USCA1 Opinion
United States Court of Appeals
For the First Circuit
No. 97-2393
KEITH SCHUBERT and KATHY SCHUBERT,
Plaintiffs, Appellants,
v.
NISSAN MOTOR CORPORATION IN U.S.A.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Boudin, Circuit Judge.
Paul E. Mitchell, with whom William A. Schneider and Mitchell,
McGowan & DeSimone, were on brief for appellants.
Brian P. Voke, with whom Richard P. Campbell, and Campbell,
Campbell & Edwards, were on brief for appellees.
July 7, 1998
BOWNES, Senior Circuit Judge. In this diversity action,
plaintiffs-appellants Keith and Kathy Schubert seek to hold
defendant-appellee Nissan Motor Corporation in U.S.A. ("Nissan")
liable for an injury to Mr. Schubert's back. Their suit is based
on a claim of product liability. The district court granted
Nissan's summary judgment motion, and we affirm.
I.
We recite the underlying facts in the light most
favorable to the Schuberts. United States v. Diebold, Inc., 369
U.S. 654, 655 (1962) (per curiam).
On December 6, 1992, Mr. Schubert was driving his 1989
Nissan pickup truck on Route 28 in Derry, New Hampshire. While he
was stopped in traffic, Schubert's truck was rear-ended by a 1977
Ford sedan. Skid marks of just under seven feet were evident at
the accident site, and the Ford's front end was severely damaged by
the impact.
Within twenty-four hours after the accident, Mr. Schubert
began to experience among other symptoms irrelevant here lower
back pain. His complaints included pain radiating from the lower
back into the right buttock and thigh, and further on into the
right calf and right foot. He was treated unsuccessfully with
chiropractic therapy before x-rays revealed a congenital defect in
his lower back, specifically, spondylolisthesis. This condition is
defined as "forward displacement . . . of one vertebra over
another, usually of the fifth lumbar over the body of the sacrum,
or of the fourth lumbar over the fifth, usually due to a
developmental defect in the pars interarticularis." Dorland's
Illustrated Medical Dictionary 1563 (28th ed. 1994). In lay terms,
this means the forward slippage of a vertebra out of normal
alignment. It is undisputed that this was a congenital defect and
existed at the time of the accident. The defect, however, was not
symptomatic until after the collision.
After various conservative approaches to the pain, Mr.
Schubert's neurosurgeon, Dr. Peter Grillo, performed a spinal
fusion operation. Despite this operation, Mr. Schubert's answers
to Nissan's interrogatories state that significant lower back and
lower extremity pain remain.
Plaintiffs' suit is premised upon a theory of faulty
product design. Specifically, they allege that a horizontal metal
pipe, located in the seat back frame and running across the length
of the seat back, came into forceful contact with Mr. Schubert's
spine at the time of the rear-end collision. This impact allegedly
exacerbated his congenital back defect, making the asymptomatic
condition suddenly symptomatic. The primary evidence in support of
this hypothesis is that the horizontal pipe, which is located four
and one half inches vertically from the bottom edge of the seat
back, was bent backwards approximately one-half of an inch. The
bend in the pipe was not part of the seat back design. It can be
fairly adduced that the pipe was bent by some force in the time
between the seat back's manufacture and the post-accident
examination of it. It must be noted that the apex of the bend is
not located directly behind the driver's side of the bench seat,
but instead is at the mid-point of the pipe length. Plaintiffs'
expert Murray Burnstine testified in deposition, "[i]f you have a
pipe that's connected at both ends, no matter where you apply the
force, it's going to bow in the middle." Burnstine Dep. at 49.
Plaintiffs filed suit against Nissan in November, 1995 in
the district of Massachusetts, alleging product liability claims.
The Schuberts retained the aforementioned Murray Burnstine as an
expert witness. According to Plaintiffs' answers to Nissan's
interrogatories, Burnstine would testify that,
parts of the seat back frame are bent
consistent with a rearward force being applied
to these parts by the victims [sic] lower back
and spine. The padding between the victim and
the metal structures was not adequate to
prevent a concentration of the forces on
Schuberts [sic] back. . . . Grounds for
opinion are education and training
inspection of the seat back[,] . . . a review
of the file including photos of the vehicle
and common sense.
Schubert App. at 38.
Nissan subsequently deposed Burnstine, and elicited from
him the admission that he did not have personal knowledge that the
horizontal pipe lined up vertically with the location of Mr.
Schubert's spinal injury. Rather, in the deposition, Burnstine
stated that he assumed that the lumbar injury lined up with the
pipe's location. Burnstine admitted that he had not done anything
to independently verify this assumption. See Burnstine Dep. at 27,
44. Instead, Burnstine stated that he relied on representations
made to him as well as photographs depicting an individual sitting
in the truck seat. For purposes of the photo, a piece of tape was
placed on the seat-back to indicate the vertical position of the
pipe. The face of the seated individual is not visible in the
photograph. More importantly, there was no indication in the
photograph of the location of the spinal injury on the back of the
person in the truck seat. On the basis of this deposition
testimony, Nissan moved to exclude the proposed testimony of
Burnstine because the opinion lacked sufficient foundation. The
district court initially dismissed the motion without prejudice.
Nissan thereafter moved for summary judgment. Nissan's
motion was premised on the argument that the Schuberts had failed
to make a showing sufficient to prove that the alleged design
defect in the seat the pipe had, more likely than not, caused
Mr. Schubert's injury. Nor, Nissan argued, had the Schuberts
presented any evidence to demonstrate that Mr. Schubert was injured
more severely than he would have been if the bench seat had been
reasonably designed.
The Schuberts responded to Nissan's motion, arguing,
without citation to the record, that there was "ample evidence with
which to demonstrate the causal connection between the seat back
design and [the] injuries; the weight of such [is] appropriate for
the trier of fact, not summary judgment." The district court,
however, was not satisfied and issued an order requiring plaintiffs
to: (i) comply with Local Rule 56.1; and (ii) "explicitly address
causation and show what admissible evidence will be offered to
support plaintiff's theory of causation. A suggestion as to what
an expert will testify at some future time is not enough.
Plaintiff must produce admissible evidence now." Memorandum and
Order of October 17, 1997 (emphasis ours).
The Schuberts responded. Appended to the new response
were two sworn affidavits. The first, an affidavit of Murray
Burnstine, contained the following relevant statements:
4. I have not reviewed the plaintiff's
medical records . . . as I have not been
retained as a medical expert. . . . I have,
however, reviewed the plaintiff's x-rays, the
report of Dr. Peter Grillo and the
plaintiffs's answers to interrogatories which
both identify the location of the plaintiff's
injury and discomfort at the plaintiff's lower
lumbar spine.
5. I have examined the seat on which the
plaintiff sat when another vehicle struck him
from behind . . . . I have also examined
photographs of the plaintiff seated in the
subject seat. My examination of the subject
seat and these photographs reveal that the
horizontal pipe in the seat frame lines up
consistent with the lumbar spine injury
sustained by the plaintiff.
6. Based upon my years of experience in
automotive design, biomechanical engineering,
and occupant kinematics, it is my professional
opinion that when the plaintiff's vehicle was
struck from behind, the force caused the
plaintiff's body to naturally move rearwards
into the seat, and if some hard object
exist[ing] within the seat lined up consistent
with the lumbar region of the plaintiff's
spine, such as the horizontal bar present in
the subject seat in this case, then to a
reasonable degree of professional certainty,
the force with which the plaintiff struck the
bar did, more likely than not, directly and
proximately cause[] or exacerbate[] the
injuries to the plaintiff's lumbar spine.
7. Based upon my . . . experience . . . ,
and examination of the subject seat following
the . . . accident, the horizontal bar in the
seat frame was bent consistent with the force
of the plaintiff's body moving rearwards into
the seat following the plaintiff's accident.
Further, . . . it is my professional opinion
[that] the inncorporation [sic] of the
horizontal bar in the design of the seat
concentrated the force of the impact on the
plaintiff's lumbar spine and that an
alternative design, one which would disperse
the force of the impact was feasible,
available, and desirable . . . .
The second affidavit the Schuberts submitted was from Dr.
Peter Grillo, Mr. Schubert's neurosurgeon, who opined that, "based
upon reasonable medical certainty, Mr. Schubert's injuries are
consistent with the direct application of force to his back," and
"that it is more probable than not that the injuries sustained by
Mr. Schubert to his back after being struck from behind in his
. . . truck, were directly and proximately caused by the motor
vehicle accident." Appended to the Grillo affidavit was Dr.
Grillo's three page reiteration of his medical treatment of Mr.
Schubert to plaintiffs' counsel.
The district court granted summary judgment to Nissan.
First, the district court examined the affidavit of Dr. Grillo,
concluding that Grillo's statement that Mr. Schubert's injuries
were "caused" by the motor vehicle accident constituted a "pure
assertion of a conclusion without any disclosure of a foundation
for it." Memorandum and Order, November 10, 1997, at 9 (for
citation purposes, hereinafter "Memorandum"). The district court
further determined that "neither the factual statement in Dr.
Grillo's affidavit, nor any other portion of the plaintiff's
filings provide a factual foundation for Dr. Grillo's opinion that
Mr. Schubert's injury was 'consistent with' the direct application
of force." Id. at 10.
Having decided that "the testimony of Dr. Grillo does not
establish causation for the plaintiffs," id. at 11, the district
court turned to the Burnstine affidavit. Stating that "[o]ne
critical part of the causation chain that plaintiffs assert in this
case is establishing that the pipe impacted Mr. Schubert's back at
the same point where the injury occurred," id., the district court
concluded from Burnstine's deposition testimony that "no foundation
exists for a critical aspect of the expert's opinion proffered in
this case," id. at 12. The district court summed up Burnstine's
affidavit by stating that it was "a conclusory assertion about an
ultimate legal issue," id. at 14, that "relies on another asserted,
yet unproved fact, that the pipe and the injury line up," id.
The district court therefore held that the Schuberts
failed to carry their burden on "the issue of causation even when
the evidence presented is viewed in the light most favorable to
them," id. at 15, and entered summary judgment in Nissan's favor.
This appeal followed.
II.
We begin our analysis by determining what rulings the
district court made on the motion for summary judgment. Initially
we find that the district court was not excluding the expert
testimony under the principles established in Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579 (1993). See Vadala v. Teledyne
Indus., Inc., 44 F.3d 36, 39 (1st Cir. 1995) ("Daubert's holding
that a scientific principle may sometimes be the basis for expert
testimony even if it is not 'generally accepted' has nothing to
do with this case, in which the dispute concerns an event rather
than a scientific law.").
The next question is whether the district court
determined that the affidavits were not competent evidence under
Fed. R. Civ. P. 56(e), or, alternatively, whether the district
court had examined the affidavits for their bearing on the issue of
causation in an attempt to determine whether the Schuberts had
adduced sufficient evidence on an element essential to their case.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
distinction between the two approaches is of crucial importance to
our analysis. If the district court determined Rule 56(e)
admissibility, we review that decision for abuse of discretion
prior to turning to our de novo summary judgment examination. SeeVazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir. 1998). "Under
Rule 56(e), affidavits supporting or opposing summary judgment must
set forth facts that would be admissible in evidence. A district
court may exclude expert testimony where it finds that the
testimony has no foundation or rests on . . . speculative evidence.
Such decisions are reviewed for abuse of discretion." Casas Office
Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 681 (1st Cir.
1994) (internal citations omitted). In the absence of a
determination on Rule 56(e) admissibility, of course, our review of
the grant of summary judgment is de novo. See G.D. v. Westmoreland
Sch. Dist., 930 F.2d 942, 946 (1st Cir. 1991). Nissan argues that
the former course was being taken, while the Schuberts posit that
the district court improperly weighed the evidence contained in the
affidavits in deciding the summary judgment motion. The district
court's memorandum is not completely clear it does not directly
state that a Rule 56(e) determination was made.
A close reading of the district court's memorandum has
convinced us that it was in fact determining that the affidavits
did not meet Rule 56(e)'s requirements of admissibility, and that
the court was excluding the affidavits from consideration for that
reason. First, the memorandum launches the analysis concerning the
affidavits in a way which distinctly implies a Rule 56(e)
determination, stating, "[i]t is the responsibility of the trial
judge to determine, before receiving the expert's testimony for
jury consideration, whether the expert's testimony is based on an
adequate foundation to be admissible." Memorandum at 8. Second,
the district court specifically noted that it had previously
ordered the plaintiffs to "produce admissible evidence now." Id.at 9 (quoting Memorandum and Order, October 17, 1997) (emphasis
ours). Finally, the district court's primary concern throughout
its discussion of the Burnstine affidavit is that Burnstine
admitted in deposition to a lack of personal knowledge regarding
the pipe's location relative to the back injury. In the summary
judgment context, it is Rule 56(e) which requires affidavits to be
"made on personal knowledge . . . ." We are therefore satisfied
that the district court determined that neither affidavit was
competent evidence under Rule 56(e). Cf. In re Paoli R.R. Yard PCB
Litig., 916 F.2d 829, 853 (3d Cir. 1990) (instance where it was
"not clear that the court was not merely choosing between opinions
as opposed to excluding plaintiff's opinion on evidentiary
grounds").
We therefore must determine whether the district court's
exclusion of the two affidavits constituted an abuse of discretion.
We have defined abuse of discretion as follows:
"Abuse of discretion" is a phrase which sounds
worse than it really is. All it need mean is
that, when judicial action is taken in a
discretionary matter, such action cannot be
set aside by a reviewing court unless it has a
definite and firm conviction that the court
below committed a clear error of judgment in
the conclusion it reached upon a weighing of
the relevant factors.
In re Josephson, 218 F.2d 174, 182 (1st Cir. 1954). In the context
of the admission or exclusion of opinion evidence, we have stated
that "we will uphold the district court's ruling in this area
unless it is 'manifestly erroneous.'" Bogosian v. Mercedes-Benz of
N.A., Inc., 104 F.3d 472, 476 (1st Cir. 1997) (quoting Salem v.
United States Lines Co., 370 U.S. 31, 35 (1962)); see also Stevensv. Bangor and Aroostook R.R. Co., 97 F.3d 594, 600 (1st Cir. 1996)
(abuse of discretion must be "clear" to warrant reversal).
Finally, we keep in mind that under abuse of discretion review, we
are "not to substitute [our] judgment for that of the [district
court]." Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983).
We begin with the affidavit of Dr. Grillo. The district
court determined that Dr. Grillo's opinion concerning the cause of
Mr. Schubert's injury constituted "pure assertion of a conclusion
without any disclosure of a foundation for it." Memorandum at 9.
We see no abuse of discretion in this ruling. Neither the
affidavit itself, nor the doctor's medical report on Mr. Schubert
(appended to the affidavit), provide any factual basis for the
statement that Mr. Schubert's injuries are "consistent with the
direct application of force to his back." Although the Schuberts'
counsel argued orally that Dr. Grillo's medical report contains a
factual iteration sufficient to create a foundation for this
assertion, we have found nothing in the document which would do
that. The district court acted well within its discretion when it
ruled that the Grillo affidavit lacked sufficient foundation to be
a competent Rule 56(e) affidavit. Plaintiffs argue in their
appellate brief that Grillo was retained not to opine on the causal
link between the pipe and the injury, but rather to provide
information "regarding his treatment and genesis of Mr. Schubert's
medical condition," Appellants' Br. at 12. But the doctor's
affidavit contains conclusory assertions concerning the cause of
Mr. Schubert's injury. It was these statements that the district
court deemed without foundation. There was no abuse of discretion.
The exclusion of the Burnstine affidavit is a more
difficult question. Burnstine's affidavit was, and is, the
linchpin to plaintiffs' theory of product liability. On the
surface, Burnstine's theory is plausible the existence of the
horizontal metal bar unduly exaggerated the force acting on Mr.
Schubert's back during the rear-end collision. Similarly, the bend
in the pipe would seem to support this theory. The district court,
however, decided that the affidavit was not competent evidence
because of Burnstine's deposition admission that he did not have
personal knowledge that the pipe and the back injury lined up with
each other. To the court, Burnstine's admission demonstrated that
the opinion testimony did not rest on an adequate factual
foundation to constitute reliable opinion testimony.
We think the question whether to admit or exclude
Burnstine's affidavit on this basis is a close call. On the one
hand, Burnstine inspected the seat himself, and observed the bend
in the pipe. Couple that observation with his considerable
experience in automotive crash reconstruction and engineering, and
it seems to be a reasonable inference that Mr. Schubert's rearward-
moving body was the force that bent the pipe. We were recently
reminded, however, that although "[o]n a motion for summary
judgment[] disputed issues of fact are resolved against the moving
party . . . [,] the question of admissibility of expert testimony
is not such an issue of fact, and is reviewable under the abuse of
discretion standard." General Elec. Co. v. Joiner, 118 S. Ct.
512, 517 (1997).
On the evidence presented, there was no assertion that
anyone knew firsthand whether the location of the pipe lined up
with Mr. Schubert's back injury. Courts have only those materials
which the parties supply to them. See Diebold, 369 U.S. at 655
(favorable inferences are drawn "from the underlying facts
contained in . . . materials [submitted below]"). The materials
submitted in opposition to Nissan's motion are completely silent on
this point. Rather, the Burnstine affidavit states that his
opinion was formed based upon his examination of the seat, and
inspection of the photographs ostensibly depicting Mr. Schubert in
the seat. This is the same foundation that Burnstine testified to
in deposition. Yet the photographs were not furnished in
opposition either to Nissan's exclusionary or summary judgment
motions, so there is no way to know whether and how they would
confirm that the pipe lined up with Mr. Schubert's back injury.
"It is fundamental that expert testimony must be predicated on
facts legally sufficient to provide a basis for the expert's
opinion." Damon v. Sun Co., Inc., 87 F.3d 1467, 1474 (1st Cir.
1996) (internal quotation marks omitted). We think it significant
that Burnstine's affidavit makes no effort to explain or correct
the deposition admissions. See Colantuoni v. Alfred Calcagni &
Sons, Inc., 44 F.3d 1, 5 (1st Cir. 1994) (disregarding on summary
judgment affidavit which contradicts earlier deposition testimony
with little explanation). We are therefore as the district court
was left to speculate as to the proximity of the pipe to the
injury site. Thus, we cannot say on this record that the district
court's choice was "manifestly erroneous." Bogosian, 104 F.3d at
476.
The district court was proceeding under Massachusetts'
law of product liability. Plaintiffs had a duty to demonstrate to
the district court "that there was greater likelihood or
probability that the harm complained of was due to causes for which
the defendant was responsible than from any other cause." Carey v.
General Motors Corp., 387 N.E.2d 583, 586 (Mass. 1979) (quoting
McLaughlin v. Bernstein, 249 N.E.2d 17, 22 (Mass. 1969)). Under
Massachusetts tort law, proof of causation "must be such as to make
the defendant's causality 'appear more likely or probable in the
sense that actual belief in its truth exists in the mind or minds
of the tribunal notwithstanding any doubts that still linger
there.'" Lynch v. Merrell-National Lab., 830 F.2d 1190, 1197 (1st
Cir. 1987) (quoting Smith v. Rapid Transit, Inc., 58 N.E.2d 754,
755 (Mass. 1945)). In light of this standard, and the fact that
Mr. Schubert suffered from an underlying congenital defect and was
involved in a relatively forceful automobile collision, we are not
left with a "definite and firm conviction that the court below
committed a clear error of judgment," Josephson, 218 F.2d at 182,
in requiring a certain level of factual specificity. See alsoJoiner, 118 S. Ct. at 517 (relying on "general rule" that "it is
very much a matter of discretion with the court whether to receive
or exclude the evidence; but the appellate court will not reverse
in such a case, unless the ruling is manifestly erroneous")
(quoting Spring Co. v. Edgar, 99 U.S. 645, 658 (1878)).
We also note that the record indicates that the
plaintiffs should have been well aware of the district court's
concern over this issue. Although the initial motion to exclude
was denied, it was done so without prejudice. Similarly, the
clerk's notes from the summary judgment oral argument indicate that
a colloquy ensued concerning the "admissable [sic] evidence upon
which expert witness bases testimony," with Judge Keeton apparently
indicating his concern that "no black-box opinions will go to the
jury."
"'The very mission of the summary judgment procedure is
to pierce the pleadings and to assess the proof in order to see
whether there is a genuine need for trial.'" DeNovellis v.
Shalala, 124 F.3d 298, 305-06 (1st Cir. 1997) (quoting Fed. R. Civ.
P. 56 advisory committee's notes, 1963 Amendment) (emphasis ours).
In assessing this proof, Rule 56(e) charges the district court with
ensuring that the evidence proffered in opposition to a motion for
summary judgment has a foundation sufficient to allow it to reach
a jury. If the nonmoving party is unable to provide such
admissible proof, then the court is unable to say that there exists
a "genuine need for trial." Id. (emphasis ours).
The district court's grant of summary judgment is
affirmed. Costs on appeal awarded to appellee.
