*1 LTD. MOTOR COMPANY NISSAN Company Nis- Motor &
a/k/a U.S.A., Corporation in Peti- Motor
san
tioners, ARMSTRONG, Respondent.
Marian
No. 01-0030.
Supreme of Texas. Court March
Argued Aug.
Decided 15, 2004.
Rehearing Denied Oct. *3 Paso, Wilhelm,
Ehrlich, El Donald G. Wil- Houston, Firm, Respondent. helm Law opinion Justice BRISTER delivered the Court, of the in which Chief Justice PHILLIPS, HECHT, Justice Justice OWEN, JEFFERSON, Justice Justice SMITH, and Justice WAINWRIGHT joined. case, products liability
In this the trial erroneously court admitted hundreds *4 accidents, alleged almost all of hearsay which were and almost none of which were shown to involve defects like alleged plaintiffs those here. As the evi- arguments dence and at trial focused on quantity the of other accidents rather than quality regarding of the evidence her own, position ap- we discount her new peal improper admission of evi- unimportant. accidents was dence Accordingly, judgment we reverse the appeals,1 the court of and remand for a new trial.
I Armstrong’s parents bought Marian January 1986 Nissan 300ZX in and years transferred2 it to her five or six 90,000 later with more than miles on the rainy day odometer. in October On Craig Morgan, A. Brown McCarroll 1992, immediately resigning after from her Greenhill, LLP, LLP, Joe R. Baker Botts job, Armstrong got into her car and shift- Austin, for Amicus Curiae “barely into rеverse. After she ed Price, Jung, Strasburger P. Michael & accelerator, touched” the the car “took off’ L.L.P., Dallas, TX, Daughtry, Alan B. Vin- though hit building, backwards and a brick Elkins, L.L.P., Dow, Greg and John son J. pressing pedal the brake as hard she was TX, Houston, Teague, and Robert A. W. could. she shifted into drive as she When Landau, Brundage, Bingham Leslie G. again “barely touched” the accelera- LLP, Francisco, CA, for McCutchen San tor, car “shot forward” and struck a Petitioner. application of telephone pole, again despite Kaiser, Firm, L.L.P., Kaiser the brakes. These collisions resulted Grant Houston, Scherr, Legate F. two broken bones in her foot and nerve James Scherr disputed gift this was a 1. See 32 S.W.3d It whether payment performed. for services she had injuries damage, assessed
$900,000. in- Available information indicates unknowing applica- driver advertent had the Armstrongs repaired, car pedal tion of the accelerator when six months later another unin- and about apply ap- drivеr intended to the brake tended acceleration occurred a fami- when many to be the cause pears ly driving Mend A service car. relat- reported acceleration] SA [sudden shop at a in ZX cars specializing writer [Office ed accidents under several ODI —father the tele- Armstrong’s told over inves- Investigation] of Defects incident seeing phone and without the car—that many driv- tigations, though even of the might jammed throttle cable been continue to had ers believe designed a small rubber either “boot” pushing pedal. on the brake been keep dust out of the accelerator mecha- nism, throttle or white liner around the father Armstrong’s
cable. cut off both investigation, of this During course discarded them. safety-related has detect- defect been ed. Further commitment of resources years Armstrongs Two before *5 may to determine whether such a trend car, Highway their the bought National to appear exist does not be warranted. (NHTSA) Traffic Safety Administration Investigations agen- conducted complaints a unin- received number of of cies in the United States and Canada tended of 280ZX and 300ZX acceleration conclusions, the did Nis- reached same as opened cars. NHTSA investigation, investigation. Armstrong in its own san it has done involv- complaints with similar contends these conclusions were incorrect ing many other vehicles. the next Over any reported Nissan to because never years, agency four the and outside two agency the boot throttle cable inspection and inspections firms conducted problem. the testing, looking potential causes injection system, the finding ped- included fuel acceler- of response In to the driver al-error, pedal, linkages, ator models computerized throttle Nissan recalled 1979-1987 system brakes, to install a shift-interlock that re- system, control, control cruise en- step drivers on the brake before mounts, quired transmission, gine automatic and shifting Armstrong’s out of car had park.3 floor mats. recall, After the claims such an interlock. Closing Report, In its made the NHTSA dra- dropped of unintended acceleration following findings: matically. [Tjest inspection results and vehicle change. design made one more Nissan inspected showed that the tested and redesigned In 1995 Nissan the throttle any vehicles did not exhibit condition a on incorporated cable and smaller boot that would cause the vehicle to acceler- cars, unit. per ZX at a cost of $10.66 own, ate at a rate on its and the high change made Nissan contends vehicles, open throt- parts among tested vehicles with wide its but standardize by apply- tle condition can real was to Armstrong argues be controlled reason in ing design. eliminate the defects brakes. Armstrong sug- presented agreement some NHTSA’s not to undertake for investigation. gesting ''voluntary” recall was in return more formal defect Armstrong sued Nissan Motor Co. Ltd. own. This Court and others have consid- America, and Nissan North Inc. prod- for ered several involving such cases different liability, negligence, gross negligence, ucts vehicles, defects, different asserted fraud, warranty, breach of negligent mis- different alternative causes. representations, and violations of the Tex- Chevrolet, In Gammill Jack Williams as Deceptive Trade Practices —Consumer Inc., we summary judgment affirmed In support Protection Act.4 of claim her manufacturer of 1988 Isuzu Trooper defective, that the throttle cable was Arm- alleging a suit ped- the accelerator strong presented expert testimony from a al entangled became with wiring below mechanical engineer, testimony factual the dashboard.5 pointed The Gammills from four experi- other owners who had scrape wiring on the sheath as evidence enced unintended acceleration 300ZX cars, entanglement testimony expert 16 written of unintended ac- celeration, and Nissan’s that a different design database could have avoided complaints. objected consumer un- expert defect.6 But while their successfully to most of this evidence on unintended acceleration was a licensed relevance, grounds hearsay, and incom- engineer mechanical with substantial ex- petence. cars, perience working on he had never designed them.7 Accordingly, we held the returned a verdict favorable to trial court did not abuse its discretion Armstrong on each of her fifteen theories finding him unqualified testify about liability. judg- The trial court rendered defects; design jury’s findings ment on as this was the design, man- testi- defects, ufacturing, marketing mony negli- supporting plaintiffs’ claims re- *6 gence, gross negligence, and but rendered lating system, to the car’s accelerator we judgment notwithstanding the verdict on summary judg- affirmed the trial court’s the Although Armstrong other theories. finding ment no defect.8 stipulated and Nissan had to million in $2 In General Motors v. we Corp. Hopkins, if punitive damages jury gross the fоund judgment against affirmed a the manufac- (which did), negligence it the trial court pickup turer of a 1970 Chevrolet based on remitted this amount to million. $1.2 allegations jammed that a lockout a pin Both appealed. sides When the court of open position, causing carburetor in the an affirmed, appeals petitioned both sides this influx of fuel and unintended acceleration.9 Court for review. by supported We held the verdict was (1) accident, evidence that after the
II
jammed
pin
posi-
lockout
was found in the
A
(2)
tion,
a similar malfunction had occurred
(3)
earlier,
with the same vehicle
and
GM
This is not the first lawsuit in Texas
alleging
picture
correspon-
that a vehicle accelerated on its
files
a
contained
344,
(Tex. 1977),
§§
4. TEX. BUS. & COM. CODE
9.
17.41-.63.
346
overruled
grounds by
on other
v. Gen. Motors
Turner
713,
(Tex. 1998).
5. 972 S.W.2d
715
(Tex.1979)
Corp.,
sendDuncan
137
peculiar
are not
requirements
These
among
engineers addressing the
dence
GM
recent-
acceleration cases. We
unintended
problem.10
Ridgway
in
v.
that
ly held
Ford Motor Co.
Co.,
v.
Motor
we
But Henderson
Ford
was not
engine fire in an older vehicle
an
against
judgment
the manufac-
reversed
defective;
evidence that
vehicle
turer of a
Lincoln
based
1968
Continental
many
simply
potential
too
there were
piece
on
that a
from
allegations
rubber
to assume from
one
causes
jammed
gasket
throttle
carburetor’s
In-
culprit.17
have been
other must
Though
blades.11
carburetor was
stead,
must
specific
we held that a
defect
later,
years
found
that condition some
evidence and
by competent
identified
by be
testified it
been caused
expert
had
out.18
possible
must be ruled
unreasonably dangerous design
an
or that
causes
it.12
prevented
have
alternative would
especially com-
requirements
These
are
cases, it
In all
these
not
in unintended acceleration cases.
pelling
enough that a vehicle accelerated when
many potential
there
causes
Not
are
nothing.
claimants swore
had done
(from
control),
mats to cruise
but one
floor
Instead,
consistently required
we have
frequent
(inadvertently
causes
of the most
competent expert testimony
objective
wrong pedal)
stepping on the
is untraeea-
proof
defect caused the acceleration.
person
who did
ble
unknown to
same,
appeals
courts of
done
it.19
holding liability cannot be based on unin
Accordingly,
again
affirm
alone,13 lay
acceleration
tended
testimo
cause,14
of an unintended acceler-
mere occurrence
ny
its
or on
regarding
defects
is no
that a vehicle
confirmed
actual
ation incident
inspection.15 Courts
up
do
it
to the
elsewhere
too.16
is defective. While was
See,
Muncy,
Hopkins,
Corp.
10.
e.g.,
First,
in
train-crossing cases,
as
other incidents must have occurred under
B
reasonably
(though
necessarily
similar
not
Nor is this the first time Texas courts
identical)
degree
conditions.25 The
of simi-
admissibility
have considered the
of evi-
larity required depends
issue the
dence of similar accidents.
prove.26
evidence is
offered
We
question
years
addressed this
some
Second,
evidence
similar inci
ago in
involving
two cases
evidence of oth-
dents is
if it
inadmissible
creates undue
er accidents offered to show a railroad
confusion,
prejudice,
delay.27
Proof
(thus
crossing was
requir-
extra-hazardous
happened
what
in a previous accident does
ing
warnings).20
case,
additional
In one
not,
more, prove
without
in
happened
what
we held it was reversible error to admit
Further,
prolonged
current one.28
proof
previous
evidence of two
accidents occur-
in
happened
what
can
accidents
ring
during
daytime
involving
case
jury’s
be used to distract a
attention
occurring
accident
on a foggy night.21
happened
from
in the case at hand.
what
another,
But in
held it
was reversible
previous
error to exclude
six
Third,
the relevance
other acci
nighttime accidents in a case involving the
depends upon
purpose
dents
for offer
conditions,22
same
all of them the
ing them. Other accidents are admissible
headlights
motorists’
could not illuminate
purposes
some
and not for
For
others.
depression
crossing
where
was lo-
may
example, other accidents
be relevant
сated until it was too late.23
whether:
show
nature,
See
May,
20.
Missouri-Kanas-Texas R. Co.
hazardous
if the accidents occurred
(Tex.1980)
curiam);
(per
substantially
600 S.W.2d
under
same or
similar condi-
Cooper,
involving
Mo. Pac.
Co. v.
plaintiff,
R.R.
563 S.W.2d
as that
with
tions
(Tex. 1978).
time”).
proximity
reasonable
Co.,
Cooper,
Uniroyal
21.
236-38.
25.
Goodrich Tire
977 S.W.2d at
May,
S.W.2d at 756.
26. 2 JACK B. WEINSTEIN &
A.
MARGARET
*8
Co.,
BERGER,
May
23.
v. Missouri-Kanas-Texas R.
583
WEINSTEIN’S FEDERAL EVI-
694,
401.08[2],
(2d
(Tex.Civ.App.-Waco
ed.2004).
§
S.W.2d
698-99
at
DENCE
52
1979),
n.r.e.,
(Tex.
writ ref'd
139 (cid:127) example, Nissan’s danger- ble. For unreasonably was product a ZXin accelera- ous; drop showing dramatic systems shift-interlock tion incidents after
(cid:127) warning given;30 a should have been occurring though installed —even (cid:127) available;31 design or a safer Armstrongs— to the long after sale (cid:127) consciously a manufacturer was indif- might what certainly probative of seems ferent toward in a claim for accidents along. all causing them been damages.32 exemplary may to in- want Conversely, a defendant categor attempt here do not We part of other accidents troduce evidence when other accidents every ize instance defense,33 the ab- or state-of-the-art every when occasion are admissible claims of other accidents rebut sence exercising discretion they not. But are dangerous. product that a admissibility, courts must trial regarding place logi of these uses Several similarity, the bounds of carеfully consider relevant, cal limits on what accidents are confusion, sequence before prejudice, occurred. such as when the accidents in of other accidents admitting evidence must product was defective be Whether volving product. judged against technological context existing of its manufacture.34 at time C design product warnings can
Product occurring take into account accidents be courts have also consid- Several Texas sale, production fore but not unfore admissibility third-party com- ered the occurring accidents thereafter.35 seeable an occurred. plaints that accident damages exemplary Nor can be assessed hindsight; deciding whether a based in a manufac Complaint letters risk ignored defendant an extreme “re true, they also may files be but turer’s quires examination of events and selfserving; they may accusatory and be viewpoint circumstances from the subject to rarely are оath and never under occurred, defendant at time the events As are neces cross-examination.37 viewing hindsight.”36 matter in without statements, they are sarily out-of-court truth of the course, hearsay prove if may offered post-sale events some- Of com- the incidents times and thus admissi- assertions therein —that quite be relevant Co., 746. Uniroyal 34. Id. at 29. Goodrich Tire 977 S.W.2d 340-41. 256-57; Hernandez, 2 S.W.3d at see 35. See Martinez, Saenz, Uniroyal Co. v. Corp. See 873 S.W.2d Goodrich Tire Gen. Motors also 328, (Tex.1993). (Tex.1998) (holding 340-41 911 S.W.2d evidence of law properly court admitted trial accidents); involving RESTATE suits earlier Corp., 2 31. See v. Tokai Hernandez (THIRD) Houston, LI (Tex.1999); OF TORTS: PRODUCTS MENT Boatland of (Tex. 2(b) (1998). § Bailey, ABILITY Inc. v. 609 S.W.2d 1980). Monel, Transp. Co. v. Ins. *9 Lastra, added). 1994) (Tex. (emphasis Corp. 23 See v. De La 852 32. Gen. Chem. 916, (Tex.1993). S.W.2d 921-22 Ltd., Mfg. Co. 885 37. Min. & v. Nishika Minn. 603, Boatland, (Tex.App.-Beaumont 631-32 S.W.2d at 748. S.W.2d 33. See 609 140
plained of occurred reported.38 a hearsay objection While But a goes to admissibil- compilation of complaints by such a manu- ity, weight; not oaths and cross-examina- might facturer constitute a business record required tion are not to make evidence (or not39) that such claims were were re- certain, absolutely but to make it admissi- ceived, they could not abe business record ble first place. that claims such are true unless the em- Again, do attempt we not here to ployee making the personal record had categorize every instance when consumer knowledge Thus, of each.40 consumer complaints may may not complaints in be admissible. a company’s gener- are files But ally hearsay we have never that within held mere claims hearsay, and require previous their own of exception prove product accidents can a addition that defective, generally.41 business records is and we decline to do so here. A complaints require number of a may course, Of accident complaints may be prudent investigate, manufacturer to if admissible to prove something offered may presage liability complaints if those other than truth. In Uniroyal Goodrich are substantiated and the manufacturer Martinez, Tire v. Co. evi- held that nothing. does But a of large number com of previous dence 34 lawsuits which plaints question cannot alone raise fact claimants admitted mounting 16-inch that a defect exists. tire on a 16.5-inch rim was admissible to show that a manufacturer knew users were not heeding warnings.42 its Though the Ill manufacturer in that case denied the valid- argues Nissan of Armstrong’s most claims, ity of those it acknowledged that at evidence admitted trial violated these
they resulted from mismatched tires agree. standards. We rims;43 as the truth of that part of each admitted, claim was not admit- A ted for that purpose. The trial court admitted Nissan’s However, of appeals few courts of complaints database it had received here) (including the one involved of unintended acceleration in ZX cars. further, gone much concluding mere unsuccessfully objected to the data genеrally claims similar are accidents hearsay grounds. base relevance and
admissible because
“[t]he fact
causa
tion in The database
complaints
up entirely
has not been
was made
proven with
certainty goes
hearsay reports
absolute
received
Nissan.
weight,
their
their admissibility.”44
Some
attributed unintended aecel-
1994),
328,
(Tex.1998);
grounds,
rev’d on other
The court of cited four reasons Armstrong the offered and used before First, admitting the database. for us Armstrong assures database. While court held these accidents occurred under pre- the exhibit was offered and admitted reasonably similar circumstances.45 As trial, in is no written oral order there above, can noted unintended acceleration trial to that effect.48 Once the the record causes, many always have and we have admitted of Armstrong’s evidence court competent required specific evidence of a accidents, other Nissan could offer similar nothing defect. There is the database waiver.49 rebuttal without defect, if suggest any, causing to proof that Nissan’s exhibit Without аny to those 757 incidents was similar by first, nothing admitted Nissan waived not alleged the defects here. This is simi- subsequent reply. its enough. lar Second, the two important, court concluded that “the But more reported sheer number and nature of inci- kinds here were not the same. proof Data, govern findings, raise an inference that the unintend- and from dents agencies generally ed acceleration or stuck throttle was ment are not excludable something from hearsay;50 complaints caused other than driver out-of-court as words, In The many third-parties generally error.”46 because are. unknown re people report claimed their cars took off on their listed the numbers of NHTSA own, likely any it less them as ported is acceleration incidents back course, This, why not true. it was ground mistaken. is indicate what Armstrong auto data investigating; sheer number of accidents offered the ZX that most America raises inference show that cars were defective. base to nothing аdmitted report to do with drivers’ mistakes. Even if the NHTSA Moreover, first, using hearsay open it is hold door for for truth it did not hearsay is, asserted —the more there then database. likely right. it
the more
must be
finally,
appeals
the court of
Fourth
Third,
that the database was relevant
court held
Nissan waived indicated
knowledge
danger-
of the
any objection
other acci-
“Nissan’s
to admission of
show
dents,47
in its
In other
despite
specific objection
its
ous condition
vehicles.”51
words,
hearsay
hearsay
Arm-
was admissible
database
irrelevant.
asserted,
matters
but
strong asserts waiver occurred when Nis-
the truth
granted,
CIV.
pet.
rulings to be
in an order. TEX. R.
(Tex.App.-San
recited
Antonio
w.r.m.).
166(7), (m),
judgm’t
(p).
vacated
P.
45.
show Nissan’s of the truth of Unlike the Nissan ob hearsay jected matters asserted. The to eight remaining rules of the reports on by cannot be avoided this kind of circular grounds only; relevance there was no reasoning. hearsay objection, perhaps because some by personnel them include observations up, product To sum defects must dealerships. Nissan As four of these proved; they be simply cannot be inferred reports contain no mention of a defect from a large complaints. number of If the cable, relating objection to the throttle otherwise, product rule were claims would should been sustained. As with the become a self-fulfilling prophecy—the database, reports of unintended accelera made, more that likely are the more all tion due or to unknown some other must be proof true. Without hear be to Armstrong’s cause would irrelevant say exception applied any or that of the case. reported incidents were due to a defect Eight reports (including of the by Armstrong, similar to those alleged files) in defec point those NHTSA’s to a admitting trial court erred in the database tive throttle cable or boot as the cause.53 complaints. might Of the similar eight that involve defects, only appear rapid two to involve B (similar claim) Armstrong’s to acceleration approxi The trial court also admitted simply rather than stuck throttle that mately reports sixteen52 of incidents of decelerate; not the latter would be would acceleration, unintended three from only Armstrong if pressed relevant appar NHTSA’s files and the remainder accelerator more than she admitted. ently from Nissan’s. Nevertheless, agree Armstrong with objected reports to the that on the record before us the trial court from on grounds NHTSA’s files of hear did not in admitting abuse its discretion say. though Even these by eight reports allegedly were collected similar de- a government agency, like the presented database fects. Nissan evidence that the they hearsay contained hearsay. possibility might within that a deteriorated boot Though Armstrong they jam likely claims ad about were the throttle cable was as “notice,” report “being lightning”; all claim missible show were as struck this eight years regarding ed to to ten after made knew NHTSA the was what Nissan car, Armstrongs bought regarding their she but as a fact all ZX cars any post-sale duty claims not to assert sold before or after. Evidence some of recall, duty to it is unclear how it reports suggested the notice the narrative occur, so any much later would have made differ could and did and thus ence to her. admissible to rebut Nissan’s claim.54 III(C) Although part are marked exhibits discussed in defect reasons 7N, through appears 7A 7A to involve three below. cars, appear 7J 71 and to be the same inci- dent, incidents, appears 7K be three Auld, Corp. v. Healthcare 54.See Horizon/CMS appears to be there no 7C. (Tex.2000) (holding sur- vey reports impres- admissible to rebut false report points An additional the cable as nursing sion that had not been cited for home cause, pоssible appears but it from be care, had). rendering improper it when fact (one Gary Lysdale lay witnesses who trial) to a testified at and relates different *12 she testified that course, hit ditch. She assuming the until she requires Of this feet, pedal with both re- on the brake in those “stood” truth of the matters asserted did anyway. She objected on the car accelerated But to two but ports. Nissan incident, the the her know cause of making objection not hearsay grounds, no Commission denied Motor Vehicle Although filed a Texas to two Nissan all others. her car was defective.56 instruction, complaint her that ruling no request limiting for record, remaining in so appears our the witness, Gary Lysdale, The fourth pur- properly were admitted for all four cable, only one mention the throttle the poses.55 100,000-mile on his testifying that the boot sum, object to six of the throttle. jamming In Nissan failed loose not car was but However, four after reports; problems the narrative others as his continued (which оf this redesigned admissible under the facts of the cable properly installation trial in Armstrong court erred would have eliminated alleged case. We hold accident), could admitting her it causing the remainder. defect by the defect. have been caused same not C lay four witnesses None of the offered, Armstrong also over Nis of their verify defect as cause could objection, four wit testimony san’s incidents, much a defect acceleration less they experienced nesses who said had by Armstrong. alleged similar that unintended in 300ZX acceleration events they de having than accidents Other cars. acceleration, these as unintended scribed first, that Roupinian, The Paul claimed similarity could no between owners show he backing in 1987 was his 300ZX when experiences and those involved their the car for accelerated no reason documentary Armstrong’s As with suit. not sued stop. Roupinian would When evidence, testimonial evidence of unintend produce but could acceleration is no evidence of a defect. ed incident Nis- anything his was caused Thus, allowing the trial court erred did, san the court found frivolous his suit testify. these witnesses to $125,000. him and sanctioned second, Faust, The Linda testified she D May had an acceleration incident in objects that Arm Finally, Nissan neutral, into the car She said she shifted expert qualified strong’s witness noise,” an and she made “incredible appeals rejected testify. The court inef- pumped finding before brake objection on basis Nissan’s Nissan, expert fective. She sued but her alleged require here “did not defect ”57 wrong with nothing and mechanics found scientist,’ from a ‘rocket explanation car, and suit was dismissed. her also overlooking expert that the apparently third, Ham, rejected arguably was a rocket that she Gammill Martha said pretrial motion off’ But as Nissan’s put a 300ZX into drive and it “took scientist.58 Inc., Chevrolet, 105(a). Jack Williams See TEX. EVID. 58. Gammill v. R. (Tex.1998) (noting that § CODE 2301.204-.206 56. See TEX. OCC. designed planes expert fighter and antiradia- (giving power Vehicle Board to hear Motor missiles). tion defects). complaints vehicle S.W.3d 701, 708. 57.32 case,
to exclude expert’s testimony In Armstrong’s asserted this trial at unqualified not that he was but that torneys his clearly her case turned believed unreliable, opinions were we hold this com- the evidence of incidents. At every plaint preserved appeal.59 was not opportunity, emphasized large general complaints number of of unintend
IV ed acceleration rather than the small num *13 found Having the trial court involving ber of those similar defect. database, in admitting erred the testi For example, began her trial counsel voir witnesses, mony of four and several narra by stating: dire tive regarding other incidents of This case involves defective car that acceleration, unintended we must consider injured Armstrong, Marian our client. require whether these errors reversal. tragedy Marian’s was not an isolated Erroneous admission of evidence requires incident. one of many She was whosе reversal if probably the error (though tragically lives have been affected by not necessarily) in an improper resulted Nissan’s ZX 300 car. judgment.60 record, We review the entire require complaining party to dem He throughout continued voir dire in the judgment onstrate that turns on the same vein: particular evidence admitted.61 There’s a bunch Nissan dealers here
Clearly, erroneous admission is got in Houston. Nissan a bunch of com- merely if harmless it is cumulative.62 But plaints about 300ZX with sudden these that, beyond whether erroneous admission acceleration, you expect to Nissan tell is harmful judgment is more matter of problem. is a dealers that this Can precise than In measurement. making agree we all with that?
that judgment, we have sometimes looked
to by the efforts counsel to empha made
size the erroneous evidence63 and whether If there is a contrary was evidence that the im admits there defect car, properly their of complaints, admitted evidence was calculated with lots acci- dents, deaths, to overcome.64 what happens even complaint by 59. TEX. R. APP. P. 33.1. offer and exclude retaliation an- holding other worker in erroneous admission 61.1; harmful); Spohn Hosp. Mayer, City was v. 60. TEX. R. see also APP. P. Brownsville 878, Alvarado, 750, (Tex.2003) (Tex. 1995). (holding 104 S.W.3d 883-84 v. 753 instructing jury sanction to believe one ver- harmful, State, sion of contested fact was as counsel Northborough P’ship Interstate v. 66 dire, statement, opening 213, (Tex.2001); emphasized it in voir Dep’t S.W.3d 220 Tex. Able, expert closing argument). (Tex. testimony, and Transp. S.W.3d v. 35 617 2000). Smithwick, 724 64.Scurlock Oil Co. v. S.W.2d Southwest, Bruce, (Tex.1986) (holding 62. GTE 998 4-5 erroneous admis- Inc. S.W.2d (Tex. 1999) agreement (holding Maty 620 erroneous ad sion of Carter harmful as harmless, testimony jury expert despite mission of as it found defendant liable 100% proper testimony strong contributory was cumulative of other re evidence of decedent’s harassment). garding negligence); Spohn Hosp., see also 104 (holding instructing S.W.3d at sanction Co., Inc., jury Mfg. to believe of contested fact Alvarado v. one version Farah harmful, (Tex.1992) (considering as it was the critical contested ex- contrary). рarty tensive for each fact and there to the efforts counsel was evidence at the They They say ... would even company? responsi- are full of same them records are time ble. my got stuck. people saying cable Armstrong promised Co-counsel ultimate very That’s in the deceitful following opening in his statement: sense. bring you are a lot of going We involving Bring you incidents the ZX. are government report on it.... We you [By I think Q: counsel] defense going bring you evidence about what yesterday your that in told this try and fix cars. Nissan did to these negligent when opinion Nissan Similarly, Armstrong’s wit- expert sole problem fix the of unin- didn’t opinions by again his supported ness the first tended acceleration after ac- relying many of similar incidents *14 report they received? proof they in- celeration without that say say I that. I did A: did not What volved similar defects: many they reports was that had Q: [By you have plaintiffs Do counsel] they and were sudden acceleration sir, opinion, an not there whethеr or that responding derelict in not to Arm- design was a defect in Marian situation. a strong’s 1986 3800ZX that was accident
cause her on October 1992? whole Q: [By counsel] defense Your Yes, A: I do. whether Nissan opinion about Q: your opinion? What is with respect should have warned My pres- A: that opinion is the defect cable, that the the throttle assumes ence was well to Nissan. [sic] known defective, right? throttle cable is They have enumerable [sic] say A: I would rather that it is based very thing that happening. this upon repeated reports by Nis- that the had personnel
san cables frayed. They by this so told Q: [By you have plaintiffs Do counsel] many they should have real- people, any an opinion as to whether or not problem ized here and there is acts have those would been I that responded to it. do not view Marian occur- Armstrong’s cause of but more a reac- assumption, 30,1992? rence on October at. tion to material looked I’ve Yes, A: I do. Q: Maybe thought I am confusеd. I Q: your opinion? What is you just ago told us second single you seen a document hadn’t My B I opinion A: is that Nissan first had anybody suggested where many have from seen documents frayed. the cable was they were Nissan to show that They I have also A: said it was stuck and failed. aware this hazard. They frayed. seen where did not use words [sic] documents I they your specific ques- And submitted NHTSA where answered any They hides tion. have those documents problem. denied We excuse, many er- that show that Nissan driver more [sic] behind customers, a wide pushed gas. personnel, ror. whole Must range had Nis- people no fault this vehicle. informed We found with san that the cable failure reports. was caus- You can look in here and see ing their car inappro- to accelerate many how more there are. There are priately. lots of them.
Armstrong’s closing argument began Finally, Armstrong’s counsel closed his similarly: argument with the following: essence, What is the the real essence of Remember Lindа Faust and these [oth- this case? It’s about a machine that people Nobody er] came here. [who] is fails warning. without It’s about a com- paid. Everybody they is here because pany that knows that but will not admit problem they’re have had a angry that. stupid are called idiots and putting their foot gas having on the It’s a company essence that say will the mat inup tie their cars. you, what is happening with these cables As Armstrong’s attorneys trial spent ... it happens on the same level as much of trying persuade the trial getting by lightning.... struck Gary judge that other incidents of '88, Larson was struck lightning in great sig- unintended acceleration were of '89, '89, '89, several throughout times *15 nificance, reject argument we her new year; again
the '94 Gary Lysdale was appeal that they were not. by struck lightning. Martha Ham was by struck lightning. Paul Roupinian Though we reach a different conclusion by was struck lightning and now faces admissibility, from the court of appeals on 125 thousand dollar judgment over his agree we with its of the assessment crucial head, year a 29 old man. All these nature оf this evidence: by families are struck lightning. agree We with argument Nissan’s Nissan’s counsel complained about this the high admission of such a volume emphasis, beginning closing argument his other unintended acceleration incidents with following the observation: prejudicial to its claims asserted at I have noticed a trend this case from However, trial. disagree with Nis- beginning the very now the end. arguments san’s the trial court majority plaintiffs The of the case has deciding abused its discretion in to ad- things focused on other than her acci- mit dent, the evidence.65 other than the facts of her acci- why dent. Now would that Why be? Three opinion, times its the court of incidents, would focus on other oth- appeals relied on the of other quantity er accidents and not hers? What is this quality accidents rather than to find their about, case folks? jury’s factually legally verdict and suf- rebuttal, In Armstrong’s trial counsel ficient: replied: jury reasonably could have conclud- said, know, you only [Defense I counsel] ed frоm this “mountain” of related inci- prob- saw two incidents of throttle cable know, probable dents it was more than not You I problem lems. have a with that because I the unintended had keep seeing these re- acceleration been ports just malfunction, .... by Those are some of the caused some mechanical 65. 32 S.W.3d overwhelming; and of the between cumulative by part some error on ZX cars to decide whether jury trying
driver.66 unreasonably might need dangerous the true number simi- to know whether eight eight or reports most was closer to Although problems of the incident lar above, for as Arm- did not attribute a technical cause hundred. And shown acceleration, large attorneys the sheer did not treat strong’s unintended merely incidents reported hearsay and nature of complaints number number of that the unintended cumulative; raise an inference of her case. it was thrust or stuck throttle was caused acceleration like Finally, Hopkins case was not this by something than error.67 driver Henderson, as no one ever observed actually jamming or liner
either boot Armstrong’s father did cable. throttle sum, In that Nis- the evidence showed not, only one saw and he was who san knowl- possession had within its he testified both were worn them. While edge numerous documented loose, threw them he cut both off and incidents unintended acceleration them, taking away anyone else saw before stuck throttles caused throttle cable trial af- admitted at photographs ad- boot failure and that never so. A writer ter he had done service own vised NHTSA or its customers shop frequently he saw repair an auto said potential safety about these issues.... boots, did not cable but testi- loose throttle evidence, on this could Based actually jam a had seen one fy he ever Nissan, reasonably have concluded that cable, no expert and rendered throttle defect, had failed despite knowledge of the trial court found he was opinions as any take action or sufficient action *16 so.69 unqualified to do problem or to its cus- correct warn expert only testified Armstrong’s public danger.68 tomers or about the her accident could have been the cause of “high The court’s reliance on the vol- defect, the throttle cable a cruise control ume,” “mountain,” number,” and “sheer liner, way boot, but that he had “no or the fails “numerous” of other incidents alleged knowing which.” Because acknowledge most a handful of that at hold a throttle and finer defects could boot specifically them throttle related wider, try open but it he did not open alleged. Armstrong cable defects As Armstrong’s car could have explain how experienced justices appeals of the court of wildly “barely when she accelerated mistake, probable made that the this it is accelerator; as- simply he touched” the jurors as well. did she otherwise. sumed did argues eight re- Armstrong that bеcause course, there was other evidence Of ports problems of throttle cable boot noted, Armstrong’s As admitted, support claim. were cu- properly the remainder the boot is there was some evidence and thus harmless. But there mulative cable, may that Nissan jam case a ZX the context of this could difference Chevrolet, v. Jack Williams 66. 69.See Gammill Id. at 712. Inc., (Tex.1998); Selig v. at 710. Id. Am., Inc., 95, 99 BMW N. writ). (Tex.App.-Houston [14th Dist.] Id. at 711. Further, have known that before 1986. Accordingly, ment. we reverse and re- the redesigned cable presented and boot mand for a new trial without it.72 some evidence of a feasible alternative. V that,
Armstrong’s expert though testified doctor, he was not a he did not believe she trial, As we must for a remand new we could have broken her foot where she did address remaining arguments only if her foot was on the accelerator rather briefly. (as was). than the brake she said it First, Nissan asserts there was no question before us is not whether support evidence to the trial court’s award jury’s verdict right wrong; we exemplary damages, pointing out that only must decide erroneously whether the appeals the court of heavily relied on mat admitted probably made the ters Nissan learned after the vehicle
judgment ease, improper.70 In this designed, manufactured, here was evidence of other incidents was far more sold.73 In Transportation Ins. v.Co. Mor than cumulative: it emphasized at ev- id, prohibited post-hoc gross negli ery it opportunity; prove was used to a gence, holding that whether a defendant’s defect when the actual evidence had been acts or omissions involved an extreme risk destroyed; and it was calculated to show “requires an examination of the events and Nissan was malicious rather than mistaken viewpoint circumstances from the óf the in suggesting the accident was Arm- occurred, defendant at the time the events strong’s fault. viewing without the matter in hindsight.”74
It violated long-standing also rule in But as there testimony was also that could proof Texas that of unintended accelera- be construed to indicate Nissan knew of tion proof is not of a relating defect. Under that acceleration claims to the boot rule, proof many from exemplary instances of unintend- we remand the dam ed prove age acceleration cannot claim defect ei- with the remainder of the case. ther; a lot of no evidence is still no Next, argues Armstrong’s evidence. claims assert a post-sale failure to take reasons,
For all measures, these we hold that the remedial and thus conflict with evidence improperly admitted in our this case decision in American Tobacco Co. *17 probably in improper resulted judg- Grinnell.75 But Armstrong denies she is 61.1(a) (providing 70. TEX. R. APP. P. that no 73. 32 710-11. judgment may be reversed "unless the Su- preme Court concludes that the error com- Moriel, 10, Transp. Ins. Co. v. 879 S.W.2d plained probably of ... caused the rendition (Tex. 1994). Armstrong points 23 to one occa improper judgment”). of an appear sion when we to have considered a post-sale knowledge defendant's of other acci recognize comparatively large 71. We a num- Sanchez, Corp. dents. In General Motors pedal might ber of mistakes be some evidence experts we noted that the defendant’s "admit pedal design. Uniroyal of a defective Cf. they just ted had testified in a similar case in Martinez, Goodrich Tire Co. v. 977 S.W.2d 584, (Tex. 1999). California.” 997 S.W.2d 596 328, (Tex.1998) (holding 340-41 other claims finding But we as did so in the course of no of mismatch between tires and rims admissi- indifference, evidence of conscious id. at 596- ignor- ble to show defendant knew users were doing ing there was no harm in so. warnings misusing product). and But Armstrong makes no such claim here. (Tex.1997). 75. 951 S.W.2d Franklin, Distributing 72. See Williams Co. v. (Tex. 1995). 898 S.W.2d one, claim, a new requires of former trial and a the court the making such moot. a is purported point such this appeals never to create duty.76 under this complaint Nissan’s argues also trial Armstrong the trial рoint appears instead to be that judgment rendering in not court erred inci- post-sale court admitted of withstanding the on her claims as verdict dents, we in complaints have addressed fraud, misrepresentation, serting negligent part III above. of the warranty, and violation breach car Armstrong her from DTPA. obtained
Third, trial court argues Nissan that the bought years after it parents six her charging in that Nissan erred Nissan; no involvement Nissan had from notify in negligent per failing se in transaction.79 interest pecuniary or Armstrong United States Government any specific war was no evidence of There con- it ... learn[ed] “when vehicle representation Nissan ever made ranty good in a defect and decid[ed] tained] her, duty no either.80 to disclose faith the defect to motor that related [was] in dismissing trial court did not err notify the safety.”77 did vehicle these claims. government complaints of the of unintend- cars, in ZX ed and the subse- acceleration Accordingly, judgment we reverse quent investigation until was not concluded appeals, court of and remand case bought years Armstrongs three after Armstrong’s remaining trial on for a new assuming their car. Even Nissan’s notifi- opinion. in this claims accordance with incomplete cation was and that a violation could in an the statute be asserted concurring O’NEILL filed Justice case, is negligence
individual citizen’s there opinion. any govern- that report evidence to the SCHNEIDER did Justice change in a ment would resulted in the decision. participate bought ZX the Armstrongs cars before Thus, no statute theirs. violation of the O’NEILL, concurring. Justice injury.78 caused their judges I with the must agree Court vigilant assuring In appeal, Armstrong argues especially her be evi- part involving prod- the trial court erred in remitting dence of incidents exemplary damages. specific we have defect must product Because uct to show sufficiently concluded inadmissible tainted similar to be admissible. be reason, plain representatiоn the same address that defendant For need not intended on); argument that not defective Corp., Nissan’s a car is to act v. U.S. Brass tiff Amstadt (Tex. 1996) solely tear of its (limiting because normal wear and parts, Armstrong such claim. occurring makes no DTPA claims conduct connec *18 alleged with the consumer’s ltransac tion Sloane, tion); 30118(c)(1). Tyler § v. 77. Fed. Land Bank 49U.S.C. Ass'n of 439, (Tex.1991) (holding neg 825 S.W.2d misrepresentation requires represen ligent Armstrong any making 78. com- As denies "made in the course of tation defendant plaint post-sale duty, on a none of her based business, or his in a transaction which he post- liability any question involves claims interest”). pecuniary ahas sale recalls. v. 80.See Crim Truck & Tractor Co. Navistar Corp. 79. Formosa Plastics USAv. Presidio See Contractors, Inc., Corp., Transp. 823 S.W.2d 593-95 Int'l Eng’rs & (Tex.1998) (Tex.1992). (holding requires a material fraud join Other-incidents evidence like much of that opinion, the Court’s I though concur in presented in poses this case a significant judgment. its confusing risk of creating
prejudice, probative while its value is rela-
tively Accordingly, high low. degree of
similarity to specific defect in issue
must be shown to meet the threshold for
admissibility. I agree also with the Court
that the number of improp- other incidents erly admitted in this case to show that the Harry Gilchrist, J. JOE and Jenkens & plaintiffs alleged vehicle was defective as Corporation, A Professional resulted I sepa- reversible error. write Petitioners, rately, though, out of concern that breadth of the opinion Court’s could cause perceive the trial court to that its hands THIRTY NINE TWO JOINT upon
are tied retrial. VENTURE, Respondent. categorically The Court deems much of inadmissible, the plaintiffs’ evidence when No. 02-0218. such might prove evidence to be admissi- Supreme Court of Texas. purposes ble for other as the retrial un- could, folds. Nissan example, present Argued April evidence that opens the door to other- incidents evidence. And some of the evi- Sept. Decided dence that the Court dismisses out of hand prove
could to be proper subject
rebuttal, depending upon how the case de-
velops. simply We will not know until the retried,
case is experienced and the trial
judge this case should be free to re- such presented
evaluate it is as. parameters
under the the Court describes.
I am also concerned with the Court’s
view that the “sheer number” of other
incidents could never raise inference
that unintended acceleration was caused
by something other than driver error. 145 at 147. If a particular vehicle experienced,
model say, had thousands of incidents,
unintended-acceleration while comparable experienced models had two, might an inference be raised
driver error was not the cause. sum, agree
In I with similarity stan-
dard the Court sets and its conclusion that
harmful error occurred this case. But
for the I foregoing fully reasons cannot