Jones v. Ford Motor Company

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-1342

MARGARET JONES,

Plaintiff - Appellant,

versus

FORD MOTOR COMPANY,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CA-03-319)

Argued: September 20, 2006 Decided: October 27, 2006

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished opinion. Judge Duncan wrote the opinion,
in which Judge King and Senior Judge Hamilton joined.

ARGUED: Thomas James Murray, MURRAY & MURRAY, Sandusky, Ohio, for
Appellant. Joseph Kelly Reid, III, MCGUIREWOODS, L.L.P., Richmond,
Virginia, for Appellee. ON BRIEF: Mary S. O’Neill, MURRAY &
MURRAY, Sandusky, Ohio; Robert T. Hall, Holly Parkhurst Essing,
HALL, SICKELS, FREI & KATTENBURG, P.C., Reston, Virginia, for
Appellant. Perry W. Miles, IV, MCGUIREWOODS, L.L.P., Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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DUNCAN, Circuit Judge:

In this diversity case, Margaret Jones ("Mrs. Jones" or

"Appellant") sued Ford Motor Company ("Ford" or "Appellee"), the

manufacturer of her 1991 Lincoln Town Car, claiming that the cruise

control system on her Town Car malfunctioned and caused a "sudden

acceleration event" that resulted in a single-vehicle accident and

Mrs. Jones's paralysis. After a jury verdict for Ford, the

district court denied Mrs. Jones's motion for a new trial pursuant

to Federal Rule of Civil Procedure 59. Mrs. Jones appeals,

asserting that the district court abused its discretion in two

respects: first, in admitting into evidence the 1989 Examination of

Sudden Acceleration prepared by the National Highway Traffic Safety

Administration ("NHTSA"); and second, in refusing to admit the so-

called Updegrove Study, a database of consumer complaints

catalogued and maintained by Ford. Finding no abuse of discretion

in either ruling, we affirm.

I.

This case comes before us after traveling a long and winding

procedural path. On the day of the accident, Mrs. Jones and her

husband stopped at an Amoco station to fill their Town Car with

gas. After Mr. Jones pumped the gas, he went inside the station to

pay, leaving Mrs. Jones in the parked Town Car. A gasoline tanker

truck pulled up to the front of the Jones' vehicle, and according

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to Mrs. Jones's testimony, the truck driver appeared anxious to

leave the station. Mrs. Jones decided to attempt to back her car

up to allow the tanker to pass. She testified that the car started

normally, but when she placed it into reverse gear, the engine

roared and the vehicle accelerated rearward. Mrs. Jones further

testified that as the vehicle took off, she had her foot on the

Town Car's brake pedal. The car, however, continued to travel

rearward across a highway and into a shopping mall parking lot,

where it struck a concrete light pole base. The force of impact

threw Mrs. Jones backwards, causing her injuries.

In a lawsuit filed on October 25, 1999 in the Circuit Court of

Fairfax County, Virginia, Appellant alleged that a transient

electrical signal caused her car's cruise control system to

accelerate suddenly and uncontrollably, notwithstanding her

applying pressure to the brake pedal, and yet left no physical

trace of an electronic or electrical malfunction discernible in an

examination of the vehicle after the accident. Appellant presented

expert testimony to support this theory. The jury in the state

court action returned a verdict for Ford, and Mrs. Jones appealed

to the Supreme Court of Virginia. See Jones v. Ford Motor Co., 559

S.E.2d 592 (Va. 2002). Finding that the trial court erred in

excluding testimony of four witnesses who had experienced sudden

acceleration incidents similar to that alleged by Appellant, the

Supreme Court of Virginia remanded for a new trial. Id. at 263–64.

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On remand, Mrs. Jones took a nonsuit and refiled her case in

federal court.

Once in federal court, the district court initially granted

both Mrs. Jones's motion in limine to exclude the NHTSA report from

evidence and Ford's motion in limine to exclude the Updegrove

Study. See Jones v. Ford Motor Co., 320 F. Supp. 2d 440, 443 (E.D.

Va. 2004). Later, despite stated misgivings regarding the

reliability of the NHTSA report, the district court sua sponte

modified its earlier order and deemed the NHTSA report admissible

at trial, reasoning that the jury ought to be permitted to weigh

the NHTSA report's conclusions for itself. Jones v. Ford Motor

Co., No. 1:03-CV-319, 2004 WL 3209523, at *1 (E.D. Va. Oct. 18,

2004) (citing Jarvis v. Ford Motor Co., 283 F.3d 33, 53 (2d Cir.

2002), in which the NHTSA report was admissible). The evidence

presented at the district court trial was consistent with the

evidence in the state court action, including Mrs. Jones's expert's

testimony on her theory of sudden acceleration. On November 30,

2004, the jury returned a verdict for Ford. Mrs. Jones then moved

for a new trial, arguing that the trial court erred in admitting

the NHTSA report while excluding the Updegrove Study, which motion

was denied. See Jones v. Ford Motor Co., No. 1:03-CV-319 (E.D. Va.

Feb. 24, 2005). Mrs. Jones timely appeals.

In ruling on the admissibility or exclusion of evidence, the

district court has broad latitude. See Bryte ex rel. Bryte v. Am.

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Household, Inc., 429 F.3d 469, 475 (4th Cir. 2005). As such, we

accord the district court's evidentiary rulings substantial

deference and may not reverse absent an abuse of discretion. See

United States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994). A

district court abuses its discretion if it acts arbitrarily or

irrationally, see id., or if its conclusions are guided by

"erroneous legal principles" or rest upon "clearly erroneous

factual finding[s]." See Westberry v. Gislaved Gummi AB, 178 F.3d

257, 261 (4th Cir. 1999). Guided by these standards, we will

consider each of the district court's evidentiary rulings in turn.

II.

We first consider Mrs. Jones's assertion that the district

court abused its discretion in admitting the NHTSA report.

Appellant contends in her brief that the report is not relevant and

that, although within the public documents exception to the hearsay

rule in Federal Rule of Evidence 803(8), it is unreliable and thus

should be excluded. Ford responds that the NHTSA report is

relevant and that it is a sufficiently reliable government report

and therefore admissible under Federal Rule of Evidence 803(8)(C)

and this court's decision in Ellis v. Int'l Playtex, Inc., 745 F.2d

292 (4th Cir. 1984).

At oral argument, Appellant's counsel expressly abandoned Mrs.

Jones's assignment of error with respect to the NHTSA report. We

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nevertheless address the issue on its merits and conclude, as

Appellant's counsel apparently now concedes, that the NHTSA report

is relevant and is sufficiently reliable such that its admission by

the district court was not an abuse of discretion.

A.

Appellant's initial argument that the NHTSA report is not

relevant is without merit. "'Relevant evidence' means evidence

having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence." Fed. R.

Evid. 401. Relevance is typically a low bar to the admissibility

of evidence, even though other Federal Rules of Evidence may

otherwise limit such admissibility. See, e.g., Fed. R. Evid. 403

(excluding relevant evidence that is unfairly prejudicial); Fed. R.

Evid. 404 (excluding relevant evidence of character for the purpose

of showing conduct in conformity therewith). The NHTSA report

easily clears the relevance threshold.

The NHTSA report was commissioned in response to increasing

numbers of complaints of sudden acceleration in the 1980s. Nat'l.

Highway Traffic Safety Admin., An Examination of Sudden

Acceleration 1 (1989). The Transportation Systems Center ("TSC")

engineers who conducted the two-year investigation concluded that

claims of sudden acceleration were not caused by cruise control

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defects. Rather, the only plausible explanation for sudden

acceleration incidents when there was no residual physical effect

of vehicle malfunction was that these events were caused by the

operators' mistaken pedal applications. Id. at x. That is,

drivers accidentally pressed the gas pedal rather than the brake.

Ford used the NHTSA report at trial for several purposes.

First, Ford utilized the report to rebut Appellant's expert's

theory of how the accident occurred. The independent panel of

engineers appointed by the federal government concluded that, in

cases like Mrs. Jones's where there is no physical evidence of a

vehicle malfunction found after the accident, the cause of the

incident is most likely pedal error. Additionally, Appellee's

experts testified that the NHTSA report was one factor supporting

their conclusions that Mrs. Jones's accident was not caused by a

defect in her cruise control system. For these purposes, the NHTSA

report meets the relevancy standard of Federal Rule of Evidence

401, as it tends to make a consequential fact--Mrs. Jones's car's

sudden acceleration being caused by vehicle defect in the absence

of any physical evidence of such--less probable than without the

report.

Appellant in her brief points out that TSC conducted only

limited testing of Ford vehicles and that most of its testing

occurred on Audi models. She argues that, for this reason, the

report is not relevant. Appellant's Br. at 34–35. Appellant's

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arguments, though, go to the weight to be accorded the NHTSA report

and not to its admissibility. See Ellis, 745 F.2d at 303–04

("Playtex's concern about the methodology of the [government]

studies should have been addressed to the relative weight accorded

the evidence and not its admissibility.") Of course, it is

exclusively the function of the jury to weigh the evidence. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Mattison

v. Dallas Carrier Corp., 947 F.2d 95, 108 (4th Cir. 1991). To that

end, Mrs. Jones's expert was indeed permitted to testify that TSC

engineers only studied one Ford vehicle and to explain his views

that the methodology employed by the TSC panel was flawed and the

conclusions of the NHTSA report not supportable by the data. We

therefore conclude on these facts that the district court did not

abuse its discretion in admitting the NHTSA report and allowing the

jury to determine the weight to assign it.

B.

We turn now to Appellant's argument that even though the NHTSA

report fits within the hearsay exception for public documents, it

is not sufficiently reliable and therefore should be excluded.

Federal Rule of Evidence 803(8) states that public records and

reports are not excluded by the hearsay rule. Such admissible

public reports include "[r]ecords, reports, statements or data

compilations, in any form, of public offices or agencies, setting

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forth ... factual findings resulting from an investigation made

pursuant to authority granted by law, unless the sources of

information or other circumstances indicate lack of

trustworthiness." Fed. R. Evid. 803(8). The NHTSA report fits

snugly within this exception, and Appellant concedes as much.

However, Appellant argues in her brief to this court that the

NHTSA report is not sufficiently trustworthy. Although, as noted

above, this contention was abandoned at oral argument, we address

its merits and determine that the NHTSA report is sufficiently

reliable and that its admission was not an abuse of discretion.

Our analysis is guided by this court's decision in Ellis, in

which a widower claimed his wife died as a result of Toxic Shock

Syndrome ("TSS") caused by using Playtex tampons. See Ellis, 745

F.2d at 299–305. The district court excluded two studies authored

by the Centers of Disease Control ("CDC") and one supervised by

three state health departments that tended to show a causal

relationship between tampon use and TSS. See id. We found such

exclusion improper and ruled the three public reports should have

been admitted under Rule 803(8)(C) over a trustworthiness objection

from the opponent and that concerns about the studies' methodology

should go to the weight of the evidence and not their

admissibility. Id. at 300–03.

Rule 803(8)(C) is premised on "the assumption that a public

official will perform his duty properly." Id. at 300 (quoting Fed.

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R. Evid. 803(8) advisory committee's note). We presume the

admissibility of public reports "because of the reliability of the

public agencies usually conducting the investigation and 'their

lack of any motive for conducting the studies other than to inform

the public fairly and adequately.'" Id. (citing Kehm v. Proctor &

Gamble Mfg. Co., 724 F.2d 613, 619 (8th Cir. 1983)). But when the

opponent of such evidence proves that "sufficient negative factors

are present" to bring into doubt the report's trustworthiness, it

should not be admitted. Id. at 300-01 (quoting Fed. R. Evid.

803(8) advisory committee's note). "[F]actors that may be used to

determine admissibility include: (1) the timeliness of the

investigation; (2) the special skill or experience of the official;

and (3) possible motivation problems." Id.

Reviewing the record before us in light of Ellis leads us to

conclude that the district court did not abuse its discretion in

admitting the NHTSA report under the public documents exception.

Mrs. Jones has not presented sufficient evidence to carry her

burden of rebutting the presumption of admissibility of this public

report; indeed, most of her concerns regarding the NHTSA report go

to its weight and not its admissibility,1 and Mrs. Jones was

1
Appellant argues that the NHTSA report is unreliable because
Ford allegedly concealed certain evidence requested by NHTSA about
Ford's experience with acceleration-related design issues. In
their briefs, Mrs. Jones and Ford offer contrary accounts of the
effect of the testimony of Mr. Edward Richardson, the engineer in
Ford's Automotive Safety Office responsible for communication with
NHTSA during the sudden acceleration investigation. However, while

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permitted to present evidence tending to impeach the methodology of

the NHTSA report's authors and therefore tending to show that the

report's conclusions were insufficiently supported.

III.

Mrs. Jones next contends that the district court abused its

discretion in excluding from evidence the results of the Updegrove

Study, a collection of nearly 2,900 unsworn consumer complaints of

vehicle malfunctions received by Appellee, involving a variety of

vehicle models, model years, cruise control systems, and other

conditions. Mrs. Jones intended to use the Updegrove Study to

establish both causation and notice to Ford of a defect that would

cause sudden acceleration, but she also claims that the Updegrove

Study should have at least been admitted to rebut the conclusions

and to impeach the credibility of the NHTSA report. Ford responds

that the district court correctly found the Updegrove Study not

relevant on the ground that the incidents described therein were

not substantially similar to her accident and alternatively, that

the report should be excluded under Federal Rule of Evidence 403.2

the allegations that Ford withheld requested information from NHTSA
are troubling, even if true they do not render the entire NHTSA
report, with its independent and industry-wide investigation,
untrustworthy such that its admission was an abuse of the district
court's discretion.
2
Federal Rule of Evidence 403 states: "Although relevant,
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the

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We agree with Ford that the district court did not abuse its

discretion in either of these alternative findings.

A.

We first examine Appellant's argument that the events

chronicled in the Updegrove Study meet the requirements of

substantial similarity for other incidents offered to show notice

to a defendant. Under Virginia product liability law, evidence of

other allegedly similar incidents is inadmissible to prove product

defect or to "corroborate a plaintiff's version of how an accident

occurred." See Jones v. Ford Motor Co., 559 S.E.2d 592, 602 (Va.

2002). Rather, this evidence is admissible for the limited purpose

of proving notice or actual knowledge of an alleged defect. Id. at

601; see also Blevins v. New Holland N. Am., Inc., 128 F. Supp. 2d

952, 960-61 (W.D. Va. 2001).

Furthermore, evidence of other accidents can be highly

prejudicial. Therefore, the proponent of other similar incident

evidence must establish as a threshold matter that such events

issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence."
Our determination that the district court did not abuse its
discretion in excluding the Updegrove Study because the events
described therein could not be proven to be substantially similar
to Mrs. Jones's accident is sufficient to affirm the district
court's ruling on the Updegrove Study. However, we note here that
we also find no abuse of discretion in the district court's
alternative holding excluding the Updegrove Study on Rule 403
grounds.

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occurred under substantially similar circumstances as the

plaintiff's incident. See Renfro Hosiery Mills Co. v. Nat'l Cash

Register Co., 552 F.2d 1061, 1068-69 (4th Cir. 1977); Buckman v.

Bombardier Corp., 893 F. Supp. 547, 552 (E.D.N.C. 1995).

Following the rules described above, the Supreme Court of

Virginia upheld the exclusion of the Updegrove Study from evidence,

see Jones, 559 S.E.2d at 602, and in the present action, the

district court granted Ford's motion in limine to exclude the

study. Jones v. Ford Motor Co., 320 F. Supp. 2d 440, 443 (E.D. Va.

2004). Both courts pointed to the absence of evidence that the

claims mentioned in the Updegrove Study occurred under

substantially the same circumstances as Mrs. Jones's accident.

Alternatively, the district court found that the Updegrove Study

was inadmissible under Federal Rule of Evidence 403, because it had

the potential to confuse the jury. Id. at 450.

Notably, the district court denied Ford's motion in limine to

exclude all evidence of other accidents, incidents, complaints, and

lawsuits. Id. at 447-49. To the contrary, Mrs. Jones was

permitted to present evidence of four other sudden acceleration

incidents where she established that the other accidents proffered

involved substantially similar circumstances and alleged defects as

Mrs. Jones's accident. Thus for four incidents chronicled in the

Updegrove Study, Appellant was allowed to present evidence,

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including live testimony, concerning alleged sudden acceleration

events.

Appellant nevertheless asserts that all of the events listed

in the Updegrove Study are similar enough to her accident to meet

the substantial similarity requirement for admissibility to show

notice and that therefore, the study should be admissible in its

entirety. To support this argument, Mrs. Jones points to this

court's decision in Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378

(4th Cir. 1995). The plaintiff in that case suffered from liver

damage allegedly resulting from combining alcohol with

acetaminophen; this court held that the district court's admission

of case reports known as Drug Experience Reports ("DERs") regarding

complaints to the defendant about the effects of combining alcohol

and acetaminophen was not an abuse of discretion. Id. at 1385-86.

We noted in Benedi that the DERs chronicled claims that were

sufficiently similar to Benedi's (the same resulting liver damage

from the same cause, combining alcohol and acetaminophen), even

though in some cases the subject's alcohol history and

acetaminophen dosage were unknown. Additionally, in response to

the defendant's argument that the Ellis court had found consumer

complaints inadmissible, we clarified that our holding in Ellis was

"merely ... that the lower court did not abuse its discretion in

excluding prior consumer complaints under Rule 403." Id. at 1385

(emphasis added). In Ellis and Benedi, although the district

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courts reached different conclusions about the admissibility of the

consumer complaints at issue, we affirmed in both instances their

broad discretion in making the evidentiary rulings.

As Mrs. Jones acknowledges, every court to consider the

admissibility of the Updegrove Study with regard to her accident

has excluded it. The Supreme Court of Virginia upheld the state

trial court's exclusion of the Updegrove Study, because Mrs. Jones

could not prove substantial similarity between her accident and the

nearly 3,000 incidents catalogued in Ford's record. See Jones v.

Ford Motor Co., 559 S.E.2d 592, 602 (Va. 2002). Indeed, the

incidents chronicled in the Updegrove Study involve various Ford

model vehicles from several model years, including many with

entirely different cruise control systems from the one in Mrs.

Jones's Town Car and allegedly malfunctioning under widely variant

circumstances.

The district court below also considered the issue of

similarity between events described in the Updegrove Study and Mrs.

Jones's accident. It excluded the study as well. Jones v. Ford

Motor Co., 320 F. Supp. 2d 440, 443 (E.D. Va. 2004). Instead of

wholesale admission of the Updegrove Study on the issue of Ford's

notice, the district court permitted Mrs. Jones to present evidence

of specific events, including four listed in the Updegrove Study,

for which the court was satisfied Mrs. Jones had demonstrated

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substantial similarity with her own accident. We cannot say that

this was an abuse of discretion.

B.

Appellant argues, additionally, that the Updegrove Study

should not be examined as a collection of other similar incidents

whose admissibility depends upon substantial similarity (or whose

purpose at trial must be limited to establishing notice and actual

knowledge) but rather as an "epidemiological stud[y] or other

survey database." Appellant's Reply Br. at 1-9. As support for

this proposition, Appellant claims that the Updegrove Study is

similar to the CDC and state health department studies that this

court declared admissible in Ellis. See Ellis, 745 F.2d at 299-

305. However, Ellis does not support Mrs. Jones's argument.

As noted above, the CDC and state health department reports in

Ellis were both admissible under the public reports exception to

the hearsay rule embodied in Federal Rule of Evidence 803(8)(C).

Id. However, in Ellis we also affirmed the district court's

exclusion of consumer complaint reports received by Playtex on Rule

403 grounds. Id. at 305. The Updegrove Study, in contrast to the

government studies admissible in Ellis and the NHTSA study admitted

by the district court here, is a private company's unreviewed

investigation of consumer complaints logged into a spreadsheet and

collated. As such, it is far more akin to the consumer complaint

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reports the exclusion of which the Ellis court upheld. Therefore,

the district court did not abuse its discretion in refusing to

admit the Updegrove Study in its entirety without any showing that

the events described therein were substantially similar to Mrs.

Jones's accident.3

IV.

In conclusion, we hold that the district court did not abuse

its discretion either in admitting the NHTSA report into evidence

or in excluding the Updegrove Study. Therefore, we affirm the

judgment of the district court.

AFFIRMED

3
When asked at oral argument whether he knew of any case in
which a district court's exclusion of a database of consumer
complaints where no showing of substantial similarity with respect
to each event therein could be shown was overturned, Appellant's
counsel answered in the negative.

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