J-E02007-14



                             2014 PA Super 281

JOSEPH AND APRIL PARR, HUSBAND                 IN THE SUPERIOR COURT OF
AND WIFE, INDIVIDUALLY AND AS                        PENNSYLVANIA
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 on 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, J., SHOGAN, J.,
        ALLEN, J., OTT, J., WECHT, J., STABILE, J., and JENKINS, J.

CONCURRING OPINION BY WECHT, J.:               FILED DECEMBER 22, 2014

      It is a venerable, if somewhat time-worn, aphorism that hard cases

make bad law.    Thus, when confronted with a “hard” case that might be

resolved on narrow grounds, it is prudent to rule no more broadly than

necessary. It is out of this concern that I depart to varying degrees from

the learned majority’s reasoning on three of the four issues before us,

although, for the reasons set forth below, I join the majority’s affirmance of

the judgment entered by the trial court.
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       To begin, I join the majority’s rejection of Joseph and April Parr’s

claim, presented on appeal as their first issue, that the trial court erred or

abused its discretion in admitting evidence submitted by Ford Motor

Company (“Ford”) in support of its “diving/torso augmentation” theory of

causation. Notwithstanding the Parrs’ strenuous argument to the contrary,1

there is an ongoing debate among experts regarding whether and to what

extent “diving,” “torso augmentation,” and “roof crush” may be responsible

in a given rollover accident for severe injuries and death. Where qualified

experts venture competing theories, each to a reasonable degree of scientific

certainty based upon information and analyses regularly relied upon by their

scientific   communities,      the   jury,     not   the   court,   must   resolve   the

disagreement.      See generally Rose v. Hoover, 331 A.2d 878, 880 (Pa.

Super. 1974) (“Once the court is satisfied that a basis in fact exists for the

expert opinion, it is for the jury to determine the weight of the evidence.”).

       In their second issue, the Parrs contend that the trial court abused its

discretion in granting Ford’s motion in limine to exclude studies and data

associated with rule-making by the National Highway and Transportation
____________________________________________


1
       See Brief for the Parrs at 26 (“Although [the National Highway and
Transportation Safety Administration’s] ‘roof crush’ theory versus the
[automobile] industry’s ‘diving/torso augmentation’ theory was a heavily
contested issue for years prior to 2001, the year of the [Ford] Excursion’s
manufacture, in 2009, NHTSA determined once and for all that ‘roof crush’
and not ‘diving/torso augmentation’ was a potential cause of head and neck
injuries—such as those sustained by Mrs. Parr—among belted occupants in
rollover accidents.” (emphasis omitted)).



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Safety Administration (“NHTSA”) concerning vehicle roof strength standards

that post-dated the date of manufacture of the 2001 Ford Excursion at issue

in this case. The trial court, noting that post-manufacture standards have

no bearing on the determination whether a given product is defective for

purposes of a products liability claim, deemed the post-2001 proceedings

leading up to the 2009 amendment to the Federal Motor Vehicle Safety

Standard2 irrelevant and excludable as such.        See Trial Court Opinion

(“T.C.O.”), 3/1/2013, at 4-5; Duchess v. Langston Corp., 769 A.2d 1131,

1142 (Pa. 2001) (“[P]roducts are to be evaluated at the time of distribution

when examining a claim of product defect.”).

       Before this Court, however, the Parrs do not contend that they sought

the admission of this evidence for purposes of establishing a product defect.

Rather, they contend that they sought to introduce the post-2001 rule-

making proceedings to establish that roof crush, rather than diving/torso

augmentation, caused Mrs. Parr’s catastrophic injuries in this case, as well

as to impeach Ford’s witnesses who maintained otherwise.         Brief for the

Parrs at 34-36.      They further assert that this evidence was admissible to

establish the foundation for their causation experts’ opinions. Id. at 36-37.




____________________________________________


2
     See Federal Motor Vehicle Safety Standards; Roof Crush Resistance;
Phase-In Reporting Requirements, 74 Fed. Reg. 22348 (May 12, 2009).




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       The majority recites a litany of bases upon which to reject the Parrs’

arguments.3 First, the majority notes the limited utility of this evidence for

purposes of impeaching Ford’s experts’ attribution of Mrs. Parr’s injuries to

diving/torso augmentation, because Ford’s experts conceded that roof crush

may contribute to injury in certain cases. Maj. Op. at 23 (citing testimony).

Because the majority finds—and I agree—that the documents in question

reflected only NHTSA’s conclusion that “roof crush is one of several potential

causes of injury in rollover accidents,” id., albeit perhaps in stronger terms

than NHTSA previously had used,4 and that Ford’s experts admitted as

much, “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.”       Id. (citing Pa.R.E. 401

(“Test for Relevant Evidence”)).

       The majority also seems to assert that the Parrs successfully put the

post-2001 rule-making before the jury in any event.         Id.   However, the

majority’s citations in support of that proposition do not sustain it.      For
____________________________________________


3
       The majority reaffirms the trial court’s rejection of this evidence for
the purpose of establishing the defectiveness of the Ford Excursion when it
left Ford’s possession. Maj. Op. at 22-23. Because the Parrs do not pursue
this issue on appeal, this commentary is dicta, albeit dicta based upon sound
and settled law.
4
       See 74 Fed. Reg. at 22379 (“[NHTSA] 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 injury.”).



                                           -4-
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example, the majority cites a passage from the Parrs’ cross-examination of

defense expert Michael Leigh, but the only NHTSA-related question posed to

Leigh in the cited passage was as follows: “Do you not agree that all of the

studies of NHTSA, all of the studies of academia, all of the studies except the

ones where GM or Ford engaged the people [who] said that this is wrong, all

of the studies say that; do they not?”           See Notes of Testimony (“N.T.”),

3/7/2012 (morning), at 63.          Nothing about the context or wording of this

question suggests that the Parrs were confronting Leigh with post-2001 data

or studies.    Similarly, the majority’s citation of the testimony of Catherine

Corrigan, Ph.D., on cross-examination concerned references to NHTSA

findings in a 1995 article, which could not have invoked post-2001 NHTSA

data or proceedings.       See N.T., 3/19/2012 (afternoon), at 30-36.5,6    More

saliently, the majority observes that the excluded evidence ultimately was

cumulative to the frequent and repeated introduction in impeachment of pre-

2001 NHTSA findings that tended to support a causal connection between

roof crush and serious injury, albeit in less affirmative terms than NHTSA



____________________________________________


5
      During the cited colloquy, the Parrs did refer to 2007 and 2008
studies, but those are distinct from the categorically excluded NHTSA rule-
making evidence. I discuss non-NHTSA studies published after 2001 in
connection with the Parrs’ third issue, infra.
6
      The majority also cites in support of this claim comments in the Parrs’
closing argument. Argument is not evidence. Accordingly, such comments
are no substitute for evidence that is excluded improperly.



                                           -5-
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used in connection with its 2009 amendment to Rule 216. Maj. Op. at 23-24

(citing testimony).

       Finally, the majority correctly notes that the erroneous exclusion of

admissible evidence requires relief only when the exclusion causes the

complaining party prejudice. Id. at 24 (citing Winschel v. Jain, 925 A.2d

782, 794 (Pa. Super. 2007)). The majority concludes that any error in this

instance was harmless because the evidence in question pertained to

causation, but the jury, having concluded that the 2001 Ford Excursion was

not defective, never reached the question of what caused Mrs. Parr’s

injuries. See id.

       It is this last aspect of the majority’s ruling that troubles me most.

While the multifactorial framework for establishing a strict products liability

claim7 is an important tool in giving shape to the plaintiff’s burden of proof,

the line between defect and causation sometimes blurs. For example, if the

Parrs could establish that the overwhelming majority of rollover injuries and

fatalities in other Ford Excursions arise from roof crush rather than

diving/torso augmentation, and if the death or injury rate for Ford

Excursions in accidents similar to the accident at bar was substantially

higher than it is for other comparable vehicles, that might militate in favor of
____________________________________________


7
      See Maj. Op. at 7 (“In order to prevail in . . . 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.”).



                                           -6-
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a finding of product defect. Thus, the validity of such evidence sometimes

will affect the defect determination, even if it is presented nominally in

support of causation. I would not say that an erroneous exclusion of such

evidence, even if ventured primarily to establish causation, is harmless as a

matter of law simply because the jury, faced with the evidence actually

admitted at trial and ignorant of the evidence excluded, determined that the

Excursion was not defective.

     That being said, the entwinement of these considerations in a case like

this raises countervailing concerns of particular application to this case.

Pennsylvania Rule of Evidence 403 provides that “[t]he 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, . . . or needlessly presenting cumulative evidence.”        This Court has

acknowledged that the probative value of prior accident evidence “is

tempered by judicial concern that the evidence may raise collateral issues,

confusing both the real issue and the jury.”             Whitman v. Riddell,

471 A.2d 521, 523 (Pa. Super. 1984) (citing Stormer v. Alberts Constr.

Co., 165 A.2d 87, 89 (Pa. 1960)); cf. Mt. Olivet Tabernacle Church v.

Edwin   L.    Wiegand    Div.,   781    A.2d    1263,   1275   (Pa. Super. 2001)

(acknowledging    the   possibility    that    “an   open-ended   argumentative

exploration of possible similar incidents will confuse the jury and prejudice

the defendant”). Moreover, other jurisdictions’ case law and common sense

soundly suggest that the introduction of government findings and standards

                                       -7-
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may have an outsized prejudicial effect on a jury’s deliberations with respect

to the issues to which the evidence pertains. See Brief for Ford at 29 (citing

City of New York v. Pullman, 662 F.2d 910, 915 (2d Cir. 1981); Cover v.

Cohen, 61 N.Y.2d 261, 272 (N.Y. 1984)).       Finally, because the governing

standards require a plaintiff to establish that the allegedly defective product

was defective at the time the manufacturer relinquished that product,

evidence of post-manufacture standards and laws is not relevant to the

question of design defect. See Duchess, 769 A.2d at 1142. Consequently,

the admission of NHTSA’s post-2001 rule-making might have confused and

unduly swayed the jury on the question of product defect, even if the trial

court directed the jury to weigh NHTSA’s conclusions only in considering

causation. Furthermore, the potential for prejudice would be considerable.

      Conversely, while NHTSA’s 2009 rule was based upon a stronger

conclusion than it previously had reached regarding the correlation of roof

crush and serious injury, it was not novel to NHTSA. As evinced by the very

promulgation of roof strength standards nearly thirty years earlier, by 2001,

NHTSA effectively had maintained for decades that mitigation of roof crush

would reduce the risk of injury in rollover accidents. The Parrs undisputedly

were allowed to introduce evidence of NHTSA’s pre-2001 analyses and rule-

making on this topic, an opportunity of which they availed themselves

repeatedly.     See Maj. Op. at 23-24 (citing various instances of the Parrs’

reliance   in    cross-examination   on    pre-2001   NHTSA     commentary).

Furthermore, Ford’s experts conceded that roof crush could cause or

                                     -8-
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contribute to serious injuries in certain rollover accidents. Thus, while the

evidence in question would be highly prejudicial, its probative value in

support of causation would be quite limited.

     While by and large I agree with the majority’s reasoning, I believe that

it is insufficiently sensitive to the complex balance of probative value and

prejudicial effect such evidence may present in certain cases, including in

this one. Thus, I believe that it is neither necessary nor advisable to opine

that this evidence’s exclusion was harmless as a matter of law. However,

because the thrust of nearly thirty years of NHTSA discussions of the likely

correlation between roof crush and injury was set before the jury and Ford’s

expert witnesses acknowledged that roof crush might cause injury in certain

circumstances, the jury was aware of the data and arguments supporting

the Parrs’ roof crush theory of causation.     Measured against the risk of

prejudice highlighted above, and viewed in light of our considerable

deference to trial courts’ evidentiary rulings, see Keystone Dedicated

Logistics, LLC v. JGB Enters., Inc., 77 A.3d 1, 11 (Pa. Super. 2013), I

cannot conclude that the trial court abused its discretion in excluding this

evidence. Consequently, I would avoid the question of harmlessness, which

need not be reached to affirm the ruling in this case, thus avoiding any risk

that the concept might be applied too broadly in a future case.

     The Parrs’ third and related issue concerns the trial court’s order

granting Ford’s motion in limine number 9. Therein, Ford maintained that

the Parrs’ expert reports “rely on . . . statistical studies and compilations

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involving motor vehicle accident data to reach conclusions that the subject

Excursion . . . caused [the Parrs’] injuries. . . .    [E]ach of these statistical

studies is irrelevant and inadmissible [because the Parrs] cannot show that

each      [underlying]     accident   occurred      under    substantially      similar

circumstances as the Parr accident.”          Memorandum of Law in Support of

Ford’s Motion in Limine No. 9 at 3-4. As well, Ford urged the trial court to

find that, even if relevant, the experts’ supporting studies and datasets were

so prejudicial in effect as to eclipse their probative value. See Pa.R.E. 403.

         The majority provides an accurate account of the relevant law.

See Maj. Op. at 28-30.          For my purposes, it suffices to say that the

proponent of prior accident evidence bears the burden of establishing that

the prior accident or accidents are substantially similar to the accident at

issue.      See   Blumer      v.   Ford     Motor   Co.,    20   A.3d   1222,    1228

(Pa. Super. 2011). “It is not a matter of finding exact similarity between the

incidents, but some similarity must be shown to prevent speculation.”

Harkins v. Calumet Realty Co., 614 A.2d 699, 705 (Pa. Super. 1992).

Under Pennsylvania law, this burden applies equally whether the evidence in

question consists of a single accident or a statistical compilation of accidents.

See Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 985-86

(Pa. Super. 2005).       Furthermore, in Hutchinson, this Court held that the

proponent must establish the substantial similarity of the accidents

underlying a compilation to the accident sub judice regardless of whether it

is submitted to establish the existence or notice of a defect or causation.

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Id. at 985 (citing Spino v. John S. Tilley Ladder Co., 671 A.2d 726, 735

(Pa. Super. 1996)). In Hutchison, we found reversible error where the trial

court    admitted   prior   accident   evidence,   ostensibly   to   establish   the

defendant’s state of mind for purposes of punitive damages, where the

plaintiff failed to establish substantial similarity of the prior accident

evidence. Id. at 985-86; see also generally Majdic v. Cincinnati Mach.

Co., 537 A.2d 334, 341 (Pa. Super. 1988).          Therefore, the Parrs have no

obvious source of relief for their burden of establishing the requisite

similarity, which I would find that the Parrs did not meet.

        In their opposition to Ford’s motion in limine, the Parrs were vague

about precisely what studies and data compilations they wished to admit.

More importantly, they never expressly sought to establish with particularity

that each study and data compilation was compiled from accidents that were

substantially similar to their own.       Instead, they adopted a somewhat

dubious interpretation of the deposition testimony of one of Ford’s expert

witnesses in another case as evidence that Ford somehow had conceded that

“there is a direct relationship between the amount of roof crush and the risk

of serious head, face, and neck injuries in rollover crashes,” a proposition

that, in any event, did not establish substantial similarity.           The Parrs’

Memorandum of Law in Opposition to Ford’s Motion in Limine No. 9 at 5

(quoting deposition of Jeff Croteau, in which he appears to agree that there

is a correlation between a “higher degree of roof collapse” and “a higher

degree of head injury,” but rejects the inference of causation between roof

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crush and injury exacerbation).         Later, the Parrs argued that the evidence

was admissible in the alternative to provide the foundation for their experts’

opinions, see Pa.R.E. 703, or for purposes of impeachment of the credibility

of   Ford’s     expert    witnesses,    see   Pa.R.E. 607(b).        See   The   Parrs’

Memorandum of Law in Opposition to Ford’s Motion in Limine No. 9 at 8-9.

However, the Parrs never made a case for the substantial similarity of the

accidents underlying any one study or data compilation. Oral argument on

the parties’ motions in limine brought no more information pertinent to the

substantial similarity inquiry. In short, the Parrs failed to do before the trial

court—and largely fail to do before this Court—what the law obliged them to

do in order to rebut Ford’s assertion that these studies were inadmissible for

want of sufficient similarity.

      As a rule, arguments not materially preserved in the trial court are

beyond our purview.         See Pa.R.A.P. 302(a); cf. Commonwealth v. May,

887 A.2d 750, 761 (Pa. 2005) (“The absence of contemporaneous objections

renders . . .    claims    waived.”);    Commonwealth           v.   Baumhammers,

960 A.2d 59, 73 (Pa. 2008) (deeming the absence of contemporaneous

objections to constitute waiver notwithstanding the appellant’s claim that the

issues in question were raised before trial).        Furthermore, while the Parrs

asserted in their post-trial motion their general contention that the trial court

improperly and categorically excluded post-2001 studies and compilations of

data, they again failed to identify with particularity each study or data

compilation and a basis upon which the trial court reasonably could find that

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the substantial similarity test was satisfied.   This, too, constitutes waiver.

See Pa.R.C.P. 227.1; Phillips v. Lock, 86 A.3d 906, 918 (Pa. Super. 2013)

(deeming waived for purposes of appeal issues that were not objected to at

trial or raised in post-trial motions).

      The majority so holds, but in doing so it arguably makes substantive

conclusions about the evidence in question, notwithstanding the waiver

consideration that, elsewhere, the majority seems to find dispositive.

See Maj. Op. at 30-31.       In particular, the majority, like the trial court,

seems to put a great deal of stock in the distinction between accident

fatalities and the accident in question. See id. at 30; T.C.O. at 6-7. I would

not suggest that such a distinction, standing alone, warrants a finding that a

study is not sufficiently similar to be admitted, and it troubles me that the

majority’s opinion may, in a later case, be cited for that proposition.

Whether a given injury leads to death (as was true in at least some of the

compilations at issue) or quadriplegia (as is true in this case) may reflect a

difference of degree rather than one of kind in the product defect and events

that caused the injury.     In this case, Mrs. Parr suffered a severed spinal

cord. Certainly, a small difference in the kinematics of the injury could have

resulted in fatal injury arising from a similar or identical mechanism, which,




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in turn, might support a finding of substantial similarity, provided other

factors, too, pointed to that conclusion.8

       Because I believe that the Parrs barely even tried to establish the

substantial similarity of the studies and data compilations in this case, I

would not reach the merits of their challenge to the trial court’s substantive

findings as to substantial similarity.         I would reject the Parrs’ argument

solely because they waived it.            Accordingly, the details of the parties’

dialogue with the trial court on the issue, as well as the trial court’s own

reasoning, are immaterial to this appeal.          The Parrs simply failed to make

the showing necessary to establish a basis for such a detailed review of the

studies. I would deny relief strictly on that basis.

       Finally, following considerable deliberation, I join the majority’s ruling

rejecting the Parrs’ challenge to the trial court’s decision to issue a

permissive adverse inference instruction based upon the Parrs’ alleged

spoliation of the evidence, albeit with one reservation. The majority notes

that the governing standard in determining whether a spoliation sanction is

warranted requires the trial court to determine, inter alia, the degree of fault

of the party who rendered the evidence unavailable and the degree of

prejudice suffered by the opposing party arising from the unavailability of


____________________________________________


8
      In fairness to the majority, it notes other gaps in the Parrs’ showing
that the trial court did not address.       Nonetheless, these unnecessary
analyses, too, might provide bases for questionable rulings in future cases.



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the evidence. Fault is determined by examining the alleged spoliator’s duty

to preserve the evidence and the presence or absence of bad faith. Finally,

duty is established where the party responsible for the evidence knows that

litigation is pending or likely and it is foreseeable that discarding the

evidence would prejudice the defendants.        See Maj. Op. at 34 (quoting

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

      The majority contends that “there is no dispute that the Parrs were

responsible for the destruction of the Excursion and[,] thus, were at fault.”

Id. at 35. However, this conclusion skips a critical analytic step in imputing

fault to a party accused of failing to preserve evidence material to litigation.

Cf. Eichman v. McKeon, 824 A.2d 305, 314-15 (citing Baliotis v. McNeil,

870 F.Supp. 1285, 1290 (M.D.Pa. 1994) for the proposition that “a

component of fault is the presence or absence of good faith”). While it is

undisputed that the Parrs relinquished the Excursion to their insurance

company, it is not clear what, if any, representations or demands were made

by the insurance company or by the Parrs or their counsel. Even if this does

not implicate their legal duty, it certainly implicates the determination

whether the Parrs acted in bad faith, an explicit element of the test for fault.

      That modest reservation aside, I believe that our Supreme Court’s

decision in Schroeder v. Commonwealth, Dep’t of Transp., 710 A.2d 23

(Pa. 1998), requires affirmance. In that strict products liability case, unlike

in this case, the record indicated that plaintiff’s counsel had made

arrangements to preserve the damaged vehicle, agreeing to remit a storage

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fee to the company that salvaged the vehicle.           Only later, the plaintiff

released title to the insurance company.        Thereafter, the insurer released

title to the salvage company, which then disposed of the vehicle before

certain experts could examine it, despite the pending litigation. Id. at 24-

25. Our Supreme Court ruled that the trial court and Commonwealth Court

had erred in granting summary judgment, the most extreme sanction for

spoliation, and a ruling that reflected the trial court’s finding of bad faith.

However, the Court directed that, on remand, the trial court provide an

adverse inference instruction to the jury based upon the plaintiff’s failure to

preserve evidence that was manifestly material to their claims. Id. at 28.

Given that the Supreme Court compelled the administration of such a jury

instruction under circumstances where fault was no more clearly—and

perhaps less clearly—established than in this case, thereby implicitly

affirming the trial court’s finding of bad faith, it would be incongruous to

intrude upon the trial court’s discretionary determination that such an

instruction was called for in this case.       Hence, like the majority, I would

uphold the trial court’s decision in this regard.

      Judge Ott joins this concurring opinion.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014




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