Parr, J. v. Ford Motor Company (memorandum)

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J-A21013-13 2014 PA Super 8 JOSEPH AND APRIL PARR, HUSBAND AND WIFE, INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS OF SAMANTHA PARR, Appellants v. FORD MOTOR COMPANY, McCAFFERTY FORD SALES, INC. d/b/a McCAFFERTY AUTO GROUP, McCAFFERTY FORD OF MECHANICSBURG, INC., AND McCAFFERTY FORD COMPANY, Appellees : : : : : : : : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2793 EDA 2012 Appeal from the Judgment Entered August 31, 2012, In the Court of Common Pleas of Philadelphia County, Civil Division, at No. 002893, December Term, 2009. BEFORE: SHOGAN, WECHT & COLVILLE,* JJ. OPINION BY SHOGAN, J.:FILED JANUARY 15, 2014 Plaintiffswife, individually and as parents and guardians of their minor daughter, Samantha Parr, appeal from the August 31, 2012 judgment of the Court of Common Pleas of Philadelphia County, which was entered following the -trial relief. Appellees are Defendants Ford Motor Company, McCafferty Ford Sales, Inc. doing business as __________________ *Judge Colville did not participate in the decision of this case. J-A21013-13 McCafferty Auto Group, McCafferty Ford of Mechanicsburg, Inc., and The Parrs sued Ford Motor Company and the Ford dealership that sold them their 2001 Ford Excursion, alleging th system were defectively designed under the crashworthiness doctrine of strict products liability, and asserting additional claims sounding in negligence. Amended Complaint, 8/26/11. The Parrs bought their vehicle as a foot embankment. Amended Complaint, 8/26/11, at ¶¶ 26 28; N.T., 3/8/12, at 30. Joseph Parr was driving at the time of the accident; his wife, April occupants of the vehicle. Amended Complaint, 8/26/11, at ¶¶ 20 25; N.T., 3/8/12, at 31. All passengers, who all wore their seatbelts, were injured; and Carilann Parr, sustained minor injuries. Amended Complaint, 8/26/11, at ¶¶ 20 25, 31. Margaret Parr, who sat in the second row, is not involved in this case, and her injuries were not identified in the amended complaint. Daughter Samantha, who was sitting in the third row on the passenger side, -2- J-A21013-13 sustained a fractured skull, broken collarbone, fractured eye orbital, a lacerated liver, and facial lacerations. Amended Complaint, 8/26/11, at ¶ 30. April Parr, sitting in the front passenger seat, sustained a spinal cord injury and was rendered a quadriplegic. Amended Complaint, 8/26/11, at ¶ rolled down the embankment. Amended Complaint, 8/26/11, at ¶¶ 28, 40. Emergency responders employed the jaws of life to extract April Parr from the Excursion; during that process, the roof and pillar structures of the vehicle were destroyed. N.T., 3/9/12 (Afternoon Session), at 35 38. The Ford automobile was destroyed. N.T., 3/15/12 (Morning Session), at 30 31. The Parrs filed a complaint on December 28, 2009, and an amended complaint on August 26, 2011. Trial in the matter commenced on March 6, 2012, and continued over the ensuing three weeks, culminating on March 23, 2012, with a defense verdict. The jury indicated on the verdict form that the Parrs did not prove: Ford and that there was an alternative, safer design that was practicable -3- J-A21013-13 and that there was an alternative, safer design that was practicable under the not reach the issues of causation or damages. The Parrs filed post-trial motions on March 29, 2012. Both parties filed briefs, and the trial court denied the motions on August 31, 2012, entering judgment in favor of Ford that day. This timely appeal followed on September 10, 2012, in which the Parrs challenge several pretrial the trial court and the Parrs complied with Pa.R.A.P. 1925. The Parrs raise the same four issues in this appeal that they identified in their Pa.R.A.P. 1925(b) statement, which are as follows: A. Whether the Trial Court committed an error of law and in Limine superseded by the National ich was Highway discredited and Traffic Safety B. Whether the Trial Court committed an error of law and in Limine No. 3 to preclude references to post-2001 NHTSA standards and rulemaking documents dated 2001 to present, on the basis that the Excursion was originally manufactured and sold in 2001? C. Whether the Trial Court abused its discretion No. 9 and altogether precluded evidence prepared by NHTSA, rollover fatalities involving the vehicles on the basis that the committed an error of law and in Limine the Parrs from offering statistical IIHS, FARS, and/or NASS as to 2001 Excursion and comparable Parrs were unable to prove that -4- J-A21013-13 the statistics derived from other rollover accidents that [sic] were virtually identical to the subject accident? D. Whether the Trial Court committed an error of law and otion in Limine No. 10 to preclude Ford from: (a) presenting and consequently filling the record with evidence that the 2001 Excursion was not preserved; and (b) obtaining a spoliation charge when Ford struction in rollover vehicles are injured in the same way? 8. We note initially that our Supreme Court adopted section 402A of the Restatement (Second) of Torts in Webb v. Zern, 220 A.2d 853 (1966). Section 402A states: § 402A Special Liability of Seller of Product for Physical Harm to User or Consumer (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and -5- J-A21013-13 (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.[1] RESTATEMENT (SECOND) OF TORTS, § 402A (1965).2 In order to prevail in such a product liability case, the plaintiff must establish: (1) that the product was defective; (2) that the defect existed when it left the hands of the defendant; and (3) that the defect caused the harm. Reott v. Asia Trend, Inc., 7 A.3d 830 (Pa. Super. 2010). A product is defective when it is lacking intended use or possessing any [element] that renders it unsafe for the Azzarello v. Black Brothers Company Inc., 391 A.2d 1020, 1027 (Pa. 1978). The crashworthiness doctrine most typically arises in the context of motor vehicle accidents. See, e.g., Raskin v. Ford Motor Co., 837 A.2d 518 (Pa. Super. 2003). It was first explicitly recognized as a specific subset of product liability law by this Court in Kupetz v. Deere & Co., Inc., 644 1 RESTATEMENT (SECOND) OF TORTS, § 402A, cmt. f. 2 The Pennsylvania Supreme Court granted allocatur in Tincher v. Omega Flex, Inc., 64 A.3d 626 (Pa. 2013), on March 26, 2013, to address whether Pennsylvania will continue to apply the law of strict products liability formulated in § 402A of the Restatement (Second) of Torts or will adopt the analysis of §§ 1 and 2 of the Restatement (Third). The Third Circuit Court of Appeals has predicted that the Pennsylvania Supreme Court, if confronted with the question, would adopt the Restatement (Third). Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 40 (3d Cir. 2009). Unless and until our Supreme Court rules differently, however, § 402A of the Restatement (Second) is applicable. -6- J-A21013-13 A.2d 1 affords its passenger against personal injury or death as a result of a motor Id. at 1218. A crashworthiness claim requires proof of three elements. First, the plaintiff must prove that the design of the vehicle was defective, and that at the time of design an alternative, safer, and practicable design existed that could have been incorporated instead. Id. Second, the plaintiff must identify those injuries he or she would have received if the alternative design had instead been used. Id. Third, the plaintiff must demonstrate what injuries were attributable to the defective design. Id. In recognizing the crashworthiness doctrine in Kupetz, this Court relied upon our McCown v. International Harvester Co., 463 Pa. 13, 342 A.2d 381 (1975), which adopted the principle tenet of the crashworthiness doctrine, i.e., manufacturers are strictly liable for defects that do not cause the accident but nevertheless cause an increase in the severity of injuries that would have occurred without the defect. Gaudio v. Ford Motor Company, 976 A.2d 524, 532 (Pa. Super. 2009). The parties herein differed regarding how the injuries to the Parrs occurred. The Parrs asserted that as the Excursion rolled down the passenger side of the vehicle crushed into the passenger compartment. Amended Complaint, 8/26/11, at ¶ 27, 28. In support, the Parrs noted that the three occupants on the passenger side of the vehicle sustained Excursion incurred minor injuries. -7- J-A21013-13 down, centrifugal force pulled passengers out of their seats and pushed their (Morning Session), at 36 contact with the roof when the roof struck the ground as the vehicle rolled over; as her head came to an abrupt halt, her torso continued to move, causing her to break her neck. Id. This phenomenon is known as torso augmentation. Id. at 38. Mr. Michael Leigh, an expert for Ford whom the Parrs called on crossApril Parr sustained significant injuries compared to Joseph Parr, as follows: Q. Well, they [Joseph and April] both rolled over, they both were subjected to centrifugal force. But if you looked at that roof, the roof over April Parr had what we call crush or deformation of a total residual of 11 inches; is that right? A. I know that the roof was significantly deformed on that side of the vehicle. And that means that that part of the roof sustained a significant impact. And if the other side of the roof was not deformed like that, that means that side of the roof did not sustain a significant impact. And if the roof over Mr. Parr did not sustain a significant But I would not be surprised at all that his head did touch centrifugal force, his head is going to touch the roof, as well. He was just fortunate enough not to experience the impact that, unfortunately, his wife experienced. -8- J-A21013-13 Q. of crush or deformation? right? It just came from centrifugal force; A. The deformation is an indication of the severity of the impact that that part of the roof experienced. The injury that Mrs. Parr received is an indication of the severity of the impact that she experienced being in the same place as that part of the roof. So her injury and the deformation All you can say is that the deformation and the injury are N.T., 3/7/12 (Morning Session), at 39 41. evidentiary rulings. A motion in limine is used before trial to obtain a ruling on the admissibility of evidence. Northeast Fence & Iron Works, Inc. v. Murphy Quigley Co., Inc. trial judge the opportunity to weigh potentially prejudicial and harmful evidence before the trial occurs, thus preventing the evidence from ever Commonwealth v. Reese, 31 A.3d 708, 715 (Pa. Super. 2011) (en banc in limine Id. Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and we will not reverse the Commonwealth Financial Systems, Inc. v. Smith, 15 A.3d -9- J-A21013-13 492, 496 (Pa. Super. 2011) (citing Stumpf v. Nye, 950 A.2d 1032, 1035 may not be found merely because an appellate court might have reached a different conclusion, but requires a manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or Grady v. Frito Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1046 (Pa. 2003). Keystone Dedicated Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1, evidentiary ruling must not only be erroneous, but also harmful or prejudicial Winschel v. Jain, 925 A.2d 782, 794 (Pa. Super. 2007) (citing McClain v. Welker, 761 A.2d 155, 156 (Pa. Super. 2000)). in limine numbers one, three, and nine all dealt in limine number one sought to preclude Ford from presenting evidence of its diving/torso augmentation theory, which the Parrs asserted was discredited and superseded by the National Highway Traffic Safety Administration (NHTSA Parrs assert Ford admitted that in 2001, comparable vehicles existed with much stronger roofs than that of the Excursion. Ford, however, defended on the basis that roof strength was irrelevant to its diving/torso augmentation theory, and that stronger roofs would not have lessened the chance of Mrs. -10- J-A21013-13 The Parrs asserted pretrial, at trial, and in their appellate brief as follows: was a heavily contested issue for years prior to 2001, in 2009, injuries such as those sustained by Mrs. Parr among belted occupants in rollover accidents. NHTSA based its finding upon extensive epidemiological studies from 2001-2009, and resultantly promulgated its Final Rule on Federal Motor Vehicle Safety Standard (FMVSS) No. 216 on May 12, 2009, which required more stringent roof-crush standards: Roof Crush as a Cause of Injury A number of commenters including GM, Ford, [and] Nissan[3] . . . stated that the statistical correlation . . . found between roof intrusion and injury does not establish a causal relationship between roof deformation and injury. . . . [T]he studies . . . merely suggest that there is a accidents that have significant roof/pillar deformation with other rollover accidents that have very little or no roof/pillar deformation, you are not comparing similar accidents with respect to roof-to-ground impact severity. Just the fact that two vehicles are in a rollover with greater than 2 quarter turns does not mean they are in the same or even similar of roof deformation is only an indication of the severity of the impact between the roof and the occurrence at the end of a rollover collision reveal 3 that linked roof intrusion and serious injury, and commented that a statistical correlation did not establish a causal relationship between the two. a statistical correlation does not in itself prove that a causal relationship -11- J-A21013-13 nothing regarding the relationship of roof deformation, roof strength, or roof strength-todeformation and injury severity are both independently associated with roof impact severity. or Vehicle Safety Standards; Roof Crush Resistance; Phase 74 Fed.Reg. 22348, 22378 22379 (final rule promulgated May 12, 2009) has explained: [Some] arguments appear to imply that any difference in roof intrusion must be due to a difference in impact severity rather than roof strength or design . . . . There are logical reasons to believe that a collapsing roof he nearly instantaneous impact velocity experienced when structures deform might cause serious injury. These types of injuries were documented . . . in a detailed investigation of 43 rollover crashes. The agency believes that the statistically significant relationship between roof intrusion and belted occupant injury . . . indicates not just a suggestion, but a probability that increasing roof strength reduces injuries. As noted, the Par in limine number one sought to preclude contending that after forty years of research, studies, tests, and experience, NHTSA specifically discredited this theory in FMVSS 216 Final Rule, and belted occupants in rollover motor vehicle accidents. In light of that finding, -12- J-A21013-13 the Parrs maintain, NHTSA amended the roof crush rule to require substantial increases in roof strength applicable to all consumer vehicles. preclude Ford from introducing evidence of diving and torso augmentation at trial. The trial court concluded that the Par lacking and stated: [U]pon review of the documentation provided to the Court to support their motion, notably, the 2009 Amendment to the FMVSS (Federal Motor Vehicle Safety Standard) although ent, failed to convince this Court that either of their arguments [was] meritorious. First, although the 2009 Amendment did cite statistical studies which found a correlation between roof crush and injury in rollover accidents, the NHTSA amendment conclusively determined that a causal relationship existed between roof crush and head and neck injury in rollover accidents, to the exclusion of torso augmentation, was not proven. Although a correlation was shown[,] it did not provi evidence showing that it was conclusive. As such, this Court denied their pre-trial motion which sought to preclude appellees appellants presented extensive expert testimony during trial on jury concluded that Ms. for the appellees. Trial Court Opinion, 3/1/13, at 4 5. Our review of FMVSS 216 Final Rule reveals that it did not categorically exclude diving/torso augmentation as a cause of head and neck -13- J-A21013-13 ation caused head and neck injuries, such as those sustained by Mrs. Parr, among belted occupants in rollover accidents, simply is not supported by the literature. While we have not found a Pennsylvania appellate case directly on point, we cite with approval Campbell v. Fawber, ___ F.Supp.2d ___, 2013 WL 1330153, (M.D. Pa. filed March 29, 2013).4 The Parrs acknowledge the Campbell, but they merely propose that the federal decision is not controlling. The Campbell Court considered this precise issue and rejected it out of hand. final rule categorically excluded torso augmentation or diving as a cause of head and neck injury in a rollover crash. To the contrary, the NH probabilistic. Furthermore, [the plaintiff] has shown nothing in study of roof crush injuries could prevent a party from presenting at trial evidence of an alternative explanation. 4 Kleban v. National Union Fire Insurance Co., 771 A.2d 39, 43 (Pa. Super. 2001), w state court. [Cellucci v. General Motors Corp., 676 A.2d 253, 255 n.1 (Pa. Super. 1996)] (citing Commonwealth v. Negri, 213 A.2d 670 (Pa. 1965), and Murtagh v. County of Berks NASDAQ OMX PHLX, Inc. v. PennMont Securities, 52 A.3d 296, 303 (Pa. Super. 2012); Werner v. Plater-Zyberk, 799 A.2d 776, 782 (Pa. Super. 2002) (same). -14- J-A21013-13 Id. at ___, 2013 WL 1330153 at 14 15 (emphasis added).5 The trial court in limine number one and permitted Ford to put its diving/torso augmentation theory before the jury. The Parrs next contend the t motion in limine number three to preclude all references to NHTSA rulemaking documents after 2001 and particularly, NHTSA 216 Final Rule, on the basis that the 2001 Excursion was designed, manufactured, and sold in 2 admit evidence of these rulemaking documents to establish causation, to maintain that the trial court relied upon precedent concerning whether this may 5 cause of injury is entitled to deference under Chevron v. National Resources Defense Council, 467 U.S. 837 (1984). In Chevron, the reasonable interpretation of the statute that it administers. Id. at 842 843. This claim, as well, was addressed by the Campbell Court, and we concur with its conclusion, as follows: argument that the NHTSA conclusively determined that roof crush is the exclusive cause of head and neck injury in rollover collisions and, therefore, it is unnecessary to address [the] Chevron argument. Campbell, ___ F.Supp.2d at ___, 2013 WL 1330153 at 22. -15- J-A21013-13 have relevance to notice or negligence, but it has no relevance to the issue of causation or impeachment. Ford responds that the trial court acted within its discretion in excluding reference to post-2001 rulemaking activities that culminated in FMVSS 216 Final Rule. It suggests that evidence regarding a post- manufacture regulatory standard is irrelevant because it does not go to plant in 2001. Ford maintains that the documents also do not prove and that issue was not in dispute because Ford admitted it at trial. Thus, Ford argues that any marginal relevance was far outweighed by the likelihood that evidence of inapplicable government standards was likely to because the Parrs presented some of the evidence that they now assert was wrongly excluded. In defending its decision to preclude references to NHTSA rulemaking documents after 2001, the trial court stated the following: Pennsylvania law requires that a plaintiff prove that an allegedly defective vehicle was defective at the time of manufacture. Duchess v. Langston Corporation, 769 A.2d 1131, 1142 (Pa. 2001). However appellants sought to introduce NHTSA standards and rulemaking subsequent to the year the subject that the relevant time frame for assessing the design and/or defectiveness of the subject 2001 Ford Excursion was up to and -16- J-A21013-13 including the year it was manufactured, 2001. The standards that were in place at that time (2001) were what was relevant to tor Company. At trial, appellees were permitted and did introduce evidence of NHTSA standards that existed up to the year 2001. been permitted to introduce NHTSA standards and rulemaking subsequent to the year 2001 without merit and accordingly Trial Court Opinion, 3/1/13, at 5 6. We note initially that the Parrs list fifteen studies and publications, which they assert were erroneously excluded by the trial court. See the 37. They fail, however, to cite to any place in the record March 5, 2012, and filed March 27, 2012, relating to Ford in limine record where the trial court declined admission of the studies hampers our ability to address the issue as to all of the documents.6 Thus, we will 6 Indeed, the Parrs failed to include any notes of testimony in the record certified to us on appeal, and this Court was compelled to seek supplementation of the record through our Prothonotary. As we stated in Commonwealth v. Preston, 904 A.2d 1, 6 8 (Pa. Super. 2006) (en banc) (some citations omitted): The fundamental tool for appellate review is the official record of the events that occurred in the trial court. Commonwealth v. Williams, 552 Pa. 451, 715 A.2d 1101, 1103 (1998). To ensure that an appellate court has the necessary records, the -17- J-A21013-13 reference to the documents related to FMVSS 216 Final Rule. in limine number three to the extent it sought to exclude reliance on NHTSA standards and rulemaking is undisputed that roof-strength standards in FMVSS 216 Final Rule did not Pennsylvania Rules of Appellate Procedure provide for the transmission of a certified record from the trial court to the appellate court. Id. The law of Pennsylvania is well settled that matters which are not of record cannot be considered on appeal. Commonwealth v. Bracalielly, 540 Pa. 460, 658 A.2d 755, 763 (1995). Thus, an appellate court is limited to considering only the materials in the certified record when resolving an issue. Commonwealth v. Walker, 878 A.2d 887, 888 (Pa. Super. 2005). In this regard, our law is the same in both the civil and criminal context because, under the Pennsylvania Rules of Appellate Procedure, any document which is not part of the officially certified record is deemed non-existent a deficiency which cannot be remedied merely by including copies of the missing documents in a brief or in the reproduced record. Commonwealth v. Kennedy, 868 A.2d 582, 593 (Pa. Super. 2005). * * * It is not proper for either the Pennsylvania Supreme Court or the Superior Court to order transcripts nor is it the responsibility of the appellate courts to obtain the necessary transcripts. In the absence of specific indicators that a relevant document exists but was inadvertently omitted from the certified record, it is not incumbent upon this Court to expend time, effort and manpower scouting around judicial chambers or the various prothono purpose of unearthing transcripts . . . [that] never were formally introduced and made part of the certified record. -18- J-A21013-13 apply to the Excursion because the vehicle, at 8,800 pounds, is beyond the N.T., 3/7/12 (Morning Session), at 53, 83. The rulemaking documents Ford sought to exclude in its motion in limine number three did not issue until years after 2001; they dated from 2005, when the NHTSA issued notice of proposed rulemaking to update FMVSS 216,7 to 2009, when NHTSA issued the Final Rule. NPRM, Resistance, 70 Fed.Reg. 49223 (proposed Aug. 23, 2005); FMVSS 216 Final Rule. Moreover, even after 2009, the updated standard did not apply to the Excursion. The FMVSS Final Rule does not apply to vehicles of the (i.e., between 6,000 and 10,000 pounds) until September 1, 2016. at FMVSS 216 Final Rule, 74 Fed.Reg. in Limine No. 3, Exhibit D. As we have stated, it is well settled that the decision to admit or exclude evidence is vested in the sound discretion of the trial court and will not be overturned on appeal absent an abuse of that discretion. Keystone, 77 A.3d at 11. Additionally, to be admissible, evidence must be relevant. Rule 402, 42 Pa.Cons.Stat.Ann. Relevant evidence is defined as 7 adopted standard, it was an open docket to receive comments regarding the in Limine No. 3, Exhibit B (docket entry 92). -19- J-A21013-13 fact that is of consequence to the determination of the action more probable or les 42 Pa.Cons.Stat.Ann. (emphasis added). Even if evidence is relevant, it may be excluded if its probative value is outweighed by, inter alia, the danger of unfair prejudice arising from its presentation to the fact-finder. Pa.R.E., Rule 403, 42 relevant evidence means a tendency to suggest decision on an Commonwealth v. Wright function of the trial court is to balance the alleged prejudicial effect of the evidence against its probative value and it is not for Commonwealth v. Parker grounds, 591 Pa. 526, 919 A.2d 943 (2007). Lykes v. Yates, 77 A.3d 27, 33 (Pa. Super. 2013). We conclude the trial court correctly found that the standard enacted in 2009, which is not applicable until 2016, cannot form the basis for liability in this case, where the vehicle in question was manufactured in 2001. Thus, evidence of the FMVSS 216 Final Rule in 2009 and rulemaking activities from 2005 and 2008 leading up to the amendment properly were excluded. The Parrs were compelled to prove that the Excursion was defective at the time it was made. See Duchess v. Langston, 769 A.2d 1131, 1142 (Pa. 2001) of distr Final Rule and rulemaking activities leading up to the amendment properly in limine number three. See Dunkle v. West Penn Power Co., 583 A.2d 814, 816 -20- J-A21013-13 product, safety standards promulgated after the sale of the product are irrelevant and inadmissible to show that the product was defectively designe See also Oberreuter v. Orion Industries, Inc., 398 N.W.2d 206 (Iowa App. 1986); Aller v. Rodgers Machinery Manufacturing Co., Inc., 268 N.W.2d 830 (Iowa 1978); Rice v. James Hanrahan & Sons, 482 N.E.2d 833 (Mass. 1985); Cover v. Cohen, 461 N.E.2d 864 (N.Y. 1984); Turner v. General Motors Corp., 584 S.W.2d 844 (Tex. 1979); Majdic v. Cincinnati Machine Co., 537 A.2d 334 (Pa. Super. 1988). -2001 rulemaking evidence was inadmissible to prove a defect, it was admissible to prove causation. As noted, we have determined that the FMVSS 216 Final Rule and related documents demonstrated that roof crush is one of several potential causes of injury in rollover accidents. The record reveals that Ford readily admitted that fact. N.T., 3/7/12 (Morning Session), at 33 34, 97; N.T., 3/19/12 (Morning Session), at 64 71; N.T., 3/19/12 (Afternoon Session), at 27 28. Thus, the documents in question did not make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Pa.R.E. 401. -21- J-A21013-13 in limine number three, the Parr before the jury. See, e.g., N.T., 3/7/12 (Morning Session), at 63; N.T., 3/19/12 (Afternoon Session), at 33 36. Indeed, during his closing is business about Even if the trial court erred in proscribing the evidence, any error in this respect was ha evidentiary matter to constitute reversible error requiring the grant of a new trial, the ruling must be both legally erroneous and harmful to the complaining party. Winschel, 925 A.2d at 794. If the error in the admission of the evidence had no effect on a verdict, the error does not require the grant of a new trial. Herein, the Parrs assert that the admission of the documents would have proven causation. As noted, however, the jury never reached the issue of causation. Jury Verdict Form, 3/23/12. in limine number three was cumulative to the myriad references by the Parrs to the NHTSA and roof crush causation. See, e.g., N.T., 3/7/12 (Morning Session), at 41 42, 57 87; N.T., 3/7/12 (Afternoon Session), at 21 24, 102 104, 123 132, 138 143; N.T., 3/8/12 (Morning Session), at 35 87, 104;. N.T., -22- J-A21013-13 3/8/12 (Afternoon Session), at 77; N.T., 3/15/12 (Afternoon Session), at 44 45; N.T., 3/19/12 (Morning Session), at 27 29; N.T., 3/19/12 (Afternoon Session), at 29 36, 72 83; N.T., 3/20/12 (Afternoon Session), at in limine number three. in limine number nine, the Parrs contend that they should have been permitted to present statistical evidence prepared by NHTSA, the Insurance Institute for Fatality court abused its discretion in granting Ford to preclude post-2001 epidemiological motion in limine number nine studies and publications that demonstrated that 2001 2004 Ford Excursions had rollover driver and utility vehicles, on the basis that the Parrs could not satisfy the Ford contends the trial court acted within its discretion in excluding the statistical studies because they involved a wide variety of accidents, injuries, and vehicles. Ford asserts that because the Parrs failed to show the -23- J-A21013-13 requisite similarity to the instant accident, the studies, and the statistics upon which Pa.R.E. 401.8 they relied were not relevant within the meaning of Ford also avers that the studies were inadmissible hearsay and highly prejudicial. Finally, Ford suggests that notwithstanding the trial statistics to the jury. The trial court stated the following regarding this issue: Appellants next argue that this court erred in granting references during trial to statistical evidence of other dissimilar accidents. Both parties had an opportunity to argue this Motion in Limine before this Court prior to trial. Appellants contend that this Court committed an error of law and/or abused its discretion uded Plaintiffs/appellants from offering statistical evidence prepared by NHTSA, The Insurance Institute for Highway Safety (IIHS), the Fatal Accident Reporting System, and/or the National Automotive Sampling System as to rollover fatalities involving the subject vehicle and comparable vehicles on the basis that Appellees were unable to prove that the statistics derived from other rollover accidents 8 Pa.R.E. Rule 401(a) provides as follows: Rule 401. Test for Relevant Evidence Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence . . . . While noting the rule is identical to F.R.E. 401, the comment to the Rule 401 ence has a tendency to make a given fact more or less probable is to be determined by the court in the light of reason, experience, scientific principles and the other testimony offered in -24- J-A21013-13 that [sic] were virtually identical to the one in the instant As [A]ppellants acknowledge, it was their burden, as the satisfaction, the similarity between other accidents and the subject accident before this evidence could have been admitted for any purpose. Hutchinson v. Penske Truck Leasing Co., 876 A. 2d 978 (Pa. Super. 2005). During argument before this Court, Appellants failed to show the required similarity between the subject accident and those contained within the statistical compilations. Notably, the IIHS reports, unlike the subject accident, involved fatalities. Appellants could not establish that the facts surrounding the accidents that comprised the statistical analysis they wished to introduce before the jury were substantially similar to those in the subject accident. As it was Evidence. Trial Court Opinion, 3/1/13, at 6 7. that various expert reports and the relevant statistical studies and compilations upon which those reports relied were substantially similar to in limine number nine and circumscribed the evidence. The Parrs were precluded from referencing (1) data compiled by IIHS, which contained fatality facts obtained from the FARS database; (2) IIHS evidence that compared mortality rates of Ford Excursions in rollover accidents to other large or extra-large sport utility vehicles from other manufacturers involved in rollover accidents; and (3) IIHS documents comparing roof strengths of various makes and models during rollover accidents. This Court has stated: -25- J-A21013-13 Evidence of prior accidents involving the same instrumentality is generally relevant to show that a defect or dangerous condition existed or that the defendant had knowledge of the defect. However, this evidence is admissible only if the prior accident is sufficiently similar to the incident involving the plaintiff which occurred under sufficiently similar circumstances. The burden is on the party introducing the evidence to establish this similarity before the evidence is admitted. Lockley v. CSX Transp., Inc., 5 A.3d 383, 395 (Pa. Super. 2010) (citation omitted). evidence of prior accidents involves substantially, similar circumstances will depend on the underlying theory of the case Bitler v. A.O. Smith Corp., 400 accidents is substantially similar to the accident at issue in a particular case, then that evidence will assist the trier of fact by making the existence of a fact in dispute more or less probable, and the greater the degree of similarity the more relevant the Id. -specific inquiry that depends largely on the theory of the underlying defect in a Id. Accordingly, a wide degree of latitude is vested in the trial court in determining whether evidence is substantially similar and should be admitted. Lockley, 5 A.3d at 395. Blumer v. Ford Motor Co., 20 A.3d 1222, 1228 1229 (Pa. Super. 2011). Statistical compilations of accidents and studies citing statistical compilations of accidents must satisfy the substantial similarity test. Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978 (Pa. Super. 2005). In Penske appellant] presented no single other accident to the jury but rather -26- J-A21013-13 Id on does, that the underlying nature of this evidence of other accidents was transformed, merely because it was compiled, analyzed, and summarized to generate Id. at 985-986. It is clear that the Parrs were compelled to satisfy the substantial similarity test, and because they did not, the studies properly were excluded. We agree with the trial court that the studies in question did not meet the substantial similarity test. For example, the facts from the FARS database referenced by the Parrs included passenger vehicle deaths in frontal impacts and side impacts as well as rollovers, some involving single vehicle accidents and others occurring in multiBrief at 41. Other publications and data the Parrs sought to admit reported mortality rates, roadway design, and roof strength evaluations of large luxury cars, large family cars, small pick-up trucks, with little or no mention of the specifics of each accident cited therein. Id. at 42, 45. See, e.g., Vol. The publications involved fatalities, not neck injuries, did not necessarily relate to Ford Excursions, and failed to account for seat belt usage and other variables. -27- J-A21013-13 The Parrs did not present evidence as to the substantial similarity of the reports to the Excursion, the accident, or the circumstances in this case. Thus, none of the information in the reports was shown to be directly relevant to the Excursion and to the accident at issue. The Parrs had the burden to prove substantial similarity, and they failed to carry the burden. Penske.9, 10 The issue lacks merit. l issue relates to whether the trial court committed an in limine number ten to preclude Ford from: (a) presenting evidence that the 2001 Excursion was not preserved; and (b) obtaining a spoliation charge. The Parrs contend the trial court erred in issuing a spoliation charge to the jury and in permitting extensive introduction of spoliation evidence where Ford was unable to demonstrate any prejudice that resulted from the destruction of the 2001 Excursion. could infer that the Excursion contained evidence unfavorable to the Parrs 9 The Parrs fail to support their contention that epidemiological evidence is not subject to the substantial similarity test with reference to relevant case law. 10 in Limine No. 9, the trial court permitted the Parrs to crossatistics and studies. See, e.g., N.T., 3/8/12 (Morning Session), at 49 56 (use of NASS studies); N.T., 3/15/12 (Afternoon Session), at 42 48 (use of NASS studies); N.T., 3/16/12 (Morning Session), at 124 125 (FARS data); N.T., 3/19/12 (Morning Session), at 4 6, 17 19 (use of IIHS data, use of NASS studies). -28- J-A21013-13 to preserve the vehicle even though they had ample opportunity to do so after retaining counsel. Thus, Ford never had the chance to examine the impacted their analyses. Ford maintains that any error in this regard was harmless because the Parrs asserted that the excluded evidence would have aided their case on causation, but the jury did not reach causation in returning a defense verdict. Thus, Ford responds that the Parrs cannot show that the trial court committed an error of law that controlled the outcome of the case. The trial court resolved this issue as follows: This Court initially deferred ruling on the motion. However, prior to making a decision this Court did permit appellee, Ford, to introduce facts about the unavailability of the cause of the accident and the injuries sustained by the examination of appell opinions and conclusions, based upon the fact that the subject vehicle was not available for them to examine and inspect. Further, at trial the parties stipulated as to the facts surrounding the unavailability of the vehicle. Notably, appellants stipulated that two weeks after the accident and after hiring counsel, they released the vehicle to their insurance company who in turn sold the vehicle which was then destroyed. Appellants further stipulated that they did not attempt to locate the vehicle until after it had been destroyed and that appellees were not notified of legal action until after the vehicle was [destroyed]. -29- J-A21013-13 In light of the above stipulation and arguments and briefs of counsel, this Court denied appe -trial Motion to Preclude and accordingly allowed the jury to make whatever conclusions it deemed proper. Accordingly, this Court gave a permissive adverse inference instruction to the jury, instructing that it could, but was not required to, draw a negative inference against appellants from the destruction and thus absence of the subject vehicle. Clearly appellants, despite their hiring of counsel and their knowledge of their pursuit of a legal action resulting from the accident, transferred the subject vehicle out of their possession resulting in it being subsequently destroyed, thereby preventing appellees from having the vehicle inspected Trial Court Opinion, 3/1/13, at 7 8. alteration of evidence for pending or future litigation. Pyeritz v. Commonwealth been charged with spoliating evidence in that - Id. (citing Schroeder v. Commonwealth, Department of Transportation, 710 A.2d 23, 27 (Pa. 1998)) (footnotes omitted). This Court has stated: spoliation sanction, we must determine whether the court Mount Olivet Tabernacle Church v. Edwin L. Wiegand Division, 781 A.2d 1263, 1269 (Pa. Super. 2001) (citing Croydon Plastics Co. v. Lower Bucks Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. 1997) (recognizing that severity of such sanction, is vested in the sound discretion of the observation that a party who has notice that evidence is relevant to litigation and who proceeds to destroy evidence is more likely -30- J-A21013-13 to have been threatened by that evidence than is a party in the Mount Olivet, 781 A.2d at 1269 (quoting Nation Wide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214, 218 (1st Cir.1982)). Our courts have recognized accordingly that one potential remedy for the loss or destruction of evidence by the party controlling it is to allow the jury to apply its common sense See , 551 Pa. 243, 710 A.2d 23, 28 (1998). Although award of summary judgment against the offending party remains an option in some cases, its severity makes it an inappropriate remedy for all but the most egregious conduct. See Tenaglia v. Proctor & Gamble, Inc., 737 A.2d 3 judgment is not mandatory simply because the plaintiff bears To determine the appropriate sanction for spoliation, the trial court must weigh three factors:[11] (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future. Mount Olivet, 781 A.2d at 1269 70 (quoting Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994)). In this context, evaluation of the first consideration of two components, the extent of the offending and the presence or absence of bad faith. See Mt. Olivet, 781 A.2d at 1270. The duty prong, in turn, is established where: pending or likely; and (2) it is foreseeable that discarding the 11 While our review suggests the trial court has not explained its decision in light of the weight of these factors, the Parrs do not state their issue in such a manner, and we are able to evaluate the issue despite the lack of the trial -31- J-A21013-13 evidence would be prejudicial to the defendant 71. Id. at 1270 Creazzo v. Medtronic, Inc., 903 A.2d 24, 28 29 (Pa. Super. 2006). The record reveals that there is no dispute that the Parrs were responsible for the destruction of the Excursion, and thus were at fault. The stipulation concerning the destruction of the vehicle was as follows: Two days after the accident, on July 23, 2009, Mr. Parr took pictures of the subject Excursion while it was in storage at a nearby towing company. The Parrs retained [counsel] on August 4, 2009. On August 4, 2009, Mr. Parr released the Ford Excursion to Progressive Insurance Company. On August 27, 2009, [the Parrs] signed off on the title for the subject vehicle as a total loss. The Excursion was sold on September 21, 2009, and, thereafter, destroyed by the purchaser. [The Parrs] and their counsel did not attempt to locate the subject vehicle until October 9, 2009. [The Parrs] initiated this action by filing a complaint on January 5, 2010. No notice was given to Ford Motor Company or McCafferty Ford Sales of pending legal action prior to the date the vehicle was disposed of. No notice or opportunity to inspect the vehicle was given to Ford Motor Company or McCafferty Ford Sales prior to the date the vehicle was disposed of. N.T., 3/15/12 (Morning Session), at 30 31. -32- J-A21013-13 We examine the factors to determine whether the trial court properly in limine number ten and chose the appropriate sanction to impose. Clearly, the Parrs alone had the capacity to preserve the Excursion given the fact that they hired counsel six to seven weeks Mt. Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d 1263, 1271 (Pa. Super. 2001), because Mr. Parr took photographs of the vehicle two days after the 12 Multiple expert witnesses stated that their analyses would have been aided information about the rollover that might not be otherwise av 3/15/12 (Morning Session), at 57. Furthermore, on cross-examination Ford 12 Ford because their experts similarly did not examine the Excursion. While no Pennsylvania case has stated as much, we underscore our agreement with other jurisdictions that a spoliator cannot avoid sanctions by arguing Lord v. Nissan Motor Co., Ltd. ___ F.Supp.2d ___, 2004 WL 2905323 (D.Minn. 2004); see also Trull v. Volkswagen of America, Inc., 187 F.3d 88, 95 96 (1st Cir. 1999) subject vehicle). -33- J-A21013-13 (Afternoon Session), at 17. Ford expert Dr. Harry Lincoln Smith testified Id. at 96. Finally, the trial court had a range of sanctions from which to choose once it decided to impose one. Ford had requested that the trial court grant Although the award of summary judgment against an offending party remains an option in some cases, its severity makes it an inappropriate remedy for all but the most egregious conduct. See Tenaglia v. Proctor & Gamble, Inc. is not mandatory simply because the plaintiff bears some degree of fault for the f preclusion of evidence regarding an allegedly defective product is an extreme action reserved only for those instances where an entire product or the allegedly defective portion of a Mensch v. Bic Corp., 1992 WL 236965, 2 (E.D.Pa. 1992) (emphasis added); Woefel v. Murphy Ford Co., 487 A.2d 23 (Pa. Super. 1985). In the instant case, the trial court chose to charge the jury that it was permitted, although not required, to draw an adverse inference against the Parrs for destruction of the Excursion, which was the least severe of the -34- J-A21013-13 possible sanctions. See Schroeder, 710 A.2d at 28. The Parrs do not, and cannot, dispute that the permissive adverse inference instruction is a lesser sanction than outright dismissal or the grant of summary judgment. Schroeder See uction on the lesser sanction of an adverse inference instruction. Having concluded that the trial court did not abuse its discretion in any of the evidentiary rulings identified by the Parrs, and for the above stated reasons, the judgment in favor of Ford must be affirmed. Judgment affirmed. WECHT, J., files a Concurring and Dissenting Opinion. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/15/2014 -35-

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