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Tunnell v. Ford

Jun 27, 2005


Directed verdict for Ford in post crash fire case

DANVILLE, VA - Following a three-week jury trial in Danville, Virginia, on June 27, 2005, United States Federal District Judge Norman K. Moon entered a memorandum decision directing a verdict for Ford Motor Company in this automotive product liability action involving double above-knee amputations, debilitating upper body nerve damage and severe torso burns. Plaintiff’s original settlement demand exceeded $100 million.

Paul G. Cereghini with Bowman and Brooke LLP in Phoenix, Arizona was Ford’s lead defense counsel. Cereghini was assisted at trial by John R. Reid, Jr. of Cabaniss, Smith, Toole & Wiggins, PL in Maitland, Florida. Fred D. Smith, Jr., James W. Haskins, and Scott C. Wall of the law firm of Young, Haskins, Mann, Gregory & Smith, P.C. in Martinsville, Virginia represented the plaintiff John Tunnell.

This case involved a November 18, 1999, Collinsville, Virginia single vehicle accident occurring while John Tunnell, age 21, rode as a front seat passenger in a 1999 Ford Mustang GT. Tunnell and the Mustang’s driver had traveled only several hundred yards on a late night "beer run." Attempting to negotiate one of the first turns he encountered, the driver lost control of the Mustang, crossed the center line, and struck a utility pole. Tunnell estimated the vehicle’s speed between 70 and 75 mph in a 35 mph zone. The impact splintered the 13" diameter wood utility pole and crushed the passenger foot well area, trapping Tunnell’s lower legs.

Approximately five minutes after the accident, after unsuccessful efforts by the vehicle occupants and bystanders to free Tunnell from the car, witnesses observed a small blue flame ignite in or near the car’s dashboard. Plaintiff maintained that an electrical short or malfunction caused the flame. Ford contended that the flame came from a butane lighter belonging to either Tunnell or the driver who were both smokers. Within minutes, the fire spread to the entire occupant compartment.

Tunnell remained trapped in the car as the fire propagated throughout the occupant compartment. Responding police officers were unable to pull him from the car, but their efforts tore nerves in Tunnell’s arms and shoulders, causing permanent and severe impairment of both hands. Tunnell sustained third-degree torso burns and third and fourth-degree burns to both legs which resulted in double amputations just below his hips.

Plaintiff alleged that the Mustang should have been equipped with some form of battery cut-off device to disconnect electrical power to all but "critical circuits" in the event of a severe crash. Plaintiff further contended that those remaining "critical circuits" should have been protected by "armored wiring". As support for his contentions, plaintiff cited certain Jaguar and BMW vehicles with various devices intended to disconnect selected electrical circuits following a crash.

Ford defended the Mustang as a safe, defect free and state-of-the-art vehicle. Further, Ford contended that plaintiff’s battery cut-off device was unnecessary and unsafe as it would leave vehicles stranded after crashes without electrical power to many obvious safety circuits such as headlights and brakelights. Further, like other vehicles, the Ford Mustang electrical system is fully protected from post-crash fires by the design of the electrical system, including circuit and component fuses.

Plaintiff’s case relied heavily on testimony by mechanical engineer Jerry Wallingford, of San Antonio, Texas. Wallingford has a national litigation consulting practice and is the president of the 25-person engineering firm of Verifact Corporation. Wallingford claims to have testified over 500 times in depositions and trials and regularly testifies against automobile companies in automotive product liability cases. Among his work in this case, Wallingford installed and tested a prototype battery cut-off device on a Ford Mustang.

Following the Court’s directed verdict, Ford’s lead trial counsel, Paul Cereghini, observed:

"This trial turned on Jerry Wallingford’s cross-examination. Mr. Wallingford’s testimony implied that there are over 100 million unsafe vehicles on the road today, because no manufacturer uses the type of device Mr. Wallingford advocated. We demonstrated on cross-examination that Mr. Wallingford’s defect opinions were inconsistent, unsupported and unscientific."

On cross-examination, Wallingford admitted that his personal vehicles did not have battery cut-off devices. When asked whether he drove his family in vehicles without these devices, he responded "I do not have a family." This caused the court to reconsider a pre-trial ruling precluding cross-examination about an accident Wallingford had in Oregon on October 21, 2004. After a voir dire examination establishing that Wallingford has two daughters and that one of his daughters was in the vehicle with him at the time of that accident, Judge Moon reversed his prior order by stating:

"I feel that the circumstances have changed. The witness’s testimony now, it appears, was not forthcoming and could be construed as testimony that was intended to deceive the jury."

The court then allowed cross examination on Wallingford’s prior accident to establish that he indeed drove family members in cars without battery cut-off devices.

At the conclusion of Wallingford’s testimony, Cereghini moved to strike Wallingford’s opinions as insufficient under Daubert v. Merrell Dow Pharmaceuticals Inc., 113 S.Ct. 2789 (1993). Judge Moon, who denied Ford’s pre-trial Daubert challenge, agreed to reconsider his prior ruling and took Ford’s motion under advisement as plaintiff completed his case-in-chief. When plaintiff rested, Ford then moved for directed verdict. After consideration of written briefs and argument of counsel, Judge Moon ruled that "Mr. Wallingford’s opinion did not meet the legally sufficient standard" and then granted Ford’s directed verdict motion.

On June 27, 2005, the Court entered its memorandum opinion explaining the Court’s reasons for striking part of Wallingford’s testimony and granting Ford’s motion for directed verdict. The memorandum decision observed that Wallingford had "effectively conceded" on cross examination that the lack of a battery disconnect device was not a defect. The Court found that "Wallingford’s testimony demonstrated that he had no scientifically valid methodology for coming to his conclusions regarding defectiveness" and that "Wallingford’s methods for determining that the Mustang was defective also fail many of the explicit factors regarding expert opinions established through Daubert and its progeny." Further, the Court concluded that Wallingford’s defect opinions "contain so many inconsistencies, dubious methods and unsupported conclusions that they are devoid of value to a fact finder. "


Case No: Civil Action No. 4:03CV00074

Judge: Honorable Norman K. Moon

Plaintiff John Tunnell was represented by: Fred D. Smith, Jr., James W. Haskins and Scott C. Wall of Young, Haskins, Mann, Gregory & Smith of Martinsville, VA.

Ford Motor Company was represented by: Paul G. Cereghini of Bowman and Brooke’s Phoenix office.

Plaintiff's Experts:Jerry Wallingford – (cause and origin / design) Verifact in San Antonio, Texas; Charles Crim (a fire cause and origin expert) from Richmond Virginia; Allan J. Kam (a NHTSA expert) from Bethesda, Maryland; and, James Samuel McKnight (an electrical engineering expert) from Raleigh, North Carolina. Plaintiff also called damages expert Sharon Reavis, who wrote a life care plan; Peder Melberg, a vocational rehabilitation expert from Glen Ellen, Virginia; Thomas E. Brown, M.D., an orthopaedic surgeon from Charlottesville, Virginia; and, Oliver Wood, an economist from Columbia, South Carolina.

Ford disclosed four expert witnesses: Victor DeClercq (a retired Ford engineer) in Dearborn, Michigan; Andy Neuhalfen (a cause, origin and design expert) with Packer Engineering, Inc. in Naperville, Illinois; Ralph Newell (a cause and origin expert) with Newell Investigative Services in Gainesville, Georgia; and John Habberstad (an accident reconstruction expert) with Origin Engineering, Inc. in Spokane, Washington.

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