*1 consent; moreover, to writing. it that consent be in requires Thus, was authorized by appellant proceed appellee and, claim, subrogated in the absence of the property damages subrogation consent no resulted receipt, prejudice required Hodges failure disclose the appellant by appellee’s agreement. arbitration
Therefore, in accordance with the arbitration agreement, Combs, Hammett subrogation we cannot receipt, say in holding the trial court erred required appellee any fees pay portion attorney’s incurred in appellant her with settling property damage claim Mutual. Liberty affirmed. judgment FORD Ford, MOTOR COMPANY Inc.
v. Dean MASSEY
92-1153
Supreme Court of Arkansas delivered June Opinion *3 Baker & McKenzie and Wright, Lindsey Jennings, & for appellants.
Baker, Wallace, Jensen & McCalliser and Greene Law Offices, appellee. Brown,
Robert L. Two raised Justice. issues are Ford, Inc., Ford Motor appellants, and in this Company 1) whether trial appeal: judge refusing grant erred in absence of a the verdict due to the judgment notwithstanding on behalf of basis for the expert’s opinion presented reasonable 2) judge whether the trial further Massey; Dean and appellee, to strike evidence of occurrences refusing warranty erred to the case at hand. We hold that the trial similar sufficiently instance, we did not abuse his discretion either and affirm judge also the verdict and Dean judgment. Massey cross-appeals in the event that several issues which are to be entertained we only Because we affirm the we do not judgment. judgment, reverse the reach the issues on cross appeal. 28, 1990, wife, his Connie
On Dean August Massey in a wooded area near their Massey, gathering hickory in a barbecue. Dean backed County up Saline home to use Bronco near to some He hickory saplings. got 1986 Ford couple’s walked several feet behind it in order to fasten out of his truck and Connie moved to the driver’s seat a chain around two of the trees. to back the Bronco toward the trees so that Dean could began the chain to the truck. attach looked engine
Dean next heard the rev. He saw up Bronco three feet fast” toward him. He cried out “coming away wife, she the truck. Witnesses twice to his was unable stop caught testified at trial that Dean was underneath the vehicle and tree, dragged over the a five-inch-thick hickory saplings, pine thigh-high underbrush. Photos and revealed a 62 foot neck through swath cut the woods. Dean suffered and back *4 fractures, which severed his cord and rendered him a spinal He admitted at trial that his recollection of the quadriplegic. incident was sketchy. incident,
Within a short of time Connie period following Massey gave differing though by statements what happened, all accounts she was She told witness that the distraught. one her going Bronco after she took foot off the accelerator. She kept told a second witness that the truck ran over her husband and something was with it. She related Pulaski wrong to the West Fire her County got caught Chief that foot between the brake and gas And she told a Saline Sheriff that her pedal. County Deputy foot off the brake hit the accelerator. slipped 21, 1991, a tort August
On Dean and Connie filed Massey Motor against Quality action Ford appellants, Company
349 Ford, Inc., of their the basis the throttle cable on that that alleged 1) Ford Bronco was defective. They 1986 warn them a of the vehicle failed to of defect negligently suppliers 2) strictly in the that Ford and liable product, Quality for a defective the stream of commerce. Before placing product trial, to an brought Massey the matter was Connie died in auto trial, accident. At directed the Saline Circuit Court a County verdict for Ford and on the failure-to-warn claim Quality following Massey’s case but the strict claim permitted liability to trial, go $7 to After seven a jury. days jury returned claim, million verdict the strict with liability interest accrue at 8 percent per annum. Ford and then filed a Quality motion fi N.O.Y., for judgment raising the same issues that are the substance of this That motion was denied. appeal.
I. REASONABLE BASIS FOR EXPERT OPINION argue, reversal, as their first for point witness, Dean Massey’s Larry no reasonable Pipes, basis his that Dean’s were caused opinion injuries by defect in the 1986 Ford Bronco the it at time was sold. originally Because that, contend, the trial erred in judge failing grant their for judgment motion notwithstanding the verdict.
On review of a trial
judge’s denial
a motion to set
aside
verdict on
liability, the
whether
question is
the verdict
is
any
Clark,
supported by
substantial evidence.
Johnson
616,
Ark.
A properly qualified expert’s opinion constitutes
substantial evidence unless it is shown that the
is
expert’s opinion
without
Williams,
702, 567
reasonable basis. Wallace v.
S.W.2d 111
If there is no sound and reasonable basis for
expert testimony,
If,
subject
being
stricken.
however, the cross-examination shows
that the
has a
basis,
weak or questionable
goes
weight
and credibility
*5
given
to be
rather
testimony
than
its
Ishie v.
admissibility.
Paws,
112,
Kelley, 302 Ark.
(1986).
of the
B &
jury.
within the exclusive province
witnesses lies
expert
Cotroneo,
Ark.
Although Pipes *6 vehicle, the cable is rather than ing normal operation pulled is valid he asserted that the test “as as pushed, pushing [a test] Moreover, in America Board Mechanic would use.” he every the described the of steel cable and conduit in operation great detail and testified that he built throttle cable assemblies and was familiar quite design himself with the and materials used cable, testified, in the Bronco’s The steel he was assembly. designed to move within the conduit when freely toward pulled the the or passenger compartment by depressing accelerator original returned its the position by springs.
It is the prerogative the believe or to jury Clark, disbelieve the any witness. Johnson supra; v. Jet & Rock Hodges Asphalt 808 S.W.2d is (1991). Where there a conflict in the evidence an presented by expert, the determination jury Cotroneo, the issues is conclusive. B & F Engineering, case, In this supra. the essential of Larry component Pipes’s testimony was that he felt a rough stiff he spot point as manually manipulated conduit, the cable through which he attributed to an internal fault. We cannot that say this explana tion was not reasonable. The was entitled to jury believe him or not. argue on a appellants related that even the point if test
pushing
a
provides reasonable basis for the expert’s
it
opinion,
still
no evidence that
supplies
internal
presumed
fault would
cause the cable to catch during normal
This also
operation.
credibility
noted,
matter for the
jury
assess. As Dean Massey
Pipes spoke with Connie Massey after the accident. Connie
had been
that
Massey
“clear”
she was not depressing
gas
when
pedal
the truck continued to
When
accelerate.
an expert’s
testimony is based on hearsay, lack of personal knowledge does
not mandate an exclusion of the opinion but instead
presents
question concerning
weight to be attached to that
opinion.
Ledbetter,
Dixon v.
262 Ark.
The appellants during stuck that the throttle cable previously dence this, 51,000 Countering Larry of travel. Pipes miles Bronco’s life should be the life of the throttle cable testified *7 defective when in his the cable was judgment and that vehicle and this caused the accident. and sold that by manufactured the defective cable concluding precipitated His reasons these already opinion. Again, been stated in this the accident have weigh for the and evaluate. B matters evidentiary were all Cotroneo, Engineering, supra & F to the different construction point The then appellants Green, testimony Bobby on the of who placed that Pipes and who found morning the Bronco the after the accident driven that he had looked revving Green testified engine excessively. the saw the throttle foreign object holding under the hood and no in the fuel determined that the was somewhere open problem and for a looking foreign if Green was system. observed that Pipes do been on a cable. We focusing hung he would have object, the as testimony Bobby Larry Pipes not view of Green admission, Green, did his own not do a irrevocably by in conflict. if only of the looked see thorough problem inspection His holding thought throttle first was something was the open. fuel is not lay system. Pipes’s explanation that the the problem unreasonable, incompatible. we do not view the as testimony that, insist in order to reach the
Finally, the appellants accident, had to Pipes conclusion an internal fault caused the the to the living disregard only eyewitness — his himself. Dean testified that Massey accident the appellee feet when best estimate was that the Bronco was three only away rev. which have caused only thing could engine began was Connie to rev engine initially, appellants say, as point, accelerator At that depression pedal. Massey’s conceded, Yet the accident had been determined. already Pipes Dean three rejected estimate that emphatically Massey’s Pipes feet was actual distance traveled physical rapidly “I he he was in accelerating vehicle. believe that’s when realized observed, his “and what’s emblazoned in peril,” Pipes that’s of the memory himself testified that his memory.” Massey distances sketchy accident and that the estimated approximations.
Ford and
us to a decision of the
Michigan
cite
Court
(Mich.
Green v. Ford Motor
The Arkansas cases cited Ford and by Quality provide no basis for excluding Pipes’s opinion Both Sims testimony. Trails, Inc., 588, 764 Safeway (1989), S.W.2d 427 Co., 78, 342 Little v. Feed & George Supply S.W.2d 668 (1961), deal with the of accident testimony reconstructionists. In Sims, accident, a involving case a bus had never seen expert the bus and was on a relying graduate former student’s on report Moreover, the brakes. failed either expert develop or to articulate an opinion regarding the cause the collision when no there was dearth of relating to proof potential causes. Under circumstances, we the trial upheld judge’s exclusion however, The expert’s testimony. entails differ present appeal, Here, ent agree scenario. did not Pipes with all of the other benefit of doing comprehensive investiga tion before he formed his opinion.
In Little v. Feed & George Supply supra, witness based his testimony on gouges evidence of highway obtained at the scene of a collision seven months after the accident and on an of the one inspection vehicles involved after facts, the vehicles have been dismantled. On those we partially affirmed the trial In judge’s ruling of inadmissibility. present case, stated that Pipes he first examined in the vehicle November accident, three months after the again June 1991.
354 was still intact.
The Bronco basis for sum, was a reasonable hold that there In we and, thus, was on sound judge the trial conclusions expert’s consti Larry Pipes’s opinion finding footing motion Accordingly, appellants’ substantial evidence. tuted denied. N.O.V. was properly judgment for SIMILAR OCCURRENCES II. EVIDENCE OF that the trial Quality urge Ford and second point, For their 7, a Plaintiffs Exhibit regarding in two respects erred judge con- report the SE-II report. known as computer printout on throttle cable assembly to the warranty 106 repairs tained as the and transmission engine with the same Ford Broncos to show a First, failed allege Massey vehicle. appellee’s in his of cable failure between the incidents similarity substantial noted in the SE-II of cable failure Bronco and the incidents Secondly, they against admissibility. militated its which report to strike Exhibit refusing erred in judge that the trial assert Massey’s verdict in favor appellants after he directed a claim. negligence to the warranty precise listed 106 repairs
The SE-II report case, of which was in this each cable at issue assembly throttle the reason for the cable designate number to a code assigned that the throttle Code number “41” stated assembly repair. “sticks, binds, There were 45 such seized.” grabs, — — was number of highest repairs The next repairs. “broken, Other cracked.” the number “01” referenced *9 fast,” “bent, “idles too adjustments,” codes denoted “improper routed,” seams,” “loose,” “mis- kinked,” “improperly “split entries elaborated and other such Some aligned,” descriptions. code, most contained no comments. the shorthand admissibility the
The
rule with
general
respect
only
occurrences is that it is admissible
of evidence of similar
or
events arose
of the same
that
the
out
showing
upon
Inc.
circumstances. Westark Specialties,
similar
substantially
Ltd.,
(1992).
354
836 S.W.2d
Family,
Stouffer
to prove
the evidence
offering
rests on the party
The burden
of
exists. Id. relevancy
similarity
the
of conditions
necessary
discretion,
subject
judge’s
is within the trial
such evidence
is
Turner v.
reversal
if an abuse of discretion
demonstrated.
only
Lamitina,
In this after the trial directed in judge a verdict favor of issue, on that he refused to SE-II appellants strike the report which in evidence or to already instruct not to jury consider it. In so he ruling, determined that the would not report in its prejudice determination of the strict jury liability claim because the had a “clear jury understanding of the evidence.” He grant refused to a motion in previously limine exclude Exhibit 7 it related because to the throttle cable and specifically were defined.” repairs “clearly
Ford and was allowed complain consider the as warranty repairs evidence a defective condition showing without a on the appellee’s part any substantial It was incumbent similarity. upon Massey, say appellants, to evidence to establish present that the affected vehicles were used or maintained and that the cable properly assemblies the code stuck, bound, “41” vehicles grabbed, seized due anto internal addition, fault. In that of the appellants vigorously urge “41,” various repairs coded warranty only eight involved a cable replacement which they contend is what considered Larry Pipes to be the only recourse for a defective other cable. The Code classifications, contend, and, were simply dissimilar there- fore, irrelevant and prejudicial.
We with the agree trial that the judge SE-II warranty report was limited to a catalogue repairs number involving part 9A758, the throttle precise present at issue in case for the model of 1986 Ford Bronco the appellee. owned by Moreover, the phrases Code report specific
summarized in a manner that was
understandable.
readily
Furthermore, analyzed
length
SE-II
was
at
a Ford
report
by
Waller,
engineer,
automotive
Ken
who was called as a witness by
and then further
The
Massey,
analyzed by Larry Pipes.
with
on the
thorough testimony
exhibit relative to the
presented
to the throttle cable
in
repairs
question.
We turn to an Eleventh Circuit Court of
decision for
Appeals
Cars, Inc.,
a case in
See
v.
point.
Hessen
In
S.A.,
Four Corners
Inc. v.
Helicopters,
the Tenth Circuit Court of
supra,
affirmed the decision
Appeals
of the district court which had allowed the introduction into
evidence of sixteen
of various
reports
repairs
computer
listing those
which
printout
similar incidents of
reports
depicted
screws backing out of an
even
engine
though
similar incidents
did not involve
flight
accidents or failures in
which was the subject
incidents,”
litigation.
court,
of that
“The
declared the
“though
identical,
similar
substantially
and were therefore
admissible to indicate the existence of a
They
defect.
further met
any relaxed
requirement
similarity
were therefore admis-
sible for all
offered
purposes
by
The Arkansas cases cited support abuse of discretion on substantial are distin- similarity questions guishable their facts. In Westark Specialties, Stouffer Ltd., Family, supra, substantial plaintiff attempted to prove of an similarity insurance with payment connection a previous lease without the content of the or the basis proving previous lease Lamitina, for the insurance In company’s payment. Turner
357 issue, focus of the lights evidentiary two traffic were the supra, never identical or in proved operating were to be to be or come from central The system. to the same electric sequence the in each were striking. dissimilarities in evidence case proposed We conclude Exhibit 7 was relevant and that there was no in showing of the wake the trial decision prejudice judge’s not or strike to exclude the exhibit. involved were repairs discussed, the great and detail analyzed, distinguished by note, too, engineer Larry and We that the exhibit is clear Pipes. and the code straightforward, catego- especially summary by ries, which minimizes for on juror confusion potential several classifications. repair
After the directed negligence verdict on claim 7, not judge’s decision to strike Exhibit trial agreed counsel Yet, refer to the again exhibit or through testimony argument. by made no effort to a for appellants request limiting instruction disregard of the SE-II is true that any part report. It had the on appellants right to their rely motion mistrial and motion to strike. But in light ruling trial judge’s Exhibit 7 no a represented prejudice, limiting instruction certain SE-II codes was an available to the option appellants which could have been utilized and was not.
We cannot that under these say circumstances where the exhibit dealt with repairs to the identical at issue in equipment — — the case throttle where repairs witnesses, clearly analyzed described the trial judge abused his discretion in refusing exclude it or strike it.
Affirmed.
Hayes, J., dissents. Hays, Justice, dissenting. of substan Steele The existence 14, tial evidence question Johnson, is a of law. Fuller v. (1989); Braswell, S.W.2d 463 St. Louis S.W. Ry. Co. v. 143, 127 Hence, Ark. S.W.2d 637 it is on the incumbent members of this court to ourselves that of seven satisfy this verdict million dollars is based on conjecture. more than speculation and
We have said substantial evidence is evidence: “competent”
Substantial evidence has been “evidence defined as will, that is of sufficient force and character that it with reasonable and material certainty precision, compel conclusion one or the way other. It must force or induce the mind to beyond conjecture.” Ford on pass suspicion Evidence, Vol. 2760. page Substantial evidence § has also been defined as “evidence furnishing a substantial basis of fact from which the fact in issue can be reasonably *12 inferred; and the test is not satisfied evidence which by creates a or merely which amounts to no suspicion more than a scintilla or which gives to equal support inconsistent Evidence, Wigmore IX, inferences.” Vol. 3rd ed 2494, footnote at 300. See also v. page Tigue Caddo § 574; Minerals 253 Ark. 491 S.W.2d Goza v. Council, 694, 496 Central Ark. Dev. S.W.2d 388. Standard, 44, 48, Kroger Co. 670 S.W.2d (1984). case,
Since this is a it was products liability for the necessary plaintiff-appellee produce substantial evidence that this 1986 Ford Bronco had a defect which rendered it unreasonably dangerous and that the vehicle was manufactured or in supplied that condition. Ark. Code Ann. 16-116-102 In my § estimation the has failed to plaintiff-appellee evidence on produce either score which measures up substantiality. case
Appellee’s rested on the of testimony Mr. Larry Pipes, was, who could not say what the defect that he only found what he “considered to be a stiff in the point” connecting cable acceleration to the throttle. He made no pedal attempt explain or define the condition other than to refer to it as “a rough spot,” “a stiff or “an point” internal fault” where the cable was “resistant to motion.” He described it as something he could not “see,” “feel.” These only characterizations led him to conclude that the that, cable had “a problem.” “Beyond I tell cannot you what specifically is problem inside.”
These observations were arrived at after he had disconnected the cable at both ends and tested it end by manually one pushing of the cable. Before he removed the cable he did not “a experience it, I did not make a hang-up.” note of but I I pushed estimate that and released the gas pedal to check for a no less cable hang-up than a dozen and two to maybe three dozen times. Never once did it It is clear from the that in normal hang.” operation never An for Ford testified that cable is pushed. the cable was and Mr. pushing comparable pushing rope that when it is either conceded the cable attached Pipes pulled the accelerator the return by depressing pedal, pulled by when the is released. springs pedal testimony that the was a defective product supplied condition is After the equally lacking. had rested and appellee verdict, had moved for a appellant directed was appellee’s expert recalled to to his testify that the vehicle was in a defective opinion condition when manufactured and sold Ford. The basis he only gave for that opinion that the life of the anticipated the life of the vehicle. equalled
That, too, fails to conform to the requirements substantial evidence when weighed in the light certain facts which are not i.e. this dispute, had been in use for product over four years and 51,000 miles. The and two appellee previous owners was that the accelerator had never once malfunctioned in that entire period time. Thus we are asked to conclude that a *13 “defect” which is unexplained, unidentified and effectually nonexistent 1990, between June of 1986 and August while the use, product was constantly was nevertheless present when the vehicle was first introduced to the market. For my part, I am unable to treat the as expert testimony substantial evidence. We have witnesses, said the “whether lay expert, cannot be as regarded substantial if are unable to they give any reasonable basis for their Ark. State opinion.” Hwy. Comm’n v. Carruthers, Ux, 1035, 1039, Et 84, 246 Ark. 441 S.W.2d 86 (1969). The testimony of experts if substantial are unable give “a sound and reasonable basis for their factual conclusions.” Ark. Roberts, State Hwy. Comm’n v. 246 Ark. 1216, 1220, 808, 441 S.W.2d 811 (1969). “Because a witness testifies to a conclusion on his does not part necessarily mean that the evidence substantial, him is given by when he given has not a satisfactory explanation of how he arrived at the conclusion.” Comm’n, Ark. Hwy. State 845, 851, 256 et al. v. Byers, 221 Ark. 738, S.W.2d 742 (1953).
To meet the test of
evidence,
substantial
of an
opinion
must
have a reasonable and logical basis. Wallace v.
Williams,
702,
(1978).
263 Ark.
Whether there is substantial evidence to a support fact, verdict is not a but one of law. Because a question witness testifies as to a conclusion on his does not part mean that the evidence him is substan- necessarily given by tial, not given when he has satisfactory explanation how he arrived at the conclusion.
* * * * differentiating “The is in between difficulty any evidence and evidence . . . substantial Must appellate close their judges eyes and their minds to the obvious fact evidence, nature, that in a case the from its particular very not have convincing, though could been it produced given result? Shall we affirm that such evidence was necessarily favorably upon by substantial because it was acted jury?”
Carruthers at 1041-1042.
In contrast to the requirements in those and a expressed good *14 cases, many other in this case amounts to merely conclusion, exists, an unvarnished that a defect with no opinion sound, attempt provide reasonable or basis for that logical That, submit, conclusion. I respectfully fails to rise to the level of substantial evidence and a judgment the verdict notwithstanding should been have ordered.