BROGDON et al v. FORD MOTOR COMPANY
Filing
177
ORDER denying in part, finding moot in part 52 Motion for Partial Summary Judgment; denying 53 Motion for Partial Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 11/5/2024 (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
JAMES EDWARD BROGDON, JR., et
al.,
Plaintiffs,
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*
*
vs.
FORD MOTOR COMPANY,
Defendant.
CASE NO. 4:23-CV-88 (CDL)
*
*
*
O R D E R
Debra and Herman Mills died after a wreck in their 2015 Ford
F-250 Super Duty truck. Plaintiffs, who are the Millses’ surviving
children and the executors of their estates, brought this wrongful
death action against Ford Motor Company, claiming that the truck’s
roof design was defective and that this defect caused the Millses’
deaths.
Ford.
Plaintiffs also assert a failure-to-warn claim against
Ford filed two partial summary judgment motions.
First,
Ford seeks summary judgment on several aspects of Plaintiffs’
substantive claims (ECF No. 52).
In response to the motion,
Plaintiffs stated that they did not assert claims for the Millses’
pre-impact pain and suffering or for a defect in the truck’s
restraint system.
Pls.’ Resp. to Def.’s Partial Mot. Summ. J. 11-
12 & n.30, ECF No. 79.
The motion as to those claims is moot.
As
to the other matters raised in the first summary judgment motion,
the Court finds that genuine fact disputes exist on those issues,
so the Court denies the summary judgment motion on those issues.
Second, Ford seeks summary judgment on Plaintiffs’ claim for
punitive damages.
For the reasons set forth below, that motion
(ECF No. 53) is denied.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).
Fed. R. Civ.
In determining whether a genuine dispute of material
fact exists to defeat a motion for summary judgment, the evidence
is viewed in the light most favorable to the party opposing summary
judgment,
drawing
party’s favor.
(1986).
all
justifiable
inferences
in
the
opposing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
A fact is material if it is relevant or necessary to the
outcome of the suit.
Id. at 248.
A factual dispute is genuine if
the evidence would allow a reasonable jury to return a verdict for
the nonmoving party.
Id.
FACTUAL BACKGROUND
Viewed in the light most favorable to Plaintiffs, the record
reveals the following facts.
This action arises from a wreck on
August 22, 2022 involving a 2015 Ford F-250 Super Crew 4x4 King
Ranch edition truck being driven by Debra Mills in which her
husband Herman Mills was the front seat passenger.
Travelling at
the 55-miles-per-hour speed limit, the vehicle left the road onto
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the grassy right-side shoulder following a right-hand curve.
Mrs.
Mills released the accelerator but did not apply the brakes; the
truck slowed a bit as she intentionally turned the steering wheel
sharply to the left causing the truck to move in the direction of
a
telephone
pole.
Mrs.
Mills
steering wheel to the right.
then
intentionally
turned
the
Although the truck avoided striking
the telephone pole, it hit the upslope of a dirt driveway over a
concrete culvert and went airborne.
The front of the truck hit
the ground, then the truck pitched over and landed upside down.
Mrs. Mills was pronounced dead at the scene, and Mr. Mills died
nine days later.
DISCUSSION
I.
Ford’s Motion as to Substantive Claims (ECF No. 52)
Ford contends the Court should decide the following issues as
a matter of law: (1) that Plaintiffs may not seek damages for Mrs.
Mills’s
post-impact
conscious
pain
and
suffering,
(2)
that
Plaintiffs may not pursue the theory that Mrs. Mills died of
positional asphyxiation, and (3) that Plaintiffs may not proceed
on their failure-to-warn claims.
in turn.
The Court addresses each issue
There is no dispute that Georgia law applies in this
diversity action.
A.
Mrs. Mills’s Pain and Suffering
In a Georgia wrongful death action, an estate may not recover
for the decedent’s pain and suffering if “the medical evidence is
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that death was instantaneous, and there is no evidence the decedent
exhibited consciousness of pain.”
Grant v. Ga. Pac. Corp., 521
S.E.2d 868, 870 (Ga. Ct. App. 1999) (concluding that there was no
evidence of pre-death pain and suffering where the decedent was
found dead of a heart attack after he inhaled turpentine fumes but
there was no evidence that he consciously suffered pain).
But an
estate can recover for the decedent’s pain and suffering if there
is evidence that the decedent consciously experienced pain before
she died.
See, e.g., Park v. Nichols, 706 S.E.2d 698, 701 (Ga.
Ct. App. 2011) (finding that the jury’s decision to award pain and
suffering damages was supported by the evidence where one witness
testified that the decedent was trying to talk and look back at
her child as she died, even though other witnesses testified that
when they saw her, she looked unconscious).
Here, Ford argues that there is no genuine fact dispute on
whether
Mrs.
Mills
consciously
suffered
pain
because
several
witnesses testified that Mrs. Mills was dead by the time they saw
her at the scene and because Ford’s experts opine that Mrs. Mills
lost consciousness due to a cardiac event before the truck crashed
and did not regain consciousness before she died.
At this stage
in the litigation, though, the Court must view the evidence in the
light
most
favorable
to
Plaintiffs
inferences in their favor.
4
and
draw
all
reasonable
Plaintiffs’ medical expert opines that Mrs. Mills was still
conscious after the truck landed on its roof.
pointed
to
evidence
that
would
permit
a
Plaintiffs also
reasonable
juror
to
conclude that Mrs. Mills steered the truck after it left the road,
along with evidence that the first witnesses who arrived at the
scene after the crash observed that by the time they reached Mrs.
Mills, she still had a pulse and was moving her legs and trembling.
Based on this evidence, genuine fact disputes exist on whether
Mrs. Mills consciously experienced pain after the crash but before
she died.
B.
Ford’s summary judgment motion on this issue is denied. 1
Positional Asphyxiation Theory as to Mrs. Mills
Plaintiffs
defectively
assert
designed
that
and
the
that
roof
Mrs.
of
Mills
the
F-250
died
of
truck
was
positional
asphyxiation because the roof deformed and crushed her, folding
her in half so that her chest was pressed to her thighs.
Dr.
Jonathan Eisenstat, a board certified forensic pathologist, opines
that Mrs. Mills died of positional asphyxiation.
Ford nonetheless
argues that there is no evidence Mrs. Mills died of positional
asphyxiation,
contending
that
Dr.
Eisenstat’s
testimony
is
Ford also moved for summary judgment as to any claim for pain and
suffering that occurred before the truck pitched over and the Millses
were crushed inside as the roof and driver/passenger compartment
collapsed. Plaintiffs responded that they are not asserting such claims
in this action. The pain and suffering claim is based upon injury after
the roof and driver/passenger compartment collapsed on them but before
they died.
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speculative and that Ford’s theory—that Mrs. Mills died from a
cardiac event—is unassailable.
Ford correctly notes that expert testimony is necessary to
establish Mrs. Mills’s cause of death and that if an expert’s
testimony is excluded under Federal Rule of Evidence 702, that
testimony cannot create a genuine fact dispute.
Ford did not file
a motion to exclude Dr. Eisenstat’s testimony under Rule 702.
Instead, Ford suggests in its summary judgment briefing that the
Court should ignore Dr. Eisenstat’s testimony as unreliable. Ford,
however, did
not
include
in
its
summary
judgment
briefing
a
sufficient basis for the Court to exclude Dr. Eisenstat’s opinion
on positional asphyxiation.
The Court finds that Dr. Eisenstat’s
testimony creates a genuine fact dispute as to whether Mrs. Mills
died of positional asphyxiation.
Accordingly, Ford’s summary
judgment motion on this issue is denied. 2
C.
In
Failure-to-Warn Claims
Georgia,
a
product
manufacturer
has
a
duty
to
warn
consumers of dangers arising from the use of the product.
That
duty “arises whenever the manufacturer knows or reasonably should
know of the danger arising from the use of its product.”
Chrysler
Corp. v. Batten, 450 S.E.2d 208, 211 (Ga. 1994); accord O.C.G.A.
§ 51-1-11(c) (“Nothing contained in this subsection shall relieve
Ford did not seek summary judgment that Mr. Mills did not die from
injuries he sustained in the crash.
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a manufacturer from the duty to warn of a danger arising from use
of a product once that danger becomes known to the manufacturer.”).
Plaintiffs assert that the F-250 truck’s roof was dangerously weak
and that although Ford was aware of the danger, Ford did not
provide any warnings about the problem either before or after the
Millses acquired the F-250 truck.
Ford contends that the failure-to-warn claim is simply a
repackaged design defect claim that is not cognizable under Georgia
law.
Plaintiffs’ failure-to-warn claim is based on the following
contentions:
the
roof
of
the
F-250
truck
was
unreasonably
dangerous, Ford was aware of the dangers, the Millses could not
have known about the dangers, Ford did not provide any pre-sale or
post-sale warnings about those dangers, and those dangers were
realized during the crash and proximately caused the Millses’
injuries and deaths.
In support of Ford’s argument that Georgia
does not recognize this type of claim, Ford relies on two Texas
District Court cases regarding the elements of a marketing defect
claim under Texas law.
Ford, however, did not point to any binding
authority that a Georgia failure-to-warn claim cannot be based on
a manufacturer’s failure to warn of the unreasonable danger caused
by alleged design defects, and the Court is not convinced that
Georgia law bars such a claim.
Gibson,
659
S.E.2d
346,
351
See, e.g., Ford Motor Co. v.
(Ga.
2008)
(affirming
denial
of
judgment as a matter of law as to a similar failure-to-warn claim
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where Ford failed to warn of the dangers caused by alleged design
defects).
To the extent that Ford may suggest that Plaintiffs’
failure-to-warn claim must be supported by expert testimony, the
Court rejects any such argument.
Because the issue is whether
Ford knew of risks with the design but provided no warning at all,
the Court is satisfied that the jury can understand the causation
element of this claim without a warnings expert.
For these
reasons, the Court denies Ford’s summary judgment motion on the
failure-to-warn claim.
II.
Ford’s Motion as to Punitive Damages (ECF No. 53)
Plaintiffs seek punitive damages under O.C.G.A. § 51-12-5.1,
which provides that punitive damages may only be awarded “in such
tort actions in which it is proven by clear and convincing evidence
that the defendant’s actions showed willful misconduct, malice,
fraud, wantonness, oppression, or that entire want of care which
would
raise
the
presumption
of
conscious
consequences.” O.C.G.A. § 51-12-5.1(b).
indifference
to
“Conscious indifference
to consequences involves an intentional disregard of the rights of
another, knowingly or wilfully disregarding such rights.” Atl.
Star Foods, LLC v. Burwell, 889 S.E.2d 202, 207 (Ga. Ct. App. 2023)
(quoting Wardlaw v. Ivey, 676 S.E.2d 858, 861-62 (Ga. Ct. App.
2009)).
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Ford argues that insufficient evidence exists from which a
jury could find that punitive damages are authorized. 3
Ford does
not dispute that its engineers completed an enhanced roof strength
project for Super Duty trucks in 2006 (sixteen years before the
Millses’ crash and several years before their 2015 truck was
manufactured) and developed a design for a significantly stronger
roof.
But Ford maintains that based on its testing and research,
most head and neck injuries in rollover crashes happen before the
roof is deformed, so a stronger roof would not prevent those types
of injuries.
Ford claims it did not know of a significant risk
that roof deformation could cause injuries like thoracic and
positional asphyxia.
Plaintiffs
presented
evidence,
however,
from
which
a
reasonable juror could find:
? Ford has known for decades that it is important to maintain
occupant survival space in the event of a rollover crash.
? Roof strength is a predictor of roof intrusion severity
during a rollover crash; a weaker roof correlates with more
severe roof intrusion.
? Roof intrusion due to a rollover crash can result in
injuries to a vehicle occupant’s head, neck, chest, and
Ford also argued that punitive damages are not allowed because Georgia
law provides that only one punitive damages award “may be recovered . . .
from a defendant for any act or omission if the cause of action arises
from product liability.” O.C.G.A. § 51-12-5.1(e)(1). In the State Court
of Gwinnett County, a jury awarded punitive damages against Ford in a
Ford F-250 roof design case, but the Georgia Court of Appeals vacated
the punitive damages award. Ford Motor Co. v. Hill, No. A24A0657, 2024
WL 4646890, at *9 (Ga. Ct. App. Nov. 1, 2024). Given that the punitive
damages award in Hill was vacated, the Court finds that O.C.G.A. § 5112-5.1(e)(1) does not bar an award of punitive damages here.
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abdomen. There is a statistically significant relationship
between greater roof intrusion and more severe occupant
injuries.
? Positional asphyxiation can occur when occupant space is
restricted, such as when a roof collapses and compresses
an occupant’s chest. In this case, when witnesses found
Mr. and Mrs. Mills, they were upside down and folded in
half with their chests pressed against their thighs, and
such a position can cause breathing difficulties.
? Federal Motor Vehicle Safety Standard 216 suggests a
minimum standard for roof crush resistance, but the roofs
of the 1999-2016 F-250 Super Duty trucks did not meet that
minimum standard.
? The 1999-2016 F-250 Super Duty trucks did not meet Ford’s
internal roof strength goal.
? Tests like static roof crush tests, drop tests, and dolly
rollover tests are necessary to test roof performance, but
Ford did not do any physical roof strength testing for the
1999-2016 Super Duty trucks, including the 2015 F-250 Crew
Cab Super Duty model.
? Ford’s engineers completed an enhanced roof strength
project for Super Duty trucks in 2006, and they designed a
significantly stronger roof, but Ford decided not to use
the enhanced design.
The Court understands that Ford’s experts opine that there is
no causal relationship between roof strength, roof deformation,
and injury causation.
A jury could believe that evidence and
conclude that Ford did not knowingly disregard the rights of
individuals riding in its vehicles.
But if Plaintiffs’ evidence
is believed, then the jury could find that there were significant
risks to occupant safety in the event of a roof intrusion during
a rollover crash and that Ford intentionally disregarded those
risks even though it knew that a stronger roof could reduce
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occupant injuries.
Accordingly, the Court finds that genuine fact
disputes exist on whether Ford’s conduct would authorize an award
of punitive damages.
CONCLUSION
For the reasons set forth above, Ford’s summary judgment
motion on the substantive claims (ECF No. 52) is moot as to claims
for the Millses’ pre-impact pain and suffering and for a defect in
the truck’s restraint system because Plaintiffs do not assert such
claims in this action.
The motion is denied as to Plaintiffs’
claim for Mrs. Mills’s pain and suffering, Plaintiffs’ claim that
Mrs.
Mills
died
failure-to-warn
of
positional
claims.
asphyxiation,
Ford’s
summary
and
judgment
Plaintiffs’
motion
on
Plaintiffs’ claim for punitive damages (ECF No. 53) is also denied.
IT IS SO ORDERED, this 5th day of November, 2024.
S/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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