Funkhouser v. Ford Motor Company

PRESENT: All the Justices

STEVEN K. FUNKHOUSER,
ADMINISTRATOR OF THE ESTATE OF
EMILY N. FUNKHOUSER, DECEASED
OPINION BY
v. Record No. 111207 JUSTICE CLEO E. POWELL
January 10, 2013 1
FORD MOTOR COMPANY, ET AL.

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge

Steven K. Funkhouser (“Funkhouser”) brought a products

liability action against Ford Motor Company and Obaugh Ford,

Inc. (collectively "Ford") after his daughter, Emily, died from

severe burns she suffered as a result of a fire in her family’s

Ford Windstar van. In this appeal, we consider whether the

circuit court erred in excluding evidence of seven other Ford

Windstar fires and in ruling that Funkhouser’s expert witnesses

could not rely on the excluded evidence. For the reasons that

follow, we affirm the circuit court’s rulings.

I. Facts and Proceedings Below

On May 4, 2006, Emily and Evan Funkhouser, three-year-old

twins, were playing in their parents’ 2001 Ford Windstar. The

engine was off and the keys were not in the ignition. At some

point, a fire erupted in the passenger compartment of the van.

1
The prior opinion rendered June 7, 2012, reported at 284
Va. 214, 726 S.E.2d 302 (2012), was withdrawn by the Court after
a petition for rehearing was granted by an Order dated September
17, 2012.
Emily suffered significant third-degree burns and, as a result,

died later that afternoon.

In August 2007, Funkhouser, as administrator of Emily’s

estate, filed a wrongful death action against Ford alleging “a

design defect in a particular electrical connector behind the

dashboard of the Ford Windstar van that caused it to ignite.”

After Ford was granted a motion in limine to exclude evidence of

other Windstar fires, Funkhouser took a voluntary nonsuit.

In January 2010, Funkhouser again filed a wrongful death

action against Ford, alleging negligence and breach of implied

warranty. Funkhouser’s action was based on the theory that Ford

failed to adequately warn consumers about the fire hazards

existing in Windstar vans when they are parked with the engine

off and no key in the ignition.

A. Cause and Origin of the Funkhouser Fire

According to Funkhouser’s designated expert, Michael J.

Schulz (“Schulz”), the origin of the fire in Funkhouser’s

vehicle “was located within the vehicle’s instrument panel area

with the key in an off position” and “[a]lthough there are

multiple options within the instrument panel and surrounding

area that could explain the electrical fire, the most likely

origin point of the fire was in the lower portion of the panel

in the vicinity of the wiring harness, cigarette lighter and the

2
controls for the heating and AC system.” Schulz went on to

explain that the fire was caused

by heat energy generated by abnormal and
undesired electrical activity within the lower
portion of the center instrument panel in the
vicinity of the wiring harness, cigarette lighter
and the controls for the vehicle's heating and
air conditioning system. Further, the source of
ignition was likely electrical activity emanating
from one of the wires or connector in this
vicinity.

Relying on documents produced by Ford during the pendency

of Funkhouser’s first action, 2 Schulz opined that

Ford possessed information that should have
placed a reasonably prudent final-end
manufacturer on notice that Ford’s Windstar
minivans manufactured between 1999 and 2003 were
or were likely to be dangerous for the use for
which they were sold because Ford knew or should
have known that the electrical components in the
instrument panel area of these vans had the
potential to fail and result in a fire with the
key in an “off” position.

B. Evidence of Other Windstar Van Fires

As evidence that Ford knew or had reason to know that there

was a danger of key-off dashboard electrical fires in its

Windstar vans, Funkhouser sought to introduce evidence of other

Ford Windstar fires that occurred prior to the Funkhouser fire.

Relying on the reports produced by Ford, Funkhouser identified

seven other Windstar fires that he asserted put Ford on notice

2
The parties agreed that all of the pleadings and
submissions from the first action would become part of the
record in the subsequent action.

3
of the danger of key-off dashboard electrical fires in its

Windstar vans.

1. Mulkey Fire

In 2003, a 1999 Ford Windstar LX caught fire while the van

was parked and not in operation. An investigation determined

that the fire “began at the interior driver and center dash

area” and “was caused by a failure of the wiring harness

conductors and/or adjacent components located at the interior

center and driver side dash area.” However, “[t]he exact

mechanism of failure [was] unknown,” due to the “heavy

degradation of the components and wiring conductors at the

interior dash area.”

2. Tirone Fire

In 2004, a 2003 Ford Windstar SEL caught fire when the van

was parked and not in operation. An investigation determined

that the fire began in the “dashboard area from the center

section over to the left side” and was “accidental electrical in

nature” as indicated by the “heavily shorted and beaded” wiring

harness in the dashboard. The investigator noted that the

vehicle had experienced problems with its electrical system

prior to the fire.

3. Arencibia Fire

In 2004, a 1999 Ford Windstar LX caught fire while it was

parked in a dealership service department repair shop and not in

4
operation. There was no investigation into the cause or origin

of the fire, only reports that it originated underneath the

dashboard.

4. Bryan Fire

In 2002, a 1999 Ford Windstar caught fire while parked in a

parking lot. According to the owner, the vehicle “blew up . . .

due to an electrical concern.” However, the cause and origin of

the fire was undetermined, as there was no investigation into

the matter. Ford did note that the owner or his girlfriend

indicated that fire may have been caused by arson.

5. Carf Fire

In 2000, a 1999 Ford Windstar LX caught fire while parked

in the owner’s garage and not in operation. An investigation

determined that the fire originated “in the area of the

dashboard” and was “caused by an electrical malfunction within

the dashboard.” However, “[d]ue to the complete destruction of

the interior of the . . . vehicle by the fire, a more complete

precise cause could not be isolated.” The investigator further

noted that electrical problems preceding the fire indicated “a

serious electrical malfunction which was causing a large current

drain.”

6. Pell Fire

In 2003, a 2002 Ford Windstar LX caught fire while the van

was parked and not in operation. A fire department report

5
states that the fire was “up under [the] glove box.” According

to the owner of the vehicle, investigators from the fire

department, police department and the insurance company

determined that the fire resulted from an electrical

malfunction.

7. Roth Fire

In 2002, a 1999 Ford Windstar LX caught fire while the van

was parked and not in operation. The initial investigation by

the Fire Marshall’s office determined that the origin of the

fire was “located in the engine compartment” and that “a

mechanical malfunction could not be ruled out as a possible

cause of [the] fire.” A subsequent investigation by a forensic

automotive engineering firm determined that the fire originated

“beneath the left end of the instrument panel and behind the

instrument cluster” and resulted from “an electrical abnormality

localized to the wiring harness of the instrument cluster

electronic circuit board.”

C. Trial Proceedings

Following discovery, Ford filed a motion in limine asking

the court to reconfirm its ruling from the previous action

excluding evidence of the other Windstar fires. Ford argued

that Funkhouser could not prove that the causes of the seven

other fires were substantially similar to the cause of the

Funkhouser fire. After a hearing on the matter, the court

6
issued a letter opinion granting the motion in limine. The

court determined that, because “[t]he exact defect is not known

in the Funkhouser fire . . . it is not fair to Ford to say it is

the ‘same or similar defect and danger’” as those in the other

seven fires. The circuit court noted that none of Funkhouser’s

experts stated in their depositions that the other seven fires

occurred under substantially similar circumstances or had

substantially similar causes as the fire at issue. The circuit

court concluded by stating:

The Court finds that the Funkhouser defect has to
be identified with specificity to charge Ford
with actual notice of that defect, which it had
knowledge of by specific defects identified in
the seven fires. The Court finds that the
specificity required is lacking based on the
Jones and Lupica cases. Even if there were
enough specificity [referring to the Funkhouser
fire], there is not enough specificity noted in
the seven fires to say what the defect was that
Ford had to warn of or correct. Furthermore,
whether work had been done on those vehicles is
not known and whether the original equipment as
manufactured was in place in the seven fires is
not known. Additionally, arson was not ruled out
in some of the fires.

Funkhouser wrote to the court, requesting clarification as

to whether the court’s ruling precluded Funkhouser’s expert

witnesses from relying on the evidence of the other seven fires

in forming their opinion as to whether Ford knew or had reason

to know of the dangerous condition. On February 22, 2011, the

circuit court entered an order memorializing the findings

7
contained in its letter opinion and further holding that

evidence of the prior fires was inadmissible “including as a

predicate for the testimony of [Funkhouser’s] expert witnesses.”

In its Final Order on this matter, the circuit court

explained that, in granting Ford’s motion in limine it

excluded for all purposes evidence proffered by
[Funkhouser] of seven incidents of fires in Ford
Windstar vehicles, all of which predated the fire
in the instant case, and the Court further
precluded Plaintiff’s experts from relying on
this excluded evidence as bases for their
opinions.

Funkhouser appeals.

II. Analysis

On appeal, Funkhouser argues that the circuit court erred

in excluding evidence of the seven other Windstar fires. In the

alternative, Funkhouser contends that, even if evidence of the

other Windstar fires was inadmissible, the circuit court erred

in ruling that Funkhouser’s experts could not rely on those

other fires as a basis for their opinions.

A. Evidence of Other Fires

The issue before this Court is whether the circuit court

erred in its determination that the proffered evidence of fires

in seven other Windstar vans was inadmissible to establish that

Ford had notice and actual knowledge of a defective condition.

The issue relates to the admissibility of the evidence,

therefore the proper standard of review is abuse of discretion.

8
Midkiff v. Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576, 578

(2010) (citing Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d

820, 823 (1986)).

In his amended complaint, Funkhouser proceeded on a theory

that Ford failed to warn users of a known fire hazard in its

Windstar vans. It is well established that, “[a] manufacturer

is not an insurer of its product’s safety, and a manufacturer

has a duty to warn only if it knows or has reason to know that

its product is dangerous.” Owens-Corning Fiberglas Corp. v.

Watson, 243 Va. 128, 134, 413 S.E.2d 630, 634 (1992). Thus, in

bringing a failure to warn claim, a party must prove that the

manufacturer:

(a) knows or has reason to know that the chattel
is or is likely to be dangerous for the use for
which it is supplied, and

(b) has no reason to believe that those for whose
use the chattel is supplied will realize its
dangerous condition, and

(c) fails to exercise reasonable care to inform
them of its dangerous condition or of the facts
which make it likely to be dangerous.

Featherall v. Firestone Tire & Rubber Co., 219 Va. 949, 962, 252

S.E.2d 358, 366 (1979) (quoting Restatement (Second) of Torts

§ 388 (1965)).

To establish that a manufacturer knows or has reason to

know of the danger in a duty to warn case, a plaintiff may

present evidence of similar incidents, provided the prior

9
incidents occurred “ ‘under substantially the same

circumstances, and had been caused by the same or similar

defects and dangers as those in issue.’ ” Roll ‘R’ Way Rinks,

Inc. v. Smith, 218 Va. 321, 325, 237 S.E.2d 157, 160 (1977)

(quoting Spurlin v. Richardson, 203 Va. 984, 989, 128 S.E.2d

273, 277 (1962)). “This rule springs from the lessons of human

experience that similar causes can be expected to produce

similar effects.” Id.

In the present case, all Funkhouser can show is that the

incidents occurred under substantially the same circumstances;

he cannot show that the fires were caused by the same or similar

defects. Indeed, Funkhouser implicitly concedes this fact, as

he amended his initial complaint from a design defect claim to a

failure to warn claim because he realized that he could not

definitively prove the specific defect that caused the fire.

Similarly, he cannot prove what defect, if any, caused the fires

in the other vehicles. Therefore, the circuit court did not err

in excluding the evidence of the other seven fires.

Funkhouser, however, asserts that this requirement actually

results in an evidentiary threshold that is higher than what is

required to prove the merits of his claims. Funkhouser notes

that liability under a failure to warn claim does not require a

showing of any defect, only a showing that the manufacturer

“knows or has reason to know that its product is dangerous.”

10
Owens-Corning, 243 Va. at 134, 413 S.E.2d at 634. Thus,

Funkhouser advocates that a relaxed substantial similarity test,

where the terms “defects” and “dangers” are interchangeable, is

necessary in failure to warn cases.

“Evidence of other similar accidents or
occurrences, when relevant, is admissible to show
that the defendant had notice and actual
knowledge of a defective condition,” provided the
prior accidents or occurrences happened “under
substantially the same circumstances, and had
been caused by the same or similar defects and
dangers as those in issue.”

General Motors Corp. v. Lupica, 237 Va. 516, 521, 379 S.E.2d

311, 314 (1989) (emphasis added) (quoting Spurlin, 203 Va. at

989, 128 S.E.2d at 277). Thus, the substantial similarity test

consists of two prongs: (1) the substantially same circumstances

prong and (2) the causation prong. Removal of the defect

requirement from the causation prong would allow a plaintiff to

attribute notice and actual knowledge to a manufacturer based on

the mere existence of a generalized danger; there would be no

requirement for the danger to be attributable to the

manufacturer in any way. This Court has previously rejected

such generalized liability, recognizing that “[a] manufacturer

is not an insurer of its product’s safety.” Owens-Corning, 243

Va. at 134, 413 S.E.2d at 634; see also Jones v. Ford Motor Co.,

263 Va. 237, 254, 559 S.E.2d 592, 601 (2002) (requiring proof

that the cause of the dangerous condition was a defect so as to

11
attribute knowledge of that condition to the manufacturer);

Lupica, 237 Va. at 522, 379 S.E.2d at 315 (rejecting evidence of

a generalized dangerous condition that was not shown to have

resulted from a defect in the manufacturer’s product). 3

Indeed, Funkhouser’s relaxed substantial similarity test

would undermine the entire causation prong of the test. By

advocating the elimination of the requirement of similar defects

from the test, Funkhouser is asking this Court to invert the

test and infer similar causes, i.e., defects, from the existence

of similar effects, i.e., fires. This inversion simply does not

work: although a faulty cigarette lighter may cause a key-off

dashboard electrical fire, not all key-off dashboard electrical

fires are caused by a faulty cigarette lighter. Whether it is a

products liability claim or a failure to warn claim, our

jurisprudence establishes that the evidentiary test governing

the admissibility of evidence relating to prior incidents must

be strictly adhered to. To hold otherwise would allow a

plaintiff to establish that a manufacturer knows or has reason

to know of a danger based on prior incidents that were not

attributable to that manufacturer. Therefore, we reject

3
It is of no consequence that Lupica involved a design
defect claim, 237 Va. at 518, 379 S.E.2d at 312, or that Jones
involved both a design defect claim and a failure to warn claim,
263 Va. at 242, 559 S.E.2d at 594. In both cases, the
substantial similarity test was used for the same purpose as it
was in this case: to establish that a manufacturer knew or had
reason to know of a dangerous condition.

12
Funkhouser’s argument that the court should adopt a relaxed

substantial similarity test for the admissibility of prior

incident evidence in failure to warn causes of action.

In order for the proffered evidence to be admissible to

show that Ford knew or had reason to know that there was a

danger of key-off dashboard electrical fires, Funkhouser must

demonstrate that the other seven Windstar fires were caused by

the same or similar defect. This does not mean that Funkhouser

must identify the specific defect that caused the fire in his

van or the other seven vans. 4 As our cases have demonstrated,

4
Funkhouser notes that, in its December 31, 2010 letter
opinion sustaining Ford’s motion in limine, the circuit court
stated that “the Funkhouser defect has to be identified with
specificity to charge Ford with actual notice of that defect.”
(Emphasis added.) However, we have cautioned against taking a
court’s ruling out of context by focusing on one isolated
phrase. See Yarborough v. Commonwealth, 217 Va. 971, 978, 234
S.E.2d 286, 291 (1977) (“[W]e will not fix upon isolated
statements of the trial judge taken out of the full context in
which they were made, and use them as a predicate for holding
the law has been misapplied.”). Here, the circuit court went on
in its analysis of the fires to require Funkhouser to either
prove the defect that caused the fires or to rule out all other
causes, which it concluded Funkhouser failed to do:

Even if there were enough specificity [referring
to the Funkhouser fire] there is not enough
specificity noted in the seven fires to say what
the defect was that Ford has to warn of or
correct. Furthermore, whether work had been done
on those vehicles is not known and whether the
original equipment as manufactured was in place
in the seven fires is not known. Additionally,
arson was not ruled out in some of the fires.

13
there are two avenues for a plaintiff in Virginia to establish

substantial similarity in a failure to warn claim against a

manufacturer: (1) through identification of the accident’s

cause, which must be attributable to the manufacturer, or (2)

through the elimination of other potential causes that are not

attributable to the manufacturer. 5 See Jones, 263 Va. at 256-57,

559 S.E.2d at 602. In this case, Funkhouser can neither

identify the cause of the fires nor rule out all other possible

causes of the fires, including post-manufacture repairs,

replacement parts in the dash, arson, or misuse. For this

reason we hold that the evidence fails the substantial

similarity test.

B. Expert Testimony

Funkhouser also argues the circuit court erred in ruling

that his experts could not rely upon the evidence of the prior

fires in their testimony regarding how a reasonable automobile

Read in context, it is clear that the circuit court ruled
that in order to be admissible the plaintiff has to either
demonstrate with enough specificity the defect which causes the
dangerous condition or rule out the other possible causes.
5
The burden is on the proponent, not the defendant, to
prove similar cause and similar result: “the appropriate
standard in Virginia is whether a manufacturer has a reason to
know, not whether the manufacturer should know.” Owens-Corning,
243 Va. at 136, 413 S.E.2d at 635. “ ‘[R]eason to know implies
no duty of knowledge on the part of the actor whereas ‘should
know’ implies that the actor owes another the duty of
ascertaining the fact in question.” Id. at 135, 413 S.E.2d at
635 (quoting Restatement (Second) of Torts § 12 cmt. a).

14
manufacturer would react to those prior fires. Funkhouser

relies upon Code § 8.01-401.1, which allows an expert to express

an opinion or draw inferences from sources that are not allowed

into evidence.

In pertinent part, Code § 8.01-401.1 states:

The facts, circumstances or data relied upon by
[an expert] witness in forming an opinion or
drawing inferences, if of a type normally relied
upon by others in the particular field of
expertise in forming opinions and drawing
inferences, need not be admissible in evidence.

However, the fact that an expert witness may rely upon

otherwise inadmissible evidence in forming an opinion, “does not

. . . relieve the court from its responsibility, when proper

objection is made, to determine whether the factors required to

be included in formulating the opinion were actually utilized.”

Swiney v. Overby, 237 Va. 231, 233, 377 S.E.2d 372, 374 (1989).

“If all the factors are not utilized, the court should exclude

the opinion evidence.” Id.

In examining such factors, this Court has recognized that,

“[t]he results of experiments are not admissible in evidence

unless the tests were made under conditions which were the same

or substantially similar in essential particulars to those

existing at the time of the accident.” Featherall, 219 Va. at

959, 252 S.E.2d at 365. We have further held that an expert

cannot offer opinion testimony based on such experiments because

15
there are “ ‘too many missing variables’ to permit [an] expert

to give his opinion.” Mary Washington Hospital, Inc. v. Gibson,

228 Va. 95, 99, 319 S.E.2d 741, 743 (1984) (quoting Thorpe v.

Commonwealth, 223 Va. 609, 614, 292 S.E.2d 323, 326 (1982)); see

also Tittsworth v. Robinson, 252 Va. 151, 154, 475 S.E.2d 261,

263 (1996) (“[Expert] testimony cannot be speculative or founded

upon assumptions that have an insufficient factual basis”).

Along these same lines, we today hold that an expert cannot

offer opinion testimony based on evidence that fails the

substantial similarity test. To hold otherwise would be to

allow an expert to offer an opinion based on speculative or

otherwise irrelevant evidence. In the present case, none of the

seven prior fires were the same or substantially similar to the

Funkhouser fire. Thus, any expert testimony would necessarily

be based on assumptions that have an insufficient factual basis.

As such, there were too many missing variables to permit expert

testimony based on those fires. Accordingly, the trial court

did not err in precluding Funkhouser’s experts from relying on

the evidence of the seven other Windstar fires as a basis for

their opinions.

III. CONCLUSION

For the foregoing reasons, we will affirm the ruling of the

circuit court.

Affirmed.

16
JUSTICE McCLANAHAN, with whom JUSTICE LEMONS and JUSTICE MIMS
join, concurring in part and dissenting in part.

In my view, the circuit court applied incorrect legal

principles in ruling on the admission of evidence of prior Ford

Windstar fires and in prohibiting the reliance upon such fires

by Funkhouser's experts. The majority justifies the circuit

court's rulings by crafting a new standard for admission of

similar occurrences proof, incorporating this new standard into

the elements of a cause of action for failure to warn, and

creating its own exception to Code § 8.01-401.1.

A. Admission of Evidence Concerning
Other Ford Windstar Fires

Because the admissibility of evidence depends on the

plaintiff's theory of the case, the admissibility of the prior

Ford Windstar fires must be determined in the context of

Funkhouser's claim that Ford failed to warn of the danger of

key-off electrical dashboard fires. See Breeden v. Roberts, 258

Va. 411, 416, 518 S.E.2d 834, 837 (1999) (evidence is relevant if

"it tends to establish a party's claim or defense or adds force

and strength to other evidence bearing upon an issue in the

case"). Under Funkhouser's theory that Ford failed to warn of

the danger of key-off electrical dashboard fires, Funkhouser

must prove Ford (a) knew or had reason to know that the

Funkhouser minivan was or was likely to be dangerous for the use

17
for which it was supplied to Funkhouser, (b) had no reason to

believe that Funkhouser would realize the minivan's dangerous

condition, and (c) failed to exercise reasonable care to inform

Funkhouser of the minivan's dangerous condition or the facts

which make it likely to be dangerous. Featherall v. Firestone

Tire & Rubber Co., 219 Va. 949, 962, 252 S.E.2d 358, 366 (1979)

(applying Restatement (Second) of Torts § 388 (1965)). "A

product is unreasonably dangerous if it is defective in assembly

or manufacture, unreasonably dangerous in design, or

unaccompanied by adequate warnings concerning its hazardous

properties." Morgen Industries, Inc. v. Vaughan, 252 Va. 60,

65, 471 S.E.2d 489, 492 (1996). In this case, Funkhouser

asserts the Windstar minivan supplied to it by Ford was

unreasonably dangerous because it was unaccompanied by adequate

warnings concerning the potential for key-off electrical

dashboard fires.

We have traditionally permitted a plaintiff to prove notice

of a dangerous condition through evidence of another similar

incident or occurrence " 'provided the prior incident occurred

under substantially the same circumstances' " and was " 'caused

by the same or similar defects and dangers as those in issue.' "

Jones v. Ford Motor Co., 263 Va. 237, 255, 559 S.E.2d 592, 601

(2002)(quoting Ford Motor Co. v. Phelps, 239 Va. 272, 276-77,

389 S.E.2d 454, 457 (1990) (quoting General Motors Corp. v.

18
Lupica, 237 Va. 516, 521, 379 S.E.2d 311, 314 (1989))); see also

Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 137, 413

S.E.2d 630, 635 (1992); Roll 'R' Way Rinks, Inc. v. Smith, 218

Va. 321, 325, 237 S.E.2d 157, 160 (1977). Such evidence may

only be admitted to prove notice and actual knowledge by the

defendant of the dangerous condition, not to provide

corroboration of the existence of such condition. Jones, 263

Va. at 255, 559 S.E.2d at 601. Thus, upon a timely request, a

defendant will be entitled to a cautionary instruction informing

the jury of this limited purpose. Roll 'R' Way Rinks, 218 Va.

at 327, 237 S.E.2d at 161. 1

1
In Spurlin v. Richardson, 203 Va. 984, 989, 128 S.E.2d
273, 277 (1962), this Court first enunciated the test for
determining when evidence of prior occurrences may be admitted
to prove notice. The Court borrowed its standard from Hendricks
v. Monongahela West Penn Public Service Co., 163 S.E. 411, 415
(W. Va. 1932), in which the Supreme Court of Appeals of West
Virginia stated that such prior occurrences "must relate to
accidents or injuries or defects existing at substantially the
same place and under substantially the same conditions as those
involved in the action and caused by the same or a similar
defect or danger or by the acts of the same person" (Emphasis
added.) Funkhouser points out that when this Court adopted the
West Virginia similar occurrences standard, reciting the test as
requiring the prior occurrences be caused by the same or similar
"defects and dangers," its use of "and" instead of "or" was
neither intentional nor meaningful. It is unnecessary to
resolve this question, though, because under Virginia law, the
terms "defects" and "dangers" are interchangeable. See, e.g.,
Morgen Industries, 252 Va. at 65, 471 S.E.2d at 492 ("A product
is unreasonably dangerous if it is defective in assembly or
manufacture, unreasonably dangerous in design, or unaccompanied
by adequate warnings concerning its hazardous properties.").

19
 Applying these principles, the evidence in the record

establishes the Mulkey, Tirone, Carf, and Roth fires "occurred

under substantially the same circumstances" and were "caused by

the same or similar defects and dangers as those in [the

Funkhouser fire]." Jones, 263 Va. at 255, 559 S.E.2d at 601.

All four fires occurred when the vans were parked, not in

operation, and with no key in the ignition. The cause and

origin of each of the fires was professionally investigated and

determined to be electrical in nature, to have originated in the

dashboard area of the vans, and to have been caused by the

failure of electrical wiring or components within the dashboard

area. The information regarding these fires contains no

evidence of arson, misuse or some external cause for the fires.

Since Funkhouser claims that his minivan was unreasonably

dangerous for its intended use due to the danger of key-off

electrical dashboard fires, evidence of these four Windstar van

fires is admissible to prove Ford had notice and actual

knowledge of the danger of key-off electrical dashboard fires. 2

With regard to the Arencibia, Bryan, and Pell fires,

however, I agree the evidence regarding these fires does not

sufficiently establish that they were caused by the same or

2
This conclusion is not reached by relaxing the substantial
similarity test. Rather, it is compelled by properly applying
the test in the context of Funkhouser's theory against Ford,
which the circuit court neglected to do.

20
similar defect and danger as that alleged in the Funkhouser

fire. While these fires occurred when the vans were not in

operation and with no key in the ignition, there is no evidence

of any investigation into the cause or origin of these fires.

Absent sufficient evidence that these fires were caused by the

failure of electrical wiring or components in the dashboard

area, the evidence does not show that they were caused by the

same or similar defects and dangers as the Funkhouser fire.

In ruling that all seven fires were inadmissible, the

circuit court erred, in the first place, by framing the issue

before it as whether Ford should be charged with notice and

knowledge of a defective condition requiring warning of that

condition. In particular, the circuit court stated that "[t]he

legal issue here is whether Ford should be charged with notice

and actual knowledge of a defective condition requiring the

warning of that defective condition." (Emphasis by court.)

Ruling that the Funkhouser defect must be "identified with

specificity to charge Ford with actual notice of that defect,"

the court concluded the required specificity was absent such

that it was "not fair" to charge Ford with notice of a defective

condition. The issue before the court, however, was whether the

other Windstar fires occurred "under substantially the same

circumstances" and were caused by "the same or similar defects

and dangers" as those alleged in the Funkhouser fire. Jones,

21
263 Va. at 255, 559 S.E.2d at 601 (internal quotation marks and

citation omitted). Whether the Funkhouser minivan is

unreasonably dangerous and whether Ford knew or should have

known of the unreasonably dangerous condition are essential

elements of Funkhouser's failure to warn claim and were not

proper issues for the court to resolve on Ford's motion to

exclude evidence of the other Windstar van fires.

The circuit court also applied incorrect legal principles in

finding that "there is not enough specificity noted in the seven

fires to say what the defect was that Ford had to warn of or

correct" because the circuit court required Funkhouser to

provide a level of specificity not required for a failure to

warn claim such as this under Virginia law. 3 Funkhouser is

asserting that the minivan was unreasonably dangerous due to the

potential for key-off electrical dashboard fires, not due to a

specific design or manufacturing defect. Thus, the issue

presented by Ford's motion to exclude evidence of the other

Windstar van fires was whether the other fires were caused by

3
Reasoning that the defects and dangers asserted by
Funkhouser must be identified with the same level of specificity
as those in Jones and Lupica, the circuit court failed to give
due regard to the distinctions between the theories advanced by
the plaintiffs in those cases and the theory asserted by
Funkhouser. In both Jones and Lupica, the plaintiffs alleged
negligent design claims against the manufacturers and,
therefore, those plaintiffs were necessarily required to
identify a specific design defect. Funkhouser does not advance
a defective design theory and should not be required to do so in
order to introduce evidence of other similar occurrences.

22
the failure of electrical wiring or components within the

dashboard area. Funkhouser was not required to allege a

specific mechanical defect to establish the similarity of the

fires.

We have previously found evidence of prior similar

occurrences admissible to prove notice of a dangerous condition

in the context of a failure to warn case without proof of a

design or manufacturing defect. In Owens-Corning, we held that

evidence of a summary of 44 workers' compensation claims filed

by installers of insulation materials alleging they acquired

lung diseases caused by exposure to asbestos dust was admissible

in an action alleging Owens-Corning failed to warn of the

dangers associated with use of insulation products containing

asbestos. 243 Va. at 137, 413 S.E.2d at 635-36. As we

concluded, the summary of workers' compensation claims was

admissible to prove that "Owens-Corning had notice that

insulators were at risk of contracting lung diseases from the

use of insulation products which contained asbestos." Id.

As our analysis in Owens-Corning indicates, in determining

whether other occurrences are caused by the same or similar

defects and dangers, the terms "defects" and "dangers" are

necessarily interchangeable in the context of a failure to warn

claim since liability is based on the manufacturer's duty to

warn "if it knows or has reason to know that its product is

23
dangerous." Id. at 134, 413 S.E.2d at 634. The "substantial

similarity" test was satisfied in Owens-Corning because the

insulators in the workers' compensation claims alleged "they

acquired lung diseases caused by exposure to asbestos dust while

using insulation products," which was the same or similar

dangers claimed by plaintiff. Id. at 137, 413 S.E.2d at 636.

Although the majority acknowledges that Funkhouser's theory

is that Ford negligently failed to warn of the potential for

key-off electrical dashboard fires, not that it negligently

designed or manufactured its minivan, the majority defends the

circuit court's analysis by creating additional factors that

must be satisfied for the admission of similar occurrences

proof. In Spurlin v. Richardson, 203 Va. 984, 989, 128 S.E.2d

273, 277 (1962), when this Court first enunciated the similar

occurrences test, we stated that such evidence is admissible

when "those prior accidents or occurrences happened at

substantially the same place and under substantially the same

circumstances, and had been caused by the same or similar

defects and dangers as those in issue, or by the acts of the

same person." Id. (emphasis added). Under the majority's

standard, in order for evidence of prior occurrences to be

admissible, a plaintiff must now identify as the cause of the

prior occurrences a defect attributable to the defendant. Thus,

not only must plaintiff identify a specific defect, the defect

24
must be attributable to the defendant, which in this case is the

manufacturer. Although the majority does not specify whether a

design or manufacturing defect must be identified, it must be in

the nature of one or the other since it must be attributable to

this defendant. 4 Accordingly, the majority's new standard for

admission of prior occurrences can only be satisfied if a

plaintiff can prove a cause of action for design or

manufacturing defect.

According to the majority, the requirement that a plaintiff

establish the prior similar occurrences were caused by a defect

attributable to defendant is necessary because otherwise a

plaintiff could "establish that a manufacturer knows or has

reason to know of a danger based on prior incidents that were

not attributable to that manufacturer." The majority's concern

is misplaced because a plaintiff is not required to establish

that the product's dangerous condition is caused by a defect

attributable to the defendant in order to succeed under a

4
The majority explains that Funkhouser has conceded he
cannot show the prior fires were caused by the same or similar
defects "as he amended his complaint from a design defect claim
to a failure to warn claim because he realized that he could not
definitively prove the specific defect that caused the fire."
According to the majority, because "he cannot prove what defect,
if any, caused the fires . . . the circuit court did not err in
excluding the evidence of the other seven fires." The
majority's subsequent statement that its holding "does not mean
that Funkhouser must identify the specific defect that caused
the fire in his van or the other seven vans" is simply
irreconcilable with its express holding otherwise.

25
failure to warn theory. Furthermore, the requirement that prior

incidents be caused by a defect attributable to the defendant

has never been a prerequisite to their admission. See Spurlin,

203 Va. at 989, 128 S.E.2d at 277 (such evidence is admissible

when "those prior accidents or occurrences happened at

substantially the same place and under substantially the same

circumstances, and had been caused by the same or similar

defects and dangers as those in issue, or by the acts of the

same person") (emphasis added). The majority is conflating a

cause of action based on negligent manufacture or negligent

design with a cause of action based on the negligent failure to

warn by reformulating the similar occurrences standard to

require proof of a specific design or manufacturing defect and

incorporating that requirement into the elements of a failure to

warn claim.

It is beyond dispute that "[a] manufacturer is not an

insurer of its product's safety." Owens-Corning, 243 Va. at

134, 413 S.E.2d at 634. The cause of action for failure to warn

is not a theory of strict liability. The plaintiff must prove

that the product was dangerous, that the defendant knew or had

reason to know of this dangerous condition, and that the

defendant had no reason to believe the plaintiff would realize

the dangerous condition. Furthermore, the plaintiff must prove

that the defendant failed to exercise reasonable care to warn of

26
the dangerous condition of the product it supplied to the

plaintiff and that its failure to exercise such care caused

plaintiff's damages. See Featherall, 219 Va. at 962, 252 S.E.2d

at 366 (discussing elements of such claims as set forth by the

Restatement (Second) of Torts § 388). The jury is instructed on

these elements, and it is unnecessary for this Court to augment

the currently existing elements of the cause of action for

failure to warn to ensure the jury follows its instructions to

hold the defendant liable only where it knows or has reason to

know of the product's dangerous condition.

The flaw in the majority's analysis becomes evident when it

is applied to a supplier other than a manufacturer. A failure

to warn claim can be asserted against any supplier of a product,

and the elements are the same regardless of whether the

defendant is the manufacturer or another person that supplies

the product. 5 The cause of the dangerous condition is not an

5
In Featherall, 291 Va. at 962, 252 S.E.2d at 366, this
Court adopted § 388 of the Restatement (Second) of Torts, which
states:
One who supplies directly or through a third
person a chattel for another to use is subject to
liability to those whom the supplier should expect to
use the chattel with the consent of the other or to be
endangered by its probable use, for physical harm
caused by the use of the chattel in the manner for
which and by a person for whose use it is supplied, if
the supplier

(a) knows or has reason to know that the chattel is or
is likely to be dangerous for the use for which it is

27
element of a failure to warn claim because the negligence for

which the supplier is held liable is the failure to exercise

reasonable care in warning of the product's dangerous condition.

Yet, by requiring a plaintiff to prove notice to a supplier

through similar occurrences caused by defects attributable to

that supplier, a plaintiff could never prove a failure to warn

claim against a supplier other than a manufacturer. 6 And against

a manufacturer, the plaintiff could only prove a failure to warn

claim if he or she can also prove negligent design or negligent

manufacture. Thus, under the majority's test for establishing

notice of a dangerous condition, the viability of a failure to

warn claim in Virginia is substantially limited, if not entirely

extinguished.

Unlike the majority, I would hold that evidence of the

Mulkey, Tirone, Carf, and Roth fires is admissible. However,

supplied, and

(b) has no reason to believe that those for whose use
the chattel is supplied will realize its dangerous
condition, and

(c) fails to exercise reasonable care to inform them
of its dangerous condition or of the facts which make
it likely to be dangerous.
6
In requiring that plaintiff prove a defect attributable
to the "manufacturer," it is unclear whether the majority is
attempting to limit this new standard for admission of similar
occurrences proof to actions against manufacturers. Any such
limitation would be illogical, though, since the elements of a
cause of action for failure to warn are the same regardless of
whether the defendant is a manufacturer or another supplier.

28
because I would hold that, under the proper analysis, evidence

of the Arencibia, Bryan, and Pell fires is inadmissible, I

concur in the majority's holding to that extent.

B. Admission of Expert Testimony

Funkhouser's experts would testify "on what the industry

standard would be in response to at least seven reports of

unexplained, key-off fires." Additionally, Schulz is of the

opinion that other similar occurrences "should have placed" Ford

on notice that Ford's Windstar minivans manufactured between

1999 and 2003 were or were likely to be dangerous for the use

for which they were sold because Ford knew or should have known

that the electrical components in the instrument panel area of

these vans had the potential to fail and result in a fire with

the key in an " 'off' position."

Pursuant to Code § 8.01-401.1, "any expert witness may give

testimony and render an opinion or draw inferences from facts,

circumstances or data made known to or perceived by such witness

at or before the hearing or trial during which he is called upon

to testify." Furthermore, "[t]he facts, circumstances or data

relied upon by such witness in forming an opinion or drawing

inferences, if of a type normally relied upon by others in the

particular field of expertise in forming opinions and drawing

inferences, need not be admissible in evidence." Id. However,

this statute does not allow for introduction of otherwise

29
inadmissible evidence during direct examination of an expert

witness merely because the expert relied on such evidence in

formulating an opinion. See Commonwealth v. Wynn, 277 Va. 92,

100, 671 S.E.2d 137, 141 (2009). Therefore, Funkhouser's expert

witnesses may not testify about or refer to any inadmissible

fires during their direct testimony at trial.

Although Funkhouser's expert witnesses may not make

reference to inadmissible fires during their direct examination,

Code § 8.01-401.1 expressly permits expert witnesses to rely

upon inadmissible information in formulating their opinions if

it is "of a type normally relied upon by others in the

particular field of expertise in forming opinions and drawing

inferences." Thus, the circuit court's ruling prohibiting

Funkhouser's experts from relying upon information regarding the

other Windstar van fires in formulating their opinions is

inconsistent with the language of Code § 8.01-401.1. Of course,

Ford would be entitled to cross-examine Funkhouser's experts at

trial as to the basis for each opinion, including whether, in

formulating such opinion, the expert relied on occurrences not

shown to be substantially similar to the Funkhouser fire. See

id. (providing that the expert may be "required to disclose the

underlying facts or data on cross-examination"). 7

7
As with all expert opinion testimony, "such opinion[s]
must meet certain standards as a condition precedent to

30
 Although the majority recognizes that Code § 8.01-401.1

permits expert witnesses to rely upon inadmissible information

in formulating their opinions if it is "of a type normally

relied upon by others in the particular field of expertise in

forming opinions and drawing inferences," it upholds the circuit

court's ruling prohibiting any reliance upon the prior fires by

Funkhouser's experts by creating an exception that would

prohibit experts from relying on evidence "that fails the

substantial similarity test." Despite the well-established

doctrine that "[c]ourts cannot 'add language to the statute the

General Assembly has not seen fit to include,' " the majority

has amended Code § 8.01-401.1 to provide that information relied

upon by an expert witness need not be admissible in evidence

unless it is inadmissible because it fails the substantial

similarity test. Jackson v. Fidelity & Deposit Co., 269 Va.

admission into evidence." Blue Ridge Serv. Corp. v. Saxon
Shoes, Inc., 271 Va. 206, 213, 624 S.E.2d 55, 59 (2006).
" 'Expert testimony . . . cannot be speculative or founded upon
assumptions that have an insufficient factual basis.' " Id.
(quoting Tittswoth v. Robinson, 252 Va. 151, 154, 475 S.E.2d
261, 263 (1996)). " 'Expert testimony founded upon assumptions
that have no basis in fact is not merely subject to refutation
by cross-examination or by counter-experts; it is
inadmissible.' " Norfolk S. Ry. Co. v. Rogers, 270 Va. 468,
479, 621 S.E.2d 59, 65 (2005) (quoting Vasquez v. Mabini, 269
Va. 155, 160, 606 S.E.2d 809, 811 (2005)). Since the circuit
court ruled, in limine, that Funkhouser's experts could not use
the other Windstar van fires "as a predicate" for their
testimony by virtue of its ruling on the admissibility of the
other fires as similar occurrences, the sufficiency of the
factual basis for any specific expert testimony is not before
us.

31
303, 313, 608 S.E.2d 901, 906 (2005) (quoting Holsapple v.

Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561, 564-65 (2003)).

Because I would apply Code § 8.01-401.1 as written, I

dissent from the majority's holding that the circuit court did

not err in precluding Funkhouser's experts from relying on

information regarding the other Windstar fires in formulating

their opinions. Therefore, while I conclude that evidence of

the Arencibia, Bryan, and Pell fires is inadmissible, I would

hold that Funkhouser's experts may rely upon the information

regarding those fires in formulating their opinions if such

information is "of a type normally relied upon by others in the

particular field of expertise in forming opinions and drawing

inferences." Code § 8.01-401.1.

32