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Plaintiffs in a rollover case should have been able to introduce evidence contesting a theory of injury that the National Highway Traffic Safety Administration disavowed in 2009, the plaintiffs’ attorney argued before an en banc Superior Court panel in Philadelphia last week.

Richard Angino of Angino and Lutz, who represented the plaintiffs in Parr v. Ford Motor, argued that the trial court had improperly based its decision to preclude NHTSA documents that discounted the defendant’s injury theory solely because the study had been performed after the plaintiff’s accident occurred.

The evidence, Angino told the court during the Aug. 5 arguments, met the “substantially similar” test, and the court should not have based its decision on when the report was performed.

“The date when a study is done is totally irrelevant,” he said, likening the evidence to studies linking smoking to cancer. “As far as defect goes, you cannot use it, but as far as all three other areas—impeachment, causation, supporting our own expert—you can use it.”

The case was before the expanded panel of the court after a three-judge panel in December 2013 upheld the trial court’s decision dismissing post-trial motions that argued Ford Motor Co.’s injury theory was inadmissible because the NHTSA had determined roof crush and not “diving” and “torso augmentation,” which Ford had argued, cause head and neck injuries to belted passengers.

Ford’s attorney, Dominic F. Perella of Hogan Lovells in Washington, D.C., disputed the plaintiffs’ argument that the trial court’s decision to exclude the post-2001 evidence was based only on the date. He further argued that because the jury never reached the issue of causation, any error regarding the evidence was harmless.

“Question one was: Was the roof defective? The jury said no,” Perella said.

According to court documents, the plaintiffs in the case, who were all members of the Parr family, were injured when their 2001 Ford Excursion was involved in a rollover accident in 2009. While all the passengers wore seat belts, one of the occupants, who was sitting in the third row on the passenger side, sustained a fractured skull, broken collarbone, fractured orbital and facial and liver lacerations, and another passenger, sitting in the front passenger seat, sustained a spinal cord injury and was rendered quadriplegic.

Judge Jacqueline O. Shogan, who was on the court’s en banc panel, explained in the court’s majority opinion in December that “diving” occurs when centrifugal force pulls passengers out of their seats as the vehicle flips upside down. “Torso augmentation,” she further explained, occurs when a passenger’s head, which has been forced against the ceiling of a vehicle, comes to an abrupt stop while the torso continues to move.

The plaintiffs contended that the severe injuries were caused by roof crush, and that the vehicle’s roof and restraint system were defectively designed under the crashworthiness doctrine of strict products liability.

Among other things, Ford contended that the injuries were caused by dive and torso augmentation, not roof crush, and therefore the design was not negligent or defective.

The plaintiffs filed post-trial motions contending that the court should not have allowed Ford to present the diving and torso augmentation theory before the jury.

The Parrs further argued that the court should not have precluded them from presenting post-2001 NHTSA standards and rule-making documents, as well as statistics from several organizations regarding rollover rates.

In the court’s majority opinion in December, Shogan agreed with the trial court that the NHTSA’s study did not conclusively prove a link between roof crush and head and neck injuries to the exclusion of diving and torso augmentation. She further agreed with Ford that the precluded post-2001 NHTSA documents were not relevant, as they went to causation and it was undisputed that the Parrs’ causation theory was a viable theory.

She further held that the Parrs failed to show that the rollover statistics from additional organizations were based on similar vehicles and injuries, as some of the numbers were based on crashes involving fatalities and single-vehicle accidents.

Judge David N. Wecht, however, disagreed with the majority in all but its first finding. For Wecht, the post-2001 documents could have been used to impeach Ford’s witnesses, and the majority incorrectly evaluated the similarities of statistics from additional organizations. He recommended a new trial.

During arguments, Wecht asked Perella how a ruling to preclude the post-2001 documents could be harmless.

“To say that the product defect and causation aren’t inextricably intertwined defies reason,” Wecht said. “How can we know what the jurors would have done on cross with post-2001 evidence?”

Perella noted prior state Supreme Court precedent indicating that if a jury is not required to deliberate on an issue, any error regarding the issue cannot cause harm. Ruling otherwise would render the precedent “dead letter,” Perella said. The attorney further argued that although the court precluded the NHTSA documents, both sides had been able to mention post-2001 evidence from other sources.

“These are evidentiary issues subject to abuse of discretion,” Perella said.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI. •