On June 7, 2012, the Virginia Supreme Court issued a wrongful death opinion arising from a vehicle fire in Albemarle County, Funkhouser v. Ford Motor Co., No. 111207. By 4-3 decision, it found admissible prior vehicle fires and expert testimony thereon.
Re the admissibility of 4 prior similar occurrences, the pivotal point in the Funkhouser special case is plaintiff predicating his product liability claim solely on “failure to warn”. “Funkhouser does not advance a design defect theory and is not required to do so in order to introduce evidence of other similar occurrences.” Id. at 19-20.
“[S]ince Funkhouser does not assert that his minivan was defectively manufactured or designed, the specific mechanical cause of the Funkhouser minivan fire is not an element of his failure to warn claim,” explained the Virginia Supreme Court in the Funkhouser wrongful death appeal. “Rather, Funkhouser must establish the Funkhouser’s minivan was unreasonably dangerous for its untended use.” Id. at 14.
In turn, “Funkhouser was not required to allege a specific mechanical defect to establish the [requisite substantial] similarity of the fires [in the prior occurrences].”Id. at 16-17 n. 8. The Funkhouser special case opinion concluded, “Whether the Funkhouser minivan is unreasonably dangerous and whether Ford knew or should have known of the unreasonably dangerous condition are essential elements of Funkhouser’s failure to warn claim and were not proper issues for the court to resolve of Ford’s motion to exclude evidence of the other Windstar van fires.” Id. at 16.
Re the admissibility of expert testimony about prior similar occurrences, the Funkhouser wrongful death decision relied on Va. Code. Ann. §8.01-401.1. It held that plaintiff’s product liability expert could testify on direct examination about the 4 “substantially similar” prior occurrences and possibly about having relied upon (though not the details of) 3 other prior occurrences that were not substantially similar, and that the defense could cross-examine about the expert’s basis for the foregoing. Id. at 22-25.
The foregoing wrongful death opinion was reported at 284 Va. 214 (2012), but was withdrawn after a Petition for Rehearing was granted by Order dated September 17, 2012. On January 10, 2012, the Virginia Supreme Court effectively “reversed” its inital opinion, this time affirming the trial court’s exclusionary evidentiary rulings by a 4-3 margin.
