(Los Angeles County Super. Ct. No. LC069992) APPEAL from a judgment of the Superior Court of Los Angeles County, Robert H. O'Brien, Judge. Affirmed.
The opinion of the court was delivered by: Perluss, P. J.
CERTIFIED FOR PUBLICATION
Sukhsagar Pannu suffered a severe spinal injury, resulting in quadriplegia, when his Land Rover Discovery (Series 1) sport utility vehicle rolled over following a chain of collisions on the 118 Freeway near Simi Valley. Pannu sued Land Rover North America, Inc., Jaguar Land Rover North America, LLC and Terry York Motor Cars, Ltd., doing business as Land Rover Encino (collectively Land Rover) alleging claims, among others, for strict liability based on defective design.
Following a bench trial, the court entered a judgment for $21,654,000 against Land Rover, finding stability and roof defects in the Discovery had caused Pannu's injury. On appeal Land Rover contends a new trial is warranted because the trial court erred as a matter of law in applying the "consumer expectation" test for product liability, misapplied the alternative "risk-benefit" test and abused its discretion in excluding certain evidence proffered by Land Rover. Land Rover also contends the court's ruling was not supported by substantial evidence because no skid marks were found at the accident site, evidence it asserts necessarily must have been present had the rollover been caused by the alleged stability defect. We affirm.
factual and procedural background 1. The Accident and Pannu's Injury
On December 14, 2003 Pannu was driving his 1998 Discovery westbound on the 118 Freeway, travelling about 65 miles per hour. Although a light mist had started to fall, the road was dry. Bret Lusis, a teenager driving an Acura Legend at about 75 miles per hour, approached Pannu's vehicle from the rear on the driver's side and collided with the Discovery.*fn1 The collision forced the Discovery across the freeway toward the far right lane, where it collided with a Chevy Blazer driven by David Beres. Beres was forced off the shoulder and up the embankment adjacent to the freeway. As he steered the Blazer up the embankment, Beres saw the Discovery rolling over several times along the right shoulder of the freeway. The Discovery came to a stop on its roof, which was crushed.
Pannu suffered a bilateral facet dislocation of the C-6 and C-7 vertebrae, resulting in quadriplegia, as well as a fracture of the fifth spinous process and a teardrop fracture of the C-7 vertebra. At the time of the accident Pannu was 47 years old and physically fit; he was an active runner and field hockey player. He had a college degree, was married with three children and owned two 7-Eleven stores and two Subway stores he and his wife personally managed. Pannu also managed two 7-Eleven stores owned by his parents. He worked eight to 10 hours a day, seven days a week.
As a result of his injuries Pannu is paralyzed below his chest, has limited mobility or dexterity of his arms and hands, cannot drive or groom himself and suffers from spasms, fevers, urinary tract infections, pressure sores, incontinence and constant pain. He requires the daily care of an attendant who dresses him, cares for his medical needs and drives him to his stores. Although he visits one store a day, he is no longer involved in the personal management of his family's stores. After the accident, Pannu's older son abandoned his studies at medical school to care for his father and the family stores. Pannu's daughters attend local colleges in order to be close to their father.*fn2
According to a forensic economist who evaluated his lost earning capacity, Pannu's post-disability work life expectancy is only one to six years due to his deteriorating medical condition and his inability to perform the necessary functions of most jobs. During those years he will be able to maintain about 19 percent of the original open market value of his pre-accident earning capacity. In essence, he is incapable of contributing to the value of his businesses, and his earning capacity is limited to a return on his pre-accident investment in the family stores.
2. The Alleged Stability Defect a. Pannu's evidence
California Highway Patrol Officer Diane Nunes investigated the accident. By the time Officer Nunes arrived at the scene, the light mist had turned to rain. Using a roll meter to estimate distances, she measured several points of physical evidence, including a scuff mark on the center divider she attributed to the Acura hitting the divider after colliding with the Discovery; tire marks in the dirt of the embankment she attributed to the Blazer running up the embankment after colliding with the Discovery; a shallow, foot-long scrape on the shoulder adjacent to the far right lane; and a scrape and green paint transfer within the far right lane of the roadway, 20 feet in length and surrounded by broken glass, she attributed to the Discovery sliding on its roof near the end of its roll. She observed no tire marks and reported no other gouges or scrapes in the vicinity.
Based on Officer Nunes's measurements and observations, his inspection of the Discovery and his 2007 visit to the accident site, Ted Kobayashi, Pannu's accident reconstruction expert, opined the Discovery rolled because of friction between the tire and the roadway. Kobayashi asserted the impacts between the Discovery and the Acura and the Discovery and the Blazer were insufficient to cause the Discovery to roll and, in the absence of a tripping mechanism, he concluded the vehicle rolled as a result of a tire slip. Explaining why the roll occurred, he posited that Pannu began a series of five rapid steering maneuvers in an attempt to control his vehicle after it was struck by the Acura. The first maneuvers came in a failed effort to avoid colliding with the Blazer in the far right lane. The collision between the Discovery and the Blazer sent the Blazer to the right toward the embankment, while the Discovery rebounded to the left. Additional steering inputs by Pannu caused the Discovery to yaw. The resulting tire friction caused the left side wheels to lift from the ground, and the vehicle rolled three and a half times before coming to rest on its roof.*fn3
In support of Kobayashi's reconstruction, Pannu presented another expert, Ed Heitzman, who had devised a protocol to test vehicles for stability. Using a comparable production Discovery, Heitzman equipped it with outriggers to prevent rollover and a steering mechanism to replicate steering inputs and drove it through a test course. Pursuant to the test protocol, the Discovery accelerated to a speed of 50 miles per hour, the speed Kobayashi estimated the Discovery was travelling after its collision with the Blazer, and the steering mechanism executed severe consecutive reverse steering inputs to simulate a driver attempting to avoid an object or collision. The test vehicle's wheels lifted when the steering mechanism executed consecutive left-right steering inputs of 165 degrees, comparable with the steering parameters suggested by Kobayashi.*fn4 Heitzman recorded the same results in subsequent tests with the same steering inputs. Testing whether the production Discovery could be modified slightly to improve rollover resistance, Heitzman added spacers to extend the track width by one and a half inches and utilized low-profile tires to lower the center of gravity by .44 inches.*fn5 The wheels of the modified Discovery did not lift up under equivalent steering inputs and resisted rollover when subjected to far more drastic steering inputs.
Pannu also called a stability and handling engineering expert, John Marcosky, who opined that, when a vehicle traveling on a smooth roadway rolls over as a result of steering input and not as a result of a tripping mechanism, the vehicle is defective. Under steering duress a vehicle should have sufficient rollover resistance to slide out rather than roll over.
b. Land Rover's reconstruction of the accident
Land Rover's reconstruction expert, Lee Carr, agreed with Pannu's experts the impacts between Pannu's vehicle and the Acura and Blazer were insufficient to cause the Discovery to roll over. According to Carr, however, the Discovery rolled not because of tire friction but because of a tripping mechanism. In other words, Carr concluded the roll was triggered when the right rear tire of the Discovery hit the asphalt curb of the shoulder after colliding with the Blazer.
Reconstructing the vehicle movements that led to the Discovery striking the curb, Carr postulated a series of movements and speeds just as had Kobayashi. Where Kobayashi accepted Officer Nunes's measurements, however, Carr determined she must have made several sizeable errors in locating the vehicle marks she described in her report. In particular, on his second visit to the site in October 2006, nearly three years after the accident, Carr located what he believed to be the scrape in the asphalt of the shoulder described by Nunes, approximately 90 feet west of the point measured by Nunes.*fn6 He also discovered a semi-circular gouge in the nearby curb of the shoulder at a distance he placed approximately 100 inches from the scrape, a measurement that correlated to the wheelbase of the Discovery. Based on these findings, Carr concluded the Discovery slid on the wet pavement after colliding with the Blazer and then rolled after striking the curb with its right rear wheel. Using data flowing from what he concluded was the trigger point of the roll, Carr postulated the Discovery struck the curb at such a speed and angle it executed a pirouette before coming down again on the curb (creating a corresponding dent on the vehicle's roof), as well as a portion of the adjacent embankment, and then rolled once more.*fn7
Carr was especially critical of Kobayashi's reconstruction based on his assertion that tire friction rolls always leave skid marks. The lack of evidence of any skid marks indicated to Carr that the Discovery necessarily rolled because of some triggering mechanism, most likely the curb, and did not roll as a result of severe steering inputs by Pannu.
Following his testimony, Carr was impeached by a witness who located and measured the distance between the curb gouge and the scrape described by Carr. According to the impeachment witness, the distance between the two marks was 160 inches, not the 100 inches described by Carr. Carr then retook the stand and admitted he had erred in his testimony and concurred the correct measurement was 160 inches. He did not explain how this error would affect his reconstruction of the accident.
3. The Alleged Roof Defect a. Pannu's evidence
As a result of the accident, the roof of the Discovery suffered 13 inches of plastic deformation at the A pillar on the driver's side. Elastic deformation, that is the extent of dynamic deformation during the rollover, ranged from 16 to 17 inches of intrusion into the occupant space. To measure the crush-resistance of the Discovery's roof, Pannu's expert, Brian Herbst, performed a drop test on a comparable production Discovery. Using factors gleaned from Kobayashi's reconstruction of the crash, the production Discovery was positioned upside down 18 inches above a load plate at a pitch and angle consistent with Kobayashi's estimation of the position of Pannu's vehicle at the moment of roof failure and then dropped. The roof of the production Discovery suffered 14 inches of deformation, substantially comparable to the damage suffered by Pannu's vehicle.
Having established the weak points of the roof structure, Herbst reinforced the roof pillars and roof bows of a second production Discovery with tubular sections of steel and strengthened some of the steel plating on the roof, integrating the additions into the existing support structure of the roof. As Herbst explained, he added approximately 109 pounds of steel tubing, sheet metal and rigid polyurethane foam filling at a cost of $116. The reinforced Discovery was then dropped from the same position as the first Discovery. This time, the roof deformation was limited to three inches at the A pillar, instead of the 16 to 17 inches of deformation suffered by the unreinforced Discovery. Assuming economies of scale and manufacturing, Herbst estimated the true cost of modifying the roof design of the Discovery as approximately $76 and the additional weight to be in the range of 72 pounds.
Pannu then called a medical expert, Joseph L. Burton, to describe his injury and opine as to its cause. According to Dr. Burton, Pannu suffered a bilateral facet dislocation of the C-6 and C-7 vertebrae, as well as a fracture of the fifth spinous process and a teardrop fracture of the C-7 vertebra. Dr. Burton opined that these injuries demonstrated that Pannu's neck was hyperflexed into his chest by the deforming roof (and corresponding loss of occupant space), which caused the spinal injury that paralyzed him.
Land Rover's defense of the alleged roof defect focused primarily on causation.*fn8 Land Rover's causation expert, Elizabeth Raphael, a medical doctor, testified Pannu's injury resulted not from hyperflexion of the neck but from axial loading on the spine resulting from Pannu's head, which was forced to the roof of the Discovery by centrifugal forces during the rollover, striking the ground (through the roof) in the milliseconds before roof deformation began. According to Dr. Raphael, Pannu's injury would have happened regardless of the strength of the roof. She cited studies in which testers had been able to replicate bilateral facet dislocation on cadaver necks only through axial loading caused by force impact and not through hyperflexion of the neck. She also cited as support for her opinion, over Pannu's objection, results obtained by the automobile industry in two crash test studies: an early 1980's series from General Motors using Chevy Malibu sedans (the Malibu test); and a 2000-2001 series from Ford using the Controlled Rollover Impact ...