Parr, J. v. Ford Motor Company

PARR, Husband and Joseph April Individually

Wife, and as Parents Parr, of Samantha

Natural Guardians

Appellants McCafferty COMPANY, MOTOR

FORD McCafferty Auto Sales, Inc.

Ford d/b/a McCafferty of Mechan

Group, Ford McCafferty Inc.,

icsburg,

Company, Appellees. Pennsylvania.

Superior Court Aug. 2014.

Argued Dec.

Filed ELLIOTT, P.J.E.,

BEFORE: FORD BENDER, P.J.E., BOWES, SHOGAN, ALLEN, OTT, WECHT, STABILE AND JENKINS, JJ. SHOGAN, BY J.:

OPINION Plaintiffs-Appellants, Joseph April and (“the Parrs”), wife, indi- Parr husband vidually parents guardians and as Parr, ap- Samantha daughter, their minor August judgment peal from the of Common Pleas of Philadel- Court following phia County, which was entered post- of the Parrs’ motion for the denial Appellees trial relief. are Defendants McCafferty Ford Company, Ford Motor Sales, doing McCafferty Inc. business as McCafferty Group, Auto Ford of Mechan- Inc., McCafferty icsburg, Com- “Ford”). (collectively Following pany our record, review of the voluminous and in applicable consideration of the law and arguments parties, of the we affirm. 21, 2009, July On the Parrs’ 2001 Ford Excursion, they purchased which as a “used” vehicle in was struck a van stop sign, causing that ran a the Parrs’ clockwise, guardrail, hit a spin vehicle and roll down a nineteen-foot embank- 8/26/11, Complaint, ment. Amended at ¶¶ 14, 26-28; N.T., 3/8/12, Joseph at 30. driving Parr was at the time of the acci- dent; wife, Parr, April his their three mi- children, Parr, Margaret Joseph’s nor mother, occupants were vehicle. ¶¶ 8/26/11, 20-25; Complaint, Amended at N.T., 3/8/12, passengers, at 31. All who all seatbelts, injured; wore their were occu- vehicle, pants on the driver’s side of the Joseph Tyler Parr and children and Cari- Parr, comparatively lann sustained minor 8/26/11, at injuries. Complaint, Amended ¶¶ 20-25, Parr, Margaret Joseph 31. Harrisburg, for Angino, ap- Richard C. mother, fifty-seven-year-old Parr’s who sat pellants. side, passenger in the second row on the Perella, DC, injuries not in this and her Washington, Dominic F. involved were not in the amended com- appellees. identified 8/26/11, at March with a plaint. Complaint, Amended defense verdict. ¶ Samantha, Daughter was sit- 25.1 who jury The on indicated the verdict form that passenger the third ting in row on the (1) not prove: the Parrs did Ex- skull, side, sustained broken a fractured design cursion’s roof defective when collarbone, orbital, eye a lacerat- fractured “left the control of Ford and that there liver, and facial Amended ed lacerations. alternative, design was an safer that was ¶ 8/26/11, Parr, April at Complaint, practicable circumstances,” under the seat, passenger the front sus- sitting (2) “that was negligent design Ford in its spinal cord was ren- tained of the roof structure on the 2001 Ford a quadriplegic. dered Amended Com- Excursion when it left Ford’s control and ¶ 3/8/12, 8/26/11, 29; N.T., at at 33. plaint, alternative, an design there was safer Emergency responders employed the practicable that was under the circum- life2 from jaws April to extract Parr Jury Form, 3/23/12, stances.” Verdict Excursion; during process, roof ¶¶ 1, jury 3. The thus did not reach the structures of the vehicle were pillar or damages. issues of causation (Afternoon N.T., destroyed. Ses- 3/9/12 post-trial filed Parrs motions on sion), at parties stipulated 35-38. The briefs, March parties 2012. Both filed shortly July after the accident in and the court trial denied the motions the Parrs’ Ford Excursion was released to 31, 2012, August entering judgment fa- insurer, vehicle, the Parrs’ which sold the day. timely vor of Ford This appeal N.T., destroyed. and the automobile was 10, 2012, September followed on Session), (Morning at 30-31. 3/15/12 challenge pretrial the Parrs several evi- complaint The Parrs filed a Ford against dentiary rulings and an aspect of the trial Company dealership and the Motor Ford charge jury. court’s Both the trial them their 2001 Excursion that sold complied court and the Parrs with Pa. 28, 2009, on December and an amended R.A.P.1925. 26, 2011, on complaint August contending April Parr’s Parr’s in- that and. Samantha panel A of this Court filed a memoran- juries resulted from roof when the crush affirming the judgment dum in favor automobile rolled down the embankment. Ford Company, Ford. Parr v. Motor ¶¶ 8/26/11, Complaint, Amended (Pa.Super. EDA 2012 filed December alleged Parrs roof The the vehicle’s 2013) memorandum). There- (unpublished defectively system and restraint were de- after, reargu- the Parrs filed a motion for under the doctrine signed crashworthiness granted ment en banc. We the motion products they liability, of strict assert- arguments August and heard oral on in negli- sounding ed additional claims ripe disposi- 2014. This matter is now for gence. Complaint, Amended 8/26/11. tion. in the on Trial matter commenced 6, 2012, raise in The the same four issues over the Parrs March continued weeks, ensuing culminating three in their appeal identified Life,” P-8, expert 1. Parrs' Exhibit which is an re- 2. "Jaws of a trademark of Hurst Per- by Inc., port formance, Donald Friedman counsel to Parrs’ hydraulic are rescue tools 29, 2011, Margaret June dated describes emergency by personnel rescue used to assist injury as "a Parrs’ Parr's fractured hand.” victims, http:// vehicle of crash extrication P-8, Friedman, Report Exhibit of Donald www.jawsoflife.com. 6/29/11, at 3. 1925(b) statement, par- vehicle’s since neither which are as destruction Pa.R.A.P. experts ty’s had access to vehicle follows: theory based upon and since Ford’s A. the Trial Court committed Whether occupants in assumption that all roll- abused an error of law and its discretion in the injured the Parrs’ in over vehicles are same when it denied Motion way? preclude 1 to from Limine No. of its presenting “diving,” “tor- Parrs’ Brief at 7-8. theory, augmentation” so which was dis- initially Supreme We note that our superseded credited and the National adopted Court 402A of the section Restate Safety Traffic Administration Highway (Second) Zern, ment of Torts in v.Webb (NHTSA)’s Rule May Final dated (1966), 422 Pa. 220 A.2d 858 and reaf 2009? vitality firmed the Second Restatement’s B. the Trial Court Whether committed — Flex, Inc., in Omega Tincher v. Pa. an of law and abused error its discretion (2014) -, (“Pennsylva A.3d granted

when it Ford’s in Li- Motion nia juris a Second Restatement remains preclude No. 3 to mine references diction”). Section 402A states: post-2001 NHTSA and rule- standards dated making pres- documents 2001 to Liability § Special 402A of Seller of ent, on the basis that the Excursion was Physical Product Harm to User or manufactured originally and sold Consumer 2001? (1) One any product who sells a de- C. Court Whether Trial committed unreasonably fective danger- condition an error of law and abused its discretion ous the user or consumer or to his granted when it Ford’s Li- Motion in property liability for subject physi- is altogether precluded mine No. 9 and harm thereby cal caused to the ultimate offering Parrs from statistical evidence consumer, user or property or to his if NHTSA, FARS, IIHS, prepared (a) the engaged is in the seller busi- NASS as rollover fatalities and/or product, ness of selling such involving compa- the 2001 Excursion and (b) rable vehicles on the basis expected to and does reach prove unable to Parrs were without user or consumer substan- derived from other ac- statistics rollover tial change the condition which it were virtually cidents that identical [sic] is sold. subject accident? (2) (1) The rule stated Subsection ap- D. the Trial Court Whether committed plies although an error of law and abused discretion its (a) the all seller has exercised possi- Parrs’

when it denied the Motion in ble preparation care in the and sale of preclude Limine No. 10 to Ford from: product, his and (a) presenting consequently filling —and (b) the record with—evidence that the 2001 or consumer user has not (b) preserved; bought Excursion was not from or product entered charge into obtaining spoliation any when Ford contractual relation with the seller.[3] suffered no prejudice resulting from the 402A, Torts, § 3. The term "seller” includes "manufactur- cmt. f. product. er" of a (Second) Restatement § Torts, (Second) 402A adopted principle tenet of the Restatement (1965). doctrine, ie., crashworthiness manufac- turers are strictly liable for defects that prevail In order to in such a do not cause the accident but neverthe- product liability the plaintiff must less cause an increase the severity of (1) product establish: that the was defec injuries that would have occurred with- (2) tive; that the defect existed when it left out the defect. (3) defendant; the hands of the the defect caused the harm. Reott v. Asia Gaudio v. Ford Company, Motor Trend, Inc., 7 (Pa.Super.2010). A.3d 830 (some 532 (Pa.Super.2009) citations product A omitted). is defective “when it is not safe for its intended use.” Weiner American parties The herein differed regarding Co., Inc.,

Honda Motor 308 how the injuries to the Parrs occurred. (Pa.Super.1998). The Parrs asserted that as the Excursion embankment, rolled down the the driver’s crashworthiness doctrine roll, side led the and the roof over the typically most arises in the context of mo “trailing” passenger side of the vehicle See, tor vehicle accidents. e.g., Raskin v. crushed passenger into the compartment. (Pa.Su Ford Motor 837 A.2d 518 ¶ 8/26/11, Amended Complaint, at. per.2003). It explicitly was first recog In support, the alleged Parrs April specific nized as a product subset of liabili Parr, Parr and Samantha who sat on the ty law this in Kupetz Court v. Deere & passenger vehicle,4 side of the sustained Co., Inc., 435 Pa.Super. 644 A.2d 1213 significant injuries “as a result of the col- (1994), and is protection defined as “the roof,” lapsing whereas passengers that a motor vehicle passenger affords its Excursion, driver’s side of the “over against personal injury or death as a result which the roof did not significantly col- of a motor vehicle accident.” Id. at 1218. lapse,” injuries. incurred minor Id. at A requires crashworthiness claim ¶¶ 29-31. proof First, of three elements. plaintiff prove must design position premised Ford’s was on a “div- defective, the vehicle was and that at the ing” and augmentation” “torso defense. alternative, safer, time of design an and Ford’s experts opined that when Ex- practicable design existed that could down, flipped upside cursion centrifugal have incorporated Second, been instead. pulled force out of passengers their seats plaintiff identify must injuries those pushed their against heads the vehi- he or she would have received if the roof, cle’s a phenomenon diving. called design alternative had instead been N.T., Session), (Morning at 36-38. 3/7/12 Third, plaintiff used. must demon- April theoretically Parr’s head already injuries strate what were attributable to in contact with the roof when the roof the defective design. ground struck the as the vehicle rolled

In recognizing over; halt, crashworthiness as her abrupt head came to an doctrine in Kupetz, move, this Court relied her torso causing continued to her Supreme our prior Court’s decision to break her neck. Id. phenomenon This in McCown v. International Harvester is known as torso augmentation. Id. at 38. 13, (1975), 463 Pa. 342 A.2d 381 Mr. Leigh, Michael J. Ford’s expert Notably who, any Margaret according absent is reference to report, to Donald Friedman’s Parr, who passenger also sat on the side and sustained a fractured hand. 690 the deforma- you say All can is that the Parrs called on strength who

roof cross-examination, theory are with injury Ford’s tion and the associated explained experi- why signif- impact. Parr sustained And Mr. Parr didn’t regarding April Parr, Joseph as injuries compared impact. that severe of an That’s icant ence follows: the difference. Q. Well, April] both they [Joseph and Session), N.T., (Morning at 89-41. 8/7/12 over, subjected were rolled both to address proceed We at you But if looked centrifugal force. evi to the trial court’s challenges Parrs’ roof, April roof over Parr had that dentiary rulings. A motion in limine or deformation of a

what we call crush ruling a on the used before trial to obtain inches; right? 11 is that total residual of admissibility of evidence. Northeast significant- A. I know that the roof Works, Murphy & Iron Inc. v. Fence the vehicle. ly deformed on that side of (Pa.Su Co., Inc., 933 A.2d 664 Quigley part that of the And that means gives judge “It the trial per.2007). significant impact. roof sustained opportunity weigh potentially prejudi if the other side of the roof was And trial cial and harmful evidence before the that, like that means that not deformed occurs, preventing the evidence from thus signifi- the roof did not sustain a side of reaching jury.” ever Commonwealth impact. cant Reese, (Pa.Super.2011) v. 31 A.3d 715 Mr. Parr not And if the roof over did (en banc). A trial court’s decision to significant impact, then I’m not sustain grant deny or a motion in limine “is sub get injured. that he did not surprised evidentiary to an abuse of discretion ject all surprised But I would not be standard of review.” Id. in that that his head did touch the roof admissibility Questions concerning the if tall and expe- event because he’s that lie discre of evidence within sound force, riencing centrifugal his head is court, tion of the trial and we will not roof, as well. He was going touch absent a reverse court’s decision just enough experience fortunate not to of discretion. clear abuse Common that, unfortunately, his wife impact Systems, wealth Financial Inc. v. experienced. Smith, (Pa.Super.2011) 15 A.3d Q. you’re saying it didn’t come And Nye, v. A.2d (citing Stumpf or about from this inches of crush “An (Pa.Super.2007[2008])). 1035-1036 just deformation? It came from centri- may not be found abuse of discretion force; fugal right? might merely appellate because an court A. The is an indication of deformation conclusion, have reached a different but severity impact part unreasonableness, a manifest or requires experienced. of the roof bias, ill-will, or partiality, prejudice, injury that Mrs. Parr received is clearly lack of so as to support such be severity an indication of the of the im- Inc., Frito-Lay, Grady erroneous.” pact experienced being that she in the (Pa. Pa. place part same as that of the roof. So 2003). her and the deformation are asso- Keystone Logistics, Dedicated LLC v. JGB impact, ciated with the doesn’t but (Pa.Su- Inc., Enterprises, mean that the deformation of the roof addition, “to constitute re- injury. go per.2013). caused her You can’t error, evidentiary ruling an must far. versible erroneous, but also harmful or only required stringent not be more roof- complaining party.” prejudicial crush standards. Jain, 782,

Winschel v. (emphasis Parrs’ Brief at in origi- Welker, McClain v. (Pa.Super.2007) (citing nal). The Parrs reference the following: 155, 156 (Pa.Super.2000)). Roof of Injury Crush as a Cause in limine The Parrs’ motions numbers one, three, dealt with the and nine all issue A number of including commenters “diving” of “roof crush” and versus “torso Nissan[5] GM, Ford, ... stated [and] augmentation.” the Parrs’ particular, ... statistical correlation found sought motion in limine number one injury between roof and intrusion does preclude presenting Ford from evidence of not establish a relationship causal be- augmentation diving/torso theory, its tween injury.... roof deformation and which the was Parrs asserted discredited merely ... suggest [T]he studies that superseded and National Highway there is a relationship.... you “[W]hen (NHTSA)’s Traffic Safety Administration compare rollover accidents that have 12, Final May Rule dated 2009. The Parrs significant deformation roof/pillar with assert Ford that in compa- admitted other rollover that very accidents have stronger rable vehicles existed with much deformation, little or no roof/pillar you roofs than that of the Excursion. Ford are not comparing similar accidents with acknowledged may that crush roof cause respect impact to roof-to-ground severi- defended, injuries in some but cases ty. Just the fact that two vehicles are in diving/torso on the basis of its aug- a greater rollover with than 2 quarter theory. mentation turns does not mean are in the trial, pretrial, The Parrs asserted and impact same or even similar severities.” in their as appellate brief follows: ... Ford stated that amount “[t]he Although “roof crush” the- N[H]TSA’s only roof an deformation is indication of ory industry’s “diving/torso versus the the severity impact between the augmentation” a heavily was contested ground.” roof and the ... GM stated issue years prior year for injury occurrence “[observations manufacture, Excursion’s at the end of a rollover collision reveal NHTSA once determined all nothing regarding relationship that “roof not “diving/torso crush” and deformation, strength, roof or roof roof augmentation” the cause of head strength-to-weight ratio causa- injuries and neck as those sus- —such tion.” Nissan stated deformation among tained Mrs. belted oc- Parr — injury severity are both indepen- cupants in accidents. rollover NHTSA dently impact roof sever- associated with finding upon epide- based its extensive ity. 2001-2009, miological from studies 17; The Parrs’ Brief at “Federal Motor

resultantly its Final Rule promulgated Standards; Safety Vehicle Roof Crush Re- Safety Federal Motor Vehicle Stan- (FMVSS) sistance; May dard 216 on Reporting Require- No. Phase-In extent, agency agreed, acknowledging 5. Various auto manufacturers criticized the to an study general principle, NHTSA’s a reliance on a linked roof "as statistical cor- injury, prove intrusion and and commented relation does not in that a causal serious itself relationship Fed.Reg. that a statistical correlation did not establish exists.” relationship causal between the two. The Parrs’ (“FMVSS”), The trial court concluded Fed.Reg. ments” lacking and motion was support for their (final May promulgated rule 22378-22379 stated: 2009) §§ (codified at 49 C.F.R. Rule”). 585) (“FMVSS The 216 Final documentation review of the [U]pon their support to to the Court explained: provided NHTSA has motion, Amendment to notably, the 2009 imply that appear to arguments [Some] (Federal Motor Vehicle the FMVSS must be in roof intrusion any difference Standard) suggestive of although Safety severity impact in due to a difference to convince argument, failed appellants’ design.... strength roof rather than argu- of their that either this Court logical are reasons believe There First, al- meritorious. ments [was] an roof that strikes collapsing that a cite the 2009 Amendment did though nearly instanta- occupant’s head at which found a correla- statistical studies velocity experienced when impact neous in injury crush and tion between roof cause serious might structures deform accidents, appellants’ contention rollover types injuries were injury. These conclusive- the NHTSA amendment investiga- ... in a detailed relationship documented a causal ly determined that agency tion of 43 rollover crashes. and head existed between roof crush accidents, statistically significant injury believes that the and neck rollover augmentation, roof intrusion and the exclusion of torso relationship between a correlation was proven. Although ... not occupant injury indicates not belted shown[,] appel- as provide, it did not just suggestion, probability but a showing arguing, lants’ were strength inju- reduces increasing roof such, As this it was conclusive. ries. appellants’ con- Court determined 17-18; at The Parrs’ Brief FMVSS merit and denied tention was without Rule, Fed.Reg. Final at 22379. pre-trial sought motion which their presenting from evi- preclude appellees Parrs’ motion noted, As augmenta- or torso “diving” dence that limine number one sought preclude inju- April Parr’s plaintiff, tion caused diving/torso aug presentation of Ford’s appellants Both ries. appellees theory jury, contending mentation testimony expert extensive presented research, studies, forty years of that after subject “roof during trial on the tests, specifically NHTSA experience, appel- “diving” crush” vs. as cause Fi theory in FMVSS 216 discredited end, lant, injuries. In the April Parr’s Rule, nal and validated “roof crush” as the inju- jury that Ms. Parr’s concluded injuries neck sustained cause of head and not “roof “diving” ries resulted from occupants belted in rollover motor vehi the appellees. crush” and found for finding, the light cle accidents. of that 3/1/13, at 4-5. Opinion, Trial Court maintain, amended the roof Parrs NHTSA increases require crush rule to substantial Final Rule Our review of FMVSS 216 strength applicable in roof to all consumer categorically that it not exclude reveals did court argue vehicles. The Parrs the trial augmentation as a cause diving/torso exper should have deferred to NHTSA’s neck in rollover crashes. head and preclude introducing merely tise to Ford from evi states that some The document in- “might” roof crush cause serious diving augmentation dence of and torso cases proposition which is a with which jury, trial. agreed.6 Nothing in NHTSA’s con- Nothing contained the agency’s re- categorically aug- clusion excluded torso sponse suggests that the final rule cate- diving potential mentation or as a cause gorically excluded augmentation torso Thus, injury rollover crashes. diving as a cause of head- inju- and neck position Parrs’ that NHTSA determined inry a rollover contrary, crash. To the “once and for all” that roof crush and not response resolutely NHTSA’s diving/torso augmentation caused head and probabilistic. Furthermore, plain- [the injuries, neck such as those by sustained has shown nothing tiff] in the NHTSA’s Parr, Mrs. among occupants belted in roll- regulations that suggest would that accidents, over simply supported is not agency’s study of roof injuries crush the literature. prevent could a party from presenting at While we have not found a Penn trial evidence of an alternative explana- sylvania appellate directly case point, tion. Fawber, we approval cite with v. Campbell added) (footnote Id. at (emphasis 501 (M.D.Pa.2013).7, 8 omit- F.Supp.2d 975 485 The ted).9 The trial Campbell properly Court considered court precise is declined rejected sue and it out of hand. the Parrs’ motion in limine number one Court," suggested throughout 6. The Parrs trial that v. Kleban National Union Fire Insur experts 39, categorically Ford’s denied that roof ance (Pa.Super.2001), 43 injury; crush can ever experts possible, cause Ford’s whenever Pennsylvania courts "fol clearly disagreed. example, For low the Third litigants Ford’s biom- Circuit so that [courts] engineering expert, improperly echanical do not Dr. ‘walk Catherine across the street’ to Corrigan, achieve a testified: different result in federal court than would be obtained in state court. [Cellucci v. I’ve seen instances where roof crush has 438, Corp., Pa.Super. General Motors 450 676 injuiy. opined caused And I have not 253, (1996)] (citing A.2d 1n. Common it doesn’t. 117], Negri wealth [419 v. Pa. 213 A.2d 670 (Pa. 1965), Murtagh County v. Berks 50], (Pa.1993)).” I have Pa. [535 seen instances where 634 A.2d 179 deformation NAS DAQ PHLX, Securities, injury. roof has contributed to OMX Inc. v. I PennMont (Pa.Super.2012); have seen A.3d instances where it has v. not. Werner (Pa.Su Plater-Zyberk, So the fact that there are researchers (same). per.2002) who have said that roof crush can cause injury, that would be correct. N.T., Session), (Morning at 29. Dr. 9.The Parrs assert 3/19/12 NHTSA’s conclu- Corrigan later plenty reiterated that "there is sion that roof crush is a cause of of data out there to show instances where entitled to deference under Chevron Nation- Council, injuiy roof crush does matter in and does al Resources 467 U.S. Defense injuiy. (1984). cause In this because of the 104 S.Ct. 81 L.Ed.2d 694 kinematics, Chevron, it inju- was not the cause of the Parrs’ Brief Supreme at 29. In ry.” expert at Id. 28. give Ford’s on roof Court held that courts must deference to strength, Leigh, agency’s Michael J. testified that interpretation an reasonable dispute Chevron, "Ford doesn’t there could be statute it administers. 467 U.S. 842-843, claim, situations where roof crush or roof deforma- at 104 S.Ct. 2778. This as N.T., well, injuiy.” Court, tion (Morning causes an Campbell was addressed 3/7/12 Session), conclusion, 34. and we concur with its as follows: disagrees plaintiff’s] "The court with ar- [the reargument, In their brief on the Parrs fail gument conclusively that the NHTSA deter- acknowledge the federal court's decision in mined that roof crush is the exclusive cause Campbell. injuiy head and neck in rollover collisions and, therefore, unnecessary it is to address 8. While “federal court argument.” Campbell, decisions do not con- Chevron [the] Superior trol F.Supp.2d determinations of the at 502 n. 4. they now assert was the evidence that put diving/torso its permitted wrongly excluded. theory jury. before augmentation preclude ref- defending its decision the trial court next contend The Parrs rulemaking documents erences to NHTSA motion in granted Ford’s erred when the follow- after the trial court stated all refer- preclude three to limine number ing: rulemaking documents ences to NHTSA plain- that a Pennsylvania requires law NHTSA 216 particularly, after 2001 and allegedly that an defective prove tiff Rule, “on the basis that the [2001] Final time of vehicle was defective at the manufactured, designed, was Excursion Langston Duchess v. Cor- manufacture. 2001,” before the eight years in and sold 1131, 529], Pa. poration [564 Parrs’ Brief publication. The Final Rule’s (Pa.2001). However appellants 1142 sought The Parrs to admit at 31. sought to introduce NHTSA standards to estab- rulemaking of these documents year the rulemaking subsequent and to causation, diving/tor- dispute to Ford’s lish subject vehicle was manufactured. impeach to augmentation theory, and so It was this Court’s determination theory. reliance experts’ Ford’s assessing frame for the relevant time main- Parrs’ Brief at 33. The Parrs design defectiveness of the and/or upon prece- relied tain that the trial court subject up Ford Excursion was to concerning whether this evidence was dent including year and it was manufac- “defect,” which to establish a admissible tured, The standards that were theory to the Parrs’ inapplicable (2001) in at that time were-what place They suggest causation. roof crush appellants’ was relevant to causes of have relevance to notice or may 2001 date against appellee, action Ford Motor but it has no relevance to negligence, trial, per- were Company. appellees At impeachment. Id. issue of causation introduce evidence of mitted and did up to NHTSA standards that existed that the trial court acted responds Ford ap- year 2001. This Court found excluding its discretion in reference within pellants’ they contention that should cul- rulemaking activities that post-2001 to permitted have been to introduce sug- in Final Rule. It minated FMVSS 216 rulemaking sub- NHTSA standards and gests regarding postmanu- that evidence year 2001 without merit sequent to regulatory facture standard is irrelevant accordingly granted appellees’ pre- and go it does not to whether because such evidence. precluding trial motion defectively designed Excursion’s roof was 3/1/13, Opinion, Trial at 5-6. Court plant when it left the Ford 2001. Ford maintains that the documents also do not The trial court’s order dated causation, they merely suggest that prove 27, 2012, 5, 2012, March and filed March theory possible, is the Parrs’ causation in limine num relating to Ford’s motion Ford dispute that issue was not because three, to precluded ber reference “FMVSS Thus, 216, argues 216, it at trial. Ford admitted the 2009 Amendments FMVSS any marginal was far out- Proposed relevance Notices of Rulemak or Related (docket Order, 3/27/12, entry the likelihood that evidence of weighed ing. ...” at 145). standards was failed to note the inapplicable government Initially, the Parrs Moreover, where the trial court likely jury. place to mislead the the record fifteen studies and maintains that the Parrs’ claim is declined admission of the Parrs asserted presented publications, the Parrs some of moot because erroneously 2001; were excluded years trial after 2005, dated from court, thereby hampering ability our to when the NHTSA issued notice of pro- address the issue as to all of the docu- posed rulemaking update 216,11 FMVSS ments.10 per- We address the claim as it when NHTSA issued the Final tains to the trial pre- court’s decision to NPRM, Rule. “Federal Motor Vehicle clude reference to the documents related Standards; Safety Resistance, Roof Crush 216 Final FMVSS Rule. Fed.Reg. (proposed Aug.

The trial court granted Ford’s motion 2005); Moreover, FMVSS 216 Final Rule. limine number three to the extent even after updated standard did sought to exclude reliance on NHTSA apply not to the Excursion. The FMVSS standards rulemaking documents after Final Rule apply does not to vehicles of year the Parrs’ Excursion was gross Excursion’s vehicle weight grad- manufactured. It undisputed that roof- (i.e., 6,000 ing 10,000 between pounds) strength standards in FMVSS Final September until 2016. FMVSS 216 Fi- Rule did not apply Excursion be- Rule, 22348; nal 74 Fed.Reg. at Ford’s vehicle, 8,800 cause the pounds, is be- Motion in Limine No. Exhibit D. yond the “scope Safety Design of [the] stated, As we have it Guideline, is well 8,500 stops at settled that the decision to N.T., admit or ex pounds_” (Morning Ses- 3/7/12 sion), 53, clude evidence is 83. The vested rulemaking docu- sound dis sought ments Ford to exclude in cretion of the trial its motion court and will not be in limine number three did not issue until appeal overturned on absent an of abuse Indeed, initially deficiency Parrs failed to include which cannot be remedied mere- any testimony notes of in the record certified ly by including copies missing of the docu- appeal, compelled to us on and this Court was reproduced ments a brief or in the rec- supplementation through seek of the record Kennedy, ord. Commonwealth v. 868 A.2d Prothonotary. our weAs stated in Common- 582, (Pa.Super.2005). 593 Preston, 1, (Pa.Su- wealth v. 904 A.2d 6-8 (en banc) (some omitted): per.2006) citations proper Pennsylvania It is not for either the appellate The fundamental tool for review is Supreme Superior Court or the Court to the official record of the events that oc- transcripts order responsibility nor is it the curred in the trial court. Commonwealth v. appellate of the courts to obtain the neces- Williams, 451, 1101, 552 Pa. 715 A.2d 1103 sary transcripts. (1998). appellate To ensure that an court specific In the absence of indicators that a records, necessary Pennsylvania has the relevant document exists but was inadvertent- Appellate provide Rules of Procedure record, ly omitted from the certified it is not the transmission of a certified record from time, expend incumbent this Court to appellate the trial court to the court. Id. manpower scouting judicial effort and Pennsylvania The law of around is well settled that prothonotaries’ chambers or the various matters which of- are not of record cannot be appeal. pleas considered on fices of the courts of common for the Commonwealth v. 460, 755, purpose Bracalielly, unearthing transcripts of ... 540 Pa. 658 A.2d [that] 763 (1995). Thus, appellate formally an never were court is limited introduced and made considering only of materials the certified record. part resolving certified record when an issue. Walker, 19, 11. August Proposed 2005 Notice of Commonwealth v. (“NPRM”) Rulemaking (Pa.Super.2005). adopted regard, 888 was not an our standard, open law it was an is the same in both the civil and crimi- docket to receive because, Pennsylva- regarding proposal by nal context under the comments NHTSA. Procedure, Appellate any nia Rules of docu- NHTSA issued an NPRM in 2008 as well. part officially ment which is not Ford’s Motion in Limine No. B Exhibit (docket 92). certified entry record is deemed non-existent—a Duchess v. at 11. at the time it was made. See Keystone, 77 A.3d

that discretion. 1131, 1142 admissible, Langston, 564 Pa. evidence Additionally, to be (“[O]ur (2001) requires that jurisprudence must be relevant. time of are to be evaluated at the products relevant is not “Evidence that is not a claim of examining distribution when Pa.R.E., Rule Pa. admissible.” defect.”). The 216 Final product FMVSS evidence is de Relevant Cons.Stat.Ann. rulemaking leading up Rule activities “having any tendency fined as evidence circum properly to the amendment were any to make the existence of fact Ford’s grant scribed the trial court’s consequence to the determination number three. See Dun motion in limine probable proba the action more or less Pa.Super. kle v. West Penn Power PaJEt.E., 401, 42 ble.” Rule Pa.Cons. (1990) (“[I]n 334, 583 A.2d a strict added). Even if ev (emphasis Stat.Ann. the manufacturer of liability against action relevant, if may be excluded idence is product, safety promulgated standards outweighed by, probative its value is product after the sale of the are irrelevant alia, danger prejudice inter of unfair product show that the and inadmissible to to the fact- arising presentation from its in defectively designed or contained Pa.R.E., finder. Rule 42 Pa.Cons. “ manufactured.”). adequate warnings when prejudice’ supporting Stat.Ann. ‘Unfair' Industries, See also Oberreuter v. Orion exclusion of relevant evidence means a (Iowa Inc., App.1986); Al 398 N.W.2d an im tendency suggest decision on Rodgers Machinery Manufacturing ter v. jury’s atten proper basis or divert (Iowa 1978); Co., Inc., 268 N.W.2d away duty weighing tion from its Sons, Rice v. Hanrahan & 20 Mass. James impartially.” Commonwealth 701, (Mass.1985); App.Ct. 482 N.E.2d 833 270, 325, Wright, v. 599 Pa. 961 A.2d Cohen, 261, 473 Cover v. 61 N.Y.2d (2008). 119, 151 “The function of the 378, (1984); N.Y.S.2d 461 N.E.2d 864 Tur alleged prej trial court to is balance Corp., ner v. Motors 584 S.W.2d General against udicial effect of the evidence its (Tex.1979); Majdic Ma 844 v. Cincinnati ap value not for an probative A.2d 334 Pa.Super. chine pellate usurp court to that function.” (1988). Parker, v. Commonwealth (Pa.Super.2005), on other aff'd Moreover, reject we the Parrs’ as grounds, 591 Pa. 919 A.2d 943 if rulemak post-2001 sertion that even the (2007). ing prove inadmissible evidence was to Yates, (Pa.Su-

Lykes defect, prove it was admissible to causa in per.2013) (emphasis original). noted, tion. The Parrs’ Brief at 33. As

We conclude the trial court cor we have determined that the FMVSS 216 rectly found that the standard enacted Final Rule and related documents demon applicable which is not until strated that roof crush is one of several liability potential cannot form the in this causes of in rollover acci basis question The record reveals that Ford where vehicle dents. Thus, N.T., readily manufactured in 2001. evidence of admitted that fact. 3/7/12 Session), 33-34, 97; N.T., at (Morning the FMVSS 216 Final Rule in 2009 and Session), 64-71; N.T., rulemaking 2005 and (Morning activities from at 3/19/12 (Afternoon Session), at 27-28. leading up properly amendment 3/19/12 Thus, compelled question were excluded. The Parrs were the documents in did not prove any that the Excursion was defective make the existence of fact that is consequence the determination of the materials order to impeach Ford’s ex- probable action more or less than it would pert witnesses. The Parrs’ Brief at 35-36. be without the evidence. Pa.R.E. 401. First, This argument fails. the record re- veals that the Parrs did impeach Ford’s

Further, despite the trial ruling court’s experts with NHTSA’s regard- conclusions three, on Ford’s motion in limine number See, ing roof crush. e.g., N.T., did, fact, the Parrs 3/19/12 place the NHTSA (Afternoon Session), at 38-43 (impeaching Final Rule’s conclusion jury. before the Dr. Corrigan with conclusions); NHTSA’s See, N.T., e.g., Session), (Morning at 3/7/12 N.T., Session), (Morning at 32-34 63; N.T., (Afternoon 3/7/12 Session), at 3/19/12 (impeaching Michael Leigh with NHTSA’s Indeed, 33-36. during closing his argu- conclusions); N.T., (Afternoon ment, Ses- the Parrs’ 3/20/12 suggested counsel to the sion), at 29-30 (impeaching Dr. Roger jury, “And this diving, business about tor- Nightengale, a professor research in the augmentation, so they can’t convince department of biomedical engineering fact; at yet NHTSA of that they’re trying to Duke University, with NHTSA’s N.T., (Volume conclu- you-” convince 3/21/12 sions). I), addition, at 51. In the evidence encom- passed by Ford’s motion in limine number Second, 607(b) Pa.R.E. & cmt notes that three was cumulative myriad refer- “there are limits on the admissibility of ences the Parrs to the NHTSA and roof evidence relevant credibility of a See, N.T., crush causation. e.g., 3/7/12 witness,” including the provisions of Pa. Session), (Morning 41-42, 57-87; N.T., at R.E. 403 whereby the court “may exclude (Afternoon Session), 21-24, at 102- 3/7/12 relevant evidence if its probative value is 104, 123-132, 138-143; N.T., (Morn- 3/8/12 outweighed by danger of one or more of Session), 35-87, 104;. ing N.T., at 3/8/12 the following: unfair prejudice, confusing (Afternoon Session), 77; N.T., at 3/15/12 issues, misleading jury, undue de- (Afternoon Session), 44-45; N.T., at lay, time, wasting or needlessly presenting Session), (Morning 27-29; N.T., at 3/19/12 607(b); cumulative evidence.” Pa.R.E. Pa. (Afternoon Session), 29-36, 72- 3/19/12 Thus, asserts, R.E. 403. as Ford “For the 83; N.T., (Afternoon Session), at 3/20/12 same reasons post-2001 NHTSA rulemak- ing documents were not admissible for Also, truth,” they their order for a trial were not court’s available for ruling on an evidentiary impeachment. matter to consti Ford’s Brief at 32. tute reversible error requiring grant the Finally, as posits, Ford “there was trial, ruling new the legally must be both nothing to impeach Ford’s witnesses on.” erroneous and harmful to the complaining Ford’s Brief at 32. experts Ford’s con Winschel, party. 925 A.2d at 794. If the ceded that roof crush may be a cause of error in the admission of the evidence had cases, in some see supra, note 7 verdict, no effect on a the error does not which is precisely post-2001 what require grant Herein, of a new trial. NHTSA rulemaking documents demon the Parrs assert that the admission of the Hence, strate. we conclude the trial court documents would proven have causation. did not abuse its discretion in granting noted, however, As jury never reached Ford’s motion limine number three. the issue of Jury causation. Verdict Form, 3/23/12. Next, related to the trial court’s

The Parrs further suggest the trial court grant of Ford’s motion in limine number nine, should have allowed them to utilize the Parrs contend that should preclude sought 9 which Limine No. present statistical permitted have been NHTSA, during trial to statistical any the Insur- references prepared evidence Safety dissimilar accidents. Highway for evidence of other ance Institute (“IIHS”), for Statis- National Center to ar- parties opportunity had an Both Analysis Re- Fatality Analysis, tics and Limine before this gue this Motion in (“FARS”), and the Nation- System porting contend prior Appellants to trial. Court (“NASS”) System Sampling al Automotive committed an error of that this Court involving rollover fatalities concerning abused its discretion when law and/or “comparable” and other Ford Excursions Motion in Limine No. Appellees’ granted trial The Parrs assert that the vehicles. Appellants, this Court According 9. in granting its discretion court abused Plaintiffs/appel- “altogether precluded number nine to motion in limine Ford’s offering statistical lants from epidemiological studies preclude post-2001 NHTSA, In- The Insurance prepared publications that demonstrated (IIHS), the Highway Safety for stitute had rollover Ford Excursions 2001-2004 Reporting System, Fatal Accident higher death rates occupant driver and Automotive Sam- the National and/or “extra-large” comparable “large” and than in- to rollover fatalities pling System as vehicles, utility basis sport subject compara- vehicle and volving the “substantially satisfy the Parrs could not Appellees the basis that ble vehicles on Brief at test. The Parrs’ similar” that the statistics prove were unable to acted with- contends the trial court rollover accidents derived from other excluding the statistical its discretion virtually identical to the were [sic] they involved a wide vari- studies because one in the instant accident.” accidents, injuries, and vehicles. ety of acknowledge, it was [Ajppellants As that because the Parrs failed Ford asserts burden, of this proponent their as the in- requisite similarity to show evidence, establish, to the court’s sat- studies, accident, the and the statis- stant isfaction, similarity between other they relied were not rele- tics be- subject accident accidents and meaning of Pa.R.E. 401.12 vant within evidence could have been ad- fore this were inad- Ford also avers that studies any purpose. Hutchinson v. mitted hearsay highly prejudicial. missible Leasing 876 A.2d 978 Penske Truck counters that notwithstand- Finally, Ford (Pa.Super.2005). During argument be- ruling, court’s the Parrs’ coun- ing the trial Court, Appellants failed to fore this experts presented many of these sel and similarity between required show the jury. statistics to the accident and those contained subject following court stated the re- The trial compilations. No- within statistical garding this issue: unlike the sub- tably, reports, the IIHS accident, Appel- involved fatalities. ject argue next that this court

Appellants not establish that the facts Appellee’s Motion in lants could granting erred 401(a) part: provides pertinent "Whether evidence has Rule as follows: 12. Pa.R.E. tendency given to make a fact more or less Rule 401. Test for Relevant Evidence by the probable is to be determined court is relevant if: Evidence (a) reason, any tendency experience, to make a fact more light it has of scientific the probable without than it would be testimony or less principles and the other offered the evidence.... cmt. in the case." Pa.R.E. noting the rule is identical to F.R.E. While 401, states, the Rule 401 the comment to Inc., surrounding Lockley Transp., the accidents com- CSX A.3d (citation (Pa.Super.2010) analysis omit- prised they the statistical ted). jury introduce before the were wished to

substantially similar to in the “Determining those sub- whether and to what extent ject Appellants’ proffered As it was bur- prior accident. evidence of acci dents den, substantially, involves similar cir Court found that had not this depend underly cumstances will on the granted Appellees’ met their burden and ing theory the case of advanced Motion to Preclude the Statistical Evi- plaintiffs.” Bitter v. A.O. Corp., Smith dence. (10th Cir.2004). 400 F.3d “If 3/1/13, Opinion, at 6-7. Trial Court We the evidence other of accidents is sub agree with the trial conclusion that court’s stantially similar to the accident at issue the Parrs failed to show that various ex- in a particular then that evidence pert reports the relevant statistical will assist trier of by making fact compilations studies and those existence fact in dispute of a more or reports substantially relied were similar to probable, less greater the de case; thus, the instant the trial court prop- gree similarity of the more relevant the erly granted Ford’s motion in limine num- “Naturally, evidence.” Id. is a fact- ber nine and circumscribed evidence. specific inquiry depends largely theory the underlying in a defect The precluded Parrs were particular Accordingly, case.” Id. (1) from referencing compiled by data degree wide of latitude is in the vested IIHS, fatality which contained facts ob trial court in determining whether evi (2) database; tained from FARS IIHS substantially dence is similar and should mortality compared evidence that rates of be Lockley, admitted. at 395. A.3d Excursions rollover accidents to Co., Blumer v. Ford Motor other large extra-large sport utility ve (Pa.Super.2011). 1228-1229 hicles from other manufacturers involved well, noteworthy, It as (3) accidents; in rollover IIHS docu statistical compilations of accidents and comparing strengths ments roof various studies that statistical compilations cite during makes and models rollover acci accidents, satisfy the must substantial dents. Court This has stated: similarity Penske test. Hutchinson v. prior Evidence of involving accidents (Pa.Su Leasing Truck 876 A.2d 978 instrumentality is generally same Penske, per.2005). rejected this Court relevant show that a defect or dan- as illogical” “frivolous and the claim that gerous condition existed or that “expert reports do not constitute ‘other knowledge of defendant had the de- appellant] accident’ because [the However, fect. this evidence is ad- presented single no other accident to the only if prior missible accident is jury presented but only rather re sufficiently similar incident in- ports’ conclusions from hun studies plaintiff volving which occurred dreds of accidents.” at 985. other Id. sufficiently under circum- similar does, suggest, “To [Mr.] as Hutchinson on the party stances. burden is underlying this evi nature of introducing the to establish transformed, evidence dence of other accidents was similarity evidence analyzed, before the is merely compiled, because it was conclusions, to generate admitted. and summarized The the sub prove common sense.” Id. Parrs had burden to logic both and defies carry to similarity, they stantial and failed at 985-986. the issue lacks burden. Penske.13 The that Parrs were compelled It is clear merit. test, satisfy similarity the substantial The final issue to whether Parrs’ relates not, the they statistical and because did law committed an error of trial court were excluded. compilations properly and abused its discretion when denied Therefore, the trial court agree we with number ten to Parrs’ motion limine did meet question that the evidence in not (a) evi- preclude presenting Ford from: similarity the substantial test. For exam- not dence that the 2001 was Excursion FARS ple, the facts from the database (b) preserved spoliation a obtaining and included passen- referenced the Parrs charge. Parrs contend Specifically, the impacts ger vehicle deaths in frontal and in issuing spoliation the trial court erred rollovers, impacts as well as some side charge exten- jury permitting to the involving single vehicle accidents and oth- spoliation sive introduction occurring in multi-vehicle crashes. ers where Ford was unable to demonstrate Parrs’ Brief Other publica- The at 38-39. any that from the de- prejudice resulted sought tions and data the Parrs to admit struction of the 2001 Excursion. rates, roadway reported mortality design, strength large roof evaluations of lux- proffers Ford trial court’s deci- cars, cars, ury large family small pick-up infer jury sion to it could instruct trucks, with little or no mention of the un- that the Excursion contained evidence cited specifics of each accident therein. Parrs favorable to the was within See, at IIHS e.g., report, Id. 39-40. status stipu- court’s Parrs broad discretion. The Dying “The Risk One Vehicle Versus they preserve lated that failed to the vehi- Another,” 19, 2005, March Vol. No. cle had though ample opportuni- even 13; the Parrs’ Exhibit the Parrs Brief at Thus, ty to after retaining do so counsel. fatalities, publications 39. The involved Ford never had the chance to examine the injuries, neck necessarily vehicle, not did not relate experts how explained and Ford’s Excursions, to Ford and failed account negatively impacted vehicle’s absence other usage for seat belt variables. analyses. any their Ford maintains that regard error in this was harmless because The record that the reflects Parrs did evi- Parrs asserted the excluded present not evidence as to the substantial dence have aided cau- would their case on Excursion, similarity of the reports to sation, jury but the did reach causation not accident, in this the circumstances Thus, returning defense verdict. Thus, case. none of the information in the responds cannot show Parrs directly to be reports shown relevant trial court an error of committed Excursion and accident at law that controlled the outcome of the issue. The made no attempt Parrs case. underlying demonstrate that the accidents compilations in the statistical as were sub trial court resolved this issue stantially similar to the instant accident. follows: N.T., (Afternoon Session), grant Despite the 42-48 of Ford’s in Li- at Motion 3/15/12 (use studies); N.T., permitted (Morning mine No. trial court the Parrs of NASS 3/16/12 N.T., (FARS data); Session), experts to cross-examine Ford's with at 124-125 statistics N.T., (use See, Session), 4-6, (Morning (Morning e.g., and studies. at 17-19 3/8/12 3/19/12 Session), (use studies); data, studies). of NASS of NASS 49-56 IIHS use initially ruling spected

This Court deferred so properly as to defend them- However, prior making the motion. a [Appellants’ selves from allegations. permit appellee, decision this Court did 3/1/13, Trial Opinion, Court at 7-8. Ford, to introduce facts about the una- “Spoliation of evidence” is the vailability impact of the vehicle and its preserve failure to or the significant alter experts’ investigation on the into the ation of evidence for pending or future injuries cause accident and the litigation. Pyeritz Commonwealth, v. such, by the occupants. sustained As (2011). 687, Pa. 32 A.3d “When a [Appellants’ during counsel cross-exam- party to a charged suit has been with [Appellees’ experts ination of called into (sometimes spoliating evidence in that suit conclusions, question opinions their and “first-party spoliation”), called we have al based subject fact that lowed trial courts to exercise their discre vehicle was not available for them to impose range tion to a against sanctions examine inspect. spoliator.” Id. (citing Schroeder v. Further, parties stipulated at trial the Commonwealth, Department Transpor surrounding as to the facts the unavaila- tation, (1998)) 551 Pa. 710 A.2d bility Notably, of the vehicle. [Appel- (footnotes omitted). This Court has stat stipulated lants that two weeks after the ed: counsel, hiring they accident and after reviewing “When a court’s decision to released the vehicle to their insurance grant deny sanction, spoliation we company inwho turn sold the vehicle must determine whether the court which was then destroyed. Appellants abused its discretion.” Mount Olivet stipulated further did not at- Tabernacle Church Edwin L. Wie tempt to locate the vehicle until after it Division, gand 781 A.2d destroyed had been that appellees (Pa.Super.2001) (citing Croydon Plastics were not notified of legal action until v. Lower Cooling Heating, Co. Bucks & after the [destroyed]. vehicle was 629 (Pa.Super.1997) light stipulation the above (recognizing that decision whether “[t]he arguments counsel, and briefs of party, to sanction a and if so the severity [Appellants’ sanction, Court denied Pre-trial Mo- of such is vested the sound court”)). tion to accordingly Preclude and allowed discretion of the trial Such the jury to make whatever conclusions sanctions arise out of “the common proper. deemed Accordingly, this party Court sense observation that a who has gave permissive adverse inference in- notice that evidence is relevant to litiga jury, struction to the instructing that it tion and who proceeds destroy evi could, to, required but was not likely draw a dence is more to have been threat negative against appellants inference ened than a party from the destruction and thus absence of position destroy the same who does not subject Clearly Olivet, vehicle. appellants, the evidence.” Mount despite their hiring of counsel and their at 1269 (quoting Nation-Wide Check knowledge Distributors, Inc., of their pursuit legal Corp. of a v. Forest Hills (1st accident, Cir.1982)). resulting action from the trans- 692 F.2d Our subject ferred the vehicle out recognized accordingly of their courts have possession resulting being in it potential remedy subse- one for the loss or quently destroyed, thereby preventing party destruction of evidence con appellees in- having trolling jury apply from the vehicle it is to allow the its the evidence would discarding an “adverse able that and draw common sense against party. See prejudicial inference” be to the defendants.” Id. Pa., Schroeder Commonwealth 1270-71. 243, 710 A.2d Transp., 551 Pa. Dep’t of Medtronic, Inc., 24, Creazzo v. (1998). 23, Although award of sum- (Pa.Super.2006). 28-29 offending mary judgment against cases, an in some party option remains that there is no dis- The record reveals severity inappropriate makes it an its for pute responsible that the Parrs were egregious all but the most remedy for thus, and the destruction of the Excursion Tenaglia v. Proctor & conduct. See stipulation concerning The were at fault. (Pa.Su- Gamble, Inc., 306, the destruction of the vehicle was as fol- (“Summary judgment is not per.1999) lows: mandatory simply plaintiff because the accident, days July on Two after degree of fault for the fail- bears some 23, 2009, pictures Mr. Parr took preserve product.”). ure to subject Excursion while it was stor- appropriate To determine age nearby towing company. at a spoliation, the trial court must sanction factors:[14] on Au- The Parrs retained [counsel] three weigh gust 2009. (1) degree party of fault of the destroyed the evi- who altered or August On Mr. Parr released (2) dence; degree prejudice In- Progressive the Ford Excursion to by the and opposing party; suffered Company. surance (3) whether there is a lesser sanction 27, 2009, August On [the Parrs] that will avoid substantial unfairness subject off on the title for the signed and, opposing party where vehicle as a total loss. fault, seriously at offending party is will serve to deter such conduct September on Excursion was sold in the future. others 21, 2009, and, thereafter, destroyed by Olivet, Mount 781 A.2d at 1269-70 purchaser. (quoting Schmid v. Milwaukee Elec. their did not counsel [The Parrs] (3d Cir.1994)). Corp., Tool 13 F.3d attempt subject to locate the vehicle un- context, evaluation of the first this til October 2009. party “the fault of the who al- prong, evidence,” destroyed the re- or

tered initiated action [The Parrs]. quires components, consideration of two filing complaint January 2010. offending party’s duty the extent of the given No notice was to Ford Motor responsibility preserve or the relevant Company McCafferty or Ford Sales of evidence, presence or absence of pending legal prior action to the date Olivet, faith. See Mt. 781 A.2d at bad of. disposed vehicle was turn, duty prong, 1270. The is estab- “(1) opportunity inspect No notice or plaintiff knows lished where: given the vehicle was to Ford Motor litigation against the defendants is (2) likely; Company McCafferty pri- or it is foresee- or Ford Sales pending manner, suggests trial their in such a and we are able 14. While our review court issue despite explained light to evaluate the issue the lack of the has not its decision factors, weight analysis. of these the Parrs do not state trial court’s Excursion, disposed to the date the vehicle was necessary which was in “mak- ing a complete Id. at analysis.” of. Finally, the trial court had N.T., Session), (Morning at 30-31. 3/15/12 range of sanctions from which to choose We factors to deter examine the once it impose decided to one. Ford had court properly mine whether the trial de requested that grant the trial court sum the Parrs’ motion in limine nied number mary judgment as a sanction for the Parrs’ appropriate ten chose the sanction to destruction of the Excursion. Although Clearly, alone impose. the Parrs had the summary the award judgment against preserve given the Excursion capacity an offending party remains an option fact they the hired counsel six to cases, severity some its makes it an inap seven weeks before the vehicle’s destruc propriate remedy for all but the most It was that discarding tion. “foreseeable egregious See Tenaglia conduct. v. Proc prejudicial the evidence would be to the Inc., Gamble, tor & 308 defendants,” Mt. Tabernacle Olivet Church (Pa.Super.1999) (“Summary judgment is Div., Edwin L. 781 Wiegand v. A.2d not mandatory simply plaintiff because the bears (Pa.Super.2001), degree 1271 because Mr. Parr some of fault for the failure preserve Indeed, product.”). photographs days vehicle two “dis took missal preclusion of a or accident, complaint of evi indicating recog after that he dence regarding allegedly an defective as nized vehicle’s value evidence.

product is an action only extreme reserved for those an Second, prod instances where entire clearly preju Ford uct or allegedly portion defective aof diced the Excursion’s destruction.15 product lost, spoiled destroyed.” Multiple expert stated that their witnesses Mensch v. 1992 Corp., Bic WL at analyses aided would have been exami (E.D.Pa. 1992) *2 Dec. (emphasis add nation of the vehicle. Even the Parrs’ ed); Murphy Ford testified, Dr. expert Geoffrey Germane Woelfel (1985). Pa.Super. crash, a rollover the vehicle is the “[I]n best witness. It contains information In the instant trial court chose might about rollover that not be other to charge the jury permitted, that was N.T., available.” (Morning wise although required, 3/15/12 not to draw an adverse Session), Furthermore, at 57. on cross- inference Parrs against the for destruction Dr. expert examination Ford Catherine Excursion, of the which was the least se- stated, say, “I unfortunately, can’t vere possible sanctions. See Schroe- exactly der, where [April impacted not, Parr] be The Parrs A.2d 28. do N.T., cannot, we don’t vehicle.” cause have the dispute permissive ad- (Afternoon Session), at 17. Ford verse inference instruction is a lesser sanc- 3/19/12 Harry Dr. Smith tion than expert outright grant Lincoln testified dismissal or the Schroeder, summary that he “would have to” examine See judgment. liked Ltd., Co.) suggestion reject We the Parrs' Nissan Motor 2004 WL 2905323 (D.Minn. advantage 13, 2004); not did have an over Ford because Dec. see also Trull v. experts similarly America, Inc., not their did examine the Volkswagen 187 F.3d 95- Pennsylvania Excursion. While no case has (1st Cir.1999) (rejecting plaintiffs’ ar- much, agreement stated as we underscore our guments unfairly were not defendants jurisdictions spoliator other with can- disadvantaged plaintiffs' experts because by arguing avoid not sanctions “he has been vehicle). subject also could not examine the prejudiced by his own dereliction.” Lord v. Mo by Ford admitting evidence submitted sanc- that “lesser (instructing A.2d at 28 (“Ford”) of its support Company spoli- tor jury instruction tion such as cau warranted”). theory of augmentation” “diving/torso The trial ation inference is the Parrs’ stren Notwithstanding the lesser sanc- sation. giving court did not err contrary,1 there is an argument instruction. uous an inference tion of adverse regarding among experts ongoing debate the trial court did concluded that Having “tor “diving,” extent whether and to what any of the evi- its discretion not abuse may be and “roof crush” augmentation,” so Parrs, by the dentiary rulings identified accident for given in a rollover responsible reasons, judg- the above stated and for quali injuries and death. Where severe must be affirmed. in favor of Ford ment theories, competing venture experts fied Judgment affirmed. of scientific degree a reasonable each to and anal- information certainty based FORD Judge President EMERITUS upon by their scienti yses regularly relied ELLIOTT, Judge EMERITUS President court, communities, jury, the not the fic BOWES, BENDER, Judge Judge gen disagreement. the See must resolve ALLEN, Judge STABILE and Judge Hoover, Pa.Super. Rose v. 231 erally Opinion. join JENKINS (“Once (1974) the court A.2d Concurring a Judge files WECHT in fact exists for that a basis is satisfied joins. OTT Opinion Judge in which jury to opinion, it is for the expert evidence”). of the weight determine BY OPINION CONCURRING WECHT, J.: issue, Parrs contend In their second time-worn, venerable, if It is a somewhat in its discretion that the trial court abused make bad law. aphorism that hard cases to ex- motion in limine granting Ford’s Thus, a “hard” case when confronted with with and data associated clude studies might grounds, be resolved on narrow that Highway and rule-making by the National broadly than rule no more prudent it is to Safety Administration Transportation I concern that necessary. It is out of this (“NHTSA”) roof concerning vehicle from the varying degrees depart post-dated that strength standards reasoning on three of majority’s learned Ex- manufacture of the 2001 Ford date of us, although, for the the four issues before in The trial cursion at issue this case. below, majori- join I reasons set forth court, post-manufacture stan- noting affirmance ty’s judgment entered on the determina- bearing dards have no the trial court. product is defective given tion whether claim, products liability rejection purposes for of join majority’s I begin,

To leading claim, proceedings post-2001 deemed the present- Parr’s Joseph April Federal issue, 2009 amendment to the up appeal as their first ed on Safety irrelevant in Motor Standard2 its discretion Vehicle trial court erred or abused augmentation’ ("Although and not crush' [the 1. See Brief for the Parrs at 26 ‘divin^torso inju- neck potential cause of head and Safety was a Highway Transportation National Parr— as those sustained Mrs. ries—such theory versus 'roof Administration’s] crush’ among occupants rollover acci- belted in 'diving/torso aug- industry's the [automobile] omitted)). (emphasis dents.” theory heavily is- was a contested mentation’ year of the years prior to sue for manufacture, Safety Vehicle Stan- in 2. See Federal Motor Excursion’s [Ford] Resistance; dards; Re- Phase-In Roof Crush and for all that 'roof NHTSA determined once id., dents,” perhaps stronger as such. Trial Court albeit and excludable See (“T.C.O.”),3/1/2013, 4-5; used,4 Duch- NHTSA previously terms than Opinion had much, Langston Corp., experts 564 Pa. and that Ford’s admitted ess v. as (2001) (“[P]roducts are to in question “the documents did A.2d not make any distribution be evaluated at the time of the existence fact that is of conse- quence a claim de- examining product when to the determination of the action fect.”). probable more or less than it would be evidence.” (citing without the Id. Pa.R.E. Court, however, the Parrs do Before (“Test Evidence”)). Relevant they sought the admission not contend purposes evidence for of establish- of this also majority seems to assert Rather, product they con- ing a defect. successfully put the Parrs post-2001 sought tend to introduce jury before the rule-making any event. post-2001 rule-making proceedings es- However, Id. majority’s citations crush, that roof rather than tablish div- support proposition of that do not sustain augmentation, caused Mrs. Parr’s ing/torso example, majority it. For pas- cites a catastrophic injuries in this as well as sage from the Parrs’ cross-examination impeach who main- Ford’s witnesses expert Leigh, only defense Michael but the otherwise. Brief Parrs at tained for. question posed NHTSA-related Leigh They further that this evi- 34-36. assert passage you the cited was as follows: “Do the dence was admissible to foun- establish not that all agree of the of studies opin- for their experts’ causation dation NHTSA, academia, of the studies of all all Id. at ions. 36-37. except of the the GM studies ones where majority of litany engaged people recites a bases or Ford the said [who] argu- upon reject wrong, say to the Parrs’ that this is all of the studies First, that; the lim- majority may establishing judicial concern that the evidence multifactorial framework issues, confusing both the products liability impor- strict claim7 is an raise collateral jury.” real and the v. giving shape plaintiffs tant tool in issue Whitman 177, 521, Riddell, Pa.Super. 324 471 A.2d proof, burden of the line between defect (1984) v. (citing blurs. For ex- 523 Stormer Alberts and causation sometimes 87, 401 Pa. 165 A.2d 89 ample, if the Parrs could establish that Constr. (1960)); injuries rollover Mt. Olivet Tabernacle Church overwhelming majority of cf. Div., Wiegand L. and in other Ford Excursions v. Edwin fatalities (Pa.Super.2001) (acknowledging than arise from roof crush rather div- open-ended argumenta that “an ing/torso augmentation, possibility and if the death or exploration possible tive similar inci injury rate for Ford Excursions acci- jury prejudice at bar was dents will confuse the and dents similar to the accident defendant”). Moreover, jurisdic other substantially higher than it is for other vehicles, soundly might militate in tions’ case law and common sense comparable ("In Maj. Op. prevail published after in con- 7. See at 689 order to NHTSA studies issue, case, with the third nection Parrs’ liability plaintiff product ... a must infra. defective; (1) product that the was establish: majority support 6. The also cites in of this (2) when it left the that the defect existed closing argu- claim in the Parrs' comments defendant; (3) de- hands of the and According- Argument ment. is not evidence. harm.”). fect caused the ly, for evi- such comments are no substitute improperly. dence that is excluded suggest the introduction govern- tive in support value of causation would be findings ment may and standards have an quite limited. prejudicial jury’s outsized effect on a delib- by While large agree I with the respect erations with to the issues to which majority’s I reasoning, believe that it is pertains. evidence See Brief for Ford insufficiently sensitive to complex bal- Pullman, at 29 (citing City New York v. probative ance of value prejudicial ef- (2d Cir.1981); 662 F.2d Cover fect such may present in certain Cohen, 261, 272, 61 N.Y.2d 478 N.Y.S.2d cases, including Thus, in this one. I be- (N.Y.1984)). 461 N.E.2d 864 Finally, lieve that it is neither necessary nor advis- because the governing require standards able to opine that this evidence’s exclusion plaintiff to establish that the allegedly de- was harmless as a matter of law. Howev- product fective defective the time er, because the nearly thrust of thirty the manufacturer relinquished prod- years of NHTSA discussions of the likely uct, evidence of post-manufacture stan- correlation between roof crush and injury dards and laws is not ques- relevant to the was set before the jury and expert Ford’s Duchess, design tion of defect. See acknowledged witnesses that roof crush A.2d at 1142. Consequently, the admis- might cause in certain circum- sion of post-2001 NHTSA’s rule-making stances, the jury was aware of the data might have confused and unduly swayed arguments supporting the Parrs’ roof jury defect, question on the of product crush theory of causation. Measured if even the trial jury court directed the against prejudice risk of highlighted

weigh NHTSA’s only conclusions in con- above, and viewed in light of our consider- sidering Furthermore, causation. po- able deference to trial courts’ evidentiary prejudice tential for would be considerable. Dedicated, rulings, Keystone see Logistics, Conversely, while NHTSA’s 2009 rule Enters., Inc., LLC v. JGB was based a stronger conclusion than (Pa.Super.2013), I cannot conclude that the it previously had regarding reached trial court abused its discretion in exclud- correlation of roof crush and inju- serious ing this Consequently, evidence. I would ry, it was not novel to NHTSA. As question harmlessness, avoid the evinced very promulgation of roof need not be to affirm ruling reached strength standards nearly thirty years ear- avoiding any thus risk that the lier, NHTSA effectively had main- concept might applied be too broadly in a tained for mitigation decades that of roof future case. crush would reduce the injury risk of in The Parrs’ third and related issue con- rollover accidents. The undisputed- Parrs cerns the trial court’s order granting ly were allowed to introduce evidence of Ford’s motion in limine number 9. There- pre-2001 analyses NHTSA’s and rule-mak- in, Ford maintained that the Parrs’ ing expert on topic, opportunity this an of which reports “rely on ... they statistical studies availed repeatedly. themselves See compilations Maj. Op. involving at 696-97 (citing various motor vehicle acci- instanc- es of the Parrs’ dent data to reach conclusions that reliance in cross-examina- subject tion pre-2001 Excursion ... caused commentary). NHTSA [the Parrs’] Furthermore, injuries.... experts Ford’s of [E]ach conceded these statistical that roof crush could cause or contribute studies is irrelevant and inadmissible [be- injuries to serious in certain rollover acci- cause the cannot Parrs] show that each Thus, dents. while the in ques- [underlying] evidence accident occurred under sub- tion highly prejudicial, would be proba- stantially its similar circumstances as the

708 requisite similarity, in establishing Parr accident.” Memorandum of Law Limine No. 9 not Support of Ford’s Motion in I would find that the Parrs did meet. well, court the trial urged at 3-4. As opposition their to Ford’s motion in that, relevant, experts’ even if to find limine, vague pre- the Parrs were about were so studies datasets supporting cisely compilations what studies and data eclipse pro- in effect as their prejudicial to importantly, More they wished admit. bative value. See Pa.R.E. 403. expressly sought never to establish ac majority provides an accurate The study particularity with that each and data Maj. atOp. the relevant count of law. See compilation compiled from accidents my purposes, 699-700. For it suffices substantially that were similar to their say proponent prior of accident Instead, they adopted a own. somewhat establishing evidence bears of burden interpretation deposition dubious of the are prior accident or accidents testimony expert of one of Ford’s wit- substantially at is similar to the accident nesses in another case as evidence that Co., v. 20 sue. See Blumer Ford Motor had that “there Ford somehow conceded 1222, 1228 A.3d “It is not (Pa.Super.2011). a direct between the amount relationship finding similarity a matter of be exact head, of roof crush and the risk of serious incidents, similarity tween but some crashes,” face, injuries and neck in rollover prevent speculation.” must be shown to that, event, proposition any a did not Co., Realty Harkins v. 418 Pa.Su Calumet similarity. establish substantial (1992). per. Under Opposition Parrs’ Memorandum of Law in law, Pennsylvania applies this burden Ford’s Motion in Limine No. 9 equally question whether the Croteau, (quoting deposition of Jeff single consists of a or a statistical accident appears agree which he that there is compilation of accidents. See Hutchinson “higher degree correlation between a Co., v. Truck A.2d Leasing Penske collapse” and higher degree roof “a (Pa.Super.2005). 985-86 Further injury,” rejects head but the inference of Hutchinson, more, in held that Court causation between roof crush and must proponent establish the substan exacerbation). Later, argued the Parrs of the similarity underlying tial accidents the evidence was admissible re compilation judice accident sub provide alternative to the foundation for gardless of whether it is submitted to es experts’ opinions, their see Pa.R.E. the existence tablish or notice of a defect impeachment purposes credi- (citing Spino or causation. Id. at witnesses, expert bility of see Pa. Ford’s Tilley Pa.Super. S. John Ladder 607(b). R.E. See The Parrs’ Memorandum (1996)). In Hutchi- Opposition of Law in to Ford’s Motion in son, we found where the reversible error However, No. 9 at Limine 8-9. Parrs trial court admitted prior accident evi never made a case for the substantial simi- dence, ostensibly to establish the defen larity underlying any of the accidents one puni dant’s state of mind for purposes study compilation. argument or data Oral damages, tive where failed to plaintiff the parties’ brought on the in limine similarity prior establish substantial the motions 985-86; sub- pertinent evidence. no more information accident Id. at see also short, similarity In generally Majdic inquiry. v. stantial Cincinnati Mach. to do the trial court— Pa.Super. 537 A.2d 341 Parrs failed before (1988). Therefore, the Parrs have no obvi fail to largely do before this Court— obliged ous source of relief burden of for their what law them to do order to rebut Ford’s assertion that these stud- admitted, similar to be and it troubles me ies were inadmissible for want of sufficient majority’s opinion inmay, a later similarity. case, be cited for that proposition. Wheth- er a given injury (as leads to death rule, arguments materially

As not pre true in at least some of the compilations at served in the trial beyond court are our issue) (as or quadriplegia is true in this 302(a); purview. See Pa.R.A.P. Com cf. case) may reflect a difference of degree May, monwealth v. 584 Pa. 887 A.2d rather (2005) than one of (“The kind in product absence of contempo defect and events that injury. caused the objections raneous ... renders claims case, In this Mrs. Parr waived.”); suffered a Commonwealth v. severed Baumham spinal mers, cord. (2008) Certainly, a 599 Pa. small difference in the kinematics injury (deeming the absence of could have contemporaneous resulted in fatal objections arising to constitute from a simi- waiver notwith mechanism, lar or standing which, identical appellant’s turn, claim that the is trial). might in question support sues were a finding raised before of substantial simi- Furthermore, larity, provided factors, too, while other the Parrs pointed asserted their post-trial motion that conclusion.8 general their con tention that the trial court improperly and Because I believe Parrs barely categorically post-2001 excluded studies even tried to establish the substantial simi- data, and compilations they again failed larity of the studies and compilations data to identify with particularity study each in this I would not reach the merits compilation data a basis of their challenge to the trial court’s sub- the trial court reasonably could find that stantive findings as to substantial similari- similarity substantial test was satisfied. ty. I reject would argument Parrs’ This, too, constitutes waiver. See Pa. solely because waived it. According- 227.1; Lock, Phillips R.C.P. ly, the parties’ details of the dialogue with 906, 918 (Pa.Super.2013) (deeming waived issue, the trial court on the as well as the for purposes of appeal issues that were not trial court’s own reasoning, are immaterial objected to at trial or raised in post-trial appeal. simply Parrs failed to motions). make showing necessary to establish a holds, The majority so doing but in so it basis for such a detailed review of the arguably makes substantive conclusions I studies. would deny strictly relief about the question, evidence in notwith- that basis. standing that, the waiver consideration elsewhere, majority seems to find Finally, dis- following considerable delibera- positive. Maj. Op. tion, See In particu- 700. join majority’s I ruling rejecting lar, majority, court, like the trial challenge seems Parrs’ to the trial court’s put great deal of stock in the distinc- permissive decision to issue a adverse in- tion between accident fatalities and the ference instruction based upon the Parrs’ question. 700; accident See id. at alleged evidence, spoliation of the albeit vehicle, storage to remit a aged agreeing to the trial court deter requires ranted alia, salvaged the the vehi- company of fault of fee to the mine, degree the inter later, unavail title plaintiff the evidence the released Only who rendered cle. party Thereafter, prejudice suffered degree the company. able and the insurance to arising from party opposing salvage compa- title to the insurer released Fault is the evidence. unavailability of vehicle disposed then ny, which alleged spoli- by examining determined it, could examine experts before certain the evidence duty preserve to ator’s 24- litigation. Id. at pending despite faith. Fi absence of bad presence or Supreme Court ruled 25. Our party established where nally, duty is had Court trial court Commonwealth the evidence knows responsible for summary judgment, granting erred in it likely is litigation pending is for and a spoliation, extreme most sanction the evidence discarding foreseeable court’s find- that reflected the trial ruling Maj. See prejudice would defendants. However, the di- ing of bad faith. Court v. Med (quoting at 701-02 Creazzo Op. remand, that, the trial court rected (Pa.Su Inc., tronic, A.2d 28-29 inference instruction to an adverse provide per.2006)). plaintiffs failure jury upon based no contends that “there is majority manifestly that was preserve evidence responsible the Parrs were dispute that Id. at 28. Given material to their claims. and[,] the Excursion destruction the ad- Supreme compelled Court However, thus, Id. at 702. were at fault.” jury instruction un- ministration of such analytic step a critical skips this conclusion no where fault was der circumstances accused of party fault to a imputing clearly— perhaps less clearly more —and material preserve failing case, thereby im- than in this established McKeon, litigation. Eichman Cf. finding of affirming the trial court’s plicitly (Pa. (citing Super.2003) 314-15 A.2d faith, to in- incongruous it would be bad McNeil, F.Supp. Baliotis v. discretionary the trial court’s trude (M.D.Pa.1994) that “a proposition for the an instruction was determination that such presence fault is the or ab component of Hence, like the in this called for case.. faith”). it good undisput While sence the trial court’s majority, uphold I would the Excur relinquished that the Parrs ed regard. decision in this company, it is not sion to their insurance what, or de any, representations if clear Judge joins concurring OTT compa made the insurance mands were opinion. or their counsel. Even ny byor the Parrs legal duty, their implicate if this does not

certainly implicates the determination faith, an Parrs acted in bad

whether the of the test for fault.

explicit element aside, reservation I believe

That modest decision Supreme

that our Court’s Commonwealth, Dep’t

Schroeder v. (1998), 551 Pa. Tramp., prod-

requires affirmance. that strict case, the liability

ucts unlike in this counsel had plaintiffs

record indicated that the dam- arrangements preserve

made ments.3 notes do not?” See Notes of Testi- (“N.T.”), utility mony (morning), of this evidence for of 63. purposes ited at 3/7/2012 of the context or of impeaching experts’ Nothing wording Ford’s attribution about injuries aug- suggests Parr’s that diving/torso question Mrs. this the Parrs were mentation, experts Leigh con- or confronting post-2001 because Ford’s with data may Similarly, majority’s that roof crush ceded contribute studies. citation testimony Corrigan, in certain at 696-97 of injury Maj. Op. cases. of the Catherine Ph.D., testimony). majority cross-examination ref- (citing Because the concerned I in agree findings erences to NHTSA in a 1995 arti- finds—and documents —that cle, conclu- have question only post- reflected NHTSA’s which could not invoked proceedings. that “roof crush is one of several 2001 data or See sion NHTSA 30-36.5,6 (afternoon), N.T., causes of in acci- at potential rollover 3/19/2012 ("[NHTSA] Fed.Reg. Fed.Reg. porting Requirements, at be- 4. See 74 12, 2009). statistically significant (May lieves that the relation- ship roof intrusion and between belted occu- pant injury just suggestion, ... indicates not a majority court’s re- 3.The reaffirms the trial strength increasing probability but a that roof jection purpose of of this evidence for the injury.”). reduces establishing Ex- the defectiveness of the Ford Maj. possession. when it left cursion Ford's colloquy, did Op. During at do not cited 696-97. Because the Parrs Parrs studies, appeal, commentary are pursue this issue on refer to 2007 but those this dicta, categorically albeit sound and excluded is dicta based distinct from rule-making I settled law. NHTSA evidence. discuss non- Thus, of defect. finding product that favor of a majority observes saliently, More sometimes validity of such evidence ultimately was cu- the excluded evidence determination, even if repeated in- affect the defect frequent and will mulative to the of pre-2001 nominally support impeachment presented it is troduction support say I not that an errone- findings that tended causation. would NHTSA evidence, if roof crush and even between ous exclusion of such causal connection causation, affirmative albeit in less to establish injury, primarily serious ventured in connection simply used law terms than NHTSA harmless as a matter of to Rule 216. amendment with its 2009 faced with the evidence jury, because the testimony). (citing Maj. Op. ignorant 696-97 at trial and actually admitted excluded, the evidence determined that correctly majority notes that Finally, the was not defective. Excursion admissible evi- the erroneous exclusion of only when the exclu- requires dence relief said, the entwinement of being That party preju- complaining sion causes the in a like this these considerations case Jain, (citing dice. Id. at 697 Winschel particular countervailing raises concerns of (Pa.Super.2007)). The Pennsylvania case. application to this any error majority concludes provides Rule of Evidence 403 “[t]he the evi- instance was harmless because may exclude relevant evidence if its court causation, question pertained dence by danger probative outweighed value is jury, having concluded but following: one or more of the unfair defective, Excursion was not 2001 Ford issues, misleading prejudice, confusing the question never reached the what caused needlessly ... cu jury, presenting injuries. See id. Mrs. Parr’s ac mulative evidence.” This Court has probative value of aspect majority’s knowledged It is this last tempered by accident evidence “is ruling prior that troubles me most. While the

Notes

T.C.O. at 6-7. I would not suggest that with one reservation. The majority notes distinction, alone, such a standing warrants governing standard in determin- a finding that a study is not sufficiently ing spoliation whether a sanction is war- too, majority, fairness to the sary analyses, might it notes other provide bases for gaps showing in the Parrs' that the trial court questionable rulings in future cases. Nonetheless, did not address. these unneces-

Case Details

Case Name: Parr, J. v. Ford Motor Company

Court Name: Superior Court of Pennsylvania

Date Published: Dec 22, 2014

Citation: 109 A.3d 682

Docket Number: 2793 EDA 2012

Court Abbreviation: Pa. Super. Ct.