John Witten Tunnell v. Ford Motor Company

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2112
JOHN WITTEN TUNNELL,
Plaintiff - Appellant,
versus
FORD MOTOR COMPANY,
Defendant - Appellee.
No. 06-1799
JOHN WITTEN TUNNELL,
Plaintiff - Appellant,
versus
FORD MOTOR COMPANY,
Defendant - Appellee.
Appeals from the United States District Court for the Western
District of Virginia, at Danville. Norman K. Moon, District Judge.
(CA-03-74-NKM; 4:03-cv-00074-nkm)
Argued: May 24, 2007 Decided: August 1, 2007

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Before MICHAEL, Circuit Judge, WILKINS, Senior Circuit Judge, and
David C. NORTON, United States District Judge for the District of
South Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Fred Dempsey Smith, Jr., Martinsville, Virginia, for
Appellant. Wayne D. Struble, BOWMAN & BROOKE, L.L.P., Minneapolis,
Minnesota, for Appellee. ON BRIEF: Robert L. Wise, BOWMAN &
BROOKE, L.L.P., Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
This is a products liability case brought by John Witten
Tunnell, a severely injured automobile passenger, against Ford
Motor Company. Tunnell was injured when the Ford Mustang in which
he was riding collided with a utility pole and caught fire.
Tunnell claims that the Mustang was defectively designed because it
did not incorporate a collision-activated switch to cut off power
to the electrical wiring that started the fire. Before the case
went to the jury, the district court determined that Tunnell had
not proffered sufficient evidence to show that the Mustang was
defective. The court concluded that Tunnell’s expert did not
establish that the proposed battery cutoff switch would result in
a net improvement in the Mustang’s safety. For this reason, the
district court ordered that the expert’s testimony be excluded and
that a directed verdict be entered in Ford’s favor. We agree with
the district court’s determinations. We further agree with the
district court’s denial of Tunnell’s request for a new trial as a
sanction for Ford’s discovery misconduct. The district court’s
orders are therefore affirmed.
I.
In November 1999 Tunnell was seriously injured when the
1999 Ford Mustang in which he was riding collided with a utility
pole and caught fire. He suffered severe burns that required

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amputation of both legs. The fire was caused by crush damage to
the wiring and connectors of the Mustang’s dashboard wiring
harness. Tunnell sued Ford for breach of implied warranty,
alleging that the Mustang was defective and unreasonably dangerous
for foreseeable uses because it was not equipped with a battery
cutoff device (BCO). He claims that a BCO would have prevented the
fire by automatically cutting off power to the dashboard wiring
harness upon impact.
Tunnell proffered the testimony of an automotive
engineering expert, Jerry Wallingford, who explained how dashboard
wiring harnesses present a fire hazard and how BCOs could
effectively address the problem. Wallingford testified that Jaguar
(a Ford company) had been using a BCO since 1988. He also
presented the results of a test of a prototype BCO he had developed
for the 1999 Mustang. In his test Wallingford separated from the
dashboard wiring harness certain circuits he identified as critical
for safety, including power windows, power door locks, and hazard
lights. The test showed that, when triggered, the prototype cut
off power to the dashboard wiring harness, while allowing power to
flow to the critical circuits. Wallingford testified that similar
BCOs were being manufactured, and used in BMWs and Jaguars, before
1999, and that any of these devices would prevent electrically
generated post-collision fires. He concluded that the absence of

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a BCO made the Mustang unreasonably dangerous in the event of a
collision, but it did not make the car defective.
The district court struck Wallingford’s testimony as
unhelpful and unreliable because (1) he was contradictory about
whether the absence of a BCO rendered the Mustang defective; (2) he
did not show that a risk-benefit analysis favored use of BCOs; (3)
he confined his defectiveness opinion to collisions like Tunnell’s
rather than the full range of ordinary and foreseeable uses; and
(4) his methods did not comply with several of the factors set
forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). Without the stricken evidence, the court determined that
Tunnell had not proved that consumers had a reasonable expectation
of no fires in their vehicles. The court therefore granted Ford’s
motion for a directed verdict.
Tunnell filed a motion for a new trial, claiming that the
district court erred in striking Wallingford’s testimony. The
district court denied the motion. Several months later, Tunnell
discovered that Ford had failed to produce documents regarding a
BCO manufactured by Tyco and moved again for a new trial. The
court denied the motion because the evidence replicated information
Tunnell already knew. Tunnell appeals.

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II.
In a products liability action based on allegations of
defective design, a plaintiff must prove that a defect rendered the
product unreasonably dangerous for foreseeable uses. Dreisonstok
v. Volkswagenwerk, A.G., 489 F.2d 1066, 1073 (4th Cir. 1974). A
defective product is considered unreasonably dangerous if it
violates government or industry safety standards or if it does not
conform to consumers’ reasonable expectations. Alevromagiros v.
Hechinger Co., 993 F.2d 417, 420 (4th Cir. 1993). Consumer
expectations may be established by evidence of actual industry
practices, published literature, or direct evidence of what
reasonable purchasers consider defective. Id. at 420-21.
No industry standards require automakers to install BCOs.
Tunnell therefore sought to prove by Wallingford’s testimony that
consumers reasonably expected automakers to employ BCOs to prevent
post-collision electrical fires. Tunnell argues that the district
court erred in striking Wallingford’s testimony and that, even if
the decision to strike was proper, Tunnell did not need
Wallingford’s testimony to avoid a directed verdict.
A.
We review the district court’s decision to strike
Wallingford’s testimony for abuse of discretion. Cooper v. Smith
& Nephew, Inc., 259 F.3d 194, 200 (4th Cir. 2001).

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A plaintiff may rely on expert testimony if it is
relevant and reliable. Fed. R. Evid. 702. The district court
determined that Wallingford’s testimony did not satisfy either of
these requirements. First, the court determined that his testimony
was irrelevant because it did not establish that the Mustang was
defective. Wallingford failed to testify unequivocally that the
absence of a BCO rendered the Mustang defective for foreseeable
uses. Instead, he stated that the Mustang was “unreasonably
dangerous” in collisions, J.A. 3444, but that he would not “call it
defective.” J.A. 5371. A court may exclude testimony that does
not tend to show that a suggested product change was necessary to
meet existing standards or reasonable consumer expectations. See
Sexton v. Bell Helmets, Inc., 926 F.2d 331, 338 (4th Cir. 1991).
The district court thus did not abuse its discretion in striking
Wallingford’s testimony because he appeared to conclude that BCOs
would be a desirable added safety device rather than a necessary
correction for a defective product.
The district court’s second reason for striking
Wallingford’s testimony was his failure to employ sound methods to
demonstrate that a BCO would be a reasonable solution to the
problem of post-collision electrical fires. The reliability
assessment of expert testimony is guided by a flexible analysis of
several factors: (1) whether a theory or technique can be (and has
been) tested; (2) whether the theory or technique has been

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subjected to peer review and publication; (3) whether a technique
has a high known or potential rate of error and whether there are
standards controlling its application; and (4) whether the theory
or technique enjoys general acceptance within the relevant
community. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149-50
(1999) (citing Daubert, 509 U.S. at 592-94). Wallingford opined
that his prototype would prevent electrical fires while avoiding
some of the safety risks posed by BCOs that cut off power to all
dashboard circuits. He did not, however, test the prototype (or
any other available BCOs) to determine whether they would create
safety problems in other scenarios or whether the choice of
critical circuits, to which power would be maintained, was
sufficient to ensure passenger safety. Wallingford conceded he had
not analyzed whether circuits not identified as critical--including
the dome light, car horn, taillights, radio, and power point--
provided significant safety benefits that would be lost due to
operation of the prototype. There was also no evidence that
Wallingford’s BCO solution had been subjected to peer review or had
been generally accepted within the automotive engineering
community. Absent more extensive testing by Wallingford or
acceptance of the BCO solution by his peers, the district court’s
decision to strike Wallingford’s testimony was not an abuse of
discretion.

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B.
In light of its decision to strike Wallingford’s
testimony regarding the Mustang’s defectiveness, the district court
determined that Tunnell had presented insufficient evidence of a
product defect and directed a verdict for Ford. We review de novo
a district court’s grant of a directed verdict “to determine
whether the evidence presented at trial, viewed in the light most
favorable to [the non-moving party], would have allowed a
reasonable jury to render a verdict in [its] favor.” Freeman v.
Case Corp., 118 F.3d 1011, 1014 (4th Cir. 1997).
Tunnell argues that the district court should not have
directed a verdict against him because a prior discovery sanction
against Ford in this case relieved Tunnell of the burden of proving
a defect. The sanction took the form of an instruction that
consumers “expected that there would be no fires in collision and
noncollision situations where such fires could be prevented by
design and construction, balancing known risk and dangers against
the feasibility and practicability of applying any given
technology.” J.A. 2086. In other words, the instruction allows
the conclusion that consumers expected no fires in their vehicles
if reasonable means were available to prevent them. The
instruction answers one part of the defectiveness inquiry: what
consumers expected. It does not, however, establish that a
consumer’s expectation of no fires would always be reasonable. The

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instruction leaves to Tunnell the task of showing that BCOs could
prevent fires in a feasible and practicable way that would not
create new safety hazards outweighing their safety benefits. The
district court thus did not violate the law of the case by
requiring Tunnell to proffer evidence that consumers’ expectations
of no fires were reasonable.
C.
Tunnell alternatively argues that he proffered sufficient
evidence of defectiveness independent of Wallingford’s stricken
testimony, and that the district court erred in requiring the
evidence of reasonableness of consumer expectations to take the
form of a risk-benefit analysis. Our court has stated that such
balancing is needed to determine whether consumer expectations are
reasonable. See Redman v. John D. Brush & Co., 111 F.3d 1174, 1181
(4th Cir. 1997). Generally, a design change that avoids one danger
while creating others of a similar or greater magnitude does not
conform to consumers’ reasonable expectations. See id.
(unreasonable to consider a fire resistant safe defective because
it was not burglar resistant where burglar resistance would
decrease fire resistance). The district court correctly required
some evidence that the benefits of BCOs outweighed their risks to
support a conclusion that the Mustang’s lack of a BCO deviated from
reasonable consumer expectations. Because Tunnell’s evidence did
not show that the risks associated with a power cutoff were

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outweighed by the benefits from a decreased possibility of post-
collision electrical fires, the district court correctly granted
Ford’s motion for a directed verdict.
III.
Tunnell’s remaining argument relates to the district
court’s treatment of Ford’s discovery misconduct. In December
2005, after the district court had issued the directed verdict,
Tunnell moved for sanctions and a new trial, claiming that Ford had
failed to produce documents related to BCOs manufactured by Tyco.
The district court granted the motion for sanctions and denied the
motion for a new trial.
Federal Rule of Civil Procedure 60(b)(3) allows the
district court to grant a new trial if a party engages in fraud,
misrepresentation, or other misconduct. The moving party must (1)
have a meritorious defense; (2) prove misconduct by clear and
convincing evidence; and (3) show that the misconduct prevented the
moving party from fully presenting his case. Schultz v. Butcher,
24 F.3d 626, 630 (4th Cir. 1994). The court then balances the
policy favoring finality of judgments against the need to do
justice to the moving party to determine whether a new trial is
appropriate. Square Constr. Co. v. Wash. Metro. Area Transit
Auth., 657 F.2d 68, 71 (4th Cir. 1981). We review the court’s
decision for abuse of discretion. Id.

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The district court denied Tunnell’s motion for a new
trial because Tunnell had not shown that Ford’s discovery
misconduct prevented him from fully presenting his case. Where a
party is able to fully prepare and present his case notwithstanding
the adverse party’s misconduct, the district court may deny relief
under Rule 60(b)(3). Karak v. Bursaw Oil Corp., 288 F.3d 15, 21-22
(1st Cir. 2002). Although Ford may have failed to turn over
documents related to the Tyco BCO and its use in Aston Martin
vehicles, Tunnell had learned much of the information contained in
the undisclosed Ford documents from other sources during discovery.
We agree with the district court that this independent knowledge
enabled Tunnell to pursue any further development of the evidence
he desired. Ford’s actions thus did not prevent him from fully and
fairly presenting his case and the district court did not abuse its
discretion in denying Tunnell’s motion for a new trial.
IV.
In sum, Tunnell’s evidence failed to support a finding
that automobile consumers reasonably expected no electrical fires
in 1999. We therefore affirm the district court’s order granting
Ford a directed verdict. We also affirm the district court’s
denial of Tunnell’s request for a new trial based on Ford’s

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discovery misconduct because it did not prevent Tunnell from fully
presenting his case. The district court’s orders are therefore
AFFIRMED.

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