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Motion 12 - product liability motion in opposition of remittitur - Part 4

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Plaintiffs expert witnesses, Dr. Ken Saczalski and Dr. Joseph Burton, gave opinion testimony that the OSI's were substantially similar to the Mikolajczyk occurrence. All of the offered OSI's were collisions that either Dr. Saczalski or Dr. Burton personally investigated. They relied on their investigations, their experience, and the materials they reviewed in those cases to determine that those events were substantially similar to the Mikolajczyk occurrence.

Dr. Burton testified that Ms. Teeters was a belted front passenger in a 1998 Ford Escort. (Burton, 2/28 p.m., pp. 95-7). Her Escort was hit from the rear at a delta v of approximately 30 mph, and her seat collapsed. (Id.). She ramped up the seat, struck her head in the rear seat area, and died. (Id.). Based upon the facts from his investigation, Dr. Burton opined that the Teeters collision was substantially similar to the Mikolajczyk collision.

Dr. Saczalski established that the collisions involving Ms. Potter and Ms. Bitters were substantially similar to the Mikolajczyk collision.(Saczalski, 3/1 p.m., pp. 91-4). Ms. Potter was the belted driver of a 1997 Ford Escort, the rear of which hit a tree.(Saczalski, 3/1 p.m., pp. 91-2). Her seat collapsed during the impact, she ramped up the seat, and her body struck the rear seat seatback. (Id.). As a result, Ms. Potter suffered a severe spinal cord injury and paralysis.(Id.).

Ms. Bitters was the driver of a mid-80's Ford Escort involved in a rear impact. (Saczalski, 3/1 p.m., pp. 93-4). Her seat collapsed during the impact, she ramped up the seat, and impacted the rear seat seatback. (Id.). Ms. Bitters also suffered a severe spinal cord injury and paralysis from the impact with the rear seat seatback. (Id.).

Ford's claim that these occurrences are not substantially similar because they do not all involve 1991-1996 Ford Escort 3-door hatchbacks is disingenuous. Mr. Burnett, Ford's design analysis engineer, admitted that in high-speed rear impacts, all Escort seats from 1981 through 1996 would perform similarly. (Burnett, 3/14 a.m., pp. 10-1). Both Mr. Burnett and Andrew Levitt, Ford's retained seat design expert, stressed to the jury that the front seats in all Ford passenger vehicles performed similarly to almost every other car on the market, regardless of manufacturer. (Burnett, 3/4 a.m., pp. 46-7; 3/4 p.m., pp. 11, 51; 3-14 a.m., p. 72; Levitt, 3/10 a.m., p. 89).

Plaintiff adequately proved the substantial similarity of the Teeters, Potter, Bitters and Mikolajczyk collisions. Plaintiff offered evidence of seventeen other occurrences that the court could properly have admitted, but chose not to do so. (Burton, 2/28 p.m., pp. 3-16; Saczalski, 3/4 p.m., pp. 111-2).


Ford alleges that this court should have barred the testimony of Shuji Kumano, Mazda's corporate representative, because his testimony was “irrelevant, cumulative, and the purpose for which he was called was improper.” Ford Motion, p. 17. As the only Mazda witness who testified at trial, Mr. Kumano was hardly a cumulative witness. His testimony was relevant to show that: 1) the jury could assess whether the seat was unreasonable dangerous by looking at the kinematics of a test; 2) a safe seat is one which keeps the occupant in the seat throughout the collision sequence; and 3) Mazda destroyed evidence that likely would have supported Plaintiff's claim that the CT-20 seat was unsafe.

In his opening statement, counsel for Ford told the jury that they could not just look at the videos showing what happened to dummies in rear impacts to determine whether or not a seat was safe. (Opening Statement, Mr. Boyle, 2/27 a.m., pp. 79, 94). He said:

I just saw videos and they look bad. You can't let your eyes make the decision for you. You have to listen to the science, listen to what happens in a rear impact, listen to the aspects of how a seat can hurt you to be able to understand how this seat performs. (Opening Statement, Mr. Boyle, 2/27 a.m., p. 79).

Mr. Kumano directly contradicted counsel's opening statement. Mr. Kumano admitted that dummy movements during a test are a good tool to evaluate safety in an impact. (Kumano, 3/3 a.m., pp. 64-5).

Plaintiff claimed that a safe seat was one that would keep its occupant within the seat throughout the collision sequence. Ford refused to admit to that characteristic. Mr. Kumano admitted as much during his testimony. (Kumano, 3/3 a.m., p. 57).

Mazda produced grainy footage of the only test performed on the seat at issue by Mazda or Ford. The film contained only two views, rather than the expected six views. Mr. Kumano admitted that more film was taken of the test, but that Mazda had discarded it. (Kumano, 3/3 a.m., pp. 22, 56).

Shuji Kumano's testimony was relevant to the above issues. He was properly called as the Mazda corporate representative. He was the only witness from Mazda to testify. It was Mazda who chose Mr. Kumano as a witness to respond to plaintiffs Rule 206(a)(1) notice of deposition. Mazda had ample opportunity to replace Mr. Kumano and substitute another witness to talk about those subjects, but elected not to do so. Again, Mazda must live with the consequences of its strategic choices.

This court did not err in allowing Plaintiff to call Mr. Kumano, or in allowing the certified Japanese interpreter hired by Plaintiff to interpret for Mr. Kumano until it was evident that she could not do so effectively in the courtroom environment. The court appropriately allowed Ford's interpreter to step in at that point.


Ford claims that this court erred by allowing plaintiff to cross-examine Mr. Burnett and Dr. Corrigan with test videos.Ford Motion, pp. 14-5. Ford has waived any objection to the use of these videos in cross-examination. It was Ford who established the ground rules for impeachment with test videos in this case. During plaintiff's case-in-chief, Ford sought to cross-examine Dr. Saczalski with a test video of the BMW car-to-car crash test. (Saczalski, 3/1 p.m., pp. 74-6; 3/2 a.m., pp. 62-8). Ford argued successfully to the court that an expert witness could be cross-examined with any test video he had seen and asked whether the test affected his opinion. (Id.). The court accepted Ford's argument, and informed all parties that those would be the ground rules for this trial. The court cited two cases in support of its decision, Yager v. Libretti , 273 Ill. App. 3d 960, 966 (1st Dist. 1995) ; and Rios v. City of Chicago , 331 Ill. App. 3d 763, 773-4 (1st Dist. 2002). (Saczalski, 3/2 a.m., pp. 62-8). Ford cross-examined Dr. Saczalski with the BMW test even though he did not rely on it for his opinions in the case.

In Ford's case-in-chief, plaintiff cross-examined Mr. Burnett with Plaintiff's Exhibit 1127-7 (Burnett, 3/10 p.m., pp. 95-101), and cross-examined Dr. Corrigan with Plaintiff's Exhibit 245C (Corrigan Evid. Dep., pp. 252-8). Plaintiff did this in the same manner that Ford cross-examined Dr. Saczalski with the BMW test. This manner of cross-examination was within the court's discretion to allow. If it was not proper for plaintiff to conduct the cross-examination of Ford's witnesses using those tests, that “error” was induced by and taken advantage of by Ford in its cross-examination of Dr. Saczalski. What's sauce for the goose is sauce for the gander. A party may not complain of a practice it induced the court to follow.


Ford claims that evidence of seat designs stronger than the 1996 Ford Escort should not have been admitted because Ford did not contest feasibility. Ford Motion, pp. 15-6, 18. Ford did not admit feasibility. Indeed, plaintiffs motion for directed verdict on the issue of feasibility, and her motion to bar argument regarding “state of the art” evidence in rebuttal to feasibility, were denied because Ford did not admit feasibility. (3/14 p.m., pp. 175-181).

Plaintiff is permitted to show alternative designs of the product in question. Strong seats are alternative design that plaintiff proffered. Ford rebutted this with evidence that most cars on the road contained “yielding” seats. (Burnett, 3/4 a.m., pp. 46-7; 3/4 p.m., pp. 11, 51; 3-14 a.m., p. 72; Levitt, 3/10 a.m., p. 89). Ford argued that yielding seats were safer than strong seats. Ford's witnesses turned a blind eye to the numerous seats in production vehicles that acted as strong seats in rear impacts: police vehicles with cages, taxicabs with cages, standard cab pick-up trucks, belt-integrated seats, rear seats in sedans. Ford also argued that strong seats posed an undue risk of injury to their occupants.

To counter Ford's arguments, Plaintiff offered the strong seat evidence; i.e. Trooper Davis and similar police vehicles with cages. Dr. Saczalski's and Dr. Burton's knowledge and experience with such real world evidence was also relevant to their qualifications.


Ford spent one paragraph of its motion alleging that this court erred by refusing to admit the BMW car-to-car test as substantive evidence. Motion, p. 16. Ford makes no citation to the trial transcript or supporting case law. Dr. Saczalski and Mr. Burnett discussed the BMW car-to-car test at length. Ford attempted to use the BMW car-to-car test to discredit Dr. Saczalski. The jury heard substantive evidence regarding that test from Mr. Burnett. There was no error in the manner that the evidence of the BMW test was treated.


Ford lost this case because of an inherent flaw in its product, not because of any trial error, cumulative or otherwise. Plaintiffs proved that the Escort's front seat was designed with inadequate strength. The seat would break when subjected to a reasonably foreseeable impact, sending its occupant flying into the rear of the vehicle. That caused what occurred both here and in the other instances. The seat defect also presented a risk of injury or death to anyone sitting in the back seat.

Ford's main defense was its claim that a seat strong enough to protect Jim might cause injuries to drivers in other impacts, e.g. those out of position or involved in low speed accidents. In other words, Ford contended the stronger seat plaintiff wants is actually dangerous. But strong (not rigid) seats are all around us, and they work. All the seats in standard cab pick-up trucks, and half of the seats in all cars, i.e., the rear seats, are strong seats of the type Jim deserved in his Escort. Everyone agreed those stronger seats would not fail and catapult occupants rearward. There was no evidence that those stronger seats were causing the kinds of injuries Ford tried to link to strong front seats in this trial. Given all that, Ford should not have been surprised when it lost this trial.

Ford followed its strategy of blaming Mr. Timberlake as the sole cause to a “T” but this did not work. Throughout the case, Ford tried to make the point that Mr. Timberlake was the sole cause of this tragedy. Ford was able to present all its evidence to the jury. Ford has not complained in its lengthy motion and memorandum of one single piece of evidence that it was prohibited from presenting at trial. The version of the truth that Ford presented to the jury was simply not believed by an impartial group of 12 jurors.

Ford, like any party, was not entitled to a perfect trial but only to a fair trial. McShane v. Chicago Investment Corporation , 235 Ill. App. 3d 860, 879 (1st Dist. 1992). This was as close to a perfect trial as possible. A new trial should not be granted where, as here, there is evidence to support the outcome and the losing party received a fair trial. Roberts v. Sisters of St. Francis Health Services, Inc. , 198 Ill. App. 3d 891, 904 (1st Dist. 1990). The issue was actually quite simple, i.e., whether a seatback that failed under the stress of a foreseeable rear impact was unreasonably dangerous. Every possible argument on that point found its way to the jury, and nothing suggests that the jurors did not understand their duty or the manner in which they were to carry out that duty.

Ford chose the path of not discussing damages at all during trial, putting all their chances on winning liability. Ford was within its rights to try to hit a home run on liability with this jury. However, it cannot complain when it struck out and the jury awards what plaintiff reasonably requested. The damages awarded and the allocations of percentage responsibility were reasonable and based on the evidence.

Ford wishes to change forty years of product liability law in this state. Its novel and unfounded arguments should be rejected out of hand. Plaintiff followed established Illinois precedent and instructions that have never been criticized in presenting her case. The court correctly instructed our jury on all relevant topics.

Plaintiff respectfully requests that all post trial relief be denied.

Respectfully submitted,


Bruce R. Pfaff

Michael T. Gill

Pfaff & Gill, Ltd.

1 E. Wacker #3310

Chicago, IL 60601-1918

312 828 9666

Atty. No. 12665

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