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Borsack v. Ford Motor Co.

May 14, 2009


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge


Plaintiff Ronald Borsack, individually and on behalf of the estate of his deceased wife, Lesley Borsack, sued Ford Motor Company ("Ford") claiming that a defectively designed door latch and seat-belt system in Plaintiff's 1998 Ford Expedition were the proximate cause of Mrs. Borsack's ejection and subsequent death in a one-car rollover accident. On March 5, 2009, following a nine-day trial, a jury found in favor of Ford.

Plaintiff now moves for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure on the following grounds: (1) the jury's verdict for Ford was based on an incorrect interpretation of the evidence; (2) the Court erred in allowing Ford to present statistical evidence about the rate of accidents across comparison vehicles; (3) during summation Ford's counsel misstated the speed that Mrs. Borsack's vehicle was traveling when it began to roll; and (4) the Court erred by preventing Mr. Borsack from presenting his claim of a seat-belt defect to the jury.

None of these grounds are sufficient and Plaintiff's motion for a new trial is DENIED.


The facts of the incident leading to the litigation are not contested. Mrs. Borsack died when she swerved to avoid a raccoon while driving on a four-lane divided highway in Sparta Township, New Jersey, on the evening on May 8, 2002. Her Ford Expedition drove into the grass median dividing the highway and rolled over four times. At some point between the completion of roll one and roll two Mrs. Borsack was ejected from the vehicle-either through the driver's-side window, as Ford claimed, or through the driver's-side door, as Plaintiff claimed-and she died at the scene shortly after the accident. Both parties agreed that the driver's-side door opened at some point in the rollover.

At issue was what caused the door to open. Mr. Borsack presented evidence at trial that the force of the crash activated an internal latch through the foreshortening of a stiff rod inside the door, or that a wire loom inside the door panel interfered with the proper function of the internal latch and caused the door to open. Had the door not opened, Plaintiff argued, Mrs. Borsack would have stayed inside the vehicle; her injuries would be less and she would not have died. Plaintiff argued that either explanation for why the door opened represented a design defect and was the proximate cause of Mrs. Borsack's death. Ford presented evidence at trial that the door latch was properly designed and that the door opened because it was activated by Mrs. Borsack or some other object in the car-essentially, that someone or something inadvertently pulled the inside door handle during the rollover. Ford's theory was that Mrs. Borsack was not wearing her seat belt and that her foot or some other part of her body caught onto the inside door latch, opening the door as she was ejected out of the window.

Mr. Borsack also wished to demonstrate that there was a seat-belt defect in the Ford Expedition which malfunctioned during the rollover. Had the seat belt functioned properly Mrs. Borsack would have stayed inside the vehicle and would not have been ejected. The Court conducted a pre-trial Daubert hearing on whether Plaintiff's proposed seat-belt expert, Mark Pozzi, should be allowed to testify on his conclusion that the seat belt was defective. On February 3, 2009, the Court determined, pursuant to Rule 702 of the Federal Rules of Evidence, that Mr. Pozzi could not testify about the safety of the 1998 Ford Expedition seat belt because he relied on tests of dissimilar seat-belt systems in developing his theories.*fn1

At trial, Mr. Borsack focused his product liability claim on the internal door-latch system. He presented 13 witnesses, including several experts. Ford called seven witnesses, including Dr. Rose Ray, who presented statistical evidence comparing ejection rates in rollover crashes between the Expedition and similar vehicles across six states. After nine days of testimony and summations from the parties, the jury deliberated for approximately four-and-a-half hours and returned a verdict in favor of the Defendant. Interrogatory 1 on the verdict sheet asked, "Do you find that the door latch system of the 1998 Ford Expedition was defectively designed?" and the jury answered in the negative. The verdict sheet then had the following instruction: "If you answered 'NO' to question 1, stop, you have returned your verdict." At Plaintiff's request, each member of the jury was polled and confirmed the verdict. The Court entered an Order of judgment dismissing the Complaint on March 23, 2009.


Rule 59 provides that courts may grant a new trial "for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed. R. Civ. P. 59(a). Granting a new trial is appropriate where "the jury has reached a seriously erroneous result or its verdict is a miscarriage of justice." Nimely v. City of New York, 414 F.3d 381, 392 (2d Cir. 2005) (internal quotation marks and citations omitted). The Court addresses each of Plaintiff's four grounds for a new trial.

1.The Jury's Verdict

Mr. Borsack argues that the jury's verdict is unsupported by the evidence presented at trial. He attempts to impeach the verdict by claiming that "[c]onversations with jurors subsequent to the verdict confirmed Plaintiff's suspicion that the jury found that latch overload caused the door opening in this case." (See Plaintiff's Rule 59 Motion ("Pl. Rule 59 Mot.") at 5.) As such, the jury's ruling could not be based upon any evidence in the record, because the evidence at trial indicated that latch overload was not the cause of the door opening. This surmise about the jury's reasoning is further premised on the jury's request, during its deliberations, to see an exemplar overloaded latch.*fn2

These arguments do not lead to the conclusion that the jury's verdict was erroneous or a miscarriage of justice. First, informal, off-the-record, post-verdict conversations with jurors cannot be the basis for overturning a verdict under Rule 59. See Attridge v. Cencorp Div. of Dover Tech. Int'l, Inc., 836 F.2d 113, 116 (2d Cir. 1987) ("If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference.") (quoting McDonald v. Pless, 238 U.S. 264, 267-68 (1915)). While post-verdict discussions between the lawyers and the jurors may be helpful to lawyers concerned about improving their trial techniques, they are not fact-finding missions for the losing party to ...

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