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Gordon v. Nissan Motor Co.

January 29, 2009


APPEAL from a judgment of the Superior Court of Los Angeles County, Lois A. Smaltz, Judge. Reversed and remanded with directions. (Los Angeles County Super. Ct. No. YC048335).

The opinion of the court was delivered by: Kitching, J.



Plaintiff and appellant Scott Gordon sustained severe injuries when a Nissan Pathfinder he was driving rolled over. Gordon claims that the manufacturer of the vehicle, defendant and respondent Nissan Motor Co., Ltd., is liable for his injuries because the vehicle was defectively unstable. He also claims that the Pathfinder's roof was defective because it was not crashworthy, that is, it was not adequately designed to withstand a rollover.

The case was tried twice in the superior court. The first trial resulted in a mistrial. The second trial, which is the subject of this appeal, resulted in a verdict in Nissan's favor. Gordon elected not to pursue his roof defect claim at the first trial. Prior to the second trial, however, Gordon designated expert witnesses to testify about matters relating to that claim. By granting Nissan's motion to strike portions of Gordon's expert witness disclosure statement relating to the alleged defects in the design of the Pathfinder roof, the trial court effectively barred Gordon from presenting evidence on the issue.

The order granting Nissan's motion to strike was reversible error. Gordon should have been given an opportunity to present evidence regarding his roof defect claim. Further, in the unpublished portion of this opinion, we find that the superior court erroneously refused to give a jury instruction offered by Gordon relating to his instability claim. We thus reverse the judgment and remand the case to the superior court with directions to conduct a new trial on both of Gordon's claims.


1. The Accident

In the afternoon of June 14, 2003, Gordon was driving a 1990 Nissan Pathfinder accompanied by his friend Michael Slotnick. Gordon and Slotnick were traveling from Colorado to California. After stopping at a gas station, Gordon began driving on an on-ramp to Interstate Highway 15 in Nevada. Slotnick asked Gordon to check whether the rear driver's side window was closed. When Gordon turned to do so, he lost sight of the road and allowed the vehicle to veer partially onto the left shoulder of the road. Gordon turned the vehicle to the right, then, in order to avoid going off the right side of the road, turned the vehicle to the left again. The vehicle began to spin, then it rolled over. Gordon was not wearing his seatbelt. As a result of the accident, Gordon sustained spinal injuries and was rendered a paraplegic.

The parties and their respective experts dispute many facts relating to the accident. Nissan contends Gordon's vehicle was traveling 40-48 miles per hour when Gordon veered onto the left shoulder, and 20-24 miles per hour at the time of the rollover. Gordon claims that he was driving 29-39 miles per hour when the vehicle first left marks on the pavement and 18 miles per hour when the vehicle started to roll over. Nissan contends that when Gordon turned the vehicle to the left the second time, the vehicle began to travel sideways, then the right rear wheel dug into the asphalt, deeply gouging the pavement and causing the vehicle to roll over two times. Although Gordon concedes that the vehicle started sliding sideways when he made his second left turn, he contends that the right rear wheel only gouged into the pavement as it was rolling over, and that the vehicle only rolled over once.

2. The Allegations in Gordon's Complaint

In January 2004, Gordon commenced a lawsuit against Nissan for strict product liability and other causes of action.*fn2 Gordon's complaint alleged that the Pathfinder he was driving at the time of the accident was defectively designed because of its propensity to roll over. Gordon's complaint further alleged that the vehicle was defectively designed because its roof and other features did not adequately protect occupants in the event of a collision.

3. Gordon's Election Not to Pursue His Roof Defect Claim

Prior to the first trial, Gordon elected not to pursue his defective roof claim but instead to pursue only his vehicle stability claim. Nissan has characterized this election as an "admission" that Gordon's roof defect claim was meritless, and a "waiver" by Gordon of his right to pursue the claim. Because the heart of this dispute arises from the scope and effect of Gordon's election, we will state in detail the way it occurred.

A. The Deposition

At a deposition of one of Gordon's expert witnesses, the following colloquy took place between Nissan's counsel Mark Berry and Gordon's former counsel Daniel Dell'Osso:

"MR. BERRY: Before we go off the record, Mr. Dell'Osso, we spoke at a break about this scenario. It appears to me that I have experts that I don't need.

"MR. DELL'OSSO: Yes. The issue is whether you need experts to address the issue of roof crush and restraint performance; and as you know, having now completed all of plaintiff's experts, nobody's offering any opinions about roof performance or restraint performance other than, you know, [Gordon's expert, Carley C. Ward, Ph.D.] describing how the roof comes down to cause injury, so . . .

"MR. BERRY: Well, an alternative scenario.

"MR. DELL'OSSO: Right, right. Exactly. But that has not been articulated necessarily as an issue with the roof per se. So I think we agreed that I have no problem with you withdrawing your experts who were going to talk about roof crush and restraint.

"MR. BERRY: And those would be Mr. Cooper and Mr. Gratzinger; and based on our discussion and your comments just now, my intention would be to go ahead and withdraw them so that you don't need to depose them. I think we're through.

"MR. DELL'OSSO: Okay." B. The Motion in Limine

The second alleged admission by Gordon took place at a hearing on one of Nissan's motions in limine. Gordon took the position that his injuries could have been more severe had he been wearing a seat belt during the accident. His expert, Dr. Ward, conceded that Gordon would not have sustained the injuries he received had he been wearing a seatbelt. Dr. Ward further opined, however, that when a passenger wears a seatbelt during a rollover accident, there is a greater risk of a cervical injury.*fn3 Nissan argued that Gordon's injury were more severe because he was not wearing a seatbelt. In its motion, Nissan sought to preclude evidence allegedly supporting Gordon's position on this issue. At the hearing on the motion, the following exchange took place between the court and Gordon's counsel:

"THE COURT: . [My] inclination is to deny the motion and let the evidence come in as to the opinions of what would have ...

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