MANIGAULT ET AL., APPELLANTS, v. FORD MOTOR COMPANY, APPELLEE, ET AL.
Nos. 2000-2299 and 2001-0203
SUPREME COURT OF OHIO
October 9, 2002
96 Ohio St.3d 431 | 2002-Ohio-5057
PFEIFER, J.
Submitted January 29, 2002. APPEAL from the Court of Appeals for Cuyahoga County, No. 73147.
PFEIFER, J.
{¶1} Plaintiff-appellant, Virginia Manigault, individually and as guardian of her husband, Leon Manigault, filed a products liability suit against defendant-appellee, Ford Motor Company in 1995. The suit alleged that a defect in the Manigaults’ 1987 Ford LTD Crown Victoria caused the car to suddenly and unexpectedly accelerate. Manigault presented evidence that when Mr. Manigault turned the key in the ignition as the car was parked in his garage facing the street, the car suddenly shifted into gear and sped down the driveway, crossed the street, and crashed into another residence.
{¶2} At trial, Ford presented expert testimony that the alleged malfunction was not possible. The expert testified that even if the unexpected acceleration occurred, it was driver error that caused the injury. He testified that tests conducted on this type of vehicle demonstrated that, even with the car at wide-open throttle, a driver could stop the car by applying a mere 20 pounds of pressure on the brake
{¶3} Manigault appealed, asserting that the trial court erred by excluding various items of proffered evidence. The court of appeals affirmed the trial court‘s judgment on those issues and upheld the jury verdict for Ford.
{¶4} While the appeal was pending in the appellate court, Manigault‘s attorney discovered that Ford possessed a copy of the video of the braking demonstration shown at trial that included sound. The audio portion includes a voice, probably the same expert who testified during trial, saying “one hundred seventy-five pounds.” Manigault argued that the video indicates that a brake effort of one hundred seventy-five pounds was necessary to stop the vehicle. Based on that interpretation, which she considered new evidence, Manigault filed a motion for reconsideration. The court of appeals denied the motion, limiting its consideration to evidence contained in the trial court record.
{¶5} The cause is now before this court pursuant to the allowance of a discretionary appeal.
{¶6} There are several troubling aspects about this case, not the least of which is the fact that, for reasons never fully explained, the vehicle whose malfunction allegedly caused the accident was not available for inspection at trial. However, we cannot get past one simple fact: the defendant presented a videotape without audio to the jury when a copy with contradictory audio was apparently available. Because we find this issue dispositive, we need not address the other issues before us.
{¶7} At oral argument, counsel for Ford stated that Ford maintains a room containing documents and other evidence that relate to sudden acceleration incidents. This room provides plaintiffs with ready access to relevant information and eases the problems associated with providing the same information to multiple
{¶8} Providing this convenience to plaintiffs does not relieve Ford of its obligation to avoid misleading the court and to comply with the rules of discovery. We cannot condone the manner in which the video evidence was handled. Ford gave Manigault, and showed the jury, a videotape without sound. Ford solicited testimony based on the videotape from an expert witness. It is possible, as Manigault alleges, that the expert‘s testimony was directly contradicted by his own words on the audio portion of the videotape. At the very least, the presentation of the video without audio was seriously misleading.
{¶9}
{¶10} In its brief, Ford makes various arguments concerning the relevance of the video and the audio content. We will not consider them now. Ford will have ample opportunity to make them at the new trial.
Judgment reversed and cause remanded.
DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.
MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
COOK, J., dissenting.
{¶11} The majority reverses the judgment of the court of appeals based on the “one simple fact” that the Ford Motor Company “presented a videotape without audio to the jury when a copy with contradictory audio was apparently available.” In doing so, the majority ignores another simple fact: the issue of the videotape did not arise in this case until the appellants filed a motion for reconsideration based on the newly discovered evidence. The court of appeals correctly found that it had no authority to reconsider its decision based on evidence that was never part of the trial court record. Lamar v. Marbury (1982), 69 Ohio St.2d 274, 277, 23 O.O.3d 269, 431 N.E.2d 1028.
{¶12} Without ever explaining how the appellants’ injection of the new evidence was procedurally proper, the majority simply declares that a new trial is the appropriate remedy in this case. The bench and bar are therefore left to wonder whether today‘s decision endorses a heretofore unknown procedure under which a party may obtain relief from a trial court judgment by introducing newly discovered evidence in the court of appeals. If so, the bench and bar are further left to wonder when this new procedure applies and how it coexists with
{¶13} I respectfully dissent and would affirm for the reasons stated by the court of appeals.
MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing dissenting opinion.
LUNDBERG STRATTON, J., dissenting.
{¶14} In a brief opinion devoid of any statutory or case citations, the majority has reversed the appellate court‘s judgment on a simple, discretionary evidentiary issue. I believe that this case should have been dismissed as improvidently allowed because the issue on which the majority bases its decision does not reach the threshold test for discretionary appeals.
{¶15} The majority‘s reliance on the missing audio portion of the videotape is improper from a procedural perspective. Based on this “new evidence,” Manigault asked the court of appeals to reconsider its judgment affirming the jury‘s verdict for Ford or, in the alternative to remand the case to the trial court for
{¶16} Despite the fact that Manigault never raised the missing-audio allegation in her direct appeal, she raised that issue in her discretionary appeal to this court. The missing audio track is the sole basis for the majority‘s judgment granting a new trial to Manigault. Issues not raised below cannot be considered in an appeal to this court. Thus, the majority‘s reliance on the missing audio as the
{¶17} Manigault‘s case also fails to meet the threshold for certification to this court. “This court will grant a motion to certify only if there is a substantial constitutional question or if the case is of public or great general interest. * * * Novel questions of law or procedure appeal not only to the legal profession but also to this court‘s collective interest in jurisprudence.” (Emphasis added.) Noble v. Colwell (1989), 44 Ohio St.3d 92, 94, 540 N.E.2d 1381.
{¶18} This case does not involve a “novel” question of law or procedure or present an issue that is pertinent to the court‘s “collective interest in jurisprudence.” The majority is merely second-guessing the appellate court‘s decision to deny a motion for new trial. By rule and by necessity, that is not the role of this court.
{¶19} The majority, in its only legal citation in the entire opinion, attempts to transform the lower court‘s denial of a new trial into a constitutional issue by citing the Ohio Constitution‘s requirement that “every person for an injury done him in his land, goods, person, or reputation, shall have a remedy by due course of law.”
{¶20} Evaluation of the evidence is a task for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212, paragraph one of the syllabus. The determination of whether to grant a new trial is within the sound discretion of the trial court. Mannion v. Sandel (2001), 91 Ohio St.3d 318, 321, 744 N.E.2d 759. If Manigault was deprived of a remedy, it was by her own mistake in failing to file a
{¶21} Furthermore, the basis for the majority‘s decision to grant a new trial is unpersuasive. The majority‘s only specific finding regarding the missing audio
{¶22} Ford‘s expert, using the videotape in question as a demonstrative exhibit, testified that he had conducted several braking tests using a 1987 Crown Victoria, the same model involved in the accident in this case. Instrumentation was attached to the car to measure speed, brake pressure, and torque. The instrumentation provided a printed readout of the data for each test. The first three tests measured, among other things, the amount of brake pressure required to hold the car in place while the throttle was sequentially increased in each test. In the fourth test the car was moving when the brake was applied. Ford claims that it was the fourth test that required 175 pounds of pressure on the brakes to stop the car. Ford claims that the fourth test is relevant to this case because the acceleration incident occurred just after Mr. Manigault started his car and shifted it into drive. Therefore, Ford argues, because Mr. Manigault‘s foot would have been on the brake upon shifting into drive, the fourth test (that measured the brake pressure required to stop a moving car) was irrelevant. Ford argues that physics and common sense indicate that it is more difficult to stop an accelerating, moving car, as opposed to a car that is accelerating from a standstill. Ford‘s argument is certainly plausible and consequently a new trial is not warranted.
{¶23} Finally, the most critical aspect of this dissent is that Ford provided Manigault written data from the acceleration tests. Two of the readouts do appear to reveal that substantially more brake pressure was required to stop the car than the 20 pounds that Ford‘s expert claimed Manigault needed to exert to prevent the
{¶24} Therefore, I believe that this case utterly fails to provide an issue for the court to address because the issue ruled upon was not raised in the court below, the case does not meet this court‘s threshold test for review, and because Ford did not commit fraud in that the test in which the 175 pounds of brake pressure was required to stop the car was very likely immaterial to the accident herein. Remanding for retrial unfairly gives Manigault a second bite at the apple in already protracted litigation when none is deserved. Manigault‘s attorneys failed to use the data to cross-examine Ford‘s expert and failed to file the
Murray & Murray Co., L.P.A., Thomas J. Murray and Mary O‘Neill; Robert Zelvy & Associates and Robert Zelvy; Weisman, Goldberg & Weisman and Fred Weisman, for appellants.
Thompson Hine L.L.P., Elizabeth B. Wright and Jennifer D. Mingus, for appellee.