Whitehead v. American Motors Sales Corp.

STEWART, Justice

(dissenting).

After a two- and one-half-week trial which produced some 5,000 pages of transcript, a verdict was returned for plaintiff Stephen Whitehead for damages produced by the tragic and permanent injuries suffered in the rollover of a Jeep Commando. The Court reverses the jury verdict and judgment on the basis of a few evidentiary rulings culled from a host of such rulings. The Court holds that the trial court erred in (1) limiting defendants’ cross-examination, and (2) excluding defendants’ films. I submit that the trial court was clearly correct and that, in any event, the rulings fall within a trial judge’s discretion. For these reasons, I dissent.

I. LIMITATIONS OF DEFENDANTS’ CROSS-EXAMINATION

The majority holds that the trial court improperly limited defendants’ cross-examination of plaintiffs’ experts. The majority cites three instances in which the trial court “cut off” defendants’ attempts to cross-examine plaintiffs’ experts and which prevented defendants from probing the basis of opinions given by plaintiffs’ experts.

This Court has long held that the trial court has considerable discretion in determining whether evidence is relevant. *929Bambrough v. Bethers, 552 P.2d 1286 (Utah 1976). The judgment of the trial court in admitting or excluding evidence should not be reversed absent an abuse of discretion, and only when the error is prejudicial. State v. Miller, 727 P.2d 203 (Utah 1985); State v. McClain, 706 P.2d 603 (Utah 1985); Terry v. Zion’s Coop. Mercantile Inst., 605 P.2d 314 (Utah 1979). Generally, evidence of the condition of other products is irrelevant and not admissible to establish a defect in a particular product. See Detroit, T. & I. R.R. v. Banning, 173 F.2d 752, 756 (6th Cir.), cert. denied, 338 U.S. 815, 70 S.Ct. 54, 57, 94 L.Ed. 493 (1949); Clark v. Detroit & M. Ry., 197 Mich. 489, 503, 163 N.W. 964, 968 (1917); 29 Am.Jur.2d Evidence § 302, at 348 (1967); 32 C.J.S. Evidence § 583, at 712 (1964). Thus, it is irrelevant whether the Jeep Commando was unreasonably dangerous compared with other makes or models of automobiles generally. The only relevant inquiry is the turnover characteristics of the Jeep Commando and other vehicles substantially similar to it.1

In this case, the trial judge did not abuse his discretion by ruling that the scope of cross-examination would include only comparisons of vehicles with the same or similar characteristics as the Jeep Commando. The court, during the course of the trial, reminded defendants’ counsel that only evidence of similar vehicles would be admitted:

The Court: I don’t think I’ve prohibited any kind of cross examination with reference to vehicles that had the same or similar characteristics; to-wit: center of gravity and wheel width, that Jeep has.
Mr. Mandlebaum [attorney for defendant AMC/Jeep]: Well, I may be incorrect. But I believe you have, your Honor. I thought the Court’s ruling was that we could not compare other vehicles.
The Court: No. The only ruling that I have made with regard to that, at least that’s my intent, was that unless the vehicles were similar, that I wasn’t going to permit you to compare them in order to show that other vehicles might be as dangerous as this vehicle.

The majority now holds that the trial court’s limitations on cross-examination interfered with defendants’ ability to attack the foundation of the opinions of plaintiffs’ expert witnesses. Defendant was allowed, however, to introduce such evidence when it was intended to go to credibility, as shown below.

The majority cites three examples of the trial court’s limitations of AMC/Jeep’s cross-examination. The examples cited do not prove that there was a limitation of cross-examination as to any “critical aspect of plaintiffs’ proof.” In light of the trial court’s ruling that only evidence of vehicles with the same or substantially similar characteristics would be admissible, evidence of other non-similar types of vehicles was inadmissible absent.some special relevancy.

Every ruling criticized by the majority was in fact required by the court’s pretrial ruling, yet the majority does not even discuss the validity of that ruling. Indeed, the majority’s view of this case would allow defendants to delve into the rollover characteristics of every single type of four-wheeled passenger vehicle on the road. Such a ruling would have made it virtually impossible to try this case. It is, of course, self-evident that all four-wheeled vehicles can be rolled over. Whether a vehicle is defectively designed depends upon whether the vehicle is dangerous when used under the ordinary conditions of its intended use. That should be determined by examining vehicles that are designed for similar purposes, i.e., utility vehicles in this case, as the trial judge ruled. In my view, the majority undermines the trial judge’s ability to manage a case such as this by permitting defendants to explore on cross-examination matters of highly attenuated relevancy.

*930The majority’s first example of limitation of cross-examination arises out of plaintiffs’ expert’s testimony on direct examination concerning the “handling characteristics of Blazers, Chevy Chevettes, and CJ-7s.” On direct examination, the expert stated:

Q: And what type of handling and maneuvering tests did you perform last week?
A: Well, I had some instrument tests that I performed on four different vehicles. I had a CJ-5, a CJ-7, a small Blazer, the new F10 [sic] size Blazer, and the Chevy Chevette.
Q: And what did the results show in regard to your tests on the Jeep itself?
A: Well, all the results are preliminary. I don’t have all the data reduced yet. But my preliminary quick look at that data indicates that the Jeep vehicles both overturn at speeds of 20 to 25 miles an hour, and they both have a delay in the handling response that’s in the magnitude of a half a second before the vehicle is stabilized to turn. The other vehicles I tested, the S10 Blazer and the Chevy Chevette, they did not have delays of that magnitude. They were much less.

The majority cites the following, which occurred in the context of the above testimony, as a limitation of cross-examination:

Q: Are there other vehicles that have the same track width—
Mr. Howard [plaintiffs’ counsel]: Object. Repetitious and irrelevant.
Court: Sustained on the grounds it’s irrelevant.
Q: Are there other vehicles that have about the same center of gravity?
Mr. Howard: Objection. It’s irrelevant.
Court: Sustained.
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Q: If you drive a three-quarter-ton pickup, is it the same as driving a Honda Accord; handling, steering?
Mr. Howard: Objection. It’s irrelevant.
Court: Sustained.
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Q: [T]ake another vehicle that has wider track width and lower [center of gravity], can it be rolled on a level surface with driver [steering] input?
Mr. Howard: Objection. It’s irrelevant.
Court: Sustained.

Defendants’ attempted cross-examination of plaintiffs’ expert went far beyond the scope of the trial judge’s order limiting the evidence and also beyond the scope of direct examination. There was no testimony on direct concerning the rollover propensities, track width, or center of gravity of “other vehicles” in general. The only testimony given on direct examination related to the “handling response” time of the CJ-5, CJ-7, S10 Blazer, and Chevy Che-vette, all of which are utility vehicles having general characteristics substantially similar to the Jeep Commando. I submit that the trial court did not err in limiting cross-examination.

The second example cited by the majority of improper limitation of cross-examination occurred in the following exchange on defendants’ cross-examination of plaintiffs’ expert:

Q: What experience have you had in trying to roll over a passenger vehicle?
Mr. Johnson [plaintiffs’ counsel]: Object on the basis of relevancy.
Court: I don’t want to get into testing all other kinds of vehicles, because we’ve got enough problems with the one. So, I’m going to sustain the objection.

The cross-examination question above was based on an assumption made by plaintiffs’ expert and found in the following direct examination:

Q: When you started out with this particular test, did you know exactly what speeds and what input it would take to turn the CJ-5 over?
A: No, absolutely. It was just the opposite. That the belief was, that since it was very difficult to turn a passenger car over, especially on a flat surface at low speeds, that it would be difficult to do this with a Jeep, too.

As is evident from the above, plaintiffs’ expert did not purport to have experience in testing or researching the rollover propensities of “passenger cars,” nor did he *931claim to have experience in rolling vehicles other than the CJ-5. He clearly stated that he started with the belief that since it was difficult to roll a passenger car, it would also be difficult to roll a CJ-5. The testimony on direct examination only made passing reference to “passenger cars.” The focus of the examination clearly was not on the rollover propensity of passenger ears, and the trial judge was clearly within the ambit of reasonable discretion in sustaining the objection on cross-examination.

Nevertheless, after sustaining the objection as to “passenger cars,” the court allowed defendant AMC to cross-examine about “utility vehicles” because of their substantial similarity to the CJ-5 and the Jeep Commando:

Mr. Jensen [attorney for defendants]: What about the vehicles similar to the CJ-5; that is utility vehicles? The Scout, Landcruiser, and that class of vehicles? The small pickups, narrow and with equivalent center of gravity?
Mr. Johnson [plaintiffs’ counsel]: Object on the basis of relevance and foundation. Outside the scope of direct.
The Court: What is the relevance?
Mr. Jensen: Similar vehicles, Your Hon- or.
The Court: The same width, the same—
Mr. Jensen: Similar track width and center of gravity.
The Court: You may answer.

Thus, there was no limitation on cross-examination about substantially similar vehicles.

The majority’s third example of an improper limitation of cross-examination, if read in context, reveals that the judge sustained an objection that went only to the form of the question. Since a question that is barred because of its form may always be rephrased, and since defendants’ question was not rephrased, it simply is not true that the trial court limited cross-examination in this instance. In the following testimony, the focus of cross-examination was on a direct, straight-on rear-end collision to a vehicle without any lateral forces:

Q: So would you expect that vehicle to stay on the road?
A: Again, under a hypothetical thing where you just have an impact from the rear, no lateral forces are put in, yes, it will stay right on the road.
Q: No problem at all staying on the road?
A: No problem at all.
Q: The driver just rides it out and no problem?
A: Under those conditions I described, yes. If you have no lateral forces acting on the vehicle, [no] side forces, the vehicle isn’t going to turn over.
Q: All right. That would apply whether it’s a Commando or some other vehicle?
A: In my opinion, that’s correct.
Q: All right. And what distance would it take for a driver to get that vehicle under control, and could he do it within the width of three lanes of the freeway?
Mr. Johnson: Outside the scope, Your Honor. We object to it. Secondly, the facts of this case are clearly lateral force. The evidence at this point is uncontroverted that six inches, the Oldsmobile hit six inches of the Jeep on a specific corner. We don’t have a direct back input.
The Court: I’m going to take an afternoon recess at this time. I’ll overrule your objection with respect to it not being within the scope of the direct examination. But I will sustain it with regard to the form of the question. And when we come back you may go from there.
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Q [By Mr. Jensen]: Thank you, Your Honor.
I think we were talking about what you would expect to happen to the Commando or any vehicle that’s hit under the circumstances that you have been describing?
A: Yes.
Q: And do you feel like any vehicle would come out of that situation unscathed, basically?
*932Mr. Johnson: Your Honor, the Court sustained the objection as to the form of the question.
The Court: And I’ll sustain the objection to that question.

Besides asking about the effect of a direct rear impact without lateral forces, the question was ambiguous and too broad and, at the least, should have been restated. The trial court acted well within its discretion, and in any event, the incident is unimportant to the outcome of the trial.

In fact, full cross-examination of plaintiffs’ experts’ qualifications and experience was allowed.2 For example, Mr. Jensen, counsel for AMC/Jeep, cross-examined Mr. Noettl, plaintiffs’ expert, on his knowledge of vehicle rollover literature. Mr. Noettl identified various tests, reports, and studies concerning vehicle rollover thresholds and vehicle characteristics. Overruling plaintiffs’ objection to the question concerning the rollover propensity of big trucks, the court stated:

Overruled. It may or may not be. I have not changed my ruling with respect to other matters, in permitting him to go into this. This may have something to do with credibility, veracity, accuracy, or whatever.

The cross-examination of Mr. Anderson, another of plaintiffs’ experts, also demonstrates that defendants were not prevented from questioning an expert about his experience and qualifications.

This Court has ruled that counsel should make clear to the trial judge the relevance of cross-examination questions when an objection is sustained on relevancy grounds. State v. Miller, 727 P.2d 203, 205 (Utah 1986). See also State v. Barella, 714 P.2d 287, 288 (Utah 1986). In none of the present instances where the majority rules that the trial court improperly sustained plaintiffs’ objections to questions regarding other vehicles did defense counsel state the relevance of those questions. Absent an explanation of the relevance of the line of inquiry, exclusion was properly called for under the pretrial ruling, which certainly was within the discretion of the court. If, indeed, the point was to attack the foundation of the expert’s opinion — and not to confuse the substantive issue of determining whether the Commando was defective — that should have been explained to the trial court. Otherwise, the trial court was certainly entitled to assume that defendants sought to circumvent the judge’s ruling on relevancy.

II. EXCLUSION OF FILMS

The trial court’s decision to exclude defendants’ test films was also clearly within its discretion. One film portrayed non-Jeep vehicles performing mechanically induced rollovers in a manner somewhat similar to those shown in plaintiffs’ film. The court ruled:

[I]t’s irrelevant, and it’s irrelevant because they involve other vehicles which the jury would have to take into consideration as to how it was done, the comparisons, the whole works.
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And the other witnesses have seen the Jeep film. And I’ve let him testify with *933regard to his version of those tests with regard to the Jeep. I kept out the other because I thought they were irrelevant on the issue as to whether or not the Jeep was defectively designed, and I still think it is.
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Because each of those tests are — they have a — they’re not all exactly the same. You don’t even have the same vehicle. And we’d have to determine the reliability of the tests for each individual car or automobile. And I’m not going to let the jury do that.

Defendants argued before the trial court that plaintiffs had at least three different tests or films in evidence showing different vehicles making different maneuvers, all of which involved different steering inputs at different speeds. The judge responded that those tests and films were admitted because expert testimony established that the vehicles depicted in the films were substantially the same as the Jeep Commando involved in this case:

The Court: That’s the only reason. The rest of them were out. And I’m going to keep them all out.

The majority holds that because plaintiffs’ experts were allowed to draw the comparisons between the rollover propensities of Jeep and non-Jeep vehicles, defendants should also have been allowed to introduce a film of non-Jeep vehicles doing mechanically induced rollovers. As stated earlier, evidence of the condition of other products is generally inadmissible to prove a defect in a particular product. See Banning, 173 F.2d at 756; Clark, 197 Mich, at 503, 163 N.W. at 968; 29 Am.Jur. Evidence § 302; 32 C.J.S. Evidence § 583. Such evidence is admissible, however, when the products are substantially similar. There is no evidence that defendants’ film showed vehicles which were substantially similar. Plaintiffs’ film, however, was of vehicles substantially similar to the Jeep Commando.

In addition, the majority rules that the trial court erred in excluding defendants’ film of a Jeep CJ-5 on the basis that it violated a discovery order directing defendants to answer an interrogatory that would have disclosed the existence of the film. The majority states: “[Defendants point out that the discovery covered only tests of the 1966-73 Jeep Commando. The film offered was of a Jeep CJ-5. The film simply is not covered by the language of the interrogatory.” I submit the majority is simply in error in stating that the interrogatory did not cover the film. The interrogatory directed defendants to “state whether Jeep Corporation or Kaiser Jeep Corporation tested for or otherwise determined the handling characteristics and qualities of said automobiles [Commandos] both during the development and subsequently to the initial production....”

The interrogatory specifically requested information as to all tests, even those subsequent to production, to determine the handling characteristics and qualities of the Commando. Defendants’ tests of the Jeep CJ-5 were, in fact, used to determine the handling characteristics and qualities of the Jeep Commando, contrary to the assertion of the majority that the films were not offered for the purpose of showing the handling of the ’66-73 Commando. The CJ-5 was shown by foundational testimony to be substantially similar to the Jeep Commando. A vehicle is substantially similar only if it has substantially the same characteristics and qualities. The interrogatory requested information concerning not only the subsequent testing of Commandos, but also the testing for, or otherwise determining, the characteristics or qualities of the Commando. Such testing included the CJ-5 because it had many of the same characteristics and qualities of a Commando. Otherwise, the CJ-5 film would have been irrelevant to defendants’ case and inadmissible.3

The majority claims, however, that defendants were forced to “divine the scope of the requests by a trial court ruling on the admissibility of evidence which came much later.” Defendants were instructed, weeks before trial, that they could cross-examine *934but were “not to bring up new facts which were not given plaintiffs’ counsel in their response to interrogatories.” Given the purpose of submitting the CJ-5 film — -to show the characteristics of the Commando — defendants had prior notice and should not be able to influence the outcome of this long and difficult case by surprise. The tests of the CJ-5 clearly fell within the scope of the interrogatory in question. The trial court properly excluded the test film on the ground that defendants failed to comply with discovery orders based on that interrogatory. See Caterpillar Tractor Co. v. Donahue, 674 P.2d 1276, 1284-85 (Wyo.1983) (exclusion of defendants’ rollover film for violation of discovery order was within broad discretion of trial court).

Finally, the majority opinion states that it was improper for the trial court to exclude exhibit No. 130, a storyboard illustrating defendants’ expert’s testimony “that the vehicle in question had been involved in a prior accident that compromised the structural integrity of the roof.” This question goes more to damages than liability. Its admissibility turned on a whole host of variables. Determination of admissibility is in the trial judge’s discretion.

DURHAM, J., concurs.

. The majority opinion concedes that only films showing accidents of a similar nature are admissible and that the trial court correctly excluded one of defendants’ films on this basis. However, the majority appears to reject the proposition that the scope of both direct and cross-examination may be properly limited to similar vehicles.

. On a related point, the majority accepts AMC’s contention that

not allowing them to cross-examine Anderson with regard to characteristics of other vehicles and how they would react under the conditions depicted in plaintiffs’ film left unchallenged the assertions that track width and center of gravity were the essential characteristics in determining a vehicle’s rollover susceptibility and that Jeeps were more dangerous than other vehicles because their track width was narrower and their center of gravity higher.

That is not correct. Defendants elicited such evidence from its own expert witness, Edward Heitzman. Heitzman testified at length concerning the factors that determine the susceptibility to rollover of vehicles in general. Heitz-man testified about numerous other vehicles (including both utility vehicles and passenger cars) which have a center of gravity equal to or higher than the Jeep Commando. Heitzman also testified extensively about the static stability ratio, which was relied on by plaintiffs' experts, to determine a vehicle’s propensity to roll over. In fact, Heitzman had a list of vehicles with their static stability ratios which formed the basis for his testimony regarding the comparison of the Jeep with other vehicles. After extensive discussion, the list itself was admitted into evidence.

. Defendants claim now on appeal that "[i]t was a film made in 1983 of a Jeep CJ-5 and had nothing to do with the 1972 Commando." (Emphasis in original.) If that is true, we should affirm the trial court’s order on grounds of irrelevancy.