On January 10, 2013, the Supreme Court of Virginia issued its opinion in the case of Funkhouser v. Ford Motor Company. The court withdrew its June 7, 2012 opinion, decided 4-3, following rehearing of the matter on the defendants’ petition.
The recent decision, authored by Justice Powell, represents the view of the formerly dissenting justices, who were joined by Justice Millette to create a new majority which upheld the circuit court’s decision excluding the plaintiff’s expert testimony regarding other Ford Windstar fires. In its 4-3 decision, the majority holds that none of the fires identified by the plaintiff’s expert were admissible to prove the manufacturer knew or had reason to know of a dangerous condition because none met the elements of the substantial similarity test. The Court clarifies that the substantial similarity test requires proof (1) that the incidents occurred under substantially the same circumstances as the incident at issue in the lawsuit and (2) that the incidents were caused by the same or similar defects. (Pages 10 and 11.) The Court reasons that ignoring the importance of a same or similar defect, as advocated by the plaintiff, “would allow a plaintiff to attribute notice and actual knowledge to a manufacturer based on the mere existence of a generalized danger; there would be no requirement for the danger to be attributable to the manufacturer in any way.” (Page 11.)
