Kolby O'Banion, Taylor O'Banion, Tim O'Banion & Kelly O'Banion, Michael R. Roush, as Executor of the Estate of Karen L. Roush, Deceased, Indiana Farm Bureau Insurance Co. as Subrogee of Karen Roush, Deceased, Appellants-Plaintiffs,
Ford Motor Company, Appellee-Defendant
Appeal from the Grant Superior Court. The Honorable Jeffrey D. Todd, Judge. Trial Court Cause No. 27D01-1010-PL-946, formerly 27D01-1107-CT-774, formerly 27D01-1107-CT-779.
ATTORNEYS FOR APPELLANTS: David W. Stone, IV, Stone Law Office & Legal Research, Anderson, Indiana; Todd A. Glickfield, Marion, Indiana; Josef D. Musser, Spitzer Herriman Stephenson Holderman, Musser & Conner, LLP, Marion, Indiana; Michelle Cobourn-Baurley, McNeely Stephension Thopy & Harold, Shelbyville, Indiana.
ATTORNEYS FOR APPELLEE: Nelson D. Alexander, Kevin C. Schiferl, Blake N. Shelby, Frost Brown Todd, LLC, Indianapolis, Indiana.
Barnes, Judge. Riley, J., and Bailey, J., concur.
[¶1] Kolby, Taylor, Tim, and Kelly O'Banion (" the O'Banions" ), Michael Roush as Executor of the Estate of Karen Roush (" the Estate" ), and Indiana Farm Bureau Insurance Company (" Farm Bureau" ) (collectively " the Appellants" ) appeal the trial court's grant of summary judgment in favor of Ford Motor Company (" Ford" ). We reverse and remand.
[¶2] The Appellants raise three issues, which we consolidate and restate as:
I. whether the trial court erred in excluding the testimony of David Zedonis; and
II. whether the trial court erred in excluding the testimony of William Berg.
[¶3] As background information, it is necessary to understand a car's throttle assembly. There are five main parts of an assembly: the accelerator pedal, the throttle cable, a protective sheath through which parts of the cable run, a ferrule to bind the cable, and the throttle plate. The throttle cable itself is made of seven ropes, which are each made up of seven wires, meaning the throttle cable consists of forty-nine wires. As a driver applies pressure to the accelerator pedal, the throttle cable transmits force that causes the throttle plate to open. Full pressure on the pedal should cause the throttle plate to be " wide open," and releasing pressure should cause the throttle plate to close and return the engine to idle.
[¶4] On July 29, 2009, Karen was driving southbound on State Road 37 in a 2005 Mercury Monterey. That road intersects with 26th Street in Marion at an intersection controlled by a traffic light. As she approached that intersection, the light in her direction was red. Kolby and Taylor were stopped in the northbound lane of traffic on State Road 37. Instead of stopping at the red light, Karen accelerated through the intersection, struck Kolby and Taylor's car, then left the roadway and struck a light pole. Karen was killed in the accident, and Kolby and Taylor were severely injured.
[¶5] On October 19, 2010, Farm Bureau, as subrogee of Karen, filed suit against Ford to recover proceeds it had paid for damages to the Monterey. Farm Bureau alleged that the accident had been caused by a defective throttle assembly that caused the Monterey to accelerate uncontrollably through the intersection. On July 20, 2011, the Estate filed a wrongful death action against Ford, making the same allegations regarding the throttle assembly. On July 26, 2011, the O'Banions (brothers Kolby and Taylor and their parents Tim and Kelly) filed a third suit against Ford, as well as the Estate. The trial court consolidated all three cases for purposes of pretrial proceedings and trial.
[¶6] The trial court adopted a case management plan for the combined cases that required the Appellants to disclose any expert witnesses to Ford no later than September 1, 2013. Any discovery related to expert witnesses was to be completed by December 31, 2013. Trial originally was set for April 7, 2014. It later was continued to October 20, 2014, with the trial court indicating that no further continuances would be granted in the absence of an emergency of some type.
[¶7] On June 19, 2012, Farm Bureau disclosed that it intended to rely upon the testimony of mechanical engineer David Zedonis and a report he had prepared on September 16, 2010, regarding the throttle of the Monterey having allegedly malfunctioned. On January 15, 2013, the Estate disclosed that it intended to rely upon both Zedonis and William Berg, Ph.D., another mechanical engineer. On September 3, 2013, Farm Bureau and the Estate filed a joint disclosure that they both intended to rely upon the expert testimony of Zedonis and Berg and reports they had prepared. The O'Banions did not file a separate expert witness disclosure list; on August 7, 2014, they filed a final witness list indicating that they would rely upon witnesses called by either Ford or the Estate.
[¶8] On August 29, 2013, Zedonis wrote an updated report, based on additional examinations of the vehicle and other discovery. In the updated report, Zedonis opined among other things that the throttle cable had become stuck within the sheath and, " The worn and fraying condition of the throttle cable on the Roush's 2005 Mercury Monterey represented an unreasonably dangerous vehicle defect for Mrs. Roush." App. p. 105. Zedonis's report also stated that other Ford vehicles from this time period were reported to have similar throttle issues but that Ford had taken little action in response to such reports. The report also noted, " The specific cause of the heavily worn throttle wear has not been specifically determined as of yet." Id. at 113.
[¶9] On October 9, 2013, Ford deposed Zedonis regarding the opinions expressed in his 2010 and 2013 reports. During the deposition, Zedonis stated that the throttle cable on Roush's vehicle had fractured " near the nose tip of the throttle sheath and ferrule in the engine compartment." Id. at 118. Counsel for Ford asked Zedonis whether he had measured the actual throttle cable, and he said he had not. Zedonis also stated, in response to questioning, that he could not specifically state where the throttle cable had stuck inside of the sheath, but he opined that the accident occurred when the throttle was at the wide open position.
[¶10] Counsel for Ford also had the following exchanges with Zedonis:
Q: It's very simple. If the fracture is not at a location where the throttle would be held open at or near wide open throttle, then your opinion that the cable bound at that location is inconsistent with the physical evidence; correct?
A: I mean, I would consider all that to assess what you're asking me the question to, but I--you know, right now, I see wear and fraying, and your discovery materials show wear and fraying can cause sticking throttles, as well as all the recalls. To me it's let's look at the most obvious situation here.
Q: Now, why is her not applying the wrong pedal a most obvious situation?
A: I mean, I can't exclude that.
Q: You can't exclude it.
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Q: And if it occurred at a location where the throttle plate would have been open less than [wide open throttle], which is what you've already told us that the accident took place at, then your theory that it bound at [wide open throttle] is not correct; right?
A: Again, you know, if we do additional work, we may draw that conclusion. But, you know, right here, as I sit here today, we've talked about a lot of things, you've given me some items to think about, and I'm not going to--I mean, my opinions are still the ...