mazda preserved its objection to Wallingford's testimony. "'The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury.'" Ex parte Parks, 923 So.2d 330, 333 (Ala. 2005) (quoting Ex parte Works, 640 So.2d 1056, 1058 (Ala. 1994)). In this case, the trial court clearly was on notice of Mazda's specific objection to Wallingford's testimony, and it expressly concluded that Mazda had provided a timely objection to that testimony. We agree.

         2. Substance of Mazda's Objection to Wallingford's Testimony

         Turning then to the substance of Mazda's objection, Rule 702, Ala. R. Evid., [10] provides:

"(a) 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.
"(b) In addition to the requirements in section (a), expert testimony based on a scientific theory, principle, methodology, or procedure is admissible only if:
"(1) The testimony is based on sufficient facts or data;
"(2) The testimony is the product of reliable principles and methods; and
"(3) The witness has applied the principles and methods reliably to the facts of the case."

         Mazda does not dispute that Wallingford is a qualified expert. It contends only that Wallingford's testimony does not meet the more stringent requirements of Rule 702(b). Significantly, Mazda does not argue that Wallingford's testimony should have been subject to the requirements of Rule 702(b) because it was "expert testimony based on a scientific theory, principle, methodology, or procedure." Instead, it contends that Rule 702(b) should apply because "Mr. Wallingford repeatedly represented his own opinion to be 'scientific.'" In other words, according to Mazda, whether Wallingford's testimony actually was scientific in nature is irrelevant; all that matters is that Wallingford purportedly portrayed his opinion to be scientific in nature, and the trial court therefore should have subjected it to the requirements of Rule 702(b).

         Mazda argues that Rule 702(b) must apply because otherwise an expert could "claim[] the mantle of science, "

"even though he hasn't satisfied the heightened Rule 702(b) requirements applicable to 'scientific' evidence. The party proffering the expert's opinion -- here, the plaintiffs -- would get the 'bump' that accompanies purportedly 'scientific' testimony without having to prove its reliability, and the objecting party -- here, Mazda -- would suffer unfair prejudice."

         Some authorities support Mazda's position. An article discussing the amendment to Rule 702 that added part (b) to that rule states:

"As amended, Rule 702 requires courts to make two separate but related determinations regarding scientific evidence. First, pursuant to the first sentence in Rule 702(b), the trial court must determine whether proffered expert testimony purports to be scientific. [See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), (observing that the Federal Rules of Evidence place limits on the admissibility of 'purportedly scientific evidence.' (emphasis added).) Cf. Swanstrom v. Teledyne Cont'l Motors, Inc., 43 So.3d 564, 580 (Ala. 2009) ('[A] person who offers an opinion as a scientific expert must prove that he relied on scientific principles, methods, or procedures that have gained general acceptance in the field in which the expert is testifying.' (quoting Slay v. Keller Indus., Inc., 823 So.2d 623, 626 (Ala. 2001)) [emphasis added]).] If so, a Daubert admissibility ...

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