By Marc F. Ullom
Ryan Hutchinson, a driver for Keystone Foods, alleged his tractor trailer was rounding a curve on a ramp connecting New Jersey Route 130 to Interstate 295 when the cruise control system on his tractor failed to disengage.

It was set for a speed of 62 miles per hour, though the speed limit in the area was 55 mph. As a result, Hutchinson said he lost control of his vehicle, flipped and rolled. The roof of the cab collapsed. His arm was so severely injured it required amputation.

Hutchinson filed suit in the Court of Common Pleas for Philadelphia County, Pa., against Freightliner (which manufactured and sold the truck), Penske Truck Leasing (which bought the vehicle), Keystone Foods (lessee of the truck and Hutchinsons employer), and McDonalds Corporation (which hired Keystone Foods to deliver supplies).

After Keystone Foods and McDonalds were dismissed as defendants, the trial proceeded against Freightliner and Penske Leasing. The trial focused primarily on Hutchinsons allegations the tractor was defectively designed.

A Philadelphia jury sided with Hutchinson, awarding him compensatory damages of $5.5 million, based on his claim the cruise-control system was defective and the structure of the cab failed to protect him in the rollover. The jury added $10 million in punitive damages against Freightliner.

However, the trial judge granted defendants post-trial motion, eliminating the punitive damages. The remaining verdict, with an additional $474,237.50 in "delay damages" was appealed to the Pennsylvania Superior Court.

The Superior Court found that the trial was fatally flawed because Hutchinson was allowed to offer safety studies and expert testimony about "other accidents" which distorted the jurys view of the facts. For this reason, the Superior Court reversed the trial court decision, affirming the award of compensatory damages and ordered a new trial.

In his effort to justify the award of punitive damages, Hutchinsons counsel argued that Freightliner should have considered its product defective and dangerous because of the safety studies it presented during the trial.

He also claimed that his three expert reports showed Freightliners culpable "state of mind" and the studies should have been admitted for that specific purpose. However, the Super Court found that Hutchinsons counsel failed to show how such studies applied to this particular Freightliner model.

The three expert studies offered by Hutchinson during the trial were a 1986 National Highway Traffic Safety Administration report entitled "Truck Occupant Protection"; a 1991 report by Dr. Kenneth Campbell of the University of Michigan Transportation Research Institute entitled "Heavy Truck Cab Safety Study", and a 1992 study by Failure Analysis Associates Inc., a private consulting firm, entitled "Heavy Truck Crashworthiness."

The trial court noted that these studies did not pass the "substantial similarity" test, but ruled they could be offered into evidence for the separate reason suggested by plaintiff to show Freightliners state of mind about the most important factors to consider in designing a crashworthy vehicle.

The Superior Court disagreed and commented that "the reports of heavy truck accident studies constitute evidence of other accidents, and therefore the substantial similarity test must be satisfied before their admission into evidence." For evidence of "other accidents" to be used against a defendant, it must be shown that they were "substantially similar" to the accident on trial.

"The burden to prove substantial similarity of other accidents lies with plaintiff-Hutchinson, and he failed to carry this burden," the Superior Court explained.

Plaintiffs counsel "unmistakably implied that the conclusions of the reports were directly applicable to the Freightliner Model FLD 120 . . . even though the FLD 120 was not included in the studies . . ." As a result, the impression that plaintiff created with the jury "was not harmless error" and "very likely affected the jurys verdict."

Plaintiffs counsel also "repeatedly, blatantly and intentionally" referred to other inadmissible evidence based on European crash test standards. The Superior Court added that these actions by plaintiffs counsel also created reversible error with regard to both punitive damages and the finding of liability.

Hutchinson has appealed the decision to the Pennsylvania Supreme Court, which has discretion to grant or decline the appeal. A ruling is pending.

The Hutchinson decision has implications for all accident-related litigation.

It reinforces the general rule that evidence of "other accidents" must be linked directly to the contested issues on trial, or it will be excluded as irrelevant and prejudicial. Only legal counsel, and ultimately the court, can determine which "other accidents" evidence must be disclosed to opponents.

It is, therefore, critical in each case to carefully review all prior accident history with your trial counsel, so that sound decisions can be made about whether and how such information will be disclosed to opposing parties pursuant to the rules of discovery.

Marc F. Ullom is an attorney in the Philadelphia law firm of Rawle & Henderson, where he concentrates on the defense of truck and bus companies and their insurers.