J-E02007-14


                          2014 PA Super 281


JOSEPH AND APRIL PARR,                    :     IN THE SUPERIOR COURT OF
HUSBAND AND WIFE, INDIVIDUALLY            :          PENNSYLVANIA
AND AS PARENTS AND NATURAL                :
GUARDIANS OF SAMANTHA PARR,               :
                                          :
                        Appellants        :
                                          :
            v.                            :
                                          :
FORD MOTOR COMPANY,                       :
McCAFFERTY FORD SALES, INC.               :
d/b/a McCAFFERTY AUTO GROUP,              :
McCAFFERTY FORD OF                        :
MECHANICSBURG, INC., AND                  :
McCAFFERTY FORD COMPANY,                  :
                                          :
                        Appellees         :     No. 2793 EDA 2012


            Appeal from the Judgment Entered August 31, 2012,
           In the Court of Common Pleas of Philadelphia County,
           Civil Division, at No. 002893, December Term, 2009.


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, SHOGAN, ALLEN,
OTT, WECHT, STABILE AND JENKINS, JJ.

OPINION BY SHOGAN, J.:FILED DECEMBER 22, 2014

      Plaintiffs-Appellants, Joseph and April Parr (“the Parrs”), husband and

wife, individually and as parents and guardians of their minor daughter,

Samantha Parr, appeal from the August 31, 2012 judgment of the Court of

Common Pleas of Philadelphia County, which was entered following the

denial of the Parrs’ motion for post-trial relief.   Appellees are Defendants

Ford Motor Company, McCafferty Ford Sales, Inc. doing business as
J-E02007-14



McCafferty Auto Group, McCafferty Ford of Mechanicsburg, Inc., and

McCafferty Ford Company (collectively “Ford”). Following our review of the

voluminous record, and in consideration of the applicable law and arguments

of the parties, we affirm.

      On July 21, 2009, the Parrs’ 2001 Ford Excursion, which they

purchased as a “used” vehicle in 2007, was struck by a van that ran a stop

sign, causing the Parrs’ vehicle to spin clockwise, hit a guardrail, and roll

down a nineteen-foot embankment.       Amended Complaint, 8/26/11, at ¶¶

14, 26–28; N.T., 3/8/12, at 30. Joseph Parr was driving at the time of the

accident; his wife, April Parr, their three minor children, and Margaret Parr,

Joseph’s mother, were occupants of the vehicle.         Amended Complaint,

8/26/11, at ¶¶ 20–25; N.T., 3/8/12, at 31.     All passengers, who all wore

their seatbelts, were injured; occupants on the driver’s side of the vehicle,

Joseph Parr and children Tyler and Carilann Parr, sustained comparatively

minor injuries. Amended Complaint, 8/26/11, at ¶¶ 20–25, 31. Margaret

Parr, Joseph Parr’s fifty-seven-year-old mother, who sat in the second row

on the passenger side, is not involved in this case, and her injuries were not

identified in the amended complaint.    Amended Complaint, 8/26/11, at ¶

25.1 Daughter Samantha, who was sitting in the third row on the passenger




1
  Parrs’ Exhibit P-8, which is an expert report by Donald Friedman to Parrs’
counsel dated June 29, 2011, describes Margaret Parr’s injury as “a


                                      -2-
J-E02007-14



side, sustained a fractured skull, broken collarbone, fractured eye orbital, a

lacerated liver, and facial lacerations.   Amended Complaint, 8/26/11, at ¶

30. April Parr, sitting in the front passenger seat, sustained a spinal cord

injury and was rendered a quadriplegic. Amended Complaint, 8/26/11, at ¶

29; N.T., 3/8/12, at 33.

      Emergency responders employed the jaws of life2 to extract April Parr

from the Excursion; during that process, the roof and pillar structures of the

vehicle were destroyed. N.T., 3/9/12 (Afternoon Session), at 35–38. The

parties stipulated that shortly after the accident in July 2009, the Parrs’ Ford

Excursion was released to the Parrs’ insurer, which sold the vehicle, and the

automobile was destroyed. N.T., 3/15/12 (Morning Session), at 30–31.

      The Parrs filed a complaint against Ford Motor Company and the Ford

dealership that sold them their 2001 Ford Excursion on December 28, 2009,

and an amended complaint on August 26, 2011, contending that April Parr’s

and Samantha Parr’s injuries resulted from roof crush when the automobile

rolled down the embankment. Amended Complaint, 8/26/11, at ¶¶ 28, 40.

The Parrs alleged that the vehicle’s roof and restraint system were

defectively designed under the crashworthiness doctrine of strict products



fractured hand.” Parrs’ Exhibit P-8, Report of Donald Friedman, 6/29/11, at
3.
2
    “Jaws of Life,” a trademark of Hurst Performance, Inc., are hydraulic
rescue tools used by emergency rescue personnel to assist vehicle
extrication of crash victims. http://www.jawsoflife.com.


                                       -3-
J-E02007-14



liability, and they asserted additional claims sounding in negligence.

Amended Complaint, 8/26/11.

      Trial in the matter commenced on March 6, 2012, and continued over

the ensuing three weeks, culminating on March 23, 2012, with a defense

verdict. The jury indicated on the verdict form that the Parrs did not prove:

(1) that the Excursion’s roof design was defective when it “left the control of

Ford and that there was an alternative, safer design that was practicable

under the circumstances,” or (2) “that Ford was negligent in its design of the

roof structure on the 2001 Ford Excursion when it left Ford’s control and that

there was an alternative, safer design that was practicable under the

circumstances.” Jury Verdict Form, 3/23/12, at ¶¶ 1, 3. The jury thus did

not reach the issues of causation or damages.

      The Parrs filed post-trial motions on March 29, 2012.       Both parties

filed briefs, and the trial court denied the motions on August 31, 2012,

entering judgment in favor of Ford that day.      This timely appeal followed

on September 10, 2012, in which the Parrs challenge several pretrial

evidentiary rulings and an aspect of the trial court’s charge to the jury. Both

the trial court and the Parrs complied with Pa.R.A.P. 1925.

      A panel of this Court filed a memorandum affirming the judgment in

favor of Ford. Parr v. Ford Motor Company, 2793 EDA 2012, ___ A.3d

___ (Pa. Super. filed December 24, 2013) (unpublished memorandum).




                                      -4-
J-E02007-14



Thereafter, the Parrs filed a motion for reargument en banc. We granted the

motion and heard oral arguments on August 5, 2014. This matter is now

ripe for disposition.

      The Parrs raise the same four issues in this appeal that they identified

in their Pa.R.A.P. 1925(b) statement, which are as follows:

      A.    Whether the Trial Court committed an error of law and
      abused its discretion when it denied the Parrs’ Motion in Limine
      No. 1 to preclude Ford from presenting evidence of its “diving,”
      “torso augmentation” theory, which was discredited and
      superseded    by    the   National   Highway     Traffic  Safety
      Administration (NHTSA)’s Final Rule dated May 12, 2009?

      B.    Whether the Trial Court committed an error of law and
      abused its discretion when it granted Ford’s Motion in Limine
      No. 3 to preclude references to post-2001 NHTSA standards and
      rulemaking documents dated 2001 to present, on the basis that
      the Excursion was originally manufactured and sold in 2001?

      C.    Whether the Trial Court committed an error of law and
      abused its discretion when it granted Ford’s Motion in Limine
      No. 9 and altogether precluded the Parrs from offering statistical
      evidence prepared by NHTSA, IIHS, FARS, and/or NASS as to
      rollover fatalities involving the 2001 Excursion and comparable
      vehicles on the basis that the Parrs were unable to prove that
      the statistics derived from other rollover accidents that [sic]
      were virtually identical to the subject accident?

      D.      Whether the Trial Court committed an error of law and
      abused its discretion when it denied the Parrs’ Motion in Limine
      No. 10 to preclude Ford from: (a) presenting—and consequently
      filling the record with—evidence that the 2001 Excursion was not
      preserved; and (b) obtaining a spoliation charge when Ford
      suffered no prejudice resulting from the vehicle’s destruction
      since neither party’s experts had access to the vehicle and since
      Ford’s theory was based upon the assumption that all occupants
      in rollover vehicles are injured in the same way?

The Parrs’ Brief at 7–8.


                                      -5-
J-E02007-14



     We note initially that our Supreme Court adopted section 402A of the

Restatement (Second) of Torts in Webb v. Zern, 220 A.2d 853 (1966), and

reaffirmed the Second Restatement’s vitality in Tincher v. Omega Flex,

Inc., ___ A.3d ___, ___, 2014 WL 6474923 *62 (Pa. filed November 19,

2014 (“Pennsylvania remains a Second Restatment jurisdiction”).     Section

402A states:

     § 402A Special Liability of Seller of Product for Physical
     Harm to User or Consumer

     (1) One who sells any product in a defective condition
     unreasonably dangerous to the user or consumer or to his
     property is subject to liability for physical harm thereby caused
     to the ultimate user or consumer, or to his property if

           (a) the seller is engaged in the business of selling
           such a product, and

           (b) it is expected to and does reach the user or
           consumer without substantial change in the condition
           in which it is sold.

     (2) The rule stated in Subsection (1) applies although

           (a) the seller has exercised all possible care in the
           preparation and sale of his product, and

           (b) the user or consumer has not bought the product
           from or entered into any contractual relation with the
           seller.[3]

RESTATEMENT (SECOND) OF TORTS, § 402A (1965).




3
  The term “seller” includes the “manufacturer” of a product. RESTATEMENT
(SECOND) OF TORTS, § 402A, cmt. f.



                                     -6-
J-E02007-14



      In order to prevail in such a product liability case, the plaintiff must

establish: (1) that the product was defective; (2) that the defect existed

when it left the hands of the defendant; and (3) that the defect caused the

harm. Reott v. Asia Trend, Inc., 7 A.3d 830 (Pa. Super. 2010). A product

is defective “when it is not safe for its intended use.” Weiner v. American

Honda Motor Co., Inc., 718 A.2d 305, 308 (Pa. Super. 1998).

      The crashworthiness doctrine most typically arises in the context of

motor vehicle accidents. See, e.g., Raskin v. Ford Motor Co., 837 A.2d

518 (Pa. Super. 2003). It was first explicitly recognized as a specific subset

of product liability law by this Court in Kupetz v. Deere & Co., Inc., 644

A.2d 1213 (Pa. Super. 1994), and is defined as “the protection that a motor

vehicle affords its passenger against personal injury or death as a result of a

motor vehicle accident.” Id. at 1218.

             A crashworthiness claim requires proof of three elements.
      First, the plaintiff must prove that the design of the vehicle was
      defective, and that at the time of design an alternative, safer,
      and practicable design existed that could have been incorporated
      instead. Second, the plaintiff must identify those injuries he or
      she would have received if the alternative design had instead
      been used. Third, the plaintiff must demonstrate what injuries
      were attributable to the defective design.

            In recognizing the crashworthiness doctrine in Kupetz,
      this Court relied upon our Supreme Court’s prior decision in
      McCown v. International Harvester Co., 463 Pa. 13, 342
      A.2d 381 (1975), which adopted the principle tenet of the
      crashworthiness doctrine, i.e., manufacturers are strictly liable
      for defects that do not cause the accident but nevertheless cause
      an increase in the severity of injuries that would have occurred
      without the defect.


                                        -7-
J-E02007-14



Gaudio v. Ford Motor Company, 976 A.2d 524, 532 (Pa. Super. 2009)

(some citations omitted).

      The parties herein differed regarding how the injuries to the Parrs

occurred.    The Parrs asserted that as the Excursion rolled down the

embankment, the driver’s side led the roll, and the roof over the “trailing”

passenger side of the vehicle crushed into the passenger compartment.

Amended Complaint, 8/26/11, at ¶ 27, 28.       In support, the Parrs alleged

that April Parr and Samantha Parr, who sat on the passenger side of the

vehicle,4 sustained significant injuries “as a result of the collapsing roof,”

whereas the passengers on the driver’s side of the Excursion, “over which

the roof did not significantly collapse,” incurred minor injuries.   Id. at ¶¶

29–31.

      Ford’s position was premised on a “diving” and “torso augmentation”

defense.    Ford’s experts opined that when the Excursion flipped upside

down, centrifugal force pulled passengers out of their seats and pushed their

heads against the vehicle’s roof, a phenomenon called diving. N.T., 3/7/12

(Morning Session), at 36–38. April Parr’s head theoretically was already in

contact with the roof when the roof struck the ground as the vehicle rolled

over; as her head came to an abrupt halt, her torso continued to move,



4
   Notably absent is any reference to Margaret Parr, who also sat on the
passenger side and who, according to Donald Friedman’s report, sustained a
fractured hand.


                                      -8-
J-E02007-14



causing her to break her neck.      Id.    This phenomenon is known as torso

augmentation.       Id. at 38.   Mr. Michael J. Leigh, Ford’s expert on roof

strength who the Parrs called on cross-examination, explained Ford’s theory

regarding why April Parr sustained significant injuries compared to Joseph

Parr, as follows:

      Q.    Well, they [Joseph and April] both rolled over, they both
      were subjected to centrifugal force. But if you looked at that
      roof, the roof over April Parr had what we call crush or
      deformation of a total residual of 11 inches; is that right?

      A.    I know that the roof was significantly deformed on that
      side of the vehicle. And that means that that part of the roof
      sustained a significant impact.

             And if the other side of the roof was not deformed like
      that, that means that side of the roof did not sustain a significant
      impact.

           And if the roof over Mr. Parr did not sustain a significant
      impact, then I’m not surprised that he did not get injured.

            But I would not be surprised at all that his head did touch
      the roof in that event because if he’s that tall and experiencing
      centrifugal force, his head is going to touch the roof, as well. He
      was just fortunate enough not to experience the impact that,
      unfortunately, his wife experienced.

      Q.     And you’re saying it didn’t come about from this 11 inches
      of crush or deformation? It just came from centrifugal force;
      right?

      A.   The deformation is an indication of the severity of the
      impact that that part of the roof experienced.

            The injury that Mrs. Parr received is an indication of the
      severity of the impact that she experienced being in the same
      place as that part of the roof. So her injury and the deformation
      are associated with the impact, but it doesn’t mean that the
      deformation of the roof caused her injury. You can’t go that far.


                                          -9-
J-E02007-14



            All you can say is that the deformation and the injury are
      associated with the impact. And Mr. Parr didn’t experience that
      severe of an impact. That’s the difference.

N.T., 3/7/12 (Morning Session), at 39–41.

      We proceed to address the Parrs’ challenges to the trial court’s

evidentiary rulings. A motion in limine is used before trial to obtain a ruling

on the admissibility of evidence. Northeast Fence & Iron Works, Inc. v.

Murphy Quigley Co., Inc., 933 A.2d 664 (Pa. Super. 2007). “It gives the

trial judge the opportunity to weigh potentially prejudicial and harmful

evidence before the trial occurs, thus preventing the evidence from ever

reaching the jury.”   Commonwealth v. Reese, 31 A.3d 708, 715 (Pa.

Super. 2011) (en banc). A trial court’s decision to grant or deny a motion in

limine “is subject to an evidentiary abuse of discretion standard of review.”

Id.

      Questions concerning the admissibility of evidence lie within the
      sound discretion of the trial court, and we will not reverse the
      court’s decision absent a clear abuse of discretion.
      Commonwealth Financial Systems, Inc. v. Smith, 15 A.3d
      492, 496 (Pa. Super. 2011) (citing Stumpf v. Nye, 950 A.2d
      1032, 1035–1036 (Pa. Super. 2007)). “An abuse of discretion
      may not be found merely because an appellate court might have
      reached a different conclusion, but requires a manifest
      unreasonableness, or partiality, prejudice, bias, or ill-will, or
      such lack of support so as to be clearly erroneous.” Grady v.
      Frito–Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1046 (Pa. 2003).

Keystone Dedicated Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1,

11 (Pa. Super. 2013).      In addition, “to constitute reversible error, an

evidentiary ruling must not only be erroneous, but also harmful or prejudicial


                                      -10-
J-E02007-14



to the complaining party.”    Winschel v. Jain, 925 A.2d 782, 794 (Pa.

Super. 2007) (citing McClain v. Welker, 761 A.2d 155, 156 (Pa. Super.

2000)).

      The Parrs’ motions in limine numbers one, three, and nine all dealt

with the issue of “roof crush” versus “diving” and “torso augmentation.” In

particular, the Parrs’ motion in limine number one sought to preclude Ford

from presenting evidence of its diving/torso augmentation theory, which the

Parrs asserted was discredited and superseded by the National Highway

Traffic Safety Administration (NHTSA)’s Final Rule dated May 12, 2009. The

Parrs assert Ford admitted that in 2001, comparable vehicles existed with

much stronger roofs than that of the Excursion.      Ford acknowledged that

roof crush may cause injuries in some cases but defended, in this case, on

the basis of its diving/torso augmentation theory.

      The Parrs asserted pretrial, at trial, and in their appellate brief as

follows:

            Although N[H]TSA’s “roof crush” theory versus the
      industry’s “diving/torso augmentation” was a heavily contested
      issue for years prior to 2001, the year of the Excursion’s
      manufacture, in 2009, NHTSA determined once and for all that
      “roof crush” and not “diving/torso augmentation” was the cause
      of head and neck injuries—such as those sustained by Mrs.
      Parr—among belted occupants in rollover accidents. NHTSA
      based its finding upon extensive epidemiological studies from
      2001-2009, and resultantly promulgated its Final Rule on Federal
      Motor Vehicle Safety Standard (FMVSS) No. 216 on May 12,
      2009, which required more stringent roof-crush standards.




                                      -11-
J-E02007-14



The Parrs’ Brief at 26 (emphasis in original).        The Parrs reference the

following:


              Roof Crush as a Cause of Injury

                     A number of commenters including GM, Ford,
              [and] Nissan[5] . . . stated that the statistical
              correlation . . . found between roof intrusion and
              injury does not establish a causal relationship
              between roof deformation and injury. . . . [T]he
              studies . . . merely suggest that there is a
              relationship. . . . “[W]hen you compare rollover
              accidents that have significant roof/pillar deformation
              with other rollover accidents that have very little or
              no roof/pillar deformation, you are not comparing
              similar accidents with respect to roof-to-ground
              impact severity. Just the fact that two vehicles are
              in a rollover with greater than 2 quarter turns does
              not mean they are in the same or even similar
              impact severities.” . . . Ford stated that “[t]he
              amount of roof deformation is only an indication of
              the severity of the impact between the roof and the
              ground.” . . . GM stated that “[o]bservations of
              injury occurrence at the end of a rollover collision
              reveal nothing regarding the relationship of roof
              deformation, roof strength, or roof strength-to-
              weight ratio injury causation.” Nissan stated that
              deformation     and    injury   severity     are  both
              independently associated with roof impact severity.

The Parrs’ Brief at 17; “Federal Motor Vehicle Safety Standards; Roof Crush

Resistance;       Phase–In       Reporting       Requirements”          (“FMVSS”),


5
   Various auto manufacturers criticized the NHTSA’s reliance on a study that
linked roof intrusion and serious injury, and commented that a statistical
correlation did not establish a causal relationship between the two. The
agency agreed, to an extent, acknowledging that “as a general principle, a
statistical correlation does not in itself prove that a causal relationship
exists.” 74 Fed.Reg. 22348, 22379.


                                        -12-
J-E02007-14



74 Fed.Reg. 22348, 22378–22379 (final rule promulgated May 12, 2009)

(codified at 49 C.F.R. §§ 571, 585) (“FMVSS 216 Final Rule”). The NHTSA

has explained:

         [Some] arguments appear to imply that any difference in roof
         intrusion must be due to a difference in impact severity rather
         than roof strength or design . . . .

                There are logical reasons to believe that a collapsing roof
         that strikes an occupant’s head at the nearly instantaneous
         impact velocity experienced when structures deform might cause
         serious injury. These types of injuries were documented . . . in a
         detailed investigation of 43 rollover crashes.         The agency
         believes that the statistically significant relationship between
         roof intrusion and belted occupant injury . . . indicates not just a
         suggestion, but a probability that increasing roof strength
         reduces injuries.

The Parrs’ Brief at 17–18; FMVSS 216 Final Rule, 74 Fed.Reg. at 22379.

         As noted, the Parrs’ motion in limine number one sought to preclude

presentation of Ford’s diving/torso augmentation theory to the jury,

contending that after forty years of research, studies, tests, and experience,

NHTSA specifically discredited this theory in FMVSS 216 Final Rule, and

validated “roof crush” as the cause of head and neck injuries sustained by

belted occupants in rollover motor vehicle accidents. In light of that finding,

the Parrs maintain, NHTSA amended the roof crush rule to require

substantial increases in roof strength applicable to all consumer vehicles.

The Parrs argue the trial court should have deferred to NHTSA’s expertise to

preclude Ford from introducing evidence of diving and torso augmentation at

trial.


                                          -13-
J-E02007-14



      The trial court concluded that the Parrs’ support for their motion was

lacking and stated:

      [U]pon review of the documentation provided to the Court to
      support their motion, notably, the 2009 Amendment to the
      FMVSS (Federal Motor Vehicle Safety Standard) although
      suggestive of appellants’ argument, failed to convince this Court
      that either of their arguments [was] meritorious. First, although
      the 2009 Amendment did cite statistical studies which found a
      correlation between roof crush and injury in rollover accidents,
      appellants’ contention that the NHTSA amendment conclusively
      determined that a causal relationship existed between roof crush
      and head and neck injury in rollover accidents, to the exclusion
      of torso augmentation, was not proven. Although a correlation
      was shown[,] it did not provide, as appellants’ were arguing,
      evidence showing that it was conclusive. As such, this Court
      determined that appellants’ contention was without merit and
      denied their pre-trial motion which sought to preclude appellees
      from presenting evidence that “diving” or torso augmentation
      caused plaintiff, April Parr’s injuries.     Both appellees and
      appellants presented extensive expert testimony during trial on
      the subject of “roof crush” vs. “diving” as a cause of appellant,
      April Parr’s injuries. In the end, the jury concluded that Ms.
      Parr’s injuries resulted from “diving” not “roof crush” and found
      for the appellees.

Trial Court Opinion, 3/1/13, at 4–5.

      Our review of FMVSS 216 Final Rule reveals that it did not

categorically exclude diving/torso augmentation as a cause of head and neck

injury in rollover crashes. The document merely states that in some cases

roof crush “might” cause serious injury, which is a proposition with which

Ford agreed.6   Nothing in NHTSA’s conclusion categorically excluded torso



6
   The Parrs suggested throughout trial that Ford’s experts categorically
denied that roof crush can ever cause injury; Ford’s experts clearly


                                       -14-
J-E02007-14



augmentation or diving as a potential cause of injury in rollover crashes.

Thus, the Parrs’ position that NHTSA determined “once and for all” that roof

crush and not diving/torso augmentation caused head and neck injuries,

such as those sustained by Mrs. Parr, among belted occupants in rollover

accidents, simply is not supported by the literature.

      While we have not found a Pennsylvania appellate case directly on

point, we cite with approval Campbell v. Fawber, 975 F. Supp.2d 485




disagreed.   For example, Ford’s biomechanical engineering expert, Dr.
Catherine Corrigan, testified:

      I’ve seen instances where roof crush has caused injury. And I
      have not opined that it doesn’t.

                                      * * *

            I have seen instances where deformation of the roof has
      contributed to the injury. I have seen instances where it has
      not.

            So the fact that there are researchers who have said that
      roof crush can cause injury, that would be correct.

N.T., 3/19/12 (Morning Session), at 29. Dr. Corrigan later reiterated that
“there is plenty of data out there to show instances where roof crush does
matter in injury and does cause injury. In this case, because of the
kinematics, it was not the cause of the injury.” Id. at 28. Ford’s expert on
roof strength, Michael J. Leigh, testified that “Ford doesn’t dispute that there
could be situations where roof crush or roof deformation causes an injury.”
N.T., 3/7/12 (Morning Session), at 7, 34.


                                       -15-
J-E02007-14



(M.D.Pa. 2013).7,8   The Campbell Court considered this precise issue and

rejected it out of hand.

      Nothing contained in the agency’s response suggests that the
      final rule categorically excluded torso augmentation or diving as
      a cause of head and neck injury in a rollover crash. To the
      contrary,      the    NHTSA’s     response      was     resolutely
      probabilistic. Furthermore, [the plaintiff] has shown nothing in
      the NHTSA’s regulations that would suggest that the agency’s
      study of roof crush injuries could prevent a party from
      presenting at trial evidence of an alternative explanation.

Id. at 501 (emphasis added)(footnote omitted).9         The trial court properly

declined the Parrs’ motion in limine number one and permitted Ford to put

its diving/torso augmentation theory before the jury.


7
   In their brief on reargument, the Parrs fail to acknowledge the federal
court’s decision in Campbell.
8
   While “federal court decisions do not control the determinations of the
Superior Court,” Kleban v. National Union Fire Insurance Co., 771 A.2d
39, 43 (Pa. Super. 2001), whenever possible, Pennsylvania courts “follow
the Third Circuit [courts] so that litigants do not improperly ‘walk across the
street’ to achieve a different result in federal court than would be obtained in
state court. [Cellucci v. General Motors Corp., 676 A.2d 253, 255 n.1
(Pa. Super. 1996)] (citing Commonwealth v. Negri, 213 A.2d 670 (Pa.
1965), and Murtagh v. County of Berks, 634 A.2d 179 (Pa. 1993).”
NASDAQ OMX PHLX, Inc. v. PennMont Securities, 52 A.3d 296, 303
(Pa. Super. 2012); Werner v. Plater-Zyberk, 799 A.2d 776, 782 (Pa.
Super. 2002) (same).
9
   The Parrs assert that the NHTSA’s conclusion that roof crush is a cause of
injury is entitled to deference under Chevron v. National Resources
Defense Council, 467 U.S. 837 (1984). The Parrs’ Brief at 29. In
Chevron, the Supreme Court held that courts must give deference to an
agency’s reasonable interpretation of the statute that it administers.
Chevron, 476 U.S. at 842–843. This claim, as well, was addressed by the
Campbell Court, and we concur with its conclusion, as follows: “The court
disagrees with [the plaintiff’s] argument that the NHTSA conclusively


                                       -16-
J-E02007-14



      The Parrs next contend the trial court erred when it granted Ford’s

motion in limine number three to preclude all references to NHTSA

rulemaking documents after 2001 and particularly, NHTSA 216 Final Rule,

“on the basis that the [2001] Excursion was designed, manufactured, and

sold in 2001,” eight years before the Final Rule’s publication.               The Parrs’

Brief at 31.        The Parrs sought to admit evidence of these rulemaking

documents      to     establish    causation,      to    dispute   Ford’s    diving/torso

augmentation theory, and to impeach Ford’s experts’ reliance upon that

theory. The Parrs’ Brief at 33. The Parrs maintain that the trial court relied

upon precedent concerning whether this evidence was admissible to

establish a “defect,” which was inapplicable to the Parrs’ theory of roof crush

causation.    They suggest the 2001 date may have relevance to notice or

negligence,    but    it   has    no   relevance    to   the   issue   of   causation   or

impeachment. Id.

      Ford responds that the trial court acted within its discretion in

excluding reference to post-2001 rulemaking activities that culminated in

FMVSS 216 Final Rule.             It suggests that evidence regarding a post-

manufacture regulatory standard is irrelevant because it does not go to

whether the Excursion’s roof was defectively designed when it left the Ford



determined that roof crush is the exclusive cause of head and neck injury in
rollover collisions and, therefore, it is unnecessary to address [the] Chevron
argument.” Campbell, 975 F. Supp.2d at 502 n.4.


                                            -17-
J-E02007-14



plant in 2001.      Ford maintains that the documents also do not prove

causation, they merely suggest that the Parrs’ causation theory is possible,

and that issue was not in dispute because Ford admitted it at trial. Thus,

Ford argues that any marginal relevance was far outweighed by the

likelihood that evidence of inapplicable government standards was likely to

mislead the jury.    Moreover, Ford maintains that the Parrs’ claim is moot

because the Parrs presented some of the evidence that they now assert was

wrongly excluded.

      In defending its decision to preclude references to NHTSA rulemaking

documents after 2001, the trial court stated the following:

      Pennsylvania law requires that a plaintiff prove that an allegedly
      defective vehicle was defective at the time of manufacture.
      Duchess v. Langston Corporation, 769 A.2d 1131, 1142 (Pa.
      2001).     However appellants sought to introduce NHTSA
      standards and rulemaking subsequent to the year the subject
      vehicle was manufactured. It was this Court’s determination
      that the relevant time frame for assessing the design and/or
      defectiveness of the subject 2001 Ford Excursion was up to and
      including the year it was manufactured, 2001. The standards
      that were in place at that time (2001) were what was relevant to
      appellants’ causes of action against the appellee, Ford Motor
      Company. At trial, appellees were permitted and did introduce
      evidence of NHTSA standards that existed up to the year 2001.
      This Court found appellants’ contention that they should have
      been permitted to introduce NHTSA standards and rulemaking
      subsequent to the year 2001 without merit and accordingly
      granted appellees’ pretrial motion precluding such evidence.

Trial Court Opinion, 3/1/13, at 5–6.

      The trial court’s order dated March 5, 2012, and filed March 27, 2012,

relating to Ford’s motion in limine number three, precluded reference to


                                       -18-
J-E02007-14



“FMVSS 216, the 2009 Amendments to FMVSS 216, or Related Notices of

Proposed Rulemaking . . . .”      Order, 3/27/12, at 1 (docket entry 145).

Initially, the Parrs failed to note the place in the record where the trial court

declined admission of fifteen studies and publications, which the Parrs

asserted were erroneously excluded by the trial court, thereby hampering

our ability to address the issue as to all of the documents. 10 We address the



10
   Indeed, the Parrs initially failed to include any notes of testimony in the
record certified to us on appeal, and this Court was compelled to seek
supplementation of the record through our Prothonotary. As we stated in
Commonwealth v. Preston, 904 A.2d 1, 6–8 (Pa. Super. 2006) (en banc)
(some citations omitted):

      The fundamental tool for appellate review is the official record of
      the events that occurred in the trial court. Commonwealth v.
      Williams, 552 Pa. 451, 715 A.2d 1101, 1103 (1998). To ensure
      that an appellate court has the necessary records, the
      Pennsylvania Rules of Appellate Procedure provide for the
      transmission of a certified record from the trial court to the
      appellate court. Id. The law of Pennsylvania is well settled that
      matters which are not of record cannot be considered on appeal.
      Commonwealth v. Bracalielly, 540 Pa. 460, 658 A.2d 755,
      763 (1995). Thus, an appellate court is limited to considering
      only the materials in the certified record when resolving an
      issue. Commonwealth v. Walker, 878 A.2d 887, 888 (Pa.
      Super. 2005). In this regard, our law is the same in both the
      civil and criminal context because, under the Pennsylvania Rules
      of Appellate Procedure, any document which is not part of the
      officially certified record is deemed non-existent—a deficiency
      which cannot be remedied merely by including copies of the
      missing documents in a brief or in the reproduced record.
      Commonwealth v. Kennedy, 868 A.2d 582, 593 (Pa. Super.
      2005).

                                     * * *



                                       -19-
J-E02007-14



claim as it pertains to the trial court’s decision to preclude reference to the

documents related to FMVSS 216 Final Rule.

      The trial court granted Ford’s motion in limine number three to the

extent it sought to exclude reliance on NHTSA standards and rulemaking

documents after 2001, the year the Parrs’ Excursion was manufactured. It

is undisputed that roof-strength standards in FMVSS 216 Final Rule did not

apply to the Excursion because the vehicle, at 8,800 pounds, is beyond the

“scope of [the] Safety Design Guideline, which stops at 8,500 pounds . . . .”

N.T., 3/7/12 (Morning Session), at 53, 83. The rulemaking documents Ford

sought to exclude in its motion in limine number three did not issue until

years after 2001; they dated from 2005, when the NHTSA issued notice of

proposed rulemaking to update FMVSS 216,11 to 2009, when NHTSA issued

the Final Rule. NPRM, “Federal Motor Vehicle Safety Standards; Roof Crush


      It is not proper for either the Pennsylvania Supreme Court or the
      Superior Court to order transcripts nor is it the responsibility of
      the appellate courts to obtain the necessary transcripts.

            In the absence of specific indicators that a relevant
      document exists but was inadvertently omitted from the certified
      record, it is not incumbent upon this Court to expend time, effort
      and manpower scouting around judicial chambers or the various
      prothonotaries’ offices of the courts of common pleas for the
      purpose of unearthing transcripts . . . [that] never were formally
      introduced and made part of the certified record.
11
   The August 19, 2005 Notice of Proposed Rulemaking (“NPRM”) was not
an adopted standard, it was an open docket to receive comments regarding
the proposal by NHTSA. NHTSA issued an NPRM in 2008 as well. Ford’s
Motion in Limine No. 3, Exhibit B (docket entry 92).


                                      -20-
J-E02007-14



Resistance, 70 Fed.Reg. 49223 (proposed Aug. 23, 2005); FMVSS 216 Final

Rule. Moreover, even after 2009, the updated standard did not apply to the

Excursion.    The FMVSS Final Rule does not apply to vehicles of the

Excursion’s gross vehicle weight grading (i.e., between 6,000 and 10,000

pounds) until September 1, 2016.        FMVSS 216 Final Rule, 74 Fed.Reg.

at 22348; Ford’s Motion in Limine No. 3, Exhibit D.

      As we have stated, it is well settled that the decision to admit or

exclude evidence is vested in the sound discretion of the trial court and will

not be overturned on appeal absent an abuse of that discretion. Keystone,

77 A.3d at 11. Additionally, to be admissible, evidence must be relevant.

      “Evidence that is not relevant is not admissible.” Pa.R.E.,
      Rule 402, 42 Pa.Cons.Stat.Ann. Relevant evidence is defined as
      evidence “having any tendency to make the existence of any fact
      that is of consequence to the determination of the action more
      probable     or   less   probable.”        Pa.R.E.,   Rule     401,
      42 Pa.Cons.Stat.Ann. (emphasis added). Even if evidence is
      relevant, it may be excluded if its probative value is outweighed
      by, inter alia, the danger of unfair prejudice arising from its
      presentation to the fact-finder.            Pa.R.E., Rule 403,
      42 Pa.Cons.Stat.Ann. “‘Unfair prejudice’ supporting exclusion of
      relevant evidence means a tendency to suggest decision on an
      improper basis or divert the jury’s attention away from its duty
      of weighing the evidence impartially.”        Commonwealth v.
      Wright, 599 Pa. 270, 325, 961 A.2d 119, 151 (2008). “The
      function of the trial court is to balance the alleged prejudicial
      effect of the evidence against its probative value and it is not for
      an appellate court to usurp that function.” Commonwealth v.
      Parker, 882 A.2d 488, 492 (Pa. Super. 2005), aff’d on other
      grounds, 591 Pa. 526, 919 A.2d 943 (2007).

Lykes v. Yates, 77 A.3d 27, 33 (Pa. Super. 2013) (emphasis in original).




                                       -21-
J-E02007-14



      We conclude the trial court correctly found that the standard enacted

in 2009, which is not applicable until 2016, cannot form the basis for liability

in this case, where the vehicle in question was manufactured in 2001. Thus,

evidence of the FMVSS 216 Final Rule in 2009 and rulemaking activities from

2005 and 2008 leading up to the amendment properly were excluded. The

Parrs were compelled to prove that the Excursion was defective at the time

it was made. See Duchess v. Langston, 769 A.2d 1131, 1142 (Pa. 2001)

(“[O]ur jurisprudence requires that products are to be evaluated at the time

of distribution when examining a claim of product defect.”). The FMVSS 216

Final Rule and rulemaking activities leading up to the amendment properly

were circumscribed by the trial court’s grant of Ford’s motion in limine

number three. See Dunkle v. West Penn Power Co., 583 A.2d 814, 816

(Pa. Super. 1990) (“[I]n a strict liability action against the manufacturer of a

product, safety standards promulgated after the sale of the product are

irrelevant and inadmissible to show that the product was defectively

designed or contained inadequate warnings when manufactured.”).            See

also Oberreuter v. Orion Industries, Inc., 398 N.W.2d 206 (Iowa App.

1986); Aller v. Rodgers Machinery Manufacturing Co., Inc., 268

N.W.2d 830 (Iowa 1978); Rice v. James Hanrahan & Sons, 482 N.E.2d

833 (Mass. 1985); Cover v. Cohen, 461 N.E.2d 864 (N.Y. 1984); Turner v.




                                       -22-
J-E02007-14



General Motors Corp., 584 S.W.2d 844 (Tex. 1979); Majdic v. Cincinnati

Machine Co., 537 A.2d 334 (Pa. Super. 1988).

     Moreover, we reject the Parrs’ assertion that even if the post-2001

rulemaking evidence was inadmissible to prove a defect, it was admissible to

prove causation. The Parrs’ Brief at 33. As noted, we have determined that

the FMVSS 216 Final Rule and related documents demonstrated that roof

crush is one of several potential causes of injury in rollover accidents. The

record reveals that Ford readily admitted that fact. N.T., 3/7/12 (Morning

Session), at 33–34, 97; N.T., 3/19/12 (Morning Session), at 64–71; N.T.,

3/19/12 (Afternoon Session), at 27–28.      Thus, the documents in question

did not make the existence of any fact that is of consequence to the

determination of the action more or less probable than it would be without

the evidence. Pa.R.E. 401.

     Further, despite the trial court’s ruling on Ford’s motion in limine

number three, the Parrs did, in fact, place the NHTSA Final Rule’s conclusion

before the jury.   See, e.g., N.T., 3/7/12 (Morning Session), at 63; N.T.,

3/19/12 (Afternoon Session), at 33–36.          Indeed, during his closing

argument, the Parrs’ counsel suggested to the jury, “And this business about

diving, torso augmentation, they can’t convince NHTSA of that fact; yet

they’re trying to convince you . . . .” N.T., 3/21/12 (Volume I), at 51. In

addition, the evidence encompassed by Ford’s motion in limine number three




                                     -23-
J-E02007-14



was cumulative to the myriad references by the Parrs to the NHTSA and roof

crush causation. See, e.g., N.T., 3/7/12 (Morning Session), at 41–42, 57–

87; N.T., 3/7/12 (Afternoon Session), at 21–24, 102–104, 123–132, 138–

143; N.T., 3/8/12 (Morning Session), at 35–87, 104;. N.T., 3/8/12

(Afternoon Session), at 77; N.T., 3/15/12 (Afternoon Session), at 44–45;

N.T., 3/19/12 (Morning Session), at 27–29; N.T., 3/19/12 (Afternoon

Session), at 29–36, 72–83; N.T., 3/20/12 (Afternoon Session), at 28.

      Also, in order for a trial court’s ruling on an evidentiary matter to

constitute reversible error requiring the grant of a new trial, the ruling must

be both legally erroneous and harmful to the complaining party. Winschel,

925 A.2d at 794. If the error in the admission of the evidence had no effect

on a verdict, the error does not require the grant of a new trial. Herein, the

Parrs assert that the admission of the documents would have proven

causation.    As noted, however, the jury never reached the issue of

causation. Jury Verdict Form, 3/23/12.

      The Parrs further suggest the trial court should have allowed them to

utilize the materials in order to impeach Ford’s expert witnesses. The Parrs’

Brief at 35–36. This argument fails. First, the record reveals that the Parrs

did impeach Ford’s experts with NHTSA’s conclusions regarding roof crush.

See, e.g., N.T., 3/19/12 (Afternoon Session), at 38–43 (impeaching Dr.

Corrigan with NHTSA’s conclusions); N.T., 3/7/12 (Morning Session), at 32–




                                      -24-
J-E02007-14



34 (impeaching Michael Leigh with NHTSA's conclusions); N.T., 3/20/12

(Afternoon Session), at 29–30 (impeaching Dr. Roger Nightengale, a

research professor in the department of biomedical engineering at Duke

University, with NHTSA’s conclusions).

      Second, Pa.R.E. 607(b) & cmt notes that “there are limits on the

admissibility of evidence relevant to the credibility of a witness,” including

the provisions of Pa.R.E. 403 whereby the court “may exclude relevant

evidence if its probative value is outweighed by a danger of one or more of

the following: unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative evidence.”

Pa.R.E. 607 (b); Pa.R.E. 403. Thus, as Ford asserts, “For the same reasons

post-2001 NHTSA rulemaking documents were not admissible for their

truth,” they were not available for impeachment. Ford’s Brief at 32.

      Finally, as Ford posits, “there was nothing to impeach Ford’s witnesses

on.” Ford’s Brief at 32. Ford’s experts conceded that roof crush may be a

cause of injury in some cases, see note 7 supra, which is precisely what the

post-2001 NHTSA rulemaking documents demonstrate. Hence, we conclude

the trial court did not abuse its discretion in granting Ford’s motion in limine

number three.

      Next, related to the trial court’s grant of Ford’s motion in limine

number nine, the Parrs contend that they should have been permitted to




                                       -25-
J-E02007-14



present statistical evidence prepared by NHTSA, the Insurance Institute for

Highway Safety (“IIHS”), the National Center for Statistics and Analysis,

Fatality Analysis Reporting System (“FARS”), and the National Automotive

Sampling System (“NASS”) concerning rollover fatalities involving Ford

Excursions and other “comparable” vehicles. The Parrs assert that the trial

court abused its discretion in granting Ford’s motion in limine number nine

to   preclude    post-2001       epidemiological     studies   and   publications    that

demonstrated that 2001–2004 Ford Excursions had rollover driver and

occupant death rates higher than comparable “large” and “extra-large” sport

utility vehicles, on the         basis that    the    Parrs could     not satisfy the

“substantially similar” test. The Parrs’ Brief at 39.

       Ford contends the trial court acted within its discretion in excluding the

statistical studies because they involved a wide variety of accidents, injuries,

and vehicles.     Ford asserts that because the Parrs failed to show the

requisite similarity to the instant accident, the studies, and the statistics

upon    which    they   relied    were   not   relevant    within    the   meaning     of

Pa.R.E. 401.12    Ford also avers that the studies were inadmissible hearsay


12
     Pa.R.E. Rule 401(a) provides as follows:

       Rule 401. Test for Relevant Evidence

       Evidence is relevant if:

       (a) it has any tendency to make a fact more or less probable
       than it would be without the evidence . . . .


                                           -26-
J-E02007-14



and highly prejudicial. Finally, Ford counters that notwithstanding the trial

court’s ruling, the Parrs’ counsel and experts presented many of these

statistics to the jury.

      The trial court stated the following regarding this issue:

            Appellants next argue that this court erred in granting
      Appellee’s Motion in Limine No. 9 which sought to preclude any
      references during trial to statistical evidence of other dissimilar
      accidents. Both parties had an opportunity to argue this Motion
      in Limine before this Court prior to trial. Appellants contend that
      this Court committed an error of law and/or abused its discretion
      when it granted Appellees’ Motion in Limine No. 9. According to
      Appellants, this Court “altogether precluded Plaintiffs/appellants
      from offering statistical evidence prepared by NHTSA, The
      Insurance Institute for Highway Safety (IIHS), the Fatal Accident
      Reporting System, and/or the National Automotive Sampling
      System as to rollover fatalities involving the subject vehicle and
      comparable vehicles on the basis that Appellees were unable to
      prove that the statistics derived from other rollover accidents
      that [sic] were virtually identical to the one in the instant
      accident.”

             As [A]ppellants acknowledge, it was their burden, as the
      proponent of this evidence, to establish, to the court’s
      satisfaction, the similarity between other accidents and the
      subject accident before this evidence could have been admitted
      for any purpose. Hutchinson v. Penske Truck Leasing Co.,
      876 A. 2d 978 (Pa. Super. 2005). During argument before this
      Court, Appellants failed to show the required similarity between
      the subject accident and those contained within the statistical
      compilations. Notably, the IIHS reports, unlike the subject
      accident, involved fatalities. Appellants could not establish that
      the facts surrounding the accidents that comprised the statistical
      analysis they wished to introduce before the jury were

While noting the rule is identical to F.R.E. 401, the comment to the Rule 401
states, in pertinent part: “Whether evidence has a tendency to make a given
fact more or less probable is to be determined by the court in the light of
reason, experience, scientific principles and the other testimony offered in
the case.” Pa.R.E. 401, cmt.


                                       -27-
J-E02007-14



     substantially similar to those in the subject accident. As it was
     Appellants’ burden, this Court found that they had not met their
     burden and granted Appellees’ Motion to Preclude the Statistical
     Evidence.

Trial Court Opinion, 3/1/13, at 6–7.         We agree with the trial court’s

conclusion that the Parrs failed to show that various expert reports and the

relevant statistical studies and compilations upon which those reports relied

were substantially similar to the instant case; thus, the trial court properly

granted Ford’s motion in limine number nine and circumscribed the

evidence.

     The Parrs were precluded from referencing (1) data compiled by IIHS,

which contained fatality facts obtained from the FARS database; (2) IIHS

evidence that compared mortality rates of Ford Excursions in rollover

accidents to other large or extra-large sport utility vehicles from other

manufacturers involved in rollover accidents; and (3) IIHS documents

comparing roof strengths of various makes and models during rollover

accidents. This Court has stated:

            Evidence of prior accidents involving the same
            instrumentality is generally relevant to show that a
            defect or dangerous condition existed or that the
            defendant had knowledge of the defect. However,
            this evidence is admissible only if the prior accident
            is sufficiently similar to the incident involving the
            plaintiff which occurred under sufficiently similar
            circumstances.      The burden is on the party
            introducing the evidence to establish this similarity
            before the evidence is admitted.




                                      -28-
J-E02007-14



      Lockley v. CSX Transp., Inc., 5 A.3d 383, 395 (Pa. Super.
      2010) (citation omitted).

             “Determining whether and to what extent proffered
      evidence of prior accidents involves substantially, similar
      circumstances will depend on the underlying theory of the case
      advanced by the plaintiffs.” Bitler v. A.O. Smith Corp., 400
      F.3d 1227, 1239 (10th Cir. 2004). “If the evidence of other
      accidents is substantially similar to the accident at issue in a
      particular case, then that evidence will assist the trier of fact by
      making the existence of a fact in dispute more or less probable,
      and the greater the degree of similarity the more relevant the
      evidence.” Id. “Naturally, this is a fact-specific inquiry that
      depends largely on the theory of the underlying defect in a
      particular case.” Id. Accordingly, a wide degree of latitude is
      vested in the trial court in determining whether evidence is
      substantially similar and should be admitted. Lockley, 5 A.3d
      at 395.

Blumer v. Ford Motor Co., 20 A.3d 1222, 1228–1229 (Pa. Super. 2011).

      It is noteworthy, as well, that statistical compilations of accidents and

studies that cite statistical compilations of accidents, must satisfy the

substantial similarity test. Hutchinson v. Penske Truck Leasing Co., 876

A.2d 978 (Pa. Super. 2005).     In Penske, this Court rejected as “frivolous

and illogical” the claim that “expert reports do not constitute ‘other accident’

evidence because [the appellant] presented no single other accident to the

jury but rather presented only the reports’ conclusions from studies of

hundreds of other accidents.” Id. at 985. “To suggest, as [Mr.] Hutchinson

does, that the underlying nature of this evidence of other accidents was

transformed, merely because it was compiled, analyzed, and summarized to




                                       -29-
J-E02007-14



generate conclusions, defies both logic and common sense.”         Id. at 985-

986.

       It is clear that the Parrs were compelled to satisfy the substantial

similarity test, and because they did not, the statistical compilations properly

were excluded. Therefore, we agree with the trial court that the evidence in

question did not meet the substantial similarity test. For example, the facts

from the FARS database referenced by the Parrs included passenger vehicle

deaths in frontal impacts and side impacts as well as rollovers, some

involving single vehicle accidents and others occurring in multi-vehicle

crashes. The Parrs’ Brief at 38–39. Other publications and data the Parrs

sought to admit reported mortality rates, roadway design, and roof strength

evaluations of large luxury cars, large family cars, small pick-up trucks, with

little or no mention of the specifics of each accident cited therein. Id. at 39–

40. See, e.g., IIHS status report, “The Risk of Dying in One Vehicle Versus

Another,” Vol. 40, No. 3, March 19, 2005, the Parrs’ Exhibit 13; the Parrs

Brief at 39.   The publications involved fatalities, not neck injuries, did not

necessarily relate to Ford Excursions, and failed to account for seat belt

usage and other variables.

       The record reflects that the Parrs did not present evidence as to the

substantial similarity of the reports to the Excursion, the accident, or the

circumstances in this case. Thus, none of the information in the reports was




                                       -30-
J-E02007-14



shown to be directly relevant to the Excursion and to the accident at issue.

The Parrs made no attempt to demonstrate that the underlying accidents in

the statistical compilations were substantially similar to the instant accident.

The Parrs had the burden to prove substantial similarity, and they failed to

carry the burden. Penske.13 The issue lacks merit.

      The Parrs’ final issue relates to whether the trial court committed an

error of law and abused its discretion when it denied the Parrs’ motion in

limine number ten to preclude Ford from: (a) presenting evidence that the

2001 Excursion was not preserved and (b) obtaining a spoliation charge.

Specifically, the Parrs contend the trial court erred in issuing a spoliation

charge to the jury and in permitting extensive introduction of spoliation

evidence where Ford was unable to demonstrate any prejudice that resulted

from the destruction of the 2001 Excursion.

      Ford proffers that the trial court’s decision to instruct the jury that it

could infer that the Excursion contained evidence unfavorable to the Parrs

was within the court’s broad discretion. The Parrs stipulated that they failed

to preserve the vehicle even though they had ample opportunity to do so



13
    Despite the grant of Ford’s Motion in Limine No. 9, the trial court
permitted the Parrs to cross-examine Ford’s experts with statistics and
studies. See, e.g., N.T., 3/8/12 (Morning Session), at 49–56 (use of NASS
studies); N.T., 3/15/12 (Afternoon Session), at 42–48 (use of NASS
studies); N.T., 3/16/12 (Morning Session), at 124–125 (FARS data); N.T.,
3/19/12 (Morning Session), at 4–6, 17–19 (use of IIHS data, use of NASS
studies).


                                       -31-
J-E02007-14



after retaining counsel.   Thus, Ford never had the chance to examine the

vehicle, and Ford’s experts explained how the vehicle’s absence negatively

impacted their analyses. Ford maintains that any error in this regard was

harmless because the Parrs asserted that the excluded evidence would have

aided their case on causation, but the jury did not reach causation in

returning a defense verdict. Thus, Ford responds that the Parrs cannot show

that the trial court committed an error of law that controlled the outcome of

the case.

     The trial court resolved this issue as follows:

           This Court initially deferred ruling on the motion.
     However, prior to making a decision this Court did permit
     appellee, Ford, to introduce facts about the unavailability of the
     vehicle and its impact on the experts’ investigation into the
     cause of the accident and the injuries sustained by the
     occupants.     As such, [A]ppellants’ counsel during cross-
     examination of [A]ppellees’ experts called into question their
     opinions and conclusions, based upon the fact that the subject
     vehicle was not available for them to examine and inspect.

           Further, at trial the parties stipulated as to the facts
     surrounding the unavailability of the vehicle.             Notably,
     [A]ppellants stipulated that two weeks after the accident and
     after hiring counsel, they released the vehicle to their insurance
     company who in turn sold the vehicle which was then destroyed.
     Appellants further stipulated that they did not attempt to locate
     the vehicle until after it had been destroyed and that appellees
     were not notified of legal action until after the vehicle was
     [destroyed].

           In light of the above stipulation and arguments and briefs
     of counsel, this Court denied [A]ppellants’ Pre-trial Motion to
     Preclude and accordingly allowed the jury to make whatever
     conclusions it deemed proper. Accordingly, this Court gave a
     permissive adverse inference instruction to the jury, instructing


                                      -32-
J-E02007-14



      that it could, but was not required to, draw a negative inference
      against appellants from the destruction and thus absence of the
      subject vehicle.    Clearly appellants, despite their hiring of
      counsel and their knowledge of their pursuit of a legal action
      resulting from the accident, transferred the subject vehicle out of
      their possession resulting in it being subsequently destroyed,
      thereby preventing appellees from having the vehicle inspected
      so as to properly defend themselves from [A]ppellants’
      allegations.

Trial Court Opinion, 3/1/13, at 7–8.

      “Spoliation of evidence” is the failure to preserve or the significant

alteration   of   evidence   for   pending   or   future   litigation.   Pyeritz   v.

Commonwealth, 32 A.3d 687, 692 (Pa. 2011). “When a party to a suit has

been charged with spoliating evidence in that suit (sometimes called “first-

party spoliation”), we have allowed trial courts to exercise their discretion to

impose a range of sanctions against the spoliator.” Id. (citing Schroeder v.

Commonwealth, Department of Transportation, 710 A.2d 23, 27 (Pa.

1998)) (footnotes omitted). This Court has stated:

              “When reviewing a court’s decision to grant or deny a
      spoliation sanction, we must determine whether the court
      abused its discretion.” Mount Olivet Tabernacle Church v.
      Edwin L. Wiegand Division, 781 A.2d 1263, 1269 (Pa. Super.
      2001) (citing Croydon Plastics Co. v. Lower Bucks Cooling &
      Heating, 698 A.2d 625, 629 (Pa. Super. 1997) (recognizing that
      “[t]he decision whether to sanction a party, and if so the
      severity of such sanction, is vested in the sound discretion of the
      trial court”)). Such sanctions arise out of “the common sense
      observation that a party who has notice that evidence is relevant
      to litigation and who proceeds to destroy evidence is more likely
      to have been threatened by that evidence than is a party in the
      same position who does not destroy the evidence.” Mount
      Olivet, 781 A.2d at 1269 (quoting Nation–Wide Check Corp.
      v. Forest Hills Distributors, Inc., 692 F.2d 214, 218 (1st


                                        -33-
J-E02007-14



      Cir.1982)). Our courts have recognized accordingly that one
      potential remedy for the loss or destruction of evidence by the
      party controlling it is to allow the jury to apply its common sense
      and draw an “adverse inference” against that party. See
      Schroeder v. Commonwealth of Pa., Dep’t of Transp., 551
      Pa. 243, 710 A.2d 23, 28 (1998). Although award of summary
      judgment against the offending party remains an option in some
      cases, its severity makes it an inappropriate remedy for all but
      the most egregious conduct.          See Tenaglia v. Proctor &
      Gamble, Inc., 737 A.2d 306, 308 (Pa. Super. 1999) (“Summary
      judgment is not mandatory simply because the plaintiff bears
      some degree of fault for the failure to preserve the product.”).

             To determine the appropriate sanction for spoliation, the
      trial court must weigh three factors:[14]

            (1) the degree of fault of the party who altered or
            destroyed the evidence; (2) the degree of prejudice
            suffered by the opposing party; and (3) whether
            there is a lesser sanction that will avoid substantial
            unfairness to the opposing party and, where the
            offending party is seriously at fault, will serve to
            deter such conduct by others in the future.

      Mount Olivet, 781 A.2d at 1269–70 (quoting Schmid v.
      Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994)).
      In this context, evaluation of the first prong, “the fault of the
      party who altered or destroyed the evidence,” requires
      consideration of two components, the extent of the offending
      party’s duty or responsibility to preserve the relevant evidence,
      and the presence or absence of bad faith. See Mt. Olivet, 781
      A.2d at 1270. The duty prong, in turn, is established where:
      “(1) the plaintiff knows that litigation against the defendants is
      pending or likely; and (2) it is foreseeable that discarding the
      evidence would be prejudicial to the defendants.” Id. at 1270–
      71.

Creazzo v. Medtronic, Inc., 903 A.2d 24, 28–29 (Pa. Super. 2006).

14
    While our review suggests the trial court has not explained its decision in
light of the weight of these factors, the Parrs do not state their issue in such
a manner, and we are able to evaluate the issue despite the lack of the trial
court’s analysis.


                                       -34-
J-E02007-14



      The record reveals that there is no dispute that the Parrs were

responsible for the destruction of the Excursion and thus, were at fault. The

stipulation concerning the destruction of the vehicle was as follows:

            Two days after the accident, on July 23, 2009, Mr. Parr
      took pictures of the subject Excursion while it was in storage at a
      nearby towing company.

            The Parrs retained [counsel] on August 4, 2009.

            On August 4, 2009, Mr. Parr released the Ford Excursion to
      Progressive Insurance Company.

            On August 27, 2009, [the Parrs] signed off on the title for
      the subject vehicle as a total loss.

            The Excursion was sold on September 21, 2009, and,
      thereafter, destroyed by the purchaser.

            [The Parrs] and their counsel did not attempt to locate the
      subject vehicle until October 9, 2009.

           [The Parrs] initiated this action by filing a complaint on
      January 5, 2010.

           No notice was given to Ford Motor Company or McCafferty
      Ford Sales of pending legal action prior to the date the vehicle
      was disposed of.

            No notice or opportunity to inspect the vehicle was given
      to Ford Motor Company or McCafferty Ford Sales prior to the
      date the vehicle was disposed of.

N.T., 3/15/12 (Morning Session), at 30–31.

      We examine the factors to determine whether the trial court properly

denied the Parrs’ motion in limine number ten and chose the appropriate

sanction to impose.   Clearly, the Parrs alone had the capacity to preserve

the Excursion given the fact that they hired counsel six to seven weeks


                                      -35-
J-E02007-14



before the vehicle’s destruction.   It was “foreseeable that discarding the

evidence would be prejudicial to the defendants,” Mt. Olivet Tabernacle

Church v. Edwin L. Wiegand Div., 781 A.2d 1263, 1271 (Pa. Super.

2001), because Mr. Parr took photographs of the vehicle two days after the

accident, indicating that he recognized the vehicle’s value as evidence.

      Second, Ford clearly was prejudiced by the Excursion’s destruction.15

Multiple expert witnesses stated that their analyses would have been aided

by examination of the vehicle. Even the Parrs’ expert Dr. Geoffrey Germane

testified, “[I]n a rollover crash, the vehicle is the best witness. It contains

information about the rollover that might not be otherwise available.” N.T.,

3/15/12 (Morning Session), at 57. Furthermore, on cross-examination Ford

expert Dr. Catherine Ford stated, “I can’t say, unfortunately, exactly where

[April Parr] impacted because we don’t have the vehicle.”       N.T., 3/19/12

(Afternoon Session), at 17.    Ford expert Dr. Harry Lincoln Smith testified

that he “would have liked to” examine the Excursion, which was necessary in

“making a complete analysis.” Id. at 96.


15
   We reject the Parrs’ suggestion that they did not have an advantage over
Ford because their experts similarly did not examine the Excursion. While
no Pennsylvania case has stated as much, we underscore our agreement
with other jurisdictions that a spoliator cannot avoid sanctions by arguing
“he has been prejudiced by his own dereliction.” Lord v. Nissan Motor
Co., Ltd., 2004 WL 2905323 (D.Minn. Dec. 13, 2004); see also Trull v.
Volkswagen of America, Inc., 187 F.3d 88, 95–96 (1st Cir. 1999)
(rejecting the plaintiffs’ arguments that the defendants were not unfairly
disadvantaged because the plaintiffs’ experts also could not examine the
subject vehicle).


                                      -36-
J-E02007-14



     Finally, the trial court had a range of sanctions from which to choose

once it decided to impose one. Ford had requested that the trial court grant

summary judgment as a sanction for the Parrs’ destruction of the Excursion.

Although the award of summary judgment against an offending party

remains an option in some cases, its severity makes it an inappropriate

remedy for all but the most egregious conduct. See Tenaglia v. Proctor &

Gamble, Inc., 737 A.2d 306, 308 (Pa. Super. 1999) (“Summary judgment

is not mandatory simply because the plaintiff bears some degree of fault for

the failure to preserve the product.”). Indeed, “dismissal of a complaint or

preclusion of evidence regarding an allegedly defective product is an

extreme action reserved only for those instances where an entire product or

the allegedly defective portion of a product is lost, spoiled or destroyed.”

Mensch v. Bic Corp., 1992 WL 236965 at 2 (E.D.Pa. Dec. 17, 1992)

(emphasis added); Woefel v. Murphy Ford Co., 487 A.2d 23 (Pa. Super.

1985).

     In the instant case, the trial court chose to charge the jury that it was

permitted, although not required, to draw an adverse inference against the

Parrs for destruction of the Excursion, which was the least severe of the

possible sanctions. See Schroeder, 710 A.2d at 28. The Parrs do not, and

cannot, dispute that the permissive adverse inference instruction is a lesser

sanction than outright dismissal or the grant of summary judgment.       See




                                     -37-
J-E02007-14



Schroeder, 710 A.2d at 28 (instructing that “lesser sanction such as a jury

instruction on the spoliation inference is warranted”). The trial court did not

err in giving the lesser sanction of an adverse inference instruction.

      Having concluded that the trial court did not abuse its discretion in any

of the evidentiary rulings identified by the Parrs, and for the above stated

reasons, the judgment in favor of Ford must be affirmed.

      Judgment affirmed.

      President Judge Emeritus Ford Elliott, President Judge Emeritus

Bender, Judge Bowes, Judge Allen, Judge Stabile and Judge Jenkins join the

Opinion.

      Judge Wecht files a Concurring Opinion in which Judge Ott joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2014




                                       -38-
