Manigault v. Ford Motor Co. (134 Ohio App. 3d 402, 1999)

Dyke, Presiding Judge.

Defendant Ford Motor Company appeals from the judgment of the trial court that granted plaintiffs Virginia and Leon Manigault relief from a defense verdict on the basis of a fraud allegedly perpetrated upon the court. For the reasons set forth below, we reverse the order granting relief from judgment.

On April 3, 1993, Leon and Virginia Manigault were involved in a motor vehicle accident in a 1987 Ford Crown Victoria immediately after starting the vehicle. Leon Manigault suffered a brain hemorrhage and is comatose. On March 24, 1995, after the Manigaults no longer had the vehicle, Virginia Manigault, individually and as guardian for Leon Manigault, filed this action against Ford and Mullinax Ford, which had sold and serviced the vehicle. Plaintiffs alleged that the cruise control system of the vehicle was defectively manufactured and/or designed, causing the vehicle to jump into gear and rapidly accelerate without the driver depressing the accelerator pedal, thus rendering the vehicle unsafe and unfit for its intended purpose; that Ford was negligent in connection with the manufacture, design, and/or supply of the vehicle; that Ford failed to warn purchasers about the possibility of a sudden acceleration; that Ford failed to incorporate adequate safety equipment into the vehicle to protect purchasers; and that Ford’s failure to warn of a known danger constituted a conscious disregard for the rights and safety of others that had a great probability of causing substantial harm.

Ford denied liability, and the matter was subsequently assigned to a visiting judge.

On June 4, 1997, Ford filed a motion in limine seeking to exclude a letter issued by the National Highway Traffic Safety Administration (“NHTSA”) to Ford on December 31,1996. This letter provided as follows:

“The National Highway Traffic Safety Administration (NHTSA) has received a petition (copy enclosed) from the Center for Auto Safety, the Florida Public Interest Research Group, and others for an investigation to determine whether alleged sudden acceleration of certain 1983 through 1986 Ford Motor Company vehicles constitutes a defect which could result in a safety recall campaign.

“The petitioners base their request on 219 consumer reports of sudden acceleration of 1983 through 1986 Ford vehicles equipped with 3.8 and 5.0 liter engines and automatic transmissions, and claim that these incidents have resulted in 130 accidents, 48 injuries, and 4 fatalities. A search of our files disclosed a number of additional similar complaints, including those provided by Ford in response to our Preliminary Evaluation (PE85-065), which was closed on August 5, 1986. In total, we have identified 439 consumer reports which cite 193 accidents, 106 injuries, and 5 fatalities relating to alleged sudden acceleration of these vehicles. We have enclosed a copy of each of these consumer reports for your information.”

Ford asserted that the letter contained inadmissible hearsay and that its probative value was outweighed by its prejudicial effect. Plaintiffs’ counsel argued that this letter demonstrated that Ford had notice of a defect in its cruise control system and was admissible pursuant to Babb v. Ford Motor Co. (1987), 41 Ohio App.3d 174, 535 N.E.2d 676. The trial court granted Ford’s motion in limine.

Plaintiffs’ counsel also informed the court that he had learned on the previous day that there is a reading room at Ford’s Dearborn, Michigan headquarters in which hundreds of complaints of unintended acceleration are maintained. Plaintiffs therefore moved to preclude Ford from representing to the jury that plaintiffs could not produce evidence of other instances of cruise control malfunctions resulting in sudden acceleration. In this connection, plaintiffs sought permission from the court to depose the records custodian of this reading room. Ford insisted, however, that these records contained inadmissible hearsay and that plaintiffs could not say with certainty that any of the complaints involved a claim of a faulty cruise control mechanism or otherwise bore a substantial similarity to the instant matter. The trial court denied plaintiffs’ motion.

The matter proceeded to a jury trial on June 11, 1997. In opening statement, counsel for Ford stated as follows:

“Now, the plaintiffs have a couple of experts who are going to try to tell you about this theory he’s come up with. The way this theory has to happen is there are eleven wires coming out here, and they’re going to tell you for this to happen, some of those wires have to either be bare from insulation coming off, pinches, broken. I need a faulty connecter. I need something to go wrong with not one of those wires, but two of them and not just any two of them. Two specific ones.

“The other thing you’re going to find out is that they’ve talked about these wires and which ones have to go bad and the mechanical dump valve. They are •going to have to tell you they have never tested to see if this can happen. They have gone out and they have ‘jerry-rigged’ [sic] some exhibits and they have deliberately shorted some things, but no one for the plaintiff is going to come in and tell you they have ever seen a car that has wire No. 2 or 3 with a problem, and wire number 11 that has a problem.

“But there will be no evidence from anyone that this has ever happened in the real world; that anyone has ever duplicated it. And in none of the plaintiffs expert tests or video did they do this. They went in instead and they just automatically put shorts in mechanically or electrically. They didn’t actually do what they are claiming happened here. And Mr. DeClercq knows more about cruise control than anybody who is going to come to talk to you.”

For their case, plaintiffs demonstrated, that in February 1992, they had taken the vehicle for servicing to Mullinax Ford. At this time, Leon Manigault complained that the vehicle “jumps out of gear, accelerates by itself, * * * idle races then jumps into gear.” Mullinax Ford did not examine the cruise control system at that time. Plaintiffs also presented evidence that in November 1992, John Manigault observed an incident during which the vehicle accelerated immediately after Leon Manigault started it. John Manigault testified that he saw the brake lights of the car come on but the vehicle did not stop and his father later told him that he had to turn off the ignition in order to regain control of the vehicle. The vehicle was towed to Mullinax Ford for repairs, and again the cruise control system was not examined.

John Manigault also testified that immediately after the April 3, 1993 collision, he observed that the brake lights of the vehicle were on. The vehicle did not stop until after it collided with a house, however.

Plaintiffs presented expert testimony to describe how the cruise control systems in 1987 Crown Victorias could suddenly and rapidly accelerate without the driver depressing the gas pedal. This testimony indicated that when the ignition is turned on, the servo that operates the throttle arm of the cruise control system is also turned on. If the vacuum and vent lines become damaged, the servo goes into operating mode and pulls the throttle wide open, causing acceleration. Alternatively, if the ground connection to the speed amplifier is loosened, then either the vacuum or vent wires go to the ground, and a wide-open throttle will occur, causing acceleration. In this instance, according to plaintiffs’ expert, “[t]he most probable thing that happened was a bad amplifier ground with either vacuum or vent line grounding out.” Plaintiffs also indicated that it is extremely common for these wires to become damaged or their connections to become loose or corroded. Moreover, plaintiffs demonstrated that environmental factors cause this problem to be intermittent.

For its defense, Ford’s expert admitted that only the accelerator pedal and the cruise control systems go to the throttle plate of a vehicle, so that only driver error or a defect in the cruise control system could cause sudden unintended acceleration. With regard to cruise control malfunctions, however, Ford’s expert asserted that the requisite simultaneous multiple electronic malfunctions could happen theoretically but were not possible in the real-world setting. He further testified that if such a malfunction did occur, the driver would simply have to brake in order to stop. He admitted, however, that by NHTSA definition, unwanted sudden acceleration is accompanied by ineffective brakes.

During the trial, plaintiffs sought to introduce the deposition-testimony obtained in Selman v. Ford Motor Co. (E.D.Ark.1996), No. PB-V-94-474, of Ford employees Charles Best and Alan Updegrove. Plaintiffs asserted that this deposition testimony described what Ford did in response to cruise control complaints. The testimony indicates that Ford received complaints of sudden acceleration in Crown Victorias and other “Panther Cars” (i.e., Crown Victorias, Grand Marquis, and Town Cars) from the early 1970s to 1989. These complaints were generally investigated by Ford’s district engineers. In 1989, there was a substantial increase in the number of complaints of sudden acceleration, and Ford’s general office assembled a special projects team headed by Updegrove to perform field investigations into these complaints. The focus of the team was to determine whether the complaint could be verified through duplication of the incident. The complaints were divided into various categories, and one category included reports of a driver entering the vehicle, starting the engine, and putting the vehicle into gear, resulting in the sudden acceleration. Approximately sixty percent of the cases that the group investigated fell into this category.

The project was discontinued in 1992. Ultimately, Ford did not identify a cause for the claims, and the group concluded that driver error was responsible for the acceleration. In 1992, Ford began to install brake/shift interlocks to require the driver to have his or her foot on the brake rather than the accelerator in order to engage the transmission. This device did not completely eliminate complaints of unintended acceleration, however.

Best described high idle problems caused by throttle position sensors. He explained that in dealing with certain complaints of sudden acceleration from Hertz Rental Cars, the throttle position sensors and command modules of the vehicle were removed. One exhibit focuses upon vehicles with throttle position sensors built before May 28, 1987. Other exhibits to the Best deposition include complaints of unintended acceleration from the wife of William Clay Ford (sister-in-law of Henry Ford), the vice president of Dollar Rent A Car, complaints involving fatalities, one involving a Secret Service Agent, and numerous affidavits in which the affiant described an unintended acceleration of a Ford product. In some of these instances, Ford repurchased the vehicle. There were also documents relating to Ford’s 1991 contact with Junior D’Amato, an automotive technician who also has a radio program that addresses automotive issues. These documents indicate that D’Amato had repaired two vehicles for “runaway conditions” and corrected the problem by replacing the throttle position sensors. Following one of these repairs, Ford employees took the throttle position sensor and returned it to D’Amato a few weeks later.

The trial court denied plaintiffs’ request to introduce the deposition transcripts to the jury.

In closing argument, counsel for Ford stated as follows:

“Now Mr. Murray mentioned the risk-benefit test. The only evidence we have here is that this cruise control was in tens of millions of vehicles made by Ford alone. If you want to add the other manufacturers in, hundreds of millions, driven for billions and billions of miles. And this defect, this occurrence that they are claiming happened once, maybe twice, even if you want to talk about their church incident, on a car with 113,000 miles, and not on .any of these other hundreds of millions of vehicles, through billions of miles, doesn’t meet the risk-benefit test. Doesn’t meet any consumer expectation. There is no evidence of defect, and there is certainly no evidence that there was a defect in the Manigault’s vehicle which caused this accident.

“So what do plaintiffs come back to? They come back and ask you to tell us what we should have warned the Manigaults that this could happen. There is nothing to warn about. It was a purely theoretical possibility. It had never happened. Ford had no duty to warn.

“So what’s the last fallback position? We should have told Melanize [sic, Mullinax] how to look for it. You can’t tell Melanize to look for something that doesn’t happen in the real world.