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Wickersham v. Ford Motor Co.

United States District Court, D. South Carolina, Beaufort Division

August 30, 2017

FORD MOTOR COMPANY Defendant. CRYSTAL L WICKERSHAM, as Personal Representative of the Estate of John Harley Wickersham, Jr., Plaintiff,



         The following matters are before the court on defendant Ford Motor Company's (“Ford”) motion for judgment as a matter of law, ECF No. 131, [1] motion for a new trial, ECF No. 132, and motion to alter the judgment, ECF No. 130. For the following reasons, the court denies Ford's motions.

         I. BACKGROUND

         On February 3, 2011, decedent John Harley Wickersham, Jr. (“Wickersham”) was involved in a single-car accident while driving a 2010 Ford Escape (the “Escape”). Wickersham suffered numerous permanent injuries from the crash, which produced continuous, extreme pain. Wickersham committed suicide on July 21, 2012. Plaintiff Crystal L. Wickersham (“plaintiff”), acting as the personal representative of Wickersham's estate and in her individual capacity, brought a survival action and wrongful death action against Ford. Plaintiff alleged that Ford was responsible for Wickersham's injuries, and eventual suicide, because of a design defect in the Escape's restraint system, and sought recovery on theories of negligence, strict liability, and breach of warranty.

         On August 26, 2016, after a ten-day trial, the jury returned a verdict in plaintiff's favor, finding that the Escape was defective and that this defect was the cause of Wickersham's injuries and eventual suicide. Specifically, the jury found Ford liable under each of plaintiff's theories of recovery, and awarded the following damages with respect to Wickersham's injuries: (1) $1, 250, 000 to Wickersham's estate for Wickersham's pain and suffering between the time of the accident and the time of his death; and (2) $650, 000 to plaintiff, in her individual capacity, for loss of consortium during the same time period. The jury further found that Wickersham suffered an “uncontrollable impulse to commit suicide” and that Ford's wrongful conduct was a proximate cause of that impulse. The jury awarded: (1) $1, 375, 00 to Wickersham's beneficiaries for his wrongful death; and (2) $1, 375, 000 to plaintiff, in her individual capacity, for her loss of consortium following Wickersham's wrongful death. Lastly, the jury found that Wickersham was at fault in his use of the Escape's restraint system and that this fault was a proximate cause of his injuries. Having determined that both Ford and Wickersham's actions were proximate causes of Wickersham's injuries, the jury attributed 70% of the fault to Ford, and 30% of the fault to Wickersham.

         On September 28, 2016, Ford filed the instant motions for judgment as a matter of law, for a new trial, and to alter the judgment. Plaintiff filed responses to each motion on November 8, 2016, and Ford replied on December 1, 2016. The motions are now ripe for the court's review.

         II. STANDARD

         A. Judgment as a Matter of Law Pursuant to Rule 50(b)

         A movant is entitled to a judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b) “if a reasonable jury could only reach one conclusion based on the evidence or if the verdict in favor of the non-moving party would necessarily be based upon speculation and conjecture.” Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489 (4th Cir. 2005); see also Persinger v. Norfolk & W. Ry. Co., 920 F.2d 1185, 1189 (4th Cir. 1990) (“[Judgment notwithstanding the verdict] should not be granted unless the evidence is so clear that reasonable men could reach no other conclusion than the one suggested by the moving party.”). This standard is satisfied “if the nonmoving party failed to make a showing on an essential element of his case with respect to which he had the burden of proof.” Wheatley v. Wicomico Cnty., Md., 390 F.3d 328, 332 (4th Cir. 2004) (quoting Singer v. Dungan, 45 F.3d 823, 827 (4th Cir. 1995))

         In evaluating a motion for judgment as a matter of law, “[t]he evidence and all reasonable inferences from it are assessed in the light most favorable to the non-moving party, and the credibility of all evidence favoring the non-moving party is assumed.” Crinkley v. Holiday Inns, Inc., 844 F.2d 156, 160 (4th Cir. 1988); see also Konkel v. Bob Evans Farms, Inc., 165 F.3d 275, 279 (4th Cir. 1999) (stating that a Rule 50 motion should be granted “if a district court determines, without weighing the evidence or considering the credibility of the witnesses, that substantial evidence does not support the jury's findings.”). If there is any evidence on which a reasonable jury could return a verdict in favor of the nonmoving party, judgment as a matter of law should not be granted. Price, 93 F.3d at 1249. “If reasonable minds could differ, [the court] must affirm the jury's verdict.” Pitrolo v. Cnty. of Buncombe, 407 F. App'x 657, 659 (4th Cir. 2011) (citing Dennis v. Columbia Colleton Med. Ctr., 290 F.3d 639, 645 (4th Cir. 2002)).

         B. New Trial Pursuant to Rule 59(a)

         A motion for a new trial under Federal Rule of Civil Procedure 59(a) may be granted “on all or some of the issues . . . to any party . . . for any reason for which a new trial has heretofore been granted in an action at law in federal court.” This rule allows a trial court to set aside the verdict and order a new trial only if “(1) the verdict is against the clear weight of the evidence, or (2) is based upon evidence which is false, or (3) will result in a miscarriage of justice even though there may be substantial evidence which would prevent the direction of a verdict.” Atlas Food Sys. & Servs. Inc. v. Crane Nat'l Vendors, Inc., 99 F.3d 587, 594 (4th Cir. 1996). “[A] Rule 59(a) motion for new trial is a matter “resting in the sound discretion of the trial judge.” Eberhardt v. Integrated Design & Constr., Inc., 167 F.3d 861, 869 (4th Cir. 1999).

         C. Alter or Amend Judgment Pursuant to Rule 59(e)

         While Rule 59(e) does not supply a standard to guide the court's exercise of its power to alter or amend, the Fourth Circuit has recognized that a court may grant a Rule 59(e) motion “only in very narrow circumstances: (1) to accommodate an intervening change in controlling law, (2) to account for new evidence not available at trial, or (3) to correct a clear error of law or prevent manifest injustice.” Hill v. Braxton, 277 F.3d 701, 708 (4th Cir. 2002). Whether to alter or amend a judgment under Rule 59(e) is within the sound discretion of the district court. Bogart v. Chapell, 396 F.3d 548, 555 (4th Cir. 2005).


         Though Ford's motions address a number of different aspects of the trial, there is some overlap. The court begins its analysis with Ford's motion for judgment as a matter of law, which addresses the two primary issues presented by this case: (1) whether plaintiff provided sufficient proof of a defect in the Escape's restraint system, and (2) whether Ford can be held liable for Wickersham's suicide. Following this discussion, the court will address Ford's motion for a new trial, which identifies a number of alleged errors related to these two broad issues at trial. Finally, the court will address Ford's motion to alter or amend the complaint, which deals with the somewhat different issue of whether contributory negligence is a defense to strict liability and breach of warranty claims.

         A. Motion for Judgment as a Matter of Law

         Ford's motion for judgment as a matter of law argues that (1) plaintiff failed to present sufficient evidence to support a finding of a defect in the Escape's restraint system, and (2) Ford cannot be held liable for damages suffered in connection with Wickersham's suicide because such liability is not recognized under South Carolina law, and even if it were, plaintiff did not present sufficient evidence to support a finding of such liability. The court takes each argument in turn.

         1. Proof of a Defect

         Ford's initial argument centers on the testimony of plaintiff's design expert, Chris Caruso (“Caruso”). ECF No. 131 at 4-14. Caruso is a former employee of Delco, a division of General Motors (“GM”) that manufactures electronic systems for GM vehicles. T. 2:317-19. Caruso worked on the development of airbag systems at Delco from 1986 to 2006. T. 2:320. Caruso explained that the Escape's restraint system is governed by a restraints control module (“RCM”), which is a computer that decides when and how to engage different components of the restraint system-i.e., the seatbelt pretensioners[2] and airbags-based on information provided by crash sensors located throughout the vehicle. T. 2:332-33. The RCM processes this information through an algorithm that triggers different responses depending on the inputs. T. 2:336. Importantly, this algorithm needs to be calibrated based on the structural makeup of the vehicle. T. 2:338. Caruso testified that the Escape's airbag should not have deployed at all in the crash that injured Wickersham, and at the very least, it should not have deployed so late into the crash. T. 2:388, 2:396-99. Caruso opined that this malfunction was caused by either a defect in the calibration of the algorithm or the design of algorithm itself. T. 2:389. Specifically, Caruso opined that the algorithm's calibration did not sufficiently account for the variation in data that would be provided to the RCM in real-world crash conditions, and consequently, the algorithm's trigger thresholds failed to account for certain scenarios. T. 2:372-73, 2:375. Based on the algorithm's performance in the Wickersham crash, and his own experience, Caruso also determined that the algorithm “probably” did not utilize a “raised-threshold approach.” T. 2:439. The raised-threshold approach ensures that whenever the seatbelt pretensioners fire, the threshold to trigger airbag deployment increases as time goes on. T. 2:360-61. This approach is used to account for the fact that the seatbelt pretensioners will cause the occupant to move forward into the airbag deployment zone. Id. If the airbag is deployed with the occupant in the deployment zone, it is likely to do more harm than good, unless the crash is especially severe. Id.

         Ford contends that Caruso failed to identify any actual defect. In Ford's view, Caruso simply “insisted that the airbag should not have deployed, and since there was no manufacturing defect, the deployment must have been due to the algorithm and calibration.” ECF No. 131 at 9 (emphasis in original). Ford contends that such testimony is an impermissible attempt to rely solely on the fact that the product failed to prove the existence of a defect. Id. at 8. Much of this argument appears to be premised on the fact that Caruso had no way of reviewing the actual algorithm used in the Escape's RCM, and was therefore forced to look to circumstantial evidence of a defect. Id. (arguing that Caruso “acknowledged that because he did not have access to the proprietary algorithm from Autoliv, he did not have an opinion that the algorithm was defective and did not know what the algorithm actually did”).[3]

         It is true that “one cannot draw an inference of a defect from the mere fact a product failed.” Graves v. CAS Med. Sys., Inc., 735 S.E.2d 650, 658 (S.C. 2012). However, the court is not convinced that Caruso's testimony infringed on this rule. Caruso highlighted various pieces of evidence supporting his defect opinion-namely, Ford's testing data, T. 2:367, 2:385 (noting data indicating that a 19 mile per hour, angled impact should not cause airbag deployment, and later opining that Wickersham's crash was less severe than a 19 mile per hour, angled impact), and the RCM designers' calibrations, T. 2:372-73 (discussing the tolerances used in the RCM designers' calibration).

         Even if this evidence were set to the side, Caruso's opinions derive from his understanding of how an RCM system can be designed and his assessment of how the RCM system actually performed in this case. Using such knowledge, Caruso was able to draw inferences about the algorithm's design. The practice of drawing inferences about a product's design from the way it performed is not the same as “draw[ing] an inference of a defect from the mere fact a product failed.” Graves, 735 S.E.2d at 658. In Sunvillas Homeowners Ass'n, Inc. v. Square D Co., for example, the court recognized the rule Ford attempts to enforce here, and applied it where the plaintiff's expert simply opined that there “was some defect in the product, ” but “could not identify the defect.” 391 S.E.2d 868, 870 (S.C. Ct. App. 1990) (emphasis added). The expert even testified that “[t]here is no evidence that I have that [the defendant] manufactured it wrong except for the fact that it didn't work as intended.” Id. Here, in contrast, Caruso was able to identify two specific design flaws that could have caused the airbag's late and unnecessary deployment-inadequate calibration and the failure to employ a raised-threshold design approach.

         To the extent that Ford objects that Caruso cannot say with certainty whether these defects exist because he has not actually seen the algorithm, it is notable that Caruso did specifically assert that the 6 percent variation used to calibrate the RCM data was insufficient. T. 2:372. Moreover, while Caruso could not confirm whether the algorithm used the raised-threshold approach, he testified that it “probably” did not. T. 2:439. The court sees nothing wrong with this assertion. It seems to be a rather straightforward use of circumstantial evidence to prove the existence of a defect. There is no question that this is permitted under South Carolina law. See Graves, 735 S.E.2d at 658 (recognizing that a defect may be proven using circumstantial evidence).

         Ford also argues that plaintiff failed to present sufficient evidence of a feasible alternative design. ECF No. 131 at 9-14. Ford first argues that its corporate representative, Ram Krishnaswami (“Krishnaswami”), confirmed that the Escape did in fact utilize Caruso's raised-threshold alternative approach, and thus, this alternative should not be considered at all. Id. at 11. But because Krishnaswami did not have access to the algorithm, his testimony was just as circumstantial as Caruso's. Krishnaswami claimed to know that the Escape's algorithm employed such an approach “based on [his] experience” working on other projects and his reading of the calibration report. T. 7:1413-14. The fact that two experts reached conflicting conclusions relying on circumstantial data strikes the court as unremarkable. Certainly, the court cannot find that Krishmaswami held the only reasonable view of the evidence. Therefore, despite Krishnaswami's testimony, there was evidence that the algorithm did not utilize the raised threshold approach.

         Ford also argues that Caruso's proposed alternatives are unduly speculative and failed to account for potential adverse consequences of the design. ECF No. 131 at 11- 13. To prove a design defect under South Carolina law, a plaintiff must “point to a design flaw in the product and show how his alternative design would have prevented the product from being unreasonably dangerous. This presentation of an alternative design must include consideration of the costs, safety and functionality associated with the alternative design.” Branham v. Ford Motor Co., 701 S.E.2d 5, 16 (S.C. 2010). An alternative design must be more than merely “conceptual.” Holland ex rel. Knox v. Morbark, Inc., 754 S.E.2d 714, 720 (S.C. Ct. App. 2014).

         Here, Caruso testified that he had used both of his alternative designs, the raised-threshold approach and increased variability-based calibration, in his work at Delco. T. 2:389, 2:401. Such testimony indicates that these approaches were certainly feasible, since they have been employed by manufacturers in the past. Moreover, Caruso specifically acknowledged that increasing the variability built into the algorithm's calibration might require changes to the actual algorithm's design, T. 2:394, and stated that: (1) he had been able to design algorithms that could be calibrated to account for such variability in the past, and (2) there was no reason to believe the same thing could not be done for the Escape. T. 2:401. Caruso also specifically testified that his Delco designs prevent the types of injuries that occurred in this case. T. 2:361. Ford argues that Caruso's past experience is insufficient to support a finding of feasibility in this case because he left Delco in 2006, and therefore had no way of knowing what designs other manufacturers were using when the Escape was manufactured in 2010. ECF No. 131 at 12. The court does not find that this 4-year[4] gap in time is enough to render Caruso unqualified to testify about the practices of other manufacturers in 2010. Caruso actually testified that some of the design elements he developed are used in today's GM vehicles. T. 2:324. Given this evidence that other manufacturers utilized Caruso's alternative designs, the court finds that there was evidence that the designs were feasible in light of costs, safety, and functionality.

         Therefore, the court finds that plaintiff presented sufficient evidence of a design defect.

         2. Wickersham's Suicide

         Ford next argues that it cannot be held liable for Wickersham's suicide. The bulk of Ford's argument consists of its disagreement with the court's legal determination that a defendant may be held liable for a decedent's wrongful death by suicide when the decedent suffered an uncontrollable impulse that was proximately caused by the defendant's wrongful conduct. ECF No. 131 at 14-24. Because these arguments do not appear to be any different than the arguments Ford raised at the summary judgment stage, it is sufficient to simply refer to the court's order denying summary judgment. ECF No. 65.

         Ford also argues that, even under the court's “uncontrollable impulse” standard, plaintiff failed to present sufficient evidence to support a finding of liability. ECF No. 131 at 23-24. This argument focuses on the testimony of Dr. Donna Schwartz-Maddox (“Dr. Maddox”), plaintiff's expert in psychiatry and forensic psychiatry. Id. Dr. Maddox reviewed Wickersham's metal and psychiatric history following the accident and concluded that “[Wickersham's] suicide was a result of chronic pain and depression, . . . and that the pain . . . that led to his suicide was directly a product of his car accident.” T. 4:773-74. Ford highlights Dr. Maddox's admission that Wickersham knew what he was doing when he committed suicide to argue that he could not have been under an “uncontrollable impulse.” ECF No. 131 at 24. However, under the uncontrollable impulse test, it does not matter that the decedent intended the consequences of his actions because intent does not necessarily constitute “control” within the meaning of the rule. See Fuller v. Preis, 322 N.E.2d 263, 268 (N.Y. 1974) (explaining that “[i]n tort law, . . . there is recognition that one may retain the power to intend, to know, and yet to have an irresistible impulse to act and therefore be incapable of voluntary conduct, ” and that “[a]n irresistible impulse does not necessarily mean a ‘sudden' impulse”); Tate v. Canonica, 5 Cal.Rptr. 28, 40 (Cal. Dist. Ct. App. 1960) (“It should not make any difference that the decedent ‘knew what he was doing'. If defendant is to avoid liability, the decedent's act must be voluntary, not in that sense but in the sense that he could, in spite of his mental illness, have decided against suicide and refrained from killing himself.”). Therefore, the fact that Wickersham knew he what he was doing and implemented a plan to kill himself does not preclude a finding that he was under an “uncontrollable impulse.”

         Ford also highlights Dr. Maddox's statement that she did not know whether Wickersham “could totally control” his suicidal impulse, and argues that if Dr. Maddox was unsure on this point, she could not competently testify as to whether Wickersham's impulse was “uncontrollable.” ECF No. 131 at 24-25. This argument is based on the following exchange:

Q. Did he -- I think you answered this, but did he have the capacity on that day to control this impulse?
A. No. In my opinion his capacity was severely diminished. Whether he could totally control it, I don't know, but it was - obviously in my opinion, it was diminished.

T. 4:832. When read in full, and in the light most favorable to the plaintiff, the court finds that Dr. Maddox's equivocation on this point simply reflects the basic fact that she could never fully confirm the degree to which Wickersham could control his impulse.

         This finding is consistent with the answer she offered to a similar question shortly before the disputed testimony:

Q. On that day, in your opinion, did Mr. Wickersham have the capacity to resist th[e] impulse [to commit suicide]?
[ . . . ]
THE WITNESS: In my opinion he did not. It was severely impaired. He had some capacity -- again, keeping in mind in answering these questions, I was not there. None of us were there. He's not alive for us to ask. And what we do in forensic psychiatry, we go back in time. We look at illnesses. I know he had had a history of depression. I know that he had a history of developing suicidal ideation when he was in chronic pain. We know that he remained in pain. He was trying to explore alternatives to get his pain treated. He was running out of resources in terms of financial resources to fund that treatment. We know that very shortly before his suicide, he had gone with family and abruptly cut a vacation short. We know that he was decompensating. So the best that we are able to do is to say because of that pain and some of his depression, that on that day that decision to kill himself was not the normal judgment he used. It impaired his judgment severely.

T. 4:831-32. Considering all of this testimony together, the court concludes a reasonable juror could have found that Wickersham's capacity to resist his suicidal impulse was so severely impaired that he lacked the ability to control that impulse. Dr. Maddox's recognition that she could not conclusively prove ...

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