USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2374
No. 93-1033
MARY HAYES, ADMINISTRATOR OF THE ESTATE OF
ROBERT HAYES, JR., AND ERIC HAYES,
Plaintiffs, Appellants,
v.
DOUGLAS DYNAMICS, INC.,
Defendant, Appellee.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Boudin and Stahl, Circuit Judges,
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and Fuste,* District Judge.
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John Benjamin Carroll with whom Woodruff L. Carroll was on brief
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for appellant.
John L. Kerr with whom Whiting & Elinoff was on brief for
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appellee.
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November 1, 1993
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*Of the District of Puerto Rico, sitting by designation.
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FUSTE, District Judge. Appellants Mary and Eric Hayes
FUSTE, District Judge.
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appeal from a grant of summary judgment in a negligence and
breach of warranty action resulting from a car accident in which
Robert Hayes, Jr., the son of Mary and brother of Eric, was
killed. The district court held that plaintiffs failed to adduce
adequate evidence to show that defendant's product was the
proximate cause of the decedent's fatal injury. We affirm.
affirm
I.
I.
Background
Background
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On January 30, 1988, Robert Hayes, Jr. and his brother
Eric were passengers in the rear compartment of a Ford Tempo.
Robert, Jr. was sitting in the right rear passenger seat, and
Eric was sitting behind the driver's seat. While the car was
stopped at an intersection, waiting to make a left turn, it was
hit from behind by a Chevrolet pickup truck. The driver of the
truck attempted to swerve and avoid the car. The collision
pushed the car into oncoming traffic where it was hit in the left
front area by a van. The car spun one-hundred and eighty degrees
before coming to rest. Robert, Jr. died the following day from a
head injury sustained in the accident. The cause of death was a
blow to the back of the head, behind the right ear. The other
three passengers suffered minor injuries.
Exactly which part of the truck hit the Tempo is a
central issue in this case. The Chevrolet truck was fitted with
a Western brand snowplow manufactured by defendant-appellee
Douglas Dynamics. The snowplow unit is designed so that the
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frame, consisting of a metal hydraulic pump and motor unit with a
metal lift channel, can remain attached to the truck even when
the snowplow blade is removed. The blade was not attached to the
truck at the time of the accident. Part of the lift channel
consists of a lift arm which protrudes outward from the front of
the truck. The end of the lift arm is a U-shaped plate
approximately 2 inches by 3 1/2 inches in dimension.
II.
II.
Theories of Recovery and Defense
Theories of Recovery and Defense
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Plaintiffs brought a diversity jurisdiction suit in
federal district court alleging breach of warranty1 and
negligence and contending that defendant is liable for the
wrongful death of Robert, Jr. and the mental injuries suffered by
Eric Hayes as a result of seeing his brother sustain the fatal
injury. The plaintiffs' theory is that the protruding lift arm
of defendant's product caused the death of Robert, Jr., either by
directly striking his head, or by propelling forward some metal
piece of the Tempo which then dealt the fatal blow to his head.
The plaintiffs also argue that the presence of the plow frame on
the truck altered the dynamics of the pickup, making it more
dangerous in a collision.
In order to succeed in a claim for breach of warranty
under Massachusetts law, the plaintiff must show that the
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1Under Massachusetts law, the theory of breach of an implied
warranty of merchantability is basically the same as strict
liability theory in tort. Wolfe v. Ford Motor Co., 386 Mass. 95,
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100, 434 N.E.2d 1008, 1011 (1982).
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defendant's product was the proximate cause of the injury.
Colter v. Barber-Greene Co., 403 Mass. 50, 61, 525 N.E.2d 1305,
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1312 (1988); Swartz v. General Motors Corp., 375 Mass. 628, 633,
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378 N.E.2d 61, 65 (1978). A plaintiff alleging that a product
was negligently designed can proceed by showing that the product
either proximately caused or enhanced the injuries alleged.
Simmons v. Monarch Mach. Tool Co., 413 Mass. 205, 212, 596 N.E.2d
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318, 323 (1992). Because it is undisputed that Robert, Jr. was
killed by a single blow to the head, the plaintiffs must show
that the plow frame either caused the injury or that the injury
would not have been fatal if the frame had not been attached to
the truck. If the plaintiffs cannot prove that the plow frame
was the proximate cause of the fatal injury itself, or that it
caused an enhancement of a lesser injury, then the defendants are
entitled to summary judgment as a matter of law.
Proximate cause is a legal definition which requires
that the precipitating object or action "in a continuous
sequence, unbroken by any new cause, produces an event and
without which the event would not have occurred." Wallace v.
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Ludwig, 292 Mass. 251, 254, 198 N.E. 159, 161 (1935). A
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plaintiff need not prove the exact cause of the accident or
disprove every possible cause, but he must show that there is a
greater likelihood that the accident resulted from the
defendant's negligence than that it did not. Enrich v. Windmere
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Corp., 416 Mass 83, 616 N.E.2d 1081, 1084 (1993). Therefore, in
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order to proceed with their claims, the plaintiffs here must be
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able to show that there is a greater probability that the lift
arm caused the death of Robert, Jr. than that some other object
in the crash was the agent of injury.
Defendant alleges that the evidence offered by
plaintiffs is insufficient to establish that there is a genuine
issue of fact as to whether the snowplow, directly or indirectly,
caused the injury to Robert, Jr. Accordingly, the defendant
filed a motion for summary judgment. Plaintiffs opposed and
filed a cross-motion seeking similar relief. The district court
granted the defendant's motion for summary judgment. The
plaintiffs appeal the grant of summary judgment and the denial of
their cross-motion. Plaintiffs also challenge several
prejudgment rulings of the district court.2
III.
III.
Summary Judgment and Standard of Review
Summary Judgment and Standard of Review
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The purpose of summary judgment is "to pierce the
pleadings and to assess the proof in order to see whether there
is a genuine need for trial". Garside v. Osco Drug, Inc., 895
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F.2d 46, 50 (1st Cir. 1990) (quoting Fed. R. Civ. P. 56 Advisory
Committee's Note). Therefore, if the pleadings, depositions,
answers to interrogatories, admissions and any affidavits on file
show that there is no genuine issue as to a material fact, then
the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c).
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2Because we affirm the grant of summary judgment to the
defendant, we do not reach the other issues raised on appeal by
the plaintiffs.
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Where, as here, the moving party does not have the
burden of proof at trial, that party must make a showing that the
evidence is insufficient to support the nonmoving party's case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once this
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showing has been made, it is up to the nonmoving party to
establish the existence of a genuine disagreement as to some
material fact. United States v. One Parcel of Real Property, 960
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F.2d 200, 204 (1st Cir. 1992). In this context, "genuine" means
that "the evidence is such that a reasonable jury could return a
verdict for the nonmoving party", and a "material fact" is one
which "might affect the outcome of the suit under the governing
law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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Appellate review of summary judgment decisions is
plenary. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.
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1990). In applying this standard, we view the record in the
light most favorable to the nonmovants, the plaintiffs. Bank One
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Texas, N.A. v. A.J. Warehouse, Inc., 968 F.2d 94, 97 (1st Cir.
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1992).
IV.
IV.
Discussion
Discussion
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In support of their claims, the plaintiffs offer direct
evidence in the form of the depositions of witnesses and
photographs from the scene, as well as the affidavits of several
experts.3
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3Following the order of the district court granting summary
judgment, the plaintiff moved to submit further evidence under
Fed. R. Civ. Pro. 59(e) and 60(b)(6). The denial of these
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A. Direct Evidence
A. Direct Evidence
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1. Paul Porter
1. Paul Porter
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Paul Porter, a police officer who arrived immediately
after the accident, testified that based on his examination of
the vehicles, he believed that the front of the truck, with an
emphasis on the left front quarter, struck the right rear of the
Tempo. Porter stated that he saw "the plow frame and front end
as one entity," and did not think that the plow frame did all of
the damage to the Tempo. Porter testified that no blood or hair
samples were found on the plow frame itself. In addition, Porter
stated that when he arrived at the accident scene, Robert, Jr.
was still in the car. The officer observed that the boy was
pinned under a piece of the Tempo, a metal pillar from between
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motions is also challenged on appeal. Decisions of the district
court under these rules are reviewed for abuse of discretion.
Valley Citizens for a Safe Environment v. Aldridge, 969 F.2d
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1315, 1317 (1st Cir. 1992) (Rule 60(b)); Mariani-Giron v.
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Acevedo-Ruiz, 945 F.2d 1, 3 (1st Cir. 1991) (Rule 59(e)). A Rule
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60(b)(6) motion will be granted by a district court only if it
finds "exceptional" circumstances that justify "extraordinary"
relief. United States v. One Urban Lot, 882 F.2d 582, 585 (1st
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Cir. 1989). Rule 50(e) motions are granted for reasons such as
the commission by the trial court of a manifest error of law or
fact, the discovery of new evidence, or an intervening change in
the law. National Metal Finishing Co. v.
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BarclaysAmerican/Commercial, Inc., 899 F.2d 119, 124 n.2 (1st
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Cir. 1990)(citations omitted). Plaintiffs presented no reasons
to the district court which would warrant relief under 60(b) or
59(e). The judge noted that none of the information presented
was new, nor was it unavailable when the summary judgment was
filed. In addition, he stated that the new evidence would not
have changed his prior analysis. We are unable to find any
reasons in the record to justify the submission of further
evidence, and plaintiffs have not advanced any. Therefore we
find that it was not an abuse of discretion for the court to deny
the plaintiff's motions, and we will not consider the additional
affidavits on appeal.
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the side rear window and the rear window. The pillar was leaning
against the head of Robert, Jr., behind his right ear.
Because Porter did not distinguish between the plow
frame and the front of the truck, his testimony does not help to
establish that the snowplow frame, directly or indirectly, caused
the death of Robert, Jr. Porter's testimony about the lack of
blood or hair on the plow frame tends to refute the theory that
the lift arm itself came into contact with the victim's head. In
addition, the officer's observation of the metal pillar leaning
against the decedent's head suggests one alternative explanation
for how Robert, Jr. may have received the head injury.
2. William Richardson
2. William Richardson
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William Richardson, the driver of the truck, stated
that he hit the car off-center because he swerved in an attempt
to avoid the accident. He testified that approximately the
center of the front end of his truck hit the right rear passenger
side of the Tempo, but he was unable to see whether the lift arm
itself impacted the car. Richardson's testimony establishes that
the right rear passenger area of the Tempo received the brunt of
the collision. Due to this, it is understandable that the injury
to Robert, Jr. was more severe than that to any other occupant of
the car. Because Richardson could not see what happened to the
lift arm during the collision, his testimony does not help to
establish a causal link between defendant's product and the
injury to the victim.
3. Police Photographs
3. Police Photographs
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The police photographs offered by the plaintiffs depict
a mangled mass of metal in the right rear passenger area of the
Tempo, and some damage to the left front of the truck. The
pictures show that the damage to the right rear part of the car
was far more extensive than that sustained by the left rear
region. The photographs do not further the plaintiffs' claim
that the defendant's product caused the injury, but rather
suggest a number of different possibilities for what might have
hit Robert, Jr. on the head.
Wolf Technical Services, an engineering consulting
firm, was employed to analyze the photographs of the accident.
The consultants concluded that the rear seat back was moved
forward approximately 11.5 inches on the left end and 24 inches
on the right end, and the rear bumper was displaced approximately
15 inches at the left end and at least 30 inches on the right
side. These results are consistent with the other evidence that
the right rear part of the Tempo sustained the brunt of the
damage. However, as the district court pointed out, the study
does not establish that the plow frame caused the seat back and
fender to move forward.
The plaintiffs claim that the lift mechanism caused,
among other damage, a wedge shaped mark on the trunk lid of the
Tempo. If shown, this might help to establish that the lift
mechanism played a major role in the accident. As noted by the
district court, however, no such mark is visible in the police
photographs.
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B. Expert Witnesses
B. Expert Witnesses
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The plaintiffs have produced the affidavits of a number
of expert witnesses and argue that, under Federal Rule of
Evidence 705, we must accept the conclusions of these experts.
While nonmovants may rely on the affidavits of experts in order
to defeat a motion for summary judgment, such evidence must still
meet the standards of Rule 56. Fed. R. Civ. P. 56(e) requires
that the nonmoving party "set forth specific facts showing that
there is a genuine issue for trial." Plaintiff's reliance on
Federal Rule of Evidence 705, which allows an expert to give
opinion testimony, together with the supporting reasons, without
disclosure of the underlying facts or data, is inapposite.4
This rule was designed to apply in the context of a trial, where
cross-examination provides an opportunity to probe the expert's
underlying facts and data and to test the conclusions reached by
the expert.
Although expert testimony may be more inferential than
that of fact witnesses, in order to defeat a motion for summary
judgment an expert opinion must be more than a conclusory
assertion about ultimate legal issues. Bowen v. Manchester, 966
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F.2d 13, n.16 (1st Cir. 1992). See also Moody v. Boston and
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4Fed. R. Evid. 705 provides:
The expert may testify in terms of opinion or
inference and give reasons therefor without
prior disclosure of the underlying facts or
data, unless the court requires otherwise.
The expert may in any event be required to
disclose the underlying facts or data on
cross-examination.
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Maine Corp., 921 F.2d 1, 5 (1st Cir. 1990); Sultis v. General
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Motors Corp., 690 F. Supp. 100, 103 (D. Mass. 1988). The
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evidentiary rules regarding expert testimony at trial were "not
intended . . . to make summary judgment impossible whenever a
party has produced an expert to support its position." Merit
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Motors, Inc. v. Chrysler Corp., 569 F.2d 666, 673 (D.C. Cir.
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1977). We are not willing to allow the reliance on a bare
ultimate expert conclusion to become a free pass to trial every
time that a conflict of fact is based on expert testimony. As
with all other evidence submitted on a motion for summary
judgment, expert affidavits must be reviewed in light of
F.R.Civ.P. 56.
Where an expert presents "nothing but conclusions -- no
facts, no hint of an inferential process, no discussion of
hypotheses considered and rejected", such testimony will be
insufficient to defeat a motion for summary judgment. Mid-State
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Fertilizer v. Exchange Natl. Bank, 877 F.2d 1333, 1339 (7th Cir.
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1989). See also Evers v. General Motors, 770 F.2d 984, 986 (11th
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Cir. 1985); Bulthuis v. Rexall Corp, 789 F.2d 1315, 1318 (9th
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Cir. 1985). Although an expert affidavit need not include
details about all of the raw data used to produce a conclusion,
or about scientific or other specialized input which might be
confusing to a lay person, it must at least include the factual
basis and the process of reasoning which makes the conclusion
viable in order to defeat a motion for summary judgment. We find
that each of the expert affidavits failed to contain sufficient
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support for the conclusion that the injury to Robert, Jr. was
caused by the defendant's product.
1. Nicholas Miller
1. Nicholas Miller
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Nicholas Miller, an expert in accident reconstruction,
used the police report, autopsy report, death certificate,
hospital and medical records, depositions, pictures of the
accident scene and vehicles, and the study conducted by Wolf
Technical Services, in order to reconstruct the accident. Miller
also utilized similar vehicles to simulate the relative positions
of the truck and the Tempo before impact, and conducted a video
computer graphic reenactment. Based on this input, Miller
concluded that the lift mechanism caused Robert, Jr.'s injuries.
Miller opines that the deceased was struck by sheet
metal pushed forward by the lift arm of the snowplow. He
explains his reasoning as follows: (1) the fatal blow was by an
object of the same size, shape and rigidity as the lift arm; (2)
there was no other object of similar shape, size, and rigidity
near the decedent's head; (3) therefore, defendant's product
caused the injury. Even assuming that the victim was killed by
an object of the dimensions and shape of the lift arm ("rigidity"
was never further discussed by any of the experts), Miller's bald
assertion that no other part of the car or truck had that
particular shape is difficult to accept, given that Miller never
had the opportunity to examine the Tempo after the accident. The
photographs of the Tempo after the crash are not sufficiently
clear to establish the shape and size of each of the pieces of
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the wreck. Miller claims to have eliminated all other
possibilities as to what could have struck Robert, Jr., but
provides no factual details about this analysis. He fails to
even mention or discuss the only object which anyone saw near the
victim's head, the metal window support which Porter observed.
In his second supplemental affidavit, Miller discusses
the exemplar vehicles. Starting with a picture of a Chevrolet
pickup truck with a snowplow frame attached, situated behind a
Ford Tempo, Miller drew a line representing where the snowplow
would end up if it proceeded directly into the Tempo. Miller
concludes that "it is apparent as an observable fact, that the
lift mechanism attached to the truck reached and invaded the
right-rear seat at head height and would have struck the right
rear passenger."
Miller provides no supporting data to establish that
the exemplar vehicles were in the same positions relative to each
other as the actual truck and Tempo had been at the time of the
accident. Even assuming that the exemplar vehicles were correctly
positioned, these pictures do not show what actually happened to
the Tempo. The pictures of the exemplar vehicles show only that
if the truck were to penetrate directly through the trunk of the
car, in a straight line, then the front of the truck, including
the plow mechanism, would end up in the rear passenger area.
This establishes nothing more than that it is possible, given the
relative height of the vehicles, that the plow caused injury.
Miller provides no facts from which we can reach the conclusion
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that it is more probable than not that the plow frame tore
directly, without any resistance, into the car in a linear
fashion and reached the passenger's head.
2. Norris Shoemaker
2. Norris Shoemaker
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Norris Shoemaker, a consultant in transportation
safety, reviewed the same documents and pictures as Mr. Miller.
In his initial affidavit, Shoemaker made general observations
about the design of the snowplow, asserting that the defendant's
product "changes the crush characteristics of the pickup truck
and concentrates the energy of the collision in a narrow area
projecting in front of the vehicle in a narrow spearlike
configuration" and, as a result, the snowplow frame "can and has
inflicted severe head and other injuries". This is not evidence
of what actually happened in the accident with which we are
concerned. Although in his supplemental affidavit Shoemaker
makes more specific assertions about the accident at hand, they
are not sufficient to establish a causal connection. Shoemaker
asserts that "a comparison of the exemplar vehicles and the
damage photographs clearly show a penetration to and beyond the
right rear passenger seat by the Defendant's product." However,
without additional facts, a comparison of these two sets of
photographs does not sustain such a conclusion. The exemplar
pictures show only where the truck may have struck the Tempo, and
the damage pictures are not sufficiently clear or detailed to
show that the lift arm or other parts of the plow frame ever
penetrated into the right rear passenger seat.
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3. Gerald Feigin
3. Gerald Feigin
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Dr. Gerald Feigin, the medical examiner who performed
the autopsy on the deceased, submitted an affidavit. Based on
his experience, the autopsy report and pictures, and an
examination of a Western lift arm, Feigin concluded that a blunt
object shaped like a lift armcaused the fatal blow to Robert, Jr.
Feigin's affidavit was written four years after he
performed the original autopsy. At the autopsy, Feigin noted a
one centimeter contusion on the head. However, in his affidavit,
he suggests that the bruise was in conformity with the size of
the terminus of the lift arm, which is 2 inches by 3 1/2 inches.
This creates a factual discrepancy as to the actual size of the
bruise. In addition, as the district court pointed out, the
pictures attached to the autopsy do little to support Feigin's
conclusion. They do not clearly show a U-shaped bruise
conforming to the reported size and shape of the lift arm. It is
arguable that these concerns go to the weight of the evidence and
the credibility of the witness, and would not themselves be a
sufficient basis, on summary judgment, for disregarding the
evidence. But even if we accept the conclusion that the bruise
on the decedent was the same size and shape as an injury which
would result if a "blunt object shaped like a Western lift arm"
struck a human head, this does little to establish that, in this
particular case, the lift arm actually did strike Robert Hayes,
Jr.
4. Dr. Ommaya
4. Dr. Ommaya
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Plaintiffs also attached the affidavit of Dr. Ayub Khan
Ommaya, a neurosurgeon. Ommaya examined the police report,
accident photographs, medical records, autopsy report, death
certificate, witness depositions, and affidavits of the other
experts. Based upon this evidence, he concluded that the fatal
injury was caused by the snowplow lift mechanism because, among
other unnamed reasons, "the deceased was seated in the path of
the lift mechanism and [the] type and location of the bruising
fits the penetration path of the lift mechanism". Ommaya added
that there was no other source for the head injury and that his
conclusion was inevitable from the dynamics of the accident,
including the acceleration forces. Ommaya asserted that Robert,
Jr. would have sustained minor injuries similar to those of the
other passengers in the car if the lift mechanism was not
present.
The difficulty with Dr. Ommaya's opinion is that he
begins with one assumption, that the deceased was in the path of
the lift mechanism; adds a further assumption, that there was no
other object which could have caused the injury sustained by the
deceased, and then concludes that the lift mechanism caused the
injury. As we have seen, there are not sufficient facts to
establish that the lift mechanism entered the compartment where
Robert, Jr. was sitting, and Ommaya does not offer any additional
facts. The assumption that there was no other source of injury
disregards the presence of all other parts of the Tempo and the
truck, in particular the piece of the car which Officer Porter
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testified he found lying against the boy's head. Ommaya fails to
discuss the "dynamics of the accident" or the "acceleration
forces", which he claims lend support to his conclusion.
Ommaya asserts that Robert, Jr. would have sustained
minor injuries similar to those of the other passengers in the
car if the lift mechanism was not present. It is clear from the
police photographs that the primary damage to the Tempo was in
the right rear area of the car. The driver of the truck
testified that the right rear passenger area received the brunt
of the collision. Regardless of the presence of the snowplow
frame, therefore, it is likely that the passenger seated in that
compartment would have been more severely injured than any of the
other passengers.
V.
V.
Conclusion
Conclusion
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We hold that there is no genuine dispute of material
fact as to whether the defendant's product was the proximate
cause of the fatal injury to Robert Hayes, Jr. The evidence does
not establish that it is more probable than not that the plow
frame came into contact, directly or indirectly, with the victim.
Given the available facts, the experts were able to provide no
more than unsubstantiated conclusions. The district court
correctly granted summary judgment. Affirmed.
Affirmed
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