COA resurrects lawsuit against Ford Motor Co.

Although an expert did run additional tests after the discovery deadline, the Indiana Court of Appeals found the wholesale exclusion of his testimony was too severe and is allowing a lawsuit against Ford Motor Co. to continue.

Mechanical engineer David Zedonis was enlisted to examine the throttle assembly from a 2005 Mercury Monterey following a deadly car crash. Karen Roush, driving the Monterey had failed to stop at a red light. She was killed and Kolby and Taylor O’Banion were severely injured.

The plaintiffs sued Ford Motor Co., alleging Roush’s vehicle had a defective throttle assembly which cased the car to accelerate uncontrollably through the intersection. Zedonis supported that argument, concluding the worn and fraying condition of the throttle cable on the Monterey represented an unreasonably dangerous defect.

During a second deposition, Zedonis told Ford attorneys he had conducted additional testing on the throttle cable since the first deposition. Specifically, he had measured the cable after it had been sealed in an evidence bag.

Ford then filed a supplement to its motion to exclude Zedonis’ testimony. The car maker asserted the engineer violated Indiana Trial Rule 26(E)(1)(b) by examining the throttle cable and conducting tests after the discovery deadline.

The Grant Superior Court issued an order excluding all of Zedonis’ testimony and subsequently granted Ford’s motion for summary judgment.

In Kolby O'Banion, Taylor O'Banion, Tim O'Banion, and Kelly O'Banion, Michael R. Roush, as Executor of the Estate of Karen L. Roush, Deceased, and Indiana Farm Bureau Insurance Co. as Subrogee of Karen Roush, Deceased. v. Ford Motor Company, 27A04-1411-PL-531, the Court of Appeals reversed.
 
The unanimous panel ruled the exclusion of Zedonis’ testimony was “too draconian a punishment” in relation to the alleged wrongdoing. In particular, the court noted Ford had failed to adequately demonstrate how it was prejudiced especially since the additional testing weakened the plaintiffs’ case.

 “This was not a situation in which an expert was disclosed for the first time shortly before trial, or where an expert devised entirely new theories or opinions shortly before trial,” Judge Michael Barnes wrote for the court. “Even if Zedonis’s additional testing had led him to develop new theories, a more appropriate remedy for these late disclosures would be to exclude testimony related to such testing and theories, not complete exclusion of all his testimony.”