Shonnie Newton, et al., Appellants; Michael Nolte and Barbie Nolte, Appellants, v. Ford Motor Company, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Shonnie Newton, et al., Appellants; Michael Nolte and Barbie Nolte, Appellants, v. Ford Motor Company, Respondent. Case Number: WD66066 & WD66067 Handdown Date: 06/30/2008 Appeal From: Circuit Court of Jackson County, Hon. Charles E. Atwell Counsel for Appellant: Edward D. Robertson, Jr. Counsel for Respondent: James Feeney Opinion Summary: Michael and Barbie Nolte and the family of deceased Missouri Highway Patrol Trooper Michael Newton appeal the circuit court's judgment in favor of Ford Motor Company on their claims for negligence and strict liability. These claims arose from a accident in which Newton's vehicle, a 2003 Ford Crown Victoria Police Interceptor, was struck in the left rear at a high rate of speed by a truck pulling a lengthy trailer. The fuel from the fuel tank ignited and Newton's car burst into flames, killing Newton and severely burning Nolte. Newton's family raises six points of error including the court's rulings as to closing argument, the court's determination of no prejudice and evidentiary rulings of the court. AFFIRMED. Division holds: The trial court erred in denying Newton's family the ability, in closing argument, to discuss certain evidence that had been presented to the jury during the trial. The court did not abuse its discretion in

determining that the error was not prejudicial. The excluded argument was not substantially material to the issue of liability and the trial court could reasonably conclude there was no prejudice. The contested evidentiary rulings of the trial court were not in error. Because we find no reversible error, the judgment is affirmed.

Opinion Holds: Judge Holliger dissents that the majority fails to recognize the purpose and importance of closing argument. The limitation placed on Newton's family's closing argument was erroneous, because it precluded comment on material in evidence and because the issue involved was a central issue in the case. The trial court ruling at issue prevented argument relating to Netwon's family's core theory of the case as well as entirely proper impeachment of Ford's witnesses. Citation: Opinion Author: James M. Smart, Jr., Judge Opinion Vote: AFFIRMED. Lowenstein, J. and Witt, Sp. J.(FN1), concur in the opinion of Smart, J., for the court. Holliger, J., dissents in separate opinion. Spinden, J., joins in the dissent. Opinion: Michael and Barbie Nolte and the family of deceased Missouri Highway Patrol Trooper Michael Newton (collectively, the "Plaintiffs") appeal the judgment of the Jackson County Circuit Court following jury verdicts in favor of Defendant Ford Motor Company on Plaintiffs' claims for negligence and strict liability. These claims arose from a horrible accident in which Trooper Newton's vehicle, a 2003 Ford Crown Victoria Police Interceptor (CVPI), was struck in the left rear at a high rate of speed by a truck pulling a lengthy trailer. The fuel from the fuel tank ignited and the CVPI burst into flames, killing Trooper Newton and severely burning Mr. Nolte. Plaintiffs raise six points on appeal. Our rulings on Plaintiffs' Points II through VI lack jurisprudential value and are resolved by summary order pursuant to Rule 84.16(b). The parties are furnished a memorandum as to the reasons

for those rulings. In this opinion, we deal with Plaintiffs' Point I, in which Plaintiffs allege prejudicial error related to the court's rulings as to closing argument. Background On the morning of May 22, 2003, Trooper Newton pulled Mr. Nolte over in the eastbound lanes of Interstate 70 for a routine traffic violation. Trooper Newton stopped his CVPI behind Mr. Nolte's vehicle on the right shoulder of Interstate 70. Trooper Newton asked Mr. Nolte to get out of his vehicle and join him in his patrol car. Mr. Nolte sat in the passenger seat of Trooper Newton's CVPI while Trooper Newton wrote Mr. Nolte a warning. While the two men were sitting in the Trooper's vehicle, Paul Daniel was heading eastbound on Interstate 70. Mr. Daniel was driving his employer's truck, pulling a lengthy trailer. The truck and the trailer together weighed more than six tons. At the time, Daniel was acting within the scope of his employment with Trade Winds Distributing, Inc. As Daniel was approaching Trooper Newton's vehicle at a rate of speed between sixty-five and seventy miles per hour, Daniel reached for his sunglasses and took his eyes off the road. His truck veered onto the shoulder of Interstate 70 and collided with the left rear of Trooper Newton's CVPI. The right portion of the truck's front bumper impacted the left side of the CVPI's rear bumper. The CVPI's gasoline filler pipe, which extends from the fuel tank to the exterior gas cap, is located on the left side of the vehicle, about three and one-half feet in front of the rear bumper. The force of the impact knocked both the CVPI and Mr. Nolte's vehicle off the right side of the shoulder, down the embankment. Mr. Daniel's truck veered left and continued on down the highway, finally coming to rest on a guard rail on the left side of the eastbound lanes.

Testimony at trial indicated that just prior to the impact, the weight and speed of the truck and trailer would have generated between 1.6 and 1.8 million foot-pounds of energy, an amount of energy equal to approximately twice that generated in a 75 mile-an-hour crash between two Crown Victoria automobiles. Trooper Newton's CVPI exploded and burst into flames. Trooper Newton burned to death. Mr. Nolte was pulled from the vehicle, but not before he suffered serious burns. The CVPI's fuel tank is designed to deform in the event of such an impact, which it did. Inspections revealed that the crash resulted in only a tiny hole in the fuel tank itself. However, the vehicle's metal fuel filler pipe (into which gasoline is dispensed at the filling station) was severed, allowing gasoline to be released through the severed filler pipe. The escaping gasoline ignited. If it had not been for the fire, both men apparently could have escaped major injury. About a month after the accident, Michael Nolte and his wife filed a petition for damages against Ford Motor Company and Trade Winds Distributing. Count I alleged negligence against Ford and Trade Winds. Counts II, III, and IV alleged strict liability against Ford on the basis of design defect, manufacturing defect, and failure to warn. They alleged that the CVPI was defectively designed and unreasonably dangerous due to the location of the fuel tank, which is behind the rear axle, and the design of a "check valve" in the fuel tank filler tube. Testimony indicated that the "check valve" is designed pursuant to EPA specifications to prevent both vapor and liquid from escaping from the fuel tank. The check valve includes a spring and a plastic sealing flange. Trooper Newton's wife, Shonnie Newton, individually and as next friend for her son, also filed a petition for damages against Ford and Trade Winds, similarly alleging negligence and strict liability. The two cases were consolidated for trial. At a jury trial in May of 2005, both families submitted the same theories against Ford. As to product defect, Plaintiffs' instructions asked the jury to find that "the filler tube check valve or the location of the fuel tank ... was then in a defective condition unreasonably dangerous." As to the claim of negligence, the Plaintiffs asked the jury to believe that Ford was negligent in its design of the CVPI in that "the filler tube check valve was defective due to its

design," or "the fuel tank was defective due to its location." Thus, all Plaintiffs' claims of defects were exclusively about the "filler tube check valve" and the location of the fuel tank. At the close of the evidence, the trial court, sua sponte, and over the objection of Plaintiffs, directed a verdict in favor of Plaintiffs on the issue of liability against Trade Winds, with the jury to award damages. The case against Ford was submitted to the jury on the claims of negligence and product defect. Against Trade Winds, the jury awarded the Newtons $4 million and the Noltes $4.5 million. The jury found in favor of Ford on the claims of both negligence and product defect. The trial court denied Plaintiffs' motion for new trial. Plaintiffs appeal. Point I Point I relates to the fact that Trooper Newton's CVPI was equipped with a shield (or "upgrade kit") designed by Ford to reduce the likelihood of fuel tank punctures in rear-end collisions that could result in fires. The shield did not purport to provide protection to the gas line filler tube. In pre-trial motions, the trial court had ruled on the admissibility of evidence related to the fact that there had been CVPI rear-end collisions resulting in fuel leaks, some of which resulted in fires, even after Ford had developed the shield. There were eleven such fuel leaks, four of which occurred prior to the Newton incident, and six of which occurred after the Newton incident. Plaintiffs sought to introduce evidence of these incidents to show Ford's notice of claim or defect. Because the incidents were offered only to show notice, the court ruled that only the four pre-Newton incidents would be admitted.

During the trial, the fact that there had been eleven such incidents, and not just five (the four pre-Newton and the Newton) was presented in the testimony: once in deposition testimony presented by Ford, and once in the cross- examination of one of Ford's experts. Ford recognized it had inadvertently allowed testimony as to all eleven post- Newton incidents, and counsel stated he did not wish to "go further" with the testimony, but there was no withdrawal or striking of the testimony. Ford also did not object when Plaintiffs presented evidence as to all eleven incidents. Thus, the evidence of the eleven incidents was in the case. In the opening portion of Plaintiff's closing argument, Plaintiffs began to discuss the entire eleven rear-impact incidents with fuel leakage. Ford objected, asserting the evidence was not in the case. The court sustained the objection. Plaintiffs raised the subject again before its final argument. The court did not allow Plaintiffs to mention the subject in their final argument. At the hearing on the motion for new trial, the court conceded that it might have erred in precluding Plaintiffs from discussing all of the eleven post-shield incidents. The court recognized that evidence of all eleven such incidents might have been introduced into the case. The court stated that Ford's closing argument might have provoked an opportunity for Plaintiffs to retaliate by discussing the six post-Newton incidents in argument. The court concluded, however, that even if it was error to restrict Plaintiffs' argument, such ruling was not prejudicial because the shield was never designed to protect the filler neck. The shield, said the court, had "little if any relationship to the issue of causation." The court determined that its erroneous ruling on Plaintiffs' proffered argument was not prejudicial. A. Standard of Review The trial court acknowledged after trial that it likely erred in restricting Plaintiffs' argument, but ruled there was no

prejudice in determining not to grant a new trial. Thus, our focus does not go to the erroneous ruling on argument itself, but rather the trial court's decision on the issue of whether to grant a new trial. In reviewing a trial court determination concerning prejudicial effect, which is generally a largely factual determination, appellate courts "will usually defer to the findings of the trial court concerning their prejudicial effect" when the issue of prejudice is based in factual matters such as "abstract generality, overemphasis, or confusing or misleading statements[.]" Morris v. E.I. Du Pont de Nemours & Co., 173 S.W.2d 39, 42 (Mo. 1943). The broad discretion accorded the trial court in ruling a motion for new trial "presupposes a determination of fact, not law." Giddens v. Kansas City S. Ry. Co., 937 S.W.2d 300, 303 (Mo. App. 1996). "Deference is given to the better position of the trial judge to evaluate the prejudicial effect of the overall tenor of the closing argument." Id. at 309 (affirming trial court grant of new trial). Although appellate courts apply a rule of "greater liberality" in upholding a grant of new trial, Pasalich v. Swanson, 89 S.W.3d 555, 559 (Mo. App. 2002), the applicable standard of review as to a ruling denying a new trial on grounds of prejudice is also the standard of abuse of discretion. Morris, 173 S.W.2d at 42. "We review the trial court's denial of a motion for new trial for abuse of discretion." Gallagher v. DaimlerChrysler Corp., 238 S.W.3d 157, 162 (Mo. App. 2007); see also Kansas City v. Keene Corp., 855 S.W.2d 360, 372 (Mo. banc 1993). B. Background

1. Confusion About the Six Post-Newton, Post-Shield Incidents

The factual record must be explained in some depth in order to gain an understanding of Plaintiffs' point on appeal and Ford's response thereto. Although the court had ruled that only four of the post-shield incidents were admissible (to show notice of product defect), Ford, in its opening statement, inadvertently displayed a chart to the

jury that included all eleven post-shield incidents, including the Newton incident and six that occurred after the Newton incident. The chart was not offered or admitted into evidence. Plaintiffs, having taken note of the display of the chart, later sought to discuss all incidents shown on that chart during direct examination of their expert, Jerry Wallingford. Ford objected. Plaintiffs argued that Ford had opened the door by its inadvertent display of the chart. The trial court denied the request based on its determination that Ford had not "done anything [by showing the chart] that creates any unfair advantage." The court stood by its pre-trial ruling, reached by agreement of the parties, that only the accidents prior to Trooper Newton's incident were admissible to show notice. These eleven incidents arose again during Ford's reading testimony from Susan Cischke, a vice-president of safety at Ford, who had testified in a previous case. Both parties designated portions of her testimony from that case to be read into evidence in this case. The portion designated by Ford included a reference to the eleven incidents of fuel leaks involving vehicles that had been equipped with a shield upgrade kit, including six post-Newton incidents that had been ruled inadmissible. The following discussion was included in the portions read into evidence: Q [By counsel for Ford]: There have been incidents with shields. It's a fact. Everyone knows it. Are you aware of it? A: Yes. Not only am I aware of it, but we talked about that at the press conference that there would continue to be -- accidents would happen, and that we did not think that installation of the shields would eliminate all these types of accidents, and there would be indeed accidents that involved fuel leakage, eventually fire of vehicles that did have shields on them. .... Q: And do you have some observations that you think might be helpful to understand from your perspective what your perspective is on some of these incidents [that were part of the court file in that case]?

A: Sure. I could share that with you. Overall, when I look [at the list], there's about 11 accidents, I think, that are -- are shown up there with the shield there that are vehicles that have been involved in a rear impact that had either some fuel leakage and some had fire. I know from our experience working with law enforcement that there's probably many more out there that have had impacts with shields that had no leakage, and we know that from experience even during the whole processes. I mean, we had many letters from law enforcement agencies indicating, you know, for instance, in California, they total a vehicle a week and they haven't had any instances of these. So while this represents vehicles that did have some leakage and some had fire, we know that there are many more others that -- that did not have. (Emphasis added.) Immediately after Ms. Cischke's testimony was read, counsel for Ford asked to approach the bench. Ford's counsel expressed concern about Ms. Cischke's reference to the eleven incidents (that he had allowed to be read). He was "concerned that we are in the same problem that I was in the opening." He observed that she was "probably" looking at a list that would include some incidents after the Newton accident. Counsel said he did not want to go any further with that testimony. He did not ask for the court to strike any of the foregoing from the record. Another reference to the eleven incidents occurred at trial during Plaintiffs' cross-examination of Richard Cupka, an engineering manager at Ford who was testifying as an expert witness. This time, Plaintiffs' counsel elicited the testimony, asking Mr. Cupka:

Q. Ms. Cischke testified yesterday that she knew of 11 [accidents] with the shields where there were fuel leaks or fires. Are you aware of those 11 accidents? A. I don't think there is any for any shielded components. Q. Not my question. A. Oh. Well, I'm sure there may be accidents that have had fires, but for the things that we went out to shield and eliminate them as a potential puncture source, we haven't had any that they have not been effective. There will be fires. You can hit one with a -- in Michigan our trucks have 80,000 -- now it's up to 120,000-pound limits on their weights. There is nobody that can keep the fuel in the tanks if one of those hits you. So I'm sure there are going to continue to be some level that we can't shield for, that nobody could. Q. Have you told law enforcement that there have been 11 other -- 11 accidents with shields where there has been a fuel leak or fire, at least 11? A. I have not told law enforcement that, no. .... Sitting here today, I firmly believe that we have not had any leaks or fires from shielded components my system has designed for. This questioning about all eleven post-shield incidents (including the six post-Newton) occurred without objection by Ford. Later, during Plaintiffs' cross-examination of Ford's expert, Mark Noble, counsel asked a question about the

number of "rear impacts with fires in Crown Victoria patrol cars in 2003 with the shields." Ford objected on the basis that the question necessarily encompassed the inadmissible accidents that occurred after the Newton accident. Plaintiffs asserted that they were "not saying [Ford] opened the door to anything, but the evidence [of all the incidents, including the six post-Newton, was] already in the case" (though it is not clear as to what testimony Plaintiffs were referring). The court responded that Ford "didn't intend to get into that stuff and he basically right afterwards said he didn't get into it, and I told him he wouldn't be bound by it" (apparently referring to Ford's inadvertent use of the exhibit in opening statement). In response to the court's statement, Plaintiffs responded, "I'll move on," and then ended their cross-examination of Mr. Noble. At that point, evidence of the six post-shield, post-Newton accidents was in the case, introduced by Ford (Cischke's testimony) and introduced by Plaintiffs (Cupka's testimony). But it seems the court did not realize that the Cischke testimony had never been withdrawn, and further did not realize that Plaintiffs had elicited similar testimony without objection from Cupka. The testimony of both remained in the case.

1. Closing Arguments

During Plaintiffs' closing argument, counsel stated: Ms. Cischke, the head of safety, said, "There have been 11 accidents with the shield that involved rear impacts that had some fuel leakage and some fire." After the shields were put on in the fall of 2000 [sic], 11 other accidents with fuel leakage and fire with the shields. Ford objected on the basis that the evidence had been "withdrawn" and asked that the jury be instructed not to consider it. The court also expressed its understanding that the evidence had been "withdrawn." Plaintiffs' counsel

stated that it "was not withdrawn from the evidence," to which the court replied, "Yeah, it was withdrawn." Plaintiffs' counsel responded: "All right. All right." Ford's counsel asked to have the jury "instructed they cannot consider that." Plaintiffs' counsel began to interject something, when the court stated: My understanding -- I'm just telling you, my understanding is that's why I didn't allow its use in opening. I said, 'We're not going to open the door.' He didn't open the door. My understanding is it was withdrawn. Plaintiffs' counsel responded: "All right." The court then instructed the jury, "Ladies and gentlemen of the jury, you are to disregard the last argument of counsel." Plaintiffs continued with their closing argument. Plaintiffs, in further argumentation, referred to the shield upgrade kits, commenting that the shields worked only in "limited circumstances." During Ford's closing argument, in response to Plaintiffs' suggestion that the shield upgrade kits worked only in "limited circumstances," counsel for Ford stated: Well, here are the limited circumstances that it works under, ladies and gentlemen. That [shield] upgrade kit and those countermeasures -- you heard Dick Cupka and Jack Ridenour explain this to you -- they were developed as a result of the joint efforts of law enforcement and Ford Motor Company that gathered information about every wreck that had occurred involving a police officer and, for that matter, a Panther. Every one. They didn't put their heads in the sand. They didn't keep this from the police. Every piece of information about what happened in those incidents was gathered and collected, studied and analyzed, and that is how the upgrade kit was developed. And that was the product that was on this car when this accident occurred in May of 2003.

Now, every one of the leakage modes, with the exception of the Lynn Ross incident, which nobody knows enough about to be able to say this with any certainty one way or the other, every one of those leakage modes was addressed by the upgrade kit. This is limited circumstances? Ford here is apparently referring to all of the pre-shield accidents studied by Ford (including the Lynn Ross incident, which was a pre-shield accident) and suggesting that the shield upgrade kit was an attempt to address every one of the known causes of leaks. Ford then, by challenging the phrase "limited circumstances," seems to be challenging the assertion by Plaintiffs that the shields failed to substantially address leakage caused by components for which they were designed. On reflection, we believe Ford was talking about engineering effort, while Plaintiffs were talking about whether the engineering effort was effective to prevent fires. So we think some semantical confusion continued. There was no objection by Plaintiffs. However, during a recess in the middle of Ford's closing argument, Plaintiffs again took up with the court the issue of the eleven incidents. Plaintiffs' counsel stated: Very quickly. [Counsel for Ford] has argued that these accidents are happening every day and that there are no problems and that the axle shields are working. This apparently referred to an argument by Ford about the large number of CVPI's totaled in California regularly without resulting in leakage or fires. Counsel for Plaintiff stated to the court: Now, I understand your ruling with respect to what you said on the 11 accidents and my part of it, but the jury was

not instructed to not consider -- that is in evidence. Whether it was read by mistake or not, it was read into evidence and not withdrawn. That's part of the record in this case. Plaintiffs' counsel is accurate in this statement of the evidence. Counsel went on: Now, you told me I couldn't argue it, which I understand. .... And [Ford] has certainly opened it up that I should be able to argue that in rebuttal. The court did not think the door had been opened: I think the response is a perfectly good response to a punitive damage argument, okay? So I don't think the door has been opened, and you cannot get into the [post-Newton] postshield accidents. Plaintiffs' attorney said, "Okay." The court reiterated that Ford's arguments "go to the punitive damages issue and those kinds of things." The court said that if Plaintiffs felt any further argument on the issue by Ford "opens the door," then the court would "hear [them] out again."

1. Post-Trial Ruling

In a post-trial proceeding, the trial court, sua sponte, expressed concerns regarding the matter of the post-shield post-Newton accidents. The court said it believed, upon further reflection, that "a valid argument could be made" that Ford "had injected [the six post-Newton incidents] into the case" through Ms. Cischke's deposition. The court said

that based on Ford's argument that the shields had addressed the problems "a fair retaliation" might have been to allow Plaintiffs to argue all of the post-shield incidents, including those after the Newton incident. The court asked the parties to address the matter in their arguments on Plaintiffs' motion for new trial. After reading briefing materials and hearing arguments on the matter, the court noted that Ms. Cischke's reference to the eleven post-shield incidents involved five that the jury was aware of, and that the other six, because they occurred later, could not show notice. The court said Plaintiffs had the opportunity at the pre-trial hearing to show how these six incidents were admissible to show product defect, but failed to do so. The court noted that both Ford witnesses, Richard Cupka and Jack Ridenour, had essentially testified that the shield upgrade kits went a long way toward addressing prior concerns about the fuel system in the CVPI. The court further noted that Ford's counsel relied upon the testimony of Cupka and Ridenour in closing argument to assert Ford's diligence by arguing that Ford "had effectively addressed the issues embraced by the[] pre-Newton accidents, by the use of the shield upgrade kit." The court found, however, that the major thrust of this argument was to counter Plaintiffs' punitive damages arguments. Nevertheless, the court concluded that it could have been proper to allow the Plaintiffs' proffered argument about the eleven incidents as "fair retaliation" to Ford's counsel's argument and "to counter or contradict some of the themes present in the testimony of Mr. Cupka and Mr. Ridenour." The trial court then examined whether sustaining Ford's objection constituted prejudicial error that would warrant a new trial. The court found that because the shield upgrade was not designed to protect the filler neck, which was severed in this case, and there was evidence before the jury that there had been leaks of CVPIs with shields, the shield had "little if any relationship to the issue of causation." The trial court ruled that while it would have been "the fairer thing to do" to allow the excluded argument, "the denial of [Plaintiffs'] argument did not constitute prejudice that affected the result of the trial." C. Analysis

Plaintiffs say the trial court properly recognized the error of its ruling but erred in finding that the error was not prejudicial. Plaintiffs are correct that the evidence was in the case. Ford did not object when Plaintiffs introduced the testimony of Cupka, and Ford had already introduced the testimony of Cischke as to the eleven incidents. The evidence was never formally withdrawn, nor had its use been limited as to purpose. Plaintiffs failed to correct the court's lack of understanding when Plaintiffs said during the testimony of Mark Noble that Plaintiffs were "not saying [Ford] opened the door to anything." Ford had opened the door; the evidence was in the case, and its use had not been restricted. Therefore, Plaintiffs could use the evidence and could suggest that the jury could draw reasonable and relevant inferences from the evidence. It is not clear, however, exactly how the post-Newton post-shield incidents proved anything material to liability. Plaintiffs claim on appeal that the effectiveness of the shield upgrades was a "pivotal issue" in the case. If the issue of the post-Newton fuel leaks in vehicles with shields had in fact been "pivotal," we would agree with Plaintiffs. In fact, even if the effectiveness of the shields had been substantially material to the essential issues of liability, Plaintiffs would have a stronger argument that the trial court abused its discretion. Plaintiffs' theory of the case was that the CVPI was defectively designed and unreasonably dangerous based on the design of the filler tube check valve and the location of the fuel tank. There was no testimony presented by Plaintiffs to show that the filler tube could and should have been effectively shielded. None of the experts had, in one expert's words, "figured out a way to prevent a filler neck from being torn in two under the circumstances that occurred in the Newton case."

The fire in this case was not caused by a puncture to the fuel tank from a cause that Ford had attempted to address with the shield upgrade kit. The shield upgrade was not designed to protect against the severing of the filler neck, which was shown to be the cause of the fire. The evidence in the case suggesting that Ford could have done something to avoid the severing of the filler tube came from the testimony of Plaintiffs' expert, who suggested that if the tank were placed over the axle, or in front of the axle, rather than just behind the axle, and if the check valve were designed somewhat differently, it would have been less likely that fuel would have spilled and ignited. Ford's experts countered these opinions on causation, opining that the proposed change of tank location and an alternate design of the check valve would not have had any effect on the likelihood of a fire, because fires will occur wherever the tank is located. This, according to the trial court's perspective, was the crux of the case. The jury had to decide whether it was persuaded by Plaintiffs' expert opinions or by Ford's expert opinions. As the trial court perceived it, the essence of the case had "little, if anything" to do with the shield upgrades.

1. Ford's Defense

Plaintiffs characterize Ford's defense theory as: there was no defect in the car; but, even if there was, the shield upgrade kits "addressed all leakage problems with the CVPI fuel system and tank location." Our review of the arguments shows that Plaintiffs mischaracterize the defense. Ford's defense was, more accurately, that it is impossible to prevent all fires because fuel tanks contain gasoline, and huge impacts are possible. Ford's position was that moving the gas tank farther forward would not have guaranteed anything concerning this accident because the filler tube would have been in essentially the same place (about three and a half feet forward of the rear bumper), and the fire still would have occurred. Ford's defense seemed to encompass the following: the CVPI was in compliance with (or exceeded) federal

safety standards and was engineered in accordance with what was desired by law enforcement; no one has shown how it is possible to make the CVPI with all the desired features and have the fuel tank in a different location; the CVPI is designed to absorb major rear impacts; the filler tube is three and a half feet from the rear bumper, which means the filler tube has significant protection from being severed by a rear impact; even if the tank had been moved as Plaintiffs suggest, the filler pipe would have been in essentially the same place; and the check valve was not designed to be a safety feature but was mandated by federal law for environmental emissions purposes. As to punitive damages, Ford attempted to show at trial that it was conscientious in trying to improve safety and in trying to respond to safety concerns. Concerns had been expressed by law enforcement about the risk of fuel tank punctures in rear-end collisions. Ford responded by developing the shield upgrade kit, which, by the time of trial, had helped prevent punctures from any of the components shielded by the upgrade kits. Neither Cupka's nor Ridenour 's testimony suggested that the shield upgrade addressed all leakage problems or completely eliminated all "defects." Rather, their testimony suggested only that the shield had been successfully designed to protect against fire based on the likely puncture sources. There was general agreement among the engineers that the shield would not prevent all punctures or fires. For example, Cupka testified: Q. [by Ford's counsel]: Did the [shield] upgrade kit go at least this far, did it take all the known puncture sources from field incidents, from axle components or axle suspensions and deal with it? A. Yes, it did. Q. Are you aware of any incident since the introduction of the upgrade kit up to and including the date of the Newton accident, May 22, 2003, are you aware of any field incident in which a shielded component, shielded by the upgrade kit, has punctured a fuel tank on a Crown Victoria Police Interceptor struck at any speed under any conditions?

A. Not that I am aware of, no. Q. Are you aware of any claim that has ever been made by anyone, prior to May of 2003, that the upgrade kit was not as a result of field incidents 100 percent effective in shielding the components that it shields? A. No. Nobody has made that claim to me or brought it to my attention. (Emphasis added.) Jack Ridenour, Ford's corporate representative at trial, testified: Q. .... Can you comment on what you believe to be the likelihood that if any one of these officers [in pre-upgrade kit vehicles] was in a 2003 model year Crown Victoria Police Interceptor, what the likelihood would have been that the leakage sources that resulted in fire would have, in fact, occurred in those accidents? A. I can't tell you that there wouldn't have been a fire. What I can tell you is the leakage sources that caused the fire in those accidents have been addressed with the shield kit, with the changes that we have made to production in the '03 vehicle. So if these officers had been in Officer Newton's car, the leakage sources that resulted in the fire in those cases would not have occurred. Now, I can't tell you that there wouldn't have been other leakage sources, and I can't tell you that there wouldn't have been a fire, but it wouldn't have been those instances. Those have been addressed.

Both of Ford's engineers testified that the shield upgrade kits were designed to address concerns about tank ruptures from collisions. Both conceded, though, that while the shield upgrade had represented steps toward addressing those concerns, there was no such thing as a leak-proof car. Both admitted that there had been leaks in vehicles with shields in the course of crash testing. Also, Cischke stated in her deposition that accidents would happen, and that [Ford] did not think that installation of the shields would eliminate all these types of accidents, and there would be indeed accidents that involved fuel leakage, eventually fire of vehicles that did have shields on them. It was undisputed that the shield upgrade kit was not designed to protect against the severing of the filler neck, which is what caused the fire in this case. The jury was well aware that this case -- as far as causation of this tragedy -- was not about the performance of the shield upgrade kits. The trial court did not tell the jury to disregard all evidence regarding accidents in which the vehicle was equipped with a shield upgrade. There could be no misunderstanding that the four pre-Newton incidents were in the case to show Ford's notice of claims of defect. The court's ruling, therefore, went to the six post-Newton incidents. Plaintiffs conceded this during the post-trial hearing. When the trial court noted that there was nothing in the court's ruling "that prevented [Plaintiffs] from arguing anything on [the other similar incidents] chart," Plaintiffs' counsel agreed. The four admissible post-shield, pre-Newton incidents were included on that chart (along with other pre- shield incidents). Those four post-shield incidents, plus the Newton incident, were all clearly in the case along with other accidents considered similar incidents, and any inference from those could be considered by the jury. Moreover, the jury was aware of all eleven post-shield incidents through Cupka's and Cischke's testimony. The jury observed in closing argument that the court sustained the objection when Plaintiffs were just getting started in a comment on the eleven incidents. The jury might remember that court instructed the jury to disregard whatever comments that Plaintiffs were about to make concerning the eleven incidents, but the jury would not have known exactly what Plaintiffs were planning to argue. Plaintiffs also made no specific offer to the court about what, exactly, they intended to argue, but here we can assume that they would have argued that Ford's shields were not effective in preventing

fires. The trial court, in considering the issue of prejudice, may have noted that even though there was no question that the Plaintiffs could argue the four pre-Newton accidents and the Newton incident for any purpose (because the arguments as to those five incidents were not restricted in any way), the Plaintiffs did not argue those incidents to the jury. If the six post-shield incidents were central to the case, we do not observe that from the actions of the parties. In addition to the fact that Plaintiffs did not argue the post-shield accidents, Ford was casual in allowing all eleven incidents to be referred to in the first place, and Plaintiffs earlier did not look to offer the incidents to show product defect, but only to show notice, which necessarily included only the pre-Newton accidents. Further, at closing argument, while asserting that the "evidence was in the case," Plaintiffs did not mention that it came in through both Cischke and Cupka, that there was no withdrawal of Cischke's testimony, and that Cupka's testimony came in without objection by Ford. The court apparently believed that Plaintiffs were referring to the chart used in opening statement, which was withdrawn, and to Cischke's testimony, which the court thought had been withdrawn, but had not been. Technically, whether Ford was conscientious as to safety, as shown by its designing the shield upgrade kits, and whether the kits were effective as to shielded items, related only to Ford's potentially guilty mind (as to liability for punitive damages). It did not, as the trial court correctly noted, relate to the causation of these injuries. Causation was tied to the severing of the filler tube, not to the shielding of other components. The trial court explained that there was "substantial evidence ... throughout the trial to suggest that the tank location was not a factor in whether or not a filler tube would be severed." (Emphasis added.) The Plaintiffs argue, citing Tune v. Synergy Gas Corp., 883 S.W.2d 10, 21 (Mo. banc 1994), that error in excluding closing argument creates a presumption of prejudice. Ford correctly notes that Tune dealt with arguments concerning damages, and held that it was error to allow Plaintiffs' counsel to mention the $3 million damage request in the final portion of the closing argument when defendant had no chance to respond. The court in Tune said that in the final portion of the closing argument, the plaintiff could repeat arguments from the opening portion and rebut arguments

raised by the defendant, but cannot for the first time make a damage argument (for over $3 million) that departs so substantially from the opening portion (in which the only expense figure mentioned was $54,000). See id. The Plaintiffs acknowledge that Tune is about taking unfair advantage of the defendant on the subject of damages, but suggests that the Court's rationale should apply equally to arguments regarding liability. We disagree. We do not see that Tune created any presumption of prejudice outside of the specific facts of that case. Thus, it does not create a rule that there is a general presumption of prejudice whenever there is an incorrect ruling on argumentation. We believe the law still is that, regardless of which party has the burden of persuasion of the issue of prejudice, the trial court's duty is simply to objectively determine the issue of prejudice. Our duty then is to simply determine whether there was an abuse of discretion by the trial court in making that determination. Of course, reasonable people could disagree with the trial court as to the issue of prejudice, as shown by the presence of the

deference to the trial court, especially in a complicated factual case, where the determination is largely factual, when the judge making the decision sat through the entire trial and personally observed the arguments as well as the evidence. See Giddens, 937 S.W.2d at 309. The factual pattern of this case was such that it is difficult to say which party here was more responsible for any confusion the court had at the time it ruled against Plaintiffs' desired argument. To the extent that it matters, and we need not decide that it does, Ford had greater responsibility for creating the confusion (though Plaintiffs certainly would have helped themselves very much by calling to the attention of the trial court that Cupka's testimony came in without objection). We need not decide that issue, because the trial was persuaded that there was no prejudice in its erroneous ruling. Plaintiffs' reliance on Tune does not avail because there was ample reason for the court in Tune to adopt a bright- line per se rule for such unfair damage arguments. The court could do so in Tune without intending to adopt a presumption of prejudice as to all erroneous rulings in argument. We are not prepared to say that in every civil case

there is a presumption of prejudice as to any erroneous ruling on argument. We believe the circumstances must be objectively examined for prejudice, and the trial court is in the best position to make the determination of prejudice. Plaintiffs argue that here there was prejudice because Ford's closing argument "reinforced the Ridenour/Cupka testimony that the shield upgrade kit had completely addressed the leakage problem." As has been shown, Ridenour and Cupka did not testify that shields had eliminated all leakages in impacts. They testified only that they had examined all of the leakage modes and had designed the shields in an effort to reduce the leakages. If anything seems obvious, it is that the shield on Trooper Newton's CVPI, which provided no protection for filler tubes, did little or nothing for the victims in this case. Plaintiffs also say that they should have been allowed to discuss the six post-Newton incidents because Ford's argument was directly contrary to Ms. Cischke's testimony and because Ford was taking unfair "advantage" of the court's erroneous ruling. It is not so clear that the argument was directly contradictory to Cischke's testimony, depending on how one views the argument. In any event, the court conceded, and we agree, that Plaintiffs should have been allowed to make the argument they wanted to here. If Plaintiffs wished to argue that the shields were not effective to prevent leaks, they would have done better to talk about eleven instead of five incidents. But that is not exactly the same thing as whether it made any difference in the result of the case. The trial court believed the case was not about whether the shields were effective. The trial court saw it as a side issue that did not meaningfully enter into deliberations, because the jury never reached the issue of punitive damages. Of course, anything could influence a jury in a close case—anything from a lawyer's clothing to a party's demeanor, to the natural sympathy toward victims of a horrible incident. Someone has to decide what would have influenced the jury within the real issues of the case when an error is considered for prejudice. We believe we must defer in a difficult case like this to the wisdom and integrity of the trial court. We fail to see, in view of the foregoing analysis, that we can say the trial court was clearly wrong and abused its discretion in reaching the conclusion that the court's ruling on the six post-Newton incidents was not prejudicial.

Conclusion We conclude that the trial court did not abuse its discretion in refusing to award Plaintiffs a new trial as to the erroneous rulings in closing argument. Point I is denied. Points II through VI are denied pursuant to Rule 84.16(b). A memorandum as to the reasons for the decision as to those points is provided to the parties. The judgment is affirmed. Footnotes: FN1. When this case was originally submitted, the panel included the Honorable Patricia Breckenridge and the Honorable Victor Howard. Subsequently, both judges have recused themselves, and, accordingly, do not participate. Separate Opinion:

argument was not prejudicial. What the majority does not directly acknowledge is the rarity of this case in the field of closing argument. The objection by Ford and ruling by the trial court prevented comment by plaintiffs concerning evidence clearly admitted into the case and before the jury for its consideration. The rarity of this situation is demonstrated by the failure of Ford or the majority to cite a single case finding no prejudice in the failure to permit argument about a material matter actually in evidence. Nor is there any citation to authority dealing with the issue of trial court error in prohibiting argument about a material matter actually in evidence. The omission of such authority is explained by the purpose and proper scope of closing argument.

Closing argument properly ties the opening statement and evidence together in a meaningful cohesiveness that a party believes will confirm in the jury's mind the plaintiff's or defendant's entitlement to a verdict. Good counsel on either side realize the importance of a theme. They know that a lawsuit without a theme is like a book or movie without a plot: perhaps visually interesting and entertaining but not important enough or convincing enough to require some affirmative action. Although some will debate whether a case can be won in closing argument, no experienced trial lawyer doubts that one can be lost. This elementary and simplistic explanation of the art of advocacy and expression of juror decision--making has been known since the early days of our legal history. It underlies, I believe, some of the basic rules regarding closing arguments. "The permissible field of closing argument is a broad one, and as long as counsel confines himself to the evidence and does not go beyond the issues and urge prejudicial matters or urge a claim or defense which the evidence does not justify, he is to be given wide latitude in his comments." Hoehn v. Hampton, 483 S.W.2d 403, 408 (Mo. App. 1972). Counsel is given wide latitude in discussing the facts and arguing inferences from the evidence. Duncan v. Pierce, 620 S.W.2d 70, 72 (Mo. App. S.D. 1981). That latitude exists even though the inferences drawn may appear erroneous or illogical. Eickmann v. St. Louis Pub. Serv. Co., 323 S.W.2d 802, 810 (Mo. 1959). Counsel is entitled to explain the law to the jury and not just stick with the language of the instructions. See Heshion Motors, Inc. v. Western Int'l Hotels, 600 S.W.2d 526, 534 (Mo. App. W.D. 1980). The latitude is not, of course, unfettered. The trial court may and should restrain vituperative language and personal attacks. State v. Banks, 215 S.W.3d 118, 121 (Mo. banc 2007). The trial court is given great discretion in controlling closing argument. Howe v. ALD Servs., 941 S.W.2d 645, 654 (Mo. App. E.D. 1997). The trial court is said to be in the best position to determine whether some relief rather than a mistrial is sufficient to cure the prejudice of an objectionable argument. The court, however, has no discretion as to legal errors, so a misstatement of the law is not permissible under the guise of discretion. White v. Gallion, 532 S.W.2d 769, 771 (Mo. App. 1975). Newton argues for, and the majority rejects, a standard of presumed prejudice based on Tune. Although that

standard has some attractiveness in a situation where counsel is prevented from commenting on evidence, which he has an absolute right to address, we need not reach that issue. I believe that Newton has shown sufficient evidence of prejudice to undermine any confidence in the verdict. The majority fails to recognize this prejudice, I believe, because it has conducted its prejudice analysis from the wrong perspective. Secondly, even assuming that no prejudice arose from the limitation imposed on Newton in the first half of closing argument, prejudice clearly arose when Ford took advantage of Newton's inability to comment on the evidence in its closing and, again, Newton was not allowed to comment in the rebuttal portion. No fixed analysis of prejudice exists because it must vary with the nature of the issue and the case. Some elements are, however, commonly considered. An important consideration is the closeness of the question to a central issue of the case. Aliff v. Cody, 26 S.W.3d 309, 321 (Mo. App. W.D. 2000). The closer to the core of the case the more difficult it is to find no prejudice. Trial court error as to a collateral matter, however, may seldom result in prejudice. If a party takes advantage of a trial court error committed against the opposing party, prejudice will be more quickly found. Stokes v. Nat'l Presto Indus., Inc., 168 S.W.3d 481, 484 (Mo. App. W.D. 2005). The error here did not deal with a remote or collateral issue. It went to the essence of Newton's theory of the case and the negation of Ford's theory ---- both central issues. Moreover, it went to the impeachment and contradiction of two of Ford's liability witnesses. The majority's initial mistake in analysis comes when it says that Newton misperceived/mischaractized Ford's defense. Whether prejudice resulted should be looked at from the perspective of the party against whom the error was committed, in this case Newton. A party is entitled to try a case and respond to its opponent based on its own theories, whether they be affirmative claims or defenses. Thus, whether a party has been prejudiced by trial court error must be judged from that party's theories. The second mistake by the majority is not recognizing the importance

of impeachment upon an issue that was not collateral. And, finally, the majority falls into the same trap as the trial court by assuming the position of a super--juror and determining the case based on how it would view the evidence. To illustrate, Ford argues, and the majority accepts, that Ford's comments in its closing only went to aggravating circumstances and punitive damages. How, then, could it be prejudicial because the jury never got to that issue? But no one ever told the jury that the evidence only went to that issue. The evidence was in the case for any purpose and could be utilized by the jury for other purposes. And Ford did not limit its argument to only punitive damages. Rather, it argued that the fuel system was not defective and could not be completely safe in all circumstances, which was demonstrated by the fact that some fires occurred regardless of the extraordinary redesign and modifications that Ford made. That was a legitimate inference that Ford was entitled to argue to the jury. But that was not the inference that Newton wanted to suggest to the jury. He wanted to argue that the other accidents showed that Ford's redesign was, as he put it, merely a "band--aid" and did not address what Newton thought was the real design defect ---- the location of the fuel tank. That was also a permissible inference from the subsequent accidents and fires. But Newton was not allowed to suggest that inference to the jury. Instead, he was left unarmed to counter Ford's assertion, in closing, that Ford had done everything necessary and reasonable to prevent these fires and Newton had not proved otherwise. Moreover, Ford's two liability experts testified that they were aware of no fires after the shield kits were installed. Although they may have been technically meaning "no fires with the same mechanism" of tank puncture as fires before the redesign, the clear import of their testimony was that Ford had responded to the history of fires in police interceptors and had "fixed the problem." The majority, again using the wrong perspective, refers to Newton's liability expert as being effectively cross--examined to support a conclusion of no prejudice. But it ignores the fact that the trial court's ruling undermined Newton's use of the subsequent fires in closing argument to undermine Ford's experts and suggest that only part of the problem of fire risk had been corrected. Impeachment is always admissible if the issue is not collateral and when the impeachment goes to a central theory of liability in the case its restriction is prejudicial.

The trial judge and the majority view this case as a "causation case." In other words, Ford argued that its product was not defective and could not be designed to survive an impact such as occurred. But how can the post hoc super--juror determine that the jury jumped over all of the other issues in the case to that issue, and that, therefore, the evidence of additional fires could not have affected its deliberations? Courts frequently say that it is assumed that jurors follow the instructions. If the jury did so here, it first considered the issue of defect. And Ford strongly argued the lack of a defect. Newton was not allowed to use admitted evidence to support its theory on the first issue the jury was told to consider. And, finally, there is the issue of fundamental fairness. It is simply not fair to allow one party to comment and use evidence in the case for its purposes and not allow the opposing party to comment on the same evidence. This case is essentially no different than the one where a party acts and succeeds to exclude evidence and then argues in closing against the other party on the basis that they offered no such evidence. Almost always, prejudice is found in those situations. See Stokes, 168 S.W.3d at 485. Here, Ford successfully argued a motion in limine to exclude the evidence, introduced the evidence for its own purposes, and then used it to its advantage in closing while successfully preventing the plaintiff from even mentioning it. Ford created its own problem and then magnified it to its advantage. Newton should receive a new trial.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.