PRESENT: Lemons, C.J., Millette, Mims, McClanahan, and Powell,
JJ., and Russell and Lacy, S.JJ.

HYUNDAI MOTOR COMPANY, LTD., ET AL.
                                             OPINION BY
v.   Record No. 140216             JUSTICE ELIZABETH A. McCLANAHAN
                                          JANUARY 8, 2015
KEITH ALLEN DUNCAN, INDIVIDUALLY
AND AS GUARDIAN AND CONSERVATOR
FOR ZACHARY GAGE DUNCAN, ET AL.

             FROM THE CIRCUIT COURT OF PULASKI COUNTY
                       Colin R. Gibb, Judge

      In this products liability action, Hyundai Motor Company,

Ltd., and Hyundai Motor America, Inc. (Hyundai) appeal from a

judgment entered on a jury verdict in favor of Keith Allen

Duncan and Vanessa Duncan, Guardians and Conservators for

Zachary Gage Duncan (Gage), and Keith Allen Duncan and Vanessa

Duncan, Individually.1   Hyundai contends the circuit court erred

in admitting the opinion testimony of the Duncans' designated

expert witness, who testified that the location of the side

airbag sensor in the 2008 Hyundai Tiburon being driven by Gage

when he sustained injuries in a single-vehicle accident

rendered the Tiburon unreasonably dangerous.    We agree and will

reverse the judgment of the circuit court.




      1
       The jury was unable to reach a verdict when the case was
first tried in 2012. After the case was retried in 2013, the
jury returned a verdict for the Duncans in the amount of
$14,140,000.
                    I.   BACKGROUND

     Gage sustained a serious closed-head injury while driving

his 2008 Hyundai Tiburon when he lost control of the vehicle,

causing the vehicle to leave the road, strike two snow banks

and a large bale of hay, before ultimately colliding with a

tree on the driver's side of the vehicle.   Although the Tiburon

was equipped with a side airbag system, the airbag did not

deploy.

     The Duncans brought an action against Hyundai, which

manufactured and distributed the 2008 Tiburon being driven by

Gage, and initially asserted claims for negligence, failure to

warn, breach of implied warranty of merchantability, breach of

implied warranty of fitness for a particular purpose, and

breach of express warranties.   At trial, the Duncans pursued

only their claim for breach of implied warranty of

merchantability in which they assert that the "Tiburon was

defective, unreasonably dangerous, was not fit for the ordinary

purpose for which it was intended, and did not pass without

objection in the industry in which it was sold."   Specifically,

the Duncans contend that if the sensor for the side airbag

system had been placed in a different location, the airbag

would have deployed and prevented Gage's injury.




                                2
               II.   Expert Testimony of Design Defect

     To support their claim, the Duncans designated Geoffrey

Mahon (Mahon), a mechanical engineer, as an expert in airbag

design to testify that the 2008 Hyundai Tiburon was defectively

designed.   Mahon expressed the opinion that if Hyundai had

located the sensor for the side airbag system on the B-pillar

of the vehicle (the pillar where the front door closes),

approximately 4 to 6 inches from the floor, instead of on the

cross-member underneath the driver's seat, the side airbag

would have deployed.    Therefore, according to Mahon, the

location of the side airbag sensor on the cross-member rendered

the 2008 Tiburon unreasonably dangerous.

     A.     Motion in Limine

     Prior to trial, Hyundai moved to exclude Mahon's opinions

as having an insufficient foundation because Mahon did not

conduct any analysis to determine whether the side airbag would

have deployed if the sensor had been located where Mahon

proposed.

     When deposed, Mahon testified that in reaching his

opinion, he relied upon a computer-aided engineering study

conducted by Hyundai in 1999 in which Hyundai analyzed 14

potential locations for the side airbag sensor, including a

location on the B-pillar that was 10 to 12 inches from the



                                  3
floor.2   Mahon did not adopt any of the 14 locations analyzed by

Hyundai for his placement of the side airbag sensor, but

determined that a location on the B-pillar approximately 4 to 6

inches from the floor "would be [his] first choice."   He

further explained that since Hyundai did not analyze the

location he proposed, he would "have to run tests to verify

that that's just the right location, but based on [Hyundai's]

evidence of the somewhat higher B-pillar location, that looks

very promising."

     While Mahon believed the best location for the sensor was

at the B-pillar, he testified he did no testing to determine if

the side airbag would have deployed in Gage's accident had the

sensor been placed at any other location.

Q . . . Have you done any test or calculation to show
that some other sensing system location if used in the
Duncan Tiburon would have caused the side air bag to fire
in this crash?

A I have not done any tests, I think as I indicated
earlier, nor have I done any serious calculations. What
I've done is look at the signal at the B-pillar and the
signal at the location and concluded that I got a much
more robust and timely signal at the B-pillar.

(Emphasis added.) The circuit court denied Hyundai's
motion to exclude Mahon's testimony, and he was permitted




     2
       Based on the 1999 location study and subsequent crash
testing, Hyundai decided to place the sensor on the cross-
member underneath the driver's seat.
                                4
to express his opinions at trial, over Hyundai's
objections.3

        B.     Trial Testimony

        At trial, Mahon testified that Hyundai was not required

under Federal Motor Vehicle Safety Standards (FMVSS) to install

a side-impact airbag system in the 2008 Tiburon, and that the

2008 Tiburon would have complied with the FMVSS for side impact
                                                 4
protection without any side airbag system.           Nevertheless,

according to Mahon, if a manufacturer decides to put in an

airbag system and "tell people there's a safety system in this

car that's going to work a certain way and then it doesn't

work?       It's got to work.    I mean, that's just improper."

        Mahon's initial impression of the airbag system was that

"the airbag should have gone off," but upon further

investigation, he concluded that the system was acting as

designed "so this indicates that it was designed improperly,

because this is a crash where you really need an airbag."

Mahon agreed that the 2008 Tiburon, with the side airbag

system, complied with FMVSS 214, the standard specifically



        3
       The circuit court ruled on Hyundai's motion to exclude
Mahon's opinion prior to the first trial and adopted its ruling
prior to the second trial.
        4
       As Mahon explained, the National Highway Traffic Safety
Administration is responsible for regulating the safety
performance of motor vehicles and has established the FMVSS as
minimum standards with which all vehicles sold in the United
States must comply.
                                      5
related to side impact protection.       He further acknowledged

that the 2008 Tiburon "did reasonably well" when Hyundai

conducted 22 crash tests in which it ran the vehicle into

different types of barriers, at different speeds and angles,

with the side airbag sensor located on the cross-member

underneath the driver's seat.5

     In Mahon's opinion, however, the side airbag would have

deployed in Gage's accident if the sensor for the side airbag

system had been located on the B-pillar, approximately 4 to 6

inches from the floor.   According to Mahon, this was true even

though the sensor on the cross-member underneath the driver's

seat was closer to the point of impact than it would have been

if the sensor had been located in the B-pillar because

Hyundai's 1999 location study showed that there was a much

better signal on the B-pillar.6       In Mahon's view, therefore, the

2008 Tiburon was defectively designed and unreasonably




     5
       Mahon did not dispute that the side airbag system in the
2008 Tiburon performed as designed and offered good protection
when deployed.
     6
       According to Mahon, Hyundai's concerns with oscillations
and other "noise" at outboard locations such as the B-pillar
were unfounded because "we've been dealing with those noisy
locations since the 1980s," and he discounted Hyundai's
determination that the B-pillar location had poor responsive
characteristics to door impact.



                                  6
dangerous because the sensor for the side airbag system was not

located on the B-pillar.

     Consistent with his deposition testimony, Mahon testified

at trial that he did not perform an analysis to determine

whether the side airbag in the 2008 Tiburon would have deployed

if the sensor was in a different location but relied upon the

results of the location study undertaken by Hyundai in 1999.

Mahon conceded that the location on the B-pillar considered by

Hyundai was located 10 to 12 inches from the floor, and he had

no data demonstrating the performance of a sensor located on

the B-pillar 4 to 6 inches from the floor.   He further agreed

that because the airbag system must work quickly, that is the

sensor system must decide within 15 milliseconds of a crash

event whether an airbag is required and then inflate the airbag

in 15 to 50 milliseconds, the location of the sensor is

important to the overall crash sensing system such that inches,

and even increments smaller than inches, matter in the

determination of the location of the sensor.

     Though Mahon testified that the vehicle's crash sensing

system is "a combination of the structure of the vehicle, the

sensors themselves, and then any algorithm . . . working

together to make a decision whether or not this event is worthy

of an airbag," he acknowledged that he had not performed any

tests to determine whether any different sensor location,

                               7
structure, or mathematical algorithm would have caused the side

airbag to deploy in Gage's crash.

Q Have you done any test or calculation to show that some
other side sensor location if used in the Duncan Tiburon
would have caused the side airbag to fire in this crash?

A Based on my industry experience, my analysis says yes.
Have I done a calculation? No.

Q    Have you done any test?

A    Of course not.

Q . . . Have you done any test or calculation to show
that some other structure, if used in the Duncan Tiburon,
would have caused the side airbag to fire in this crash?

A.    Haven't done it.

Q Have you done any test or calculation to show that some
other algorithm, if used in the Duncan Tiburon, would have
caused the side airbag to fire in this crash?

A Well, in fact I think it would.      I haven't done that
work.

(Emphasis added.)     Relying instead on his "industry

experience," Mahon testified that the data in Hyundai's

location study "spoke to [him] . . . [a]s one skilled in the

art."

                            III.   ANALYSIS

        On appeal, Hyundai argues there was an insufficient

foundation for Mahon's opinion that the location of the sensor




                                   8
for the side airbag system rendered the 2008 Tiburon

unreasonably dangerous.7

     Expert opinion may be admitted to assist the fact finder

if such opinion satisfies certain requirements, "including the

requirement of an adequate factual foundation."   Forbes v.

Rapp, 269 Va. 374, 381, 611 S.E.2d 592, 596 (2005); see Va.

Code §§ 8.01-401.1 and -401.3; Va. R. Evid. 2:702 and 2:703;

Countryside Corp. v. Taylor, 263 Va. 549, 553, 561 S.E.2d 680,

682 (2002).   Since we review the circuit court's evidentiary

rulings using an abuse of discretion standard, we will reverse

the circuit court's decision to admit evidence only upon a

finding of abuse of that discretion.   John Crane, Inc. v.

Jones, 274 Va. 581, 590, 650 S.E.2d 851, 855 (2007).   A circuit

court, though, "has no discretion to admit clearly inadmissible

evidence."    Harman v. Honeywell Int'l, Inc., 288 Va. 84, 92,

758 S.E.2d 515, 520 (2014).

     As we have stated, "[q]ualification of an expert witness

does not insure admission of his every statement and opinion."

Swiney v. Overby, 237 Va. 231, 233, 377 S.E.2d 372, 374 (1989).

While Code § 8.01-401.1 allows an expert to express an opinion

without initially disclosing the basis for the opinion, "[w]e



     7
       Our resolution of the case on this issue makes it
unnecessary for us to address Hyundai's additional assignments
of error.
                                 9
have never, however, construed that section to permit the

admission of expert testimony that lacks evidentiary support."

Vasquez v. Mabini, 269 Va. 155, 159, 606 S.E.2d 809, 811

(2005).   Expert opinion must be premised upon assumptions that

have a sufficient factual basis and take into account all

relevant variables.

   "Expert testimony founded upon assumptions that have no
basis in fact is not merely subject to refutation by
cross-examination or by counter-experts; it is
inadmissible. Failure of the trial court to strike such
testimony upon a motion timely made is error subject to
reversal on appeal. Furthermore, expert testimony is
inadmissible if the expert fails to consider all the
variables that bear upon the inferences to be deduced from
the facts observed."

CNH America LLC v. Smith, 281 Va. 60, 67, 704 S.E.2d 372, 375

(2011) (quoting Vasquez, 269 Va. at 160, 606 S.E.2d at 811).

     Mahon's opinion that the 2008 Tiburon was unreasonably

dangerous was premised upon his assumption that the side airbag

would have deployed if the sensor had been located on the

vehicle's B-pillar.   Yet, as Mahon readily conceded, he did not

perform any analysis or calculations to support this

assumption.   In fact, Mahon admitted that the crash sensing

system depends upon a combination of the structure of the

vehicle, the sensors themselves, and any algorithm, but he did

not perform any tests to determine whether a different sensor

location, structure, or algorithm would have caused the side

airbag to deploy in Gage's crash.    Furthermore, despite his

                                10
testimony that inches, and even increments smaller than inches,

matter when choosing the sensor location, his proposed location

was more than four inches from any location studied by Hyundai.

     In short, Mahon's opinion that the 2008 Tiburon was

unreasonably dangerous was without sufficient evidentiary

support because it was premised upon his assumption that the

side airbag would have deployed if the sensor was at his

proposed location – an assumption that clearly lacked a

sufficient factual basis and disregarded the variables he

acknowledged as bearing upon the sensor location determination.

Although experts may extrapolate opinions from existing data, a

circuit court should not admit expert opinion "which is

connected to existing data only by the ipse dixit of the

expert."   General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)

(decided under the version of Fed. R. Evid. 702 which the

General Assembly adopted, verbatim, in current Code § 8.01-

401.3(A)).   Mahon's opinion that the vehicle was unreasonably

dangerous was based on his ipse dixit assumption that the side

airbag would have deployed in Gage's crash if the sensor had

been located on the B-pillar.   But the "analytical gap" between

the data Mahon relied upon from Hyundai's location study and

the opinion he proffered was "simply too great."   Id.

Therefore, Mahon's opinion was inadmissible, and the circuit

court abused its discretion in admitting it.

                                11
     The Duncans relied upon Mahon's opinion that the 2008

Tiburon was unreasonably dangerous to satisfy their burden of

proving that Hyundai breached its implied warranty of

merchantability.8   As we have concluded, however, Mahon's

opinion was premised upon his unfounded assumption that the

side airbag would have deployed if the sensor had been located

on the B-pillar of the vehicle instead of on the cross-member

underneath the driver's seat.9   Because Mahon's opinion supplied




     8
       The Duncans claim that Hyundai breached its implied
warranty of merchantability alleging that the "Tiburon was
defective, unreasonably dangerous, was not fit for the ordinary
purpose for which it was intended, and did not pass without
objection in the industry in which it was sold." See Code §
8.2-314(2)("Goods to be merchantable must be at least such as
(a) pass without objection in the trade" and "(c) are fit for
the ordinary purpose for which such goods are used."). The
Duncans were required to prove that the 2008 Tiburon was
unreasonably dangerous for the use to which it would ordinarily
be put or some other foreseeable purpose and that such
condition existed when the vehicle left Hyundai's hands.
Morgen Indus., Inc. v. Vaughan, 252 Va. 60, 65, 471 S.E.2d 489,
492 (1996); Logan v. Montgomery Ward & Co., 216 Va. 425, 428,
219 S.E.2d 685, 687 (1975); see Bayliner Marine Corp. v. Crow,
257 Va. 121, 128, 509 S.E.2d 499, 503 (1999) (party claiming
breach of implied warranty of merchantability must prove
failure to meet an established standard of merchantability in
the trade); see also Turner v. Manning, Maxwell & Moore, Inc.,
216 Va. 245, 251, 217 S.E.2d 863, 868 (1975) (evidence of
industry custom "may be conclusive when there is no evidence to
show that [the product] was not reasonably safe").
     9
       Since we conclude that Mahon's opinion lacked an adequate
foundation, it is unnecessary for us to address whether the
addition of the side airbag system to the 2008 Tiburon could
render the vehicle unmerchantable when the vehicle was
indisputably merchantable without the system and the side
airbag did not cause Gage's injuries.
                                 12
the only support for the Duncans' claim that the vehicle was

unreasonably dangerous, the inadmissibility of Mahon's opinion

as a matter of law is fatal to the Duncans' claim and entitles

Hyundai to judgment as a matter of law.

                         IV.   CONCLUSION

     For the foregoing reasons, we will reverse the judgment of

the circuit court and enter final judgment for Hyundai.

                                      Reversed and final judgment.


JUSTICE POWELL, dissenting.

     I disagree with majority’s conclusion that the opinion of

Geoff Mahon, the plaintiff’s expert, lacked an adequate

foundation and should have been struck.     In my opinion, the

majority reaches this conclusion by improperly focusing on

Mahon’s preferred location for the side airbag sensor, even

though it is clear that he did not base his conclusion on this

preferred location.   In so doing, the majority fails to view

Mahon’s testimony in the light most favorable to the Duncans,

the prevailing party below.    See Dagner v. Anderson, 274 Va.

678, 681, 651 S.E.2d 640, 641 (2007) (viewing the evidence in

the light most favorable to the prevailing party below when

reviewing whether the trial court erred in allowing expert

testimony).




                                 13
     On direct examination Mahon clearly relied on the findings

of Hyundai’s 1999 location study and his calculations from the

crash severity analysis to determine that the airbag would have

deployed if the sensor was in the specific location1 on the B-

pillar that Hyundai tested in the 1999 location study

(hereafter referred to as the “B-pillar Location”).    According

to Mahon, the 1999 location study indicated that the signal

received by the cross member had “less amplitude” and was

“later than at the more outboard location such as the sill and

the B-pillar.   Or even the door.”   Indeed, he goes on to

specifically state that “Hyundai’s own location

study . . . show[s] that you get a much better signal on the B-

pillar than you do on the cross member.”    Furthermore, the

crash severity analysis indicated that the G-forces generated

by the impact in this case were significantly higher than the

threshold Hyundai established for triggering an airbag.

Specifically, he calculated that the impact in the present case

generated approximately 7.2 Gs, whereas Hyundai’s own data

indicated that it wanted an airbag to deploy at 5.1 Gs or

above.




     1
       Notably, in the 1999 location study, Hyundai only tested
a single B-pillar location.
                                14
     Using the signal strength data contained in the 1999

location study, he extrapolated that the airbag did not deploy

because the sensor did not receive a strong enough signal due

to its location on the cross member.   Specifically, he opined

that the cross member was too far “inboard” and not rigid

enough to receive the necessary signal.   He went on to

determine that, because the B-pillar was a more rigid

structure, located in the crush zone, a sensor placed there

would receive a stronger signal, resulting in airbag

deployment.   Thus, in Mahon’s expert opinion, the B-pillar

Location would have resulted in airbag deployment in the

present case.2

     The majority, however, never addresses any of this

testimony by Mahon.   Indeed, notwithstanding the fact that

almost all of Mahon’s testimony related to sensor placement in

a specific location on the B-pillar, i.e., the location on the

B-pillar subject to testing in the 1999 location study, the

majority characterizes this testimony as disregarding “the

variables . . . bearing upon the sensor location

determination.”   Instead, the majority focuses on statements by



     2
       Notably, Mahon specifically testified that a properly
designed airbag system for the 2008 Tiburon would have had the
side impact sensor on the B-pillar and that a properly designed
airbag system would have deployed an airbag in the present
case.
                                15
Mahon relating to what he believed would be the ideal location

for a side airbag sensor in the 2008 Tiburon.   Specifically,

the majority focuses on the testimony that Mahon believed that

the ideal location for the airbag sensor would be on the B-

pillar, approximately four to six inches from the floor

(hereafter referred to as the “Proposed Location”).

     It is important to note, however, that there was no

mention of the Proposed Location during Mahon’s direct

examination.   Rather, it is on cross-examination that the idea

of placing the sensor in the Proposed Location was first

brought up at trial.    Even then, the Proposed Location was only

brought up after Hyundai’s attorney confirmed that Mahon’s

prior testimony about the B-pillar Location was based on the

1999 location study.3

     The majority also relies on Mahon’s testimony where he

“admits” that he had not done any tests or calculations showing

that placing the sensor in another location would have resulted




     3
       Indeed, immediately prior to bringing up the alternative
location, Hyundai’s attorney specifically asked Mahon:

          The data that you looked at and that you
          rely on for expressing your opinion about
          the B-pillar being a better location than
          underneath the driver’s seat . . . is based
          on the sensor study work that was done with
          the B-pillar location there; right?

                                 16
in the airbag deploying.   In my opinion, however, this

testimony is taken completely out of context.   The testimony

cited by the majority is clearly in reference to the Proposed

Location, not the B-pillar Location studied by Hyundai.

Indeed, it is particularly telling that the quoted exchange

takes place immediately after the discussion of the Proposed

Location.   Thus, placed in the proper context, it is clear that

Mahon was admitting that he had not performed any tests to

determine whether the Proposed Location would have caused the

side airbag to deploy in Gage’s crash.   Moreover, this

“admission” is rebutted by Mahon’s lengthy testimony about the

calculations he performed as part of his crash severity

analysis.   With regard to the B-pillar Location, Mahon

consistently maintained that, based on Hyundai’s own study and

his calculations in the crash severity analysis, a sensor

placed on the B-pillar in the location tested by Hyundai in the

1999 location study would have deployed in this accident.

     “Expert testimony is inadmissible if it is speculative or

founded on assumptions that have an insufficient factual

basis.”   John v. Im, 263 Va. 315, 320, 559 S.E.2d 694, 696

(2002).   For that reason, I agree with the majority that

Mahon’s testimony about the Proposed Location was without

sufficient foundation.   However, the majority’s opinion goes

significantly beyond striking Mahon’s testimony about the

                                17
Proposed Location.    Rather, the majority implies that, because

Mahon, in relying on his knowledge and experience, believes a

better, untested alternative potentially exists, his opinion as

a whole is invalid.   The majority gives no indication how the

foundation of Mahon’s testimony relating to the B-pillar

Location is undermined by Mahon’s belief that the Proposed

Location may be better than any of the tested locations.4

Further, there is nothing in the record indicating that he

based his testimony about the B-pillar Location on his belief

that the Proposed Location may offer a better alternative to

those tested in the 1999 Location Study.   Nor is such a belief

mutually exclusive with his testimony about the B-pillar

Location.   Accordingly, in my opinion, Mahon’s opinion about

the B-pillar Location had sufficient foundation and, therefore,

the trial court did not err in allowing him to testify.

     That said, I would still reverse the decision of the trial




     4
       I feel it is important to point out that, given the way
in which the testimony about the Proposed Location was adduced
at trial, the majority opinion could potentially lead to
parties purposefully asking opposing experts about untested
alternative theories that relate to the subject matter at issue
and then using this testimony as a means of disqualifying those
experts.



                                 18
court.    In my opinion, the trial court erred in refusing to

give Hyundai’s Proposed Jury Instruction 21.5

            A litigant is entitled to jury instructions
            supporting his or her theory of the case if
            sufficient evidence is introduced to
            support that theory and if the instructions
            correctly state the law. When we review
            the content of jury instructions, our sole
            responsibility . . . is to see that the law
            has been clearly stated. Determining
            whether a proffered jury instruction
            accurately states relevant legal principles
            is a question of law reviewed de novo on
            appeal.

Smith v. Kim, 277 Va. 486, 491, 675 S.E.2d 193, 196 (2009)

(citations and internal quotation marks omitted).

     Hyundai’s Proposed Jury Instruction 21 is an accurate

statement of the law.    Indeed, it does not inform the jury that

Hyundai’s compliance with the Federal Motor Vehicle Safety

Standards (“FMVSS”) was dispositive.    Rather, it merely

provides the jury with a guide for determining whether the



     5
         Hyundai’s Proposed Jury Instruction 21 stated:

            In determining what constitutes a defective
            product, you may consider, along with other
            evidence in the case, any pertinent safety
            standards issued by the government and any
            pertinent custom in the industry at the
            time the motor vehicle was manufactured.
            Such evidence may assist you in determining
            whether or not the motor vehicle in
            question was defective, but does not
            require that you find one way or the other
            as to that issue.

                                 19
Tiburon was reasonably safe or unreasonably dangerous.

Furthermore, as the United States Court of Appeals for the

Fourth Circuit has recognized, evidence relating to a

manufacturers compliance with the FMVSS is “relevant and

necessary” to demonstrate a company’s care in bringing a

product to market.   S.L.M. v. Dorel Juvenile Group, Inc., 514

Fed. Appx. 389, 392 (4th Cir. 2013) (approving a similar

instruction relating to a different FMVSS standard).

Therefore, I would reverse the trial court’s judgment based

upon its refusal to give Hyundai’s Proposed Jury Instruction 21

and remand the case for retrial.




                                20
