Kolby O'Banion, Taylor O'Banion, Tim O'Banion, and Kelly O'Banion v. Ford Motor Company
2015 Ind. App. LEXIS 619
| Ind. Ct. App. | 2015Background
- On July 29, 2009 Karen Roush drove a 2005 Mercury Monterey through a red light, killing herself and striking the O’Banions; plaintiffs alleged sudden unintended acceleration caused by a defective throttle cable assembly.
- Farm Bureau (subrogee), the Estate of Karen Roush, and the O’Banions sued Ford; cases were consolidated and governed by a case management order requiring expert disclosures by Sept. 1, 2013 and expert-related discovery completed by Dec. 31, 2013.
- Mechanical engineer David Zedonis examined the vehicle, produced reports (2010, updated 2013), and opined the throttle cable exhibited excessive wear/fraying that allowed strands to bind in the sheath and prevent return to idle; he later conducted additional testing and measurements after the discovery deadline.
- Human factors engineer William Berg analyzed driver response assuming a throttle malfunction, concluding no basis for pedal error and that Roush’s reactions were consistent with typical drivers; his analysis relied on Zedonis’s mechanical conclusion.
- The trial court excluded testimony of both Zedonis and Berg (citing both Rule 702 concerns and discovery timing), and granted Ford summary judgment; the Court of Appeals reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Zedonis under Evidence Rule 702 | Zedonis is a qualified mechanical engineer; his inspection, microscopic/x-ray work, exemplar testing, and experience provide a reliable basis for opinion that cable wear caused binding | Zedonis’s opinions are speculative, lack sufficient factual support (didn't measure cable pre-trial, could not pinpoint where fraying occurred), and failed testing undermines reliability | Court: Zedonis’s mechanical-engineering testimony is within Rule 702(a); weaknesses go to weight not admissibility; exclusion under Rule 702 was erroneous |
| Exclusion of Zedonis as discovery sanction (Trial Rule 26/26(E) violation) | Late additional testing and measurement were minor, known expert and opinions were long disclosed, Ford suffered no demonstrated prejudice; lesser sanctions appropriate | Post-deadline testing and new analyses justified exclusion to enforce case-management order and prevent unfair surprise | Court: Total exclusion was too draconian; little prejudice to Ford and conduct mainly attributable to counsel; reversal of exclusion required and lesser sanctions available |
| Admissibility of Berg (reliance on Zedonis) | Berg limited his role to human factors analysis assuming a mechanical malfunction; his qualifications suffice to assist the trier of fact | Berg’s opinions are inadmissible because they depend on Zedonis’s excluded and unreliable mechanical opinions | Court: Because exclusion of Zedonis was erroneous, exclusion of Berg (which depended on Zedonis) was also erroneous; Berg’s opinions may be admitted consistent with Rule 702 |
Key Cases Cited
- Simon v. Simon, 957 N.E.2d 980 (Ind. Ct. App. 2011) (standing requires a sufficient stake in controversy)
- McCullough v. Archbold Ladder Co., 605 N.E.2d 175 (Ind. 1993) (pretrial disclosure promotes fair litigation and eliminates surprise)
- Wright v. Miller, 989 N.E.2d 324 (Ind. 2013) (sanctions for discovery violations must be proportionate; exclusion can be dismissal in extreme cases)
- Person v. Shipley, 962 N.E.2d 1192 (Ind. 2012) (expert admissibility focuses on whether general methodology is reliable; conflicts go to weight)
- Fueger v. Case Corp., 886 N.E.2d 102 (Ind. Ct. App. 2008) (mechanical engineering testimony is technical, not necessarily scientific, and governed by Rule 702(a) rather than (b))