GRIFFIN, Circuit Judge.
Defendant-appellant Alan A. Townsend appeals his sentence, claiming that the district court erred by applying a two-level sentencing enhancement pursuant to U.S.S.G. § 3B1.1(c) (2008), and otherwise imposed an unreasonable sentence. We disagree and affirm.
I.
In June 2008, Townsend and his co-defendant, Courtney Shine, began sending messages to a juvenile, referred to as "Victim A," through an internet chat room, UrbanChat.com. Townsend and Shine contacted Victim A because they wanted her to travel to Florida with them to engage in prostitution. Through these online communications, Victim A led Townsend and Shine to believe she was an adult.
Townsend and Shine began calling Victim A, reassuring her that she would be safe with them. On June 9 or 10, 2008, Shine met Victim A at a local park. On June 13, 2008, Townsend, Shine, and their five-year-old son, along with Victim A, left Columbus, Ohio, by automobile on a trip to Florida. While traveling, Shine received one or more phone calls from Victim A's family informing her that Victim A was a juvenile and that they wanted her to return home. Also during the trip, Town-send attempted to groom Victim A to become a prostitute.
When the group reached Florida, Shine engaged in prostitution. Townsend went with Shine on her "dates," while Victim A stayed behind and babysat their son. The group ultimately traveled to Daytona Beach, Florida. There, when left alone, Victim A used a stranger's cell phone to call the Daytona Beach Police Department. Townsend and Shine were then arrested.
In a videotaped interview with the Daytona Beach Police, Shine admitted she was a prostitute and that she was attempting to assist Townsend in convincing Victim A to engage in prostitution. When Shine returned to Ohio, she was interviewed again, this time by the Columbus Police Department. During this second interview, Shine informed the officers that Townsend had initiated the contact with Victim A on UrbanChat.com.
Like Shine, Townsend was interviewed by the Daytona Beach Police Department following his arrest. During his interview, Townsend made several admissions. For example, Townsend stated: "I pimp hos . . . that's how I came at [Victim A]," and "my first intention was to get this girl to come work for me. . . . I brought this girl all the way down here, I might as well get something out of her." In addition, Town-send stated: "my game is impeccable, man. . . . if I wanted [Victim A] really to go out there and sell [sex], I could have had her do it[,]" boasting that he was "reeling her in slowly but surely."
As Townsend's interview with the Daytona Beach Police continued, he went into greater detail regarding his role as a pimp, stating that he required his prostitutes to pay him $1,500 a day from their "dates." He also said that he did not discuss the specifics of his prostitution business with Victim A, because "she wasn't . . . a part of [his] team yet" and would not learn "everything until she actually put some money in [his] hand." Townsend further informed the officers that he had been the pimp for as many as four prostitutes.
On July 12, 2008, jail officers recorded a telephone conversation between Shine and Townsend. During this conversation, Townsend instructed Shine to engage in limited prostitution while he was incarcerated, stating: "the ones that you know you can do by yourself, I want you to do that, don't do nothing new at all." He further lamented that he should have allowed Shine to make pornographic movies instead of prostituting. During this discussion, Townsend and Shine intermittently discussed their pending criminal charges and the evidence against them. In addition, the recorded conversation reveals that Townsend and Shine were involved in a romantic, as well as a business, relationship.
II.
On December 3, 2008, Townsend pleaded guilty to Count 4 of the indictment, charging him with knowingly transporting an individual in interstate commerce with the intent to engage such individual in prostitution, in violation of 18 U.S.C. § 2421 and 18 U.S.C. § 2. The presentence investigation report ("PSR") recommended a base offense level of 24 pursuant to U.S.S.G. § 2G1.3(a)(4) (2008), and a two-level enhancement for his aggravating role in the offense under U.S.S.G. § 3B1.1(c). Townsend's criminal history was set at category V based on 10 criminal history points. The PSR also afforded a three-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1, yielding a total offense level of 23, and an advisory Guidelines range of 84-105 months of imprisonment. See U.S.S.G. ch. 5, pt. A (Sentencing Table) (2008).
The district court conducted a sentencing hearing on May 22, 2009. At the hearing, Townsend objected to the two-level aggravating role enhancement under U.S.S.G. § 3B1.1(c), asserting that he was in an "equal partnership" with Shine. Relying upon Shine's and Townsend's police interviews, as well as the recorded jail-house conversation, the district court denied Townsend's objection, ruling that he performed "the traditional role of pimp" and "was the manager of the prostitution activities." The district court found that, although Shine was a willing participant in the offense, "there was a leader, and it was Mr. Townsend. So, even if Ms. Shine were a partner, . . . Mr. Townsend's role here was senior partner." The district court thereafter sentenced Townsend to ninety-six months of imprisonment.
III.
On appeal, Townsend challenges the district court's imposition of the two-level U.S.S.G. § 3B1.1(c) sentencing enhancement. Regarding this issue, we note that our standard of review is unsettled:
The standard that governs the review of a sentencing enhancement for a leadership role under U.S.S.G. § 3B1.1 is not altogether clear. A district court's legal conclusions are generally reviewed de novo, and its factual findings will not be set aside unless clearly erroneous. In
Buford v. United States, 532 U.S. 59,
121 S.Ct. 1276,
149 L.Ed.2d 197 (2001), however, the Supreme Court held that a district court's application of the Guidelines should be reviewed deferentially rather than de novo "in light of the fact-bound nature of the legal decision."
Id. at 66,
121 S.Ct. 1276.
United States v. Vasquez, 560 F.3d 461, 473 (6th Cir. 2009) (internal citation omitted),
cert. denied,
___ U.S. ___,
130 S.Ct. 476,
175 L.Ed.2d 319 (2009). Nonetheless, we need not decide the question here because we conclude that the sentencing enhancement was appropriate under either standard.
A district court may increase a defendant's offense level if the defendant was an "organizer, leader, manager, or supervisor of one or more other participants." U.S.S.G. § 3B1.1, cmt. n. 2. "A `participant' is a person who is criminally responsible for the commission of the offense, but need not have been convicted." U.S.S.G. § 3B1.1, cmt. n. 1. In determining whether a § 3B 1.1(c) sentencing enhancement is appropriate, a district court should consider the following factors:
[T]he exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
United States v. Lalonde, 509 F.3d 750, 765 (6th Cir. 2007) (internal quotation marks and citation omitted). "Merely
playing an essential role in the offense is not equivalent to exercising managerial control over other participants."
Id. (internal quotation marks and citation omitted). "The government bears the burden of proving that the enhancement applies by a preponderance of the evidence."
United States v. Vandeberg, 201 F.3d 805, 811 (6th Cir. 2000).
Townsend challenges the district court's reliance on the recorded jailhouse conversation. Specifically, Townsend asserts that his statement to Shine — "the ones that you know you can do by yourself, I want you to do that, don't do nothing new at all" — constitutes post-offense conduct and, therefore, may not be used to establish his managerial control because it did not "occur[] during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." U.S.S.G. § lB1.3(a) (defining scope of relevant conduct).
However, a sentencing court may consider all relevant conduct when deciding whether to impose a § 3B 1.1(c) enhancement. Indeed, the introductory comments to § 3B1.1 clearly indicate that a district court's analysis of an individual's role in the offense is to be made on the basis of all relevant conduct, "and not solely on the basis of elements and acts cited in the count of conviction." U.S.S.G. § 3B1.1 (intro.cmt.). Accordingly, a district court should consider "criminal activity encompassing not only the charged offense but also all other activity that was part of a common scheme or plan or part of the same course of conduct as the charged offense." United States v. Jones, 12 F.3d 215, 1993 WL 494133, at *6 (6th Cir. Nov.29, 1993) (unpublished table opinion).
Here, the district court expressly stated that it had reviewed the jailhouse conversation to ascertain "[t]he nature of the relationship" between Townsend and Shine. Certainly, the relationship between Townsend and Shine, and Townsend's authority to direct her prostitution activities, was relevant regarding his control over her during the course of their criminal conduct. See Vandeberg, 201 F.3d at 811 ("In general, a defendant must have exerted control over at least one individual within a criminal organization for the enhancement of § 3B1.1 to be warranted.") (internal quotation marks and citation omitted). Accordingly, the district court's consideration of the jailhouse conversation was relevant and proper in this case.
Townsend's title of "pimp" is not controlling here. See U.S.S.G. § 3B1.1, cmt. n. 4 (noting that "titles such as `kingpin' or `boss' are not controlling"). Instead, it is the level of control asserted over Shine that the district court appropriately considered.
Townsend also asserts that the district court erred in imposing the sentencing enhancement because there was no evidence that he played an aggravating role in the underlying offense. We disagree. The record reveals ample evidence of Townsend's aggravating role. First, Townsend's own statements during the jailhouse conversation, as well as his police interview, support the inference that Townsend was "pimping" Shine during the offense, and therefore had an inherent degree of control over her. Indeed, Townsend lamented to Shine that he should have "let" her make pornographic movies, evidencing his authority over her.
In addition, the record supports the finding that Townsend had a greater "degree of participation in planning [and] organizing the offense." Lalonde, 509 F.3d at 765. According to Shine, Townsend was the first to discover and contact Victim A in order to engage her in prostitution activities. In addition, Townsend made several admissions during his police interview demonstrating his significant role in planning and organizing the offense, such as: "I pimp hos . . . that's how I came at [Victim A]," "my first intention was to get this girl to come work for me. . . . I brought this girl all the way down here, I might as well get something out of her," and "my game is impeccable, man. . . . if I wanted [Victim A] really to go out there and sell [sex], I could have had her do it." These statements further indicate that Townsend had decisionmaking authority, inasmuch as he claims he had the ability to determine whether Victim A engaged in prostitution. Indeed, Townsend asserted at sentencing that he was the decisionmaker with regard to Victim A's prostitution activities.
In sum, under either a de novo or clearly erroneous standard of review, we hold that the factual record as a whole supports the district court's application of the § 3B 1.1(c) enhancement. There was sufficient evidence in the record for the district court to conclude, by a preponderance of the evidence, that Townsend exercised managerial control over Shine during the offense as evidenced by his decisionmaking authority, his significant role in planning and organizing the crime, and his ability to exercise authority over Shine.
IV.
Next, Townsend claims that his within-Guidelines sentence is procedurally and substantively unreasonable. We review the district court's sentencing decisions for an abuse of discretion. United States v. Bates, 552 F.3d 472, 476 (6th Cir. 2009), cert denied, ___ U.S. ___, 130 S.Ct. 166, 175 L.Ed.2d 105 (2009). Reasonableness review has both procedural and substantive components. United States v. Sedore, 512 F.3d 819, 822 (6th Cir. 2008). We "must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence." Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If the sentence is procedurally sound, we "then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard." Id. In assessing substantive reasonableness, we determine "whether the length of the sentence is reasonable in light of the § 3553(a) factors." United States v. Tate, 516 F.3d 459, 469 (6th Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 93, 172 L.Ed.2d 78 (2008). We apply a rebuttable presumption of substantive reasonableness to sentences that fall within the applicable Guidelines range. Sedore, 512 F.3d at 823.
A.
Townsend argues that his sentence is procedurally unreasonable because the district court allegedly improperly applied the § 3B 1.1(c) sentencing enhancement. For the reasons described above, we disagree because the district court did not err in applying the enhancement.
Secondly, Townsend asserts that his sentence is procedurally unreasonable because the district court purportedly fashioned his sentence based upon material misinformation. Specifically, he asserts that resentencing is warranted because the district judge mistakenly believed he had sentenced Shine at the top of her Guidelines range, when, in fact, he had sentenced her below her Guidelines range. This argument is meritless.
Regarding this issue, Townsend relies on United States v. Wilson, 614 F.3d 219 (6th Cir. 2010). However, Wilson is inapposite. In Wilson, we held that the sentencing court "committed plain error by selecting [the defendant's] sentence based on the clearly erroneous premise that she had stolen one thousand money orders and five hundred cashier's checks." Id. at 221. However, unlike Wilson, in the present case the district judge did not impose Townsend's sentence based on material misinformation regarding Townsend's underlying criminal conduct. The error at issue regards the sentence of co-defendant Shine.
Moreover, Townsend made no objection to the misstatement. Therefore, we review for plain error. See United States v. Vonn, 535 U.S. 55, 66, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) ("A defendant's right to review of error he let pass in silence depends upon the plain-error rule."). To prevail under plain-error review, a defendant must show, among other things, that the error affected his substantial rights. Lalonde, 509 F.3d at 757. A sentencing error affects a defendant's substantial rights when there is a "reasonable probability defendant would have received a more favorable sentence" but for the error. United States v. Baker, 559 F.3d 443, 454 (6th Cir. 2009). After our review of the sentencing transcript, it is clear that Shine's sentence was not an "important factor" relied on by the district court in fashioning Townsend's sentence. See Wilson, 614 F.3d at 224-25 (noting that the underlying misinformation was an "important factor" in determining the defendant's sentence, thereby demonstrating that the sentencing error affected the defendant's substantial rights). Instead, while the district court made a passing reference to Shine's sentence, it expressly noted and based its sentence upon Townsend's underlying criminal conduct, his history and characteristics, and the need to protect the public and promote deterrence. These were the "most significant" factors considered by the district court in fashioning the sentence. Accordingly, we conclude that no plain error occurred.
B.
Townsend's substantive reasonableness arguments are equally meritless. First, he claims that his ninety-six month sentence is disparate as compared to Shine's thirty-six month sentence. However, pursuant to 18 U.S.C. § 3553(a)(6), a district court must consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6) (emphasis added). Here, Shine did not play an aggravating role, and she had a much less significant criminal history. Indeed, Shine had a category I criminal history, as compared to Townsend's category V. Thus, Townsend and Shine are not similarly situated.
Moreover, "[s]ubsection 3553(a)(6) is concerned with national disparities among the many defendants with similar criminal backgrounds convicted of similar criminal conduct." United States v. Houston, 529 F.3d 743, 752 (6th Cir. 2008) (internal quotation marks and citation omitted), cert. denied, ___ U.S. ___, 129 S.Ct. 2764, 174 L.Ed.2d 270 (2009). Indeed, § 3553(a)(6) "is not concerned with disparities between one individual's sentence and another individual's sentence, despite the fact that the two are co-defendants." United States, v. Simmons, 501 F.3d 620, 623 (6th Cir. 2007). Thus, Townsend's argument is not persuasive.
Finally, Townsend asserts that his sentence is substantively unreasonable because the district court did not grant him a downward departure. In this regard, Townsend argues that his criminal history category over-represented the seriousness of his criminal history. See U.S.S.G. § 4A1.3(b)(1) (2008) ("If reliable information indicates that the defendant's criminal history category substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes, a downward departure may be warranted."). However, "[t]his court generally does not review a district court's decision not to depart downward unless the record shows that the district court was unaware of, or did not understand, its discretion to make such a departure." United States v. Johnson, 553 F.3d 990, 999 (6th Cir. 2009) (internal quotation marks and citation omitted). Here, there is nothing in the record indicating that the district judge did not understand his discretion to make a downward departure, and, therefore, we decline to review the district court's discretionary decision.
In sum, Townsend's sentence was within his Guidelines range and therefore is entitled to a presumption of reasonableness. Sedore, 512 F.3d at 823. Townsend has not sustained his burden of rebutting the presumption that his ninety-six month sentence is substantively reasonable.
V.
For these reasons, we affirm the judgment of the district court.
Ford's argument, in order for Dr. Anderson's expert testimony to be admissible, the trial court had to find not only that Dr. Anderson was an expert based on his knowledge, skill, experience, training, or education in the field of EMI and its affect on automobiles, but also that the substance of his testimony was reliable. With regard to the reliability requirement, in
Council, this Court listed several
factors that the trial court should consider when determining whether scientific expert evidence is reliable:
(1) the publications and peer review of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures.
Id. at 19,
515 S.E.2d at 517 (citing
State v.
Ford, 301 S.C. 485,
392 S.E.2d 781 (1990)).
The test for reliability for expert testimony does not lend itself to a one-size-fits-all approach. See White, 382 S.C. at 274, 676 S.E.2d at 688 (holding that the Council factors provided no useful analytical framework to evaluate the reliability of expert dog tracking evidence). However, in this case, Dr. Anderson's testimony was based on scientific principles and theories, and therefore, the Council factors are applicable and relevant to the reliability determination in this case.
We find that the trial court erred in admitting Dr. Anderson's testimony as to both an alternative feasible design and his EMI theory. With regard to alternative feasible design, Dr. Anderson failed to meet Rule 702's fundamental requirement that the witness be qualified in the particular area of expertise. Dr. Anderson's background involved working with massive generators which have entirely different electrical wiring systems and different voltage levels. He had no experience in the automobile industry, never studied a cruise control system, and never designed any component of a cruise control system. Moreover, Respondents failed to show that the substance of his testimony that twisted pair wiring would have cured the EMI defect was reliable. Dr. Anderson declared that the twisted pair wiring would have prevented EMI but did not explain how twisted pair wiring could be incorporated in to a cruise control system and did not offer any model comparison. Furthermore, Dr. Anderson concluded that this design was economically feasible, but offered no evidence to support this conclusion. Thus, his testimony on this matter lacked any scientific basis and contained no indicia of reliability. Accordingly, we hold that the trial court erred in admitting this testimony because Dr. Anderson was not qualified to testify as to alternative designs to the Explorer's cruise control system and his testimony was not reliable.
In Branham v. Ford Motor Co., ___ S.C. ___," S.E.2d (2010) (Shearouse Adv. Sh. No. 32 at 52), this Court adopted the Restatement 3rd approach, which uses the risk-utility test for a design defect claim. Under the risk utility test, a plaintiff must prove an alternative feasible design. Dr. Anderson's testimony was, in part, an attempt to prove Watson's claim using a risk-utility analysis by showing an alternative feasible design. Dr. Anderson's attempt failed for the reasons fully discussed above.
Turning to the testimony regarding EMI and its effect on the cruise control system, initially we question whether Dr. Anderson was qualified as an expert on this subject. Again, Dr. Anderson had no experience with automobiles and specifically no experience with cruise control systems. In fact, Dr. Anderson had not even operated an automobile with a cruise control system before this litigation. Nonetheless, assuming Dr. Anderson was properly qualified as an expert in this area, we find that his testimony was not reliable. Dr. Anderson first learned of sudden acceleration occurring in automobiles in 2000 after he was contacted by a television news station that was investigating automobile accidents. Dr. Anderson admitted that his theory had not been peer reviewed, he had never published papers on his theory, and he had never tested his theory. He also admitted that he would not be able to determine exactly where the EMI which he opined caused the cruise control to malfunction originated or what part of the system it affected. He further testified that it would not be possible to replicate the alleged EMI malfunction of a cruise control system in a testing environment. To support his theory that EMI caused the Explorer to suddenly accelerate, Dr. Anderson pointed to only one document, a 1975 National Highway Safety Transportation Administration (NHSTA) report concluding that EMI can cause a cruise control system to malfunction. However, the NHTSA issued superseding report in 1989, which specifically rejected the EMI theory.
In our view, there is no evidence indicating that Dr. Anderson's testimony contained any indicia of reliability. He had never published articles on his theory nor had he tested his theory. Importantly, Dr. Anderson admitted that it was not possible to test for EMI. Furthermore, although it is not a prerequisite in South Carolina that scientific evidence attain general acceptance in the scientific community before it is admitted, we find it instructive that not only has the underlying science not been generally accepted, Dr. Anderson's theory was rejected in the scientific community. See Council, 335 S.C. at 21, 515 S.E.2d at 518 (recognizing and taking in to consideration the fact that the science underlying DNA analysis evidence has been generally accepted in the scientific community in determining whether such evidence was reliable). Therefore, because there is no evidence in the record to show that the substance of Dr. Anderson's testimony was reliable, we hold that the trial court erred in admitting this testimony.
Several courts have excluded expert testimony regarding theory that EMI may cause a cruise control system to malfunction. See Federico v. Ford Motor Co., 67 Mass.App.Ct. 454, 854 N.E.2d 448 (2006) (upholding the trial court's decision to exclude testimony that EMI would cause malfunction); Tinker v. Ford Motor Co., 2007 WL 701046 (Ohio App. 2007) (affirming the trial court's decision that expert testimony on EMI was unreliable); Jarvis v. Ford Motor Co., 1999 WL 461813 (S.D.N.Y. 1999) (excluding the portion of the expert's testimony regarding EMI); Baker v. Mercedes Benzof North America, 163 F.3d 1356 (1998) (finding the trial court did not abuse its discretion in finding that plaintiff's expert testimony regarding EMI should be excluded).
In our view, the trial court's error in admitting Dr. Anderson's testimony is largely based on solely focusing on whether he was qualified as an expert in the field of electrical engineering and failing to analyze the reliability of the proposed testimony. Respondents did not offer Dr. Anderson to testify generally as to the electrical wiring of a circuit system in an automobile. Rather, Respondents sought to introduce Dr. Anderson's testimony to determine a fact in issue based on a scientific hypothesis. The trial court was thus required to examine the substance of the testimony for reliability, and in failing to make this threshold determination, the trial court erred as a matter of law in admitting Dr. Anderson's testimony.
This is evident from the trial court's ruling: "[Dr. Anderson] does have [requisite] education, knowledge, experience, and would be of scientific help to the jury in this case . . . but he's going to be qualified as an expert in the field of electrical engineering."
We find that Ford was prejudiced by the admission of this testimony. The only evidence Respondents presented to support their theory that the vehicle was defective was Dr. Anderson's testimony. We also note that Respondents may not rely solely on the fact that an accident occurred to prove their products liability case under a negligence theory since South Carolina does not follow the doctrine of res ipsa loquitur. See Snow v. City of Columbia, 305 S.C. 544, n. 7, 409 S.E.2d 797, n. 7 (Ct.App. 1991) (noting that South Carolina does not recognize the rule of res ipsa loquitur). Thus, in the absence of any admissible evidence in the record to support their products liability claim, the jury impermissibly speculated as to the cause of the accident.
Res ipsa loquitur is a rebuttable presumption that the defendant was negligent where an accident is one which ordinarily does not occur in the absence of negligence.
II. Evidence of Other Incidents
Ford argues that the trial court erred in admitting evidence of similar incidents involving sudden acceleration in Explorers. We agree.
Evidence of similar accidents, transactions, or happenings is admissible in South Carolina where there is some special relation between the accidents tending to prove or disprove some fact in dispute. Whaley v. CSX Transp., Inc., 362 S.C. 456, 483, 609 S.E.2d 286, 300 (2005). This rule is based on relevancy, logic, and common sense. Id. A plaintiff must present a factual foundation for the court to determine that the other accidents were substantially similar to the accident at issue. Id. In Buckman v. Bombardier Corp., the District Court set forth factors that a court should consider when admitting evidence of other incidents to support a claim that the present accident was caused by the same defect: (1) the products are similar; (2) the alleged defect is similar; (3) causation related to the defect in the other incidents; and (4) exclusion of all reasonable secondary explanations for the cause of the other incidents. 893 F.Supp. 547, 552 (E.D.N.C. 1995) (citing Hale v. Firestone Tire Rubber Co., 756 F.2d 1322, 1332 (8th Cir. 1985)).
Respondents introduced the deposition testimony from a separate case of a former Ford employee who investigated a number of claims of unintended acceleration of Explorers driven in Britain. The former employee read from an email where he referenced "35 incidents that have been categorized as unexplainable" in which the vehicles suddenly accelerated. Additionally, Respondents presented three witnesses, one of whom testified by video deposition, who recalled incidents in which their Explorers suddenly accelerated and their cruise control would not disengage.
In our view, Respondents failed to show that the incidents were substantially similar and failed to establish a special relation between the other incidents and Respondents' accident. First, the products were not similar because most of the other incidents involved Explorers that were made in different years from the Watson Explorer and were completely different models with the driver's seat located on the right side of the vehicle. More importantly, Respondents failed to show a similarity of causation between the malfunction in this case and the malfunction in the other incidents and failed to exclude reasonable explanations for the cause of the other incidents. Respondents only presented the testimony of the other drivers and did not present any expert evidence to show that EMI was a factor in the malfunction in the other incidents. Accordingly, this evidence was not relevant because Respondents failed to show that evidence of these incidents made the existence of the EMI defect in this case more probable. See Rule 401, SCRE (defining "relevant evidence" as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence); see also Whaley, 362 S.C. at 483-84, 609 S.E.2d at 300 (holding that evidence of other employee complaints and injuries should not have been admitted because the plaintiff failed to show that the injuries stemmed from the same or similar circumstances as the plaintiffs injuries).
Furthermore, we find that this evidence was highly prejudicial. Courts require a plaintiff to establish a factual foundation to show substantial similarity because evidence of similar incidents may be extremely prejudicial. See id. at 483, 609 S.E.2d at 300 (recognizing that evidence of other accidents may be highly prejudicial). Respondents' counsel highlighted this improper evidence in closing arguments and thereby possibly induced the jury to speculate as to other causes of the accident not supported by any evidence. For these reasons, we hold that trial court erred in admitting this evidence.
III. JNOV
Ford argues the trial court erred in denying its motion for judgment notwithstanding the verdict. We agree.
"When we review a trial judge's grant or denial of a motion for directed verdict or JNOV, we reverse only when there is no evidence to support the ruling or when the ruling is governed by an error of law." Austin v. Stokes-Craven, 387 S.C. 22, 691 S.E.2d 135, 145 (2010) (citing Creech v. South Carolina Wildlife Marine Res. Dep't, 328 S.C. 24, 29, 491 S.E.2d 571, 573 (1997)).
We find the evidence submitted at trial was insufficient to support a verdict for Respondents and the evidence shows that Ford is entitled to a judgment as a matter of law. Even if the trial court did not err in qualifying Williams as a cruise control expert, in admitting Dr. Anderson's testimony, and in admitting evidence of similar incidents, the only reasonable inference that could have been drawn from the evidence presented at trial is that Respondents failed to establish, as a matter of law, that EMI caused an unintended acceleration which resulted in Respondents' accident and resulting injuries. Nonetheless, as even the dissent concedes, neither of Respondents' experts presented admissible testimony. Without such testimony, Respondents failed to present a case for products liability. Therefore, Respondents did not present admissible evidence that the cruise control system of the vehicle at issue was defective or unreasonably dangerous.
Additionally, none of Respondents' evidence concerning similar incidents was admissible; thus, given the evidence presented at trial, liability could not have been found on any theory.
Furthermore, the only reasonable inference that can be drawn from the evidence presented at trial is that Respondents failed, as a matter of law, to prove an alternative feasible design with respect to the vehicle's cruise control system. We find that, because the mere occurrence of an accident or existence of an alleged product malfunction does not establish the liability of a product manufacturer, the trial court erred by failing to enter a judgment in favor of Ford. Therefore, we reverse and enter a judgment in Ford's favor.
CONCLUSION
The trial court serves as the gatekeeper in the admission of all evidence presented at trial, and in making admissibility determinations, the trial court is required to make certain preliminary findings regarding admissibility requirements, such as qualification of experts, reliability of the substance of the testimony, and substantial similarity of alleged similar incidents, before a jury may hear the evidence. If these preliminary requirements are not met, as a matter of law, the trial court may not permit the jury to consider the evidence. In this case, we hold that those threshold admissibility requirements were not met, and therefore, the trial court erred in qualifying Williams as a cruise control expert, in admitting Dr. Anderson's testimony, and in admitting evidence of similar incidents. Finally, we find the evidence submitted at trial was insufficient to support a verdict for Respondents and the evidence shows that Ford is entitled to a judgment as a matter of law. Accordingly, we must reverse the jury's verdict against Ford and enter judgment in its favor.
WALLER, BEATTY and KITTREDGE, JJ., concur.
PLEICONES, J., concurring in part and dissenting in part in a separate opinion.
Justice PLEICONES.
I concur in part and dissent in part. I do not agree with the majority's analysis of the expert witness issue involving Dr. Anderson, or its analysis of the admissibility of the evidence of other acceleration incidents. I nonetheless agree that Dr. Anderson should not have been qualified, and that the evidence of other incidents should not have been admitted. I respectfully dissent from that part of the majority opinion which holds that appellant was entitled to a judgment notwithstanding the verdict (JNOV).
First, the majority posits the trial judge's gatekeeper role with respect to expert testimony as consisting of these three parts:
1. Is the subject matter of the testimony beyond the knowledge of a lay person, thus requiring an expert to explain it?
2. Is the particular witness qualified as an expert in this field? 3. After evaluating the witness' testimony, is it reliable?
As explained below, I disagree with this framework when the subject of the expert testimony is scientific.
See State v. White, 382 S.C. 265, 676 S.E.2d 634 (2009) (scientific reliability factors not applicable to non-scientific experts).
I fundamentally disagree with the majority that the first gatekeeper function under Rule 702 is a determination whether the subject matter is beyond a lay person's knowledge and thus requires an expert to explain it. It is certainly true that some types of issues or evidence are ipso facto beyond the ken of a lay jury, and always require that the claim be supported by expert testimony. Classically, this is so where the issue is one of medical malpractice. E.g. Linog v. Yampolsky, 376 S.C. 182, 656 S.E.2d 355 (2008). There are myriad other areas, however, where both lay and expert testimony may be presented. See, e.g., State v. Pittman, 373 S.C. 527, 647 S.E.2d 144 (2007) (sanity); Hall v. Desert Aire, Inc., 376 S.C. 338, 656 S.E.2d 753 (Ct.App. 2007) (intoxication); Small v. Pioneer Machinery, Inc., 329 S.C. 448, 494 S.E.2d 835 (Ct. App. 1997) (cause of throttle sticking). I therefore disagree with the majority to the extent it now holds that expert testimony is admissible only when it is "required" or "necessary" for the jury to understand evidence or an issue. See Rule 702 (expert witness may be called if testimony would assist the jury).
In my view, the proper gatekeeper role under Rule 702, SCRE, is that described in State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999):
1. Is the underlying science reliable?
2. Ts the expert witness qualified?; and
3. Would the evidence assist the trier of fact to understand the evidence or to determine a fact in issue?
Here, the underlying science involving the impact of electro-magnetic interference (EMI) on electrical systems is reliable, and Dr. Anderson is qualified as an expert on that subject. I would hold, however, that his testimony fails the third prong of the Council test. In my view, Dr. Anderson's testimony did not assist the jury since he was unable to support his opinion that EMI was a probable cause of cruise control acceleration other than by reference to his own opinion. Cf. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (court not required to admit opinion evidence connected to event only by the expert's ipse dixit); see also Wilson v. Rivers, 357 S.C. 447, 593 S.E.2d 603 (2004) n. 5 (while witness was expert in field, question whether that science is "reliable" to determine this accident caused the plaintiffs injuries remained unaddressed by trial court).
I agree with the majority that the trial judge erred in exercising his gatekeeper function and permitting Dr. Anderson to testify since Dr. Anderson was unable to link EMI to the sudden acceleration, other than by reference to his own opinion. Wilson, supra; Joiner, supra. I do not agree, however, with the majority's view that only an electrical engineer who was also an expert in automobile and/or cruise control systems would be competent to testify, or with its characterization of Dr. Anderson's testimony as lacking "reliability." I would confine the reliability issue to the underlying science, here, electrical engineering and the EMI phenomenon. See State v. Council, supra (first gatekeeper decision is whether the underlying science reliable as determined under the factors in State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (1990)).
I also agree with the majority's conclusion that the trial court erred in admitting the evidence of unexplained acceleration in other Ford Explorers. Unlike the majority, however, I do not see any meaningful distinction in either the year of manufacture or in the fact that the other models were right hand drive, since the relevant inquiry is whether the Explorers were equipped with identically engineered cruise control and electrical systems. Since, however, the only causal link between these accelerations and that alleged to have occurred here was that of Dr. Anderson's EMI theory, which should not have been admitted, I would hold that this evidence too was wrongfully admitted.
The majority holds the trial court erred in denying appellant's JNOV motion, holding that respondents failed to "prove that the cruise control system . . . was defective or unreasonably dangerous." I note first this exchange between Dr. Anderson and respondents' attorney:
I do not agree with the use of "prove" here, as the respondents need only have presented evidence from which the jury could find the cruise control system caused the accident, not have "proven" that it did to the exclusion of all other causes.
Q. Do you believe that the electrical interference in the Watson accident was the cause of the sudden acceleration?
A. Yes.
Q. And is that to a reasonable degree of engineering certainty?
A. Yes.
In my opinion, this is evidence in the record to support the trial court's denial of appellant's JNOV motion. See e.g., Amerson v. F.C.X. Coop. Serv., Inc., 227 S.C. 520, 88 S.E.2d 605 (1955) (in reviewing denial of directed verdict, all evidence (even that determined on appeal to have been erroneously admitted) must be considered); Gill v. Ruggles, 97 S.C. 278, 81 S.E. 519 (1914) (same).
As explained above, I agree that both witness Williams's testimony and that of Dr. Anderson should have been excluded. It was not, however, and the excerpt from Dr. Anderson's testimony alone refutes the majority's conclusion that there was no evidence in the record to support the jury's verdict. I would therefore reverse and remand.
Moreover, the following excerpt from the trial judge's written order denying appellants' JNOV reflect that the verdict was supported by more than the EMI theory alone:
[Appellant] initially contends that the only reasonable inference to be drawn from the evidence is that the [respondents] failed to prove that electromagnetic interference (EMI) caused the sudden acceleration resulting in the subject accident and, therefore, failed to prove that the Watson Explorer was defective and unreasonably dangerous. This argument lacks merit. The [respondents] presented expert testimony that EMI could cause the Next Generation Cruise Control system installed on the Watson Explorer to make
the vehicle suddenly accelerate, and that there were various sources of EMI in the Explorer, including internal sources which [appellant] failed to adequately guard against.
1
1 [Respondents'] direct evidence of malfunction alone would be sufficient to support a verdict. Additionally, [respondents] presented direct expert testimony that the malfunction of the cruise control system was caused by EMI. The direct evidence of an EMI caused malfunction was also sufficient to support a verdict for [respondents].
[Respondents] further presented evidence of other similar incidents where Ford Explorer vehicles equipped with the same Next Generation Cruise Control system suddenly accelerated without any apparent cause. Finally, [respondents] presented substantial evidence from which the jury could have could have found that there was no cause for the sudden acceleration that caused the Watson accident, other than a malfunction of the Next Generation Cruise Control system. This evidence, viewed in the light most favorable to the verdict, was easily sufficient to support the jury's express finding that the Next Generation Cruise Control system was defective and unreasonably dangerous, and that it proximately caused Sonya Watson's injuries and Patricia Carter's death.2 2 [Respondents'] expert repeatedly testified that the cause of [respondents'] vehicle suddenly accelerating was EMI. This testimony was supported by the factual testimony that EMI would be corrected if the vehicle was turned off and upon restarting, the cause of the pedal depression would be corrected.
The Court rejects [appellant's] second claim that there is no evidence of a feasible alternative design. [Respondents'] expert testified that, prior to the manufacture and sale of the 1995 Explorer, the Next Generation Cruise Control system could have been designed to reduce or eliminate its vulnerability to EMI, and that such design changes could have been made without impairing the utility of the cruise control, or unduly raising its cost. Additionally, [respondents'] experts testified as to the need for a design change that would stop the sudden acceleration once it occurred which was also supportive of the verdict. This evidence, viewed in light most favorable to the verdict, was easily sufficient to establish a feasible alternative design.
[Appellant's] third contention is that the evidence that the Next Generation Cruise Control system was defective and unreasonably dangerous was all inadmissible, irrelevant, and highly prejudicial. The admission of both lay and expert evidence, however, is left to the discretion of the trial judge. The Court carefully considered each item of evidence to which Ford raised objections and determined that the evidence was admissible. [Appellant] has raised no argument that persuades the Court that any error was made in the admission of evidence. Assuming arguendo that some of the similar accident evidence should have been excluded, however, the Court notes that the expert evidence alone was sufficient to sustain the jury verdict and, therefore, the admission of such evidence would not have been prejudicial to [appellant].
[Appellant's] fourth and fifth grounds for judgment now fail as a matter of law. Viewed in the light most favorable to [respondents], the evidence presented was sufficient to eliminate all causes of the sudden acceleration other than an unreasonably dangerous design defect.3 3 Ms. Watson expressly testified that she did not cause the sudden acceleration by keeping her foot on the accelerator and [respondents] presented expert and other evidence that the floor that did not cause the sudden acceleration. The only remaining explanation for the sudden acceleration was a defect in the cruise control and the jury properly concluded that this must have been the cause of the sudden acceleration.
Accordingly, even if the jury rejected the expert's testimony, the circumstantial evidence was sufficient to support the verdict. [Respondents] were not required to prove a specific defect in the vehicle and could properly prove that the vehicle was defective and unreasonably dangerous using circumstantial evidence. St. Paul Fire and Marine Ins. Co. v. American Ins. Co., 251 S.C. 56, 59-60, 159 S.E.2d 921, 923 (1968) ("[a]ny fact in issue may be proved by circumstantial evidence as well as direct evidence, and circumstantial evidence is just as good as direct evidence if it is equally as convincing to the trier of the facts"); McQuillen v. Dobbs, 262 S.C. 386, 391-92, 204 S.E.2d 732 (1974) ("negligence may be proved by circumstantial evidence as well as direct evidence"); Restatement (Third) of Torts: Product Liability § 3 Comment c (1998) (" No requirement that plaintiff prove what aspect of the product was defective. The inference of defect may be drawn under this Section without proof of the specific defect").4 4 The Court emphasizes that this is an alternative ruling. The Court finds that [respondents] did in fact present evidence sufficient for the jury to find that a specific defect in the Explorer — the EMI interference which caused the acceleration — proximately caused the accident. With respect to the alternative ruling, however, the Court notes that [appellant's] reliance on cases recognizing that a malfunction alone is insufficient to send the case to the jury is misplaced. This case involved evidence of a malfunction plus detailed evidence negating any cause of the sudden acceleration but a product defect.
For the reasons given above, I would reverse and remand.