Opinion
Civil Action No. AW-99-2174
May 25, 2001
MEMORANDUM OPINION
Presently before the Court is Defendants' Motion for Summary Judgment. Plaintiff has filed an opposition, and this motion is ripe for resolution. No hearing is deemed necessary. See Local Rule 105.6 (D.Md.). Upon consideration of the briefs of the parties, and the entire record, for the reasons stated below, the Court will grant Defendants motion.
BACKGROUND
Plaintiff, a Maryland resident, brings this claim for design defect arising from an automobile accident occurring on or about April 30, 1996. Plaintiff, while driving a month old Villager mini-van was struck by a 1995 Plymouth Neon. The accident occurred on a curved portion of Osborne Road in Upper Marlboro, Maryland. The Plaintiff was driving in a northerly direction on the outside of the curve. Mr. Kyle, who is not a party to this action, was driving the Plymouth Neon in a southerly direction, on the inside of the curve. The two vehicles collided somewhere near the center line. There is a dispute about who was at fault in the accident, however this is not an issue presented before this Court.
The Plymouth Neon struck the Villager near the driver's door and continued rearward down the side of the car. The impact caused the Villager's rear driver's side tire to come off and the rear axle separated from the vehicle. As a result of the accident, the Villager was spun around several times. The Villager was equipped with a driver's side air bag, which deployed in the collision. The air bag struck Plaintiff in her right shoulder as a result of deployment and the Plaintiff's body moving forward due to the accident. Plaintiff refused medical attention on the day of the accident. Subsequent to the accident, however, the Plaintiff began complaining that the deployment of the Villager's air bag caused severe injury to her right brachial plexus. The alleged injury, Plaintiff claims, has resulted in the almost total loss of use of the Plaintiff's right arm. Plaintiff has brought this claim against Defendants Ford and Nissan claiming that the design of the driver's side seat was not at a safe distance from the air bag. Furthermore, Plaintiff alleges that Ford failed to properly warn the Plaintiff of the dangers of the air bag.
The complex of nerves that leads from the cervical spine through the shoulder and down the arm.
DISCUSSION
I. Standard for a Motion for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment will be granted when no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). While the evidence of the non-movant is to be believed and all justifiable inferences drawn in its favor, a party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences. See Deans v. CSX Transportation, Inc., 152 F.3d 326, 330-31 (4th Cir. 1998); Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). To defeat such a motion, the party opposing summary judgment must present evidence of specific facts from which the finder of fact could reasonably find for him. See Anderson, 477 U.S. at 252; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex, 477 U.S. at 327 (citations omitted). Accordingly, in determining whether genuine and material factual disputes exist, the Court has reviewed the memorandums and the exhibits attached thereto, construing all facts, and all reasonable inferences drawn therefrom, in the light most favorable to the non-movant. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
II. Plaintiff's Design Defect of the Driver's Seat and Air bag Claim
A. Standard
Plaintiff is alleging that the driver's seat in relation to the steering wheel air bag was defectively designed, thus causing Plaintiff to injure her right arm. It is undisputed that Maryland law applies to the instant case. The accident occurred in the state of Maryland and the Defendants are authorized to do business within the state of Maryland. Under Maryland law, a plaintiff is required to prove six elements in a design defect case. Those elements are as follows: (1) The existence of an alternative design that is safer than the design used in the suspect product; (2) The technological feasibility of manufacturing a product with the alternative design at the time the suspect product was manufactured; (3) The availability of the materials required to produce the alternative design; (4) The cost of production of a product that incorporates the alternative design; (5) The price to the consumer of a product incorporating the alternative design; and (6) The chances of consumer acceptance of a model incorporating the plaintiff's suggested alternative design. Nissan Motor Co. Ltd., et. al. v. Nave., 129 Md. App. 90, 118 (1999). See Singleton v. International Harvester Co., 685 F.2d 112, 115 (4th Cir. 1981). Additionally, since the alleged design defect did not cause the initial accident, Plaintiff has the burden of establishing that the design used by the manufacturer caused greater injuries to the Plaintiff than would have occurred had a proper design been used. Id. See Volkswagen of America, Inc. v. Young, 272 Md. 201, 206-07 (1974). (Referred to as the "crash worthiness case" or "second collision case."). This Court believes that for a number of reasons, the Plaintiff is unable to establish their design defect claim against Defendants Ford and Nissan. Therefore, the Defendants' Motion for Summary Judgment will be granted.
B. Evidentiary Standard
Fed.R.Civ.Proc. 56(e) states in pertinent part,
"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party."
Pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any. Fed.R.Civ.Proc. 56(c).
Defendants' Motion for Summary Judgment is supported by deposition testimony, answers to interrogatories, pictures, medical reports, and government standards. The Plaintiff's opposition to the Defendants' Motion for Summary Judgment contains no exhibits and no offer of sworn testimony in the form of depositions, answers to interrogatories, or affidavits. The pleadings contain bald allegations of what the Plaintiff could prove if the matter goes to trial. As the Court has previously stated in determining a motion for summary judgment, in order to defeat such a motion, the party opposing summary judgment must present evidence of specific facts from which the finder of fact could reasonably find for him. See Anderson, 477 U.S. at 252; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Plaintiff has not presented any evidence of specific facts to this Court. Pursuant to Fed.R.Civ.Proc. 56(e), this alone, based on the Defendants' motion and evidence, is enough for this Court to grant Summary Judgment in favor of the Defendants. However, the Plaintiff's case is further flawed, and thus deserving of summary judgment on additional grounds.
C. Nissan Elements
The Plaintiff's sole argument on the issue of the Nissan standard is that alternative designs have been employed by the Defendants in more recent models of the Villager mini-van. The changes allegedly include moving the driver's seat back from the steering wheel hub and offering adjustable foot pedals so that the vehicle can be operated safely with the driver's seat adjusted further rearward. Plaintiff contends that because of her body size, she had to operate the vehicle with the driver seat in the most rearward position possible. Even still, the steering wheel was allegedly too close to the Plaintiff's sternum and thus was unsafe when the air bag deployed. Plaintiff believes that the fact that alternative designs have been used by Defendants allows for an inference that can satisfy the Nissan elements. Plaintiff offers no proof as to what the changes in the newer Villager mini-vans are and how that would affect Plaintiff's position in the vehicle. More importantly, there has been no evidence or discussion in the Plaintiff's pleading as to how far the Plaintiff's sternum would be from the steering wheel in the new Villagers. Plaintiff's expert wrote in a letter to Plaintiff that Ms. Wells' sternum was nine inches from the steering wheel in her 1996 Villager after the accident. Defendants' Motion for Summary Judgment, Exhibit N. Plaintiff proffers no evidence as to what the distance is between Ms. Wells' sternum and the steering wheel in the new Villagers. There is no way for the Plaintiff to show this Court that Defendants' new design would have placed Ms. Wells further away from the steering wheel. Therefore the Plaintiff has failed to show the existence of an alternative design that is safer than the design used in the suspect product.
Plaintiff is 5' 9" tall and was approx. 200 lbs at the time of the accident.
Additionally, the Plaintiffs have not shown this Court that the design used by the Defendants caused greater injuries to the Plaintiff's right arm, than would have occurred had the proper design been used. Defendants have submitted evidence to this Court that two separate physicians determined that Ms. Wells had symptoms of weakness and cramping in her right extremity, before the accident occurred. Defendants' Motion for Summary Judgment, Exhibit J and K. Dr. Craig Person, M.D. examined Ms. Wells on February 12, 1996 and reports that she stated that, "over the last four years the right hand has become progressively worse in symptoms of weakness and cramping." Id. at Exhibit J. Dr. Person goes on to report that Ms. Wells stated that, "she cannot hold a hairbrush or a cup of coffee." Id. On February 29, 1996, Dr. David D. Weisher, M.D. noted in his report that, "Plaintiff has been noticing weakness in her right hand for about a year." Id. at K. Plaintiff does not dispute this evidence presented by the Defendants. Therefore, there is ample evidence for this Court to find that Plaintiff's right hand was already injured at the time of the accident. Plaintiff has offered no evidence as to what portion of Plaintiff's alleged injury is accident related and what is related to her previous condition. The question remains whether the injury sustained to her right brachial plexus was caused by the accident, caused by the air bag, or caused by her previous condition. The Plaintiff clearly has not met her burden of establishing that the design used by the manufacturer caused greater injuries to the victim than would have occurred had the proper design been used. All Plaintiff has managed to show is that her right brachial plexus was injured and that the air bag hit her right shoulder. This is not enough to carry the Plaintiff's burden.
D. Defendants' Motion to Exclude the Testimony of Douglas Townsend
Plaintiff in her pleadings, relies heavily on the report conducted by Douglas Townsend. Defendants' Motion for Summary Judgment, Exhibit N. Mr. Townsend's report claims to find within a reasonable degree of engineering certainty that: (1) Ms. Wells was injured during the April 1996 accident by the inflating air bag in the Villager because she was sitting too close to the steering wheel, (2) that the driver's seat in the Villager does not adjust far enough back for Ms. Wells to sit a safe distance back from the driver's air bag, and (3) the design of the Villager made the product unreasonably dangerous and in a defective condition when it left the control of Ford Motor Company. Defendants object to Mr. Townsend's report as evidence on two grounds. Mr. Townsend is not qualified to give an opinion on the subject of air bag safety and design and Mr. Townsend does not meet the qualifications as an expert under Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993).
Mr. Townsend also opined that the air bag should not have deployed in the Villager, however, this is no longer an issue in the present case.
For practical reasons, Defendants' motion is moot because the Court will grant Defendants' Motion for Summary Judgment. However, the Court feels that it is important to address Mr. Townsend's qualifications as an air bag safety and design expert since the Plaintiff quotes from his report in her Opposition to the Defendants' Motion for Summary Judgment. The Court finds that Mr. Townsend is an experienced metallurgical engineer and has knowledge of seat belt restraint systems, but is not qualified to offer an opinion as to air bag safety and design in this case. Recently, the Supreme Court in Kumho Tire Company v. Carmichael, 526 U.S. 137 (1999) held that the Daubert standards apply not only to "scientific" testimony, but to all expert testimony. Daubert stated that the factors used to determine the admissibility of expert testimony under Fed.R.Evid. 702 include: "(1) whether a `theory or technique . . . can be (and has been) tested,' (2) whether it `has been subjected to peer review and publication,' (3) whether, in respect to a particular technique, there is a high `known or potential rate of error' and whether there are `standards controlling the technique's operation,' and (4) whether the theory or technique enjoys `general acceptance' within a `relevant scientific community.'" Kumho, at 149-50. (Quoting Daubert, at 592-594).
In reaching his conclusions, Mr. Townsend inflated an air bag that was brought to him by Ms. Wells. Defendants' Motion to Exclude the Testimony of Plaintiff's Expert Douglas Townsend, Exhibit B, pgs 128-130. Furthermore, Mr. Townsend did not know if the air bag used in his post crash test was the same size and the same type present in the Villager at the time of the accident. Id. Using this new air bag, Mr. Townsend inflated the bag with the use of a vacuum. He then compared Ms. Wells' sternum to the position of the inflated air bag and found that the air bag was touching her sternum. At the time, Mrs. Well's was crouched forward on the seat, because she stated that this was her normal driving position. Id. at Exhibit A. As has been previously stated, Mr. Townsend measured Ms. Wells' sternum from the steering wheel and found there was nine inches of space. Mr. Townsend has made the claim that the proper distance should be twelve inches between a person's sternum and the steering wheel. This is in direct contradiction to the National Highway and Traffic Safety Administration (NHTSA) report, that states that the accepted distance is ten inches. Mr. Townsend has offered an opinion that contradicts the industry standard and has no evidence to back up his theory. Furthermore, he has used an unreliable model, the air bag brought by Ms. Wells, as the basis for his findings. Using the factors enumerated in Daubert and Kumho, this Court cannot accept Mr. Townsend's findings as valid within the air bag design and safety community.
Under Maryland Rule's of Evidence 5-702, an expert witness will be qualified to render an opinion by virtue of his knowledge, skill, training or experience or education. Plaintiff contends that Mr. Townsend is qualified by virtue of his patent for a seat belt system in 1969, and the fact that he earned a Ph.D. from Queen's University. Mr. Townsend's CV (attached as Exhibit B, to Plaintiff's Opposition to Defendants' Motion to Exclude the Testimony of Douglas Townsend) does state that he received a Ph.D., however, it does not state in what subject the Ph.D. was earned. It appears from the CV provided by the Plaintiff, that Mr. Townsend's expertise lies in metallurgical engineering and seat belt restraint systems, not in air bag safety and design. Mr. Townsend's skill and knowledge is on the design and effect of seat belt restraint systems in the interior of the vehicle, which is different than the effect of the design on the safety of an air bag. It is the opinion of this Court that pursuant to the Maryland rules of evidence, that Mr. Townsend does not have the requisite knowledge, skill, training or experience or education to qualify as an expert in air bag safety and design. Because Mr. Townsend has failed both the Daubert factors for being recognized as an expert and the Maryland rules of evidence test, this Court would not allow the testimony of Mr. Townsend's opinions if the matter were to proceed. If the Court were in a position to rule on the Defendants' motion, it would be granted. However, as previously stated, the Defendants' motion as to Mr. Townsend is moot due to the granting of the motion for summary judgment.
III. Plaintiff's Failure to Warn Claim
A. Standard
Plaintiff alleges that Defendants failed to warn drivers of the Villager of the dangers that can be caused by the deployment of the air bag. Under Maryland law, a failure to warn claim, brought under either negligence or strict liability, requires the plaintiff to show four elements: (1) that the defendant owed a duty to warn; (2) that the defendant breached that duty; (3) that there was a direct causal connection between the defendant's failure and the alleged injuries; (4) that the plaintiff was harmed. Higgins v. Diversey Corporation, 998 F. Supp. 598, 604 (D.Md. 1997). See Mazda Motor of Am. v. Rogowski, 105 Md. App.318, 325, cert. denied, 340 Md. 501 (1995). Plaintiff is unable to established that the Defendants breached their duty to warn that was owed to the Plaintiff. Therefore, the Plaintiff's claim based upon the Defendants' duty to warn must also fail.
B. Breach of the Duty to Warn
Defendants clearly had a duty to warn the Plaintiff about the potential harm that an air bag could cause. That element is uncontroverted. To establish a breach of the duty to warn, Plaintiff must prove that the Defendant failed to take the requisite level of care in promulgating a warning. Higgins, at 605. See Dudley v. Baltimore Gas Electric Co., 98 Md. App. 182, 202 (1993). On page twenty three of the 1996 Villager owner's manual, the Defendants warn the Plaintiff about the dangers of an inflating air bag. Defendants' Motion for Summary Judgment, Exhibit A. Under the section titled "Safety Restraints," there are two warnings and instructions on the proper way to sit in the driver's seat to avoid injury from the air bag. The first and most obvious warning is a box within the text which has the international symbol for warning next to the word "WARNING" in bold. Inside the box, the text reads, "If a passenger is not properly seated and restrained, an inflating air bag could cause serious injury." Id. The second warning is contained in the body of the main text, which states, "If you are not seated in a normal riding position with your back against the seatback, the air bag may not protect you properly and could possible hurt you as it inflates." Id. The text goes on to say, "All occupants should sit with their backs against the seatback, move the seat to the most rearward position if possible and use the safety belts." Id.
The manual also includes safety warnings for infants, however, that does not apply to the instant case.
A triangle filled in with yellow and a black exclamation point.
The Plaintiff argues that these warnings do not warn users that the "extremes of the population cannot be accommodated." Plaintiff's Opposition to Defendants Motion for Summary Judgment, pg. 6. Plaintiff is 5' 9" tall. While this height is above average for a female, the Villager mini-van is not just designed for females, but for males as well. It is not inconceivable to this Court that men 5' 9" and taller would be driving a Villager mini-van. In fact, the average male height is 5' 9" tall. Plaintiff does not specify in her argument whether the "extremes of the population" applies to her height or to her weight. While the pictures submitted by the Defendants appear to show that Ms. Wells is heavier than the average woman who is 5' 9" tall, the fully inflated air bag, as demonstrated by Mr. Townsend, looks to be about three to four inches from her sternum. Therefore, her weight does not appear to affect where her sternum is located in relation to the steering wheel or a fully inflated air bag. It is the finding of this Court that Defendants' warnings in the owner's manual were conspicuous and obvious to the average person. Furthermore, the Plaintiff, despite her claim to the contrary, was not at one extreme of the population in terms of size for humans. Therefore, the Defendants did not breach their duty to warn the Plaintiff of the damages that could be suffered by an inflating air bag.
Chicago Public Library. Source: Gale Book of Averages. Detroit: Gale Research Inc., 1994. Updated April 1999.
CONCLUSION
The Court will grant the Defendants' Motion for Summary Judgment. The Plaintiff, as directed under Fed.R.Civ.Proc. 56(e) has failed to submit any evidence to the Court in opposition to the Defendants' motion. Furthermore, the Plaintiff's claims cannot survive based on their pleadings, as a matter of law. The Plaintiff has failed to establish the elements essential to proving a claim of design defect. In addition, Plaintiff cannot overcome her burden to show that the design defect caused the injury to her right shoulder. The evidence is clear to this Court that the Plaintiff was suffering a weakening and cramping hand and unknown injuries to her right extremity before the accident took place. Plaintiff's claim that Defendants failed to warn of the dangers from an inflated air bag must also fail. Plaintiff is unable, as a matter of law, to establish that Defendants breached their duty to warn. Plaintiff's only argument is that she is at one extreme, in terms of her body size, of the population. There has been no evidence shown to this Court this is accurate. Furthermore, the fact that the Plaintiff is 5' 9" appears to be contrary to such an argument. A separate Order consistent with this Opinion will follow.
Date May, 2001
Alexander Williams, Jr. United States District Court Judge