Automotive Litigation Reporter
Volume 21, Issue 17, Published 4/23/2002
Ford Motor Co. v. Tulare County Super. Ct.
Andrews Online Number 220.127.116.11
Calif. Supreme Court Allows 'Destructive Testing' of TFI Module
The California Supreme Court has denied the petition of Ford Motor Co. to stop plaintiffs in a six-fatality accident case from "destructive testing" of an allegedly defective thick-film ignition module. The plaintiffs said Ford had ample opportunity to conduct its own testing of the component. Ford Motor Co. v. California Superior Court for the County of Tulare, No. S104818, petition denied (Cal., 4/10/2002).
Travis Morgan, Conrad Morgan, Jessica Ortega, Patricia Wadkins, Marissa Morgan and Jesalyn Ortega were killed on Dec. 11, 1998, when the 1991 Ford Tempo in which they were riding veered off the roadway, struck a bridge abutment, plunged into a 20-feet-deep canal and submerged upside-down.
Their survivors and estates filed suit in California Superior Court for Tulare County alleging that the TFI module had failed, causing the Tempo to stall and resulting in the loss of control.
The plaintiffs agreed that Ford experts could examine and test the module first, with the understanding that plaintiffs would do their contemplated destructive testing -- with Ford witnessing the process -- at a later date. Ford then moved for a protective order to stop the testing, which was denied by the trial court. The California Fifth District Court of Appeal denied Ford's petition for a writ of mandate, after which the automaker petitioned the California Supreme Court.
Ford contended that the testing would create the appearance of a defect; that it would not have an opportunity to test and verify the plaintiffs' findings; and that the jury would be unable to view the allegedly defective module.
The petition stated, "Is merely observing one party's tests sufficient, as the trial court seemed to believe here, or should the testing protocol be designed in such a way to maximize both parties' ability to test and verify results?"
If a party destroys a product, Ford asked, is the other party entitled to a favorable inference under the state's evidence code?
Because these questions were unresolved, Ford argued, state supreme court review was necessary to give guidelines to courts and litigants and ensure fair trials for both plaintiffs and defendants.
The Plaintiffs' Answer
The plaintiffs noted that Ford conducted extensive testing and inspection of the accident vehicle and TFI module prior to the proposed destructive testing, with hundreds of photographs and x-ray images of the TFI module taken by Ford's experts. In addition, Ford will be allowed to observe and photograph plaintiffs' testing and inspection. This "totally belies" the automaker's "specious argument" that the destructive testing will somehow prevent the jury from understanding the evidence in this case, the plaintiffs maintained.
The answer to the petition also states that Ford knew about TFI module defects in the 1991 Tempo and other vehicles. The plaintiffs cited the settled case Howard v. Ford Motor Co., No. 763785-2 (Cal. Super. Ct., Alameda County), in which the trial judge said, "Ford knew the vehicles were prone to stalling especially when the engine was hot, but failed to alert consumers." (See Automotive LR, Nov. 6, 2001, P. 5.)
The California Supreme Court denied Ford's petition on April 10.
The plaintiffs are represented by Benjamin Schonbrun and Michael D. Seplow of Schonbrun Seplow Harris & Hoffman in Venice, Calif.
Ford Motor Co. is represented by Richard A. Derevan of Snell & Wilmer in Irvine, Calif.; and by Roy M. Brisbois and Steven E. Meyer of Lewis, D'Amato, Brisbois & Bisgaard in Los Angeles.