MANIGAULT ET AL., APPELLANTS, v. FORD MOTOR COMPANY, APPELLEE, ET AL.
[Cite as Manigault v. Ford Motor Co., 96 Ohio St.3d 431, 2002-Ohio-5057.]

Evidence — Witnesses — New trial is the appropriate remedy when an expert witness’s testimony accompanying a videotape without audio is allegedly contradicted by a copy of the videotape with audio, even when the videotape with audio is not discovered until after the trial has been completed.
(Nos. 2000-2299 and 2001-0203 — Submitted January 29, 2002 — Decided October 9, 2002.)

APPEAL from the Court of Appeals for Cuyahoga County, No. 73147.
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PFEIFER, J.

{¶1} Plaintiff-appellant, Virginia Manigault, individually and as guardian of her husband, Leon Manigault, filed a products liability suit against defendant-appellee, Ford Motor Company in 1995. The suit alleged that a defect in the Manigaults’ 1987 Ford LTD Crown Victoria caused the car to suddenly and unexpectedly accelerate. Manigault presented evidence that when Mr. Manigault turned the key in the ignition as the car was parked in his garage facing the street, the car suddenly shifted into gear and sped down the driveway, crossed the street, and crashed into another residence.

{¶2} At trial, Ford presented expert testimony that the alleged malfunction was not possible. The expert testified that even if the unexpected acceleration occurred, it was driver error that caused the injury. He testified that tests conducted on this type of vehicle demonstrated that, even with the car at wide-open throttle, a driver could stop the car by applying a mere 20 pounds of pressure on the brake pedal. As support, the expert played a videotape without audio of a braking demonstration conducted by Ford on a car identical to the Manigaults’ Crown Victoria. At the conclusion of the trial, the jury returned a verdict for Ford.

{¶3} Manigault appealed, asserting that the trial court erred by excluding various items of proffered evidence. The court of appeals affirmed the trial court’s judgment on those issues and upheld the jury verdict for Ford.

{¶4} While the appeal was pending in the appellate court, Manigault’s attorney discovered that Ford possessed a copy of the video of the braking demonstration shown at trial that included sound. The audio portion includes a voice, probably the same expert who testified during trial, saying “one hundred seventy-five pounds.” Manigault argued that the video indicates that a brake effort of one hundred seventy-five pounds was necessary to stop the vehicle. Based on that interpretation, which she considered new evidence, Manigault filed a motion for reconsideration. The court of appeals denied the motion, limiting its consideration to evidence contained in the trial court record.

{¶5} The cause is now before this court pursuant to the allowance of a discretionary appeal.

{¶6} There are several troubling aspects about this case, not the least of which is the fact that, for reasons never fully explained, the vehicle whose malfunction allegedly caused the accident was not available for inspection at trial. However, we cannot get past one simple fact: the defendant presented a videotape without audio to the jury when a copy with contradictory audio was apparently available. Because we find this issue dispositive, we need not address the other issues before us.