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Parr v. Ford Motor Co.

Superior Court of Pennsylvania

January 15, 2014

JOSEPH AND APRIL PARR, HUSBAND AND WIFE, INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS OF SAMANTHA PARR, Appellants
v.
FORD MOTOR COMPANY, McCAFFERTY FORD SALES, INC. d/b/a McCAFFERTY AUTO GROUP, McCAFFERTY FORD OF MECHANICSBURG, INC., AND McCAFFERTY FORD COMPANY, Appellees

Appeal from the Judgment Entered August 31, 2012, In the Court of Common Pleas of Philadelphia County, Civil Division, at No. 002893, December Term, 2009.

BEFORE: SHOGAN, WECHT & COLVILLE, [*] JJ.

OPINION

SHOGAN, J.

Plaintiffs-Appellants, Joseph and April Parr ("the Parrs"), husband and wife, individually and as parents and guardians of their minor daughter, Samantha Parr, appeal from the August 31, 2012 judgment of the Court of Common Pleas of Philadelphia County, which was entered following the denial of the Parrs' motion for post-trial relief. Appellees are Defendants Ford Motor Company, McCafferty Ford Sales, Inc. doing business as McCafferty Auto Group, McCafferty Ford of Mechanicsburg, Inc., and McCafferty Ford Company (collectively "Ford"). We affirm.

The Parrs sued Ford Motor Company and the Ford dealership that sold them their 2001 Ford Excursion, alleging that the vehicle's roof and restraint system were defectively designed under the crashworthiness doctrine of strict products liability, and asserting additional claims sounding in negligence. Amended Complaint, 8/26/11. The Parrs bought their vehicle as a "used" car in 2007. Amended Complaint, 8/26/11, at ¶ 14. On July 21, 2009, the Parrs' Excursion was struck by a van that ran a stop sign, causing the Parrs' vehicle to spin clockwise, hit a guardrail, and roll down a nineteen-foot embankment. Amended Complaint, 8/26/11, at ¶¶ 26–28; N.T., 3/8/12, at 30.

Joseph Parr was driving at the time of the accident; his wife, April Parr, their three minor children, and Margaret Parr, Joseph's mother, were occupants of the vehicle. Amended Complaint, 8/26/11, at ¶¶ 20–25; N.T., 3/8/12, at 31. All passengers, who all wore their seatbelts, were injured; occupants on the driver's side of the vehicle, Joseph Parr and children Tyler and Carilann Parr, sustained minor injuries. Amended Complaint, 8/26/11, at ¶¶ 20–25, 31. Margaret Parr, who sat in the second row, is not involved in this case, and her injuries were not identified in the amended complaint. Daughter Samantha, who was sitting in the third row on the passenger side, sustained a fractured skull, broken collarbone, fractured eye orbital, a lacerated liver, and facial lacerations. Amended Complaint, 8/26/11, at ¶ 30. April Parr, sitting in the front passenger seat, sustained a spinal cord injury and was rendered a quadriplegic. Amended Complaint, 8/26/11, at ¶ 29; N.T., 3/8/12, at 33. The Parrs contended that April Parr's and Samantha Parr's injuries resulted from roof crush when the automobile rolled down the embankment. Amended Complaint, 8/26/11, at ¶¶ 28, 40.

Emergency responders employed the jaws of life to extract April Parr from the Excursion; during that process, the roof and pillar structures of the vehicle were destroyed. N.T., 3/9/12 (Afternoon Session), at 35–38. The parties stipulated that shortly after the accident in July 2009, the Parrs' Ford Excursion was released to the Parrs' insurer, which sold the vehicle, and the automobile was destroyed. N.T., 3/15/12 (Morning Session), at 30–31. The Parrs filed a complaint on December 28, 2009, and an amended complaint on August 26, 2011.

Trial in the matter commenced on March 6, 2012, and continued over the ensuing three weeks, culminating on March 23, 2012, with a defense verdict. The jury indicated on the verdict form that the Parrs did not prove: (1) that the Excursion's roof design was defective when it "left the control of Ford and that there was an alternative, safer design that was practicable under the circumstances, " or (2) that Ford was negligent in its design of the roof structure on the 2001 Ford Excursion when it left Ford's control and that there was an alternative, safer design that was practicable under the circumstances." Jury Verdict Form, 3/23/12, at ¶¶ 1, 3. The jury thus did not reach the issues of causation or damages.

The Parrs filed post-trial motions on March 29, 2012. Both parties filed briefs, and the trial court denied the motions on August 31, 2012, entering judgment in favor of Ford that day. This timely appeal followed on September 10, 2012, in which the Parrs challenge several pretrial evidentiary rulings and an aspect of the trial court's charge to the jury. Both the trial court and the Parrs complied with Pa.R.A.P. 1925.

The Parrs raise the same four issues in this appeal that they identified in their Pa.R.A.P. 1925(b) statement, which are as follows:

A. Whether the Trial Court committed an error of law and abused its discretion when it denied the Parrs' Motion in Limine No. 1 to preclude Ford from presenting evidence of its "diving, " "torso augmentation" theory, which was discredited and superseded by the National Highway Traffic Safety Administration (NHTSA)'s Final Rule dated May 12, 2009?
B. Whether the Trial Court committed an error of law and abused its discretion when it granted Ford's Motion in Limine No. 3 to preclude references to post-2001 NHTSA standards and rulemaking documents dated 2001 to present, on the basis that the Excursion was originally manufactured and sold in 2001?
C. Whether the Trial Court committed an error of law and abused its discretion when it granted Ford's Motion in Limine No. 9 and altogether precluded the Parrs from offering statistical evidence prepared by NHTSA, IIHS, FARS, and/or NASS as to rollover fatalities involving the 2001 Excursion and comparable vehicles on the basis that the Parrs were unable to prove that the statistics derived from other rollover accidents that [sic] were virtually identical to the subject accident?
D. Whether the Trial Court committed an error of law and abused its discretion when it denied the Parrs' Motion in Limine No. 10 to preclude Ford from: (a) presenting-and consequently filling the record with-evidence that the 2001 Excursion was not preserved; and (b) obtaining a spoliation charge when Ford suffered no prejudice resulting from the vehicle's destruction since neither party's experts had access to the vehicle and since Ford's theory was based upon the assumption that all occupants in rollover vehicles are injured in the same way?

The Parrs' Brief at 7–8.

We note initially that our Supreme Court adopted section 402A of the Restatement (Second) of Torts in Webb v. Zern, 220 A.2d 853 (1966). Section 402A states:

§ 402A Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2)The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.[1]

Restatement (Second) of Torts, § 402A (1965).[2]

In order to prevail in such a product liability case, the plaintiff must establish: (1) that the product was defective; (2) that the defect existed when it left the hands of the defendant; and (3) that the defect caused the harm. Reott v. Asia Trend, Inc., 7 A.3d 830 (Pa. Super. 2010). A product is defective when it is lacking "any element necessary to make it safe for its intended use or possessing any [element] that renders it unsafe for the intended use." Azzarello v. Black Brothers Company Inc., 391 A.2d 1020, 1027 (Pa. 1978).

The crashworthiness doctrine most typically arises in the context of motor vehicle accidents. See, e.g., Raskin v. Ford Motor Co., 837 A.2d 518 (Pa. Super. 2003). It was first explicitly recognized as a specific subset of product liability law by this Court in Kupetz v. Deere & Co., Inc., 644 A.2d 1213 (1994), and is defined as "the protection that a motor vehicle affords its passenger against personal injury or death as a result of a motor vehicle accident." Id. at 1218.

A crashworthiness claim requires proof of three elements. First, the plaintiff must prove that the design of the vehicle was defective, and that at the time of design an alternative, safer, and practicable design existed that could have been incorporated instead. Id. Second, the plaintiff must identify those injuries he or she would have received if the alternative design had instead been used. Id. Third, the plaintiff must demonstrate what injuries were attributable to the defective design. Id.
In recognizing the crashworthiness doctrine in Kupetz, this Court relied upon our Supreme Court's prior decision in McCown v. International Harvester Co., 463 Pa. 13, 342 A.2d 381 (1975), which adopted the principle tenet of the crashworthiness doctrine, i.e., manufacturers are strictly liable for defects that do not cause the accident but nevertheless cause an increase in the severity of injuries that would have occurred without the defect.

Gaudio v. Ford Motor Company, 976 A.2d 524, 532 (Pa. Super. 2009).

The parties herein differed regarding how the injuries to the Parrs occurred. The Parrs asserted that as the Excursion rolled down the embankment, the driver's side led the roll, and the roof over the "trailing" passenger side of the vehicle crushed into the passenger compartment. Amended Complaint, 8/26/11, at ¶ 27, 28. In support, the Parrs noted that the three occupants on the passenger side of the vehicle sustained significant injuries, whereas the passengers on the driver's side of the Excursion incurred minor injuries.

Ford's position was premised on a "diving" and "torso augmentation" defense. Ford's experts opined that when the Excursion flipped upside down, centrifugal force pulled passengers out of their seats and pushed their heads against the vehicle's roof, a phenomenon called diving. N.T., 3/7/12 (Morning Session), at 36–38. April Parr's head theoretically was already in contact with the roof when the roof struck the ground as the vehicle rolled over; as her head came to an abrupt halt, her torso continued to move, causing her to break her neck. Id. This phenomenon is known as torso augmentation. Id. at 38. Mr. Michael Leigh, an expert for Ford whom the Parrs called on cross-examination, explained Ford's theory regarding why April Parr sustained significant injuries compared to Joseph Parr, as follows:

Q. Well, they [Joseph and April] both rolled over, they both were subjected to centrifugal force. But if you looked at that roof, the roof over April Parr had what we call crush or deformation of a total residual of 11 inches; is that right?
A. I know that the roof was significantly deformed on that side of the vehicle. And that means that that part of the roof sustained a significant impact.
And if the other side of the roof was not deformed like that, that means that side of the roof did not sustain a significant impact.
And if the roof over Mr. Parr did not sustain a significant impact, then I'm not surprised that he did not get injured.
But I would not be surprised at all that his head did touch the roof in that event because if he's that tall and experiencing centrifugal force, his head is going to touch the roof, as well. He was just fortunate enough not to experience the impact that, unfortunately, his wife experienced.
Q. And you're saying it didn't come about from this 11 inches of crush or deformation? It just came from centrifugal force; right?
A. The deformation is an indication of the severity of the impact that that part of the roof experienced.
The injury that Mrs. Parr received is an indication of the severity of the impact that she experienced being in the same place as that part of the roof. So her injury and the deformation are associated with the impact, but it doesn't mean that the deformation of the roof caused her injury. You can't go that far.
All you can say is that the deformation and the injury are associated with the impact. And Mr. Parr didn't experience that severe of an impact. That's the difference.

N.T., 3/7/12 (Morning Session), at 39–41.

We proceed to address the Parrs' challenges to the trial court's evidentiary rulings. A motion in limine is used before trial to obtain a ruling on the admissibility of evidence. Northeast Fence & Iron Works, Inc. v. Murphy Quigley Co., Inc., 933 A.2d 664 (Pa. Super. 2007). "It gives the trial judge the opportunity to weigh potentially prejudicial and harmful evidence before the trial occurs, thus preventing the evidence from ever reaching the jury." Commonwealth v. Reese, 31 A.3d 708, 715 (Pa. Super. 2011) (en banc). A trial court's decision to grant or deny a motion in limine "is subject to an evidentiary abuse of discretion standard of review." Id.

Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and we will not reverse the court's decision absent a clear abuse of discretion. Commonwealth Financial Systems, Inc. v. Smith, 15 A.3d 492, 496 (Pa. Super. 2011) (citing Stumpf v. Nye, 950 A.2d 1032, 1035–1036 (Pa. Super. 2007)). "An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous." Grady v. Frito–Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1046 (Pa. 2003).

Keystone Dedicated Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1, 11 (Pa. Super. 2013). In addition, "to constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party." Winschel v. Jain, 925 A.2d 782, 794 (Pa. Super. 2007) (citing McClain v. Welker, 761 A.2d 155, 156 (Pa. Super. 2000)).

The Parrs' motions in limine numbers one, three, and nine all dealt with the issue of "roof crush" versus "diving" and "torso augmentation." In particular, the Parrs' motion in limine number one sought to preclude Ford from presenting evidence of its diving/torso augmentation theory, which the Parrs asserted was discredited and superseded by the National Highway Traffic Safety Administration (NHTSA)'s Final Rule dated May 12, 2009. The Parrs assert Ford admitted that in 2001, comparable vehicles existed with much stronger roofs than that of the Excursion. Ford, however, defended on the basis that roof strength was irrelevant to its diving/torso augmentation theory, and that stronger roofs would not have lessened the chance of Mrs. Parr's crippling neck injury.

The Parrs asserted pretrial, at trial, and in their appellate brief as follows:

Although "roof crush" versus "diving/torso augmentation" was a heavily contested issue for years prior to 2001, in 2009, NHTSA determined for once and for all that "roof crush" and not "diving/torso augmentation" was the cause of head and neck injuries-such as those sustained by Mrs. Parr-among belted occupants in rollover accidents. NHTSA based its finding upon extensive epidemiological studies from 2001-2009, and resultantly promulgated its Final Rule on Federal Motor Vehicle Safety Standard (FMVSS) No. 216 on May 12, 2009, which required more stringent roof-crush standards:
Roof Crush as a Cause of Injury
A number of commenters including GM, Ford, [and] Nissan[3] . . . stated that the statistical correlation . . . found between roof intrusion and injury does not establish a causal relationship between roof deformation and injury. . . . [T]he studies . . . merely suggest that there is a relationship. . . . "[W]hen you compare rollover accidents that have significant roof/pillar deformation with other rollover accidents that have very little or no roof/pillar deformation, you are not comparing similar accidents with respect to roof-to-ground impact severity. Just the fact that two vehicles are in a rollover with greater than 2 quarter turns does not mean they are in the same or even similar impact severities." . . . Ford stated that "the amount of roof deformation is only an indication of the severity of the impact between the roof and the ground." . . . GM stated that "Observations of injury occurrence at the end of a rollover collision reveal nothing regarding the relationship of roof deformation, roof strength, or roof strength-to-weight ratio injury causation." Nissan stated that deformation and injury severity are both independently associated with roof impact severity.

The Parrs' Brief at 22–23; "Federal Motor Vehicle Safety Standards; Roof Crush Resistance; Phase–In Reporting Requirements" ("FMVSS"), 74 Fed.Reg. 22348, 22378–22379 (final rule promulgated May 12, 2009) (codified at 49 C.F.R. §§ 571, 585) ("FMVSS 216 Final Rule"). The NHTSA has explained:

[Some] arguments appear to imply that any difference in roof intrusion must be due to a difference in impact severity rather than roof strength or design . . . .
There are logical reasons to believe that a collapsing roof that strikes an occupant's head at the nearly instantaneous impact velocity experienced when structures deform might cause serious injury. These types of injuries were documented . . . in a detailed investigation of 43 rollover crashes. The agency believes that the statistically significant relationship between roof intrusion and belted occupant injury . . . indicates not just a suggestion, but a probability that increasing roof strength reduces injuries.

The Parrs' Brief at 23; FMVSS 216 Final Rule, 74 Fed.Reg. at 22379.

As noted, the Parrs' motion in limine number one sought to preclude presentation of Ford's diving/torso augmentation theory to the jury, contending that after forty years of research, studies, tests, and experience, NHTSA specifically discredited this theory in FMVSS 216 Final Rule, and validated "roof crush" as the cause of head and neck injuries sustained by belted occupants in rollover motor vehicle accidents. In light of that finding, the Parrs maintain, NHTSA amended the roof crush rule to require substantial increases in roof strength applicable to all consumer vehicles. The Parrs argue the trial court should have deferred to NHTSA's expertise to preclude Ford from introducing evidence of diving and torso augmentation at trial.

The trial court concluded that the Parrs' support for their motion was lacking and stated:

[U]pon review of the documentation provided to the Court to support their motion, notably, the 2009 Amendment to the FMVSS (Federal Motor Vehicle Safety Standard) although suggestive of appellants' argument, failed to convince this Court that either of their arguments [was] meritorious. First, although the 2009 Amendment did cite statistical studies which found a correlation between roof crush and injury in rollover accidents, appellants' contention that the NHTSA amendment conclusively determined that a causal relationship existed between roof crush and head and neck injury in rollover accidents, to the exclusion of torso augmentation, was not proven. Although a correlation was shown[, ] it did not provide, as appellants' were arguing, evidence showing that it was conclusive. As such, this Court determined that appellants' contention was without merit and denied their pre-trial motion which sought to preclude appellees from presenting evidence that "diving" or torso augmentation caused plaintiff, April Parr's injuries. Both appellees and appellants presented extensive expert testimony during trial on the subject of "roof crush" vs. "diving" as a cause of appellant, April Parr's injuries. In the end, the jury concluded that Ms. Parr's injuries resulted from "diving" not "roof crush" and found for the appellees.

Trial Court Opinion, 3/1/13, at 4–5.

Our review of FMVSS 216 Final Rule reveals that it did not categorically exclude diving/torso augmentation as a cause of head and neck injury in rollover crashes. Thus, the Parrs' position that NHTSA determined "once and for all" that roof crush and not diving/torso augmentation caused head and neck injuries, such as those sustained by Mrs. Parr, among belted occupants in rollover accidents, simply is not supported by the literature.

While we have not found a Pennsylvania appellate case directly on point, we cite with approval Campbell v. Fawber, __F.Supp.2d__, 2013 WL 1330153, (M.D. Pa. filed March 29, 2013).[4] The Parrs acknowledge the federal court's decision in Campbell, but they merely propose that the federal decision is not controlling. The Campbell Court considered this precise issue and rejected it out of hand.

Nothing contained in the agency's response suggests that the final rule categorically excluded torso augmentation or diving as a cause of head and neck injury in a rollover crash. To the contrary, the NHTSA's response was resolutely probabilistic. Furthermore, [the plaintiff] has shown nothing in the NHTSA's regulations that would suggest that the agency's study of roof crush injuries could prevent a party from presenting at trial evidence of an alternative explanation.

Id. at __, 2013 WL 1330153 at 14–15 (emphasis added).[5] The trial court properly declined the Parrs' motion in limine number one and permitted Ford to put its diving/torso augmentation theory before the jury.

The Parrs next contend the trial court erred when it granted Ford's motion in limine number three to preclude all references to NHTSA rulemaking documents after 2001 and particularly, NHTSA 216 Final Rule, on the basis that the 2001 Excursion was designed, manufactured, and sold in 2001, eight years before the Final Rule's publication. The Parrs sought to admit evidence of these rulemaking documents to establish causation, to dispute Ford's diving/torso augmentation theory, and to impeach Ford's experts' reliance upon that theory. The Parrs' Brief at 33. The Parrs maintain that the trial court relied upon precedent concerning whether this evidence was admissible to establish a "defect, " which was inapplicable to the Parrs' theory of roof crush causation. They suggest the 2001 date may have relevance to notice or negligence, but it has no relevance to the issue of causation or impeachment.

Ford responds that the trial court acted within its discretion in excluding reference to post-2001 rulemaking activities that culminated in FMVSS 216 Final Rule. It suggests that evidence regarding a post-manufacture regulatory standard is irrelevant because it does not go to whether the Excursion's roof was defectively designed when it left the Ford plant in 2001. Ford maintains that the documents also do not prove causation, they merely suggest that the Parrs' causation theory is possible, and that issue was not in dispute because Ford admitted it at trial. Thus, Ford argues that any marginal relevance was far outweighed by the likelihood that evidence of inapplicable government standards was likely to mislead the jury. Moreover, Ford maintains that the Parrs' claim is moot because the Parrs presented some of the evidence that they now assert was wrongly excluded.

In defending its decision to preclude references to NHTSA rulemaking documents after 2001, the trial court stated the following:

Pennsylvania law requires that a plaintiff prove that an allegedly defective vehicle was defective at the time of manufacture. Duchess v. Langston Corporation, 769 A.2d 1131, 1142 (Pa. 2001). However appellants sought to introduce NHTSA standards and rulemaking subsequent to the year the subject vehicle was manufactured. It was this Court's determination that the relevant time frame for assessing the design and/or defectiveness of the subject 2001 Ford Excursion was up to and including the year it was manufactured, 2001. The standards that were in place at that time (2001) were what was relevant to appellants' causes of action against the appellee, Ford Motor Company. At trial, appellees were permitted and did introduce evidence of NHTSA standards that existed up to the year 2001. This Court found appellants' contention that they should have been permitted to introduce NHTSA standards and rulemaking subsequent to the year 2001 without merit and accordingly granted appellees' pretrial motion precluding such evidence.

Trial Court Opinion, 3/1/13, at 5–6.

We note initially that the Parrs list fifteen studies and publications, which they assert were erroneously excluded by the trial court. See the Parrs' Brief at 35–37. They fail, however, to cite to any place in the record where the trial court declined their admission. The trial court's order dated March 5, 2012, and filed March 27, 2012, relating to Ford's motion in limine number three, precludes reference to "FMVSS 216, the 2009 Amendments to FMVSS 216, or Related Notices of Proposed Rulemaking . . . ." Order, 3/27/12, at 1 (docket entry 145). The Parrs' failure to note the place in the record where the trial court declined admission of the studies hampers our ability to address the issue as to all of the documents.[6] Thus, we will address the claim as it pertains to the trial court's decision to preclude reference to the documents related to FMVSS 216 Final Rule.

The trial court granted Ford's motion in limine number three to the extent it sought to exclude reliance on NHTSA standards and rulemaking documents after 2001, the year the Parrs' Excursion was manufactured. It is undisputed that roof-strength standards in FMVSS 216 Final Rule did not apply to the Excursion because the vehicle, at 8, 800 pounds, is beyond the "scope of [the] Safety Design Guideline, which stops at 8, 500 pounds . . . ." N.T., 3/7/12 (Morning Session), at 53, 83. The rulemaking documents Ford sought to exclude in its motion in limine number three did not issue until years after 2001; they dated from 2005, when the NHTSA issued notice of proposed rulemaking to update FMVSS 216, [7] to 2009, when NHTSA issued the Final Rule. NPRM, "Federal Motor Vehicle Safety Standards; Roof Crush Resistance, 70 Fed.Reg. 49223 (proposed Aug. 23, 2005); FMVSS 216 Final Rule. Moreover, even after 2009, the updated standard did not apply to the Excursion. The FMVSS Final Rule does not apply to vehicles of the Excursion's gross vehicle weight grading (i.e., between 6, 000 and 10, 000 pounds) until September 1, 2016. FMVSS 216 Final Rule, 74 Fed.Reg. at 22348; Ford's Motion in Limine No. 3, Exhibit D.

As we have stated, it is well settled that the decision to admit or exclude evidence is vested in the sound discretion of the trial court and will not be overturned on appeal absent an abuse of that discretion. Keystone, 77 A.3d at 11. Additionally, to be admissible, evidence must be relevant.

"Evidence that is not relevant is not admissible." Pa.R.E., Rule 402, 42 Pa.Cons.Stat.Ann. Relevant evidence is defined as evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable." Pa.R.E., Rule 401, 42 Pa.Cons.Stat.Ann. (emphasis added). Even if evidence is relevant, it may be excluded if its probative value is outweighed by, inter alia, the danger of unfair prejudice arising from its presentation to the fact-finder. Pa.R.E., Rule 403, 42 Pa.Cons.Stat.Ann. "'Unfair prejudice' supporting exclusion of relevant evidence means a tendency to suggest decision on an improper basis or divert the jury's attention away from its duty of weighing the evidence impartially." Commonwealth v. Wright, 599 Pa. 270, 325, 961 A.2d 119, 151 (2008). "The function of the trial court is to balance the alleged prejudicial effect of the evidence against its probative value and it is not for an appellate court to usurp that function." Commonwealth v. Parker, 882 A.2d 488, 492 (Pa. Super. 2005), aff'd on other grounds, 591 Pa. 526, 919 A.2d 943 (2007).

Lykes v. Yates, 77 A.3d 27, 33 (Pa. Super. 2013).

We conclude the trial court correctly found that the standard enacted in 2009, which is not applicable until 2016, cannot form the basis for liability in this case, where the vehicle in question was manufactured in 2001. Thus, evidence of the FMVSS 216 Final Rule in 2009 and rulemaking activities from 2005 and 2008 leading up to the amendment properly were excluded. The Parrs were compelled to prove that the Excursion was defective at the time it was made. See Duchess v. Langston, 769 A.2d 1131, 1142 (Pa. 2001) ("[O]ur jurisprudence requires that products are to be evaluated at the time of distribution when examining a claim of product defect."). The FMVSS 216 Final Rule and rulemaking activities leading up to the amendment properly were circumscribed by the trial court's grant of Ford's motion in limine number three. See Dunkle v. West Penn Power Co., 583 A.2d 814, 816 (Pa. Super. 1990) ("[I]n a strict liability action against the manufacturer of a product, safety standards promulgated after the sale of the product are irrelevant and inadmissible to show that the product was defectively designed or contained inadequate warnings when manufactured."). See also Oberreuter v. Orion Industries, Inc., 398 N.W.2d 206 (Iowa App. 1986); Aller v. Rodgers Machinery Manufacturing Co., Inc., 268 N.W.2d 830 (Iowa 1978); Rice v. James Hanrahan & Sons, 482 N.E.2d 833 (Mass. 1985); Cover v. Cohen, 461 N.E.2d 864 (N.Y. 1984); Turner v. General Motors Corp., 584 S.W.2d 844 (Tex. 1979); Majdic v. Cincinnati Machine Co., 537 A.2d 334 (Pa. Super. 1988).

Moreover, we reject the Parrs' assertion that even if the post-2001 rulemaking evidence was inadmissible to prove a defect, it was admissible to prove causation. As noted, we have determined that the FMVSS 216 Final Rule and related documents demonstrated that roof crush is one of several potential causes of injury in rollover accidents. The record reveals that Ford readily admitted that fact. N.T., 3/7/12 (Morning Session), at 33–34, 97; N.T., 3/19/12 (Morning Session), at 64–71; N.T., 3/19/12 (Afternoon Session), at 27–28. Thus, the documents in question did not make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Pa.R.E. 401.

Further, despite the trial court's ruling on Ford's motion in limine number three, the Parrs did, in fact, place the NHTSA Final Rule's conclusion before the jury. See, e.g., N.T., 3/7/12 (Morning Session), at 63; N.T., 3/19/12 (Afternoon Session), at 33–36. Indeed, during his closing argument, the Parrs' counsel suggested to the jury, "And this business about diving, torso augmentation, they can't convince NHTSA of that fact; yet they're trying to convince you . . . ." N.T., 3/21/12 (Volume I), at 51.

Even if the trial court erred in proscribing the evidence, any error in this respect was harmless. As noted, in order for a trial court's ruling on an evidentiary matter to constitute reversible error requiring the grant of a new trial, the ruling must be both legally erroneous and harmful to the complaining party. Winschel, 925 A.2d at 794. If the error in the admission of the evidence had no effect on a verdict, the error does not require the grant of a new trial. Herein, the Parrs assert that the admission of the documents would have proven causation. As noted, however, the jury never reached the issue of causation. Jury Verdict Form, 3/23/12.

Finally, the evidence encompassed by Ford's motion in limine number three was cumulative to the myriad references by the Parrs to the NHTSA and roof crush causation. See, e.g., N.T., 3/7/12 (Morning Session), at 41–42, 57–87; N.T., 3/7/12 (Afternoon Session), at 21–24, 102–104, 123–132, 138–143; N.T., 3/8/12 (Morning Session), at 35–87, 104;. N.T., 3/8/12 (Afternoon Session), at 77; N.T., 3/15/12 (Afternoon Session), at 44–45; N.T., 3/19/12 (Morning Session), at 27–29; N.T., 3/19/12 (Afternoon Session), at 29–36, 72–83; N.T., 3/20/12 (Afternoon Session), at 28. The trial court did not abuse its discretion in granting Ford's motion in limine number three.

Next, related to the trial court's grant of Ford's motion in limine number nine, the Parrs contend that they should have been permitted to present statistical evidence prepared by NHTSA, the Insurance Institute for Highway Safety ("IIHS"), the National Center for Statistics and Analysis, Fatality Analysis Reporting System ("FARS"), and the National Automotive Sampling System ("NASS") concerning rollover fatalities involving Ford Excursions and other "comparable" vehicles. The Parrs assert that the trial court abused its discretion in granting Ford's motion in limine number nine to preclude post-2001 epidemiological studies and publications that demonstrated that 2001–2004 Ford Excursions had rollover driver and occupant death rates higher than comparable "large" and "extra-large" sport utility vehicles, on the basis that the Parrs could not satisfy the "substantially similar" test. The Parrs' Brief at 42.

Ford contends the trial court acted within its discretion in excluding the statistical studies because they involved a wide variety of accidents, injuries, and vehicles. Ford asserts that because the Parrs failed to show the requisite similarity to the instant accident, the studies, and the statistics upon which they relied were not relevant within the meaning of Pa.R.E. 401.[8] Ford also avers that the studies were inadmissible hearsay and highly prejudicial. Finally, Ford suggests that notwithstanding the trial court's ruling, the Parrs' counsel and experts presented many of these statistics to the jury.

The trial court stated the following regarding this issue:

Appellants next argue that this court erred in granting Appellee's Motion in Limine No. 9 which sought to preclude any references during trial to statistical evidence of other dissimilar accidents. Both parties had an opportunity to argue this Motion in Limine before this Court prior to trial. Appellants contend that this Court committed an error of law and/or abused its discretion when it granted Appellees' Motion in Limine No. 9. According to Appellants, this Court "altogether precluded Plaintiffs/appellants from offering statistical evidence prepared by NHTSA, The Insurance Institute for Highway Safety (IIHS), the Fatal Accident Reporting System, and/or the National Automotive Sampling System as to rollover fatalities involving the subject vehicle and comparable vehicles on the basis that Appellees were unable to prove that the statistics derived from other rollover accidents that [sic] were virtually identical to the one in the instant accident."
As [A]ppellants acknowledge, it was their burden, as the proponent of this evidence, to establish, to the court's satisfaction, the similarity between other accidents and the subject accident before this evidence could have been admitted for any purpose. Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978 (Pa. Super. 2005). During argument before this Court, Appellants failed to show the required similarity between the subject accident and those contained within the statistical compilations. Notably, the IIHS reports, unlike the subject accident, involved fatalities. Appellants could not establish that the facts surrounding the accidents that comprised the statistical analysis they wished to introduce before the jury were substantially similar to those in the subject accident. As it was appellants' burden, this Court found that they had not met their burden and granted Appellees' Motion to Preclude the Statistical Evidence.

Trial Court Opinion, 3/1/13, at 6–7.

We agree with the trial court's conclusion that the Parrs failed to show that various expert reports and the relevant statistical studies and compilations upon which those reports relied were substantially similar to the instant case; thus, the trial court properly granted Ford's motion in limine number nine and circumscribed the evidence. The Parrs were precluded from referencing (1) data compiled by IIHS, which contained fatality facts obtained from the FARS database; (2) IIHS evidence that compared mortality rates of Ford Excursions in rollover accidents to other large or extra-large sport utility vehicles from other manufacturers involved in rollover accidents; and (3) IIHS documents comparing roof strengths of various makes and models during rollover accidents. This Court has stated:

Evidence of prior accidents involving the same instrumentality is generally relevant to show that a defect or dangerous condition existed or that the defendant had knowledge of the defect. However, this evidence is admissible only if the prior accident is sufficiently similar to the incident involving the plaintiff which occurred under sufficiently similar circumstances. The burden is on the party introducing the evidence to establish this similarity before the evidence is admitted.
Lockley v. CSX Transp., Inc., 5 A.3d 383, 395 (Pa. Super. 2010) (citation omitted).
"Determining whether and to what extent proffered evidence of prior accidents involves substantially, similar circumstances will depend on the underlying theory of the case advanced by the plaintiffs." Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1239 (10th Cir. 2004). "If the evidence of other accidents is substantially similar to the accident at issue in a particular case, then that evidence will assist the trier of fact by making the existence of a fact in dispute more or less probable, and the greater the degree of similarity the more relevant the evidence." Id. "Naturally, this is a fact-specific inquiry that depends largely on the theory of the underlying defect in a particular case." Id. Accordingly, a wide degree of latitude is vested in the trial court in determining whether evidence is substantially similar and should be admitted. Lockley, 5 A.3d at 395.

Blumer v. Ford Motor Co., 20 A.3d 1222, 1228–1229 (Pa. Super. 2011).

Statistical compilations of accidents and studies citing statistical compilations of accidents must satisfy the substantial similarity test. Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978 (Pa. Super. 2005). In Penske, this Court rejected as "frivolous and illogical" the claim that "expert reports do not constitute 'other accident' evidence because [the appellant] presented no single other accident to the jury but rather presented only the reports' conclusions from studies of hundreds of other accidents." Id. at 985. "To suggest, as [Mr.] Hutchinson does, that the underlying nature of this evidence of other accidents was transformed, merely because it was compiled, analyzed, and summarized to generate conclusions, defies both logic and common sense." Id. at 985-986. It is clear that the Parrs were compelled to satisfy the substantial similarity test, and because they did not, the studies properly were excluded.

We agree with the trial court that the studies in question did not meet the substantial similarity test. For example, the facts from the FARS database referenced by the Parrs included passenger vehicle deaths in frontal impacts and side impacts as well as rollovers, some involving single vehicle accidents and others occurring in multi-vehicle crashes. The Parrs' Brief at 41. Other publications and data the Parrs sought to admit reported mortality rates, roadway design, and roof strength evaluations of large luxury cars, large family cars, small pick-up trucks, with little or no mention of the specifics of each accident cited therein. Id. at 42, 45. See, e.g., IIHS status report, "The Risk of Dying in One Vehicle Versus Another, " Vol. 40, No. 3, March 19, 2005, the Parrs' Exhibit 13; the Parrs Brief at 42. The publications involved fatalities, not neck injuries, did not necessarily relate to Ford Excursions, and failed to account for seat belt usage and other variables.

The Parrs did not present evidence as to the substantial similarity of the reports to the Excursion, the accident, or the circumstances in this case. Thus, none of the information in the reports was shown to be directly relevant to the Excursion and to the accident at issue. The Parrs had the burden to prove substantial similarity, and they failed to carry the burden. Penske.[9], [10] The issue lacks merit.

The Parrs' final issue relates to whether the trial court committed an error of law and abused its discretion when it denied the Parrs' motion in limine number ten to preclude Ford from: (a) presenting evidence that the 2001 Excursion was not preserved; and (b) obtaining a spoliation charge. The Parrs contend the trial court erred in issuing a spoliation charge to the jury and in permitting extensive introduction of spoliation evidence where Ford was unable to demonstrate any prejudice that resulted from the destruction of the 2001 Excursion.

Ford proffers that the trial court's decision to instruct the jury that it could infer that the Excursion contained evidence unfavorable to the Parrs was within the court's broad discretion. The Parrs stipulated that they failed to preserve the vehicle even though they had ample opportunity to do so after retaining counsel. Thus, Ford never had the chance to examine the vehicle, and Ford's experts explained how the vehicle's absence negatively impacted their analyses. Ford maintains that any error in this regard was harmless because the Parrs asserted that the excluded evidence would have aided their case on causation, but the jury did not reach causation in returning a defense verdict. Thus, Ford responds that the Parrs cannot show that the trial court committed an error of law that controlled the outcome of the case.

The trial court resolved this issue as follows:

This Court initially deferred ruling on the motion. However, prior to making a decision this Court did permit appellee, Ford, to introduce facts about the unavailability of the vehicle and its impact on the experts' investigation into the cause of the accident and the injuries sustained by the occupants. As such, appellants' counsel during cross-examination of appellees' experts called into question their opinions and conclusions, based upon the fact that the subject vehicle was not available for them to examine and inspect.
Further, at trial the parties stipulated as to the facts surrounding the unavailability of the vehicle. Notably, appellants stipulated that two weeks after the accident and after hiring counsel, they released the vehicle to their insurance company who in turn sold the vehicle which was then destroyed. Appellants further stipulated that they did not attempt to locate the vehicle until after it had been destroyed and that appellees were not notified of legal action until after the vehicle was [destroyed].
In light of the above stipulation and arguments and briefs of counsel, this Court denied appellants' Pre-trial Motion to Preclude and accordingly allowed the jury to make whatever conclusions it deemed proper. Accordingly, this Court gave a permissive adverse inference instruction to the jury, instructing that it could, but was not required to, draw a negative inference against appellants from the destruction and thus absence of the subject vehicle. Clearly appellants, despite their hiring of counsel and their knowledge of their pursuit of a legal action resulting from the accident, transferred the subject vehicle out of their possession resulting in it being subsequently destroyed, thereby preventing appellees from having the vehicle inspected so as to properly defend themselves from appellants' allegations.

Trial Court Opinion, 3/1/13, at 7–8.

"Spoliation of evidence" is the failure to preserve or the significant alteration of evidence for pending or future litigation. Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011). "When a party to a suit has been charged with spoliating evidence in that suit (sometimes called "first- party spoliation"), we have allowed trial courts to exercise their discretion to impose a range of sanctions against the spoliator." Id. (citing Schroeder v. Commonwealth, Department of Transportation, 710 A.2d 23, 27 (Pa. 1998)) (footnotes omitted). This Court has stated:

"When reviewing a court's decision to grant or deny a spoliation sanction, we must determine whether the court abused its discretion." Mount Olivet Tabernacle Church v. Edwin L. Wiegand Division, 781 A.2d 1263, 1269 (Pa. Super. 2001) (citing Croydon Plastics Co. v. Lower Bucks Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. 1997) (recognizing that "[t]he decision whether to sanction a party, and if so the severity of such sanction, is vested in the sound discretion of the trial court")). Such sanctions arise out of "the common sense observation that a party who has notice that evidence is relevant to litigation and who proceeds to destroy evidence is more likely to have been threatened by that evidence than is a party in the same position who does not destroy the evidence." Mount Olivet, 781 A.2d at 1269 (quoting Nation–Wide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214, 218 (1st Cir.1982)). Our courts have recognized accordingly that one potential remedy for the loss or destruction of evidence by the party controlling it is to allow the jury to apply its common sense and draw an "adverse inference" against that party. See Schroeder v. Commonwealth of Pa., Dep't of Transp., 551 Pa. 243, 710 A.2d 23, 28 (1998). Although award of summary judgment against the offending party remains an option in some cases, its severity makes it an inappropriate remedy for all but the most egregious conduct. See Tenaglia v. Proctor & Gamble, Inc., 737 A.2d 306, 308 (Pa. Super. 1999) ("Summary judgment is not mandatory simply because the plaintiff bears some degree of fault for the failure to preserve the product.").
To determine the appropriate sanction for spoliation, the trial court must weigh three factors:[11]
(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.
Mount Olivet, 781 A.2d at 1269–70 (quoting Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994)). In this context, evaluation of the first prong, "the fault of the party who altered or destroyed the evidence, " requires consideration of two components, the extent of the offending party's duty or responsibility to preserve the relevant evidence, and the presence or absence of bad faith. See Mt. Olivet, 781 A.2d at 1270. The duty prong, in turn, is established where: "(1) the plaintiff knows that litigation against the defendants is pending or likely; and (2) it is foreseeable that discarding the evidence would be prejudicial to the defendants." Id. at 1270– 71.

Creazzo v. Medtronic, Inc., 903 A.2d 24, 28–29 (Pa. Super. 2006).

The record reveals that there is no dispute that the Parrs were responsible for the destruction of the Excursion, and thus were at fault. The stipulation concerning the destruction of the vehicle was as follows:

Two days after the accident, on July 23, 2009, Mr. Parr took pictures of the subject Excursion while it was in storage at a nearby towing company.
The Parrs retained [counsel] on August 4, 2009.
On August 4, 2009, Mr. Parr released the Ford Excursion to Progressive Insurance Company.
On August 27, 2009, [the Parrs] signed off on the title for the subject vehicle as a total loss.
The Excursion was sold on September 21, 2009, and, thereafter, destroyed by the purchaser.
[The Parrs] and their counsel did not attempt to locate the subject vehicle until October 9, 2009.
[The Parrs] initiated this action by filing a complaint on January 5, 2010.
No notice was given to Ford Motor Company or McCafferty Ford Sales of pending legal action prior to the date the vehicle was disposed of.
No notice or opportunity to inspect the vehicle was given to Ford Motor Company or McCafferty Ford Sales prior to the date the vehicle was disposed of.

N.T., 3/15/12 (Morning Session), at 30–31.

We examine the factors to determine whether the trial court properly denied the Parrs' motion in limine number ten and chose the appropriate sanction to impose. Clearly, the Parrs alone had the capacity to preserve the Excursion given the fact that they hired counsel six to seven weeks before the vehicle's destruction. It was "foreseeable that discarding the evidence would be prejudicial to the defendants, " Mt. Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d 1263, 1271 (Pa. Super. 2001), because Mr. Parr took photographs of the vehicle two days after the accident, indicating that he recognized the vehicle's value as evidence.

Second, Ford clearly was prejudiced by the Excursion's destruction.[12]Multiple expert witnesses stated that their analyses would have been aided by examination of the vehicle. Even the Parrs' expert Dr. Geoffrey Germane testified, "[I]n a rollover crash, the vehicle is the best witness. It contains information about the rollover that might not be otherwise available." N.T., 3/15/12 (Morning Session), at 57. Furthermore, on cross-examination Ford expert Dr. Catherine Ford stated, "I can't say, unfortunately, exactly where [April Parr] impacted because we don't have the vehicle." N.T., 3/19/12 (Afternoon Session), at 17. Ford expert Dr. Harry Lincoln Smith testified that he "would have liked to" examine the Excursion, which was necessary in "making a complete analysis." Id. at 96.

Finally, the trial court had a range of sanctions from which to choose once it decided to impose one. Ford had requested that the trial court grant summary judgment as a sanction for the Parrs' destruction of the Excursion. Although the award of summary judgment against an offending party remains an option in some cases, its severity makes it an inappropriate remedy for all but the most egregious conduct. See Tenaglia v. Proctor & Gamble, Inc., 737 A.2d 306, 308 (Pa. Super. 1999) ("Summary judgment is not mandatory simply because the plaintiff bears some degree of fault for the failure to preserve the product."). Indeed, "dismissal of a complaint or preclusion of evidence regarding an allegedly defective product is an extreme action reserved only for those instances where an entire product or the allegedly defective portion of a product is lost, spoiled or destroyed." Mensch v. Bic Corp., 1992 WL 236965, 2 (E.D.Pa. 1992) (emphasis added); Woefel v. Murphy Ford Co., 487 A.2d 23 (Pa. Super. 1985).

In the instant case, the trial court chose to charge the jury that it was permitted, although not required, to draw an adverse inference against the Parrs for destruction of the Excursion, which was the least severe of the possible sanctions. See Schroeder, 710 A.2d at 28. The Parrs do not, and cannot, dispute that the permissive adverse inference instruction is a lesser sanction than outright dismissal or the grant of summary judgment. See Schroeder, 710 A.2d at 28 ("lesser sanction such as a jury instruction on the spoliation inference is warranted"). The trial court did not err in giving the lesser sanction of an adverse inference instruction.

Having concluded that the trial court did not abuse its discretion in any of the evidentiary rulings identified by the Parrs, and for the above stated reasons, the judgment in favor of Ford must be affirmed.

Judgment affirmed.

CONCURRING AND DISSENTING OPINION

WECHT, J.

I join the learned majority's disposition of the first issue presented by Joseph and April Parr (the "Parrs"), confirming the admissibility of evidence regarding "diving" and "torso augmentation" that Ford Motor Company ("Ford") introduced in attempting to establish a non-"roof crush" theory of causation for April and Samantha's injuries. However, I disagree with the majority's rulings regarding the Parrs' other evidentiary issues. Indeed, I depart from the majority on these issues precisely because the evidence in question was appropriate at a minimum to impeach Ford's witnesses' rejection of the roof crush theory upon which the Parrs' suit rested. Consequently, I respectfully dissent.

I disagree with the majority's rejection of the Parrs' second issue. Therein, the Parrs challenge the trial court's grant of Ford's motion in limine to exclude any post-2001 (i.e., the year of manufacture of the Parrs' vehicle) evidence of relevant factual findings or regulatory actions by the National Highway Traffic Safety Administration ("NHTSA") that address the validity of Ford's diving and torso augmentation theory of causation. It is clear from our case law that post-manufacture evidence may be admissible when it pertains to the subject vehicle. See Blumer v. Ford Motor Co., 20 A.3d 1222, 1230-31 (Pa. Super. 2011) (finding admissible accident reports involving alleged similar defects that occurred after the date of manufacture of the subject vehicle).

I agree with the Parrs that such evidence may be admissible for purposes of impeaching Ford's experts regarding their unqualified testimony that roof crush does not cause injuries arising from roll-over accidents. See Notes of Testimony ("N.T."), 3/7/2012 (afternoon), at 121; Brief for the Parrs at 30, 38 (citing Pa.R.E. 607(b) ("The credibility of a witness may be impeached by any evidence relevant to that issue . . . .")). As well, I agree with the Parrs that such evidence is admissible for purposes of setting forth the basis for the Parrs' experts' opinions. See Brief for the Parrs at 39; Pa.R.E. 705 (requiring the disclosure of the facts or data underlying an expert's opinion). Notably, the Parrs' epidemiological expert, Michael Freeman, was permitted to testify to post-2001 studies and data compilations, see, e.g., N.T., 3/8/2012 (afternoon), at 49-56 (Parrs' expert testifying regarding reliance on a National Automotive Sampling System Crash-Worthiness Data System encompassing data after 2001). The admissibility of materials considered by an expert witness in formulating his or her opinion is well-established in this Commonwealth, and enshrined by rule. See Pa.R.E. 705.

Moreover, I disagree with the majority that the trial court's exclusion of these post-2001 studies, reports, and rule-making, if erroneous, was harmless even if it was in error. See Maj. Op. at 22 (citing Winschel v. Jain, 925 A.2d 782 (Pa. Super. 2007)); accord Majdic v. Cincinnati Mach. Co., 537 A.2d 334, 341 (Pa. Super. 1988). While it is true that the Parrs emphasized the utility of this evidence in establishing causation, and the jury did not reach the question of causation based upon its determinations regarding the absence of a defect, see Maj. Op. at 22, there is no question in my mind that the impeachment value of this evidence could well have influenced the jury generally regarding the case. To be sure, the jury might properly have been instructed not to consider evidence of Ford's non-compliance with federal regulatory standards not yet in place in 2001 as indicative of a product defect, see Pa.R.E. 105 (permitting the admission of evidence for one purpose while precluding its use for another). That approach was not taken. The Ford expert testimony that the excluded evidence would have been used to impeach necessarily would have reflected on the credibility of the testifying experts' opinions generally, which inextricably intertwined issues of product defect and causation.

Inasmuch as the jury was allowed to consider Ford's experts' testimony on issues of defect, impeachment evidence regarding their testimony reasonably could have influenced the jury's findings on that question. Thus, it is not sufficient simply to note that the jury did not reach the question of causation: Had the jury found Fords' experts incredible on questions of causation, it might well have found them incredible on questions pertaining to product defect. This would have necessitated a response on the question of causation, as to which the post-2001 documents in question would then have been relevant and admissible. Consequently, I must dissent from the majority's ruling on this issue.[1]

I also disagree with the majority's ruling against the Parrs on their third issue. Therein, the Parrs contend that the trial court erred in excluding statistical evidence pertaining to fatality rates and other accident-related data compiled in the reports of various public and private organizations. Brief for the Parrs at 40-53. The majority rejects this issue on the basis that the Parrs failed to meet Pennsylvania's "substantial similarity" test, because the studies in question did not adequately specify the nature of the accidents analyzed such that the court or the jury could discern which of the accidents were relevant to the case sub judice. Maj. Op. at 23-28; see generally Majdic, 537 A.2d at 340 (holding circumstantial evidence of similar accidents admissible in products liability action, provided they occurred "under the same or similar circumstances").

I believe that the majority's ruling reflects an application of the substantial similarity test more stringent than is warranted under the circumstances of this case. While the test is established in Pennsylvania law, we have never held that it requires a perfect one-to-one correlation, and our application of the test typically has varied considerably according to the circumstances of the case and the purposes for which the evidence is proffered. See, e.g., Blumer, 20 A.3d at 1229 (quoting Bitler v. A.O. Smith Corp., 400 F.3d 1227. 1239 (10th Cir. 2004)) ("Determining whether and to what extent proffered evidence of prior accidents involves substantially[] similar circumstances will depend on the underlying theory of the case advanced by the plaintiffs."); DiFrancesco v. Excam, Inc., 642 A.2d 529, (Pa. Super. 1994) (upholding the admission of evidence of similar design defects in other products as substantially similar to product at issue); Majdic, 537 A.2d at 341 (admitting prior accident evidence when the product in question had various applications and prior accidents had occurred in applications different than the case at bar); see also DiFrischia v. N.Y Cent. R. Co., 307 F.2d 473 (3d Cir. 1962) (upholding the admission of other-accident evidence at the subject rail crossing, even though the accidents in question were not shown to be like the one in question, but were shown to have taken place at night, as had the subject accident).

The Parrs sought to introduce reports establishing elevated fatality rates in rollover crashes of Ford Excursions of the same generation as the Excursion at issue in this case, and roof strength analyses of the Excursion and comparable vehicles in general. The relevance of this evidence is difficult to dispute.[2] These reports reasonably and properly could have informed a jury regarding the engineering of the 2001 Excursion's roof and pillars, and causation may have been inferred therefrom. To the extent that the studies were inapposite, this was a question of weight, not admissibility. Cf. Bolus v. United Penn Bank, 525 A.2d 1215, 1226-27 (Pa. Super. 1987) (quoting Standard Pipeline Coating Co., Inc., v. Teslovich, Inc., 496 A.2d 840, 846 (Pa. Super. 1985)) (finding that "an expert appraisal of probabilities is permissible testimony, " and the question of weight is for the jury); Emerick v. Carson, 472 A.2d 1133, 1136 (Pa. Super. 1984) ("Appellants also claim that Dr. Monroe's testimony was so seriously flawed as to render it prejudicial to Appellants. This argument obviously goes to the weight to be accorded to Dr. Monroe's testimony by the jury and not to its admissibility . . . ."). Given a proper adversarial presentation, the jury would have been quite capable of considering the value of the reports in question. By its ruling, the learned trial court unwittingly usurped the jury's function in this regard, and thereby abused its discretion.

Finally, I agree with the Parrs that this evidence should have been admitted, at a minimum, for purposes of impeaching Ford's witnesses. Notably, Ford's experts were permitted to utilize post-2001 epidemiological studies to support Ford's diving and torso augmentation theory. The evidence that the Parrs were not allowed to admit was similar to, if contradictory of, the evidence provided by Ford's experts on causation. For the same reasons set forth above in connection with the Parrs' second issue, I cannot conclude that the exclusion was harmless. Consequently, I cannot join the majority in its resolution of this issue, either.

I also cannot join the majority in its rejection of the Parrs' fourth issue. This issue concerns the alleged spoliation of important evidence by reason of the Parrs' failure to preserve the Excursion for study, despite their awareness, before signing title over to their insurer, that they intended to seek legal redress for injuries arising from the accident. In determining whether to provide an adverse inference jury instruction arising from spoliation of evidence, the court must consider the degree of fault of the party accused of destroying relevant evidence, the prejudice to the party seeking the instruction arising from the destruction of evidence, and whether the sanction chosen – in this case the adverse inference instruction, admittedly among the milder available sanctions – was adequate to protect the prejudiced party's rights and to deter similar conduct in the future. See Schroeder v. Dep't of Transp. of Penna., 710 A.2d 23, 27 (Pa. 1998).

The linchpin of Ford's defense was not rooted in the particular circumstances of the instant accident. Rather, with its diving and torso augmentation theory, Ford's position was that, because roof crush never is the cause of injury in roll-over accidents, the Parrs per se could not establish the Excursion's lack of crashworthiness. This theory would not have been augmented by an inspection of the subject vehicle, which had in any event been severely damaged by the "jaws of life" during the extraction of the vehicle's occupants.

In instructing the jury that it was free to conclude from the Parrs' failure to preserve the Excursion for purposes of litigation that there was wrongful intent or a deliberate effort to conceal evidence favorable to Ford, the trial court unquestionably enabled a circumstance in which the jury reasonably could have been prejudiced against the Parrs in its deliberations. Thus, the error in question was not harmless. I dissent from the majority's ruling on this issue, as well.

For the foregoing reasons, I would award a new trial to the Parrs, in which they would be free to introduce the evidence discussed above, and in which they would not be disadvantaged by an unwarranted adverse inference instruction. I respectfully dissent.


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