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Zakrocki v. Ford Motor Co.

July 29, 2009

REBEKAH S. ZAKROCKI, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
FORD MOTOR COMPANY, DEFENDANT-APPELLANT/CROSS-RESPONDENT, AND FREEHOLD FORD, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10179-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 2, 2009

Before Judges Carchman, Sabatino and Simonelli.

This is an appeal and cross-appeal from a jury award of compensatory and punitive damages to plaintiff Rebekah S. Zakrocki against defendants Ford Motor Company (Ford) and Freehold Ford (Freehold). This product liability case arose from plaintiff's highway accident. Plaintiff alleged that, after an application of the brakes, the throttle was unresponsive. She pressed hard on the accelerator to make it work, which made the vehicle surge forward. She tried to avoid hitting the cars ahead and to her left, but she lost control of her vehicle and it rolled over several times. She sustained serious injuries, including the near-amputation of one hand.

Plaintiff brought this action against Ford, the manufacturer, and Freehold, the dealership that sold plaintiff the vehicle. The jury rejected plaintiff's theory of a rollover defect but accepted her claim that the throttle was defective. The jury also accepted her claim that Freehold should have replaced the allegedly defective throttle before selling her vehicle because Ford was reimbursing such work without question. Defendants appeal the jury verdict, and plaintiff cross-appeals the punitive damages award. We affirm and dismiss both the appeal and cross-appeal.

I.

This litigation extended over five years and consumed approximately one month of trial time. Since the appeal focuses on the nature of the evidence presented, we provide an extensive exposition of the relevant facts adduced at trial. We first address the accident and the ensuing injuries and then focus on the substantial issues as to liability.

A.

In May 1999, plaintiff purchased her vehicle, a used 1997 Ford Explorer with approximately 29,000 miles, from Freehold. Until the accident on November 10, 2000, she did not experience a sticking throttle. Freehold performed two minor repairs unrelated to the throttle system, without telling her that her vehicle might be subject to throttle problems or that Ford had a program to replace the throttle body at no cost.

On November 10, 2000, plaintiff*fn1 , twenty-two years old on the day of the accident, drove from her home to a gas station about a mile away, stopped to buy gas and drove to the Garden State Parkway. She was not wearing her seatbelt. She was on the northbound side of the Parkway for approximately ten minutes before the events immediately preceding the accident, and she indicated that she was not weaving in and out of traffic.

Plaintiff was in the middle lane and getting closer to the car ahead, which was going "a lot slower than [she] was." She checked her speedometer and saw that she was driving at sixty-five miles per hour. She took her foot off the gas but was nonetheless getting even closer, so when she was still three car-lengths away she decided to brake. There were vehicles next to hers on both sides.

When plaintiff's vehicle was about one or one and one-half car lengths behind the vehicle ahead, she put her foot back on the accelerator. She "felt that it was stuck," and she "had to step on it about two times to get it unjammed." The accelerator "went down to the floor and the car surged forward very fast," enough to push her back into her seat and scare her. Plaintiff steered to the left in order to avoid hitting the car ahead. She maneuvered her vehicle into the left lane, but then it "leaned" to the left and went out of control. "It was going back and forth, back and forth, back and forth really fast. It just happened in a flash . . . ." "[T]hen the car shot at an angle towards the middle lane" and flipped over.

At some point during the accident, and apparently without plaintiff's knowledge, her vehicle hit the left side of Arthur Del Pizzo's car. Del Pizzo had been driving in the right lane at approximately fifty miles per hour because his car was noisy and unpleasant at higher speeds. He had been unaware of plaintiff's vehicle, but when he felt the impact he took his foot off the gas and steered to the right. As plaintiff's vehicle went ahead of his, he observed that it was swerving and "sliding" in the direction of the roadway but oriented at a forty-five degree angle. It then rolled over two or three times.

Another driver, Jiam Huang, was traveling in the left lane at the time of the accident at a speed of between sixty and seventy miles per hour. The vehicles in the center lane were traveling at "more or less" the same speed. When Huang first noticed plaintiff's vehicle, it was in the center lane somewhat ahead of his, traveling at the same speed as the surrounding traffic.

The next thing Huang noticed was that plaintiff's vehicle came into the left lane. Instead of the driver signaling and sliding gradually into the lane, the vehicle "zigzagged," turning "very rapidly" to one side and then to the other, coming into his lane and then going back to the center lane. Huang felt that plaintiff's vehicle suddenly leaned toward his car, which required him to brake, and his car was hit by the one behind it. He and the driver of that car stopped and confirmed that neither of them was injured. The other driver asked Huang what happened, and Huang told him that he braked because plaintiff's vehicle had zigzagged in front of his. Raymond Schucht, another driver, related similar observations.

Robert Orozco was the driver of the car that hit Huang's. He was driving in the left lane at about seventy-five miles per hour and had been observing plaintiff's vehicle for about two minutes. Plaintiff was "making lane changes, trying to get around cars" in order to "go faster," and she applied her brakes when "she got stuck behind a car" that was going slower than hers. Orozco was perhaps 100 feet behind plaintiff at that point, and he could not observe her. He nonetheless surmised that she "tried to get back into the left lane without checking her blind spot and then when she realized there was a car there jerked the wheel back to the right; therefore, flipping it." He did not believe that plaintiff's vehicle hit any others before it flipped. When plaintiff's vehicle started to flip, "everyone obviously slammed on their brakes," but Orozco did not have enough room to avoid hitting the rear of the car ahead of his.

He told a police officer that he had seen plaintiff's vehicle being driven erratically.

Plaintiff was seriously injured in the accident. After the accident, the first thing plaintiff remembered was lying on the grass and hearing emergency medical technicians asking if there was someone they should call. She gave them the phone numbers of her mother and her boyfriend. She did not remember anything else before waking up in the hospital.

Christopher Godek, plaintiff's doctor and an expert in reconstructive and plastic surgery, first saw plaintiff on the day of the accident, when she was brought to the hospital. She had a "near complete" amputation of her right arm at the wrist, with only a "skin ridge on the back" keeping it attached. Saving the hand required restoring blood flow within three to four hours of the injury, and Godek initially believed that the chance of doing so was approximately one in fifty.

Plaintiff also had a "total brachial-plexus injury." The brachial plexus is the network of nerves that connects the spinal cord to the arm. A total injury means that the nerves are torn, and the torn nerves were the reason plaintiff was unable to feel her arm after the accident.

Godek initially restored the blood flow to the hand with a bypass tube from the severed artery, plus vein grafts from plaintiff's leg. He removed some dead bone from the broken ends, which left the arm shorter.

Plaintiff's arm injury required skin grafts, also from her legs. Godek stabilized the wrist by installing an external fixator with plates and screws. He tried to fuse the wrist with bone cement, which required more than one attempt. During the first month or two after surgery, plaintiff had a 20% to 30% chance of losing the hand, and her legs were scarred from the harvesting of nerves and skin for grafting.

At some point, "once we got her through the recovery," Godek knew that plaintiff's hand would survive. That was when it "became apparent" that plaintiff could not move or bend her arm in any fashion, consistent with a full brachial plexus injury. It confirmed that the nerves had been "torn out of the spine," and even if they could be reattached to the spinal column, that would not serve to restore arm function. However, "[i]f you could somehow connect nerves outside the spinal column, they will rebuild themselves;" Godek thus pursued surgery that would provide "a different way to get the signals to those nerves." Ultimately, plaintiff could raise her arm to a degree and had a "very, very mild pinch" function, which was "only enough maybe to carry a paper towel roll."

The brachial plexus injury had also caused shoulder instability, which Godek and an orthopedic surgeon tried to moderate with a muscle-transfer procedure. He performed a total of twenty-one surgeries on plaintiff. At the time of trial, Godek considered plaintiff disabled, with no prospect of gaining more arm function and with a likely need for more surgeries that he did not name.

Plaintiff described to the jury her eight skin grafts, the nerve grafts, and the harvesting of hip bone to make the second attempt at fusing her wrist successful. She also explained the muscle-transfer procedure, in which her trapezius was divided and was secured to her right shoulder because there was nothing else to keep the weight of the arm from pulling the shoulder out of its socket. Plaintiff had "extreme" neck and back pain from bearing the arm's weight, plus phantom pains in her hand. She also had extreme pain in the left side of her neck and in her left hand and wrist from constantly using them. In addition, she had "really poor circulation" in the leg from which the largest harvested vein was taken, which made the foot turn purple when she stood for too long.

Plaintiff's right hand was missing a finger. She had a prosthesis for it, but it was attached by suction and she could not feel when a bump knocked it off; the embarrassment of such occurrences in public was worse than that of being seen without it.

Plaintiff eventually married her boyfriend, and they had a child. She stopped working and was receiving payments for permanent disability. At the time of trial, plaintiff was twenty-eight years old.

Pamela Scanlon, an occupational therapist who was certified in hand therapy, first saw plaintiff in 2002, when plaintiff was at home and immobilized for eight to ten weeks after the muscle-transfer procedure. Scanlon stated that, as of trial, plaintiff "only has muscular control over the top of the shoulder and she doesn't have the ability to use those muscles for a functional purpose."

Scanlon opined that plaintiff had "no real function" in her arm, and that she was "paralyzed completely" despite having "some elbow flexion," because she had no use of her forearm and hand and could not hold anything in her right arm. Scanlon explained that plaintiff had chronic neck pain and shoulder discomfort on the left side because she had to use that side for all tasks, and that she had muscle spasms in her neck and upper back because the lack of shoulder function meant that they had to bear more of the weight of her right arm and more of the burden of stabilizing it.

Lorraine Buchanan, a registered nurse who served as plaintiff's expert in rehabilitation, explained that plaintiff could not wear clothing without alterations because "the winging of her scapula and the canting of her shoulder" rendered her "deformed."

B.

The most contentious part of the trial dealt with the throttle system and whether it was defective. We present the trial proofs on that issue. Plaintiff's vehicle was a 1997 Ford Explorer with the 4.0 liter SOHC (single over-head cam) engine. The only defect at issue on appeal, the throttle system, regulates fuel-flow from the throttle body to the cylinders by means of a spring-loaded throttle plate that opens as the driver presses on the accelerator.

Ford was aware of a throttle issue in vehicles like plaintiff's. A Ford memorandum of February 9, 1998, noted reports of a problem with surging and hesitation in such vehicles. Customers were reporting "a resistance to accelerate off idle or a[n] engine hesitation off idle." The throttle plate was sticking in the closed position due to misalignment or sludge accumulation. Misalignment was a factor on vehicles with less than 1,000 miles, which represented five percent of the reports, whereas sludge was the only problem at higher mileages.

Misalignment would be resolved by the installation of a thicker throttle plate with a stronger shaft. Sludge accumulation would be addressed by adding a "[p]ost set process" to the throttle body that increased clearance around the throttle plate, apparently by repositioning it slightly. Ford was also "evaluat[ing]" a change in the exhaust gas recirculation ("EGR") system that channeled hot exhaust gases back into the throttle, so that it would direct those gases away from the throttle plate.

A March 10, 1998 meeting at Ford on sludge accumulation in the throttle body reported a working hypothesis. A memo of that meeting started with the composition of the deposits, which included carbon in the gas flows entering the throttle body from the EGR and positive crankcase ventilation ("PCV") systems. That material would be heated by the EGR inflow, and it could reach the cooler underside of the throttle plate "via back flow to throttle plate during throttle closing[s]." The deposits would accumulate during "[t]hrottle [p]late [t]emperature

[c]ycling," which occurred during engine operation as well as when the engine was shut: "Plate is alternately heated and cooled by engine operating cycle transients and shutdown/soak history. . . ." The deposits could accumulate on both the plate and the bore, and they could be of "several types" and of "varying strengths," ranging from "fluff" and "mud" to "hard carbon" and "varnish." The memo added that the tendency of such deposits to cause sticking or binding could be alleviated or aggravated by "design and manufacturing tolerances."

On October 19, 1998, Ford sent dealers a technical service bulletin about 1997 and 1998 Ford Explorers and 1998 Mercury Mountaineers with the same engine as plaintiff's vehicle. The memorandum had been prompted by customer reports of a "throttle stuck at idle," with a "common concern" of "a hard to depress accelerator pedal first thing in the morning or after being parked for several hours." The bulletin named the conditions it addressed as "hesitation-throttle hard to depress," "surge- throttle hard to depress," or "throttle-sticky accelerator pedal." The "action" was for the dealers to "[i]nstall a new throttle body assembly," in which the "[c]learance between [the] throttle plate and bore has been increased to reduce the possibility of sticking." The replacements would be covered by the vehicle warranty. Mark Hoffman, a Ford employee, noted that the bulletin provided dealerships with information on how to handle such complaints, but it was not an instruction for them to replace the throttle bodies on all subject vehicles.

On January 7, 1999, the Office of Defects Investigation ("ODI") in the National Highway Traffic Safety Administration ("NHTSA") opened investigation EA99-001 for the problem of "[t]hrottle not returning to idle after the accelerator is released or when the speed control is deactivated." An ODI summary stated that a Ford response dated October 28, 1998, had identified 10,463 reports of throttle sticking, of which 98.9% were for vehicles with the same engine as plaintiff's. Ford further stated that 91% of those reports "concern throttles sticking closed, which occur only after the vehicle is parked for several hours." However, ODI considered approximately 36% of the reports to be indeterminate because they failed to indicate whether the sticking occurred while the throttle was open or closed.

ODI related Ford's position that there was no significant safety problem because 89.7% of the reports involved throttles that were stuck closed rather than open. Ford believed that, once the engine was turned on and the throttle was freed, the throttle would not stick again before the engine was shut. However, Ford had not indicated how many reports it had received in which "the throttle repeatedly sticks closed during the driving cycle." ODI believed that such a situation "may well be a safety related problem" because "[t]he driver may have to push down hard on the accelerator pedal to move the vehicle and lose some vehicle acceleration control."

ODI observed that the rate of warranty claims in 1998 for the throttle was forty-two times higher than Ford's average claim rate. It concluded that "the high failure rate of throttle sticking, the lack of information on many of the throttle malfunction incidents, the number of ongoing modifications to the throttle body assembly, the remedy for the sludge formation issue not yet resolved, and the reports of throttle sticking" compelled further investigation "to fully determine the scope of throttle malfunctions and the relationship to motor vehicle safety."

In May 1999, Ford notified owners about its "no-charge Service Program." It informed them that their vehicles "may experience throttle body plate stick or bind in a closed position after the vehicle has been parked with the engine off," and that "[t]his condition can cause the accelerator pedal to feel stuck or unresponsive the next time the vehicle is used." Ford extended the warranty on throttle bodies to 6 years or 72,000 miles, with free replacement during that period "[i]f the throttle body on your vehicle should experience the condition as stated above."

Ford responded to a NHTSA request for additional information on August 3, 1999. It stated that the number of 1998 model-year Ford Explorers and Mercury Mountaineers sold with the same engine as plaintiff's vehicle was 273,471. Ford had notice of seventeen allegations of accidents arising from a throttle that "[s]ticks [c]losed," two of which also alleged injuries. In addition, Ford had notice of nine alleged accidents involving a throttle that "[s]ticks [o]pen or

[p]artially [o]pen," and ten allegedly involving "[u]nexplained

[s]udden [a]cceleration." That tabulation did not indicate whether the engines were alleged to have been cold or warm at the time of the accident.*fn2

The response added that Ford had identified 48,935 warranty claims for throttle sticking in 1997 model-year Explorers that owners had presented between October 1998 and May 1999. At NHTSA's request, Ford sorted the reports of throttle problems into categories, chiefly throttles that were stuck open or stuck closed. When a complaint failed to specify either condition, Ford presumed that it was about a closed throttle, in the belief that it "would be remarkable for a report to only describe a stuck open throttle with only the word 'sticks' or 'binds[,]' . . . . [and] even more incredible" that "large numbers of such reports" about throttles stuck in the open position "with the attendant consequences" would fail to specify that the throttle was stuck open. By contrast, "the prevalence of the stuck closed condition" when the engine was cold (labeled "code A") made it "well known among dealers, technicians, and some owners," to the point that it "did not require further description" than to be named simply as a stuck throttle. For similar reasons, Ford also coded a report as code A if it indicated that the accelerator was "[h]ard" or "[s]ticks when initially pressed or on accel[eration]."

Ford believed that its survey of a sampling of owners who had made reports confirmed the accuracy of those presumptions, because the complaints that those owners had submitted with no further detail (labeled "code Q") were all instances of throttles sticking closed when cold, as were fourteen of the seventeen complaints that those owners had submitted with no useful detail at all (labeled "code C"). Ford thus used those presumptions to categorize 35,661 of the reports, or 64.8%, as code A; together with the 25% as code Q and the 8.8% as code C, the accounted for 98.6% of the total. Ford had also received 67 reports of a throttle that stuck closed when the engine was warm, or 0.19% of the total. Ford labeled those reports as "code AH," and observed that they "may potentially be an A code that has progressed from a cold start only issue to an overt condition when the engine is warm."

As for the problem of "vehicle surging," Ford explained that its engineers used the term "surging" to denote "engine or powertrain fluctuations" that resulted in a small change or small oscillation of vehicle speed, usually no more than one mile per hour above or below "the set road load speed." Such surging "can vary from imperceptible to the customer, to an annoyance." By contrast, Ford believed that owners used the term to describe "the vehicle reaction during acceleration where the throttle plate is momentarily stuck closed," and the driver presses harder on the accelerator in order to free it: "The driver endeavors to overcome the momentary lack of normal acceleration, which can be perceived as a hesitation, by pressing harder on the pedal. At the moment the throttle plate releases, it may produce an acceleration stronger than expected, resulting in the vehicle 'surging' forward . . . ."

The response then described preproduction testing of a modified throttle body, which had raised a concern that the throttle could stick in the partially open position "due to an apparent sludge build-up on the throttle bore." Ford stated that it resolved that problem before production began, by "a significant re-design of the [EGR] inlet tube located downstream from the throttle body."

As to the particular effects of sludge, Ford believed that sludge could cause sticking only when the throttle was cold, which would require the engine to have been turned off for an extended period. Ford further believed that sludge could cause the throttle to stick only if the sludge bridged the gap between the throttle plate and bore for a significant portion of the plate's circumference. The gap was believed to be so small as to be bridged only when the throttle was closed. Furthermore, the amount of bridging necessary "for the throttle plate to require a noticeable extra effort [on the accelerator] to break this bond" could not develop when the throttle was regularly opening and closing during vehicle operation but, rather, required the throttle plate to be stationary for an extended period in "the fully closed, or idle position," which would only occur when the engine was turned off.

In any event, Ford believed that the issue of throttles sticking when closed, "particularly during the first start-up in the morning," was "successfully addressed by the several throttle body design changes" and its program to notify owners of the extended warranty. It stated that those actions had already yielded "a declining trend" in warranty claims. According to Ford there had been "only a low rate of minor accidents attributed to the sticks closed issue," and Ford "does not believe the sticks closed issue represents a significant risk to motor vehicle safety."

Hoffman acknowledged that in Ford's categorization of the owner reports, code A required only an increase in the effort needed to open the throttle, without further requiring that it occur when the engine was cold or right after the engine was started. He explained that Ford was trying to include all reports that might represent code A in order to ensure that it did not overlook anything in its investigation of that condition; field reports could ...


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