Kathleen Madaline Jarvis, Individually and as a Parent and Guardian of Paul Michael Attila Jarvis, a Minor v. Ford Motor Company

A six-day-old 1991 Ford Aerostar driven by plaintiff-appellant Kathleen Jarvis suddenly accelerated, resulting in an accident from which Jarvis sustained serious injuries. Jarvis contends that the Aerostar "took off" without her depressing the accelerator and that she was unable to stop the van by pumping the brakes.

Jarvis sued defendant-appellee Ford Motor Company ("Ford") in the United States District Court for the Southern District of New York (Buchwald, J.) claiming, inter alia, that Ford was negligent and should be held strictly liable for the design of the Aerostar's cruise control mechanism. A jury returned a verdict for Jarvis on her negligence claim but not on her strict products liability claim and awarded her damages. Ford objected to the verdict as inconsistent. The district court agreed but did not assign a remedy because it held that the evidence was insufficient to support a verdict for Jarvis, granting Ford's Fed.R.Civ.P. 50(b) motion for judgment as a matter of law and dismissing the complaint. For the sake of completeness, the court also granted Ford's motion to reduce the amount of the verdict because of collateral source payments pursuant to N.Y.C.P.L.R. 4545.

We vacate the grant of judgment as a matter of law for Ford and remand for the district court to reinstate the jury verdict and award of damages as adjusted by the collateral source payments. Jarvis's evidence, if credited by the jury, was sufficient to establish that the Aerostar malfunctioned due to Ford's negligent design. To prove negligence, Jarvis was not required to establish what specific defect caused the Aerostar to malfunction. Ford, for its part, did not prove that a malfunction was so unlikely as to warrant judgment as a matter of law in its favor.

We also hold that the district court failed to apply the correct legal standard to Ford's objection to an allegedly inconsistent verdict. Applying the correct standard under Fed.R.Civ.P. 51, we find that Ford waived any claim of error by failing to state distinctly the nature and basis of its objection before the jury retired to deliberate and that there was no fundamental error in the jury instructions or verdict sheet warranting relief on appeal. Finally, we hold that the district court did not abuse its discretion in not conducting a hearing on collateral source payments, as Jarvis failed to raise a disputed issue of material fact regarding Ford's evidence of such payments.

Viewed in the light most favorable to Jarvis as the party challenging the grant of judgment as a matter of law, the record presents the following facts.

Jarvis testified at trial that, in 1991, she started her six-day-old Ford Aerostar in the driveway of her home in rural Woodstock, New York with her right foot "lightly on the brake." After she turned on the ignition, the engine suddenly revved and the vehicle "took off." As the van accelerated, Jarvis pumped the brake with both feet, looking down to make sure her feet were on the brake pedal. The van would not stop. She steered to avoid people walking in the road and then heard saplings brushing against the side of the van before she blacked out. Jarvis testified that she had driven many different kinds of vehicles over the twenty-four years since she had first acquired a driver's license, and that, prior to this incident, she had never had a driving accident.

Jarvis's father, who was standing nearby, testified that he saw the car starting off at an "unusually fast speed" for his daughter. As the Aerostar passed him, he saw Jarvis "holding on to the steering wheel very tight and her body was going back and forth ever so slight[ly]." Jarvis's father testified that as Jarvis was removed from the van after the accident, she screamed, "there's something wrong. The brakes don't work. There's something wrong with that car. The brakes don't work." As a result of the accident, Jarvis sustained a traumatic head injury and could not return to her previous employment.

Plaintiff's reconstruction expert, George Pope, testified that the van traveled approximately 330 feet and did some braking that slowed it to 15 to 20 miles per hour before it entered a ditch and turned over. Pope testified that the Aerostar had vacuum power brakes that draw their vacuum from the engine, but that the engine does not create the necessary vacuum when accelerating full throttle. Even though a check valve traps a reservoir of vacuum for use when the engine vacuum is low, this reserve can be depleted after one-and-a-half hard brake applications. Therefore, according to Pope, if Jarvis were pumping the brakes in an effort to stop the Aerostar after it began accelerating at full throttle, she would lose approximately one thousand pounds of additional force that the booster normally could supply to her brakes. Pope concluded that "under those circumstances []it will feel to a person like they've lost their brakes, [because] they're pushing and nothing is happening."

Joanne Valentine-Simonian, a passerby, testified that she watched Jarvis's van pass and that she saw the van moving quickly down the road and ran toward the woods. As she looked back to see the van pass, she did not see any brake lights. A police officer who was called to the scene of the accident testified that he saw no marks on the road near the accident except in the ditch where the Aerostar turned over. Jarvis's father had been the last one to use the Aerostar before the accident. When asked at trial whether he had left the parking brake on, Jarvis's father testified that it was his "normal habit" to put it on, but that he had "no memory of it as such" in this case. When asked directly, he answered, "I'm not certain I put it in with the parking brake on." Pope testified that the Aerostar has two instrument panel lights related to the braking system. When the parking brake is left on, a red light is illuminated on the right side of the dash below the horizontal center point. A second light, amber in color and located on the upper left corner of the dash panel, is related to the rear anti-lock brake system and will illuminate for two seconds after the ignition is turned on and the van moves forward while the system reviews its components to ensure that they are functioning properly. Jarvis testified that she saw one white or light yellow light illuminated high on the dashboard toward the left and that, "as I'm recalling[,] it said brake." Asked specifically if she had seen a red light illuminated on the panel from the beginning to the end of the incident, she answered no.

In support of Jarvis's claim that the Aerostar had suddenly accelerated without her pressing the accelerator, Jarvis presented testimony from other Aerostar owners who recounted having similar problems. Jacqueline Gibbs testified that she had her foot on the brake the entire time her 1989 Aerostar sped away, yet engineers at Ford could later find nothing mechanically wrong with the van. David Neil Morse testified that a two-day-old 1990 Aerostar he was driving opened up, full throttle, while he was stopped at a gas station and that, even though he weighed 200 pounds and pushed as hard as he could on the brake pedal, he only managed to stop the vehicle by turning off the ignition.1 Theda Gayle Blackstone testified that, when she attempted to restart her 1990 Aerostar at a gas station and put it in gear, even though her foot was on the brake, it "absolutely roared and leapt out" hitting cars and continuing onto the highway causing accidents. Mary Moore testified that in 1989 she started her Aerostar in a shopping center parking lot and it began to accelerate in reverse, even though she had her foot on the brake. Linda Karen Schmidt testified that her 1990 Aerostar, after less than 10,000 miles of use, first "tore backwards" when she shifted into reverse, and then went forward as she tried to shift into park, eventually causing her to jump from the van after she failed to stop it by pressing the brake with both feet. In addition, the jury was presented with evidence that Ford had received reports of incidents of sudden acceleration in a total of 560 Aerostars.

Jarvis filed this diversity action in the Southern District of New York (Naomi Reice Buchwald, Judge) alleging that a defect in the Aerostar had caused the sudden and uncontrollable acceleration and pleading causes of action under theories of negligence and strict products liability under New York law. In 1999, a jury trial was held. Jarvis relied principally on her own testimony that her Aerostar suddenly accelerated without her depressing the accelerator and on experts who offered a theory to explain why the Aerostar malfunctioned and how this defect could be remedied. In its defense, Ford claimed principally that the acceleration was the result of Jarvis's driver error that mistook the accelerator pedal for the brake pedal, while unaware that the parking brake had been set. Ford also presented expert testimony to show that the Aerostar could not have malfunctioned in the manner suggested by Jarvis's experts.

Samuel J. Sero, an electrical engineer, testified at trial as an expert for Jarvis. He hypothesized that unintended electrical connections had caused current to run to the cruise control "servo," opening the throttle and making the vehicle accelerate. The cruise control servo opens the throttle by means of a vacuum mechanism that has two valves, the vacuum, or "vac," valve and the vent valve. The vent and vac valves are controlled by wires attached to the "speed amplifier." Victor J. DeClercq, a former Ford design analyst engineer and expert for Ford, agreed that if there was a simultaneous short in the vent and the vac wires, the cruise control servo would open the throttle without the driver pressing the accelerator.2 The dispute among the experts, however, was whether these kinds of electrical malfunctions could spontaneously occur and, if so, whether a failsafe mechanical device called a "dump valve" would, despite these malfunctions, disengage the cruise control servo as soon as Jarvis pressed the brake pedal, bringing the sudden acceleration to an end and the vehicle to a stop. DeClercq stated that, to the best of his knowledge, Ford did not test for the fault that Sero suggested as part of its standard failure mode effects analysis of its vehicles.

Sero's theory requires two simultaneous malfunctions in the cruise control circuitry. The first is an open ground connection to the speed amplifier, resulting from a loose or broken wire. DeClercq testified that he examined the ground wire in Jarvis's Aerostar after the accident and did not find any evidence that it was cut, was loose, or had shorted out. Sero testified that by the time he examined Jarvis's Aerostar, certain repairs had been made and some parts had been removed from the vehicle for examination, making it difficult to know what condition the wires were in at the time of the accident. The second problem required under Sero's theory is a fault to ground of the vent or the "vac" wires.3 According to Sero, an unintended grounding of the vent or the vac wire could occur due to (a) moisture or debris on the circuitry; (b) heat that causes the circuit board to "expand" or "bow up"; or (c) a nick in the wire insulation permitting direct contact with metal. There was no physical evidence that any of these events occurred at the time of Jarvis's accident, but Sero described these as "random transient events" — the first two, at least, could potentially leave no trace. Ford tested the moisture hypothesis by spraying water outside the vehicle and under the hood for one minute and then ran it for fifteen minutes without encountering any problems.

Ford maintained at trial that the existence of the Aerostar's dump valve, a spring-loaded plunger designed to open when the brake pedal is depressed, would have effectively stopped the Aerostar from accelerating when Jarvis applied the brakes, even if the cruise control malfunctioned as Sero suggested. The dump valve is a mechanical — as opposed to electronic — device that releases a vacuum and closes the throttle, terminating any wide open throttle condition and returning the throttle to neutral. Jarvis testified that she tried to stop the Aerostar by pumping the brakes, as her father had taught her to do when she was first learning to drive.

Jarvis offered three possible explanations at trial for why the dump valve did not permit Jarvis to stop the Aerostar from accelerating: (1) the dump valve was malfunctioning; (2) Jarvis was pumping the brakes, causing the Aerostar to reinstate the electrical malfunction and commence acceleration every time her foot rose from the pedal in the pumping action; or (3) Jarvis had not pressed far enough on the brakes to activate the dump valve. Concerning the first alternative, DeClercq testified that he tested the dump valve after the accident and found that it had no leaks. There was no evidence as to whether the dump valve could have malfunctioned in some other way that would not have necessarily been evident at the time that DeClercq examined the Aerostar. In response to questioning at trial as to why the dump valve would not have prevented the accident, Sero stated, "You are assuming that the dump valve was open. I think that's not a very good assumption. You have no proof that it was, nor do I. We have also no proof of how hard she was on the brake." In response to a question by Ford concerning whether Sero had "any evidence" that the dump valve was not functioning properly the day of the accident, Sero responded: "No, nor is there evidence that it did function that way on the day of the accident, except for the fact that it took off, which would seem categorical evidence that it did not function correctly."

The experts appear to agree that, even assuming that the dump valve was functioning properly, the electrical malfunction in the cruise control could be reinstated every time Jarvis lifted her foot from the brake pedal, causing the Aerostar to begin accelerating anew. The third scenario could explain why the Aerostar initially accelerated while Jarvis had her foot only "lightly" on the brake before she turned on the ignition but would not explain why the dump valve did not open later when Jarvis had her feet firmly on the brake pedal.

Sero testified that the possible malfunctions he had elucidated could be avoided by installing an inexpensive on/off switch, costing a few dollars at most, in the cruise control mechanism that would allow power to the servo only when the cruise control was engaged. Alternatively, Sero suggested the installation of an "over current relay," which would sense the grounding problem and stop the acceleration. According to Sero, these solutions would address the root cause of the possible malfunctions in the design of the Aerostar that permit battery power to be supplied to the servo at the moment the ignition is turned on without the driver having engaged the cruise control or stepped on the accelerator.

After a two-week trial, the jury found that the cruise control system of the 1991 Aerostar was not "designed in a defective manner," but that Ford nevertheless "was negligent in the design of the cruise control system" and that this was a substantial factor in causing the accident. The jury found that Jarvis's negligence was also a substantial factor in causing the accident and apportioned 65% of the fault to Ford and 35% to Jarvis.4 The jury awarded damages for past and future medical insurance premiums, lost earnings, and pain and suffering.5

Ford moved under Fed.R.Civ.P. 50(b) for judgment as a matter of law, claiming that [t]he only logical conclusion that can be drawn from the evidence is that the plaintiff never applied the brake pedal during the accident, but mistakenly applied the accelerator. Alternatively, Ford claimed that the jury's verdict was inconsistent because Ford could not have negligently designed the cruise control if there was no defect in its design. Ford also moved to reduce the verdict by the amount of collateral source payments totaling $473,469 pursuant to N.Y.C.P.L.R. 4545. Finally, Ford asked the court to rule on its previously filed motion to dismiss plaintiff's punitive damages claim. The district court granted all of these motions and entered judgment for Ford. A few months after trial, Jarvis moved for relief from the final judgment under Fed.R.Civ.P. 60(b), alleging that Ford had engaged in fraud, misrepresentation, and misconduct by withholding from Jarvis and from the district court documents that the court had ordered to be produced, by making false claims, and by presenting false testimony. The district court denied the motion.

A. Ford's Motion for Judgment as a Matter of Law

Judgment as a matter of law is appropriate when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed.R.Civ.P. 50(a). In ruling on a Rule 50 motion, "the trial court is required to consider the evidence in the light most favorable to the party against whom the motion was made and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence. The court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury." Tolbert v. Queens College, 242 F.3d 58, 70 (2d Cir.2001) (internal citations omitted). We review the district court's grant of a motion for judgment as a matter of law de novo, see Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir.2000), applying the same standard that a district court must apply, see LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir.1995).

We hold that there was a legally sufficient evidentiary basis for a reasonable jury to find that Ford had negligently designed the cruise control of the 1991 Aerostar. Jarvis presented evidence which the jury could credit that her Aerostar suddenly accelerated without her depressing the accelerator and that she was not able to stop the Aerostar by pumping the brakes. This proof included her testimony, the testimony of other Aerostar owners who had experienced similar problems, and evidence that hundreds of additional Aerostar owners had reportedly experienced sudden acceleration. She also presented an expert who offered a theory to explain why the cruise control had malfunctioned causing the Aerostar suddenly to accelerate, and who proposed an inexpensive remedy for this problem. The district court found this expert testimony to be admissible in a Daubert hearing, and the jury was entitled to credit it. Ford presented evidence that identified weaknesses in this theory, principally that there was no physical evidence that the defects hypothesized by Jarvis caused the cruise control to malfunction and suggested that driver error had caused the accident. We hold, however, that neither Ford's evidence of the unlikely nature of the specific defect that Jarvis had posited nor Ford's theory that the accident had been caused by driver error so outweighed Jarvis's proof that no reasonable jury could find for Jarvis. In so holding, we recognize the settled principle of New York law that a plaintiff in a products liability action is not required to prove a specific defect when a defect may be inferred from proof that the product did not perform as intended by the manufacturer.

The New York Court of Appeals has established that "a manufacturer is obligated to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended." Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571, 577 (1976). The court explained that "[w]hat constitutes reasonable care will ... involve a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effect to avoid the harm." Id. at 577-78 (internal quotation marks omitted).

As applied to the facts of this case, the jury charge on negligent design restated this standard as comprising three elements: (1) that the cruise control system in the 1991 Aerostar was defective when put on the market by Ford; (2) that the defect made it reasonably certain that the vehicle would be dangerous when put to normal use; and (3) that "Ford failed to use reasonable care in designing the cruise control system or in inspecting it or testing it for defects, or that even though Ford used reasonable care in designing, inspecting and testing the cruise control system in the 1991 Aerostar, that Ford learned of the defect before putting the product on the market and did nothing about it."

The New York Court of Appeals has held that a plaintiff's failure to prove why a product malfunctioned does not necessarily prevent a plaintiff from showing that the product was "defective." In Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622 (1973), a four-month-old car driven by Paglia suddenly and inexplicably drifted across the road's dividing line into oncoming traffic. Id. at 624. Chrysler, in defending the suit, stressed that Paglia had failed to prove any specific defect — emphasizing in particular the inadequacy of the plaintiff's post-accident tests to demonstrate a specific defect. Id. at 625. The New York Court of Appeals rejected this argument and upheld an instruction to the jury on breach of warranty that explained:

While the burden is upon the plaintiff to prove that the product was defective and that the defect existed while the product was in the manufacturer's possession, plaintiff is not required to prove the specific defect, especially where the product is complicated in nature. Proof of necessary facts may be circumstantial. Though the happening of the accident is not proof of a defective condition, a defect may be inferred from proof that the product did not perform as intended by the manufacturer....

Id. Accordingly, the Court of Appeals affirmed the jury's conclusion that "the steering mechanism of the automobile was not fit for the purpose for which it was intended." Id. at 338, 345 N.Y.S.2d 461, 298 N.E.2d 622.

A later New York Court of Appeals case similarly rejected the contention that a plaintiff injured by an exploding can of Freon had failed to make out a prima facie breach of warranty claim when no particular defect in the packaged refrigerant was ever discovered. Halloran v. Virginia Chemicals Inc., 41 N.Y.2d 386, 393 N.Y.S.2d 341, 361 N.E.2d 991 (1977). The court stated that

if plaintiff has proven that the product has not performed as intended and excluded all causes of the accident not attributable to defendant, the fact finder may, even if the particular defect has not been proven, infer that the accident could only have occurred due to some defect in the product or its packaging.

Id. at 993.

The same principles hold in products liability actions brought under a theory of negligent design. See, e.g., Gargano v. Rosenthal, 100 A.D.2d 534, 473 N.Y.S.2d 225, 227 (2d Dep't 1984) (citing Halloran in finding that causes of action for products liability, including those under theories of negligence, breach of warranty, and strict liability, may be proven "through circumstantial evidence, by showing that the vehicle's transmission and gearshift did not perform as intended and by excluding all causes of the accident not attributable to [defendants'] conduct"); Hunter v. Ford Motor Co., 37 A.D.2d 335, 325 N.Y.S.2d 469, 471 (3d Dep't 1971) ("[A]lthough in both actions in negligence and breach of warranty a plaintiff must come forward with evidence of a defect, existence of the causative defect is provable by circumstantial evidence. The precise defect need not be named and proved; it is sufficient if the cumulation of circumstances and inferences... supports the conclusion that there was a defect which caused the accident."); see also Sanders v. Quikstak, Inc., 889 F.Supp. 128, 131 (S.D.N.Y.1995) (citing Halloran in stating that to prove negligence, breach of warranty, and strict products liability under New York law, "[d]espite an absence of proof of any specific defect in a product, a jury may infer that an accident occurred because of a defect when the plaintiff has proven that the product did not perform as intended and has excluded all causes of the accident not attributable to the defendant").6

2. The District Court's Grant of Judgment as a Matter of Law

In granting Ford's motion for judgment as a matter of law, the district court relied upon the fact that Jarvis's expert had not established that the cruise control malfunctions he outlined were "substantially likely to occur or, even assuming they did, that the mechanical features of the car would not have overcome the resulting wide open throttle condition." Jarvis v. Ford Motor Co., 69 F.Supp.2d 582, 599 (S.D.N.Y.1999). The court stated that Jarvis "has offered no evidence to suggest how frequently the design defect is likely to occur," id., or "any evidence that the attenuated chain of events necessary to result in an accident is likely to occur, let alone with significant regularity." Id. at 600. Concerning the need for scientific proof of a defect, the court found that it is not

sufficient for plaintiff to simply define away the need to present proof of its theory by suggesting that there will be no trace of the electrical events posited.. . . [I]n the absence of evidence, plaintiff cannot meet its burden to establish that its version of events is more probable than not. It is, in part, because of the necessity of an expert's explanation for the events at issue that we find it unreasonable to rely on the testimony of five other individuals who reported experiencing sudden accelerations in Ford Aerostars. . ., as well as an even greater number of complaints (totaling 560) investigated by Ford and catalogued ... [of] alleged unintended acceleration incidents . . ., as an adequate substitute for the presentation of a viable expert explanation of this incident .... In reaching this conclusion, we do not mean to suggest that similar act evidence may not be significant in other design defect cases or that the testimony of other incidents could not have been probative of plaintiff's credibility had plaintiff surpassed her initial hurdle of establishing that the "defect" was more than theoretical.

Id. at 601 n. 41.

The district court erred in requiring proof of a specific defect in the Aerostar's cruise control and in not considering Jarvis's circumstantial evidence of a defect. The malfunction in the design of the Aerostar that Jarvis has alleged is that it suddenly accelerated, opening full throttle without Jarvis depressing the accelerator pedal, and that her efforts to stop the vehicle by pumping the brakes were unavailing. If Jarvis's six-day-old Aerostar performed in this manner, a jury could reasonably conclude that it was "defective when put on the market by Ford," and that "the defect made it reasonably certain that the vehicle would be dangerous when put to normal use," as required by the first two elements of the jury charge regarding negligent design. Although Ford argued that the accident was caused instead by driver error, this theory would have been rejected if the jury had believed Jarvis's testimony that she had her feet on the brake and not on the accelerator, as Ford claimed. The final element of the negligence charge asking whether Ford breached its duty of care, required "a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm." Micallef, 384 N.Y.S.2d 115, 348 N.E.2d at 577. Construing the evidence in Jarvis's favor and crediting her version of events, a reasonable jury could find that Ford breached its duty of care. Even accepting as true that sudden acceleration in the 1991 Aerostar would occur, at most, very infrequently when measured against all Aerostar ignition starts, the consequences of sudden acceleration could easily be catastrophic, the design of which Jarvis complains has no particular utility to balance its potential for harm, and, according to Jarvis's expert, the malfunction in the cruise control could be avoided by an inexpensive switch that would shut off power to the cruise control when not in use.

A different case would be presented if Jarvis had been found unconscious in her overturned Aerostar, with no memory of or witnesses to the accident. In such a case, Jarvis would have to rely more heavily upon scientific evidence to demonstrate that the accident was caused by sudden acceleration. Our decision in Fane v. Zimmer, Inc., 927 F.2d 124 (2d Cir.1991), relied upon by the district court, makes this precise distinction. The plaintiff in Fane needed to show, at the very least, that the plaintiff's internal injuries occurred after a medical device implanted in the plaintiff's hip broke. Id. at 131. Unlike Jarvis's in accident, we noted in Fane that "no one observed the accident in this case; and no one knows for sure how it happened." Id. Here, Jarvis offered testimony which a reasonable jury could believe to the effect that the Aerostar's sudden acceleration, not driver error, was the cause of her accident.7

The district court also found that, apart from the issue of scientific evidence of a specific defect, "there is such an overwhelming amount of evidence in favor of the defendant that reasonable and fair minded persons could not arrive at a verdict" in favor of Jarvis. Jarvis, 69 F.Supp.2d at 602. In support of this conclusion, the district court stated that testimony from Jarvis's own witnesses "demonstrat[ed] essentially ... that the July 14, 1991 incident was not the result of plaintiff's sudden acceleration theory." Id. Specifically, the district court emphasized that (1) Jarvis offered no physical evidence of either the specific defect in the cruise control mechanism or of a defect in the "dump valve," and (2) Sero's theory that Jarvis's pumping of the brakes contributed to the accident was undermined by testimony by Jarvis's expert Pope.

Even though, as discussed above, the law does not require Jarvis to prove what specific defect caused the cruise control to malfunction, Ford conceivably could have offered scientific proof that the cruise control would not have malfunctioned in the manner alleged that so outweighed Jarvis's proof that it malfunctioned as to warrant judgment as a matter of law for Ford. This is not such a case. To explain why, we first examine the evidentiary value of Sero's theory and then address particular issues of fact that the district court resolved in favor of Ford but that we conclude were left open by the evidence and, accordingly, were matters for the jury to decide.

a. The Evidentiary Value of Sero's Theory

In its Daubert hearing, the district court fully analyzed Sero's proposed testimony under the factors established by the Supreme Court and found the testimony admissible.8 The jury was entitled to consider this evidence, even if it did not conclusively demonstrate — as it need not — what specific defect caused the Aerostar's cruise control to malfunction. The district court did not strike the Daubert testimony before evaluating Ford's motion for judgment as a matter of law or recant its Daubert findings in ultimately granting that motion. Nor has Ford appealed the results of the Daubert hearing. So we need not rule on the district court's Daubert findings. However, we briefly review those findings, as they help to illustrate the role of Sero's testimony within Jarvis's case presented at trial.

Under the first Daubert factor, the court found that "Sero has sufficiently tested and replicated" the theory of two independent faults — one of the ground of the cruise control servo and another of the vent and/or vac wires. Jarvis, 1999 WL 461813, at *4. The court was satisfied that Sero's findings "have been sufficiently verified through repeated tests on a model that accurately reflects the relevant electrical components on the 1991 Ford Aerostar." Id. The court further noted that Ford did not dispute that "Sero's manipulation of the cruise control components can result in sudden, unintended acceleration," and argued only that Sero had never observed the same results "in the real world." Id. Meanwhile, the court was careful to exclude another of Sero's theories that did not satisfy this first prong of the Daubert test. Id. at **4-5.

As to the second Daubert factor, the court held that even though Sero's findings had been neither published nor peer reviewed, this alone was not a sufficient reason to exclude Sero's testimony. Id. at *6.9 The district court dismissed criticisms under the third Daubert factor that these theories had not been tested for their rate of error. In this regard, the court stated that Sero was not "proposing to testify as to the likelihood that a malfunction in the cruise control caused [Jarvis's] accident." Rather, the court pointed out:

Sero is proposing to testify that the design of the 1991 Aerostar makes it physically possible for this malfunction to occur, and wishes to demonstrate to the jury how it can happen. Plaintiff presumably will seek to establish specific causation either through its accident reconstructionist or by attempting to draw inferences from the circumstantial evidence.

Unlike the more typical case in which an expert testifies to specific causation and uses a statistical sampling method to determine the likelihood of the event occurring in the particular case, here plaintiff's expert proposes to testify about general causation and relies on modeling and a fault analysis to demonstrate known physical and electrical principles....

Defendant's dispute with Sero's ... findings lies not in their possibility, but in the likelihood that such conditions will occur in the "real world.".... Disputes over the conclusions that can be drawn from the results of Sero's modeling analysis is properly the province of the jury.

Id. at **6-7.

Turning to the fourth Daubert factor, which tests the degree to which the expert's technique has been generally accepted in the scientific community, the district court observed that Ford "does not specifically challenge Sero's methodology." Id. at *6. Sero claimed to have used "failure mode analysis" on the 1991 Ford Aerostar cruise control system, a "standard approach" to evaluating the design of a component. Id. The district court concluded that Ford "has not asserted that Sero's approach lacks support in the engineering community and we have no reason to believe such a technique is unreliable." Id.

The court next addressed a 1989 report prepared by the National Highway Traffic and Safety Administration ("NHTSA") finding that the occurrence of the two independent electrical failures, as suggested by Sero, "is virtually impossible." Id. at *8. The court noted that the NHTSA may not have recognized that sudden acceleration could be caused, under Sero's theories, from a dead stop, and that because the court did not have further evidence as to the basis of the NHTSA's conclusions, it would not exclude Sero's testimony solely on the basis of the contrary conclusion reached by the NHTSA. Id. at *9.

The court recognized that Jarvis's inability to offer physical evidence from the accident in support of the specific defects Sero discussed could affect the weight the jury gave to these theories. The court concluded, however, that this fact did not affect the admissibility of th