                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                       May 19, 2004 Session

      LUKE N. GIBSON, ET AL. v. CHRYSLER CORPORATION, ET AL.

                   A Direct Appeal from the Circuit Court for Shelby County
                   No. 302781 T.D.    The Honorable Kay S. Robilio, Judge



                     No. W2002-03134-COA-R3-CV - Filed August 26, 2004


        This is an appeal from a judgment entered on a jury verdict for Defendant/Appellee.
Plaintiff/Appellant, a minor, was allegedly injured when an integrated car seat in a vehicle
manufactured and sold by Defendant/Appellee malfunctioned. Plaintiff/Appellant asserts that: (1)
the jurors conducted unauthorized experimentation with certain exhibits, which constituted
extraneous prejudicial information under Tenn. R. Evid. 606(b); (2) that there is no material evidence
on which the jury could have based its verdict; (3) that the trial judge failed to properly perform her
duty as thirteenth juror; (4) that the trial court erred in allowing an expert to testify outside the scope
of his expertise in violation of McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn.
1997); and (5) that the trial court erred, either under Tenn. R. Evid. 702 and 704 or on the theory of
judicial estoppel, in excluding a portion of the testimony of a second expert. We affirm.


      Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and HOLLY M. KIRBY , J., joined.

Gail O. Mathes of Memphis; Michael C. Skouteris and George E. Skouteris of Memphis For
Appellant, Luke N. Gibson, a minor by parents, Roger O. Gibson and Susan M. Gibson

Lawrence A. Sutter of Cleveland, Ohio; Joy Burns of Franklin, Tennessee For Appellees Chrysler
Corporation and Daimlerchrysler Corporation

                                               OPINION

        On December 16, 1995, Roger and Susan Gibson purchased a 1996 Chrysler Town &
Country minivan with a Generation II integrated child safety seat. Roger and Susan Gibson have two
children, Luke (together with his parents, the “Gibsons,” “Plaintiffs,” or “Appellants”) and Lisa. On
July 3, 1996, Luke was fifteen (15) months old. On that date, Mrs. Gibson drove, with her children,
from Memphis, Tennessee to her mother’s home just outside Nashville, Tennessee. Returning to
her mother’s home, after eating at a restaurant, Mrs. Gibson and her mother tried to removed Luke
from the car seat. After Mrs. Gibson pressed the release button of the latch buckle, the child seat
allegedly malfunctioned and continued retracting to a point that the T-shield and straps began to
constrict Luke’s airway. The more Mrs. Gibson tried to pull the straps from Luke’s throat and the
more Luke struggled, the more the straps and T-shield allegedly tightened against his throat. The
Gibsons allege that after minutes of being choked by the child seat, Luke quit crying, changed color,
and lost consciousness. At that point, Mrs. Gibson and her mother got back into the van and drove
two or three miles to a service station to seek help in removing Luke from the seat.1 At the service
station, a customer saw the commotion and was able to use his pocket knife to pry open the
emergency release clips on the seat. Within the next few minutes, Luke allegedly regained
consciousness and began moving.

        Following the alleged incident, Mrs. Gibson called her husband in Memphis. Luke’s father
is a physician, practicing in internal medicine. From his wife’s account of the incident, Dr. Gibson
determined that Luke was not in life threatening danger and that hospital care was not necessary so
long at Mrs. Gibson closely observed Luke for any signs of breathing distress. Mrs. Gibson took
pictures of Luke’s neck and called Chrysler’s customer service number to report the incident. After
returning to Memphis the following week, Dr. Gibson allegedly observed aspects of Luke’s behavior
that led him to the conclusion that Luke needed to see his pediatrician. On July 8, 1996, Luke was
seen by his pediatrician, Dr. William Threlkeld. Dr. Threlkeld referred Luke to Dr. J.T. Jabbour, a
pediatric neurologist, for a neurological examination.

         On June 15, 1999, the Gibsons filed a Complaint against Chrysler Corporation, Daimler
Chrysler Corporation and Covington Pike Chrysler Plymouth, Inc. (referred to collectively as
“Chrysler,” “Defendants,” or “Appellees”). The Gibsons’ Complaint alleges that Luke sustained
permanent brain damage as a result of being trapped and choked by the allegedly defective integrated
car seat in their 1996 minivan. The Gibsons sought recovery under theories of strict liability, breach
of the implied warranties of merchantability and fitness for a particular purpose, and negligence. The
Complaint seeks both compensatory damages and punitive damages.2 On August 13, 1999, Chrysler
filed its Answer. Discovery ensued for over two years.

        Beginning on February 5, 2002, this case was tried to a jury. During the course of the trial,
both sides presented extensive evidence concerning the design, development, testing, and various
post-production complaints surrounding the integrated child seat. At the conclusion of the evidence,
the jury returned a unanimous verdict in favor of Chrysler. The Gibsons filed a “Motion for
Judgment Notwithstanding the Verdict or in the Alternative, for New Trial” on April 19, 2002. An
“Amended Motion for Judgment Notwithstanding the Verdict, or in the Alternative, to Renew

         1
           W e note that neither Mrs. Gibson nor her mother went into the house for anything with which to cut the straps,
nor did they seek the help of Mrs. Gibson’s brother, who was inside the house at the time.

         2
         Apparently Plaintiffs’ counsel moved orally at or before trial that the Complaint be amended to change the
ad damnum clause. The trial court entered an Order allowing the amendment on February 27, 2002, raising the ad
damnum to $538,128,287.00.

                                                           -2-
Motion for New Trial and Reply” (the “Amended Motion”) was filed on October 30, 2002. Pursuant
to Tenn. R. App. P. 3(e), the Amended Motion specifically mentions each of the issues raised on
appeal. The Amended Motion was denied by Order entered on November 19, 2002.

        The Gibsons appeal and raises four (4) issues for review as stated in their brief:

                I. Whether the jury’s verdict is supported by material evidence when
                the jury based its verdict upon the results of unsupervised testing and
                experimentation of demonstrative evidence that the jury conducted
                during deliberations?

                II. Whether the jury’s verdict that no defect existed is supported by
                the greater weight of the evidence?

                III. Whether the Court erred in permitting Harvey Cantor, M.D. to
                provide expert opinions about non-medical engineering issues in
                violation of the standard set by McDaniel v. CSX Transportation,
                Inc., which also exceeded the scope of his Rule 26.02 (4) expert
                disclosure?

                IV. Whether the Court erred in excluding the testimony of Allan
                Kam from Plaintiff’s case-in-chief?

                     I. Whether the jury’s verdict is supported by material
                        evidence when the jury based its verdict upon the
                     results of unsupervised testing and experimentation of
                         demonstrative evidence that the jury conducted
                                      during deliberations?

        As phrased, the Gibsons’ first issue appears to be beyond the purview of this Court’s review.
The Gibsons argue that the only evidence relied upon by the jury was the “unsupervised testing and
experimentation performed during deliberations.” Appellants’ contention is based solely upon the
Affidavit of Ms. Boyle, see infra, specifically Paragraph seven (7), which reads: “The results of the
above referenced experiment by the jurors weighed heavily in our decision not to award a verdict
in favor of the Plaintiff.” Tenn. R. Evid. 606(b), cited infra, specifically states that, upon inquiry into
a verdict or indictment, a juror may not testify as to any matter:

                (1) that occurred during the course of deliberations;
                (2) to the effect of anything upon any juror’s mind or emotions as
                influencing that juror to assent to or dissent from the verdict.
                (3) concerning the juror’s mental processes.




                                                   -3-
               (4) nor may a juror’s affidavit or evidence of any statement by the
               juror concerning a matter about which the juror would be precluded
               from testifying be received for these purposes.

Ms. Boyle’s statement in Paragraph seven (7) of her Affidavit is not admissible as it goes to the
mental processes of the jury and references the effect of the experimentation and testing on the
verdict. Having found that Ms. Boyle’s statement concerning the material evidence on which the
jurors allegedly based their verdict is inadmissible under Tenn. R. Evid. 606(b), based upon the
phrasing of this issue, this Court could move directly into its review of the record to determine
whether there is any material evidence on which the jury could have based its verdict.

         However, from a reading of Gibsons’ brief, it appears that their assignment of error under
this issue rests with the jury’s performance of their own experimentation with the Gibsons’ car seat
and the dummies, during deliberations. Consequently, this Court will first address whether Ms.
Boyle’s Affidavit is admissible under Tenn. R. Evid. 606(b) (i.e. whether the Affidavit evinces
“extraneous prejudicial information” improperly brought to the jury’s attention, or (2) “outside
influence” improperly brought to bear on a juror, or (3) an agreement to be bound by a quotient or
gambling verdict). If we find that the Affidavit provides such evidence, then we will evaluate
whether such evidence constitutes harmful or harmless error. If harmful, we will remand for new
trial. If either the Affidavit is inadmissible under Rule 606(b), or if the evidence the Affidavit
provides is harmless, we will then proceed to a material evidence analysis.

         As discussed, supra, the Gibsons first assert that the material evidence on which the jury
based its verdict was the result of the jury’s improper experimentation and testing with the Gibson
car seat during deliberations. Specifically, the Gibsons contend that this experimentation resulted
in “prejudicial and extraneous information [being] gathered during improper, unsupervised
experimentation and testing performed by the jury with a doll positioned in the seat.” As the basis
for their assertion, the Gibsons submitted the “Affidavit of Lucretia Boyle,” one of the jurors in the
case, as an attachment to their Amended Motion. Ms. Boyle’s Affidavit reads, in relevant part, as
follows:

               3. During the jury deliberations, the jurors, myself included, took
               turns experimenting with the integrated child safety seat from the
               Gibson van and the doll to determine whether the seat was capable of
               choking a child.

               4. The jurors performed experiments with the integrated child safety
               seat while it was positioned in the floor of the jury room and with the
               seat positioned on the table in the jury room.

               5. Because the width of the doll’s neck was much narrower than that
               of a child, some jurors tried to simulate the width of the child’s neck



                                                 -4-
               by putting either their fingers or their fist between the doll’s neck and
               the straps.

               6. The jurors were able to demonstrate that the seat was capable of
               placing sufficient force on the front of the doll’s throat to injure a
               child but were unable to make the straps dig in on the side.

               7. The results of the above referenced experimentation by the jurors
               weighed heavily in our decision not to award a verdict in favor of the
               Plaintiff.

        A comprehensive statement concerning a jury’s conduct of experiments in the process of its
deliberations is found in 75B Am.Jur.2d, Trial, § 1556:

                       A jury may not conduct experiments which have the effect of
               putting them in possession of evidence not offered at trial. In this
               regard, experiments of jurors which lead to the jury’s consideration
               of extrinsic evidence are constitutionally impermissible. However,
               experiments by the jurors as part of their deliberative processes which
               do not involve the receipt of evidence out of court are permissible,
               and the conducting of experiments in the jury room which merely
               duplicate what has occurred during trial in the courtroom, does not
               constitute reception of new evidence by the jury in this regard.
               Furthermore, where a test or experiment conducted by the jury in the
               jury room amounts to a closer, more analytical examination of
               evidence which was properly introduced at trial, as opposed to the
               introduction of new evidence, it is not improper.

        The rule governing the procedure when the issue of jury misconduct has been raised is well
established in Tennessee. Although jurors are permitted to weigh the evidence in light of their own
knowledge and experience, their verdict must be based on the evidence introduced at trial.
Caldararo v. Vanderbilt University, 794 S.W.2d 738 (Tenn. Ct. App. 1990). Clearly, a jury verdict
based on something other than the evidence introduced at trial is improper and should not be allowed
to stand. However, in order to be granted a new trial due to such jury misconduct, there must be
admissible evidence on the issue. Admissibility of evidence from jurors is governed by Tenn. R.
Evid. 606(b), which states:

               (b) Inquiry into Validity of Verdict or Indictment. Upon an
               inquiry into the validity of a verdict or indictment, a juror may not
               testify as to any matter or statement occurring during the course of the
               jury’s deliberations or to the effect of anything upon any juror’s mind
               or emotions as influencing that juror to assent to or dissent from the
               verdict or indictment or concerning the juror’s mental processes,


                                                 -5-
               except that a juror may testify on the question of whether extraneous
               prejudicial information was improperly brought to the jury’s
               attention, whether any outside influence was improperly brought to
               bear upon any juror, or whether the jurors agreed in advance to be
               bound by a quotient or gambling verdict without further discussion;
               nor may a juror’s affidavit or evidence of any statement by the juror
               concerning a matter about which the juror would be precluded from
               testifying be received for these purposes.

        The Rule 606(b) analysis provides three exceptions to the rule that jury deliberations are not
subject to later scrutiny by the courts: (1) extraneous prejudicial information improperly brought to
the jury’s attention, (2) outside influence improperly brought to bear on a juror, and (3) an agreement
to be bound by a quotient or gambling verdict.

        The Gibsons first claim that Ms. Boyle’s Affidavit supports a finding that extraneous
prejudicial information was improperly brought to the jury’s attention as a result of the jury’s own
experimentation with the dummy and the Gibson car seat. Citing paragraphs three (3) through six
(6) of Ms. Boyle’s Affidavit, the Gibsons specifically assert that “[i]t was the numerous attempts
using an anatomically incorrect doll and/or dummy in recreating the incident originally involving
a living, moving baby that accumulated into the new evidence.”

        Our Supreme Court has held that “extraneous information” is information from a source
outside the jury. State v. Coker, 746 S.W.2d 167, 171 (Tenn. 1987). Thus, intra-jury pressure or
intimidation, State v. Hailey, 658 S.W.2d 547, 553 (Tenn. Crim. App. 1983), premature jury
deliberations contrary to the trial court’s instructions, State v. Frazier, 683 S.W.2d 346, 353 (Tenn.
Crim. App. 1984), and speculation about a verdict’s consequences, State v. Workman, 667 S.W.2d
44, 51-52 (Tenn. 1984), have been found to be internal matters that do not involve extraneous
information or outside influence.

        This Court, in Caladararo v. Vanderbilt University, 794 S.W.2d 738 (Tenn. Ct. App. 1990),
further discusses the distinction between extrinsic and intrinsic influence, to wit:

               Like our federal counterparts, Tennessee’s courts now recognize a
               distinction between extrinsic and intrinsic influence when reviewing
               a motion for new trial based on alleged juror misconduct. External
               influences that could warrant a new trial if found to be prejudicial
               include: (1) exposure to news items about the trial, (2) consideration
               of facts not admitted in evidence, and (3) communications with
               non-jurors about the case. Government of Virgin Islands v. Gereau,
               523 F.2d at 149-50; United States v. Blackston, 547 F.Supp. at 1217.
               Internal influences that are not grounds to overturn a verdict include:
               (1) discussions among jurors, (2) intimidation or harassment of one
               juror by another, (3) a juror’s personal experiences not directly related


                                                 -6-
                to the litigation, and (4) a juror’s subjective thoughts, fears, and
                emotions. United States v. Norton, 867 F.2d 1354, 1366 (11th
                Cir.1989); United States v. Krall, 835 F.2d 711, 716 (8th Cir.1987);
                Carson v. Polley, 689 F.2d 562, 581 (Former 5th Cir.1982); United
                States v. Duzac, 622 F.2d 911, 913 (5th Cir.1980).

Id. at 742.

        The Gibsons contend that the jury’s experimentation amounted to new evidence and was
external to the proceedings because the jury’s reliance upon the results of their own testing
constituted consideration of facts not admitted into evidence. We disagree. It is undisputed that
both the Gibson car seat (Plaintiffs’ Exhibit 3), an exemplar car seat (Defendants’ Exhibit L), and
two anthropometric dummies, a three year old hybrid II dummy (Defendants’ Exhibit M) and a
fourteen-month-old female dummy called Princess (Defendants’ Exhibit N), were admitted into
evidence without objection by either party, to wit:

                MR. BODE [attorney for Defendant]: Your Honor, at this time, in
                order to clear up any problems with the Exhibits, I’m going to offer
                L, M, N...into evidence based on the testimony of Dr. Stalnaker.

                *                                *                                  *

                THE COURT: All right. Any objection?

                MR. SMITH [attorney for Plaintiff]: No objection.


 It is also undisputed that the trial court allowed the car seats and dummies to be taken into the jury
room during deliberations without objection from either party. In short, both the car seat (i.e. the
Gibson car seat) and the dummy (i.e. Princess), on which the jury experimented, were intrinsic to
the trial. Chrysler urges us to stop our analysis here, reasoning that Plaintiffs’ failure to object to the
admission of this evidence at trial, or to its submission to the jury, constitutes a waiver of their
opportunity to challenge the jury’s use of same. We disagree. Even though the evidence itself is
intrinsic to the trial, we nonetheless concede that, through their experimentation, the jury could have
adduced evidence that was not intrinsic to the trial. On this note, the Gibsons contend that the jury
created new/extrinsic evidence, by virtue of their experimentation, for three reasons: (1) the doll
“was significantly different from the injured child,” (2) “by the number of times the jury
experimented,” and (3) “by the use of various and inappropriate techniques.”

        We now turn to each of these assertions to determine whether the doll’s anatomy, the number
of times the jury experimented, and/or the techniques employed by the jury constituted any additional
evidence that was not gleaned at trial.



                                                     -7-
The Doll’s Anatomy

        The record indicates that “all exhibits including Exhibit 1 went back to the jury....” From Ms.
Boyle’s Affidavit it is not clear which of the two dummies admitted at trial was used in the jury’s
experiments, since Ms. Boyle refers to the exhibit only as “the doll,” and not by name (i.e. Princess)
or by exhibit number. However, in paragraph five (5) of the Affidavit, Ms. Boyle indicates that “the
width of the doll’s neck was much narrower than that of a child,” which leads to the conclusion that
the experimentation was performed with the doll Princess (Defendant’s Exhibit N).3

       Chrysler used the testimony of Dr. Richard Stalnaker to lay the foundation for the dolls’
admission into evidence. Dr. Stalnaker made the following, relevant statements about Princess’
anatomy and whether the doll was representative of a child Luke Gibson’s age:

                  Q [by Defendant’s counsel]: There’s been some contention in this
                  case that Princess is inadequate, Exhibit N, because of her neck size.
                  Does the aspect that you [Dr. Stalnaker] just demonstrated, does it
                  have any relationship to neck size of the anthropometric device?

                  A [by Dr. Stalnaker]: It has a little bit. Her neck size is smaller by
                  about an inch than what her size would have been if she was a
                  fourteen-month-old child. They made it a little thinner because I
                  guess they wanted it to look like, more or less, a much thinner child.

       Despite the doll’s admittedly thinner neck, Plaintiffs’ attorney failed to object when the doll
was moved into evidence. Likewise, there was no objection when Defendants’ Exhibit M, the three-
year-old dummy, with enlarged neck, was admitted into evidence.

        The foundation evidence, however, is not the only evidence in record concerning the dolls’
dissimilarity to Luke Gibson, or any other fourteen-month-old. Numerous witnesses made reference
to the fact that the dummy is not the same as a child. For example, in his testimony, Mr. Tony


       3
           Dr. Stalnaker testified as follows concerning the neck of the three-year-old dummy, Defendant’s Exhibit M:

                  Q. The neck on the Exhibit M, dummy, is significantly larger than the neck on a
                  fourteen-month-old?

                  A. Yes. It’s also larger than what’s on a three-year-old. This doesn’t represent the
                  diameter of an actual three-year-old. The actual three-year-old neck is shown below
                  that padding....

                           This padding was put on here because of an air bag. An air bag will wrap
                  around the neck of the dummy and grab a hold of his chin and cause the forces to
                  be high. And our neck is more blended together and more soft and kind of mushy.
                  So they actually put this extended collar on here to cause an interface between the
                  chin and around the dummy to do the air bag testing....

                                                          -8-
Brenders made the statement “No doubt the dummy is different than a child.” Mrs. Gibson, while
experimenting with the car seat and dummy in open court, stated “...that doll has a head about half
a size or fourth the size of his [Luke Gibson’s].” There are numerous other examples in the record
but, without listing them all here, suffice it to say that the fact of the dolls’ shortcomings as
anatomically identical to Luke Gibson, or other children his age, was adduced during the trial.
Consequently, the fact of the dolls’ anatomical differences was not new evidence derived by the jury
from their experimentation during deliberations.
Number of Times the Jury Experimented

       At trial, the Gibsons’ attorney stressed the point that the choking incident at issue in this case
was “a one-time aberration that [could not] be replicated through a live experiment,” and that “Mrs.
Gibson used the [seat] hundreds of times before it [the alleged choking of Luke Gibson]
happened...,” to wit:

                Q [By Mr. Smith, attorney for Plaintiff]. I’m going to ask you [Mrs.
                Gibson] a question and I know you can’t answer it accurately but I
                want you to take your best shot. In the six months that you had
                owned this car when this incident happened. About how many times
                do you think you had put Luke in and out of that seat?

                A [By Mrs. Gibson] ...probably once or twice a day.

                Q. Six months is 180 days. So we’re talking 200 to 350 times, rough
                estimate; correct?

                A. Correct.

                Q. Had there ever been a single incident of him [Luke] being where
                you could not get him out?

                A. No...

                *                                       *                           *

                Q. But it did happen on that day, didn’t it?

                A. Yes.

        From our reading of the record, it appears that the Gibsons’ stance is that the alleged
malfunction of the car seat can not be replicated in a single re-enactment but requires long-term use
of the chair (i.e. the seat’s alleged malfunction is unpredictable). Yet, despite their position, the
Gibsons’ attorney did not object when Chrysler’s attorney cross-examined numerous witnesses by
asking them to perform re-enactments and/or experiments with the car seats admitted into evidence.


                                                  -9-
Consequently, the record in this case is replete with evidence of attorneys and witnesses
manipulating the car seats, in some cases several times over the course of their testimony and in
some cases only once. Ms. Boyle’s Affidavit does not indicate exactly how many different
experiments the jurors performed, or how many times they repeated the same experiment. Based
on the Affidavit, and the evidence adduced at trial, we do not find that the number of repetitions or
various manipulations performed by the jurors on the car seat constitutes new/extrinsic evidence.


Techniques

        Finally, the Gibsons assert that the jury employed “various and inappropriate” techniques
in their experimentation, which resulted in new evidence. The only techniques described by Ms.
Boyle in her Affidavit were that the jury performed their experiments while the child seat was
positioned on the floor and on the table, and that they experimented by “putting either their fingers
or their fist between the doll’s neck and the straps.” We will evaluate both of these techniques to
determine whether either constitutes evidence extrinsic to the trial. From the record, it is not clear
where the child seats were positioned (i.e. on the floor of the courtroom or on a table) during the
various tests, re-enactments, and experiments performed in court. What we do know is that neither
the exemplar seat nor the Gibson car seat was integrated into a vehicle during trial. The seats were
delivered to the jury room in this same state. There is no evidence to suggest that the jurors did
anything to the car seat to change its form (e.g. they did not try to take it apart, they did not try to
integrate it into a vehicle, they did not cut its straps). The mere positioning of the car seat from one
surface to another, without more, does not constitute new evidence.

        Concerning the jury’s manipulation of the doll’s neck, we turn to the record to evaluate the
various types of experiments, tests, and re-enactments that were performed in front of, or viewed by,
the jury. The record shows, inter alia, that experiments were performed with the doll inside the seat
and with the doll not in the seat, with the doll still and with the doll being moved to simulate an
actual child. Videotaped depositions, that were played in court, show demonstrations on the car seats,
using anything from a large, stuffed bear, to an attorney’s arm, to an actual child. In light of all of
these various techniques that were present at trial, we cannot say that the jury’s attempt to expand
the dummy’s neck was so different from the evidence adduced at trial as to constitute new evidence.

       The Gibsons also assert that “Chrysler’s attorney went beyond his role as an advocate and
exerted influence [on] the jury that was outside influence.” As grounds for their assertion, the
Gibsons cite the following from Chrysler’s opening statement:

               Mr. Bode: [attorney for Chrysler] However, I’m going to submit to
               you that in this case there are several witnesses, not in the traditional
               sense of a human being talking from a witness stand and answering
               lawyers’ questions. But there is this seat– it’s a witness. I believe the
               evidence will be that it hasn’t been altered at all since July 3, 1996
               and nobody has changed anything with regard to this child seat.


                                                 -10-
The Gibsons also cite the following from Chrysler’s closing statement:

                  Mr. Bode: ...But we did represent to you that Princess was pretty
                  close to what should be the seated height of Luke Gibson. The seated
                  height is the critical element in determining a situation like this, and
                  that she’s in evidence for you. The seat’s in evidence for you. That
                  seat’s in evidence for you. Dummy’s in evidence for you to use to
                  prove us wrong. If you can create a choking situation, then you’ve
                  proved us wrong.

(emphasis provided by Appellant).

         We first note that Ms. Boyle’s Affidavit gives no indication that Chrysler’s attorney’s
statements had any bearing on the jury’s deliberations.4 That fact alone removes the statements of
Chrysler’s attorney from analysis under Rule 606(b). However, even if we allow the argument
advanced by the Gibsons in their brief, we nonetheless find that any statements made by counsel at
trial do not constitute “outside influence” as contemplated by Rule 606(b). Rather, the offending
statements were heard by the jury during trial, which makes them intrinsic to the proceedings and
thereby not an “outside influence.” We note that the Gibsons’ attorney made no objection to
Chrysler’s attorney’s arguments. Having failed to take advantage of that opportunity at the trial
level, the Gibsons cannot be heard to complain on appeal.

       For the foregoing reasons, we find that Ms. Boyle’s Affidavit is not admissible under Tenn.
R. Evid. 606(b). We now turn to the question of whether there is any material evidence in the record
on which the jury could have based its verdict.

         Our review of the judgment entered on the jury’s verdict is governed by Tenn. R. App. P.
13(d), which provides that “[f]indings of fact by a jury in civil actions shall be set aside only if there
is no material evidence to support the verdict.” Under this standard of review, we “are not at liberty
to weigh the evidence or to decide where the preponderance lies, but are limited to determining
whether there is material evidence to support the verdict.” Crabtree Masonry Co. v. C & R Constr.,
Inc., 575 S.W.2d 4, 5 (Tenn.1978). In making this determination, we are “required to take the
strongest legitimate view of all the evidence in favor of the verdict, to assume the truth of all that
tends to support it, allowing all reasonable inferences to sustain the verdict, and to discard all to the
contrary.” Id. If the record contains any material evidence to support the verdict, we must affirm
the trial court’s judgment. See id.; accord Forrester v. Stockstill, 869 S.W.2d 328, 329 (Tenn.1994).

         The jury’s verdict, as read into the record by the foreman, is as follows:



         4
           W e note that, even if M s. Boyle’s Affidavit had reference the jury’s reliance upon Chrysler’s attorney’s
statements and/or any effect that these statements may have had on the jury’s verdict, under Tenn. R. Evid. 606(b), these
statements would not have been admissible, see discussion under first issue, supra.

                                                         -11-
               JURY FOREMAN: Number one, “Do you find the defendant
               DaimlerChrysler to be at fault due to strict liability?” We marked no.

                       Number two, “Do you find the defendant DaimlerChrysler to
               be at fault due to breach of implied warranty?” We voted no.

                       In three, “Do you find the defendant DaimlerChrysler to be at
               fault due to breach of express warranty?” We voted no.

                       Four, “Do you find the defendant DaimlerChrysler to be at
               fault due to negligence?” We voted no.

               THE COURT: All right. This was a unanimous verdict.

               JURY FOREMAN: Yes.

         Under the provisions of the Tennessee Products Liability Act of 1978, T.C.A. §§ 29-28-101
to 108, a manufacturer or seller of a product may be held liable for an injury caused by its product
only if the “product is determined to be in a defective condition or unreasonably dangerous at the
time it left the control of the manufacturer or seller.” T.C.A. § 29-28-105. A defect may be proven
by direct evidence, circumstantial evidence, or a combination of both. Browder v. Pettigrew, 541
S.W.2d 402, 405 (Tenn. 1976). The mere occurrence of an accident is not sufficient to prove a
defect. Browder at 406. In essence, the plaintiff must prove that “something was wrong” with the
product. Tatum v. Cordis Corp., 758 F. Supp. 457, 461 (M.D. Tenn. 1991). While circumstantial
evidence such as proof of proper use, handling or operation of the product may be enough to satisfy
the requirement, a defective condition can be proven by the testimony of an expert who has
examined the product or who offers an opinion on the product’s design. Browder at 406 (quoting
Scanlon v. General Motors Corp., 326 A.2d 673 (1974)). In Tennessee, the general rule is that “the
issue of whether a product is defective or unreasonably dangerous is one for the jury.” Curtis v.
Universal Match Corp., 778 F.Supp. 1421, 1427 (E.D. Tenn. 1991).

        The Gibsons assert that the jury’s verdict “could not have resulted from a proper
consideration of the evidence presented at trial...because Chrysler admitted the presence of a defect
[in the car seat].” The Gibsons point, inter alia, to Trial Exhibit Seven (7), a “Safety Recall to
Install Extensions on Your Vehicle’s Integrated Child Seat Belts,” issued by Chrysler to owners of
1996 and 1997 vehicles with integrated child seats (the “Recall Notice”). The Recall Notice reads,
in relevant part, as follows:

               Chrysler Corporation has determined that a defect which relates to
               motor vehicle safety exists in some 1996 and 1997 [Chrysler vehicles
               with integrated child seats].




                                                -12-
               The problem is...       Debris in the latch plate area of the
                                       integrated child seats on your
                                       minivan...may cause the belt retractor to
                                       remain locked when the buckle is
                                       unlatched. A locked retractor could make
                                       it difficult to remove a child from the seat.

               *                                     *                             *

               ...If your dealer fails or is unable to remedy this defect...

(Emphasis in original).

        With Chrysler admitting to a “defective condition” in the car seat, the Gibsons reason that
the jury had no choice but to find Chrysler liable under the Tennessee Products Liability Act. We
disagree. It is true that Chrysler admits to a defect in the latch plate on the seat, especially when
debris such as food crumbs come into contact with that mechanism. However, the record is replete
with material evidence on which the jury could have concluded that the admitted defect was not the
cause in fact of Luke Gibson’s alleged injuries (i.e. despite the admitted fact that the latching
mechanism could become jammed, the retractor mechanism was not capable of generating enough
force to choke a child). Without reproducing all such evidence in this rather extensive record, we
reproduce the following two pieces of evidence on which the jury could have based its conclusion
that the car seat was neither defective nor unreasonably dangerous. Sue Cischke, a former Chrysler
engineer with twenty-five years of experience and the former Executive Director of Vehicle
Certification Compliance Safety Affairs, testified, in relevant part, as follows:

               Q. In this situation involving the integrated child seats, you’re aware
               of those customer complaints where children were being quote
               choked unquote by the car seat; are you not?

               A. Yes, I’m aware of that.

               Q. Was that an issue that was addressed promptly by the vehicle
               safety office?

               A. Yes. Just because it involved a child safety seat and involved, you
               know, children we took it very seriously.

               Q. Tell the jury exactly how that issue was resolved in your mind
               personally and in the mind of anyone else?

               A. One of the concerns that had been expressed was could the seat
               choke anybody. So we wanted to evaluate that. And we took a seat


                                                 -13-
               and we put a dummy the size of a child in that seat and we looked if
               there was any way that the mechanism when it locked up could choke
               anybody. And we demonstrated to ourselves and NHTSA that that
               wasn’t possible. That when the belts were retracted and as we pushed
               up the T-shield it was not retracting because there was really no force
               there and there was no way to get that up to a point where it could
               choke or injure a child in that way. So we demonstrated that not only
               to me and my group but we took that to NHTSA and we showed them
               as well. I remember being with Kathy Demeter, who is the director
               of the Office of Defect Investigation. We had the dummy, we had her
               try it, we had a number of people try and position that and we were
               not able to get this belt in any position that was like that.

        In addition, Dr. Richard Stalnaker, a biomechanical engineer with experience in child seat
design, also testified that the child seat was incapable of inflicting a choking-type injury, to wit:

               Q. Now, there’s been a contention in this case that somehow the belts
               pinch in onto the carotid arteries of Luke Gibson. Is there anything
               in this system whereby such force could be generated? And again, I’ll
               leave it open to microwaves, cosmic rays, anything that can cause
               these belts to come in and provide lateral pressure on the side of the
               neck?

               A. I’m not going to get into what forces it takes to do it. But from a
               geometric point of view, just from geometry, if I pull this out, how do
               I get this belt that’s being held apart by these locations, how do I get
               it to go sideways?

                       The only way I can get this belt into that child’s neck is to go
               like this (demonstrating). The only way–and I can’t get it to go in
               both of them at the same time because if we look at–I mean, I think
               we can agree that this dummy is bigger and wider than a fourteen-
               month-old baby, as we’ve talked about earlier.

                        And the distance between the shoulder belt in the back and the
               shoulder belt on this side is it’s in the groove. It’s in the slot. You
               can’t pull in any closer than that because it stops it. And that slot is
               designed to go over the dummy’s shoulder because this is what the
               dummy’s designed for. And there’s no way that I can figure out from
               the geometry point of view that I can get this belt, pull it out, and get
               it to go into the child’s neck some way and do that.




                                                 -14-
                       I mean, this belt can’t do it. I know it. I mean, there is no
               way I can think of that you can get these belts to go sideways and
               pinch this child’s neck. Even if I pulled this thing all the way down
               to the bottom, the shield keeps it apart in the front. The slots keep it
               apart in the back. So if this child stays in the seat where he’s
               supposed to in here, you’re not pulling him out one way or the other.
               This thing cannot attack him. It can’t. It’s designed not to.

         The Gibsons allege that “the record is replete with contradictions and irreconcilable conflicts
in the testimony of Chrysler’s witnesses on material issues in this case.” In short, the Gibsons assert
that, since Chrysler’s witnesses, “when viewed together, contradicted each other [, the witnesses are]
simply not credible.” We disagree. It is well settled in Tennessee that, when the resolution of the
issues in a case depends upon the truthfulness of witnesses, the trier of fact, who has the opportunity
to observe the witnesses in their manner and demeanor while testifying, is in a far better position
than this Court to decide those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.
1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith, and
credit to be given to any witness’ testimony lies in the first instance with the trier or fact, and the
credibility accorded will be given great weight by the appellate court. See id.; In re Estate of
Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997). In short, it is not the job of this Court “to
weigh the evidence or to decide where the preponderance lies, but [we] are limited to determining
whether there is material evidence to support the verdict.” Crabtree Masonry Co. v. C & R Constr.,
Inc., 575 S.W.2d 4, 5 (Tenn.1978). Based on the foregoing, we find that there is credible, material
evidence on which this jury could have based its decision.

                      II. Whether the jury’s verdict that no defect existed
                       is supported by the greater weight of the evidence?

         As discussed, supra, it is not the job of this Court to weigh the evidence, to determine where
the preponderance lies, or to decide the credibility of witnesses. Although Appellants devote much
of their brief to outlining the discrepancies and inconsistencies in the Chrysler witnesses’ testimony
and cite opposing testimony from their own witnesses, this Court is limited to a determination of
whether there is any credible, material evidence on which the jury could have based its verdict,
which we discuss in the proceeding section. In addition to inviting this Court to weigh the evidence,
which we decline to do for the foregoing reasons, the Gibsons also assign error to the trial court’s
denial of their Motion for New Trial for failure to properly perform its function as thirteenth juror.

       When the trial court is called upon to act as the thirteenth juror upon the filing of a motion
for a new trial, the trial court must be independently satisfied with the verdict of the jury.
Cumberland Tel. and Tel. Co. v. Smithwick, 112 Tenn. 463, 79 S.W. 803 (Tenn.1904). The
Supreme Court's opinion reads in part:

                      The rule in civil cases is that, if the circuit judge is dissatisfied
               with the verdict of the jury, it is his duty to set it aside and grant a


                                                  -15-
                 new trial, and that upon its being made to appear to this court, from
                 statements made by the circuit judge in passing upon the motion for
                 new trial, that he was really not satisfied with the verdict, it becomes
                 the duty of this court, when it has acquired jurisdiction of the cause,
                 to do what the circuit judge should have done; that is, to grant a new
                 trial on the ground of the dissatisfaction of that judicial officer with
                 the verdict. [Citations omitted.]

                      *                            *                                *
                          The reasons given for the rule are, in substance, that the
                 circuit judge hears the testimony, just as the jury does, sees the
                 witnesses, and observes their demeanor upon the witness stand; that,
                 by his training and experience in the weighing of testimony, and the
                 application of legal rules thereto, he is especially qualified for the
                 correction of any errors into which the jury by inexperience may have
                 fallen, whereby they have failed, in their verdict, to reach the justice
                 and right of the case, under the testimony and the charge of the court;
                 that, in our system, this is one of the functions the circuit judge
                 possesses and should exercise--as it were, that of a thirteenth juror. So
                 it is said that he must be satisfied, as well as the jury; that it is his
                 duty to weigh the evidence, and, if he is dissatisfied with the verdict
                 of the jury, he should set it aside....

Id. at 804-05.

        If the trial judge, when acting as the thirteenth juror, simply approves the verdict without any
comment, it is presumed by an appellate court that he or she has performed his or her function
adequately. Miller v. Doe, 873 S.W.2d 346 (Tenn. Ct. App.1993). Where the trial court makes
comments in the course of reviewing a motion for a new trial, we will review those comments, but
we do not review those comments to see if we agree with the trial court's reasoning but rather to
determine whether the trial court properly reviewed the evidence and was satisfied or dissatisfied
with the verdict. Id. at 347. If the trial judge makes comments which indicate that he or she has
misconceived his or her duty or clearly has not followed it, this Court must reverse and remand the
case for a new trial. Id.

        The Gibsons’ Motion for New Trial was heard by the trial court on November 7, 2002. There
is no transcript of this hearing in the record. The Motion for New Trial was denied by Order of
November 19, 2002. This Order simply denies the Motion for New Trial without explanation. Since
there are no comments in this record, concerning the trial court’s review of the Motion for New
Trial, we must presume that the trial court performed its function adequately. Miller v. Doe, 873
S.W.2d 346 (Tenn. Ct. App. 1993).

              III. Whether the Court erred in permitting Harvey Cantor, M.D.


                                                   -16-
                  to provide expert opinions about non-medical engineering
      issues in violation of the standard set by McDaniel v. CSX Transportation, Inc.,
            which also exceeded the scope of his Rule 26.02 (4) expert disclosure?

         In general, questions regarding the admissibility, qualifications, relevancy and competency
of expert testimony are left to the discretion of the trial court. McDaniel v. CSX Transportation,
Inc., 955 S.W.2d 257, 263-264 (Tenn. 1997). To assist the trier of fact in this “gatekeeping”
function, Tennessee Rule of Evidence 702 permits an expert to testify “in the form of an opinion or
otherwise,” only where the “scientific, technical, or other specialized knowledge” offered by the
witness will substantially assist the trier of fact. Tenn. R. Evid. 702. Tennessee Rule of Evidence 703
requires an expert’s opinion to be supported by trustworthy facts or data “of a type reasonably relied
upon by experts in the particular field in forming opinions or inferences upon the subject.” Tenn. R.
Evid. 703. The determinative factor is “whether the witness’s qualifications authorize him or her
to give an informed opinion on the subject at issue.” State v. Stevens, 78 S.W.3d 817, 834 (Tenn.
2002). A trial court’s ruling on the admissibility of such evidence may be overturned on appeal only
if the discretion is exercised arbitrarily or is abused. Id. at 832.

        The Gibsons assert that Chrysler’s expert in pediatric neurology, Dr. Harvey Cantor, was
erroneously allowed, over their objection, to exceed the limitations of his qualifications as a pediatric
neurologist and to opine, without an engineering background, that the child seat was not capable of
occluding the carotid artery of Luke Gibson. In their brief, the Gibsons cite the following portions
of Dr. Cantor’s testimony as evidence that he was testifying from an engineering, as opposed to a
medical, standpoint:

                Q. [by Mr. Bode, attorney for Chrysler] I want to get Princess in the
                seat. Tell the jury what your medical opinion is as to whether or not
                this child seat can occlude carotid arteries of a child under any
                circumstances?

                A. [by Dr. Cantor] Any circumstances?

                Q. Yes, any circumstance?

                A. Well, that would be ridiculous circumstances. I mean, if
                somebody took one of these straps off and wrapped it around the neck
                and twisted it or suspended the child by the neck in that manner, yes.

                *                                     *                          *

                Q. Have you been able to determine any way that the straps can pinch
                in on the neck of the child from this seat?




                                                  -17-
               A. No. No, I have not and I have tried vigorously and I have not
               been able to see in what way this could have happened.

Appellants have lifted these two section of offending testimony from the whole of Dr. Cantor’s
rather lengthy testimony. In the interest of fairness, we quote more extensively from the record in
order to place the offending testimony in its proper context:

               Q. [by Mr. Bode, attorney for Chrysler] Now, there has been some
               contention in this case that the child suffered occlusion of the carotid
               arteries, and I am going to take you back to your early testimony
               where you referenced the carotid arteries. Do you remember that?

               A. [by Dr. Cantor] Yes, sir, I do.

               Q. I want to get Princess in the seat. Tell the jury what your medical
               opinion is as to whether or not this child seat can occlude carotid
               arteries of a child under any circumstances?

               A. Any circumstances?

               Q. Yes, any circumstance?

               A. Well, that would be ridiculous circumstances. I mean, if
               somebody took one of these straps off and wrapped it around the neck
               and twisted it or suspended the child by the neck in that manner, yes.

               Q. Where are the corotids, just, you know, showing, you know,
               basically on Princess where the carotids are?

               A. The carotids are here and here deep.

               Q. Okay.

               A. Alongside but back from the trachea.

               Q. Okay. Are they–when you use the term in anatomy “mobile”,
               what does that mean?

               A. They are movable. For those of us in the old days we had to put
               needles in the carotid arteries so we could take pictures of the brain.
               For those of us who were not terribly adept at that, that was always
               very scary, and it was for even for people who were adept, because
               the arteries can move. It’s very hard to hold them firmly and


                                                -18-
compress them and put the needle. It’s a difficult, technically
difficult procedure.

Q. We have seen a picture of a mark on the right side of Luke
Gibson’s cheek and neck. Have you seen that picture?

A. Yes, sir, I have.

Q. Does that picture show anything that would indicate a threat to the
carotid artery?

A. No. It’s over the jawbone, so–and it starts inferior to the ear just
this much and it’s this way, and depending in some way what made
that mark. If it was a string that was under like this and came up like
that on the child, it could conceivably. Then when the string was
removed, it was pulled and abraded the skin, it would be within the
realm of–even then, I don’t think it would be possible.

       But unless it went around the neck and was doing this or
choking. But a string could do that sort of thing.

       The jawbone itself would protect the carotid artery which is
underneath it, if that was a hard item like the superior portion, the top
portion of this chest play the, the shield.

Q. You have examined this seat in detail, haven’t you, Doctor?

A. I don’t know what the word “detail” means in that sentence, but
I have had the chance to examine the seat with this child in it. I don’t
know–and with this doll, rather, and with that other manikin, child.

Q. Dummy.

A. Dummy.

Q. It’s a test dummy is what he is.

A. Test dummy in the chair.

Q. Have you been able to determine any way that the straps can pinch
in on the neck of the child from this seat?




                                  -19-
                A. No. No, I have not and I have tried vigorously and I have not
                been able to see in what way this could have happened.

                Q. Thank you, Doctor. Doctor, have you formed an opinion to a
                reasonable degree of medical certainty as to whether or not the
                incident of July 3, 1996 caused Luke any anoxic or hypoxic brain
                injury?

                A. Yes, sir, I have.

                Q. Is that opinion based on your knowledge, training, and
                experience?

                A. Yes, sir, it is.

                Q. What else is it based on? Is it based on the review of the reports?

                A. It’s based on the information regarding this child.

                Q. Okay. And what is your opinion with regard to the incident of
                July 3, 1996?

                A. As I have indicated on several occasions, that that incident could
                not have caused, the way it was described and what happened,
                hypoxia, diminished oxygen to the brain, or you left out ischemia,
                occlusion of the carotid arteries.

When his testimony is read in its proper context, it is clear that Dr. Cantor is not testifying from an
engineering standpoint. Rather, Dr. Cantor’s testimony constitutes a medical opinion about the
location of the arteries, the mobility of the arteries and whether the straps on the seat were positioned
so as to physically reach the arteries. As a medical expert, Dr. Cantor was within his field of
expertise in testifying that the straps could not occlude Luke Gibson’s arteries because those straps
were not physically capable of reaching the location of the arteries, or because the arteries are
“mobile”. Consequently, we do not find that the trial court abused its discretion in allowing Dr.
Cantor to testify along these lines.

                    IV. Whether the Court erred in excluding the testimony
                         of Allan Kam from Plaintiff’s case-in-chief?




                                                  -20-
        The Gibsons proffered Mr. Allan Kam, an attorney who had previously been employed by
the National Highway Traffic Safety Administration (“NHTSA”),5 to offer his opinions relative to
the alleged tardiness of Chrysler’s recall on the subject child safety seat. In the days before trial
began, both sides filed Motions in Limine with the trial court to exclude and limit certain evidence
and testimony. Among these motions, Chrysler moved to exclude the testimony of Mr. Kam on the
basis that his opinions would deprive the court and the trier of fact of their duties by testifying on
the ultimate issue. The trial court held ruling in abeyance until after an evidentiary hearing could be
conducted. At that hearing, the trial court ruled that, although Mr. Kam could testify, he could not
render an opinion as to whether Chrysler was late in issuing its recall. The trial court reasoned as
follows:

                  THE COURT: Just a second. Mr. Smith and Counselors–I am still
                  not convinced. I think if you make the argument that I think
                  everything that Mr. Kam wants to testify to historically laying the
                  historical foundation, what occurred, how it occurred, what he
                  reviewed, what it revealed, attacking the credibility of the–what you
                  were calling to the Court’s attention in the Chrysler witnesses whose
                  depositions you read from. All that can come in.

                          When it comes to his [Mr. Kam’s] saying that Chrysler should
                  have conducted its recall earlier, you can make that argument yourself
                  as well as Mr. Kam, or whoever does the closing argument. You are
                  free to make that, but I’m not going to allow Mr. Kam to make that
                  call.

                  MR. SMITH: [counsel for the Gibsons] Well–

                  THE COURT: Note your objection.

                  MR. SMITH: I shall.

                  THE COURT: So we can get on with this trial.

                  MR. SMITH: If, Your Honor, and I certainly intend to honor Your
                  Honor’s ruling and not reargue it–




         5
           NHTSA is the federal regulatory agency that has the authority, pursuant to federal statute, to order the recall
of products that contain safety defects. One of NHTSA’s functions is to monitor the recalls and to make sure they occur
in a timely fashion. NHTSA is also authorized by federal law to impose civil penalties on a manufacturer who has
delayed recall. 49 U.S.C. §30165.

                                                          -21-
                THE COURT: I don’t expect you to agree with me, Mr. Smith. But
                this is my call, and my call is you can make the argument as well as
                Mr. Kam can.

        As discussed, supra, the admissibility of expert opinion testimony is a matter which rests

within the sound discretion of the trial court. McDaniel, 955 S.W.2d at 562. Accordingly, we may

reverse the trial court’s ruling in this regard only if the trial court’s discretion is arbitrarily exercised

or abused. Id. at 263.

        Unlike its federal counterpart, Tennessee Rule of Evidence 704 allows experts to testify on
an ultimate issue to be decided by the trier of fact. However, the expansiveness of Tenn. R. Evid.
704 does not mean that all expert opinions regarding ultimate issues are admissible; opinions that
embody legal conclusions as to ultimate issues are not admissible as this would invade the province
of the court and/or jury. Coffey v. City of Knowxville, 866 S.W.2d 516 (Tenn. 1993) (citing United
States v. Scop, 846 F.2d 135 (2nd Cir. 1988); Cohen, Paine & Sheppard, Tennessee Law of Evidence,
2d ed., pp. 364-366 (1990)). The Advisory Committee’s Note to Rule 704 of the Federal Rules of
Evidence, upon which the Tennessee Rules are based, is helpful in understanding the limitation on
the admission of opinion testimony:

                The abolition of the ultimate issue rule does not lower the bar so as
                to admit all opinions. Under Rules 701 and 702, opinions must be
                helpful to the trier of fact, and Rule 403 provides for exclusion of
                evidence which wastes time. These provisions afford ample
                assurances against the admission of opinions which would merely tell
                the jury what result to reach, somewhat in the manner of the oath-
                helpers of an earlier day....

Fed. R. Evid. 704 advisory committee’s note (2003).

         In Dempsey v. Correct Mfg. Corp., 755 S.W.2d 798 (Tenn. Ct. App. 1988), this Court held
that “[t]he content meaning and application of statutes and regulations are not a matter of fact to be
proven by the affidavit of an expert witness, but are a matter of law to be presented by brief and
argument of counsel supported by citations and authorities.” Id. at 806.       The Gibsons assert that
Mr. Kam’s proposed testimony would not have implicated any statute or regulation but would have
laid the factual predicate that “would allow the jury ‘to understand the evidence or determine a fact
in issue,’ i.e. whether Chrysler had knowledge of the defect, which would ultimately ‘substantially
assist the trier of fact to determine’ whether Chrysler was negligent in not conducting its recall at an
earlier time.” From our review of the record, it appears that, had Mr. Kam been allowed to testify




                                                    -22-
that Chrysler should have issued its recall earlier, he would in essence be opining that Chrysler
violated certain federal statutes and/or certain NHTSA regulations.6

        It is undisputed in this case that NHTSA became involved in the investigation of the
integrated child seats in the summer of 1996 and remained involved until Chrysler issued its recall
in July of 1998. NHTSA never demanded that Chrysler issue a recall; instead, NHTSA allowed
Chrysler to try other remedial action such as the service campaign in the summer of 1997. After
Chrysler issued its recall in 1998, NHTSA closed its file and did not pursue any penalty or sanction
against Chrysler concerning the recall. Furthermore, attorneys for both sides represented to the trial
court that the NHTSA regulations were not at issue in the case, to wit:

                  THE COURT: ...Mr. Smith [counsel for the Gibsons], are you[r]
                  proposed jury instructions including any NHTSA regulations?

                  MR. SMITH: No.

                  THE COURT: No?

                  MR. SMITH: It’s not going to include NHTSA regulations. The only
                  way the NHTSA regulations are going to come into play is through
                  Mr. Kam’s testimony, so we’re not going to charge the jury on those
                  laws.

                  THE COURT: That’s very difficult, Mr. Smith.

                  MR. SMITH: It’s a different issue. It’s not–

                  THE COURT: I don’t have any problem with his [Mr. Kam’s]–so far
                  with his testimony insofar as where he’s laying the groundwork for
                  attacking credibility, but if he gets into NHTSA regulations and
                  saying there is a violation of them, and that law doesn’t come from
                  the Court.... If the NHTSA regulations are not in a–in the proposed
                  jury instructions, I don’t see how we–

                  MR. SMITH: I don’t have a problem putting them [the NHTSA
                  regulations] in. It’s fine with me to put them in. He [Mr. Kam] is
                  certainly going to opine that that recall should have been done
                  earlier....

                  *                                       *                                *



       6
           Specifically, 49 U.S.C. §§30118(c)(1), 30119, 30120 and Title 49 C.F.R. Parts 573 and 577.

                                                       -23-
THE COURT [to Mr. Smith, counsel for the Gibsons]: ...[I]n your
closing argument–you’re going to argue that they [Chrysler] should
have conducted this recall much earlier and they had the information
and that they should have conducted the recall earlier–in your
closing?

MR. SMITH: Absolutely.

THE COURT: Mr. Bode [counsel for Chrysler], how are you going
to handle that?

MR. BODE: I believe, Your Honor, my argument would be that we
were trying to do everything we could to sort out the problem; that–

THE COURT: But you are not going to reference the NHTSA
regulations?

MR. BODE: No. I’m not going to reference the Safety Act.

THE COURT: Okay.

MR. BODE: I may reference the NHTSA documents that Mr. Kam
is going to that I believe can be read to say the agency and Chrysler
were working together to try to solve this problem and that they were
taking successive steps–

THE COURT: Yeah.

MR. BODE: And that the agency–

THE COURT: As long as you don’t get into NHTSA regulations and
the violations thereof.

MR. BODE: I won’t get into regulations for the United States Code
in my final argument.

THE COURT: All right.

MR. SMITH: Or their compliance or failure to comply with those
regulations.

MR. BODE: Well–



                                -24-
               MR. SMITH: Because if I–you know, we have got a witness here who
               we contend is capable of addressing that, and it’s probably going to
               be apparent to the jury. And it may–

               THE COURT: Again, when he gets his opportunity to present his
               case, if he starts going into that, then you have–I’m not
               precluding–let’s be clear for the record for the Appellate Court to
               understand that this Court is not saying that at some point in time Mr.
               Kam’s testimony about the time of when Chrysler conducted its
               recall, might not be appropriate on rebuttal. I have said that, you
               know, that’s a possibility. I don’t know, and you don’t know at this
               point what the proof is going to be when Chrysler gets its opportunity
               to go forward. But, assuming that Chrysler doesn’t visit these
               violations or regulations or non–or compliance with regulations, then
               you wouldn’t have any need to go into it.

         It is undisputed that Mr. Kam had no involvement with the NHTSA investigation of the
integrated child seat. As noted, supra, to allow Mr. Kam to testify regarding whether Chrysler
should have conducted its recall earlier, would be paramount to allowing him to testify that Chrysler
had breached the NHTSA regulations. It is conceded that the NHTSA regulations were not at issue
in this case. However, even if the regulations were at issue, it is clear from the record that Mr. Kam
was not qualified to render an opinion as to whether Chrysler violated any NHTSA regulation. That
decision was within the purview of NHTSA. NHTSA’s decision not to pursue sanctions against
Chrysler following its recall indicates that the agency was satisfied that the regulations were not
violated. Mr. Kam’s testimony would only have usurped NHTSA’s decision that Chrysler had not
violated the regulations. Because the evidence could confuse and mislead the jury, we find that the
trial court did not abuse its discretion in excluding this evidence.

         In the alternative, the Gibsons argue that Chrysler is judicially estopped from arguing that
Mr. Kam could not offer expert opinion as to whether Chrysler should have conducted the recall
earlier because the company has taken a contrary position before a Pennsylvania court in the prior
litigation of Crawley v. Daimler Chrysler Corp., July 1990, No. 4900, slip op. (C.P.Phila.Mar. 5,
2001). In the Pennsylvania case, Chrysler offered former NHTSA engineer, William Boehly, to
testify on its behalf regarding whether the air bags at issue in that case were defective.

        Judicial estoppel is an equitable doctrine that is designed to prevent a party from "gaining an
unfair advantage" by making inconsistent statements on the same issue in different lawsuits. Marcus
v. Marcus, 993 S.W.2d 596, 602 (Tenn.1999) (quoting Carvell v. Bottoms, 900 S.W.2d 23, 30
(Tenn.1995)). Judicial estoppel arises when a person makes a sworn statement in a judicial
proceeding and then contradicts the statement in a subsequent proceeding. Decatur County Bank
v. Duck, 969 S.W .2d 393, 397 (Tenn. Ct. App.1997). However, while the law of judicial estoppel
is ordinarily applied to one who has made oath to a state of facts in a former judicial proceeding
which in a later proceeding he undertakes to contradict, yet it is frequently applied, where no oath


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is involved, to one who undertakes to maintain inconsistent positions in a judicial proceeding.
Stamper v. Venable, 97 S.W., 812 (Tenn. 1906).

        In short, the Gibsons assert that Chrysler should not be allowed to use the testimony of a
former NHTSA employee concerning whether a product is defective under the Federal Motor Safety
Standards (“FMSVA”) (i.e. Mr. Boehly) to their advantage in one trial and then have testimony from
a former NHTSA employee concerning whether a recall was timely implemented within the meaning
of the FMSVA (i.e. Mr. Kam) excluded for their benefit in another trial. We disagree. The Crawley
case, and Mr. Boehly’s testimony therein, differs from the case at bar and the proffered testimony
of Mr. Kam. The Crawley case, unlike the one at bar, did not involve a recall. More importantly,
however, Mr. Boehly was an engineer with NHTSA who was asked to give his engineering opinion
on the issue of whether placement of airbag vents at the 9 and 3 positions constituted a defect.
Although Mr. Kam was an attorney with NHTSA, as discussed supra, he had not been involved in
NHTSA’s investigation of the car seat prior to Chrysler’s recall. Here, Chrysler is not seeking to
exclude Mr. Kam’s testimony merely because he is a former NHTSA employee, which position
would, indeed, be contrary to their position taken in Crawley. Rather, Chrysler seeks to exclude Mr.
Kam’s testimony in that Mr. Kam is not qualified in knowledge or experience to give it and in that
the question of whether a recall is timely is within the purview of NHTSA. Chrysler’s position,
concerning the testimonies of Messrs. Boehly and Kam, is not inconsistent. Consequently, we find
that the Gibsons’ judicial estoppel argument is without merit.

        For the foregoing reasons, the Judgment on the jury verdict is affirmed. Costs of this appeal
are assessed to the Appellants, Luke N. Gibson, Roger O. Gibson, Susan M. Gibson, and their surety.




                                              __________________________________________
                                              W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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