Watson v. Ford Motor Co.

Justice PLEICONES.

I concur in part and dissent in part. I do not agree with the majority’s analysis of the expert witness issue involving Dr. Anderson, or its analysis of the admissibility of the evidence of other acceleration incidents. I nonetheless agree that Dr. Anderson should not have been qualified, and that the evidence of other incidents should not have been admitted. I respectfully dissent from that part of the majority opinion which holds that appellant was entitled to a judgment notwithstanding the verdict (JNOV).

First, the majority posits the trial judge’s gatekeeper role with respect to expert testimony as consisting of these three parts:

1. Is the subject matter of the testimony beyond the knowledge of a lay person, thus requiring an expert to explain it?
*4572. Is the particular witness qualified as an expert in this field?
3. After evaluating the witness’ testimony, is it reliable?

As explained below, I disagree with this framework when the subject of the expert testimony is scientific.9

I fundamentally disagree with the majority that the first gatekeeper function under Rule 702 is a determination whether the subject matter is beyond a lay person’s knowledge and thus requires an expert to explain it. It is certainly true that some types of issues or evidence are ipso facto beyond the ken of a lay jury, and always require that the claim be supported by expert testimony. Classically, this is so where the issue is one of medical malpractice. E.g. Linog v. Yampolsky, 376 S.C. 182, 656 S.E.2d 355 (2008). There are myriad other areas, however, where both lay and expert testimony may be presented. See, e.g., State v. Pittman, 373 S.C. 527, 647 S.E.2d 144 (2007) (sanity); Hall v. Desert Aire, Inc., 376 S.C. 338, 656 S.E.2d 753 (Ct.App.2007) (intoxication); Small v. Pioneer Machinery, Inc., 329 S.C. 448, 494 S.E.2d 835 (Ct. App.1997) (cause of throttle sticking). I therefore disagree with the majority to the extent it now holds that expert testimony is admissible only when it is “required” or “necessary” for the jury to understand evidence or an issue. See Rule 702 (expert witness may be called if testimony would assist the jury).

In my view, the proper gatekeeper role under Rule 702, SCRE, is that described in State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999):

1. Is the underlying science reliable?
2. Is the expert witness qualified?; and
3. Would the evidence assist the trier of fact to understand the evidence or to determine a fact in issue?

Here, the underlying science involving the impact of electromagnetic interference (EMI) on electrical systems is reliable, and Dr. Anderson is qualified as an expert on that subject. I would hold, however, that his testimony fails the third prong of the Council test. In my view, Dr. Anderson’s testimony did *458not assist the jury since he was unable to support his opinion that EMI was a probable cause of cruise control acceleration other than by reference to his own opinion. Cf. Gen. Elec. Co. v. Joiner, 522 U.S. 186, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (court not required to admit opinion evidence connected to event only by the expert’s ipse dixit); see also Wilson v. Rivers, 357 S.C. 447, 593 S.E.2d 603 (2004) n.5 (while witness was expert in field, question whether that science is “reliable” to determine this accident caused the plaintiffs injuries remained unaddressed by trial court).

I agree with the majority that the trial judge erred in exercising his gatekeeper function and permitting Dr. Anderson to testify since Dr. Anderson was unable to link EMI to the sudden acceleration, other than by reference to his own opinion. Wilson, supra; Joiner, supra. I do not agree, however, with the majority’s view that only an electrical engineer who was also an expert in automobile and/or cruise control systems would be competent to testify, or with its characterization of Dr. Anderson’s testimony as lacking “reliability.” I would confine the reliability issue to the underlying science, here, electrical engineering and the EMI phenomenon. See State v. Council, supra (first gatekeeper decision is whether the underlying science rehable as determined under the factors in State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (1990)).

I also agree with the majority’s conclusion that the trial court erred in admitting the evidence of unexplained acceleration in other Ford Explorers. Unlike the majority, however, I do not see any meaningful distinction in either the year of manufacture or in the fact that the other models were right hand drive, since the relevant inquiry is whether the Explorers were equipped with identically engineered cruise control and electrical systems. Since, however, the only causal link between these accelerations and that alleged to have occurred here was that of Dr. Anderson’s EMI theory, which should not have been admitted, I would hold that this evidence too was wrongfully admitted.

The majority holds the trial court erred in denying appellant’s JNOV motion, holding that respondents failed to *459“prove10 that the cruise control system ... was defective or unreasonably dangerous.” I note first this exchange between Dr. Anderson and respondents’ attorney:

Q. Do you believe that the electrical interference in the Watson accident was the cause of the sudden acceleration?
A. Yes.
Q. And is that to a reasonable degree of engineering certainty?
A. Yes.

In my opinion, this is evidence in the record to support the trial court’s denial of appellant’s JNOV motion. See e.g., Amerson v. F.C.X. Coop. Serv., Inc., 227 S.C. 520, 88 S.E.2d 605 (1955) (in reviewing denial of directed verdict, all evidence (even that determined on appeal to have been erroneously admitted) must be considered); Gill v. Ruggles, 97 S.C. 278, 81 S.E. 519 (1914) (same).

As explained above, I agree that both witness Williams’s testimony and that of Dr. Anderson should have been excluded. It was not, however, and the excerpt from Dr. Anderson’s testimony alone refutes the majority’s conclusion that there was no evidence in the record to support the jury’s verdict. I would therefore reverse and remand.

Moreover, the following excerpt from the trial judge’s written order denying appellants’ JNOV reflect that the verdict was supported by more than the EMI theory alone: *460the vehicle suddenly accelerate, and that there were various sources of EMI in the Explorer, including internal sources which [appellant] failed to adequately guard against.1

*459[Appellant] initially contends that the only reasonable inference to be drawn from the evidence is that the [respondents] failed to prove that electromagnetic interference (EMI) caused the sudden acceleration resulting in the subject accident and, therefore, failed to prove that the Watson Explorer was defective and unreasonably dangerous. This argument lacks merit. The [respondents] presented expert testimony that EMI could cause the Next Generation Cruise Control system installed on the Watson Explorer to make

*460[Respondents] further presented evidence of other similar incidents where Ford Explorer vehicles equipped with the same Next Generation Cruise Control system suddenly accelerated without any apparent cause. Finally, [respondents] presented substantial evidence from which the jury could have could have found that there was no cause for the sudden acceleration that caused the Watson accident, other than a malfunction of the Next Generation Cruise Control system. This evidence, viewed in the light most favorable to the verdict, was easily sufficient to support the jury’s express finding that the Next Generation Cruise Control system was defective and unreasonably dangerous, and that it proximately caused Sonya Watson’s injuries and Patricia Carter’s death.2

The Court rejects [appellant’s] second claim that there is no evidence of a feasible alternative design. [Respondents’] expert testified that, prior to the manufacture and sale of the 1995 Explorer, the Next Generation Cruise Control system could have been designed to reduce or eliminate its vulnerability to EMI, and that such design changes could have been made without impairing the utility of the cruise control, or unduly raising its cost. Additionally, [respondents’] experts testified as to the need for a design change that would stop the sudden acceleration once it occurred which was also supportive of the verdict. This evidence, viewed in light most favorable to the verdict, was easily sufficient to establish a feasible alternative design.

[Appellant’s] third contention is that the evidence that the Next Generation Cruise Control system was defective and *461unreasonably dangerous was all inadmissible, irrelevant, and highly prejudicial. The admission of both lay and expert evidence, however, is left to the discretion of the trial judge. The Court carefully considered each item of evidence to which Ford raised objections and determined that the evidence was admissible. [Appellant] has raised no argument that persuades the Court that any error was made in the admission of evidence. Assuming arg-uendo that some of the similar accident evidence should have been excluded, however, the Court notes that the expert evidence alone was sufficient to sustain the jury verdict and, therefore, the admission of such evidence would not have been prejudicial to [appellant].

[Appellant’s] fourth and fifth grounds for judgment nov fail as a matter of law. Viewed in the light most favorable to [respondents], the evidence presented was sufficient to eliminate all causes of the sudden acceleration other than an unreasonably dangerous design defect.3

Accordingly, even if the jury rejected the expert’s testimony, the circumstantial evidence was sufficient to support the verdict. [Respondents] were not required to prove a specific defect in the vehicle and could properly prove that the vehicle was defective and unreasonably dangerous using circumstantial evidence. St. Paul Fire and Marine Ins. Co. v. American Ins. Co., 251 S.C. 56, 59-60, 159 S.E.2d 921, 923 (1968) (“[a]ny fact in issue may be proved by circumstantial evidence as well as direct evidence, and circumstantial evidence is just as good as direct evidence if it is equally as convincing to the trier of the facts”); McQuillen v. Dobbs, 262 S.C. 386, 391-92, 204 S.E.2d 732 (1974) (“negligence may be proved by circumstantial evidence as well as direct evidence”); Restatement (Third) of Torts: Product Liability § 3 Comment c (1998) (“No requirement that plaintiff prove what aspect of the product was defective. *462The inference of defect may be drawn under this Section without proof of the specific defect”).4

For the reasons given above, I would reverse and remand.

. See State v. White, 382 S.C. 265, 676 S.E.2d 684 (2009) (scientific reliability factors not applicable to non-scientific experts).

. I do not agree with the use of "prove” here, as the respondents need only have presented evidence from which the jury could find the cruise control system caused the accident, not have "proven” that it did to the exclusion of all other causes.

[Respondents’] direct evidence of malfunction alone would be sufficient to support a verdict. Additionally, [respondents] presented direct expert testimony that the malfunction of the cruise control system was caused by EMI. The direct evidence of an EMI caused malfunction was also sufficient to support a verdict for [respondents],

[Respondents'] expert repeatedly testified that the cause of [respondents'] vehicle suddenly accelerating was EMI. This testimony was supported by the factual testimony that EMI would be corrected if the vehicle was turned off and upon restarting, the cause of the pedal depression would be corrected.

Ms. Watson expressly testified that she did not cause the sudden acceleration by keeping her foot on the accelerator and [respondents] presented expert and other evidence that the floor mat did not cause the sudden acceleration. The only remaining explanation for the sudden acceleration was a defect in the cruise control and the jury properly concluded that this must have been the cause of the sudden acceleration.

The Court emphasizes that this is an alternative ruling. The Court finds that [respondents] did in fact present evidence sufficient for the jury to find that a specific defect in the Explorer — the EMI interference which caused the acceleration — proximately caused the accident. With respect to the alternative ruling, however, the Court notes that [appellant’s] reliance on cases recognizing that a malfunction alone is insufficient to send the case to the jury is misplaced. This case involved evidence of a malfunction plus detailed evidence negating any cause of the sudden acceleration but a product defect.