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The Florida Supreme Court Needs a Second Look at Second Collision Motor Vehicle Cases

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In the 2001 consolidation of cases D’Amario v. Ford, 806 So. 2d 424 (Fla. 2001), and Nash v. General Motors,1 the Florida Supreme Court altered the products liability landscape of how motor vehicle crashworthiness, or so-called second collision cases, were to be tried. A crashworthiness case is when the purported claim is not for a defect causing the underlying crash—or first collision—but for one that causes an increased injury to the occupant within the automobile.2 D’Amario held that the tortfeasor, even drunk drivers who cause the first collisions, including the plaintiff, could not be on the verdict form for apportionment of fault. However, a manufacturer could only be held liable for the enhanced or increased injury due to the defect in not providing reasonable crash protection. The court redefined the comparative fault law that had been decided earlier in Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), a noncrashworthiness case, and exempted crashworthiness cases from F.S. §768.81.

Unfortunately, D’Amario demonstrated a fundamental lack of understanding by the Florida Supreme Court of products liability motor vehicle crash cases, and more specifically how people become injured in car accidents. Operating from that misconception, the court then imposed an evidentiary rule of law that was both impractical and wrong. The Supreme Court should revisit the decision in D’Amario and reevaluate its analysis.

Background to Crashworthiness
A separate cause of action for a motor vehicle manufacturer’s failure to reasonably protect an occupant from injury is relatively recent to the common law. Holmes’ “stop, look and listen” duty at railroad crossings demonstrated how enigmatic the internal combustion engine was to first order legal principles.3 Cardozo, in McPherson v. Buick, 111 N.E. 1050 (N.Y. 1916),4 first enunciated a defect theory for automobile cases as to their construction. Yet, courts initially rejected that a manufacturer had a separate duty to design vehicles so that people would not be injured in crashes.5

The common law development of crashworthiness paralleled federal legislation regulating motor vehicle safety in the early 1960s, and the creation of the National Highway Traffic Safety Administration (NHTSA).6 Regulatory standards were enacted that set guidelines for occupant protection in motor vehicles when they were involved in crashes, among other things.7

In 1968, Larsen v. General Motors, 391 F. 2d 495 (8th Cir. 1968),8 articulated a new common law principle of crashworthiness. Larsen held that a “manufacturer is under a duty to use reasonable care in the design of its vehicle to avoid subjecting the user to an unreasonable risk of injury in the event of a collision.”9 Under Larsen, automobile manufacturers must foresee that crashes will occur and correspondingly they are under a duty to provide reasonable occupant protection. Yet, the court held a manufacturer was not an insurer, and did not have to make an injury-proof vehicle.10 In Ford Motor Co. v. Evancho, 327 So. 2d 201, 204 (Fla. 1976), the Florida Supreme Court adopted this crashworthiness theory. The Evancho decision offered little original analysis, only quoting at length from Larsen. Later, the Florida Supreme Court applied strict liability to a crashworthiness cause of action in Ford Motor Co. v. Hill, 404 So. 2d 1049, 1051–52 (Fla. 1981) (applying strict liability theory to crashworthiness claim).11

These pronouncements, however, were only theoretical and esoteric. They did not deal with the reality of how a lawyer was to try such a case, how judges and juries were to figure out a crashworthiness or second collision defect related injury, or what to do about allowing in evidence of the underlying accident and the so-called first injury.12 In crashworthiness trials the Evancho and Hill decisions were always cited, usually by both sides, but there was a practical evidentiary gap to their application. Plaintiff would argue that the evidentiary and proof analysis should only begin once the crash occurred, and not with the events leading up to it. Thus, what transpired up to that point was irrelevant and prejudicial.13 On the other hand, defense attorneys argued that the circumstances of the underlying crash and what happened in the so-called first collision were essential to evaluate overall fault for the injury.14

Fabre held that all joint tortfeasors, whether or not sued, may be on a verdict form so that everyone’s fault could be determined. This decision gave manufacturers a strengthened argument that the events and parties responsible for the underlying crash had to be included in the case and on the verdict form. The Third District in Kidron, Inc. v. Carmona, 665 So. 2d 289 (Fla. 3d DCA 1995), was the only court to address whether the plaintiff’s comparative fault in causing the accident could be considered when the asserted defect claim was unrelated to why the first collision occurred. Although decided prior to Fabre, Kidron held that plaintiff driver’s own negligence could be used by the jury to apportion overall fault between the plaintiff and the defendant truck manufacturer.

The D’Amario Decision and Its Aftermath
Briefly, the facts: First, D’Amario involved a Ford automobile being driven by a drunk driver with plaintiff as a passenger. The driver lost control and the vehicle hit a tree. After that impact the vehicle caught fire, and the occupant burned to death. There was a dispute as to what caused the post-collision fire, but apparently none over why the plaintiff was killed.15 Second, in Nash a drunk driver impacted the Nash-driven vehicle.16 As a result, Nash’s head hit the A-pillar—the post between the forward edge of the door and the front windshield. In both these cases plaintiffs’ conduct played no role in causing the crashes. Drunk driving was a strong defense for both manufacturers. Verdicts for manufacturers were rendered despite gut-wrenching injuries. The district court in D’Amario ordered a new trial because of prejudicial alcohol evidence and closing arguments by defense counsel. The Nash district court reversed also, but held intoxication was an intentional act, thus excluding Fabre application.

The Florida Supreme Court held that in crashworthiness cases the Fabre principles of comparative apportionment of fault did not apply, and overruled Kidron. In crashworthiness cases it would now be reversible error for juries to consider the fault of a third party tortfeasor who may have caused the underlying accident, even if it was the plaintiff. Accordingly, there was to be no instruction on comparative fault in causing the underlying accident, and no party or nonparty responsible for that event could be on the verdict form to reduce liability of the vehicle manufacturer. The D’Amario court concluded that juror confusion results if the jury must sort out fault between who caused the first collision and liability for a second collision defect.

The Supreme Court in D’Amario analyzed a conflicting group of decisions characterized as the “majority”17 and “minority”18 viewpoints. In adopting a policy of excluding circumstances and fault for the underlying accident from jury consideration in crashworthiness cases, the court sided with the “minority” jurisdictions.19 D’Amario analogized these crashworthiness/second collision cases to a medical malpractice event which falls under the successive liability doctrine. That is, a tortfeasor cannot bring into the case or use as a defense a later medical malpractice which occurred subsequent to the original tort. That tortfeasor must bear all the damage consequences due to his or her original conduct, even if this subsequent malpractice made the injury worse.
To the D’Amario court a second collision or enhanced injury claim was successive, distinctive, and sequentially separated from the underlying crash circumstances. The second injury causation, enhanced or increased, was a different tort from the first collision, and only manifested itself subsequent to or successive in time to the conduct that caused the crash event in the first place. This injury-enhancing event was, therefore, no different from a subsequent malpractice occurring after the initiation of the original tort, although this later negligence might not occur until hours, days, or weeks later. The Supreme Court in D’Amario focused on how the manufacturers’ attorneys used the alcohol “card” to persuade and mislead those jurors. It appeared to the court that an unstated demagoguery occurred, and pervasive attention was given to alcohol instead of the jury being able to focus on the true issue: Did a defect in the motor vehicle enhance or increase the injury from what occurred due to the initial accident?

Justice Wells, joined by Justice Harding, dissented in part. Justice Wells believed the D’Amario rule to be unworkable, and argued that Florida already had ample evidentiary protections to control the prejudicial alcohol issue.20 It was not necessary, therefore, to adopt any broad-sweeping legal pronouncement mandating how crashworthiness cases were to be treated differently from any other tort under Fabre. Unfortunately, the Wells dissent did not go far enough in challenging the majority decision analytically.

Only one appellate case, Griffin v. Kia, 843 So. 2d 336 (Fla. 1st DCA 2003), has discussed D’Amario in substantive terms.21 Griffin is arguably inconsistent with the D’Amario holding, although the facts were much different. This difference involved whether Griffin’s own conduct in helping to cause the first crash also resulted in defeating his crashworthiness claim. Griffin alleged he was fully reclined and sleeping on the front passenger seatback when the first collision occurred. having the seatback in a reclined position this made the seatbelt ineffective, and caused an enhanced injury (quadriplegia) in an otherwise minor accident. Additionally, Griffin claimed inadequate warnings about this danger. Kia won at trial.

Griffin reversed and remanded on the authority of D’Amario because the nonparty driver was on the verdict form as a Fabre defendant. Yet, contrary to D’Amario’s logic, on a bifurcated retrial Kia could introduce evidence of the driver’s conduct and that of Griffin’s in causing the first accident, which was to be the threshold decision. Only if the jury did not find for Kia on the way the first crash occurred would a jury decision then be made as to the crashworthiness claim. Still on that issue, Kia could put on evidence of Griffin’s conduct in allegedly getting off the seatback and reaching for the steering wheel. doing so Griffin was not on the seatback, which would defeat his claim.

D’Amario’s Crashworthiness Theorem vs. Reality
The legal concept of crashworthiness seems simple enough. A manufacturer can only be held liable for injuries enhanced, increased, or made greater from what they would have been from that first collision, absent the alleged crashworthiness defect.22 The second collision is usually one between the occupant and some interior portion of the motor vehicle, such as the steering wheel, instrument panel, or roof pillar.23 Yet, this second collision (occupant to car interior) can also be an impact with an installed safety device, for example, a seatbelt or an airbag.

These technical details must be flushed out in a jury trial where all the facts can be examined. Experts will ultimately opine whether the design was defective by not providing reasonable protection, and what the enhanced injuries were or were not.24 In the daily grind of courtroom reality, the manufacturer’s defense is usually that the injuries—however tragic—occurred not from a defect, but resulted due to the severity or circumstances of that first collision. Defense counsel seek to prove the accident to be as severe as possible, as the higher crash speeds the greater risk or probability of injury. In response, plaintiffs’ attorneys usually strive to minimize the severity of the crash impact. How Motor Vehicle Crash Injuries Occur

A true crashworthiness case cannot be separated or divided temporally by establishing a bright line distinction between a first collision accident and the enhanced injury from the second collision. Unlike the medical malpractice analogy used in D’Amario and occurring at some time subsequent or successive to an initial tort, motor vehicle crashes and injury causation are altogether different. That first collision dictates what type of second injury or risk of an increased injury event will occur.25 There must be a first collision crash for a second collision defect enhanced harm to take place. The fatal flaw of D’Amario’s analogy was not understanding the reality of how people are injured in motor vehicle crashes.

To make the point about how motor vehicle crash injuries occur from a technical standpoint, this section essentially relies on published work by experts who normally testify on behalf of plaintiffs’ attorneys in crashworthiness cases. Thus, there can be little dispute about these points. The fact is that injuries resulting from a first collision, whether enhanced or not, take place simultaneously to that event. In the reality of a motor vehicle crash, which creates the factual basis for a crashworthiness theory, the injury event has occurred and is long over before you have read this sentence. Injuries resulting from an automobile crash are caused within milliseconds; in the time it takes to blink an eye, the injury event is already over. On TV commercials a vehicle with airbags being crashed into a barrier is shown in slow motion. In real time, however, this all occurs within less than one-third of a second.26

The so-called second collision between the occupant and the vehicle interior, or a component part including seatbelts or airbags, is instantaneous with the crash. This occurs as the human body, when subject to crash forces, moves within the vehicle, a phenomenon called occupant kinematics.27

When an automobile is involved in a frontal impact, for example, the following events transpire:

All of the deformation of metal, all of the tearing and crushing of flesh occurs, quite literally, in the blink of an eye. In about one-tenth of a second, to be precise.

In order to study this relatively brief time period we divide it into units of one-thousandths of a second, called “milliseconds.” Thus a typical frontal [automobile] crash begins and is over in about 100 to 120 milliseconds. . . . (emphasis added)28

As a result, the injury to a person involved in an accident occurs within “about 100 milliseconds (i.e., 0.1 seconds) which is the time for a usual automotive crash.”29

Time durations for injury causation in an automobile crash cannot be analogized, as D’Amario did, to a doctor committing malpractice on an accident-injured plaintiff no sooner than hours after the first injury. As one plaintiffs’ expert has stated: “We have a rule here: for the average time epoch of a simple car crash, the instantaneous change in velocity (delta v) is the best predictor of injury severity or death.”30

This temporal or time sequence uniqueness to automobile crashes is not just for frontal collisions. In side impacts and rear end crashes the total duration for injury risk is 100 ms.31 Head and neck injuries will also occur within that time frame.32 Thus, from the engineering and physics standpoint a second collision occurrence cannot be analogous to a successive or subsequent tort, as in D’Amario’s medical malpractice example.

• D’Amario’s Unanswered Questions

There have been some immediate consequences from D’Amario. On the practical side, General Motors had a jury verdict increased by the Fourth District from $33 million to $60 million.33 As to analytical consequences, D’Amario never addressed or recognized a host of resultant issues. First, as Justice Wells noted in dissent, the majority did not articulate how its decision would be implemented. If the circumstances of the underlying crash or first collision were not admissible, what evidence from that accident event was? Vehicle speed, angles of impact, velocity changes as a result of impact, and myriad reconstruction details are necessary to evaluate injury potential.34 A manufacturer needs this to establish a defense such as there was no enhancement of injury due to a defect in the vehicle. For that matter, plaintiff may need the information as well to establish burden of proof that a defect enhanced the injury or was the legal/proximate cause of it.

Second, what does a trial judge do when the case involves both a claim that a motor vehicle defect caused the underlying accident, and then a separate defect enhanced the injury? These dual theories of recoveries most often are seen in rollover/roof crush cases.35 How can D’Amario’s absolute rule that the circumstances of the underlying accident are irrelevant be applied here? Does there need to be bifurcated trials on these separate defect claims, or perhaps even two juries since the first one might be tainted by the evidence presented about the circumstances of the first crash, particularly if alcohol was involved? In the example, if there is a third party tortfeasor who the defense claims was a factor in the rollover, can this person be part of the trial or on the verdict form? Under the D’Amario holding, however, the first collision defect causing the accident cannot be tried together with the crashworthiness defect claim. This result is illogical and judicially inefficient.

Third, if the manufacturer defendant cannot get a reduction from apportionment of fault by having the third party tortfeasor on the verdict form in a crashworthiness case, do they then bring a later contribution action? In the real world, a manufacturer is often sued because the third party tortfeasor has little or no insurance.36 In catastrophic injury cases there may be no other source of funding for plaintiff’s ongoing medical expenses and loss of income. If the tortfeasor is judgment-proof to begin with, there is no benefit for a defendant to pursue a contribution claim. Theoretically, there should be no contribution since D’Amario held that crashworthiness is a separate cause of action—it is not a joint tort with the underlying at-fault party.

Fourth, although holding the plaintiff has the burden of proof to establish the enhanced harm, D’Amario discussed no evidentiary standards to guide lower courts. There was irony in D’Amario adopting the “minority view” prohibiting the apportionment of fault in crashworthiness cases, but then adopting, perhaps unknowingly, the “majority view” as to who has the burden of proof, i.e., plaintiff.

Fifth, as a corollary to this burden of proof issue, one of the most uncertain areas of the law in these crashworthiness cases has been establishing the “apportionment” of harm attributable to the first collision versus what was caused by the defect in the second collision; and, what degree of proof must be established. D’Amario made only passing reference to this in footnote 16, despite the fact it was establishing an evidentiary requirement in the Florida courts that plaintiff had the burden of proof.37 If neither plaintiff nor defendant can apportion injuries between the first accident and the enhanced injury defect, that is, the injury is indivisible, then what happens? The court’s reference to Gross v. Lyons, 763 So. 2d 276 (Fla. 2000), involving two independent and successive accidents, has nothing to do with separating injuries in a crashworthiness case. There are disputed majority and minority views on this issue as well, which is beyond the scope of this particular article.38 D’Amario did not even cite to these cases, or the issue within a crashworthiness context.

Sixth, although the court did leave open the door for comparative fault to be applied in a crashworthiness case, the exception was unexplained. This was the “ordinarily” exception placed in footnote 2 of the opinion. The court, for unexplained reasons in dicta, also stated that comparative fault can also be raised for a “fair and just allocation of fault.” Whether this is broader or more flexible than the “ordinarily” exception is not clear. Again, D’Amario seemingly left the door open for specific exceptions to its absolute rule on a case-by-case application. It remains to be seen, if D’Amario survives in its present form, whether these opt-out clauses will be used to blur the clear line rule the Florida Supreme Court thought it was imposing.

Crashworthiness Doctrine Requires Juries to Apportion

Even though D’Amario concluded apportioning fault arising from the first collision was too confusing or complex for a jury in a crashworthiness case, some type of juror apportionment must occur to determine enhanced injuries. A manufacturer under D’Amario can only be liable for the latter. Thus, even if evidence of fault-based conduct by either the plaintiff or a third party tortfeasor in causing the initial accident is excluded, a jury must still attempt to determine consequences of the first crash from those of the second. This is no easy task either.39 The two sides in the action will have dueling expert testimony, either saying the injuries were not enhanced and were all caused by the first impact or that they were enhanced beyond a certain level from what they otherwise would have been had no second collision defect been present.

Contrary to its own assertions, D’Amario has not eliminated the inevitable intermingling of the first crash into an otherwise supposedly distinctive separate crashworthiness case. Regardless of the crashworthiness accident circumstances, a jury will always have to engage in apportionment of complex injury causation mechanisms and sequella to decide if there was any enhanced or exacerbated injuries caused by a defect which manifested itself only after the first crash occurred. This cannot be, it would seem, any less onerous than apportioning fault in a negligence context between all culpable parties causing the first and second collisions, and dividing up their respective liability for the total injuries/damages. Therefore, in crashworthiness cases, including the apportionment of fault along with apportionment of damages cannot be so toxic to the jury verdict process as the Supreme Court concluded it was.

Recommendations and Resolution

Where do we go from here? There are several recommendations that can be pursued.

First, the legislature could step in to statutorily define some of these evidentiary issues that pertain to crashworthiness cases. This would supplement Ch. 768, which arguably was ruled unconstitutional in part by D’Amario. Without any analysis of statutory history or intent, the court rewrote the statute. New legislation is the only way to quickly correct the Supreme Court action. This type of legislation would be no different from tort reform or medical malpractice statutes. The statute could require that all accident-causing factors in crashworthiness cases must be considered. It would permit evidence of the underlying crash, subject to the normal rules of evidence, and juries could apportion fault or injuries between all potentially responsible parties.

Second, the Florida Supreme Court could reconsider its own decision. The court could retain the two-collision analysis, but it would need to set up a procedure for the trial courts to evaluate whether the underlying circumstances of the first crash will be admissible, and to what extent. A threshold evidentiary admissibility analysis would have to be made, and a pretrial hearing held. This will amount to a mini-trial with preliminary admissibility determined by the trial judge under Fla. R. Evid. §90.105. This procedure, however, may be too costly, impractical, and cumbersome.

Third, the court in its entirety can reevaluate the underlying premise of its decisional rationale. Two new justices have been appointed since D’Amario. The Supreme Court could then adopt Justice Wells’ dissenting view and rely upon comparative fault principles and a trial judge’s discretion in allowing or excluding certain evidence. Let the trial courts, and the formidable adversarial talents of plaintiffs’ attorneys litigating these product liability cases, be left to establish the proper evidentiary balance. For example, prejudicial evidence under §90.403 could be kept out. The court should also endorse new jury instructions that would clearly articulate the nature of a crashworthiness case. In this way we could avoid any broad, arbitrary exclusion of testimony or evidence simply because it may relate to a second collision case, when in fact that same evidence cannot be detached from the reality of what happens to people, and the risk of injury potential, when a motor vehicle crash occurs. This third approach is consistent with those cases that will survive, irrespective of D’Amario, where the plaintiff alleges one defect in the vehicle that caused the first collision, but also a second defect that enhanced the injuries once that first event occurred, i.e., rollover/roof crush cases. This option would seem the most effective.

Conclusion
The terminology given to the “second” collision concept is a misnomer. There is no true second collision in the time-sequential context upon which the reasoning that created this legal theory is founded. A second collision causing increased or enhanced injury is instantaneous to or simultaneous with the first collision event. Perhaps more appropriately, this legal precept should simply be called accident-enhanced or crash-increased injuries. There are many law review articles on crashworthiness, and most seem to discuss this topic with sterile detachment from what actually takes place in a car crash, and then how that must play out in the courtroom theater.40 Thus, they refer to “courts” as some Olympian figures who are all-knowing of crashworthiness doctrine, and who actually have time to read all these many law review articles in the first place. Judges in trial courtrooms, for the most part, infrequently deal with any crashworthiness issue.41 It is therefore easy to see how this legal theory gets separated from crash injury reality.

The D’Amario pronouncement was a decision made in a legal vacuum, and was one that has created more problems than it solved. Further, the evidentiary crashworthiness principle it established was disconnected from the true nature of the cause of action it was reformulating. A second visit to this topic is warranted by the Supreme Court, and is necessary to correct its error. q

1 For ease of reference these two cases will be referred to as D’Amario.
2 “Crashworthiness” was first used in this country by William Stieglitz, referring to the ability of the human body to withstand impact. See Foland, Enhanced Injury: Problems of Proof in “Second Collision” and “Crashworthy” Cases, 16 Washburn L.J. at 600 n.2. Courts routinely use the interchangeability of the terms crashworthiness, injury enhancement, and second collision. See generally Caiazzo v. Volkswagenwerk, A.G., 647 F.2d 241, 243 n.2 (2d Cir. 1981); Seese v. Volkswagenwerk, A.G., 648 F.2d 833, 838 n.7 (3d Cir.), cert. denied, 454 U.S. 867 (1981).
3 Baltimore & Ohio R.R. v. Goodman, 275 U.S. 66 (1927).
4 For a good historical reference of the development of product liability theories involving motor vehicles, see Prosser, Wade & Schwartz, Torts, Cases and Materials 696–722 (8th Ed. 1988).
5 Evans v. General Motors Corp., 359 F.2d 822 (7th Cir.), cert. den., 385 U.S. 836 (1966).
6 The National Highway Traffic Safety Act was passed in 1966. 15 U.S.C.A. §1381-1431. The National Highway Traffic Safety Administration (NHTSA) is the regulatory agency designated to oversee motor vehicle safety. “[The] term crashworthiness means the protection that a passenger motor vehicle affords its passengers against personal injury or death as a result of a motor vehicle accident.” 15 U.S.C.A. §1901 (1972) (The Motor Vehicle Information Cost Savings Act of 1972).
7 The Federal Motor Vehicle Safety Standards (FMVSS) establish certain requirements for motor vehicles in terms of crash protection. These are found in the 200 and 300 series of the regulations. The 100 series generally deals with crash avoidance.
8 The Restatement (Second) was formulated prior to the Larsen case.
9 Larsen, 391 F.2d at 503. The Larsen decision is now followed unanimously in American courts. See Blankenship v. General Motors Corp., 406 F. S.E. 2d 781 (W. Va. 1991); Restatement (Third) of Torts, §16, ch. 4, at 242.
10 Larsen, 391 F. 2d at 502.
11 See Rubin v. Brutus Corp., 487 So. 2d 360 (Fla. 1st D.C.A.), rev. den., 500 So. 2d 543 (Fla. 1986) (pleasure boat crashworthiness); Nicolodi v. Harley-Davidson, 370 So. 2d 68 (Fla. 2d D.C.A. 1979) (applied crashworthiness to motorcycle).
12 “Courts should abandon the ‘second collision’ jargon. Enhanced injury theory should be the product of thoughtful legal analysis and not the overloading of other legal liability concepts.” Harris, Enhanced Injury Theory: An Analytic Framework, 62 N.C. L. Rev. 643, 650–651 (1984).
13 See Ricci & DiPaola, Evolution of the Automobile Crashworthiness Doctrine in Florida, 69 Fla. B.J. 40 (1995).
14 See Wittner, Crashworthiness Litigation: Principals and Proofs, S.A.E. 900371, printed in Accident Reconstruction S.A.E. Sp.-814, at 199–211 (1990). See also Litigation of the Complex Motor Vehicle “Crashworthiness” Case (Practicing Law Inst. No. 383, 1989).
15 Ford Motor Co. v. D’Amario, 732 So. 2d 1143 (Fla. 2d D.C.A. 1999).
16 Nash v. General Motors Corp., 734 So. 2d 437 (Fla. 3d D.C.A. 1999).
17 See generally Montag v. Honda Motor Co., Ltd., 75 F.3d 1414, 1419 (10th Cir. 1996); Whitehead v. Toyota Motor Corp., 897 S.W. 2d 684 (Tenn. 1995).
18 See Jimenez v. Chrysler Corp., 74 F. Supp. 2d 548 (D.S.C. 1999), rev. in part & vac., 269 F.3d 439 (4th Cir. 2000); Reed v. Chrysler Corp., 494 N.W. 2d 224 (Iowa 1992).
19 D’Amario, 806 So. 2d at 441–42.
20 Id. at 443 (citing Fla. Stat. §90.403).
21 See Ferayorni v. Hyundai Motor Co., 822 So. 2d 502 (Fla. 2002); and General Motors Corp. v. McGee, 837 So. 2d 1010, 1030, 1039–1040 (Fla. 4th D.C.A. 2003), which reversed on D’Amario without any discussion of that case.
22 See Foland, supra note 2, at 600 n.2. “The term ‘enhanced injury’ refers to the degree by which a defect aggravates collision injuries beyond those which would have been sustained as a result of the impact or collision absent the defect.” 22 Am. Law. Prod. Liabl. 3d, §95:8 at 18 (1987).
23 See, e.g., Roberts v. May, 583 P.2d 305 (Colo. 1978) (dashboard); Jeng v. Witters, 452 F. Supp. 1349 (M.D. Pa.), aff’d., 591 F.2d 1334 (3d Cir. 1978) (door latch); Ellithorpe v. Ford Motor Co., 503 S.W. 2d 516 (Tenn. 1973) (steering wheel).
24 Expert witnesses must be called to testify as to what the injuries would have been without the alleged defect. See, e.g., Hillrichs v. Avco Corp., 478 N.W. 2d 70 (Iowa 1991); May v. Portland Jeep, Inc., 509 P. 2d 24 (Or. 1973).
25 See Brenner & Enz, Classification of Information Generated in a Motor Vehicle Crash Sequence, printed in Sances, et al., Mechanisms of Head and Spine Trauma 99 (1986). See, e.g., Sumnicht v. Toyota Motor Sales U.S.A., Inc., 360 N.W.2d 2, 13 (Wis. 1984). (Enz as plaintiff’s expert.)
26 See M. Huang, Vehicle Crash Mechanics 47 (2002). “Airbags deploy in 1/20th of a second (faster than the blink of an eye) at speeds between 90 and 211 mph with a force up to 2600 lbs. per square inch.” The Airbag Crisis, Causes and Solutions, Parents for Safer Airbags XIV (Oct. 1997).
27 Occupant kinematics is defined as “that phase of mechanics which deals with the possible motions of a material body.” Dorlands Illustrated Medical Dictionary 820 (25th Ed. 1974).
28 Hyde, Crash Injuries: How and Why They Happen—A Primer For Anyone Who Cares About People in Cars 6 (Hyde Associates, Inc., 1992).
29 Id. at 40.
30 Id. at 38.
31 Id. at 250–57.
32 Spinal injuries occur in automobile crashes in the range of 100 to 200 milliseconds. Panjabi et al., Biomechanics of Spinal Injuries, printed in Sances, et al., Mechanisms of Head and Spine Trauma 247–60 (1986). Head injuries also occur within milliseconds. See Sances & Yoganandan, Human Head Injury Tolerance, printed in Sances, et al., Mechanisms of Head and Spine Trauma 194–99 (1986).
33 General Motors Corp. v. McGee, 837 So. 2d 1010, 1039–40 (Fla. 4th D.C.A. 2002).
34 See generally Brenner & Enz, Classification of Information Generated in a Motor Vehicle Crash Sequence, printed in Sances, et al., Mechanisms of Head and Spine Trauma, 99–100 (1986); Baker & Fricke, The Traffic Accident Investigation Manual (Northwestern Univ. Traffic Inst., 9th Ed. 1986).
35 See Spagnoli, Stay Ahead of the Curve in SUV Rollover Cases, 39 Trial (Feb. 2003).
36 The societal and legal-economic consequences of product liability litigation can be found in Henderson & Twerski, Products Liability: Problems and Process, 818–26 (2d Ed. 1992).
37 In the Reporter’s Notes to the Restatement (Third) on the Fox-Mitchell and Huddell majority/minority views, Florida was one “whose law either supports or is strongly leaning toward, the majority view.” Restatement (Third), ch. 4, §16, at 244. There was, however, no specific Florida case cited.
38 The majority view is referred to as the Fox-Mitchell line of cases; the minority view, the so-called Huddell-Caiazzo approach. See Vickles & Oldham, Enhanced Injury Should Not Equal Enhanced Liability, 36 S. Tex. L. Rev. 417 (1995); Chadwick, Causing Enhanced Injuries in Crashworthiness Cases, 48 Syracuse L. Rev. 1223 (1998).
39 “In other words, in enhanced injury cases, proof of causation and proof of enhancement are inseparable.” Vickles & Oldham, supra note 38, at 434.
40 See, e.g., Reichert, Limitations on Manufacturer Liability in Second Collision Actions, 43 Mont. L. Rev. 109 (1982) (cited by D’Amario majority); Harris, supra note 12. But see Foland, supra note 2, at 616–19; Hoenig, Resolution of Crashworthiness Design Claims, 55 St. John’s L. Rev. 633 (1981).
41 For FY 2001-2002, the Office of the State Courts Administrator reported a total of 4,871 product liability cases filed in circuit court, out of a total of 186,218 civil case filings, or. 026 percent. It is difficult to say of these which ones were automobile PL cases, and, further, which ones were auto crashworthiness matters. See FY 2001-02 Statistical Reference Guide, Fla. Ofc. of State Courts Administrator, at 3-2 (www.flcourts.org).

Larry M. Roth received a B.S. from the University of Tennessee in 1973 and a J.D. from the University of Florida in 1975. He is a partner in Roth, Powell, Pearson & Hosley, P.A., Winter Park. Mr. Roth is a defense attorney representing automobile manufacturers.