*1 740A.2d 102 LTD., NISSAN MOTOR CO. et al.
v. Judith A. NAVE et al. 1700, Sept. Term, No. 1998. Special Court of Appeals Maryland. 4,
Nov. *4 A. Dewey (Brigit Macksey Joel M. and & Piper Marbury LLP, brief), Baltimore, on the appellants. for (Kenneth Leahy
J. Brooks Michael Dulany Williams and & LLP, brief), Westminster, on Leahy, for appellees. Jr., Reston, VA, Wharton, F. Hugh Young, Michael T. Julia Arfaa, Nash, P.Á., R. Wharton Levin Ehrmantraut Klein & Curiae, Amicus for Annapolis, Liability the Product Advisory Council, Inc. Abramson, Siegel, B. The of
Harry Law Office Joel Colum- bia, III, George Jakubowski, Tolley, Dugan Timonium, Curiae, Maryland Amicus for the Trial Ass’n. Lawyer’s MOYLAN, Argued before SALMON and ROBERT N. Assigned), (Specially DUGAN JJ.
SALMON, Judge. 25, 1994,
On March Donald was driving Nave a 1989 Nissan truck when he crashed head-on into a jack-knifing tractor-trailer. accident occurred near The the intersection of Ridge and Braddock Roads in County, Maryland. Carroll As collision, result Nave pickup’s struck the assembly injuries. fatal sustained chest Nave’s estate and surviving family his members (appellees) filed suit in the Circuit Court for County against Baltimore appellants, Nissan Co., Ltd.; Motor Corp., USA; Nissan Motor and Nissan “Nissan”). Manufacturing USA Corp., (collectively, Appellees alia, allege, inter that the column in Nave’s pickup designed defectively was proper and that a design would have prevented Nave’s death.1 against
The case Nissan was jury. tried before a At the case, of plaintiffs’ close Nissan made a motion judgment. for The court reserved ruling its on the motion. motion The at the renewed conclusion the entire case and denied. At Appellees alleged complaint also in their that the column was negligently. granted manufactured The trial court Nissan’s motion for judgment as to that count. *5 trial, a verdict jury returned eleven-day of an the end $4,034,000. Nis- damages and awarded appellees favor of the verdict notwithstanding judgment for motions san made then this Nissan filed that were denied. trial and for new only we need but questions,2 four presents and timely appeal one, viz: decide for motions denying Nissan’s court err the trial
Did case? plaintiffs at the conclusion judgment and reverse. question to that “yes” answer We
FACTS A. The Accident Nave’s Death
1. The Cause of tractor-trailer, body his collided with Nave’s truck After steering into his and crashed move forward continued to Nissan, presented are: by questions the four 2. As worded by permitting the error commit reversible the trial court 1. Did introducing purpose of re-open their case for the sole Naves to improper evidence? rebuttal by excluding error evidence reversible Did the trial court commit 2. liability products his seat belt in this to wear of Nave’s failure was at issue and of the vehicle crash worthiness case where the belts mentioned seat [appellees’] witnesses and counsel where jury? in front of the and restraints (A) by admitting an error commit reversible Did the trial court by permitting by Gloyns untrustworthy hearsay Peter and article filled with inadmissi- to refer to notebooks [appellees’] witnesses articles; (B) by excluding report the National hearsay a ble ("NHTSA”) about Safety Highway Transportation Administration assemblies; (C) excluding defense exhibits numerous steering cautionary giving instruction by experts and in a prepared Nissan them; (D) signed state- excluding [appellees’] financial regarding by giving caution- party admission and which constituted ment admissions; (E) party use of other ary regarding the instructions Sturgill a witness when [appellees] Lee as permitting to call witness; as a and previously identified Sturgill (F) never been had Jones, testify about expert, Ian permitting [appellees’] any specialized edu- design when Jones lacked steering column cation, design? experience training column or judgment denying for Nissan’s motion trial court err in 4. Did the light of notwithstanding the verdict in judgment motion for prima and the prove case the Naves failed the fact that facie contrary evidence? to the verdict wheel. The cause of Nave’s death was blunt force trauma the chest as a result of his contact with wheel. Ross, According Wayne to Dr. appellees’ expert forensic biomechanics, pathology, kinematics, the force applied to Nave’s chest was enhanced because the did *6 not collapse and absorb the of impact. the Dr. Ross explained: contacts wheel,
[W]hen [Nave] the hub of steering] [his because it doesn’t collapse, just because it bends it upward, gets concentrated on his chest. He’s on pushing thing, somewhere, got go it’s to goes so it upward.... And it upwards. bends Consequently, thing instead of this collaps- ing, done, which it should have and instead of the steering wheel absorbing energy, the he energy. absorbs the That’s not supposed to happen. The column itself is supposed to absorb the energy instead of his chest.
In particular case, this what happened is the rim the [of steering deformed, the wheel] hub was exposed and the force is concentrated the center of his chest. It didn’t collapse, it bends upward and because it didn’t collapse, instead of the going itself, force into the column which is do, what it’s made the force went into the center of his chest.
Dr. Ross explained further the column essential- ly acted like a pole that was being shoved into the center of Nave’s chest at a of high speed. rate large, The concentrated aorta, force on Nave’s ruptured chest his causing internal bleeding and death. Severity
2. The of the Accident —Delta V (cid:127) There was much dispute between parties regarding severity impact that caused Nave’s death. The severity of an V, accident is using measured delta which is a number representing change in velocity that a undergoes vehicle during higher V, collision. The the delta the more severe According Jones, accident. to Dr. Ian appellees’ accident reconstructionist, by Nave’s truck experienced the delta V of vehicles that opined that drivers per hour. Jones 18.5 miles survive their range typically in this a delta V experience accident was collisions; thus, was that Nave’s opinion Jones’s awith equipped had Nave’s truck been survivable” “highly however, noted, column. Jones functioning steering properly beyond too it is high delta V becomes that once the from the driver protect column any capacity injury. or fatal serious Strother, reconstructionist, calcu- Charles
Nissan’s accident 27 miles approximately of the accident to be lated the delta V data, explained that Using various Strother per hour. that an accident with impact” a “severe collision was According potential.” miles hour has “fatal per V of 27 delta high was too for Strother, by Nave experienced the delta V survived, of how well the regardless to have anyone performed. *7 should have sur- statistically Dr. testified that Nave Ross hour if the per at a V of 18.5 miles vived the accident delta in had 3.5 inches. steering compressed Furthermore, it be reasonable to opined Dr. Ross that would of survived even at a delta Y that Nave would have conclude compressed if Nissan column had per 27 miles hour Ross, however, any not data or provide Dr. did properly. conclusions, why explain to his nor did he explanation support have compressed that the wheel should he believed addition, not an In Dr. Ross admitted that he was 3.5 inches. function of columns and had in the and expert performance characteris- knowledge concerning specific no tics of the Nissan column. by a chart created Wil- introduced into evidence
Appellees Highway at Trans- Bohley liam when he worked the National (NHTSA). The chart Safety and Administration portation in frontal collisions. It showed that compared fatality rates was between rate for accidents where the delta V fatality rate for fatality hour was 0.7% and that the per 18 to miles hour per V between 23 and 27 miles having accidents a delta was 2.6%. Both Jones and Ross relied on this chart in reaching their conclusion that Nave’s accident was survivable. Nissan,
Bohley, who testified on behalf of explained that the fatality rates in contained his chart were not trustworthy because on they very were based small numbers and did not account for (e.g., seating differences the accidents positions, size). sex, age, chart, vehicle Bohley, using another testified that accidents with greater delta Vs than 35 miles hour per “very are hard to survive” of 48% all fatalities occur in the delta V of 25 to 35 range per miles hour. Bohley conceded, however, that designs cost-effective can be built that fatality will reduce rates accidents with delta ofVs less per than 30 miles hour. Savage,
Carl expert Nissan’s on the design, development, columns, testing of steering testified that in accidents hour, where the delta V is below 20 miles per the energy by absorbed the front of end the vehicle is sufficient prevent injuries, serious and fatal and in such cases the steering column does not need to any energy. absorb For hour, however, delta Vs above 20 per miles Savage explained column must absorb some of of impact prevent order serious injury to the driver. After examining accident, the evidence and data concerning Nave’s Savage concluded:
This is a severe crash. This is a going crash that there is be a certain percentage people that will in this type die crash.
Dr. Charles Hastell on testified behalf of Nissan as an expert the fields of injury biomechanics and Dr. causation. *8 Hastell, using Strother’s delta V calculation of 27 miles per hour, 20,400 pounds calculated that Nave had of energy kinetic to dissipate just prior to his collision steering with the wheel. Dr. Hastell noted that the maximum human being force a 2,000 can tolerate on his chest is pounds (assuming that the chest) fairly force is distributed over the and Nave was exposed therefore to a force ten times the normal human such, the collision as As Dr. Hastell classified level. tolerance accident.” “very serious Design Steering B. Column Steering Design Column
1. Basic Elements of steering that a column de- are three characteristics There energy the amount of have in order to reduce sign should First, in an when the to the driver accident. transferred column, the column itself steering contacts the body driver’s “collapse” or “compression” downward. This compress must energy impact, preventing of the absorbs much Second, chest. being imparted from to the driver’s Load large must also have a “load area.” steering assembly steering wheel that area refers to the surface area during with the driver’s chest an comes into contact actually large spreads A column with a load area steering accident. area of the driver’s larger the force of the collision over harmful to than a A force is less the driver spread-out chest. in one area of the driver’s chest. force that is concentrated column is a self- steering The third feature of an effective steering A wheel con- aligning steering self-aligning wheel. body upon impact. forms to of the driver’s This shape (1) it: injury reduces the likelihood of serious because feature (2) to; is exposed maximizes the load area that a driver’s chest or reduces the likelihood that the column will bend (3) body fail to hits compress; and insures the driver’s an (axially) angle column head-on rather than at (non-axially).
2. FMVSS 203 Motor
Steering performance governed by wheel is Federal (FMVSS) requires 203. Safety Vehicle Standard FMVSS that all columns vehicles sold the United States undergo pound body a test where a 75 block3 strikes body tuffy” large shaped The block is called a “black and is a block wrapped like a human torso that is in foam. *9 steering assembly per at 15 miles hour. Under the 203 regulation, impact generated the forces on the block body may 2,500 not pounds.4 exceed There was no dispute that the axial compression design used the 1989 Nissan pickup complied requirements. with FMVSS 203 Compression Design C. The Axial Design 1. The Nissan
Nissan an axial employed compression steering column de- sign pickup. its 1989 In this design, shaft is of an up made outer and inner shaft with a ball bearing that creates resistance between the to prevent shafts the column from collapsing driving under normal In an conditions. acci- dent, when body the driver’s contacts the steering wheel at a high speed, rate the force of the body driver’s overcomes produced by the resistance the ball bearing and the column collapses. Essentially, works like a telescope —' a sufficiently large when amount of applied force is to the by body, wheel the driver’s collapses inner shaft into the outer shaft. This compression allows to absorb thereby reducing impacted the force onto greater the driver. The the amount of column collapse, greater the amount of energy absorbed. Alleged by Appellees
2. The Defect Jones, Dr. who was also as an qualified expert the design assemblies, and function of steering wheel admitted that he designed had never or a steering tested column. His opinions were based on his review “voluminous” engineering litera- discussing energy ture absorption steering columns. Nev- 2,500 pound represent 4. The limit does not the maximum amount of force human chest can tolerate in an accident. Because the torso, tuffy rigid black block is more than the human when a 203 test is tuffy, generates higher run on a tuffy black it a much force on than 2,500 would pound figure be exerted on a human torso. The 2,000 approximately pounds selected because it correlates to of force on average an pounds human torso. Two thousand is maximum amount of that a force human can sustain on his or her chest. ertheless, that, though even the Nissan opined he Dr. was defective. Jones testing, Nissan’s passed that: testified designed compress column is downward
[The Nissan] travel, if it works inches of approximately it has seven properly. *10 axial compression] the with Nissan problem [the
And words, is, in they loading, if are ... nonaxial other columns so that it loads happen get body to the oriented you don’t column, what it the the column bends. And straight down tube, is, tube, they if you within a and bend the it’s tube to slide within each other. going are not in this case. The exactly happened that’s what And the unnecessarily high column loads on you put binds. So they steering ... when ... hit the wheel. occupant Later, Jones stated: rim in an accident is ... the bottom of this happens
What loaded, wheel, turns and then steering tends to be which the ... it around this pushes up, it and then tends bend point. attachment
Now, column, if you going collapse. bend this it’s not Actually, happens. collapse axially, that’s what It doesn’t column, you get top too much load on the end of the which is what in the case. happened Nave
[*] sis * in ... it collapsing axially, So ... terms of the column downwards, only quarter moved a of an inch whereas it ..., V, according my should have moved somewhere delta in of region the three and a half inches.
Finally, Jones concluded:
My steering assembly is that ... is defective opinion because it doesn’t the level of that one provide protection expect would a frontal collision. provide protection
The reason it doesn’t is because work, axial column collapse pro- doesn’t binds and on the unnecessarily high occupant. duces loads opined Jones the Nissan also was defective its was too small to from spread because load area effectively. point the accident He testified on this as follows: Now, accident, Q upon this based the examination of wheel, you any opinion about do have the [load] area this accident?
A What’s clear to me this accident is that the chest column loaded the center and so the wheel did not an effective contact area.... provide cross-examination, that if you On Jones said could an area, axial with a compression high load then it would be better for the driver. Peterson,
Billy another on plaintiffs’ expert columns, functioning also criticized the Nissan because he that it was not designed believed to self- with align upon impact the driver and because the column had *11 high tendency compress. to bend and often failed to Peter- cross-examination, however, son admitted on that he had column, never tested the Nissan did not know the force column, necessary to bend the and did not know the energy in Nave’s column absorbed the crash. opinions regarding
Peterson’s and Jones’s the defectiveness of the Nissan axial were compression design primarily based on a 1974 study by Gloyns conducted Peter while he was an Ph.D. at the engineering University Birmingham, candidate England. Gloyns performance looked at column in that approximately one hundred accidents had occurred on highways. injuries He that fatal England’s concluded should not occur at delta Vs less than 30 miles if per hour there is a properly functioning steering Gloyns column. found that axial in compression performing testing columns were well 203 but in higher injury that those columns had a rate of serious real- accidents, in producing world some cases were fatalities in Gloyns accidents with delta below 30 miles hour. per V’s loading compression that non-axial of the axial col- theorized upward bending the column to bend and this causing umn was preventing compress- was the inner shaft of the from as Gloyns down into the outer shaft. referred to this ing loading preventing effect. Because non-axial was binding properly, columns from compression compressing axial absorbing energy energy was steering wheel was not —this driver, causing of the serious being imparted then the chest that, injury. Gloyns concluded because this effect was not being testing, seen the 203 test was an ineffective of the wheel efficacy performance measure work, Gloyns’s columns real-world collisions. Based on it opinion both Jones and Peterson testified that was their not what replicate happens FMVSS did real-world accidents and a wheel still be design could defective Thus, if it passed they even FMVSS 203. concluded that the despite Nissan the fact it defective met requirements tendency federal because the had a bind. Hoshina, designated
Chitoshi Nissan’s corporate represen- tative, testified that Nissan’s col- goal designing steering comply umns was to with federal standards. Hoshina said the (which following in his deposition was read into evidence at trial):
QUESTION: At the Nissan was considering target time its performances, and it would be back in period this time of ’82 ..., to ’83 is it fair say regard that with to the energy column, absorbing steering target performance being specified by Nissan compliance would have been with 203? satisfy ANSWER: To 203....
QUESTION: objec- ... you agree major design Would safety tive from a of of view of an occupant point absorbing steering provide column and wheel is to enhanced safety to the occupant variety a wide of accidents real world? you say design objective, it is rather
ANSWER: When But when it to the actual respond. difficult comes target, then the is to 203 ... target satisfy criteria. QUESTION: Can a column that with 203 ... still complies defectively designed safety point be considered from a of regard protection occupant? view with to the of an ANSWER: I don’t think it can be defective. I don’t think there is a defectiveness. this testimony, expressed
When asked about Peterson differ- view, viz: ent Peterson, Mr. an
Q you opinion do have whether design objective comply with is deficient from an [to 203] energy absorbing—
A That is not appropriate decision to make when you designing something. components are The of the vehi- cle are to be first to occu- supposed designed protect pants going using components. who are to be those Of course, standards, it necessary is that it meets federal but that shouldn’t be the primary target.
3. Nissan’s Position Bohley
Nissan William as an expert called on the role and of Bohley effect FMVSS 203. had worked for the NHTSA for at twenty-seven years agency and was when it first promulgated Bohley FMVSS 203 testified that the study NHTSA conducted a in 1981 to assess the effectiveness study of the 203 standard. That compared injury fatality rates for vehicles made before and after the 203 standard went into effect and found that the number of fatalities and serious injuries an by average had been reduced of 38%. The study performance NHTSA also looked at the individual specific steering designs. study The found that all 203-compliant steering designs agency wheel that the evaluat- ed, including compression equally axial were effective designs,5 Savage, expert testing 5. Carl on the Nissan’s columns, compression wheel testified that the axial columns evaluated
105 in injuries in number of fatalities and serious reducing the nothing to indicate that study real-world collisions. The found susceptible binding axial columns were more to compression designs. column Based on the results of than other concluded that FMVSS 203 was an study, the NHTSA safety effective standard.
Bohley Gloyns’s criticized conclusion that FMVSS was assessing steering collapse performance. ineffective in that small Bohley Gloyns relatively sample noted used acci- Gloyns approximately accidents. looked at one hundred while used data from the National study dents the NHTSA (NCSS) Severity Study compiled Crash that extensive infor- 30,000 concerning mation between 1975 and 1979 more than collisions. to According Bohley, sample the NCSS data was large enough to In statistically Gloyns’s findings.6 invalidate addition, Bohley Gloyns’s criticized data because he only injury looked at accidents where was or there serious fatali- ty excluded from his data accidents where the driver was —he injured. not In Report, the NHTSA statistics were calculated by comparing causing injuries the number of accidents or fatalities with resulting injury. accidents no serious cross-examination,
On Bohley explained that the NHTSA report also found that all 203-compliant steering columns analyzed were still susceptible binding subjected when heavy forces that non-axially. load the columns Bohley agreed that the NHTSA report suggested that FMVSS 203 could be improved by having the test simulate non-axial Nevertheless, loading that, situations. Bohley noted even though the report proposed improvements to FMVSS that report very
in the NHTSA were similar to the 1989 Nissan compression axial column. fact, Gloyns In sample himself conceded that his initial size was too testified, statistically significant. small to make his results however, Dr. Jones Gloyns published follow-up paper a 1979 in which he this, sample. doing added another 121 accidents his data After Gloyns got paper, the same results as he did in his initial but this time opined statistically he significant. that his results were ultimate conclusion safety, report’s would further enhance standing safety that 203 alone was an effective standard. Savage Safety Develop- Carl worked Research and (GM) During at Motors from 1968 to 1977. ment Lab General safety performance he evaluated the period actively and its designed by competitors columns GM columns. participated design process for GM *14 design, development, him as an in the expert Nissan called testing steering Savage of wheel columns. testified and of at steering design requires an wheel load area effective centimeters).7 (193.548 square inches The square least 30 (200 square Nissan column had a load area between 31 inches centimeters) (298.7739 square and 46 inches square square centimeters).8 Savage steering also testified that the wheel on steering column was because the self-aligning the 1989 Nissan kinks in them that allowed the wheel to spokes wheel’s had body. Savage’s conform to the driver’s overall bend and compression design conclusion was that the 1989 Nissan axial good, steering design. was a non-defective column criticism of the 203 stan- Savage disagreed Gloyns’s with very good 203 was a test of the opinion, dard—in his FMVSS measuring to the purpose protection hardware for the in to According Savage, driver’s chest extreme situations. steering system to be a severe test of the designed 203 test is testing binding for whether columns are and good and is heavy can loads. they whether sustain Nissan col- performance of the 1989 Savage explained opinion in Nave accident. was that Savage’s umn severe, such a load to be very causing large accident was injury when hit Savage that a driver can avoid serious chest testified 2,000 steering up pounds the load area on the wheel with a force of if square in is over 30 inches size. pickup to be calculated the load area of the 1989 Nissan 8. Peterson Savage square while calculated the load area approximately 31 inches trial, initially the load square be 46 inches. At Peterson calculated (61.13 inches), square square but he later to be centimeters area 394.4 corrected that number. no onto the wheel that would placed Savage explained: properly. have been able function and it was ... compress- column started here [The Nissan] also, during compressing pro- And at some time ing. in we have a very bending cess a severe load came here. So here, situation than would very high loading higher you normally expect. functioning supposed
So we have a column that is like it’s only point changed to and so the is that the direction is bending getting we are load here.... here, what we have is a severe situation more very
So that what you normally anticipated. severe would have ... a column its seeing functioning are which is like [W]e to, ... supposed getting partic- but it’s overwhelmed this ular accident. Hastell,
According expert to Dr. Nissan’s biomechanics causation, in for Nave to have survived the injury order collision, column in the would have had to Dr. majority energy. absorb the Nave’s kinetic Hastell was “non-survivable” because he opined accident *15 of no in steering knew column existence that would have been dissipate large energy able to the amount of kinetic that Nave just prior striking steering exerted to wheel. His testimo- ny regarding point this was as follows:
I am not a I no steering design expert, wheel but know of energy such wheel existence that would allow management any any over kind of distance and manner going energy that is to allow survival under this kind of an challenge. Self-Aligning Design
D. The Cannister Design 1. The self-aligning to show that the cannister
Appellees attempted design9 design was a viable alternative that Nissan could have trial, Throughout variety the course witnesses used a of differ- design, including, self-aligning ent terms to refer to the cannister but have made the pickup into the 1989 would
incorporated Nave’s Dr. Jones de- prevented vehicle safer and death. scribed this as follows: a column that has a self-aligning is] cannister [The In steering assembly. can at the of the other top crushable words, column, steering wheel and the there is between the can, which has convolutions on it. It’s about a seven-inch that column is that of a beer can. And the idea of size effect, crush that can. you, self-aligning In to demonstrate how the cannister order Ross, works, Jones, Dr. with the assistance of Dr. 68, of four frame- plaintiffs’ Exhibit which was a set created how a cannister by-frame showing self-aligning illustrations body with if it had been column would have interacted Nave’s into his truck. Exhibit 68 showed Nave’s incorporated wheel, wheel then body contacting the cannister aligning body, compressing properly to his binding. no or bending with Jones, key to one of features of the
According Dr. because, if ability self-align cannister is its the wheel area, making does this increases the load the steer- self-align, absorbing effective at in an accident. ing more He stated: an components having is two effective steer-
[T]here [sic] load, You not have to limit ing assembly design. only you large but also have to make that the chest has a sure enough contact area. column, can which has the why
Which is the classical load, higher works better the field.... [F]rom studies, cannister [Gloyns’s] design] appears spread [the effectively, although the load more the load from the column is high. *16 column,” "collapsible "self-aligning type limited cannister a
not column,” to: column,” "self-aligning energy absorbing can a "classical unit,” cannister-type "energy absorbing and an cannister column.” that if a cannister had self-aligning Dr. Jones calculated in as illustrated Exhibit 68 the load area on Nave’s performed column would have body high, properly would have been the inches, have the 3.5 and Nave would survived compressed however, admitted, that Dr. Jones he had never accident. of an axial any compare energy absorption tests to the done he column with a cannister and that compression regarding on to his relying Gloyns’s support opinions tests design. of the cannister performance opinions, testifying Dr. Ross concurred with Dr. Jones’s represented Exhibit 68 is, happen we to in this case. That [Nave]
what wanted functions, properly wheel and the column loads but it functions because we have what we refer properly chest, is, aligns up as a wheel. That it over his self-aligning does, essentially he gives range a wide have contact and in opinion, our survives the accident.
Dr. Ross that Nave would have survived the accident at added if his truck per either a delta V of 18.5 or 27 miles hour had properly functioning self-aligning design been with a equipped Ross, however, in “design” shown Exhibit 68. Dr. did like Nave would have the accident had a explain why not survived used, column like the one Exhibit 68 been nor did he or conclusion. provide any up data numbers to back his Furthermore, cross-examination, on he that he was admitted columns, not an on the function of expert investigated performance that he never tested or had column, and that were the any steering Gloyns articles opinion self-aligning basis for his on how a cannister column have performed would accident.
Peterson testified that Exhibit 68 what would represented if 1989 Nissan truck happened have Nave had equipped proper design. been with a cannister He stated: Well, with the properly functioning self-aligning you can collapses. wheel see the whole column itself part The cannister here has decreased size consider- course, ably, absorbing energy, and of that is which would *17 110
have, energy potential reduced the certainly, tremendously to Mr. Nave. cross-examination, that he not recall Peterson admitted did
On did not know what design, the of the cannister specifications is for that had energy absorption design, the maximum Peterson testified that the never tested a cannister column. self-aligning the cannis- only regarding tests that he knew by Gloyns those tests conducted and he relied ter column were forming regarding perfor- his opinions on those tests design. mance of the cannister design the cannister as a coffee can Savage described wheel, fixed, non-collapsing on of a steering top sits behind the works, Savage column. As to how the ex- plained: duty. only Not does the cannis- does double
[The cannister] itself, an energy ter the wheel but also serves as align [it] absorption element the car. itself, Savage than cannister testified that there
Other cannister column self-aligning were no other features As to the issue of designed energy. that were to absorb life, a cannister would have saved Nave’s whether Savage opined: not have prevented [Nave’s
The cannister would if enough. you it does not contribute Even because death] do, about what it would it wildly optimistic assumptions did overwhelming not for that momentum compensate could that we have here. Gloyns’s Findings Gloyns performance,
In his on column study involving Capri,10 frontal collisions the Ford analyzed also cannister column. self-aligning vehicle that used a Kingdom Capri primarily sold in the United 10. The Ford was a vehicle Jones, but, imported according to Peterson and Dr. that vehicle was Mercury Capri. during the 1970’s and sold as the into the United States testing Capri passed have in order Peterson testified that the must in the United States. to have been sold Ill cannis- self-aligning of the Gloyns compared performance column compression in the to the axial Capri ter that, delta Y of for accidents with a Ford Cortina and found hour, Capri produced no fatalities per 30 miles less than than the Cortina. injuries chest substantially had fewer hand, 203 tests on the also conducted Gloyns the other On producing higher it much cannister and found that was Capri and, in compression than the Cortina axial chest loads short, In instances, failing testing.11 Capri some *18 design performing was Capri that the cannister Gloyns found in column real- compression than the Cortina axial better column was performing but that the Cortina world accidents studies, Gloyns his concluded testing. in 203 Based on better compres- to the axial design superior cannister was that the safety was an ineffective and that the 203 test design sion the cannister’s better because it was not replicating standard in accidents. real-world performance that cannister columns Savage Gloyns’s criticized conclusion columns. compression Savage than axial were more effective Capri that the in load area between the opined disparity was explained why Capri wheels the the Cortina accidents. better than the Cortina real-world performing Capri performed the reason that the According Savage, was 31 square accidents was because its load area better (200 centimeters), which was above the 30 square inches required inch minimum load area for an effective square contrast, perfor- In the Cortina’s system. wheel inches) (23.25 square its load area poor mance was because Gloyns’s findings, argues Nissan in its brief that the 11. Based on "failed was not a viable alternative because it cannister legally in the United States.” This FMVSS 203 and could not be sold light appear if evidence is taken in the most does not to be true the appellees. Gloyns only Capri to the found that the cannister favorable addition, testing that the failed 203 in some cases. In Peterson testified testing Capri passed have in order to be sold in the Ford must Furthermore, that, Savage United States. testified between 1972 1974, design. Chrysler employed a cannister Because Barracuda pass testing, is United States must it all vehicles sold design met the 203 reasonable to infer that the Barracuda cannister requirements. such, inch As square was well below the 30 benchmark. Savage Gloyns’s necessarily concluded that results did not indicate that the cannister was more effective than an rather, Gloyns’s findings compression design; axial could be a function of explained purely differing as load areas two columns he specific steering tested. Savage’s Testing earlier, Savage
As mentioned worked at the GM Research Lab when that company conducting intensive research into at design. During his tenure the GM Lab, Savage opportunity Research had to test and com- pare compression axial columns with cannister columns. With columns, to cannister regard Savage testing testified GM that the performance revealed cannister had inconsistent —in loads, perform yield some tests cannisters would well and low slight changes high but lead to would loads acceptable were well over human tolerance limits. on Based findings, these researchers at the lab questioned GM reliability design. of the cannister
Savage’s opinion, based on the research he had at conducted GM, compression was that the axial' design was better than *19 that, design. Savage the cannister noted after the Re- GM completed search Lab had its of a of testing variety steering column designs, opted compression GM to use an axial design in its of vehicles and that over 99% the vehicles use in the United States some variation of employ compression the axial design. Savage also testified that the GM axial compression very was to the steering design similar that Nissan used its 1989 truck. Report
4. The NHTSA study The NHTSA of FMVSS 203 evaluated the performance compression of five axial designs and one self- cannister All of aligning design. designs the studied complied n with approximately the 203 standard and cost- the same. The study found that each of six studied columns had lower injury rate when to vehicles "with compared non-203-compliant found that the individual study The also steering columns. 52%. The varied from 23% to injury reduction rates column studied, designs of all the column found that study rate at 23%. the lowest effectiveness cannister had had the lowest observed though the cannister Even effectiveness, statistically significant. not the difference was 203- Overall, that all of the study concluded the NHTSA job of doing good were that were studied compliant devices onto a driver’s chest and there imparted reducing was any one was no evidence than others. more effective compression analyzed also the amount study
The NHTSA if of the any columns to determine one of the six each study to bind. The found tendency had a greater columns dis- compression had similar that all of the columns studied that, V’s, binding delta occurred sufficiently high tances and at results, Based on these in all of the columns studied. not that the six columns did differ study NHTSA concluded nothing tendency in their to bind and there substantially more compressing columns were to indicate that cannister axial columns. compression than con- study that the results of the NHTSA
Bohley testified conclusion that the wheel cannister Gloyns’s tradicted than axial com- easily collapsible is effective and more more columns. He stated: pression any
The cannister was not found to be more effective than I think it’s any preventing injuries, of the others comprehensive critical to note that this statistical evaluation that the wheel support does not claims of earlier studies and substan- substantially prone binding cannister is less tially expensive. more by Gloyns Mr. performed
These are the studies were *20 in Kingdom. accident crashes over the United upon based more report findings believed that the NHTSA were Bohley findings than because the NHTSA data Gloyns’s reliable large enough statistically Gloyns’s sample was invalidate Also, that, Bohley study, data. noted unlike the NHTSA not of axial Gloyns’s compare injury studies did rates in compression injury and cannister columns to the rates in In safety vehicles with no features their columns. addition, Gloyns not include his accidents sample did data involving axial and cannister columns that result- compression injury. Bohley ed no serious testified: safety
When one looks at risks one needs to look at the occupants exposed particular type that are to a of crash and injured compare Merely by those that are those rates. looking people give you at the who were killed doesn’t an safety system. assessment of the overall risk of a short, In Bohley opined study that the NHTSA was more Gloyns’s findings reliable than studies and that the NHTSA Gloyns’s self-aligning refuted contention cannister at design preventing injury. was more effective serious Designs E. Other also at
Appellees regarding introduced evidence trial following designs: four other alternative Compression Design
1. Newer Nissan Axial With Self- Aligning Steering Wheel of a newer Nissan axial com- Appellees presented evidence pression design incorporated pickup into trucks (this in late manufactured was not Nave’s truck).12 After viewing drawing the newer it, reading opined Nissan’s studies of Peterson that the newer design was safer and more effective than the axial compres- design ap- sion Nave’s truck because the newer peared self-aligning steering to have a wheel. Peterson also cheaper testified that the newer looked to manufacture purposes appeal 12. We assume for of this that the newer Nissan axial compression design that was known at the time it was one to Nissan designed engineered Nave’s truck and that Nissan could have design. using the vehicle this newer *21 admit- truck. Peterson in Nave’s design used than the older the newer or tested however, never seen ted, that he had absorbing characteristics. know its nor did he design, Collapse Mecha- Compression Column With Axial Up the Column nism Moved Further where the design an alternative briefly Dr. Jones discussed column. The up further was moved collapse mechanism un- collapsing from the column collapse prevents mechanism by the force triggered and is driving normal conditions der The steering column. crashing into the body the driver’s in an accident allows mechanism collapse release of the Jones, the According to likeli- compress. steering column collapse by placing binding column is decreased hood a such, that a opined As Jones closer to the driver. mechanism the column than up further collapse with mechanism design a prone safer and less would be design the 1989 Nissan binding. Design Compression Axial Ball
3. The GM as a viable design to the ball briefly Peterson referred GM Savage described the pickup. for the Nave design alternative design very that was design compression ball as an axial GM compression to the axial design performance similar in and primary Nissan The pickup. column used Nave’s 1989 num- designs Nissan was the difference between the GM and design bearing Nissan used one ball bearings ber of ball —the forty from sixteen to balls. design while the GM varied however, be- design that small differences Savage explained, designs required design Nissan the GM tween the GM and design Nissan used bearings use ball fact that the more —the with to the bearings respect fewer ball made no difference performance. column’s Design
4. The Mesh was another safer design that the mesh Peterson testified into incorporated Nissan could have alternative as truck. Peterson described Nave’s 1989 one upon impact where the strokes crushes metal mesh located inside the column. Peterson that this opined performed would have better than it likely the Nissan because was less to bind in a collision. analyzed and tested mesh while at
Savage designs working Research Lab gave following testimony GM about it: I
Q design, was GM mesh believe? [T]here *22 Yes, A there was. it, I
Q got good And as understand GM results from that in early days? it,
A Yes. There were some drawbacks to but the mesh good design. was It did have some particular concerns, very good and it was not at But bending along. it yes, very satisfactory, yes.
Q design is not at [The mesh] all same as the Nissan design, is it? there,
A No. I—I think significant there’s a difference that there is more of susceptibility bending of [the mesh] column. As far as a preference standpoint, it’s a good It design, though. performs well a crash.
STANDARD OF REVIEW In reviewing denial of a motion for an judgment, court, court conducts the appellate inquiry same as the trial viz: trial court assumes the truth of all credible
[T]he evidence therefrom, on the and of all fairly issue inferences dedueible them in the light and considers most favorable to the party If against any whom the motion is made. there is legally evidence, competent slight, relevant and however from issue, which a rational mind could infer a fact then a trial court invading province jury by would be of the decíar-
117 circumstances, the case In such a directed verdict. ing a motion for directed jury and to the be submitted should verdict denied. (U.S.A.), Inc., 283 Md. Sales Impala Ltd. v. Platinum
Impala
Washing-
omitted);
see
(1978) (citations
296, 328,
887
389 A.2d
89,
Reading,
v.
Md.App.
109
Transit Auth.
Metro. Area
ton
Partnership,
v. ADM
106
Martin
(1996);
44
99, 674 A.2d
grounds,
rev’d on other
(1995),
652, 657,
666 A.2d
Md.App.
(1997).
84,
STRICT 337, 363 Corp., Motors Md. v. General Phipps In 402A of section (1976), Appeals adopted of the Court A.2d (1965)13 (Second) allowing consum of Torts the Restatement the manufacturers to sue by products defective injured ers Phipps theory. The liability under a strict products those products for such a elements forth the essential Court set liability action: provides: 402A
13. Section Physical or Harm to User Liability Seller of Product for Special Consumer *23 (1) any product a defective condition unreason- One who sells subject property ably or to his is dangerous to the user or consumer thereby to the ultimate user or liability physical caused for harm consumer, property, if or his selling product, (a) and engaged the business such the seller is (b) the user or consumer without expected to and does reach it is it is sold. change in the condition in which substantial (1) (2) applies although The rule stated in Subsection (a) preparation possible care in the and exercised all the seller has product, of his and sale (b) bought product the from or has not the user or consumer seller. any with the into contractual relation entered (Third) recently adopted Restatement the Law Institute The American (1997), exclusively prod- Liability which deals with of Torts: Products substantially than section provides more detail liability law and uct Maryland (Second) Neither the of Torts. the Restatement 402A of yet adopted or any appellate court has Appeals other state Court of nor Neither the new Restatement. rejected provisions of specifically the either in any to this new Restatement parly made reference in this case thus, here, not considered it. we have lower court or the 118 (1) recovery,
For it must be product established that inwas a condition at the time that it left the defective (2) seller, or control of the possession that it was unreason- (3) consumer, ably dangerous to the user or that the defect (4) injuries, was a cause of the product that the was expected to and did reach the consumer without substantial in its condition. change 344, added); (emphasis
Id. at
There
three situations in which a
in a
product is
(1)
“defective condition”:
product
there is
flaw the
at the
(2)
intended;
time of
it
making
dangerous
sale
more
than
manufacturer of the
fails to
product
adequately
warn
of a risk
(3)
or
way
hazard related to the
product
designed; or
Sears,
has a
product
design.
defective
See Klein v.
Co.,
477, 485,
(1992);
Roebuck &
92 Md.App.
In design
Maryland
defect
employ
courts
“risk/utility” balancing test to determine
a specific
whether
unreasonably dangerous.14
is
See Phipps,
119
Ltd.,
Indus.,
Md.App.
74
Heavy
v. Kawasaki
1276;
Ziegler
a
is
622-24,
inquiry
The
“whether
613,
Maryland requires plaintiff six elements: prove that is than of an alternative safer
1. The existence suspect product; the used in the feasibility product of technological manufacturing 2. The time suspect the at the the with alternative manufactured; product was conducting balancing, suggested Phipps the Court a consider-
15.
In
this
following
the
factors:
ation of
seven
desirability
product
utility
the
of the
1. The usefulness and
—its
public
user and
as a whole.
to the
safety
product
aspects
2. The
of the
likelihood that it will cause
—the
injury.
injury,
probable
seriousness of the
availability
product which
meet the
3. The
of a substitute
would
as
same need and not be
unsafe.
ability to
the unsafe character of
4. The manufacturer’s
eliminate
product
impairing
making
or
it too
its usefulness
without
utility.
expensive to maintain its
ability
danger by
user’s
avoid
the exercise of care in
5. The
product.
use of the
dangers
in the
anticipated
The user’s
awareness of the
inherent
avoidability,
general public knowl-
product
because of
and their
of
edge
product,
of
condition
or
the existence
the obvious
of the
warnings
of suitable
or instructions.
manufacturer,
feasibility,
part
spreading
of
of
7. The
on the
liability
by
carrying
setting
price
product
or
loss
insurance.
4,
Wade,
Phipps,
(quoting
Strict Tort
3. The of the materials required produce to the alternative design;
4. production The cost of of a product that incorporates
the design; alternative price 5. The to the consumer of a product incorporating design; alternative 6. The chances of consumer of acceptance a model incorpo-
rating
plaintiffs
suggested alternative design.
Singleton,
115;
See
685
at
Ziegler,
625,
F.2d
Furthermore,
in “automobile crash-worthiness”
cases,16 where
alleged
design defect did not cause the
accident,
initial
plaintiffs have the burden of establishing that
the design
by
used
greater
manufacturer caused
injuries
to the victim than would have occurred had a proper design
America,
been
Volkswagen
used. See
Inc. v. Young, 272
of
201, 206-07,
(1974);
Md.
Valk,
ANALYSIS Self-Aligning Design A. The Cannister
Appellees spent
the bulk of their time at trial at
tempting
show that the self-aligning
design
cannister
was a
viable alternative design that would have saved Nave’s life if it
had
incorporated
been
into his 1989 Nissan pickup truck. We
conclude, however, that appellees failed to produce sufficient
(sometimes
cases),
16.
In crash-worthiness cases
called second collision
plaintiffs
alleging
are not
that a defect in the
of the automobile
accident;
rather,
caused the
curred,
the claim is that after the accident oc-
injuries
defect
occupant
caused increased
to the
when he or she collided with the interior of the vehicle. See Volks-
America,
201, 206-07,
wagen
Young,
Inc. v.
272 Md.
In their Exhibit 68 appellees plaintiffs’ what a column would self-aligning trates cannister if like in a 1989 Nissan truck. This is look installed Jones, mischaracterization of that exhibit. Dr. the creator 68, when Exhibit cross-examined about dimensions exhibit not emphasized pur- alternative that the did “design,” Instead, to show actual he testified that port dimensions. body how Nave’s would purpose exhibit’s was illustrate if had interacted a cannister column such have with Ross, truck. who Dr. installed in Nave’s Dr. assisted been 68, also 68 was creating Exhibit testified Exhibit Jones “simply an illustration” to demonstrate how a cannister col- umn would have functioned in the Nave accident. No one testified that a 1989 Nissan truck designed could be with a self-aligning cannister steering column as shown Exhibit 68.
The case of
v.
Troja
Co.,
Black & Decker Manufacturing
101,
(1985),
Md.App.
Although [plaintiffs expert] suggested that Black and Deck- er could have incorporated a “safety feature,” interlock which would have prevented [plaintiffs injury], he acknowl- edged that he had no experience radial arm design. saw expert] [Plaintiffs unable furnish a design demon- *27 strating the actual placement of such a system, or to explain how it integrated could be in the saw without interfering with the functions [of saw]. 109-10,
Id. at
Appellees if his truck pickup the accident Nave would have survived that appellees column. While self-aligning a cannister had pro- to that the cannister evidence show introduced compression design, appel- fewer than the axial duced deaths of the improved performance not that the did establish lees life. have saved Nave’s self-aligning cannister would “would that cannister Although Peterson testified potential to have, energy certainly, tremendously reduced in Nave,” testify that this reduction did not Mr. Peterson words, In other any would have made difference. energy that testimony that indicates nothing is in Peterson’s there that been of such degree in would have this reduction survived the accident. Nave would have have testify Dr. Ross that Nave would survived did used, but like the if a had been accident cannister alterna- expert Troja, did not indicate what the plaintiffs he be, that any nor basis for provide would did he tive Ross, four frames illustrated using Dr. conclusion. 68, Exhibit following discussion: engaged Ross, you an to a opinion Doctor do have reasonable Q of and foren certainty the fields biomechanics degree if have the 1989 pathology, sic would Mr. Nave survived functioning[17] truck with equipped properly [a] aligned self wheel?
A Sure.
Q At a Delta V of 18.5? 18.5, get yes. you A At a V of When [Frame] Delta here, begins his contact rim of body Two where Three, wheel, when the under and then surface [Frame] crush, collapse, the wheel begins begins the column "properly is a between a It should be observed there difference product” designed product. properly functioning properly and a A malfunction, designed product may of course. *28 lines basically up with his chest. He may moving be in sort of the ways, goal different but this self aligning behind So, to line chest. up simple. wheel is with the it’s real The it goal is to line so can up you disburse the load over the shoulders, chest, over the over a wide of the body. area area you got, big guy, The more he’s a agot he’s lot of area good and that’s for Because him. he’s that wheel big, could go over his chest help and disburse the He’s got load. also are, you a lot of mass. bigger you The the more force can absorb. Ross,
Q have an you Doctor do opinion reasonable degree certainty within the fields of pathology forensic survived, and biomechanics Mr. whether Nave would have Nissan had the been with a equipped properly functioning self at aligned steering wheel a Delta of 26 to V 27? Yes,
A it 27, would be my opinion Delta at 26 or which V vehicle, is change speed itself, the the the of the vehicle that, his Delta V would less than have been he would have survived.
Essentially, Dr. simply Ross looked at Exhibit 68 and opinion offered his that Nave would have the survived accident if the in his truck performed had by manner illustrated that exhibit. testimony might This if have been sufficient an represented Exhibit actual de- not, sign. however, It design, a do not because we know cannister, of the dimensions its or its composition, capaci- And, testified, ties. as Savage uncontradictedly testing had shown even slight changes cannister would lead to great changes the cannister’s performance. What Dr. is an analogous expert Ross did drawing picture of a baseball with a and player showing jury helmet then series of pictures purporting illustrate how the helmet would if protect batter’s head the helmet were struck by a at baseball thrown miles ninety-five per hour. Unless the expert helmet, composition knows size and of the its features, how much the helmet will absorb composition design, due to its there way is no either the expert jury or testimony that considers the can expert’s *29 As depicted. function as if the helmet would indeed tell earlier, as an expert Dr. Ross was admitted mentioned biomechanics, and kinematics. He was pathology, forensic admitted, performance not, expert an as he not columns, acknowledged he that he did of energy much the cannister could absorb. Under know how (im- circumstances, an basis for his he had insufficient these that, a designed had the been with assertion vehicle plied) 68, one in Exhibit the column steering column like the shown of kinetic have enough Nave’s to have absorbed would Prods., Inc., v. 830 Md. Beatty his life. Trailmaster saved See (1993) (“[a]n no 741, judgment has 726, expert’s 625 1005 A.2d a basis to upon force there is sufficient which unless probative conclusions”) State, v. 312 Md. (quoting his Bohnert support (1988)). most, 275, Dr. Ross was 266, At A.2d the maximum amount of force that about qualified testify steer- any death —whether Nave could have sustained avoid force have the amount of would reduced ing an well to a survivable level was issue by Nave experienced or from the knowledge expertise. Dr. Aside beyond Ross’s Dr. design, was not an alternative really fact that Exhibit 68 how the would self-aligning cannister opinion regarding Ross’s pure speculation. Nave accident was performed have See id. Pickup It a 1989 Nissan
3. Was Cost-Effective Build Steering Self-Aligning Col- Truck With a Cannister umn? of the cost incorporat- also failed to demonstrate
Appellees pickup into a 1989 Nissan ing self-aligning a cannister truck, incorporating of such price to the consumer truck with a cannister design, and whether by consumers. accepted column would be other asked Peterson about Appellees’ counsel costs following colloquy: in the designs alternative Peterson, you any specific information Q Mr. do have designs cost of alternative for from Nissan about wheel assemblies? No,
A sir. Q information, Was that to your knowledge, requested of Nissan? Yes,
A sir. It was. Q And no information was provided? Thatiscorreet.[18] A
Later, Peterson gave the following testimony: Peterson,
Q Mr. you are able to an give opinion to a reasonable degree of engineering certainty as to the relative cost of the self-aligning cannister type of steering wheel assembly and that type steering wheel assembly provided in the 1989 Nissan pickup truck based on just an examina- *30 tion those two assemblies? Yes,
A believe, sir. I relatively can, speaking, I yes. Q And what is that opinion?
A That actually, the —because less costs fabrication forth, so the cannister model is probably actually cheaper. added.)
(Emphasis
Appellees contend that this testimony was
sufficient to establish the cost-effectiveness of the cannister
design. We disagree. Peterson’s conclusion that the cannis-
ter design “is probably actually cheaper” is based only on a
visual
(he
comparison of a cannister design
does not say which
one) to the steering column used in the 1989 Nissan pickup
truck. Peterson
facts,
did not
any
data,
offer
or explanation
to support
conclusion,
this
nor did he give any hint as to how
he could do a cost-comparison simply on the basis of a visual
examination of some unspecified cannister. See Beatty, 330
726,
Md. at
Peterson’s testimony is strikingly reminiscent of the expert at testimony issue in Troja. In Troja, we rejected the “ex- pert’s bald statement that a safety interlock device could be Appellees 18. argue do not that discovery Nissan violated rules or that judge the any way trial erred in supervising discovery. in
127 to the manufacturer” because great without cost implemented by regarding data the any statement “was not supported the 62 such feature.” necessary of the materials include cost 110, opinion at A.2d Given that Peterson’s Md.App. any was devoid of design of the cannister regarding the cost basis, it, too, appellees’ meet re- was insufficient to factual of cost. quired showing automotive Bohley, William Nissan’s
Testimony given by in this fill eviden- was also insufficient to engineering expert, Report, of the 1981 NHTSA During his discussion tiary gap. and cannister compression that the axial Bohley testified cost Report in the NHTSA “all evaluated designs that were that this testi- same.” contend approximately Appellees the was that the cannister mony was sufficient to establish a 1989 truck. a cost-effective alternative for Nissan testi- Bohley’s testimony broadly. Bohley too Appellees read in the 1981 only cannister studied NHTSA fied that the in axial compression designs to the Report similar cost showing in that study. There was no included that report were the same designs cannister studied as 68, nor “design” Exhibit was there depicted plaintiffs’ studied was the proof original compression Moreover, pickup. same as that used Nave’s fact compression cost as the same the axial cannister report does not mean that designs studied NHTSA *31 in a cannister would cost-effective Nissan be Furthermore, nothing Bohley’s testimony truck. pickup any cost of a self- implementing makes reference As aligning cannister into a Nissan truck. such, testimony to show that the Bohley’s was also insufficient was a alternative a 1989 cannister cost-effective pickup. Nissan that cost to the consum-
Finally, correctly *32 out absorb- Hoshina, Mr. the points where Hoshina changed. not ing was it, sir, have, that only you isn’t
That’s the information the is the ’89 Nissan energy absorbing performance the more of this energy absorbing performance same as design? recent have, you it?
This is all isn’t Yes,
A sir.... whether the testimony that it was unknown This illustrates more than the design was safer or effective newer Nissan addition, in the nothing In used Nave’s truck. design if have the accident indicates Nave would survived record The used in his truck. design Nissan had been the newer safer Nissan failure to establish that the newer appellees’ life was fatal would have saved Nave’s to use this that Nissan’s failure newer contention was a defect. Steering Collapse Up C. Located Further Mechanism Column
Appellees also contend that Jones another proposed viable alternative when he testified as follows: any Do Q Okay. you opinion have an whether there were alternative designs? available Yes, I
A do. is alter- Q My opinion clearly that there were identified literature, designs.... native If look at the there are you other alternative where the mechanism is designs collapse column, further so that move the up you you moved — is occupant binding mechanism closer to the so that collapse not a problem. words, you get
In other closer to the mechanism it, occupant impacting binding opportunity that’s the less there is. testimony, than the above there is no further discussion
Other mechanism is designs collapse about alternative where *33 up moved further the column. Most important, there is no showing evidence that Nave would have survived the accident if design most, such a had been used in pickup. At Jones’s testimony merely theory is on design how to a steering column—such a “hypothetical” alternative design is not enough design to sustain a defect cause of action. Compression D. Design General Motors Axial Ball Appellees next contend that the axial General Motors (GM compression ball column design) ball was another viable design. alternative Peterson’s testimony regarding this alter native design was as follows: Peterson,
Q Mr. were designs there alternative available for steering assembly [in the 1989 Nissan pickup]?
Yes,A sir.
Q designs What alternative do think you would have appropriate? been Well,
A certainly, one was the GM ball-type with wheel. aligning reference, Other than this passing Peterson no provided addi- tional testimony regarding the GM design. Savage, ball Nis- san’s on expert steering column design testing, and provided in-depth explanation of the design GM ball that explained design the GM ball the design used in Nave’s 1989 Nissan were pickup very “similar” because “the mechanism for ab- sorbing energy is the same.” It is nothing clear that Peterson’s or Savage’s discussion of the GM ball estab- lished any the elements of a design defect cause of action. Design E. Mesh
Appellees’ final contention is that the GM mesh de sign was another viable alternative non-defective design. Pe terson testified about the mesh design as follows:
Q spoke You about a mesh design.... your opin- [I]n ion, how is the mesh design superior design to [the Nissan design]? Well,
A even though energy absorbing component, itself, fairly column, the mesh is located far down on the it is not to stroke. It is an likely to bind or still less stroke. always would practically element that absorbing that the mesh better Peterson testified Although susceptible it was less than the Nissan column because (or any testimony nothing testimony his binding, (1) witness) that Nave would have survived established: other (2) pickup; if had been used accident a mesh a mesh incorporate feasible to technologically it was (3) truck; it would be Nissan pickup into a 1989 truck with a mesh pickup a 1989 Nissan cost-effective to build (4) pickup of consumer of a acceptance the likelihood design; (5) to the consumer of a design; with a or the cost truck mesh design. a mesh incorporated truck that 1989 Nissan *34 regarding to these appellees Because failed elicit evidence elements, that Nissan’s failure to use they did not establish defectively 1989 de- design pickup the GM mesh made the signed.
CONCLUSION shown, produce As we have failed to sufficient appellees to their cause of action with support design evidence defect designs to each of five that were respect alternative mentioned at not establish a appellees trial. Because did defect, prima judge case of we hold that the trial facie erred Nissan’s motion for denying judgment. REVERSED; BE PAID BY
JUDGMENT COSTS TO APPELLEES. DUGAN,
Dissenting Opinion by (Specially ROBERT N. J. Assigned). DUGAN, Assigned),
ROBERT N. Judge (Specially dissenting.
I dissent from The evi- respectfully majority opinion. dence was sufficient to an inference that a different support column in the design could have been installed 1989 Nissan truck at a reasonable cost. Proof that another using automobile manufacturer is an alternative a permits automobile the inference that substantially similar could have used the same column without appellant Furthermore, manufacturing expense. an unreasonable majority held that it was burden improperly appellee’s self-aligning the cost-effectiveness of the cannister de- prove Co., (1997), Dancy Hyster In v. F.3d 649 United sign. for as follows: Appeals Eight States Court of Circuit held case, In lift truck this Plaintiff does not contend that the any way; he contends the lift truck was malfunctioned it designed properly safety not because lacked device.... not Although Dancy proving does have the burden of his “alternative safer was available and feasible cost, technological he practicality possibility,” terms of proving by still has the burden of the existence of defect showing design actually that a safer alternative exists. Omitted.) (Citations Id. at 653-54. See also Baltimore Gas Public 305 Md. Maryland, and Elec. Co. v. Service Com’n of (1986) (The 145, 174, 501 Court of held that Appeals A.2d E, Counsel, burden of People’s BG & not the carried the its power outage that a was not “the result of failure proving measures.”) I implement precautionary cost-effective be the burden require appellee lieve it was error shoulder that another would have proving feasible. been *35 A.2d125
Jacob ROGINSKY v.
Veronica BLAKE-ROGINSKY. 121, Sept. Term, No. Maryland. SpecialAppeals Court 4, Nov. 1999. Nissan notes “the by any was not wit- incorporating er of cannisters discussed ness, of any and was no chance consumer proof there ” have no their brief to acceptance.... Appellees response contention, any we to find evidence this have been unable contradict assertion. Nissan’s 4. Conclusion Because there was no produced evidence at trial to establish elements, the aforementioned three we that appellees conclude did not establish a prima case of design defect with facie respect to Nissan’s decision to not use a self-aligning cannister design in pickup. its 1989 B. Newer Compression Nissan Axial Design With Self- Aligning Steering Wheel Appellees also contend that the newer Nissan axial compression design with the self-aligning steering wheel was another viable design. alternative We conclude appellees did not establish that Nissan’s failure to use this newer in the 1989 pickup was a design defect. First, there was no testimony indicating that the newer Nissan axial compression design was safer or more effective than used Nave’s truck. The existence of the newer Nissan axial compression design was discussed during Peterson’s testimony. cross-examination, On Peterson testified: Q Well, now, [DEFENSE you COUNSEL] don’t know whether the energy absorbing characteristics of this more recent design are or better worse than energy absorbing on the 1989 pickup, Nissan correct? A I don’t know what absorbing characteris- looks____ tics I way are. like the the design And it would appear, assuming they right use the kind metal deforming, that it good job. would do a Q All right, sir. The question was you whether know if the energy absorbing performing characteristics of the new- er, more design, recent are better or worse. You don’t know what the answer is to that question, do you? No, A sir. Q All I right. And [plaintiffs believe that counsel] you, showed jury, showed the this testimony by Mr.