Fifth Circuit bars 'misleading' ford video evidence.

Upholding a lower court's ruling for the plaintiff in a rollover case, the Fifth Circuit has held that the trial judge properly barred videotapes of crash tests performed by Ford and General Motors (GM). Although the tests resembled Ford's description of the accident in the case, they were not actual reenactments and could mislead jurors, the court concluded. (Muth v.Ford Motor Co., 461 F.3d 557 (5th Cir. 2006).)

Barry Muth was rendered quadriplegic when the 1996 Ford Crown Victoria he was a passenger in rolled over; its roof collapsed 12 to 15 inches on his side of the car. Muth sued Ford, alleging negligence and strict liability claims. He argued that a stronger roof would have prevented his injuries.

Ford contended that roof strength was not a factor in Muth's injuries. It argued that in rollovers, vehicle occupants drop from the seats toward the roof, causing head injuries before the roof is deformed enough to do so.

Ford's expert witness attempted to use demonstrative evidence from two crash tests that he said supported Ford's theory: one, a rollover test conducted by GM in the early 1980s, and another, called the CRIS test, conducted by Ford in 2000 using Crown Victorias. Ford contended that the CRIS test showed basically what happened to Barry Muth.

But Judge Patrick Higginbotham, writing for the Fifth Circuit, drew a distinction between a demonstration of abstract scientific principles and Ford's video evidence, noting that the latter "too closely resembles the disputed accident to effectively present abstract principles without misleading the jury." Indeed, wrote Higginbotham, "the similarities between Ford's theory of the accident and the conditions of the CRIS test heighten the visual evidence's prejudicial effect."

Tom Harkness of Austin, Texas, who represents Muth, noted that the vehicle in the CRIS test was equipped with a roll cage to minimize roof deformation. The test car was then rotated upside down and the dummy wired in place, with its head against the roof. The car was then spun and dropped on its roof above the dummy's head. The dummy's head sustained injury without substantial roof deformation.

But that's not the real world, Harkness said, noting that a rolling vehicle can hit on any side at any rotating speed. Muth's car hit first on its left side, which let Muth fall away from the roof, and then rotated 90 degrees and hit on his side of the vehicle.

As a result, said Harkness, Muth "was far enough away from the roof at the time of the crush that he would not have been injured except for the fact that the roof crushed in as far as it did."

For Harkness, the case provides "validation that car manufacturers cannot ignore the fact that a stronger roof is a safer roof." But he noted that Ford and other automakers are resisting more stringent roof crush standards.

The current standard has been in place since 1973; the National Highway Traffic Safety Administration (NHTSA) is currently deliberating a new, possibly tougher, standard that could be in place by 2008. According to NHTSA, although rollovers comprise only 3 percent of all vehicle crashes, they account for a third of all accident fatalities.