Appeals Court: Nolte entitled to third trial against Ford

It's been nearly 11½ years since a May 22, 2003 fiery crash on Interstate 70 near the Missouri 13 interchange killed a Highway Patrol trooper and severely burned a former Chamois man.

But a state appeals court panel ruled last week that the legal battle about it isn't over.

Trooper Micheal Newton had stopped Michael Nolte's eastbound car for driving too long in the passing lane.

While the two men were sitting in Newton's 2003 Ford Crown Victoria Police Interceptor (CVPI) cruiser, it was rear-ended by a 1-ton pickup truck going 65 mph.

The Ford exploded. Flames reaching 2,300 degrees consumed both men.

"I lived; the state trooper at my side did not," Nolte wrote in his 2007 autobiography, "Burned But Not Broken - For What Was I Spared?"

"1.8 seconds - or about as long as it takes to read this sentence.

"That's how quickly the flames consumed us."

Nolte and his wife, Barbie Nolte, and Newton's widow, Shonnie Newton, sued the Ford Motor Co. for both negligence and strict products liability claims against Ford on the basis that, as a Missouri appeals court ruling explained last week, "the design of the anti-spill valve, the placement of the fuel tank filler tube on the driver's side of the patrol car, and the placement of the fuel tank behind the rear axle of the patrol car were defects that rendered the patrol car unreasonably dangerous when put to its anticipated use."

The trial was in Kansas City, and the jury returned a verdict in favor of Ford, finding the company not liable for the injuries sustained by Plaintiffs as a result of the collision.

But the Missouri Supreme Court in 2009 ordered a new trial due to an error made by the trial court, when the judge blocked the plaintiffs from arguing "reasonable inferences" from evidence the trial court mistakenly believed had not been admitted into the trial.

Ford settled with Mrs. Newton, leaving the Noltes as the only plaintiffs in the second trial.

That jury also found in Ford's favor - but last week, a three judge panel of the Missouri appeals court's Kansas City division ruled that the Noltes are entitled to a third trial in the case, because this time the trial judge allowed the jury to hear some evidence that had not been admitted properly.

The legal battle is a technical one, involving a National Highway Traffic Safety Administration "query" by its Office of Defects Investigation (ODI). The probe was based upon consumer complaints and Ford's issuance of a Technical Service Bulletin, which had recommended changes to certain hex bolts and U-brackets on the Crown Victoria police cruiser, for the purpose of reducing post-rear-collision fires.

But the query was limited to model years 1992-2001. And it was ended in October 2002 without the government's making a full-scale investigation.

The ODI said in a report: "Under the present circumstance, it is unlikely that further investigation would produce sufficient evidence to demonstrate the existence of a safety-related defect in the subject vehicles.

"Therefore, the investigation is closed based on the evidence available at this time," although the agency reserved "the right to take further action if warranted by new or changed circumstances."

Ford wanted to use that report as part of its defense, but the Noltes' lawyer objected "vigorously ... that admission of the ODI report "would lead to confusion and an inference [that] NHTSA closing the inquiry without opening up a full scale investigation and performing a full scale engineering analysis would be misleading and lead to juror confusion.'"

Ford argued that a 1999 state Supreme Court ruling required the judge to accept the report, and he did.

But the appeals court last week disagreed.

"Though Ford articulated various generalized arguments directed at logical relevance, Ford never addressed the legal relevance of the report, despite the fact that Nolte consistently argued the that report was unduly prejudicial and that it would confuse and mislead the jury," Judge Karen King Mitchell wrote for the court. "The trial court failed to separately assess the logical and legal relevance of the report."

The court also said: "The potential for prejudice to Nolte from admission of the ODI report was great, as it likely implied to the jury that a federal regulatory agency, seemingly - though not definitively - tasked with the same responsibility the jury faced, already (had) decided the issue in Ford's favor."

So the court ordered a new trial - but said its decision didn't predispose "either the trial court's assessment of the logical and legal relevance of the ODI report or the tools available to the trial court to control the admission of evidence that may have limited relevance."