Dowdy v. Suzuki Motor Corporation et al

Filing 68

MEMORANDUM OPINION as more fully set out thereon. Signed by Magistrate-Judge Harwell G Davis, III on 8/22/2013. (AHI )

FILED
2013 Aug-22 PM 04:04
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
MARK A. DOWDY,
Plaintiff
vs.
SUZUKI MOTOR CORPORATION,
et al.,
Defendants

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Case No. 3:10-cv-01228-HGD

MEMORANDUM OPINION
The above-entitled civil action is before the court on the Motion for Summary
Judgment filed by defendants Suzuki Motor Corporation and American Suzuki Motor
Corporation. (Doc. 35). Also for consideration is the Motion to Exclude the
Testimony of Raymond Thompson filed by defendants. (Doc. 58). This matter is
before the undersigned U.S. Magistrate Judge based on the consent of the parties
pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.
On or about May 13, 2008, plaintiff Mark Dowdy was operating a 1999 Suzuki
VL1500 motorcycle on State Route 5, near U.S. Highway 33, in Noble County,
Indiana, when he was involved in a collision with a pickup truck, resulting in severe
injuries to Mr. Dowdy. Mr. Dowdy asserts that his injuries are the result of defects

in the design and manufacturing of the motorcycle. In particular, he alleges that the
secondary drive gear became fatigued, fractured and broken, causing the
motorcycle’s gear wheel to seize and the motorcycle to crash. He also makes claims
for negligent/wanton failure to warn of these defects, and breach of express/implied
warranties pursuant to common law, the Indiana Products Liability Act (IPLA) and
the Indiana Uniform Commercial Code. (Doc. 1, Complaint).
SUMMARY JUDGMENT STANDARD
Defendants American Suzuki Motor Corporation and Suzuki Motor
Corporation (collectively “Suzuki”) have moved for summary judgment pursuant to
Rule 56, Fed.R.Civ.P. “The court shall grant summary judgment if the movant shows
that 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. Rule 56(a) (Dec. 2010). Defendants, as
the parties seeking summary judgment, bear the initial responsibility of informing the
district court of the basis for their motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, which they believe demonstrates the absence of a genuine
issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91
L.Ed.2d 265 (1986)). A genuine issue of material fact is shown when the non-moving
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party produces evidence so that a reasonable factfinder could return a verdict in its
favor. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir.
2007). If the non-moving party fails to make a sufficient showing on an essential
element of his case with respect to which he has the burden of proof, the moving
party is entitled to summary judgment. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552.
In reviewing whether the non-moving party has met its burden, the court must stop
short of weighing the evidence and making credibility determinations of the truth of
the matter. The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d
994, 998-99 (11th Cir. 1992) (internal citations and quotations omitted). However,
speculation or conjecture cannot create a genuine issue of material fact. Cordoba v.
Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). A “mere scintilla of evidence”
in support of the non-moving party also cannot overcome a motion for summary
judgment. Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).
BACKGROUND INFORMATION
On May 13, 2008, plaintiff was operating his motorcycle southbound on State
Route 5 in Noble County, Indiana, traveling to his place of employment, when he lost
control of the subject motorcycle while navigating a curve. He crossed the center line
of the road and collided at a high rate of speed with the front driver’s side wheel area
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of a northbound Dodge Ram 1500 pickup truck. The truck weighed more than 6000
pounds while the motorcycle weighed less than 700 pounds. Both sides agree that the
motorcycle’s rear wheel was skidding and not rotating for at least the last 106 [160?]
feet before impact.
The rear wheel and the swing arm assembly of the motorcycle were displaced
from the frame during the crash. The impacted area houses numerous parts related
to the operation of the motorcycle, including the universal joint which is a flexible
coupling that allows power to be transferred from the vehicle’s motor to its rear
wheel. The universal joint is adjacent and connects directly to the secondary bevel
gear shaft.
Following the crash, the secondary bevel gear shaft was found to be severed.
Unfortunately, the universal joint was not collected from the accident scene and was
apparently discarded by a clean-up crew after the accident through no fault of the
plaintiff. The plaintiff has no recollection of the crash itself. (Dowdy Depo. at 83-84,
162). However, plaintiff alleges that the secondary drive gear “became fatigued,
fractured, and broken, causing the VL 1500's motorcycle gear wheel to seize and the
motorcycle to crash.” (Doc. 1, Complaint, at ¶ 5).
The manner in which the motorcycle engine drives the rear wheel of the
motorcycle is not disputed. This motorcycle has an internal drive train featuring two
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sets of bevel gears that rotate and work to propel the motorcycle. Toward the rear of
the motorcycle’s engine, one of these bevel gears, called the secondary bevel gear,
turns while the motorcycle is being operated. The secondary bevel gear features a
carburized steel shaft, called the secondary bevel gear shaft, that runs through the
gear and also rotates while the motorcycle is in operation. The secondary bevel gear
and the secondary bevel shaft are shown in Defendants’ Exhibit F (Doc. 36-9).
As the secondary bevel gear and the secondary bevel gear shaft rotate, they
transmit power to the universal joint, which is attached to the gear and shaft with a
splined connection. This universal joint sits inside the circular metal tubing of the
swing arm assembly, where it rotates as part of the process that powers the
motorcycle’s rear wheel. During operation of the motorcycle, the universal joint and
a propeller shaft rotate in tandem inside the swing arm assembly’s circular metal
tubing to aid in powering the motorcycle’s rear wheel. The shaft of the swing arm
assembly is round. However, the assembly from the subject motorcycle, recovered
from the scene of the wreck, reflects that it was crushed into an oval shape. A
photograph of this item is reflected in Doc. 36-10 (Defendants’ Exhibit G) at
Photograph 13.
One of the expert witnesses put forth by plaintiff is mechanical engineer Robert
T. Tolbert. In his report, Tolbert stated that he disassembled and inspected the
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motorcycle to determine the cause of the Dowdy accident. He noted that, during the
initial inspection of the motorcycle, the rear wheel was found to be locked in position.
According to Tolbert:
The rear brake disc was deformed or “flexed” against the caliper from
the impact damage, but it was solidly bound in place from the
deformation and pressure exerted from the deformation. Once the
caliper was removed from the swing arm by removing the bolts and
freeing the unit (requiring moderate force), the rear wheel then turned
smoothly. The caliper was inspected visually and no defects were
discovered. The free turning, smooth motion of the wheel was
indicative there had been no major malfunction to cause the wheel to
lock.
(Defendants’ Ex. C, Report of Robert Tolbert, at 3).
Mr. Tolbert also disassembled the secondary gear assembly, stating:
The next part was the secondary gear assembly, (consisting of a cast iron
housing, one larger bearing, one smaller bearing, shaft, gear and
retaining collar) housed inside an aluminum housing on the left-hand
rear upper side of the crank case/transmission housing as viewed from
the rear of the motorcycle toward the front. The stub shaft of the output
side of the secondary gear was found to be fractured or broken, and the
stub portion of the shaft missing.
(Id. at 3).
With regard to the cause of the accident, he concluded as follows:
Until the time of the accident, the engine end of the universal joint had
been constrained by the output shaft to spin concentrically on the output
shaft. Once the output shaft failed at the fracture point (discussed in
Thompson’s report), the end of the universal joint and the stub end of
the failed output shaft pivoted or shifted to one side due to the
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centrifugal force caused by the mass of the two that were no longer
constrained to spin concentrically, in balance. As the end of the output
shaft and the engine end of the universal pivoted and/or shifted to one
side, still rotating due to the motion of the motorcycle which kept the
drive shaft turning, the free end of the fractured output shaft and
universal joint contacted the inside surface of the drive shaft tube that
comprises the swing arm. As the forward half (or engine side) of the
universal joint and broken output shaft contacted the inside of the drive
shaft tube, it forced the rear half of the universal joint and the drive shaft
to be forced in the opposite direction, against the opposite wall of the
drive shaft tube. Both the universal joint and drive shaft normally spin
concentrically and in balance, both constrained in place by the universal
joint attached to the output shaft from the engine/transmission
combination and the other end attached to the drive shaft.
The universal joint and drive shaft were still spinning for some short
period of time due to the motion of the motorcycle and the rotation of
the rear wheel turning the drive shaft. As the rotating components
contacted the sides of the tube, they began to slide against the tube for
a period of time (probably very short period of time), but the drive shaft
tube is oval, NOT round. The components could not rotate freely
because as they rotated, there was sufficient clearance in the major axis
of the oval (big direction), but insufficient clearance in the minor axis
of the oval (small direction). The universal joint folded or pivoted
sufficiently in the major axis of the oval then had insufficient clearance
in the minor axis of the oval, so the universal joint was bound and
prevented the drive shaft from turning. It simply locked up. When the
drive shaft could not turn, the rear wheel could not turn and then locked
(as discussed above), causing Dowdy to not be able to fully control the
motorcycle.
(Id. at 6) (emphasis in original).
In short, Tolbert opines that the output shaft of the secondary gear assembly
broke, causing the universal joint and drive shaft to spin freely inside the swing arm

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assembly until they became jammed due to the oval shape of the swing arm assembly,
resulting in the rear tire seizing up and causing a loss of control and the motorcycle
to crash.
In his testimony, Tolbert elaborated on these conclusions as follows:
Q. I guess – are you offering an opinion that the swing arm tube is
defective because of – it allows this wedging to occur that we’re talking
about?
A. It would be better if it was round, then that wouldn’t be possible.
Q. Just so I am understanding that, you are saying that if the swing arm
tube that we are looking at in Exhibit 7, if it’s round instead of oval,
then the wedging would not be possible so it would be better?
A. Yes.
(Tolbert Depo. at 153-54) (emphasis added).
Q. . . . [A]re you criticizing the design and manufacture of any other
aspect of this motorcycle? I mean, we talked about the swing arm tube
earlier. But anything else?
A. Well, the swing arm tube being oval in the event that a failure like
this occurs, the – it cannot rotate. It binds itself up.
Q. If this [secondary bevel gear shaft] fractures where you say this one
fractured and how it fractured, but if the U-joint does not come off, if it
stays in place, for whatever reason, obviously, it would not cause the
rear tire to lock up?
A. If – if that had fractured there and let’s say for some reason that the
stub shaft had stayed in that seal and just rotated . . . assuming that for
some reason or another the end of the stub shaft stayed in that seal, then
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it would just rotate and make noise and the motorcycle wouldn’t go
anywhere. It –
Q. Because the motorcycle – the reason it wouldn’t go anywhere is you
are accelerating, but the power from the engine is not getting to the
propeller shaft?
A. It would spin this, but not from there back.
(Id. at 161-62).
Furthermore, during his testimony, Mr. Tolbert stated that the rear disk brake
is actuated by the driver activating it with his right foot. By applying the brake in this
manner, it would also be possible for the rear tire to be locked up. (Id. at 73-74). He
also testified that the skid marks on the road resulting from the driver actuating the
rear brake would look essentially the same as the skid mark created by the rear wheel
locking up in the manner he described. (Id. at 85-86).
DISCUSSION
The first argument in favor of summary judgment put forth by defendants is
that plaintiff has failed to establish the proximate cause of the accident that resulted
in plaintiff’s injuries. Under Indiana law,
“Proximate cause” has two components: causation-in-fact and scope of
liability. City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d
1222, 1243-44 (Ind. 2003). To establish factual causation, the plaintiff
must show that but for the defendant’s allegedly tortious act or
omission, the injury at issue would not have occurred. Id. The scope of
liability doctrine asks whether the injury was a natural and probable
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consequence of the defendant’s conduct, which in the light of the
circumstances, should have been foreseen or anticipated. Id. at 1244.
Liability is not imposed on the defendant if the ultimate injury was not
reasonably foreseeable as a consequence of the act or omission. Id.
Causation-in-fact is ordinarily a factual question reserved for
determination by the jury. Id. at 1243-44. However, where reasonable
minds cannot disagree as to causation-in-fact, the issue may become a
question of law for the court. Peters v. Forster, 804 N.E.2d 736, 743
(Ind. 2004).
Kovach v. Caligor Midwest, 913 N.E.2d 193, 197-98 (Ind. 2009).
“Only in plain and indisputable cases, where only a single inference or
conclusion can be drawn, are the questions of proximate cause and intervening cause
matters of law to be determined by the court.” Peters v. Forster, 804 N.E.2d 736, 743
(Ind. 2004). Defendants argue that plaintiff cannot prove causation because his own
expert has testified that the universal joint would not have become wedged if the
swing arm had been round, rather than oval.
Plaintiff’s expert, Robert Tolbert, had opined that the oval shape of the tube
caused the loose universal joint to become wedged inside the tube.1 Plaintiff
acknowledges that Tolbert was mistaken as to the pre-collision shape of the swing
arm tube. It was round, not oval. However, plaintiff asserts that Tolbert’s overall
1

The manner in which the secondary bevel gear shaft came to be broken, either by design
defect or by impact during the wreck, is largely irrelevant unless it contributed to the universal joint
becoming wedged in the swing arm assembly, which plaintiff asserts was the cause of the accident.
Because the Court finds that there is no evidence of causation as set out below, it is unnecessary to
address this issue.
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theory, that the fracturing of the shaft caused the universal joint to become loose,
causing it to become wedged inside the tube, is still valid because “with an oval tube,
wedging had to occur and, with a round tube, wedging could occur.” (Doc. 38,
Plaintiff’s Brief in Opposition to Summary Judgment, at 21) (emphasis added).
Plaintiff asserts that, despite his error regarding the shape of the tube, Tolbert found
other physical evidence of wedging - marking or scarring inside the tube - reflecting
that the universal joint became wedged regardless of the tube’s shape. (Id.).
Furthermore, plaintiff asserts that, while the oval shape may not explain the wedging,
defendants did not prove that a loose universal joint could never wedge inside a round
tube. (Id. at 22).
While plaintiff alleges that wedging could occur in the swing arm even though
it was round, he has failed to demonstrate how that is possible. Plaintiff’s expert, Mr.
Tolbert, clearly testified that, if the swing arm had been round, the wedging “wouldn’t
be possible.” (Tolbert Depo. at 154). It was round. Plaintiff now attempts to
resuscitate his case against defendants by claiming that this statement is wrong and
the wedging could have occurred even though the swing arm assembly is
unquestionably round in shape. The problem with this argument is that plaintiff’s
own expert witness contradicts this claim. Mr. Tolbert identified marks and scarring
on the inside of the swing arm assembly as having been caused by the universal joint
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turning inside the assembly until it became wedged in the assembly’s narrow or minor
aspect. Since the assembly is round rather than oval, it has no narrow aspect in which
the universal joint could have become wedged. This leaves plaintiff to speculate that
the marks must have been made as a result of the universal joint somehow becoming
wedged in the round assembly tube, despite his own expert’s testimony that this could
not happen.
“When the moving party has carried its burden under Rule 56(c)2, its opponent
must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Under the evidence
presented here, plaintiff has provided nothing beyond speculation regarding the cause
of the accident and has, therefore, failed to establish a genuine issue of material fact
as to causation. Because proof of causation is an essential element for each of
plaintiff’s claims, defendants’ motion for summary judgment is due to be granted.
Because summary judgment is due to be granted on this ground, defendants’ other
motion, to exclude the testimony of Raymond Thompson, is rendered moot.

2

Fed.R.Civ.P. 56 was amended in 2010. The essence of the section of the old Rule 56(c)
referenced in the case cited above is now found in Rule 56(a).
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A separate order in conformity with this Memorandum Opinion will be entered
contemporaneously herewith.
DONE this 22nd day of August, 2013.

HARWELL G. DAVIS, III
UNITED STATES MAGISTRATE JUDGE

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