ARMSTRONG, J.
This is a plaintiff's appeal from a judgment in a products liability case: Priscilla Cambron is a quadriplegic as a result of a single-car accident involving her family's 2002 Ford Explorer Sport Trac, a vehicle described as a combination of an SUV and a pickup. Priscilla was eleven years old at the time of the accident.
The accident took place after Mrs. Cambron, Priscilla's mother, steered onto the right shoulder in order to avoid a car coming at her. When she steered back onto the road, she lost control of the Sport Trac, which slid to the left, hit a berm, then went into a ditch, then rolled several times. Although 96 percent of rollover accidents do not result in serious injuries, Priscilla, who was wearing her seatbelt, suffered a spinal cord injury which rendered her a quadriplegic.
Through her guardian ad litem (and father) David Cambron, Priscilla sued Ford for products liability.
Plaintiff's major contentions on appeal are, first, that the trial court abused its discretion when it excluded one of plaintiff's expert witnesses. This witness was of critical importance to one of plaintiff's defect theories, which was that the Sport Trac had a poorly designed roof structure. That is, plaintiff contended that roof system, including the pillars which hold up the roof, were weak and poorly designed. The rear pillars were thus damaged in the accident, allowed the rear portion of the roof to crush down on Priscilla, causing her injuries. Plaintiff also contends that the court erred in granting Ford's motion for nonsuit on that theory of defect, which was made on the ground that plaintiff had not established that the collapse of the roof structures caused Priscilla's injury.
We find that both the exclusion of the expert and the nonsuit were error, and thus reverse. However, we also find that plaintiff may not retry her second theory of defect, which concerned Electronic Stability Control. Plaintiff had full and fair opportunity to present this theory of liability to the jury, which rejected it. We thus remand for a limited retrial on reversal of the nonsuit.
In February of 2006, Alicia Cambron was driving her Ford Explorer Sport Trac on 50th Street in Lancaster. Priscilla was in the back seat, wearing her seatbelt. According to plaintiff's biomechanics expert, at that point there would have been seven inches between the roof and the top of her head.
Mrs. Cambron was driving about 50 miles an hour, apparently a legal and safe speed for the street and conditions. Another car crossed the centerline of the road, causing Mrs. Cambron to take evasive action. In what both parties agreed was a normal reaction to the situation, she steered onto the right shoulder to avoid the other car, and then, when the other car had passed, steered to the left, seeking to return to the road.
However, when she steered left, she lost control of the Sport Trac, which slid and yawed across the road, then hit a berm on the left side of the road. The Sport Trac hit the berm at an angle, hitting it first with the driver's side front tire, then with the passenger side front tire, in what Ford's expert described as a rocking motion.
The Sport Trac continued to yaw as it went over the berm and into a ditch on the other side of the berm. The Sport Trac rolled onto the passenger side, toward or at the roof, causing damage to the left and right rear roof pillars; two of the four vertical structures that held up the roof. Priscilla's seatbelt was attached to the C pillar (one of the rear pillars), and when it was damaged, her seatbelt loosened by an inch, moving her to the roof.
In a motion plaintiff's expert described as a "pirouette," the Sport Trac then rolled again, this time to the driver's side, toward or at the roof. The accident reconstruction experts agreed that these impacts damaged the rear pillars, compromising the integrity of the roof.
The other driver did not stop and has apparently never been identified.
As we will see, the mechanics of Priscilla's injury were contested at trial. The parties agreed, at least, that Priscilla's injury was the result of her head's contact with the roof, which was (according to Ford's counsel) "just smooshed" in the accident. The front portion of the roof did not collapse, and Mrs. Cambron was not hurt in the accident.
Plaintiff had two theories of defect. The theory which went to the jury concerned Electronic Stability Control ("ESC"). The other theory concerned the roof structures.
Concerning the roof structures, plaintiff's theory was that the roof structure was defective in design. The supporting pillars were designed in a manner which let them collapse in the accident. The pillars were "sheet metal with nothing inside it," and were "very thin." Plaintiff's accident reconstruction expert testified that the C pillar was the first to be damaged, and that "once you fold up one leg of the stool, the other ones will go much easier."
Plaintiff's theory was that damage to the pillars not only moved Priscilla toward the roof, but caused the rear portion of the roof to collapse inward onto Priscilla's head, breaking her neck. There were a number of inexpensive things Ford could have done to prevent this roof crush, such as a stronger pillar design or a roll bar. Ford knew that the roof was weak and knew that a roll bar would protect people from injuries, but did not put a roll bar on the Sport Trac for fear of communicating the fact that the vehicle had a weak roof and a rollover problem.
The ESC theory, which did go to the jury, was that the Sport Trac's high center of gravity, narrow track, and poor handling made the Sport Trac difficult to control and gave it a greater propensity to roll and cause injury. If the Sport Trac had had ESC it would not have slid when Mrs. Cambron steered back onto the road, but would simply have returned to the road. In 2002, ESC was a proven technology available to Ford and used around the world. Ford decided not to put ESC into the Sport Trac for financial reasons.
Ford's theory on ESC was that it was not available for a vehicle like the Sport Trac in 2002, and that it would not in any event have prevented this accident. The Sport Trac was a safe and stable vehicle with good handling characteristics and good rollover resistance. This accident involved a driver who oversteered, and a vehicle which hit a berm, then dropped into a ditch, at speed. Under those circumstances, any car would have rolled, even if it had ESC.
As to the roof, Ford's theory (as explicated in opening statements) was that the Sport Trac had a good roof, and that the roof damage did not cause Priscilla's injuries. Her head was against the roof, or very close to the roof, when the vehicle came down on the roof, and both the roof damage and the injuries resulted from the "high energy crash" when the roof slammed into the pavement.
Both sides called witnesses in support of their theories. Plaintiff called, inter alia, mechanical engineer Steven Meyer on accident reconstruction, Dr. Dennis Shanahan on the biomechanics of Priscilla's injury, (that is, "how [Priscilla] got injured in this particular crash"), and engineer Murat Okcuoglu, who opined that ESC was available at the relevant times and would have prevented this accident. Ford's witnesses included Dr. Geoffrey Germane, on accident reconstruction; former Ford engineer Donald Tandy, on the Sport Trac's handling and on the feasibility of installing ESC on the Sport Trac in 2002, and Ford engineer Sandra Moody, who testified that ESC could not have been installed on the Sport Trac in 2002.
Plaintiff also sought to call mechanical engineer James W. Jones as an expert on the defects in the roof structure, but on Ford's motion, the court excluded his testimony, finding that although he was a "fine mechanical engineer," his expertise was not in automobile roofs. Then, at the close of plaintiff's case, Ford moved for nonsuit on the roof structure claims, contending, inter alia, that plaintiff had not met the burden of proving causation, because plaintiff had not established that the roof collapse caused Priscilla's injury. The court granted the motion.
Thus, in the final jury instructions, the jury was instructed that "[e]arly in this case, Plaintiffs claimed there was a defect in the roof of the Sport Trac that caused Priscilla Cambron's injuries. I have dismissed that claim as a matter of law and you are not to consider that claim in your deliberations."
The jury was instructed on both the consumer expectation and risk/benefit theories of design defect. On special verdicts, the jury was asked "Did the 2002 Ford Explorer Sport Trac contain a defect in design?" (In context this could only have referred to the lack of ESC.) The jury answered "no," rendering the remaining special verdict superfluous.
Plaintiff sought to call Dr. James Jones to testify concerning Ford's roof testing, the behavior of the roof and its supporting structures during this accident, and measures which Ford could have taken to prevent roof crush. A trial exhibit establishes that he would testify that the roof was defective in design because it did not protect the passenger in a rollover, but instead collapsed completely into the passenger compartment; that Ford design engineers were negligent because they designed to the letter, not the spirit, of the federal standards; that Ford's analysis should have been (but was not) performed as a dynamic analysis; that strengthening the C pillar could have prevented Priscilla's injury; and that the initial impact of the driver's side deformed the roof, so that when the Sport Trac rolled over the roof structure was greatly weakened by the side deflection and formation of the plastic hinges at the base of the pillar.
Ford challenged his expertise, and at a hearing under Evidence Code section 402, Jones testified to his opinions and the basis for those opinions.
He testified concerning his expertise in mechanical engineering and his many years of experience in accident crash analysis and the design of structures to withstand severe loads such as accidents. Since 1968, a primary focus of his practice had been analyzing structures for crash-worthiness. He had worked with automotive, shipping, and aerospace companies.
As to Ford's roof testing, relevant to compliance with federal safety standards, he testified that he would opine that Ford did not adequately consider the dynamic forces of a crash, but relied on static and quasi-static tests, and failed to field test during the design to insure that the roof was safe, and not just in compliance with federal standard. Jones based this opinion on Ford's data, and, as was true with all his opinions, on general principles of engineering and physics and his many years of experience in designing structures, including two years of work with Hyundai on an automobile shell.
Next, based on his examination of the Sport Trac's roof and other parts of the wreck and on information from the accident reconstruction expert, Jones proposed to opine on the structure of the roof and the mechanism of the partial roof collapse. Jones testified that he would opine that proper roof design can prevent roof crush in almost all rollovers, that the roof would not have collapsed if the roof and its structures had been properly designed under basic design engineering principles, and that there were a number of inexpensive things which could have been included in the design of the Sport Trac which would have prevented the roof deformation. For instance, Ford could have filled the pillars with foam, or created closed sections, or put in an external roll bar.
Ford argued that Jones's testimony should be excluded because his experience was not in testing or designing automobile roofs, and the trial court agreed.
In deciding when an individual can testify as an expert, "the determinative issue in each case must be whether the witness has sufficient skill or experience in the field so that his testimony would be likely to assist the jury in the search for the truth . . . . [Citation.] Where a witness has disclosed sufficient knowledge, the question of the degree of knowledge goes more to the weight of the evidence than its admissibility. [Citation.]" (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38; Evid. Code, § 801, subd. (a).)
Under those circumstances, the opponent's rights are protected because the witness is subject to "as penetrating a cross-examination as the ingenuity and intellect of opposing counsel can devise." (Brown v. Colm (1974) 11 Cal.3d 639, 646.)
As Ford argues, our review is for abuse of discretion, but "[t]he trial court will be deemed to have abused its discretion if the witness has disclosed sufficient knowledge of the subject to entitle his opinion to go before the jury." (Jeffer, Mangels & Butler v. Glickman (1991) 234 Cal.App.3d 1432, 1442-1443.)
"While the admission or rejection of expert testimony lies within the realm of the discretion of the trial court, an abuse of that discretion occurs when evidence otherwise admissible is rejected only because the witness does not possess knowledge of a matter which is not in fact a prerequisite to the attainment of competency as an expert with respect to the particular subject matter." (Varas v. Barco Mfg. Co. (1962) 205 Cal.App.2d 246, 260; Brown v. Colm, supra, 11 Cal.3d at p. 646 [medical malpractice expert need not have personal working knowledge of the standard of care at the time of the alleged malpractice].) This is such a case.
Plaintiff's theory concerned the strength and design of the pillars which supported the roof, and the strength and design of the roof. Nothing before the trial court indicated that automobile pillars and roofs are so different than other structures, in terms of design and behavior under stress, that a specific expertise in automobile roof structures was required. Indeed, at least one court has rejected an argument that the cause of an automobile roof collapse (in that case due to defective welds in the supporting pillars) is so esoteric that it is provable only through specified expert testing, finding that "We see no reason why the mode of proof must be so constrained. There is a saying that, according to the science of aeronautical engineering, a bumble bee cannot fly. But if that were an issuable fact, the defects in the theory could be shown by the observations of a beekeeper or an entomologist." (Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849, 869; Schreidel v. American Honda Motor Co. (1995) 34 Cal.App.4th 1242, 1251-1252 [mechanic qualified to testify as an expert on the causes of a car's problems despite the fact that he did not conduct scientific tests].)
Jones testified, on direct and cross-examinations, that his opinions were based on general principles of physics and engineering, and that his knowledge of those areas, along with the other information and tests, was sufficient for him to form opinions. He testified, essentially, that roof crush analysis was, scientifically, no different than other structural analysis, saying that "a lot of things look like a roof to me," that "I know a lot about this roof, because I've examined this roof. I've looked in detail at the way it was constructed. So I do know a lot about this roof, and I know a lot about how structures like this respond because I've designed structures that are very similar to this," and "I've been designing structures to absorb energy and limit loads and limit deflection for 40 years."
Ford was free to cross-examine Jones, to present evidence from another expert, one with automotive roof experience, and to argue to the jury that Jones's testimony should not be credited. However, plaintiff should have been permitted to present Jones's testimony to the jury.
We begin with plaintiff's contention that it is always improper to grant nonsuit as to a particular design feature in a products case.
Plaintiff relies primarily on Daly v. General Motors Corp. (1978) 20 Cal.3d 725. In that case, a car collided with a fence, causing the driver's side door to open. The driver was thrown from the car and killed. Plaintiff's theory was that the design of the door latch was defective. Defendant disputed the theory, and also introduced evidence that the car had safety features (seatbelts and a door lock) which the driver did not use, but which would have prevented the driver's ejection from the car. (Id. at p. 731.)
The Supreme Court agreed that the jury was entitled to consider that evidence, and that the jury was properly instructed to "consider all of the equipment on the vehicle including any features intended for the safety of the driver." The court held that "the issue of defective design is to be determined with respect to the product as a whole." The jury could properly determine whether the overall design of the car, including the safety features, made the car crashworthy and thus nondefective. (Daly v. General Motors Corp., supra, 20 Cal.3d at p. 746.)
From Daly, plaintiff argues that "because jurors must assess defect and causation in light of the entire product, a court cannot `non-suit' one aspect of the design and take it from the jury's consideration." We cannot entirely agree with the proposition. At least theoretically, a defect (perhaps a poorly-designed headlight system, if the evidence was that the accident took place in daylight) could have no causal relationship with the injury, making nonsuit proper. As Ford argues, "A product liability case must be based on substantial evidence establishing both the defect and causation (a substantial probability that the design defect, and not something else, caused the plaintiff's injury) and where the complexity of the causation issue is beyond common experience, expert testimony is required to establish causation." (Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th 1363, 1373.)
However, the substantial probability standard "`is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.' [Citation.] Thus, `a force which plays only an "infinitesimal" or "theoretical" part in bringing about injury, damage, or loss is not a substantial factor' [citation], but a very minor force that does cause harm is a substantial factor [citation]." (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.) A plaintiff need not establish that a defendant's product was the sole potential proximate cause of injury, but is only required to introduce evidence "which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of defendant was a substantial factor in bringing about the [injury] . . . ." (Grinnell v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 424, 435; Bates v. John Deere Co. (1983) 148 Cal.App.3d 40, 50.)
Further, a plaintiff is entitled to establish causation by circumstantial evidence. (Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 583.) Thus, in Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, plaintiff's experts testified, variously, that the accident "probably" would have been prevented by specified safety features, and "may have been caused" by the defective design of one or more components, and this evidence was sufficient. (Id. at pp. 420-421; Hinckley v. La Mesa R.V. Center, Inc. (1984) 158 Cal.App.3d 630, 638 [nonsuit improper where plaintiff's expert testified that there were two possible causes of a fire, one more likely than the other, a conclusion supported by circumstantial evidence].)
Barker also held that under the consumer expectations test, "an injured plaintiff will frequently be able to demonstrate the defectiveness of a product by resort to circumstantial evidence, even when the accident itself precludes identification of the specific defect at fault," (id. at p. 430) and that under the risk/benefit standard, "once the plaintiff makes a prima facie showing that the injury was proximately caused by the product's design, the burden should appropriately shift to the defendant to prove, in light of the relevant factors, that the product is not defective." (Id. at p. 431.)
Finally, on review of an order granting nonsuit, we accept the evidence most favorable to plaintiff as true and disregard conflicting evidence. Our review is de novo, and we will not sustain the judgment unless, when interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law. (Baker v. American Horticulture Supply, Inc. (2010) 186 Cal.App.4th 1059, 1072.)
Under these standards, plaintiff's evidence here was sufficient to withstand a motion for nonsuit. Plaintiff produced sufficient evidence that the design of the Sport Trac's roof structure, and not "something else" (Stephen v. Ford Motor Co., supra, 134 Cal.App.4th at p. 1373) caused Priscilla's injury.
Plaintiff's experts testified that Priscilla's injuries were caused by contact between her head and the roof. There was no evidence that any other outside force even contributed to her injury.
The trial court found that the state of the evidence was that "[Priscilla's] head could very well have touched the roof after she had broken her neck" due to the velocity of the crash, but that was not correct. Ford agreed that the injuries were the result of impact between the top of Priscilla's head and the bottom of the roof and Dr. Shanahan testified that she had not suffered a "hangman's fracture."
Ford's theory was that Priscilla's injury might have been caused not because the roof crushed onto her head, but because her head (uninjured) was against the roof when the roof slammed into the ground, and if that was the case, her injuries could have been caused by the force of the impact onto the ground, making the strength of the roof irrelevant. Thus, in Ford's view, if the rollover could not have been prevented (as Ford argued), the injuries could not have been prevented. The argument does not establish that nonsuit was proper.
Plaintiff presented evidence that before the accident, seven inches of space separated Priscilla's head from the roof of the Sport Trac. Plaintiff presented evidence that the accident damaged the rear structural pillars in a manner which meant that Priscilla's seatbelt loosened, moving her toward the roof, and evidence that the pillars collapsed inward, causing the roof over the back seat to collapse inward and bringing the roof to her head. Dr. Shanahan testified that Priscilla suffered a neck fracture "due to a force coming from the head and pushing down on the spine . . . ." Meyer testified that "the roof came and impacted the top part of her body." Jones would have testified that "one of the first things that happened" was that the pillar "broke down" causing the roof to "shift over to the passenger side," and that the rollover "caused the roof to crush into the car."
Dr. Shanahan also testified that a proper design keeps the roof away from the head, and the head away from the roof, and Jones's testimony would have been similar. We thus cannot say that Ford was entitled to prevail, as a matter of law.
As we earlier noted, plaintiff had a second theory of defect, that the Sport Trac was defective because it did not include an ESC system. On special verdicts, the jury was asked "Did the 2002 Ford Explorer Sport Trac contain a defect in design?" (Given the nonsuit on the roof defect theory, this could only have referred to the lack of ESC.) The jury answered "no."
Plaintiff has challenged two evidentiary rulings relevant to this issue, and contends, at least impliedly, that the errors alleged mean that this issue, too, must be retried. We cannot agree.
Plaintiff's first contention concerns 2001 deposition testimony from then-Ford CEO Jacques Nasser, taken in a case which apparently concerned tires. Plaintiff sought to admit Nasser's testimony that the Explorer (not the Sport Trac) had a variable profit margin of over 40 percent in 1995 and 1996. Plaintiff contended that this evidence was relevant to show that Ford had financial motivation not to install ESC. On Ford's objection, the court excluded the evidence
Plaintiff argues that the evidence was relevant to impeach Ford's evidence that ESC was not installed in the 2002 Sport Trac because no safe system had yet been developed. We see at most a very marginal relevance, and no grounds for reversal.
Article VI, section 13 of the California Constitution provides that "No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." Thus, "[n]o form of civil trial error justifies reversal and retrial, with its attendant expense and possible loss of witnesses, where in light of the entire record, there was no actual prejudice to the appealing party." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) "[E]rrors in civil trials require that we examine `each individual case to determine whether prejudice actually occurred in light of the entire record.' [Citation.]" (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801-802.)
Here, Nasser's testimony did not concern the Sport Trac, but a different vehicle, at a different time. The testimony cannot be said to significantly impeach Ford's evidence on the availability of ESC for this Sport Trac, and its exclusion could not have changed the result. Further, in addition to the evidence that ESC was not available, Ford presented evidence that the Sport Trac was reasonably safe if operated in a reasonable manner, and presented evidence that ESC would not have prevented this rollover, but that under the circumstances of this accident, any vehicle would have rolled, even if it had ESC. Nasser's deposition testimony does nothing to controvert this evidence.
Plaintiff's next argument concerns Exhibit 527, several printed pages titled "Limit Handling Objective Metrics for Pickup Trucks," and 539, which consists of several pages of sketches and notes, apparently relating to changes which could be made to the Sport Trac to increase stability, and the costs of making those changes. Plaintiff sought to cross-examine Ford engineer Sandra Moody with reference to those exhibits, and to admit them into evidence as party admissions under Evidence Code section 1220. Ford objected on foundational grounds, and the court sustained the objection.
We agree with plaintiff that the documents were admissible as party admissions. (Evid. Code, § 1220.) The documents were produced by Ford in discovery and Ford had stipulated to their authenticity. At least one was, on its face, prepared by a named Ford engineer. At least one was identified by Moody as a "Ford engineering document." We do not, however, see that exclusion of the documents amounted to prejudicial error. (Cal. Const., art. VI, § 13.) Moody testified that she was not familiar with the documents. Her testimony concerning them would thus have been limited, and the documents are sufficiently technical that without explanatory testimony, they would have been meaningless to the jury. They do not, as far as we can tell, specifically address ESC, and do not address the other prongs of Ford's ESC theory, that is, the ESC would not have prevented this accident. "In light of the entire record" (Cassim v. Allstate Ins. Co. supra, 33 Cal.4th at pp. 801-802) no prejudice occurred.
Plaintiff had a full and fair opportunity to try her ESC theory to the jury. Having lost on that theory, she may not try again.
The judgment is reversed, and the matter is remanded for retrial, consistent with this opinion. Each party to bear its own costs on appeal.
TURNER, P. J. and KRIEGLER, J., concurs.
