JAMES T. MOODY, District Judge.
This matter is before the court on defendant Ford Motor Company's ("Ford")
Summary judgment must be granted when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Not every dispute between the parties makes summary judgment inappropriate; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.
To determine whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir.2010). A party opposing a properly supported summary judgment motion may not rely merely on allegations or denials in his or her own pleading, but rather must "marshal and present the court with the evidence she contends will prove her case." Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir.2010). If the nonmoving party fails to establish the existence of an essential element on which he or she bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir.2006).
For the purposes of the analysis pertinent to Ford's motion, there are no facts in dispute in this case, either because they are truly undisputed, or because, for the purposes of its motion, Ford accepts the version of a fact as alleged by the Piltches and most favorable to them. In turn, the Piltches concede certain facts or issues for the purpose of Ford's motion.
The single-vehicle accident at issue in this case occurred in Andover, Massachusetts, on February 4, 2007. (DE #1 at 2.) The road conditions were icy and treacherous. (Id.) The Piltches were in their 2003 Mercury Mountaineer, with Barbara driving and Howard riding in the front passenger seat. (Id.) Because of the icy road conditions, Barbara lost control of the vehicle and it collided with a tree. (Id.) The air bags did not deploy, causing more serious injuries to the Piltches than would have occurred had they deployed. (Id.) The Piltches sold the car to a James O'Boyle in 2009. (DE #35 at ¶ 3.) At that time, any damages from the accident had already been repaired. (Id.) Neither party has designated any evidence showing the condition of the vehicle after the accident, such as photographs or reports showing the extent of its damages and necessary
The Piltches claim that the air bags failed to deploy because they were defective, and allege theories based on negligence, breach of warranty, and strict liability. (Id. at 3-4, ¶¶ 6-8.) The Indiana Products Liability Act (IND.CODE §§ 34-20-1-1 through 34-20-9-1, hereinafter, the "IPLA"), governs all actions brought by a user or consumer against a manufacturer or seller for physical harm caused by a product, regardless of the legal theory upon which the action is brought.
To succeed on their action under the IPLA, the elements the Piltches must prove differ slightly between their negligence and strict liability theories:
Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810 (Ind.2007) (citations omitted). It is critical to note that both theories require proof of proximate cause.
Under strict-liability theory, proof that the product was defective and unreasonably dangerous can be established by showing "that the product was defectively designed, defectively manufactured, or that the manufacturer failed to supply adequate warnings or instructions as to the dangers associated with its use." Hoffman v. E.W. Bliss Co., 448 N.E.2d 277, 281 (Ind.1983). If the claim is that the product was defectively designed or that there were inadequate warnings, there is an added wrinkle, however. The statute imposes a negligence standard for such claims: "[T]he party making the claim must establish that the manufacturer or seller failed to exercise reasonable care under the circumstances in designing the product or in providing the warnings or instructions." Ind.Code § 34-20-2-2; see TRW Vehicle Safety Systems, Inc. v. Moore, 936 N.E.2d 201, 209 (Ind.2010). Thus, a so-called strict-liability claim for a design defect or inadequate warning is strict in name only, and actually falls on the negligence side of the ledger.
In the present case the Piltches allege that the air bags were defective in design, manufacture, and because there was no post-manufacture corrective action taken such as a warning or recall.
As noted above, whether this case involves strict liability theory or negligence theory, proximate cause must be established, and the "`doctrine of crashworthiness merely expands the proximate cause requirement to include enhanced injuries.'" Id. at 793 (quoting Miller v. Todd, 551 N.E.2d 1139, 1142 (Ind.1990)). "Given the reality that safety technology is expensive, the operative consideration in defining a crashworthiness defect is the balance between reasonable safety and economics," which means that in a crashworthiness case, "a defect is `not merely the conclusion that a product failed and caused injury, but that the product failed to provide the consumer with reasonable protection under the circumstances surrounding a particular accident.'" Whitted v. General Motors Corp., 58 F.3d 1200, 1205-06 (7th Cir.1995) (quoting Miller, 551 N.E.2d at 1143.)
Typically, the issue of proximate cause in a product liability case requires expert testimony, because an understanding of the inherent issues is beyond the understanding of a layperson. U-Haul Intern., Inc. v. Nulls Machine and Mfg. Shop, 736 N.E.2d 271, 285 (Ind.App. 2000); see Owens v. Ford Motor Co., 297 F.Supp.2d 1099, 1103-04 (S.D.Ind.2003). In the present case, Ford's motion for summary judgment all comes down to that issue: it is undisputed that the Piltches have not disclosed any expert witness who will testify regarding the particular circumstances of the accident, whether the air bags would have been expected to deploy in the accident, or any findings based on the condition of the vehicle after the accident suggesting a reason for their failure to deploy.
Ford compares the present case to Owens, in which plaintiff's claim was that the vehicle's air bags
Owens, 297 F.Supp.2d at 1104. Ford concludes that because the Piltches have no expert witnesses on the issue of causation in the present case, it is similarly entitled to summary judgment.
The Piltch's response to Ford's motion is that it is unnecessary for them to present any expert testimony to establish their claim. They rely on the principle, recognized in Owens, that causation can "be proven by circumstantial evidence if that evidence is of sufficient probative force to constitute a basis for a legal inference and not mere speculation." U-Haul Intern., Inc., 736 N.E.2d at 285 n. 3; see Owens, 297 F.Supp.2d at 1103. They believe their case is not like Owens, but more like Cansler v. Mills, 765 N.E.2d 698 (Ind.Ct.App. 2002) (disapproved on other grounds by Schultz v. Ford Motor Co., 857 N.E.2d 977, 986 (Ind.2006)), a case involving air bags which did not inflate at all. In Cansler the court found that expert testimony was not necessary to establish causation and an issue of fact precluded summary judgment where, along with the vehicle's owner's manual outlining the circumstances in which the air bags should have deployed, other circumstantial evidence showed:
Id. at 706-07. Thus, it is important to carefully compare the circumstantial evidence found sufficient in Cansler — and in a similar case cited in Cansler — to the circumstantial evidence the Piltches assert is sufficient to stave off summary judgment by creating an issue of fact on causation in the present case.
In Cansler, the trial court had not considered the opinion of the plaintiff's proffered expert, finding that he did not qualify as an expert witness "in the area of air bag deployment" under Ind. R. Evid. 702 because of his lack of formal training and education, and possessing no experience designing and/or testing air bag systems. Id. at 703. The appellate court held that although the witness — a mechanic named Bruce L. Brake, with 18 years' experience repairing salvaged vehicles and who had examined 20-25 wrecked Corvettes in the preceding 10 years — might not be an expert under Rule 702, his opinion should have been considered as a "skilled witness," that is, an observer with skills and knowledge in an art beyond those possessed by an average juror. Id.
Id. (Citations omitted.)
Brake had examined the plaintiff's vehicle four days after the accident, and spent 13 hours restoring it. Id. at 701. It was Brake's opinion, based on that work and "his observations of other vehicles that had
Id. at 704. The appellate court held that the trial court had abused its discretion by excluding and giving no consideration to Brake's testimony, Id., and found that Brake's opinion, along with the plaintiff's testimony concerning the circumstances of the accident, was enough circumstantial evidence to create an issue of fact as to whether the air bags were defective for not deploying. Id. at 707.
The Cansler court cited Silvestri v. Gen. Motors Corp., 210 F.3d 240, 244 (4th Cir. 2000), with approval. Silvestri also involved air bags which failed to deploy. In Silvestri the trial court had granted summary judgment, finding insufficient evidence to create an issue of fact on causation, when plaintiff had no expert who could opine whether the air bags had failed to deploy as designed or whether other causes impacted their non-deployment. Id. at 244-45. The appellate court held this to be error, finding that a question of fact existed because the plaintiff had circumstantial evidence showing: 1) the air bags should deploy in a frontal crash at 9-15 miles an hour, as represented in the owner's manual; 2) his crash into a utility pole was equivalent to a front-end crash directly into a fixed barrier at a speed of 24 miles per hour; and 3) the air bags did not deploy. Id. at 245. Significantly, the evidence on the second point — the speed equivalence of the crash — came from two accident-reconstruction experts qualified to offer an opinion on the frontal impact speed of the crash. Id. at 244. There was also expert evidence on the condition of the car after the accident, showing that in the front center it had an 18-inch deep V-shaped depression caused by hitting a utility pole. Id. at 242.
In the present case, the sum of the evidence designated by plaintiffs to create an issue of fact on causation is as follows: 1) The owner's manual, stating the circumstances under which the air bags should inflate, and the circumstances (warning lights and tones, etc.) which indicate the air bags have a malfunction which requires service (none of which the Piltches ever observed); 2) plaintiff Howard Piltch's deposition testimony and verified statement concerning the circumstances of the accident (his estimate is that the vehicle was traveling more than 40 miles per hour, (DE #34-3 at ¶ 4), slid off the road spinning 360 degrees, made a straight-ahead frontal impact with a wall, slid down the road and then hit trees, at which time it was traveling faster than when it first slid off the road); 3) deposition testimony by the Piltches that the vehicle had all necessary services performed; and 4) Howard Piltch's deposition testimony and verified statement that, after the vehicle was in an accident in January 2006, it is his "recollection" and "understanding" that "whatever needed to be reset" was reset. (DE #34-3 at ¶ 6). Unlike the Cansler case, the Piltches have no skilled witness who examined the vehicle immediately after the accident and can testify what the extent of its damages were, and opine that the air
This conclusion is reinforced by considering the Piltches' last contention. They argue that the Court of Appeals for the Seventh Circuit recognized in Whitted that in some circumstances a case can be made under the IPLA using the doctrine of res ipsa loquitur. In Whitted the court stated that it "glean[ed] from the doctrine of res ipsa loquitur the principle that, in certain rare instances, circumstantial evidence may produce reasonable inferences upon which a jury may reasonably find that a defendant manufactured a product containing a defect." Id. at 1208. The court found that the doctrine could be used to make a case under the IPLA "only when the plaintiff presents evidence by way of expert testimony, by way of negating other reasonably possible causes, or by way of some combination of the two." Id. at 1209. The Piltches argue that their circumstantial evidence is enough to negate other reasonably possible causes for the air bags' failure to deploy:
(DE #33 at 11.) (Citations omitted.)
This is not enough. In Whitted, the court found that the plaintiff could not rely in res ipsa loquitur because he
Whitted, 58 F.3d at 1208. In the present case, not only had the Mercury Mountaineer been in the Piltches' possession for about four years, it had been in a prior accident in 2006, after which the plaintiffs believe, but do not know for certain, that everything was properly repaired. There is no evidence, other than the plaintiffs' description of the accident at issue in this case, of the forces involved, or of the extent of damage to the vehicle after the accident. Under these circumstances, the Piltches' circumstantial evidence is not one of the "rare instances" where it is enough to negate all possible causes other than a product defect for the air bags' failure to deflate.
For the reasons above, Ford's motion for summary judgment (DE #20) is
