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
2
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.
3
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.
4
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
6
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:
7
"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
10
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
11
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.
12
"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.
19
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
20
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
48
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
49
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
52
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.
54