Jones v. Ford Motor Co.

Present: All the Justices

MARGARET JONES

v. Record No. 010136 OPINION BY JUSTICE LEROY R. HASSELL, SR.
March 1, 2002
FORD MOTOR COMPANY

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
M. Langhorne Keith, Judge

In this appeal of a judgment entered in favor of an

automobile manufacturer, the primary issue we consider is

whether the manufacturer's purported judicial admission barred

the plaintiff from presenting evidence that the manufacturer

had notice of an alleged defective condition in an automobile.

I.

The plaintiff, Margaret Jones, filed her motion for

judgment against Ford Motor Company (Ford) and Cherner Lincoln

Mercury-Annandale, Inc. (Cherner Lincoln Mercury). She

alleged that she and her husband purchased a 1991 Lincoln Town

Car, manufactured by Ford, from Cherner Lincoln Mercury's

predecessor in interest.

The plaintiff pled that she was injured when a defect in

the cruise control system in her Lincoln Town Car made the car

accelerate suddenly without warning, causing the car to travel

out of control across a street and crash into a concrete

stanchion. The plaintiff alleged, among other things, that

Ford negligently designed the car's cruise control system,
negligently failed to warn her that the Lincoln Town Car could

accelerate suddenly, and breached certain warranties.

The plaintiff alleged that Cherner Lincoln Mercury

breached its warranty of merchantability to her for the

following reasons: the car was defectively designed because

of defects in its throttle and cruise control systems, and the

car was not adequately and properly tested for the purpose of

determining whether a sudden unintended acceleration event was

possible. Ford and Cherner Lincoln Mercury filed separate

grounds of defense and denied any liability to the plaintiff.

The litigants filed numerous pretrial motions. Ford

filed a motion in limine to exclude as evidence a study that

Ford had commissioned, referred to as the Updegrove Study.

Ford also filed motions in limine to exclude evidence of other

accidents, incidents, complaints, and lawsuits. The plaintiff

requested that the court permit her to use the depositions of

a Virginia State Trooper and three United States Secret

Service employees who had experienced unintended sudden

acceleration events similar to the incident that she had

experienced. These deponents were operating cars manufactured

by Ford when the unintended sudden acceleration events

occurred.

On the morning of trial, the plaintiff dismissed her

cause of action against Cherner Lincoln Mercury. The circuit

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court permitted Ford to make a purported judicial admission

that it had "[n]otice that there were sudden acceleration

incidents in cars equipped with stand-alone cruise-control

systems." Once Ford made this purported judicial admission,

the circuit court ruled that the plaintiff could not use the

depositions of the United States Secret Service employees, the

State Trooper, or any information contained in the Updegrove

Study. At the conclusion of the trial, the jury returned a

verdict in favor of Ford. The plaintiff appeals.

II.

In 1991, the plaintiff and her husband purchased a 1991

Lincoln Town Car, manufactured by Ford. The car was equipped

with a cruise control system. On February 3, 1998, the

plaintiff and her husband took the car to a gasoline station

near their home in Spotsylvania County. The plaintiff's

husband, who drove the car to the gasoline station, got out of

the car, pumped gasoline, and went inside the station to pay

the attendant.

The plaintiff, who had been seated in the front passenger

seat of the Lincoln Town Car, noticed a truck. She "got the

impression" that the truck driver wanted to leave the gasoline

station parking lot. Her car was "blocking him in," so she

decided to move the car in reverse about seven to ten feet and

stop so that the truck driver could exit.

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 The plaintiff moved "over into the front seat, the

driver's side." She stated: "And I sat there for a few

minutes – seconds, I guess, and made sure that I was square in

the seat. . . . So then I took and proceeded to start the

car. And I had my foot on the brake and – very lightly. And

then I took and started the car. And then I pulled it into

reverse. And at that moment that car took off like you

wouldn't believe. And it crossed over four lanes of traffic

and into the little mini mall where I hit a cement light pole,

and that stopped the car." The plaintiff testified that when

she shifted the car from park to reverse, she kept her foot on

the brake pedal.

The plaintiff remembered "being tossed around in the

car," and she had a large "gash" on her head. She stated that

"I had broken my hand and . . . my back." As a result of

injuries she received in the accident, the plaintiff was

"paralyzed from [her] breasts down."

Victor J. DeClercq, who had been employed with Ford for

approximately 28 years and served as its corporate

representative at trial, qualified as an expert witness. He

testified as follows. There are only two ways to control the

speed of a car: use of the cruise control system or physical

application of the car's accelerator pedal.

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 The 1991 Lincoln Town Car was manufactured with an

automatic transmission and was equipped with a cruise control

system, also referred to as a "speed control" system. The

cruise control system maintains a speed selected by the driver

of the car when the system is activated. When the driver of a

Lincoln Town Car activates its cruise control system, a

canister, referred to as a servo, is either filled with or

relieved of vacuum pressure from the engine. The pressure

either pulls or releases a cable that controls the car's

throttle.

The throttle controls the volume of intake air. The

quantity of fuel and air that enters the combustion chamber

determines the engine speed and engine power. The throttle

either reduces or increases the speed of the engine. The

throttle is connected to the accelerator pedal, commonly

referred to as the gas pedal, by a throttle cable or linkage.

When the driver of a car presses the accelerator pedal, that

act causes the linkage to open the throttle, which in turn

increases the engine speed.

The electronic cruise control system has several

components, including the cruise control "off and on" switch,

a "set acceleration" button, a "resume" button, and a "coast"

button. Wires extend from the controls on the control panel

to the speed amplifier. The speed amplifier is described as

5
the "brains" of the system. Electronic components in the

speed amplifier receive signals or impulses and interpret

them. The speed amplifier emits electronic signals to the

servo, which controls the throttle.

DeClercq testified that if the driver of a car applies

the brake pedal, the cruise control system will disengage.

The brake pedal emits a signal to the amplifier located within

the servo, and the amplifier directs the throttle to close,

thereby disengaging the cruise control. The driver of the car

only needs to press the brake pedal about one-quarter of an

inch to disengage the cruise control. According to DeClercq,

if an accelerator pedal is pressed completely to the floor,

the driver of the vehicle would still be able to stop the car

by pressing the brake pedal because that act causes the wheels

to stop turning.

Samuel K. Sero, who testified on behalf of the plaintiff,

qualified as an expert witness on the subject of electrical

engineering. He opined that the plaintiff's 1991 Lincoln Town

Car suddenly accelerated without warning because of a defect

in its cruise control system. He testified, just as DeClercq,

that there are only two ways to control the speed of a car,

the driver's application of the accelerator pedal and use of

the cruise control system. Sero opined that the plaintiff's

car suddenly accelerated because an instantaneous negative

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transient electrical signal was transmitted to the solenoids,

which are in the servo. This transient electronic signal

directed the cruise control system to open the throttle,

causing the engine to accelerate rapidly. Sero stated that a

transient signal will cause the cruise control to continue to

operate until the servo receives a signal directing the servo

to close the throttle, thereby slowing the car.

Sero testified that his review of Ford's documents

indicated that Ford was aware of problems caused by negative

transient electronic signals. He also testified that Ford did

not perform any transient signal testing on the output of its

cruise control system.

DeClercq contradicted Sero's testimony about the cause of

the plaintiff's accident. DeClercq testified within a

reasonable degree of engineering certainty that there was not

a transient electronic signal in the cruise control system

that caused the plaintiff's accident. He examined and

performed tests on the plaintiff's Lincoln Town Car after the

accident, and based upon his evaluation, examinations, and

inspections, he opined that there were no defects in the

electrical or cruise control systems.

DeClercq gave the following testimony without any

objection from the plaintiff:

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 "Q: Do you have an opinion with reasonable
engineering certainty as to whether or not this
vehicle on the date of the accident could have
accelerated in reverse if the plaintiff had applied
the brake pedal?

"A: I have an opinion.

"Q: What is that?

"A: It could not have moved."

Lee Carr testified as an expert witness on behalf of

Ford. He qualified as an expert witness on the subjects of

automotive engineering, vehicle dynamics, and human behavior.

He testified, without objection from the plaintiff, that the

cause of the accident was "likely the driver, Mrs. Jones;

[she] pushed on the throttle and mistakenly thought she was

pushing on the brake, but wasn't. I believe the vehicle

responded to that by doing what it was told to do, and it

backed up, and it backed up at ever-increasing speed until it

ran into a pole across the street from the gas station."

Robert Quinn Brackett, Jr., who qualified as an expert

witness on the subject of human factors, also testified on

behalf of Ford. He was permitted to give an opinion, without

any objection from the plaintiff, that the plaintiff made a

mistake in that she pressed the accelerator pedal instead of

the brake pedal and that this act caused the accident.

The plaintiff sought to admit in evidence the testimony

of a Virginia State Trooper and three United States Secret

8
Service employees. Ronald H. Campbell, a State Trooper who

had been trained regarding the operation of vehicles in

skidding conditions, hot pursuit driving, and the proper

operation of a vehicle, gave the following testimony in his

videotaped deposition, which the circuit court refused to

permit the plaintiff to present to the jury:

"Q: Describe for the jury, please, what

happened on September 8, 1991.

"A: Again, as I say, this happened at our

residence. My wife had come back from shopping and

buying some groceries. She had backed the vehicle

up in our driveway adjacent to the sidewalk near our

rear steps. . . . The vehicle [a 1991 Grand

Marquis, manufactured by Ford] was cut off. It was

a hot day. . . .

"I went in and spoke to her. The vehicle may

have been cut off somewhere like 45 minutes to an

hour. Due to it being hot when I came back out to

continue working outside, I decided to move the

vehicle from the sun[ny] area that it was in over to

some shade trees. This area, I would estimate

probably 80 to 100 feet. It is just an estimate

away. I got in the vehicle, started it up, put my

foot on the brake, put the vehicle – the

9
transmission shifted it from park to drive. I did

not have to make any adjustments to the seats or the

mirrors because I was going just a short distance.

"I did not put my seat belt on because I was

going a short distance and was on private property,

but I did close the door. I released the pressure

that I had with my right foot [–] that is what we

are trained to use our right foot for accelerating

[and] braking. That is the foot that I always use

to brake and accelerate with. I released the

pressure from the brake pedal, and the vehicle began

to move forward on its own. It idled normally.

There [were] no signs of any racing or any

malfunction of the engine. It went approximately 20

or 22 feet. This is a slight grade down that I

would be doing not a significant grade.

"Then suddenly without warning the vehicle

accelerated and it accelerated abruptly. The engine

was racing. I –

"Q: Where was your foot all of this time?

"A: My foot was hovering at first between the

brake and the accelerator because I had released the

pressure from the brake. The vehicle began to move.

At that point, I saw that I was coming up on the

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trees, and I was planning to park near the shade. I

begin to cut the vehicle. The trees would have been

straight ahead of me. At the angle I was going I

cut the vehicle sharply to the left, and I quickly

did a series of things. I looked down, I assumed

that maybe my wife had put something on the seat or

something had rolled out and was hitting the

accelerator or blocking the brake. I started trying

to hit the brakes again. There was no effect, just

like I didn't have the brake on. I looked down to

see what the problem was. There was nothing against

the accelerator. There was nothing blocking the

brake pedal.

"At this point I could see, you know, where my

foot was. It was on the brake. I continued to cut

the vehicle to the left sharply. The wheels are

rotating and sliding. I refer to it as going into a

jarring or rotating around. At this point I see

that I have a open gate that leads to our pasture.

And my thinking was if I can steer away from this

trouble, which is what we are trained to do, get

this vehicle through that gate into the open

pasture, I would have time to stop the vehicle

safely. But due to having to cut the vehicle

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sharply there was a guide wire to my right. I tried

to avoid that. It was a telephone pole to my left,

a utility pole. I would say the vehicle continued

to rotate around, and I went through between the

guide wire and the utility pole in a broadside

position with my front end had turned around –

. . . .

"Q: What were you observing and thinking all

of this time?

"A: At first I didn't know what to think. I

could not understand what was causing this vehicle

to accelerate. And as I steered the vehicle, it

went into this slide, and I saw that the vehicle was

going completely out of control. The front bumper

guard just did touch the utility pole and the

vehicle continues right around and the front end

swaps from a north direction to a south direction.

And I am looking at the propane tank in our

backyard. At that point I thought I literally was

going to die right there if I don't get this vehicle

stopped. And at that point that is when I took and

jammed the gear selector from drive into park.

"Q: What happened? Did you hear any noises?

"A: Yes, sir, I did.

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 "Q: Describe for the [c]ourt and jury what you

heard and what happened to you?

"A: It is difficult to describe the noise that

it made, but it made kind of like a clicking,

ratchety sound as it went up into park. When it did

that, it was such force from the vehicle coming

around that the vehicle just literally just sit

there just like that and hopped up and down. Prior

to me doing this, the force of the vehicle turning

around I had just started to slide from under the

steering wheel across the seat, but had held onto

the steering wheel because I did not have a seat

belt on, and it was difficult to stay behind the

steering wheel. After I had put the vehicle into

park and it sit there and stopped going up and down,

I just sit there. I was emotionally frightened. I

was weak, you know, literally made me sick at the

stomach.

"Q: What was the engine doing all of this

time?

"A: The engine was revving wide open just

racing."

According to Campbell's deposition testimony, he later

met with representatives of Ford, including Hanes Barger, an

13
engineer. Barger inspected the car, and he interrogated

Campbell in detail about the sudden acceleration event.

Barger was unable to find any defects in the car that could

have caused the sudden acceleration. Campbell also met with a

technical service engineer employed by Ford, Ron Bissi. Bissi

informed Campbell that he must have had his foot on the

accelerator pedal and not the brake when Campbell's incident

occurred. Campbell replied:

"And my response to them always and I am

absolutely sure of this that I did at no time put my

foot on the accelerator, that I had my foot on the

brake unless I was pumping the brakes or unless I

had released it to try to steer. And I visually

looked down and saw where my foot was located.

After the vehicle stopped and the engine continued

to rev, both of my feet were in the floorboard of

that vehicle touching nothing, but the floorboard."

Campbell's 1991 Grand Marquis accelerated unexpectedly a

second time when his wife was driving the car in reverse.

John W. Baker, an employee with the United States Secret

Service, Department of Treasury, testified in a deposition in

a case styled Vickey Selman v. Ford Motor Co., filed in the

United States District Court for the Eastern District of

Arkansas, Civil No. PB-C-94-474. He stated in the deposition

14
that, after he started the engine of a 1991 Lincoln Town Car

manufactured by Ford, he shifted the car from "transmission

position to drive." His foot was still on the brake pedal.

The engine was "idling." Then, the engine began to race, and

the wheels began to spin. The car moved forward at a high

speed. Baker had to "stand on the brake" in order to stop the

car.

Robert A. Diehl, another employee with the United States

Secret Service, also gave a deposition in the Selman

proceeding. He is an automobile mechanic assigned to the

Protective Vehicle Branch of the United States Secret Service.

Diehl testified that the acceleration mechanisms in the

Lincoln Town Car, Ford Crown Victoria, and Mercury Grand

Marquis, automobiles manufactured by Ford, are the same. He

stated that the cruise control systems in these vehicles are

the same.

He testified as follows:

"I got in the [Ford] vehicle, started it up,
put my foot on the brake. I know I put my foot on
the brake because that's just a creature habit of
mine, you know, being a mechanic and being around
these things, put it into drive, and now I can't
tell you 100 percent for sure if that vehicle took
off when I removed my foot from the brake when I put
my foot on the accelerator, or if it did it while my
foot was on the brake, but I know when I put that
vehicle into drive is when I had the unintentional
acceleration, and the vehicle laid probably ten, 15
feet of rubber in the building. That was smooth
concrete floor.

15
 "And the way I was able to get that vehicle to
stop, I was able to react quickly to it knowing so
much about the vehicles was just by simply turning
off the ignition switch. I didn't even bother
trying to put both feet on the brakes or anything
like that because you just know being in my business
that if you kill the electrical source, the car is
going to stop."

Theodore M. Steiner, a special agent with the United

States Secret Service, also testified in a deposition in the

Selman case. He described the following sudden acceleration

event involving a Ford Crown Victoria automobile:

"I can remember going out to the parking lot at the
Naval Observatory, which is basically the home of
the [V]ice [P]resident. We have our command center
across the street there, and there was a vehicle out
there, the Crown Victoria, and I remember it was
running. Someone asked me to move the vehicle
because it was blocking another car. So since it
was blocking and had to be moved, I remember getting
in it and putting it in reverse and all of a sudden
it took off. Sudden acceleration, unexplained. I
didn't know what was going on. I hit the brake
immediately, and at that time the brake didn't seem
to stop the vehicle. It still, the tires were
squealing, and right behind me was a rail, and the
car backed up into it putting itself up on top.
"At that point, I was able to shut the engine
off and stop the acceleration, but the braking
didn't stop the incident from occurring. It just
took off so I knew there was something wrong with
the car itself because it was moving so quickly."

Steiner also testified that once he shifted the car from

park to reverse, he applied light pressure to the accelerator

pedal. "That's when the engine began to race, and even with

my foot on the brake, it was even racing at that point to the

point where I heard the tires squealing. . . . [A]t the point

16
where the car was in acceleration, I applied tremendous amount

of pressure to the brake because I was trying to stop the

vehicle, and it wasn't working because the car was still

moving in reverse."

Ford compiled information about customer complaints of

unintended acceleration incidents in various cars manufactured

by Ford. The complaints were compiled in a series of

documents described as the Updegrove Study. The study, which

includes about 2,900 external complaints of sudden

acceleration incidents in cars and trucks manufactured by

Ford, was supervised by Allen Updegrove, a Ford employee.

This study included a categorization of the unintended

acceleration events. Some events were classified as caused by

operator error, other events were caused by mechanical

malfunction, and a majority of the events were unexplained and

classified as "no cause identified."

III.

A.

The plaintiff asserted in pretrial motions that she was

entitled to enter into evidence the depositions of Ronald H.

Campbell and the three Secret Service employees. She also

contended that she was entitled to present as evidence the

findings contained in the Updegrove Study.

17
 During a pretrial hearing, the following colloquy

occurred among the court and counsel for the plaintiff and

Ford:

"THE COURT: Before we get started, let me ask
a question. It seems to me some of these motions
can be resolved if the Ford Motor Company is
prepared, as they keep saying in their pleadings, to
make a judicial admission that the Ford Motor
Company had notice that the[re] were sudden
acceleration incidents in cars equipped with stand-
alone cruise-control systems prior to this incident.

"[FORD'S COUNSEL]: Your Honor, I don't think
there is any dispute that Ford would agree to a
judicial admission that there were allegations along
those lines prior to this incident.

"THE COURT: Well, not the allegations; but you
had notice of such incidents.

"[FORD'S COUNSEL]: With these allegations,
notice of incidents of these allegations, yes, Your
Honor.

"THE COURT: Notice that there were sudden
acceleration incidents in cars equipped with stand-
alone cruise-control systems?

"[FORD'S COUNSEL]: That's correct.

"THE COURT: And Ford makes a judicial
admission to that fact?

"[FORD'S COUNSEL]: Yes, Your Honor.

"THE COURT: It seems to me that that takes
care of the deposition testimony, the Updegrove
Study motions. I guess it takes care of those two,
doesn't it?

"[FORD'S COUNSEL]: Your Honor, I think it in
addition would resolve the motion to exclude
evidence of similar incidents.

18
 "THE COURT: Correct.

"[PLAINTIFF'S COUNSEL]: I don't think it
would, Your Honor, if I could be heard on that.

"THE COURT: Why not?

"[PLAINTIFF'S COUNSEL]: Ford has denied that
these incidents have occurred to people. And [Ford
has] also said in [a] supplemental answer to
Interrogatory No. 21 that Ford states a sudden
unintended acceleration of a stationary vehicle
cannot be induced or precipitated by a malfunction
in a cruise-control system –

"THE COURT: That has nothing to do with their
notice. You have to show as part of the product
liability case that they had notice that there were
such incidents. Whether they agree to the causation
of such incidents is another issue.

"[PLAINTIFF'S COUNSEL]: Right. But that's why
we should be allowed to put on witnesses who also
experienced this, because they're saying to the jury
that this never happened.

"THE COURT: The cases are quite clear that you
can't put on such evidence to prove your case that
it happened in this case. All you can [do is] put
it on . . . for notice. . . ."

Consistent with its pretrial ruling, the circuit court

instructed the jury as follows:

"You are instructed the defendant has admitted
that prior to the production of the 1991 Lincoln
Town Car and prior to this accident it had received
notice of other claims of sudden unintended
acceleration events from other operators of other
stationary vehicles produced by Ford.
"To the extent that any of plaintiff's claims
against the defendant require proof of notice of
other claims, this fact is admitted by the defendant
and requires no further proof by the plaintiff."

B.

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 The plaintiff argues that the circuit court erred in

prohibiting her from using the depositions and the Updegrove

Study to show that Ford had notice of a defective condition in

its electronic cruise control system. Continuing, the

plaintiff contends that Ford's purported judicial admission is

illusory because the plaintiff sought to prove that Ford had

notice of a defect in its electronic cruise control that

causes sudden acceleration, and not merely that Ford had

notice of sudden acceleration of its automobiles.

Additionally, the plaintiff claims that she was entitled to

use the depositions and the Updegrove Study to rebut Ford's

evidence that a sudden acceleration in a stationary vehicle

cannot occur.

Responding, Ford contends that once it made a judicial

admission that it had notice of unintended incidents of

acceleration in its vehicles, the plaintiff was prohibited

from presenting any testimony on this issue. Ford also argues

that evidence of incidents or accidents unrelated to

plaintiff's accident is admissible only to show notice and may

not be used to corroborate a plaintiff's claims that a product

is defective.

As we have already observed, the plaintiff alleged that

Ford breached its duty to warn her that the 1991 Lincoln Town

Car could suddenly accelerate without warning. We stated in

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Featherall v. Firestone, 219 Va. 949, 962, 252 S.E.2d 358, 366

(1979), that a plaintiff who seeks to establish that a

manufacturer breached its duty to warn 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."

(Quoting Restatement (Second) of Torts § 388 (1965)); accord

Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 134-35,

413 S.E.2d 630, 634 (1992). In this case, the plaintiff was

required to present evidence that Ford knew or had reason to

know that its 1991 Lincoln Town Car was or was likely to be

dangerous for the use for which it was supplied.

We have also stated the following principles which are

pertinent here:

"The essence of a judicial admission is its
conclusiveness. To constitute a judicial admission,
the admission must conclusively establish a fact in
issue. The admission may not be thereafter
qualified, explained, or rebutted by other evidence.
Consequently, once a fact has been established by a
judicial admission, evidence tending to prove the
fact admitted becomes irrelevant."

General Motors Corp. v. Lupica, 237 Va. 516, 520, 379 S.E.2d

311, 314 (1989).

21
 Applying these principles, we hold that Ford's purported

judicial admission was incomplete and inconclusive. Ford's

purported judicial admission did not establish a fact in

issue. At best, Ford admitted that prior to its manufacture

of the 1991 Lincoln Town Car and prior to plaintiff's

accident, Ford had notice of other claims of sudden unintended

acceleration events from other drivers of vehicles

manufactured by Ford. In its purported judicial admission,

Ford did not admit that it had notice that these unintended

acceleration events were caused by a defect in its cruise

control system. Ford's purported judicial admission of notice

of unintended accelerations is not equivalent to an admission

that Ford had notice of a defect in the cruise control system

in its automobiles. For example, Ford argued in this case

that an act of unintended sudden vehicular acceleration can

occur if the driver of the automobile mistakenly presses the

accelerator pedal instead of the brake pedal. And, the

plaintiff does not dispute that a car can accelerate

unintentionally if the driver mistakenly applies the

accelerator pedal.

Ford specifically disavowed that its manufactured

vehicles could accelerate without operator error. And, Ford's

expert witness testified that Ford's vehicles could not

accelerate in the manner described by the plaintiff and, even

22
if such acceleration occurred, the car's engine would

disengage if the driver of the car "taps" the brake pedal.

Yet, armed with its illusory judicial admission, Ford was able

to bar the plaintiff from presenting evidence to establish

that Ford had notice that its vehicles would accelerate

suddenly without operator error and that these vehicles would

not stop when the drivers applied the brake pedals.

We hold that the circuit court erred in accepting Ford's

purported judicial admission. Therefore, the plaintiff should

have been allowed to present the deposition testimony of

Ronald Campbell and the United States Secret Service employees

to show that Ford knew or had reason to know that a defect

existed in its vehicles which caused the vehicles to suddenly

accelerate and that such acceleration could not be controlled

even when the driver of the vehicle applied the brake pedal.

We have stated that

"evidence of similar accidents, when relevant, will
be received to establish that defendant had notice
and actual knowledge of a defective condition,
provided the prior incident occurred 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). This
rule, however, is limited to proof of notice and
actual knowledge and does not authorize admission of
the evidence substantively as 'corroboration.' "

Ford Motor Co. v. Phelps, 239 Va. 272, 276-77, 389 S.E.2d 454,

457 (1990). We observe that the record before us contains

23
evidence that the sudden acceleration events that Campbell and

the United States Secret Service employees experienced

occurred under substantially the same circumstances and had

been caused by the same or similar defects and dangers as

those in the plaintiff's case. Even though all the witnesses

did not experience sudden acceleration events while operating

their cars in reverse gear, this distinction is not material.

All the witnesses experienced unintended sudden acceleration

and none was able to stop his car with the normal application

of the brake pedal. And, we note that Ford does not argue in

its brief that the plaintiff failed to demonstrate that the

events of sudden acceleration described by these witnesses

fail the test of substantial similarity that we discussed in

Phelps. Indeed, Ford does not make any contentions in its

brief regarding the deposition testimony that the plaintiff

sought to introduce to establish that Ford had notice of the

purportedly defective condition in its cruise control system.

We note that our holding today is consistent with our

decision in General Motors Corp. v. Lupica, supra. In Lupica,

two plaintiffs filed separate actions against General Motors

Corporation to recover compensatory and punitive damages for

injuries they incurred when a car manufactured by General

Motors collided with a tree. The plaintiffs alleged that the

car's steering system did not contain a filter or screen to

24
prevent particles from entering the hydraulic fluid.

Consequently, particles in the fluid became wedged between the

cylinders within the power steering system and caused it to

malfunction. This malfunction caused the automobile to "self-

steer" and "go out of control." 237 Va. at 518-19, 379 S.E.2d

at 312-13.

General Motors contended that the circuit court erred by

admitting certain documents in evidence. We held that

evidence of other similar accidents or occurrences, when

relevant, is admissible to show that a defendant had notice

and actual knowledge of a defective condition, provided that

the prior accidents or occurrences happened under

substantially the same circumstances and had been caused by

the same or substantially similar defects and dangers as those

in issue. We stated that such

"evidence is admissible in a products liability case
to establish foreseeability and a defendant's duty
to a plaintiff. When a defendant has notice and
actual knowledge of a defect, it owes a duty to a
plaintiff 'to take the steps reasonably necessary to
remedy the defect.' "

Id. at 521, 379 S.E.2d at 314 (quoting Roll 'R' Way Rinks v.

Smith, 218 Va. 321, 329, 237 S.E.2d 157, 162 (1977)). We

applied this test in Lupica, and we held that certain exhibits

that the circuit court admitted to show notice met the

substantial similarity test. However, we also held that other

25
admitted exhibits failed the substantial similarity test

because they did not identify specific occurrences. For

example, one publication that the circuit court improperly

admitted in evidence was a newspaper columnist's exposé about

defects in power steering systems manufactured by General

Motors and their potential danger to the general public.

Another exhibit was improperly admitted because it failed the

test of substantial similarity. Id. at 521-22, 379 S.E.2d at

314-15.

Unlike the exhibits that were improperly admitted in

Lupica, the deposition testimony before this Court satisfies

the test of substantial similarity. Ford concedes that the

speed of a car can only be controlled by one of two factors,

an act by the driver or the cruise control system. Three of

the deponents testified that they did not apply the

accelerator pedals, but nonetheless, their cars accelerated

and all the deponents testified that the cars would not stop

with normal application of the brake pedals. Thus, unlike

Lupica, in this case, all the depositions contain evidence of

a defect in the manufactured automobile.

C.

The circuit court did not err, however, in its ruling

that prohibited the admission in evidence of the Updegrove

Study. The Updegrove Study contains unsworn claims of

26
complaints of vehicle malfunction. There is simply no

evidence that the 2,900 claims mentioned in the Updegrove

Study occurred under substantially the same circumstances as

the plaintiff's incident and had been caused by the same or

similar defects and dangers as those in the plaintiff's case.

Thus, under our holding in Phelps, this study is inadmissible.

And, we observe that we specifically held in Phelps that we

will not permit the admission in evidence of complaints of

similar accidents to corroborate a plaintiff's version of how

an accident occurred. Phelps, 239 Va. at 276-77, 389 S.E.2d

at 457.

For these same reasons, we also hold that the circuit

court did not err in refusing to permit the plaintiff's expert

witness, William D. Berg, to testify about the Updegrove Study

or use it as a predicate for his opinions.

D.

The plaintiff asserts that the circuit court erred in

refusing to permit her to present evidence that the opinions

offered by Ford's expert witnesses were contradicted and

disproven by Ford's study regarding the causes of defects in

the cruise control system. The plaintiff also contends that

she was entitled to present other evidence to contradict

Ford's expert witnesses. The plaintiff focuses upon the

following testimony that Ford elicited from DeClercq:

27
 "Q: Can the 1991 Lincoln Town Car rapidly
accelerate from zero to 20 miles an hour in any way
other than by the application of the accelerator?

"A: No.
. . . .

"Q: So if that can't happen, is there any
reason why you would warn about it or write about it
in the owner['s] manual?

"A: Probably not."

Additionally, DeClercq opined that the Lincoln Town Car could

not have accelerated in reverse had the plaintiff applied the

brake pedal.

We disagree with the plaintiff's contention that she was

entitled to use the Updegrove Study to contradict Ford's

expert witnesses. Based upon the record before this Court, we

conclude that the Updegrove Study is not reliable and,

therefore, it cannot be used as a basis to impeach Ford's

expert witnesses.

We do hold, however, that the circuit court should have

permitted the plaintiff to use the deposition testimony of

Campbell and the United States Secret Service employees to

impeach DeClercq's testimony. Contradiction can be a form of

impeachment and a witness may be impeached with contradictory

testimony of others. The deposition testimony of Campbell and

the United States Secret Service employees squarely

contradicts DeClercq's testimony that a Lincoln Town Car could

28
not accelerate if a driver applies the brake pedal. We do

observe, however, that upon retrial, if DeClercq renders the

same opinion that he rendered in this case and the plaintiff

elects to impeach him with this deposition testimony, Ford is

entitled to a jury instruction that this testimony should be

considered for impeachment purposes only and not as

substantive evidence of the existence of a defect in Ford's

cruise control system. See, e.g., Pugh v. Commonwealth, 233

Va. 369, 374, 355 S.E.2d 591, 594-95 (1987); Stoots v.

Commonwealth, 192 Va. 857, 866, 66 S.E.2d 866, 871 (1951).

We disagree with the plaintiff's contention that the

circuit court erred when it refused to permit her to elicit

questions about DeClercq's conversation with a Ford attorney

regarding that attorney's impressions on the appropriate use

of resources in defending Ford products and litigation. The

plaintiff sought to elicit information about conversations

that DeClercq had with an attorney in Ford's office of the

general counsel relating to a case in Wyoming. The

conversation concerned the Updegrove Study and trial strategy

in that case. We hold that the circuit court properly

excluded this testimony because it concerned matters protected

by the work product doctrine and the attorney-client

privilege.

E.

29
 Brackett, who testified on behalf of Ford, qualified as

an expert witness on the subjects of human factors and

behavior science. As he was beginning to testify, the

following colloquy occurred:

"[FORD'S COUNSEL]: And, Dr. Brackett, is it a
fair statement that you were asked in this case to
determine whether it's a possibility that Mrs.
Jones, unfortunately, made a mistake and made a
pedal error in this case?

"[PLAINTIFF'S COUNSEL]: Objection; foundation.

"THE COURT: Overruled.

"A: Yes. In fact, that was really my
intention or assumption, I was to look at the
behavior of the driver involved in the incident to
see if there was a possibility of a pedal
misapplication or pedal error."

Brackett continued to testify, without any further

objection, about experiments he had conducted to test driver

reaction time. He stated that he conducted an experiment

involving 100 students. Each student was placed in a "buck

apparatus" similar to the driver seat area of a car. The

participants assumed the driver's position and were confronted

with the sudden appearance of obstacles. The students were

instructed to apply either the accelerator pedal or brake

pedal as quickly as possible when the obstacles appeared.

According to Brackett, three of the students incorrectly

stepped on the accelerator pedal rather than the brake pedal

during this simulated driving test. Based in part upon this

30
experiment and the opinions of others, Brackett opined that

the plaintiff placed her foot on the accelerator pedal when

she thought she was applying the brake pedal.

On appeal, the plaintiff argues that the circuit court

erred by admitting Brackett's testimony in evidence because

the conditions existing at the time of his experiments were

not similar to the conditions that existed when the plaintiff

was injured. Additionally, the plaintiff argues that

Brackett's expert opinions were not admissible because they

were based on the opinions of others. We will not consider

the plaintiff's contentions because she failed to make a

proper objection at trial. We have reviewed the record, and

the sole objection that the plaintiff made to Brackett's

testimony was the above-referenced statement, "[o]bjection;

foundation." This objection is not sufficient to encompass

the contentions that the plaintiff raises on appeal. Rule

5:25; see, e.g., Molchon v. Tyler, 262 Va. 175, 183 n.2, 546

S.E.2d 691, 696 n.2 (2001); Hamilton Development Co. v. Broad

Rock Club, 248 Va. 40, 44, 445 S.E.2d 140, 143 (1994).

F.

During the discussion among the court and counsel

regarding the jury instructions, the plaintiff submitted a

jury instruction on the defendant's duty to test and inspect

31
the cruise control system in its automobile. During that

discussion, the following colloquy ensued:

"[FORD'S COUNSEL]: . . . Ford objects to [this
instruction] on the grounds that I think that this
is not something that is independent from the
negligent design claim and that there ought not to
be a specific instruction and undue emphasis on the
aspect of inspections or testing.

"I think that this is subsumed within the
question of whether Ford exercised reasonable care
in the design of its product which is covered by all
the instructions.

[PLAINTIFF'S COUNSEL]: We allege failure to
test and inspect. We proved failure to test and
inspect. We're entitled to an instruction on test
and inspect.

"THE COURT: What was the proof of the failure
to test and inspect?

[PLAINTIFF'S COUNSEL]: Mr. DeClercq's own
testimony and Mr. Sero's testimony that they never
tested on the output side of – with injected
signals, negative transients on the output side of
the servo.

[FORD'S COUNSEL]: I know there's a model [jury
instruction] on this, Your Honor. I just don't
think it's an independent tort.

THE COURT: I don't think [the proposed
instruction] fits the facts in this case. Either
[Ford] designed it improperly or [Ford] didn't. And
I'm going to refuse [the proposed instruction].

[PLAINTIFF'S COUNSEL]: Please note my
objection."

The plaintiff argues that she presented sufficient

evidence to support her claim that Ford breached its duty to

inspect and test the cruise control system for negative

32
transient signals and that the circuit court erred in failing

to grant her requested jury instruction. Responding, Ford

states: "Plaintiff claims that the trial court erred by

failing to give a 'duty to test' instruction. On this issue,

the trial court properly found that such an instruction was

unnecessary because the duty to test is subsumed within the

general duty of the manufacturer to avoid acting in a

negligent manner, and was thus covered by the general

negligence instructions given in the case. . . . There was no

error in refusing this instruction."

We observe that upon our review of the plaintiff's motion

for judgment, the plaintiff did not plead that Ford breached a

duty owed to her because of its failure to test and inspect

the cruise control system. It is true that the plaintiff

alleged in her motion for judgment against defendant Cherner

Lincoln Mercury only that the cruise control system "was not

adequately and properly tested for the purpose of determining

whether a sudden, unintended acceleration event was possible."

However, the plaintiff dismissed Cherner Lincoln Mercury from

this lawsuit, and she did not amend her pleadings, nor did she

request to amend her pleadings, to allege a failure to inspect

and test claim against Ford. A plaintiff may not recover upon

a cause of action she failed to plead. See Ted Lansing Supply

v. Royal Aluminum, 221 Va. 1139, 1141, 277 S.E.2d 228, 229-30

33
(1981). Therefore, the circuit court did not err in refusing

the instruction.

G.

The plaintiff contends that the circuit court erred in

instructing the jury on the defense of contributory

negligence. The plaintiff argues that the evidence does not

support this instruction. Responding, Ford argues that

contributory negligence is a defense to a negligence claim in

a product liability action and that it presented evidence to

support the instruction. We agree with Ford.

Ford presented evidence that if a sudden acceleration

event occurred because of a defect in the cruise control

system, the plaintiff could have stopped the car by applying

the brake pedal. Therefore, the record contains more than a

scintilla of evidence to support the granting of a

contributory negligence instruction as a defense to the

plaintiff's claims of negligence. See Ford Motor Co. v.

Bartholomew, 224 Va. 421, 432-33, 297 S.E.2d 675, 680-81

(1982). Of course, the contributory negligence defense is not

a bar to the plaintiff's breach of warranty claims. See Wood

v. Bass Pro Shops, 250 Va. 297, 300-01, 462 S.E.2d 101, 103

(1995). If the evidence of contributory negligence remains

the same during a new trial, Ford will be entitled to a

contributory negligence instruction.

34
 H.

The plaintiff argues that if Ford is entitled to a

contributory negligence instruction, then she is entitled to a

sudden emergency instruction. She asserts that she was

confronted with a sudden emergency, and she had no time for

the deliberate exercise of judgment. Ford responds that since

the jury found that it "was not at fault in this accident,

contributory negligence simply was not an issue in the jury's

determination of liability in this matter." Ford also argues

that "[p]laintiff's present claim that the 'sudden emergency'

instruction should have been granted thus represents harmless

error at best." Finally Ford asserts that "the refusal to

give the charge was sound on the facts of this case, [and] it

is in any event moot given the jury's defense verdict." We

disagree with Ford's arguments.

We have stated the following principles regarding the

sudden emergency doctrine:

"Under the sudden emergency doctrine, the
driver of an automobile is excused from liability
if, without prior negligence on his part, he is
confronted with a sudden emergency and acts as an
ordinarily prudent person would have acted under the
same or similar circumstances. Pickett v. Cooper,
202 Va. 60, 63, 116 S.E.2d 48, 51 [(1960]; Southern
Passenger Motor Lines v. Burks, 187 Va. 53, 60, 46
S.E.2d 26, 30 [(1948)].
"Ordinarily the question of application of the
sudden emergency doctrine is for the triers of fact.
When evidence is conflicting or different inferences
may be drawn from the evidence, it is for the jury

35
 to say (1) whether [the operator of the automobile]
was confronted with an emergency; (2) whether the
emergency, if one existed, was created by [the
operator's] own negligence; and (3) whether [the
operator of the vehicle] conducted himself as an
ordinarily prudent person might have done under the
same or similar circumstances."

Cowles v. Zahn, 206 Va. 743, 746-47, 146 S.E.2d 200, 203

(1966); accord Carolina Coach Co. v. Starchia, 219 Va. 135,

141, 244 S.E.2d 788, 792 (1978). And, we have stated that if

the sudden emergency doctrine is to apply, the conditions

confronting the operator must be an unexpected happening, an

unforeseen occurrence or condition. Gardner v. Phipps, 250

Va. 256, 260, 462 S.E.2d 91, 94 (1995).

We hold that the circuit court erred by refusing to grant

the plaintiff's jury instruction on the sudden emergency

doctrine. Even though the grant of a sudden emergency

instruction is rarely appropriate, such instruction should

have been given in this case. There is more than a scintilla

of evidence that would have permitted a jury to find that the

plaintiff was confronted with an emergency created by the

defendant's negligence and that the plaintiff acted as an

ordinarily prudent person would have acted under the same or

similar circumstances. Therefore, if the evidence is

substantially the same during a new trial and if Ford receives

an instruction on contributory negligence, the plaintiff will

36
be entitled to an instruction on the sudden emergency

doctrine.

IV.

A.

In summation, we hold the following. Ford's assertion

that it had notice of unintended acceleration events did not

constitute a judicial admission. Therefore, the circuit court

erred in refusing the plaintiff's motion to permit her to

introduce in evidence the depositions of Ronald Campbell and

the United States Secret Service employees to show that Ford

had notice of defects in its vehicles, that the defects could

cause its vehicles to accelerate unexpectedly, and that Ford

knew or should have known that its vehicles could accelerate

unexpectedly even when the drivers of the vehicles applied the

brake pedals; the circuit court properly refused to admit the

Updegrove Study in evidence; the circuit court did not err in

refusing to permit the plaintiff to use the Updegrove Study to

cross-examine Ford's expert witness; the circuit court erred

in denying the plaintiff's request to use the deposition

testimony of Campbell and the Secret Service employees to

impeach Ford's expert witnesses; the plaintiff failed to make

a proper objection to the testimony of Brackett and,

therefore, we do not consider that issue on appeal; the

circuit court did not err by instructing the jury on the

37
defense of contributory negligence; the circuit court erred by

failing to grant the plaintiff's sudden emergency instruction;

and the circuit court did not err in refusing to grant the

plaintiff's request for a jury instruction on Ford's duty to

test and inspect because she failed to plead that Ford

breached such duty.

B.

Accordingly, the judgment of the circuit court is

affirmed in part, reversed in part, and this case is remanded

for a new trial consistent with the views expressed herein.

Affirmed in part,
reversed in part,
and remanded.

JUSTICE KINSER, with whom JUSTICE LACY and JUSTICE KOONTZ
join, concurring in part and dissenting in part.

Because I conclude that the circuit court did not abuse

its discretion in excluding evidence of other alleged similar

incidents of sudden acceleration, I would affirm the circuit

court’s judgment in favor of Ford Motor Company (Ford). I

also believe that the court did not abuse its discretion by

admitting the testimony of Robert Quinn Brackett, Jr., and

that any error in granting the jury instruction on

contributory negligence and refusing to instruct the jury on

the issue of sudden emergency was harmless. Thus, I

respectfully dissent in part and concur in part with the

38
majority decision. I will address these specific issues and

discuss additional facts where necessary.

I. JUDICIAL ADMISSION, THE UPDEGROVE REPORT,
AND EVIDENCE OF OTHER SIMILAR INCIDENTS

The term “judicial admission” is defined as “[a] formal

waiver of proof that relieves an opposing party from having to

prove the admitted fact and bars the party who made the

admission from disputing it.” Black’s Law Dictionary 49 (7th

ed. 1999); see also Charles E. Friend, The Law of Evidence in

Virginia § 18-37 (5th ed. 1999) (“ ‘Judicial admissions’ are

concessions made by a party during the course of litigation

which bind the party and prevent contrary evidence from being

introduced.”). Thus, a party may admit certain facts at

issue, thereby dispensing with the need for proof of the facts

admitted and relieving the other party of proving those facts.

See Eubank v. Spencer, 203 Va. 923, 925, 128 S.E.2d 299, 301

(1962). See also Pedersen v. Vahidy, 552 A.2d 419, 424 (Conn.

1989); Goldsmith v. Allied Bldg. Components, 833 S.W.2d 378,

380 (Ky. 1992); Clapp v. Clapp, 85 S.E.2d 153, 155 (N.C.

1954); State v. McWilliams, 352 S.E.2d 120, 127 (W. Va. 1986).

We have held that “[t]he essence of a judicial admission

is its conclusiveness.” General Motors Corp. v. Lupica, 237

Va. 516, 520, 379 S.E.2d 311, 314 (1989). This is so because

such admissions are “made for the purpose of dispensing with

39
the formal proof of some fact at the trial.” Virginia-

Carolina Chem. Co. v. Knight, 106 Va. 674, 678, 56 S.E. 725,

727 (1907). Thus, “[t]o constitute a judicial admission, the

admission must conclusively establish a fact in issue.”

Lupica, 237 Va. at 520, 379 S.E.2d at 314. The admission may

not then be controverted, “qualified, explained, or rebutted”

by any other evidence. Id.

Unlike the majority, I believe that Ford’s admission

conclusively established a fact in issue. Ford admitted that

it had notice of other claims of sudden, unintended

acceleration from operators of Ford vehicles. The admission

was not indefinite or a matter of opinion, see Gunter v.

Hamilton Bank of Upper East Tenn., 411 S.E.2d 115, 117 (Ga.

Ct. App. 1991); Palmer v. Hobart Corp., 849 S.W.2d 135, 139-40

(Mo. Ct. App. 1993), but addressed a fact in issue with regard

to Margaret Jones’ claim for negligent failure to warn. I

agree with the majority that Ford did not admit that it had

notice of a defect in the design of its electronic cruise

control system. However, a judicial admission is an admission

of a fact in issue. Lupica, 237 Va. at 520, 379 S.E.2d at

314. In contrast to the majority, I do not believe that a

judicial admission is “incomplete and inconclusive” merely

because it admits a fact in issue as opposed to an element

necessary to establish a particular cause of action.

40
 Since a judicial admission relieves the opposing party

from having to prove the admitted fact, the relevant inquiry

is whether further proof of that fact should be allowed. The

admission of such evidence lies within a trial court’s

discretion. McHenry v. United States, 276 F. 761, 766-67

(D.C. Cir. 1921); Piper v. Barber Transp. Co., 112 N.W.2d 329,

336 (S.D. 1961). A trial court may refuse to allow the

introduction of additional evidence with regard to an admitted

fact if such evidence would be cumulative, confusing to the

jury, or would unnecessarily delay the proceedings. Hes v.

Haviland Products Co., 148 N.W.2d 509, 512 (Mich. Ct. App.

1967). See also Walker v. Commonwealth, 258 Va. 54, 68, 515

S.E.2d 565, 573 (1999), cert. denied, 528 U.S. 1125 (2000)

(within trial court’s discretion to exclude relevant evidence

if its probative value is outweighed by danger of unfair

prejudice). However, a party should not be permitted to

preclude the introduction of otherwise admissible evidence by

judicially admitting something less than what the evidence

would show. Cf. Spencer v. Commonwealth, 240 Va. 78, 91, 393

S.E.2d 609, 617, cert. denied, 498 U.S. 908 (1990)(“a

defendant may not preclude the introduction of otherwise

admissible evidence by an offer to stipulate less than the

evidence would show”).

41
 After Ford made its judicial admission, the circuit court

concluded that introduction of the deposition evidence

pertaining to other incidents of sudden acceleration and the

Updegrove Report would have raised collateral issues and

caused unnecessary delay in the trial. I agree. Thus, I

conclude that the circuit court did not abuse its discretion

in this case unless the excluded evidence was, otherwise,

admissible and established facts outside the scope of Ford’s

judicial admission, that is, if Ford admitted something less

than what the proffered evidence would have shown. See

Spencer, 240 Va. at 91, 393 S.E.2d at 617. Even if the

majority were correct that Ford’s judicial admission was

illusory, the pertinent inquiry is the same: whether the

Updegrove Report and the deposition testimony of other similar

incidents of sudden acceleration were admissible. I turn now

to that question.

Jones sought to introduce the Updegrove Report and the

deposition testimony describing other sudden acceleration

incidents in order to establish that Ford knew or had reason

to know that the electronic cruise control system installed in

its 1991 Lincoln Town Car was or was likely to be dangerous

for the use for which it was sold. See Featherall v.

Firestone Tire & Rubber Co., 219 Va. 949, 962, 252 S.E.2d 358,

366 (1979). This Court has stated on numerous occasions that

42
“[e]vidence of other similar accidents or occurrences, when

relevant, is admissible to show that the defendant had notice

and actual knowledge of a defective condition; . . . [if the

prior] occurrences happened . . . under substantially the same

circumstances, and had been caused by the same or similar

defects and dangers as those in issue . . . .” Spurlin v.

Richardson, 203 Va. 984, 989, 128 S.E.2d 273, 277 (1962)

(citations omitted); accord Owens-Corning Fiberglas Corp. v.

Watson, 243 Va. 128, 137, 413 S.E.2d 630, 635 (1992); Ford

Motor Co. v. Phelps, 239 Va. 272, 276-77, 389 S.E.2d 454, 457

(1990); Lupica, 237 Va. at 521, 379 S.E.2d at 314; Roll ‘R’

Way Rinks v. Smith, 218 Va. 321, 325, 237 S.E.2d 157, 160

(1977). “[T]he test of admissibility is . . . substantial

similarity.” Roll ‘R’ Way Rinks, 218 Va. at 325, 237 S.E.2d

at 160. “If the place, the circumstances, and the defect

associated with a prior accident are substantially the same as

those in issue, evidence of that accident is admissible to

show notice of the existence of the defect and notice of its

dangerous potential.” Id. at 325-26, 237 S.E.2d at 160

(emphasis added). Thus, substantial similarity requires, in

part, that the other incidents be “caused by the same or

similar defects and dangers as those in issue.” Spurlin, 203

Va. at 989, 128 S.E.2d at 277.

43
 This particular prerequisite for the admissibility of

evidence of other occurrences is evident from our cases. In

Lupica, we examined evidence of similar incidents and noted

that most of the exhibits met the test of substantial

similarity because they contained “statements of occurrences

where the power steering on a General Motors automobile

manufactured between 1964 and 1978 malfunctioned due to

particulate in the system that caused the automobile to ‘self-

steer’ and to go out of control.” 237 Va. at 521, 379 S.E.2d

at 314. For example, in one of the exhibits, which was an

internal General Motors memorandum that this Court found was

properly admitted into evidence, a senior project engineer for

General Motors stated that examination of the power steering

gear from the vehicle in question showed that “some foreign

material had passed thru [sic] the valve.” 1 That defect was

the same as the plaintiffs had alleged was present in the

vehicle owned by Lupica. Id. at 518-19, 379 S.E.2d at 312-13.

In contrast, we concluded that another proffered exhibit

failed the test of substantial similarity because it contained

specific documentation that “‘disassembly and inspection of

the power steering gearbox revealed no defects due to

materials or workmanship that could have been responsible in

1
This particular memorandum was not specifically
addressed in our opinion in Lupica, but it was included in the

44
any way for [the] owner’s accident.’” Id. at 522, 379 S.E.2d

at 315. The significance of these examples is that the only

exhibits that satisfied the test of substantial similarity

were those that unequivocally established the nature of the

defect and that it was the same defect as the one at issue.

Our decision in Lupica was consistent with our prior

decisions regarding the admissibility of evidence of similar

incidents. For example, in Spurlin, “none of the four prior

occurrences [allegedly similar to the one at issue] was shown

to have been caused by defective brakes, [the defect alleged

by the plaintiff], and thus [the incidents] could not have

charged the defendants with notice and actual knowledge of a

defective condition.” 203 Va. at 989-90, 128 S.E.2d at 278.

Hence, we concluded that the trial court did not err in

“excluding such collateral evidence which could only have

confused the issues and misled the jury.” Id. at 990, 128

S.E.2d at 278.

Such substantial similarity, specifically, that the other

events of sudden acceleration were caused by the same or

similar defect as the one at issue, was not demonstrated in

this case with respect to either the Updegrove Report or the

deposition testimony. Although the majority makes the

conclusory statement that “the record . . . contains evidence”

joint appendix, p. 682, filed with the appeal in that case.

45
that the sudden acceleration events described in the

deposition testimony were “caused by the same or similar

defects and dangers as those in [Jones’] case[,]” the majority

fails to point to any testimony in those depositions that

actually supports that conclusion or even discusses the cause

of those acceleration events. 2 Instead, the majority relies on

the testimony of Victor Joseph Declercq and Samuel K. Sero

(stating that the speed of a vehicle can be controlled only by

use of the cruise control or application of the accelerator

pedal) to infer that “the depositions contain evidence of a

defect in the manufactured automobile.”

Even if I were to accept that inference, which I am not

willing to do, we still would not know the nature of the

alleged defect in those vehicles, nor could we without

additional information. This is so because the deposition

testimony raised questions about the condition of those

vehicles and other possible mechanical or electrical problems.

Two of the deponents acknowledged that some vehicles used by

2
The majority also states that “Ford does not argue in
its brief that the plaintiff failed to demonstrate that the
events of sudden acceleration described by these [deposition]
witnesses fail the test of substantial similarity[.]”
However, on brief, Ford stated, “[T]he proffered evidence of
other sudden acceleration incidents does not demonstrate that
there was a defective condition in the vehicles involved in
those claims. Unlike . . . Lupica, Ford does not concede, nor
has it ever been proven, that any of these collateral events

46
the United States Secret Service are modified in some

respects, but they did not know what, if any, modifications

had been made to their respective vehicles prior to the sudden

acceleration events described by them. Another deponent

testified that, after the sudden acceleration incident, he

received a dealer’s invoice stating that the brakes had been

fixed on the vehicle. And the state trooper stated that he

had experienced electrical problems involving the air

conditioner, power windows, and radio in his vehicle prior to

the sudden acceleration event.

This Court has never before allowed evidence of similar

incidents to be admitted when that evidence did not

unequivocally satisfy the test of substantial similarity. The

reasons for our long-standing position are obvious. When

evidence of similar incidents does not categorically

demonstrate that those occurrences were caused by the same or

a substantially similar defect as the one in issue, the

parties will undoubtedly then present evidence with regard to

the cause of each of those other incidents during the course

of the main trial, thus diverting the jury’s attention to

collateral issues. This diversion serves only to confuse the

issues for the jury and to delay the proceedings. In other

in question were caused by an electronic malfunction in the
cruise control system of the vehicle at issue.”

47
words, the jury would be plunged into multiple mini-trials.

Thus, I conclude that the majority’s holding that the

deposition testimony satisfies the test of substantial

similarity is not consistent with our decision in Lupica.

The majority, however, reached a different conclusion

with regard to the Updegrove Report. There, the majority

stated that “[t]here is simply no evidence that the . . .

claims mentioned in the Updegrove Study occurred under

substantially the same circumstances as the plaintiff’s

incident and had been caused by the same or similar defects

and dangers as those in the plaintiff’s case.” While I agree

that the Updegrove Report is not admissible because that

report does not document whether those sudden acceleration

incidents were caused by the same defect as that alleged by

Jones, I must point out that the vast majority of the

incidents described in the Updegrove Report occurred upon gear

engagement, when the transmission was shifted from the park

position to either drive or reverse. Thus, those sudden

acceleration incidents, like those described in the deposition

testimony, occurred under substantially the same circumstances

as did Jones’ sudden acceleration event. Yet the majority is

not willing to use Declercq’s and Sero’s testimony in the same

manner with regard to the Updegrove Report as it does with

respect to the deposition testimony. However, for the purpose

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of determining whether either the Updegrove Report or the

deposition testimony satisfies the test of substantial

similarity, there is no practical difference between the two

items of evidence. They may differ in other respects, but

those differences have no bearing on whether the test of

substantial similarity is satisfied. Thus, in my view, the

majority’s treatment of those items of evidence is

inconsistent.

I also believe that the effect of the majority’s decision

to require admission of the deposition testimony is to allow

evidence of similar incidents to be used as proof of the

defect or “corroboration.” Phelps, 239 Va. at 276, 389 S.E.2d

at 457. As I have already noted, the majority is drawing

inferences from evidence pertaining to the cause of Jones’

accident to establish the defect or the cause of the sudden

acceleration events described in the deposition testimony. By

proving the defect in those occurrences in that manner, the

majority is, in the final analysis but without acknowledging

that it is doing so, using those depositions along with the

same inferences to establish the defect in Jones’ vehicle.

Yet this Court has explicitly stated that evidence of similar

incidents cannot be used as proof of the defect. See id.

Thus, I conclude that neither the deposition testimony

nor the Updegrove Report satisfies the test of substantial

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similarity, and therefore, neither was admissible as evidence

of similar incidents relevant to the issue of notice,

irrespective of Ford’s judicial admission. Admittedly, Jones

was not allowed to introduce evidence that she considered

vital to her case, but I cannot say that the circuit court

abused its discretion. 3

The majority also concludes that the deposition testimony

was admissible to contradict Declercq’s statement that Jones’

vehicle could not have suddenly accelerated other than by her

application of the accelerator. Jones presents the question

of using the evidence of similar incidents to impeach the

credibility of Declercq under her third assignment of error,

which states:

The trial court erred in not permitting the plaintiff to
cross-examine the defense expert witness (Declercq) to
show that sudden acceleration incidents, in a stationary
vehicle, upon shifting to reverse or drive, and
accompanied by a driver’s ineffective attempt at braking,
coincided with the introduction of the electronic cruise
control; and further erred in limiting cross examination
based on the attorney work product doctrine.

I do not believe that this assignment of error fairly includes

the issue decided by the majority.

3
Although the majority concludes that the deposition
testimony is admissible upon retrial, I note that the circuit
court never ruled on Jones’ motion for permission to use those
depositions at trial in lieu of live testimony from those
individuals.

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 Notwithstanding that problem, this use of the deposition

testimony amounts to evidence of similar incidents being

utilized to corroborate Jones’ testimony about the cause of

her vehicle’s sudden acceleration. However, this Court has

stated that, even when substantial similarity is demonstrated,

evidence of similar incidents is not admissible as

corroboration. Phelps, 239 Va. at 276, 389 S.E.2d at 457.

Nor can such evidence be used to prove causation at the time

of Jones’ accident. See Roll ‘R’ Way Rinks, 218 Va. at 327,

237 S.E.2d at 161.

II. TESTIMONY OF FORD EXPERT WITNESS BRACKETT

Unlike the majority, I believe that Jones’ objection to

the testimony of Robert Quinn Brackett, Jr., was sufficient.

However, I find no error in the circuit court’s admission of

that testimony.

On appeal, Jones challenges the admission of Brackett’s

testimony on two grounds. Relying on this Court’s decision in

Keesee v. Donigan, 259 Va. 157, 524 S.E.2d 645 (2000), she

first claims that there was no foundation to establish that

the circumstances of the test in which three of roughly one

hundred subjects misapplied the accelerator pedal were

substantially similar to the events confronting Jones.

However, I conclude that Jones has waived this argument

because she elicited much of the evidence about which she now

51
complains. See Combs v. Norfolk & Western Ry. Co., 256 Va.

490, 499, 507 S.E.2d 355, 360 (1998); Hubbard v. Commonwealth,

243 Va. 1, 9, 413 S.E.2d 875, 879 (1992).

In her second challenge to Brackett’s testimony, Jones

asserts that he testified as to “hearsay matters of opinion

upon which [he] relied in reaching his own opinion.” McMunn

v. Tatum, 237 Va. 558, 566, 379 S.E.2d 908, 912 (1989). Jones

references the following response by Brackett when asked if he

had an opinion whether Jones may have mistakenly applied the

accelerator pedal:

Basically based on the information that I reviewed and
the – the absence of evidence of any electrical or
mechanical malfunction, based on the examination by both
parties of the vehicle after the accident and no
recognition or no evidence of brake failure after the
accident, I concluded in addition with my experience that
a brake accelerator pedal misapplication was highly
likely.

Also, Brackett acknowledged that his understanding that there

was no physical evidence of mechanical or electrical

malfunction was based on the opinions of other experts in this

case.

In making this argument, Jones ignores the fact that the

opinions about which Brackett testified in explaining his own

opinion were those of other experts who testified in this

case. In fact, Sero did not dispute that there was no

physical evidence found after the accident indicative of

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mechanical or electrical malfunction, or brake failure. Thus,

unlike the expert in McMunn, Brackett testified as to opinions

of experts “whose qualifications [were] established to the

satisfaction of the court, whose demeanor[s were] observed by

the trier of fact, and whose pronouncements [were not] immune

from cross-examination.” Id.

III. CONTRIBUTORY NEGLIGENCE AND
SUDDEN EMERGENCY INSTRUCTIONS

The majority’s discussion of the contributory negligence

and sudden emergency instructions is dicta. The propriety of

any given jury instruction depends upon the evidentiary record

developed at trial, because "[j]ury instructions must be

supported by at least some evidence." Cofield v. Nuckles, 239

Va. 186, 191, 387 S.E.2d 493, 496 (1990) (citing Van Buren v.

Simmons, 235 Va. 46, 51, 365 S.E.2d 746, 749 (1988)).

However, because the remand of this case is based upon

reversal of some of the circuit court's evidentiary rulings,

we cannot know what the evidence will be upon retrial. Thus,

we do not know at this time whether instructions on

contributory negligence and sudden emergency will be warranted

at the new trial.

Nevertheless, I agree with Ford’s argument that any error

in granting the instruction on contributory negligence and

refusing to instruct the jury on the doctrine of sudden

53
emergency was harmless. The verdict form shows that the jury

found in favor of Ford on both the claims for negligent design

and negligent failure to warn. Thus, the jury did not reach

the question of Jones’ contributory negligence. Indeed, the

jury left the space for the answer to that question blank on

the verdict form. Because the jury did not consider the issue

of Jones’ potential contributory negligence, it was not

necessary for the jury to consider whether she may have been

confronted with a sudden emergency which would have excused

her alleged contributory negligence. Thus, I conclude that

any error, both in instructing on contributory negligence and

in refusing to instruct the jury on sudden emergency, was

harmless.

For these reasons, I dissent with regard to that part of

the majority opinion allowing the introduction of the

deposition testimony and with respect to the majority’s

conclusions regarding the contributory negligence and sudden

emergency instructions. I concur as to the issue concerning

the testimony of Brackett and conclude that the circuit court

did not err in admitting that testimony. Finally, I agree

with the majority opinion on any issues that I have not

separately addressed.

Thus, I would affirm the judgment of the circuit court.

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