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Nolte v. Ford Motor Co.

Court of Appeals of Missouri, Western District, First Division

December 9, 2014


Page 369

Appeal from the Circuit Court of Jackson County, Missouri. The Honorable J. Dale Youngs, Judge.

Grant L. Davis and Scott S. Bethune, Kansas City, MO; J. Kent Emison, Lexington, MO, for Appellants.

Susan Ford Robertson and J. Zachary Bickel, Kansas City, MO, for Respondent.

 Cynthia L. Martin, Presiding Judge, and Mark D. Pfeiffer, Judge, concur.


Karen King Mitchell, Judge.

Page 370

Michael and Barbie Nolte (collectively " Nolte" ) appeal the trial court's judgment, entered following a jury verdict in favor of Ford Motor Company, on their product liability claims related to the placement and design of the fuel storage system in Ford's 2003 Crown Victoria Police Interceptor.[1] Nolte argues that the trial court erred in the admission and exclusion of certain evidence during trial. Because the trial court erroneously concluded that a government report is admissible without first determining that the report was both logically and legally relevant, we reverse and remand.

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Factual Background [2]

While patrolling Interstate 70 on the morning of May 22, 2003, State Trooper Michael Newton stopped eastbound driver Michael Nolte for a minor traffic violation. Both vehicles pulled onto the shoulder of the highway, and Trooper Newton asked Nolte to accompany him to the patrol car, a 2003 Ford Crown Victoria Police Interceptor (CVPI), so that Newton could issue a warning for the traffic violation. While both men sat in the patrol car, Paul Daniel, the driver of a Trade Winds pick-up truck, pulling a goose-neck trailer, was traveling eastbound on I-70. As Daniel neared the patrol car, he veered onto the shoulder of the interstate and collided with Trooper Newton's vehicle. Upon impact, the patrol car burst into flames, killing Trooper Newton. Nolte survived but sustained very serious burns as a result of the explosion. Because neither man broke any bones in the collision, the evidence indicated that the injuries probably would not have been as serious if the fire had not occurred.

Investigation of the fire revealed that it began in the left rear fender of the CVPI, at the area where the fuel filler neck extended between the fuel fill door and the fuel tank. When the truck crashed into the CVPI, the fuel filler neck was severed, allowing gasoline vapor to escape, which was then ignited by the friction sparks created from the impact.

Plaintiffs Michael Nolte, his wife Barbie Nolte, and Shonnie Newton, the widow of Trooper Newton, brought an action against Ford Motor Company, the manufacturer of the patrol car, and Trade Winds Distributing, Inc., Daniel's employer. The claim against Trade Winds was premised upon Daniel's negligence. Plaintiffs asserted both negligence and strict products liability claims against Ford on the basis that the design of the anti-spill valve, the placement of the fuel tank filler tube on the driver's side of the patrol car, and the placement of the fuel tank behind the rear axle of the patrol car were defects that rendered the patrol car unreasonably dangerous when put to its anticipated use.[3]

Plaintiffs argued that these defects, alone or in combination, caused the explosion that killed Trooper Newton and injured Nolte and were unreasonably dangerous given the CVPI's anticipated use. The anti-spill valve consists of a spring and sealing flange and is designed pursuant to federal environmental regulations to prevent escape of vapors and liquid from the fuel tank. The anti-spill valve is located inside the fuel tank filler tube, the tube through which gasoline pumped at a filling station travels to the patrol car's fuel tank. Plaintiffs argued that, due to a defect, the anti-spill valve failed to prevent gasoline from escaping from the fuel tank when Trooper Newton's patrol car was struck by Daniel's truck and that, upon impact, gasoline spewed out of the patrol car's fuel tank filler tube and ignited, resulting in the fatal explosion. Plaintiffs also argued that the placement of the patrol car's fuel tank behind the car's rear axle was a defect because it placed the fuel tank within the patrol car's " crush zone," the area designed to absorb energy from a rear-impact collision and prevent harm to occupants of the vehicle. According to Plaintiffs, the fuel tank placement was defective in that the force of the collision caused the

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neck of the patrol car's fuel tank filler tube to tear from the fuel tank itself, resulting in a significant amount of gasoline leakage at the severance site. Plaintiffs contended that these design defects caused the explosion in this case, rendering the CVPI unreasonably dangerous for use by law enforcement to both stop motorists and serve as a blocker vehicle on high-speed roadways.[4]

The jury returned a verdict in favor of Plaintiffs on their claim against Trade Winds Distributing and awarded damages of $4 million to Newton and $4.5 million to the Noltes. On Plaintiffs' claim against Ford, the jury returned a verdict in favor of Ford, finding that Ford was not liable for the injuries sustained by Plaintiffs as a result of the collision.

Plaintiffs appealed, and the Missouri Supreme Court reversed and remanded the case for a new trial due to an error made by the trial court in precluding Plaintiffs from arguing reasonable inferences from evidence the trial court mistakenly believed had not been admitted. Newton v. Ford Motor Co., 282 S.W.3d 825, 832 (Mo. banc 2009). Following remand, Trooper Newton's claims were settled, leaving only the Noltes as plaintiffs. Upon retrial, the jury again found in favor of Ford. The following facts are relevant to the second trial and Nolte's subsequent appeal.

The Office of Defects Investigation (ODI) Report

On November 27, 2001, the National Highway Traffic Safety Administration's (NHTSA) Office of Defects Investigation (ODI) opened a query,[5] based upon consumer complaints and Ford's issuance of a Technical Service Bulletin (TSB),[6] which recommended changes to certain hex bolts and U-brackets on the CVPI for the purpose of reducing post-rear-collision fires.[7] The query was limited to model years 1992-2001 and to only Panther Platform vehicles (Crown Victoria, Grand Marquis, and Town Car). The report contained a variety of information gathered from inspections of post-crash subject vehicles, on-site and phone interviews with police personnel, and review of documents from Ford, General Motors, plaintiff attorneys, and NHTSA records.

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The report provided a description of the Panther Platform fuel tank, identified the population of each model by year, described the TSB and Federal Motor Vehicle Safety Standard (FMVSS) 301 (involving integrity of the fuel system), outlined the various design changes to the vehicles over the years, compared the Panther Platform vehicles with General Motors's similar B-body style vehicles, discussed several fire reports associated with both Panther Platform and B-body vehicles, and identified the various fuel tank failure modes. The ODI report further discussed the " Florida Highway Patrol [ ] Rear End Collision Study of 1999," [8] as well as anecdotal evidence from the California Highway Patrol.[9] The report also identified a variety of tests Ford had run to evaluate vehicle performance in high-energy crashes. The report contained statements from Ford and described Ford's CVPI Police Officer Safety Action Plan. The report issued the following findings:

o The crash energy levels associated with post rear impact fuel tank failures in the CVPI vehicles are significantly greater than the levels in FMVSS 301 tests.
o Fuel tank failures during high-speed rear impacts can result from numerous causes in addition to the hex-headed bolt and U-brackets identified in the Ford TSB. Crash reports identify many causes for loss of fuel system integrity during a high-energy rear crash, such as puncture from a deformed frame rail, lower shock absorber supports, or stowed items in the trunk, hydrostatic rupture, and other causes.
o Based on an analysis of FARS[10] data, the risk of fire per fatal rear crash in the subject vehicles is comparable to that of the GM B-body vehicle (Caprice).
o The vast majority of reported post rear crash fires in the subject vehicles (over 80%) occurred in CVPI vehicles, even though they constitute less than 15% of the total Panther vehicle production.
o The Florida Highway Patrol Study did not identify a difference between the post rear impact fire risk in CVPI vehicles and that of the Caprice police vehicles.

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o Ford-sponsored testing indicates that the subject vehicles are not unique in their inability to maintain fuel tank integrity in at least one example of a severe rear impact crash.
o There have been numerous high-energy rear crashes involving CVPI vehicles within the scope of Ford's TSB that exhibited little or no fuel loss and no fire.

After making these individual findings, the ODI summarized its findings, stating that:

The available information regarding fuel tank failure mode, the risk of fire per fatal crash, field performance, and crash testing indicate that the performance of the subject vehicle in high-energy rear crashes is not unlike that of the most comparable peer vehicle, the GM B-body.

The ODI closed its query on October 3, 2002, giving the following reason:

Under the present circumstance, it is unlikely that further investigation would produce sufficient evidence to demonstrate the existence of a safety-related defect in the subject vehicles. Therefore, the investigation is closed based on the evidence available at this time. The agency reserves the right to take further action if warranted by new or changed circumstances.

During the query, the Center for Auto Safety submitted a petition to NHTSA, seeking to upgrade and expand the scope of the query to a full investigation, including an Engineering Analysis. NHTSA denied the petition, however, finding that, " [a]ccording to the analysis of FARS data, the subject vehicles are not over-represented with respect to the risk of fire following a high-energy crash in all impact directions as alleged in the petition." NHTSA specifically noted that, " [i]n fact, the data show that the civilian population of Panther vehicles has an overall lower risk of post-crash fires than AOS [all other sedans] when all impact points are considered." (Emphasis added.)

Admission of the ODI

Before the second trial, Nolte filed a motion in limine, seeking to exclude " [a]ny evidence or testimony relating to the statistical analysis, the 'Findings' or the 'Reason for Closing' of NHTSA's Office of Defects Investigation Report SQ01-014, including any expert or lay opinions listed in this or any NHTSA reports." Nolte argued that the report, as a whole, was irrelevant to the issues in the case because its inquiry was limited and it failed to address the issues central to the case in that the report: (1) focused on whether the CVPI is substantially more dangerous than other cars with the fuel tank behind the rear axle; (2) primarily examined whether a recall was warranted based on one potential failure mode--hex-bolt and U-bracket tank punctures; and (3) did not inquire into whether the fuel containment system is reasonably safe when put to its intended use as a law enforcement vehicle. Nolte argued that the report was highly prejudicial in that the jury could mistakenly believe the investigation was a broader examination of the safety of the entire fuel containment system. Nolte's motion in limine also sought to preclude argument from Ford that the ODI's decision to close the query was tantamount to a finding of no defect.

In the alternative to complete exclusion of the report, Nolte sought that it at least be redacted to remove references to the Florida Highway Patrol Study in 1999, statistical data findings from the Center for Auto Safety, FARS statistical comparisons, hearsay from the California Highway Patrol, ODI findings, and the ODI's proclaimed " reason for closing" the query.

The court held a pretrial hearing on Nolte's motion. At the hearing, Nolte argued that the ODI report should be excluded in its entirety or, in the alternative, that the ODI report should be redacted to

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remove any conclusions or opinions. Nolte specifically argued that admission of the ODI report " would lead to confusion and an inference [that] NHTSA closing the inquiry without opening up a full scale investigation and performing a full scale engineering analysis would be misleading and lead to juror confusion." Nolte pointed out that, in a prior case, Ford had entered a stipulation whereby all parties agreed not to offer any testimony or arguments " regarding the reason for closing or implying NHTSA found defect or any reference to any media stories." Nolte indicated that he would be willing to agree to a similar stipulation in this case.

Ford responded by arguing that " the so-called ODI" was received in its entirety in the first trial. Ford claimed that the ODI was " the subject of one of the appellate points on appeal to the Missouri Court of Appeals which affirmed [the trial court's] finding that the report was not only relevant but qualified as a public record under the Public Records Statute in Missouri citing Rodriguez v. Suzuki." [11] Ford argued that " nothing has changed from an analytical standpoint to suggest your ruling here should be any different than the ruling made by every judge who has looked at this question." Ford thus argued that the objections raised by Nolte " with regard to the conclusions in the report and the redaction of the conclusions were specifically rejected by" the Missouri Supreme Court's holding in Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47 (Mo. banc 1999). Ford argued that Rodriguez mandated admission of the ODI report in its entirety, claiming the Rodriguez " decision specifically held opinions and conclusions are admissible under the Public Records Statute, that the document comes in [in] its entirety." Ford further argued that the entire report was relevant because the ODI query involved " most if not all" of the same vehicles that Nolte was relying on to prove notice of defect to Ford, and that the report went directly to the issue of whether Ford demonstrated a conscious disregard, as alleged in Nolte's claim for punitive damages. Ford also argued that the report went directly to the issue of defect--specifically, whether these vehicles are unreasonably dangerous. Ford did not argue, however, that the ODI report was relevant because it went directly to the issue framed by Nolte's claims--whether the CVPI was unreasonably dangerous when put to its intended use by law enforcement to both stop vehicles and serve as a blocker vehicle on high-speed roadways.

The trial court took the matter under advisement, though the trial court did indicate that it had " a sense of what I feel like the answer is," noting that " the issues related to these kinds of documents are more in the nature of issues that people are going to have with regard to what argument is going to be made related to them." (Emphasis added.) The trial court indicated that it would " get [the parties] a ruling as quickly as I can." Though the record does not include this ruling, subsequent comments at trial indicate that the motion in limine was overruled based on a finding that the ODI report was admissible under Rodriguez. At trial, when Ford sought to cross-examine Nolte's expert, Jerry Wallingford (" Wallingford" ), by showing him the ODI report, Nolte noted that he wanted " to renew [his] objection to the ODI and preserve it for the record." The trial court acknowledged

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the preserved objection. Ford then proceeded to read from the report in detail as it cross-examined Wallingford. At one point, Nolte again objected when Ford referred to the portion of the ODI report addressing an " informal survey" of the California Highway Patrol. In the course of this discussion, Ford's counsel noted:

Under the Rodriguez ruling this Court made the ruling. . . . The Court has already ruled under Rodriguez, the case is perfectly--it's quite clear that this is a document--the entire document is admissible. This is subject to cross-examination or weight, whatever he wants to give it. But the document is in evidence. All I'm doing is reading the document.

(Emphasis added.) The trial court overruled Nolte's objection and noted in the process that " I have found and do continue to find that I'm compelled to hold that this is a Rodriguez document and is admissible. And its contents are likewise admissible." At a subsequent break in the proceedings, the parties took time to " move the admission of exhibits that have been discussed but not yet offered." In the course of this lengthy off-the-record discussion, Ford formally offered the ODI report. Nolte's counsel advised " [w]e stand on our previous record." The trial court responded: " Understood. All right, I will show [the ODI report] received over . . . [Nolte's] vigorous objection."

Nolte's case was submitted to the jury on a theory of strict liability due to design defects. Specifically, the jury was directed to determine that the location of the fuel tank rear of axle, or the location of the filler tube on the driver's side, or the filler tube check valve, or the design and manufacture of the welds in the left rear section of the vehicle in combination with the location of the filler tube and fuel tank, made the CVPI defective, and unreasonably dangerous when put to a reasonably anticipated use. The reasonably anticipated use argued by Nolte was a CVPI being stopped alongside a highway and used as a blocker vehicle. The jury returned a verdict in favor of Ford.

Nolte filed a motion for new trial, arguing error in the admission of evidence and testimony regarding the ODI report. Nolte argued that the report " suffer[ed] from gross hearsay violations," primarily evidence related to the California Highway Patrol. Nolte further argued that the report was irrelevant, as its purpose was to determine, not whether the CVPI was safe for the use at issue in the case, but whether it was significantly less safe than similar vehicles. In other words, Nolte claimed that the ODI report determined only whether the CVPI was on par with the current state of the art, a matter which was irrelevant in a strict products liability case premised on design defect, and that any probative value the report possessed was outweighed by its prejudicial effect. Nolte also argued that the court's reliance on Rodriguez for admission of the ODI report resulted in a deprivation of his constitutional right to a jury trial in that the jury's fact-finding role was eclipsed by the conclusions of the ODI. In response to questioning by the court, Nolte indicated that he did not recall previously raising the constitutional claim. The trial court overruled the motion.


Nolte raises four points on appeal related to the admission and exclusion of evidence. Because we find his first point dispositive, however, we do not address the remaining three.[12] In his first

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point on appeal, Nolte claims that the trial court erred in admitting both the ODI report and testimony about the report for several reasons: (1) the report contained untrustworthy hearsay; (2) the report was irrelevant to the issues in the case; and (3) the statute upon which the court relied when admitting the ODI report was unconstitutional, as applied in this case, in that it allowed the admission of a report that invaded the province of the jury.[13]

Because the trial court erroneously concluded that Rodriguez required admission of the ODI report without an evaluation of the logical and legal relevance of the report, in whole or in part, Nolte's first point on appeal is granted.

A. Preservation and Waiver

In its brief, Ford claimed that Nolte failed to preserve his complaint that the ODI report lacked relevance and was therefore inadmissible. Ford alternatively argued that Nolte's claim had been waived by Nolte's references to the ODI report at trial before Ford's formal introduction of the report into evidence. At oral argument, however, Ford conceded that Nolte's relevance objection was preserved--a position plainly demonstrated by the record--and instead shifted its focus to the waiver argument.

Ford's waiver argument relies on the fact that Nolte first mentioned the report in his opening statement and then questioned Wallingford about the report during Nolte's case-in-chief. Ford concludes that these brief references constituted waiver of any subsequent challenge to the admission of the ODI report. We disagree.

When a party receives an adverse ruling on a motion in limine seeking to exclude evidence, he is faced with two options. The first is that he may simply object when the evidence is offered by the opposing party and " take his chances on appeal if he truly believe[s] the [evidence] to be inadmissible." State v. Carollo, 172 S.W.3d 872, 876 (Mo. App. S.D. 2005). Or. he may " face the [evidence] directly" by first broaching the subject in an effort to reduce the potentially damaging effect of the evidence. Id.; State v. Mickle, 164 S.W.3d 33, 55-56 (Mo. App. W.D. 2005).

There is risk inherent in the second option, however, in that a party " cannot

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seek to utilize evidence in the pursuit of reasonable trial strategy[] and then[] turn around on appeal and claim that same evidence was inadmissible and prejudicial." Carollo, 172 S.W.3d at 876. " [I]t is clear that, with respect to a motion in limine, trial strategy or not, to properly preserve an objection to the admission of evidence, which is the subject of the motion, the movant must wait until the challenged evidence is actually offered and then make a specific objection to its admission." Mickle, 164 S.W.3d at 57. " [R]egardless of any trial strategy that may . . . [be] reasonably precipitated by that ruling, [a party's] pre-emptive introduction of the challenged evidence waive[s] his objection thereto on appeal." Id. (emphasis added).

This principle, however, is not implicated by references to challenged evidence that fall far short of " introducing" the challenged evidence. Our Supreme Court in M.A.B. v. Nicely, 909 S.W.2d 669, 672 (Mo. banc 1995), held that mere references to challenged evidence following strenuous (but unsuccessful) objections to its admission do not waive the right to challenge the admission of that evidence on appeal. When a party introduces evidence related to the challenged evidence, as opposed to the actual evidence being challenged, the courts have employed the " opening-the-door" doctrine to determine whether the prior objection to admission has been waived. See id.; Guess v. Escobar, 26 S.W.3d 235, 243 (Mo. App. W.D. 2000) (both discussing waiver in the context of opening the door). " 'The doctrine of opening the door allows a party to explore otherwise inadmissible evidence on cross-examination when the opposing party has made unfair prejudicial use of related evidence on direct examination.'" Barnett v. State, 103 S.W.3d 765, 773 n.5 (Mo. banc 2003) (quoting United States v. Durham, 868 F.2d 1010, 1012 (8th Cir. 1989)).

Even if the door is opened, however, admission of otherwise inadmissible evidence is not an automatic consequence.

Opening the door is one thing. But what comes through the door is another. Everything cannot come through the door. . . . The doctrine is to prevent prejudice and is not to be subverted into a rule for injection of prejudice. Introduction of otherwise inadmissible evidence under shield of this doctrine is permitted only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence.

State v. Sapien, 337 S.W.3d 72, 85 (Mo. App. W.D. 2011) (Ahuja, J., dissenting) (quoting United States v. Winston, 447 F.2d 1236, 1240, 145 U.S. App.D.C. 67 (D.C. Cir. 1971)); see also Gamble v. Browning, 379 S.W.3d 194, 204 (Mo. App. W.D. 2012) (noting that evidence offered on the theory that the other party opened the door must still be evaluated for legal relevance before admission).

Here, after his request for exclusion was overruled, Nolte advised the jury in his opening statement that he expected they would hear testimony about an inquiry conducted by NHTSA's Office of Defects Investigation. He indicated that the query was closed without opening a full engineering analysis--an action that Ford witnesses would agree did not equate to a finding of no defect. During Nolte's case-in-chief, Nolte questioned his expert, Jerry Wallingford, about the ODI report. Nolte asked Wallingford how the ODI report differed from a full-blown investigation, and he questioned Wallingford about the TSB prompting the query. Further, he discussed facts surrounding two specific crash tests submitted by Ford to the ODI during the query. But Nolte did not offer the ODI as evidence of these tests; instead he submitted Exhibits 309 and 310, which appear to have been records of the

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two crash tests discussed. Thus, because Nolte did not admit the report himself, but did refer to it and offer some evidence contained within it, we must determine whether these actions opened the door for admission of the entire report. We do not believe that it did.

First, we note that Ford has made no argument that Nolte " made unfair prejudicial use" of the related evidence he did offer. Rather, the only use Nolte made of the substantive evidence he offered regarding the ODI report was to aid his objection to the exhibit. He attempted to discredit the exhibit and prevent the jury from relying on it during deliberations. This is not a situation where a party, seeking to take the sting out of damaging evidence, introduces the evidence so as to preclude an inference that the party was trying to hide it. Rather, Nolte's use of the report was simply to set the table--through generalized discussion of such reports--to aid his claim that it lacked relevance and the jury should not rely on it.

Even more compelling is the fact that one cannot open the door to evidence that has already been admitted. The record reflects that both parties treated the ODI report as effectively admitted into evidence after receiving the trial court's ruling rejecting Nolte's efforts to secure exclusion. In fact, when the ODI report was used by Ford to extensively cross-examine Wallingford, Ford countered Nolte's objection to the report by noting that the report was " in evidence." That both parties operated under this belief is solidified by the fact that the ODI report was not formally admitted into evidence until much later, as part of the parties' " off-the-record housekeeping," wherein they admitted numerous exhibits identified during the testimony.

We believe Nolte's references to the ODI report before its " formal" admission into evidence did not waive his earlier objections. It is plain that this was not a situation where the trial court had taken Nolte's motion in limine under advisement to be ruled based upon developments at trial, but instead was a situation where the trial court simply felt compelled, as a matter of law, to admit the ODI report in its entirety in light of Rodriguez, and had so advised the parties.

Because " [a] party has a right to try the issues which have been forced upon him," Arnold v. City of Maryville, 110 Mo.App. 254, 85 S.W. 107, 108 (Mo. App. 1905), Nolte did not waive his strenuously asserted objections to admission of the ODI report due to its lack of relevance.

B. Standard of Review

We turn, therefore, to the merit of Nolte's claim of error. " 'The trial court is accorded considerable discretion in ruling on the admissibility of evidence, particularly where a subjective determination of relevancy must be made.'" Secrist v. Treadstone, LLC, 356 S.W.3d 276, 280 (Mo. App. W.D. 2011) (quoting Rock v. McHenry, 115 S.W.3d 419, 420 (Mo. App. W.D. 2003)). And reversal is warranted if a trial court has abused that discretion. Id. " However, in determining whether the trial court abused its discretion, it remains a question of law whether the trial court applied the correct legal standard in [ruling on the admissibility of] the evidence." Emerson v. Garvin Group, LLC, 399 S.W.3d 42, 44 n.2 (Mo. App. E.D. 2013). And " whether the trial court applied the correct legal standard is a question of law that we review de novo." Id. at 44; see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (" A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." ).

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C. Admissibility of ODI reports as public records

Below, Ford claimed that the ODI report was admissible, in its entirety, pursuant to Rodriguez. The trial court agreed, expressing the view that it was " compelled to hold that this is a Rodriguez document and is admissible." Rodriguez construed and applied section 490.220,[14] Missouri's public records statute, in addressing the admissibility of an ODI report. 996 S.W.2d at 56. Section 490.220 provides:

All records and exemplifications of office books, kept in any public office of the United States, or of a sister state, not appertaining to a court, shall be evidence in this state, if attested by the keeper of said record or books, and the seal of his office, if there be a seal.

Rodriguez was a products liability and negligence case against Suzuki Motor Corporation based upon an alleged defect in the Suzuki Samurai SUV that caused the vehicle to roll over in emergency driving situations due to a low center of gravity and excessively narrow track (also known as an insufficient static stability ratio). Id. at 54-55. At trial, Suzuki sought to admit, under section 490.220, various NHTSA reports[15] involving the denial of defect petitions based upon the Samurai's alleged rollover propensity, wherein NHTSA concluded that " the Samurai's 'static stability ratio'--the ratio of the half track width of the vehicle to center of gravity height--was well within the range for vehicles of its type, and further, that the Samurai's real-world performance on the nation's highways was comparable to that of most SUVs." Id. at 55. The reports " also concluded that '[r]ollovers . . . often appear to have been influenced by adverse driver and environmental factors such as high risk driving maneuvers, drinking, low ambient light, and lack of driver familiarity with either the vehicle or the road,'" and that the Consumers Union testing methodology--which was relied on by the plaintiff and indicated that " the Samurai had the lowest (worst) 'rollover safety margin' of any SUV tested" --was invalid. Id. The trial court excluded the reports. Id. at 51, 55.

Suzuki challenged the exclusion on appeal, and the plaintiff defended the trial court's action on the basis that the excluded reports contained inadmissible hearsay in the form of opinions and conclusions of NHTSA officials. Id. at 56. The Missouri Supreme Court first noted that the reports " clearly [met] the requirements of the section 490.220 exception" to the general rule barring hearsay insofar as they were published in the Federal Register, which is published under seal of the National Archives and Records Administration and contains records of the Office of the Federal Register, a public office of the United States. Id. The Court then addressed the question of " whether the statutory exception encompasses opinions and conclusions contained within the records," and determined that " the statute is unqualified and open-ended. Once the statutory foundational requirements are met, . . . then the reports are admissible in their entirety." Id. In response to the plaintiff's argument that " the admission of such 'unbridled rank hearsay' is a grave mistake," the Court indicated that " there should be little concern over conclusions contained in such reports because they are 'subject to the ultimate safeguard--the opponent's right to present evidence tending to contradict

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or diminish the weight of those conclusions.'" Id. at 57 (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 168, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988)).

In addressing whether Suzuki suffered any prejudice from the exclusion, the Court noted that " the reports go to the heart of plaintiff's case--the existence of a roll over design defect." Id. at 58 (emphasis added). The Court further noted that " the reports were generated by a government entity that is presumably independent and unbiased and whose ultimate function is to protect the public by seeking out product defects, if they exist," which " gave the reports great credibility." Id.

In addition to admissibility under section 490.220, the Court noted that the " [t]he original NHTSA report . . . w[as] independently admissible to refute the punitive damages claim, though the scope of that admissibility was limited to Suzuki's 'state of mind' in designing and marketing the Samurai." Id. at 59. When offered for this purpose, the Court concluded that the reports did not constitute hearsay, but would have been subject to a limiting instruction, had the plaintiff sought one.[16]Id.

The plaintiff in Rodriguez did not argue that the reports at issue were not relevant, and the Supreme Court noted that " there is no question that the government reports are highly relevant." Id. at 55. This observation was no doubt a function of the fact that the ODI clearly addressed the precise defect and foreseeable use alleged by the plaintiff's strict liability claim, and thus the precise defect and foreseeable use the jury was required to consider in determining whether the Samurai was unreasonably dangerous. Important for our purposes, however, this observation plainly instructs that a government report that satisfies the foundation requirements of section 490.220 must nonetheless be relevant as a condition of its admissibility. Stated differently, though section 490.220 compels the admission of government reports without further demonstration of foundation and unfettered by substantive objections that could otherwise prevent admission, as with all evidence, the proponent of a government report must nonetheless establish the predicate condition that the report is both logically and legally relevant to a contested issue to be determined by the fact finder. See Eltiste v. Ford Motor Co., 167 S.W.3d 742, 748 (Mo. App. E.D. 2005) (noting that the Missouri Supreme Court added no requirements for admissibility to those outlined in section 490.220, other than to note that all evidence must be relevant to be admissible).

D. The trial court misapplied the law by failing to evaluate the relevance of the ODI report before deeming it admissible in its entirety .

Here, the trial court indicated that Rodriguez, and its interpretation of section 490.220,

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" compelled" the trial court to admit the ODI report in its entirety. In so doing, the trial court did not separately evaluate the relevance of the ODI report. This was error.

It is beyond dispute that " '[t]o be admissible, evidence must be [both] logically and legally relevant.'" Westerman v. Shogren, 392 S.W.3d 465, 474 (Mo. App. W.D. 2012) (quoting Secrist, 356 S.W.3d at 281). " Evidentiary relevance is directly related to the issue to be decided." State ex rel. Humane Soc'y of Mo. v. Beetem, 317 S.W.3d 669, 672-73 (Mo. App. W.D. 2010). " Evidence relevant in the context of a given issue or subject matter may not be relevant in another context." Id. " Logical relevance refers to the tendency of evidence 'to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'" Westerman, 392 S.W.3d at 474 (quoting Secrist, 356 S.W.3d at 281). Logically relevant evidence includes evidence that " 'supports a reasonable inference or presumption regarding the existence of a material fact.'" Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1157 (Pa. 2011) (quoting Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395, 402 (Pa. 1994)).[17] Though " facts bearing so remotely upon or which are so collateral to the issue that they afford only a conjectural inference should not be admitted in evidence." People v. Dooley, 944 P.2d 590, 597 (Colo. App. 1997).

" Legal relevance, on the other hand, 'is a determination of the balance between the probative and prejudicial effect of the evidence.'" Westerman, 392 S.W.3d at 474 (quoting Secrist, 356 S.W.3d at 281). " That balancing requires the trial court to 'weigh the probative value, or usefulness, of the evidence against its costs, specifically the dangers of unfair prejudice, confusion of the issues, undue delay, misleading the jury, waste of time, or needless presentation of cumulative evidence.'" Id. (quoting Adkins v. Hontz, 337 S.W.3d 711, 720 (Mo. App. W.D. 2011)). " If the cost outweighs the usefulness, the evidence is not legally relevant and should be excluded." Id.

The party seeking to admit evidence bears the burden of establishing both its logical and its legal relevance. Secrist, 356 S.W.3d at 283. This proposition holds true even when seeking to admit evidence under the limited foundational requirements of section 490.220. State v. Allen, 274 S.W.3d 514, 527-28 (Mo. App. W.D. 2008); Eltiste, 167 S.W.3d at 748. Furthermore, because governmental documents, such as the ODI report, are likely to be given significant credence by the jury, see Rodriguez, 996 S.W.2d at 58, it is all the more important that the proponent demonstrate not only logical but also legal relevance ( i.e., why the evidence will not be misleading or confusing for the fact finder).

Though Ford articulated various generalized arguments directed at logical relevance,[18] Ford never addressed the legal relevance of the report, despite the fact that Nolte consistently argued that the report was unduly prejudicial and that it

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would confuse and mislead the jury. Instead, Ford consistently urged that Rodriguez mandated admission of the ODI report in its entirety because it was a government report. The trial court accepted this argument. In so doing, the trial court failed to separately assess the logical and legal relevance of the report.

The trial court's erroneous conclusion that it was compelled to admit the ODI report without first assessing the report's logical and legal relevance requires reversal only if the error resulted in prejudice. Klotz v. St. Anthony's Med. Ctr., 311 S.W.3d 752, 763 (Mo. banc 2010) (holding that the improper admission or exclusion of evidence requires reversal only if the ruling results in prejudice). " Evidence is considered prejudicial if it 'tends to lead the jury to decide the case on some basis other than the established propositions in the case.'" Ford v. Gordon, 990 S.W.2d 83, 87 (Mo. App. W.D. 1999) (quoting Graves v. Atchison-Holt Elec. Coop., 886 S.W.2d 1, 3 (Mo. App. W.D. 1994)). That standard is met in this case.

At a minimum, when evaluating whether the ODI report was logically relevant, the trial court needed to consider what facts were in issue, because evidence is logically relevant only " 'if it . . . tends to prove or disprove a fact in issue.'" McGuire v. Kenoma, LLC, 375 S.W.3d 157, 185 (Mo. App. W.D. 2012) (quoting State ex rel. Mo. Highways and Transp. Comm'n v. Greenwood, 269 S.W.3d 449, 457 (Mo. App. W.D. 2008)).

In a design defect case, the jury is tasked with determining whether the product identified " was . . . in a defective condition unreasonably dangerous when put to a reasonably anticipated use" and whether " the plaintiff was damaged as a direct result of such defective condition as [it] existed when the product was sold." § 537.760(3)(b).

Thus, in the context of this case, the jury had to discern whether the CVPI was in a defective condition unreasonably dangerous when used by law enforcement for routine traffic stops and as a blocker vehicle on high-speed roadways because of the rear-of-axle tank location, the design of the anti-spill valve, or the location of the anti-spill valve.[19] For purposes of punitive damages, the jury had to determine whether Ford exhibited a conscious disregard for the safety of others.

The second question the trial court had to answer was whether the ODI report tended to either prove or disprove any of those facts in issue. It was Ford's burden, as the offering party, to demonstrate the answer to this question for the trial court, but Ford failed to meet this burden insofar as the report itself is ambiguous and Ford's assertions as to relevance were nothing more than mere conclusions. And because the trial court required no more clarity before deeming the document admissible, the question remains unanswered.

" 'Where the relevancy or admissibility of evidence offered is not apparent[,] it may be rejected unless there is a statement of the purpose of its introduction by which the court may determine its relevancy or admissibility.'" State v. Hamilton, 310 S.W.2d 906, 908 (Mo. 1958) (quoting 20 C.J.S. Criminal Law § 1029, p. 404).

At this point, it is helpful to compare the facts of this case with those of Rodriguez. Although relevance was not an issue raised by the parties in Rodriguez, the Court

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nevertheless meticulously laid out the similarities between the questions addressed in the reports at issue and the issues raised by the parties in the case, which led to the Court's conclusion that the reports were " highly relevant."

In Rodriguez, " [t]he thrust of [the] plaintiff's case was to establish that the accident was caused by a design defect that gave the Samurai a high center of gravity, making it prone to roll over in emergency driving situations." Rodriguez, 996 S.W.2d at 54. The reports at issue expressly addressed the Samurai's center of gravity, whether rollovers tended to occur during ordinary emergency driving situations or under other circumstances, and whether the scientific studies relied upon by Rodriguez were reliable. Id. at 55. In other words, the reports expressly addressed the issues in the case, and it was plain from the face of the document that the report tended to disprove a fact in issue: whether the Samurai was then in a defective condition. Id. at 58. Here, it is not apparent from the face of the report how its findings and conclusions relate to the alleged defect. It may be that the report is relevant, but it is simply not apparent from this record the way it was in Rodriguez.

And here, rather than explain to the trial court what the report meant, the parties repeatedly discussed what the report did not mean: they agreed that the closing of an ODI investigation was not tantamount to a finding of " no defect." But, apart from bare conclusions regarding relevance (or lack thereof), neither party identified what the report did mean.

We cannot plainly discern from our review of the ODI report that it tends to prove or disprove any of the facts in issue with respect to liability on Nolte's claim of strict liability. Unlike the ODI report in Rodriguez, which precisely addressed both the defect and the use asserted in the plaintiff's strict liability claim, this ODI report addresses multiple failure modes and uses (including civilian uses) and is not narrowly and precisely tied to the defects or specific use alleged by Nolte. Though not its focus, the report acknowledges the precise use alleged by Nolte and references data that highlight a heightened and disproportionate risk of injury or death when the CVPI is used for routine traffic stops and as a blocker vehicle on high-speed roadways. For example, the ODI report notes:

While it is true that ...

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