Prall v. Ford Motor Company
Filing
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ORDER granting Ford's ECF No. #38 Motion to Exclude; granting in part and denying in part Ford's ECF No. #39 Motion for Summary Judgment (see order for details). Signed by Judge Miranda M. Du on 1/24/2017. (Copies have been distributed pursuant to the NEF - KR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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MARILYN ELLEN PRALL,
Plaintiff,
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v.
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Case No. 2:14-cv-001313-MMD-GWF
FORD MOTOR COMPANY and ROE
COMPONENT PART MANUFACTURER,
ORDER
(Def’s Motion to Exclude Testimony –
ECF No. 38; Def’s Motion for Summary
Judgment – ECF No. 39))
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Defendants.
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I.
SUMMARY
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This case involves an alleged manufacturing defect that led to an automobile
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accident. Before the Court are Defendant Ford Motor Company’s (“Ford”) Motion to
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Exclude Testimony of Rocco Avellini (“Motion to Exclude”) (ECF No. 38) and Motion for
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Summary Judgment (“Motion”) (ECF No. 39). The Court has reviewed these motions as
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well as Plaintiff Marilyn Ellen Prall’s (“Prall”) responses (ECF Nos. 40, 41) and Ford’s
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replies (ECF Nos. 42, 43). For the reasons discussed below, Ford’s Motion to Exclude is
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granted and its Motion for Summary Judgement is granted in part and denied in part.
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II.
BACKGROUND
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In February 2013, while driving her 2003 Ford Taurus home from work, Prall rear-
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ended the vehicle in front of her. According to Prall, she was driving in stop-and-go traffic
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when she saw the car in front of her slow down or stop. She attempted to do the same,
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but her car continued to accelerate as she pressed the brake pedal, and she slammed
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into the stopped car. (ECF No. 39-2 at 10.) Paramedics arrived at the scene and took
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Prall to the hospital, where emergency room doctors informed her she had fractured her
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right leg.1 (Id. at 14-15.)
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The driver of a 2003 Ford Taurus changes speed by controlling the amount of air
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entering the engine through a throttle plate. (ECF No. 39-6 at 7.) The driver can open the
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throttle plate by either pressing the accelerator pedal, which is connected to the throttle
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plate by a cable, or using the cruise control system, which is connected by a second
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cable called the speed control cable. (Id.) The end of the speed control cable has plastic
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pieces that clip into a collar to secure it in place. (Id.)
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On June 21, 2013, a few months after Prall’s accident, Ford implemented a
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program called Customer Satisfaction Program 13B04 (“Program 13B04”). In a notice
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about the program Ford sent to its dealers, it acknowledged that the speed control cable
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in certain vehicles, including Prall’s Taurus, “may become susceptible to damage or
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becoming partially disconnected during under hood vehicle maintenance.” (ECF No. 39-
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8.) According to the notice, if the speed control cable slides out of its collar, it could
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tangle and interfere with “the throttle’s full return to idle when the accelerator pedal is
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released, potentially resulting in an elevated idle.” (Id.) Ford instructed dealers to install a
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clip to reinforce the collar around the cable and, depending on the condition of the collar
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retention tabs, to replace the speed control cable itself. (Id.)
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Prall took her Taurus to a dealership on August 24, 2013. A mechanic at the
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dealership inspected the speed control assembly and determined that the collar
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retention tabs were cracked but still present. Accordingly, he attached a collar
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reinforcement clip but did not replace the speed control cable. (ECF No. 39-9 at 4-5.)
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Prall filed suit in state court on July 17, 2014, asserting a number of claims based
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on the allegation that the accident was caused by a mechanical failure — specifically a
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few days later, while using a walker, Prall fell in her home and broke her right
ulna. (ECF No. 39-2 at 15.) Her son brought her to the emergency room again, where
doctors operated on both her wrist and leg. (Id.)
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bound speed control cable as identified by Program 13B04. (ECF No. 1-1.) Pursuant to
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the parties’ stipulation, the Court dismissed several of Prall’s claims, leaving only claims
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for strict product liability and negligence. (ECF No. 23.) Ford now moves to exclude
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Prall’s proposed expert testimony and for summary judgment on these remaining two
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claims.
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III.
MOTION TO EXCLUDE
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A.
Legal Standard
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Fed. R. Evid. 702 permits a “witness who is qualified as an expert by knowledge,
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skill, experience, training, or education [to] testify in the form of an opinion or otherwise
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if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of
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fact to understand the evidence or to determine a fact in issue; (b) the testimony is
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based on sufficient facts or data; (c) the testimony is the product of reliable principles
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and methods; and (d) the expert has reliably applied the principles and methods to the
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facts of the case.”
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The Supreme Court provided additional guidance on Rule 702 and its application
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in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire
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Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Daubert focused on scientific testimony
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and Kumho Tire clarified that Daubert’s principles also apply to technical and specialized
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knowledge. See Kumho, 526 U.S. at 141, 147-49. The trial court has “considerable
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leeway” in deciding how to determine the reliability of an expert's testimony and whether
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the testimony is in fact reliable. Id. at 152. The “test of reliability is ‘flexible,’ and
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Daubert's list of specific factors neither necessarily nor exclusively applies to all experts
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or in every case.” Id. at 141.
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The Ninth Circuit has emphasized that “Rule 702 is applied consistent with the
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liberal thrust of the Federal Rules and their general approach of relaxing the traditional
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barriers to opinion testimony.” Jinro Am. Inc. v. Secure Investments, Inc., 266 F.3d 993,
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1004 (9th Cir.), opinion amended on denial of reh'g, 272 F.3d 1289 (9th Cir. 2001)
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(citations omitted). “An expert witness — unlike other witnesses — is permitted wide
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latitude to offer opinions, including those that are not based on firsthand knowledge or
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observation, so long as the expert's opinion [has] a reliable basis in the knowledge and
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experience of his discipline.” Id. (citations and quotation marks omitted). Shaky but
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admissible evidence should be attacked by cross examination, contrary evidence, and
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attention to the burden of proof, rather than excluded. Primiano v. Cook, 598 F.3d 558,
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564 (9th Cir. 2010), as amended (Apr. 27, 2010)
Avelleni’s Opinion
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B.
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Prall’s designated expert witness, Rocco Avellini, is a seasoned auto-body
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repairman with decades of experience conducting and inspecting collision repairs. (ECF
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No. 40-1.) He is president of Wreck Check Car Scan Centers, a company that provides
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value estimates for vehicles and performs inspections for improper repair work and
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fraud. (ECF No. 38-5 at 4.) Avellini has offered expert testimony in a number of cases —
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for the most part concerning the diminished value of vehicles involved in accidents and
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the quality of repairs done to vehicles. (See ECF No. 40-1 at 14-20.)
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Avellini created a “Vehicle Conditional Assessment” (“Report”), dated February
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25, 2015, after personally inspecting Prall’s Taurus and attending a subsequent
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inspection conducted by two Ford representatives. (ECF No. 40-1.) The Report, which
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contains about a half-page of explanation, concludes Prall’s accident was caused by a
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defective speed control cable. (Id. at 20.) That conclusion appears to be based on
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speaking to Prall and her son, the existence of Program 13B04, and similar complaints
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from other Ford vehicle owners (which Avellini read about online). (Id.; see also ECF No.
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38-5 at 24.)
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Avellini further explained the basis for his conclusion during his deposition. Upon
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his initial inspection, Avellini did not see any damage to the speed control cable. (ECF
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No. 38-5 at 22.) In fact, he could not identify any evidence from Prall’s Taurus which
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indicated that the speed control cable had become bound or in any other way
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malfunctioned. (Id. at 3.) Nor could Avellini explain how the problem identified by
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Program 13B04 would have caused Prall’s Taurus to continue moving forward even as
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she applied the brake. (ECF No. 38-5 at 22 (“How exactly it happened, I can’t tell you ...
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But the fact is it happened, and there’s other documentation out there that it has
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happened.”).) When asked what exactly caused Prall’s car to accelerate, Avellini
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answered “I couldn’t tell you.” (Id. at 23.) When asked what design would have
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prevented the accident, he gave the same answer. (Id.) When asked how an accelerator
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pedal could move to the floor on its own and increase RPMs and vehicle speed, Avellini
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answered that he did not know and “[w]e’ll just leave it that Ford has an issue with this
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cable and acceleration problems.” (Id.) Avellini did not know if the accelerator sticking
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would leave any physical evidence, nor did he know exactly what aspect of the speed
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control assembly malfunctioned. (Id. at 28.) He also could not determine that the cable
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slid out of the collar on the day of the crash. (Id.) Throughout his deposition, Avellini
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testified that his conclusion about the cause of Prall’s accident is based on three pieces
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of evidence: 1) Prall’s testimony; 2) Ford’s program; and 3) news reports of other Ford
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vehicles that have accelerated unexpectedly. (See id. at 22, 24, 25, 28, 31).
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After his deposition, Avellini prepared a Supplemental Vehicle Condition
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Assessment (“Supplemental Report”) dated September 4, 2105. (ECF No. 40-1 at 60.)
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The Supplemental Report considered additional evidence including the deposition
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testimony of several witnesses, additional inspections of Prall’s vehicle, a July 9, 2015
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report by Ford’s expert witness, Ford Field Service Action Records, and an examination
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of speed control cables in good condition. (Id. at 63.) Like the Report, the Supplemental
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Report contains about a half-page of explanation. (Id. at 64-65.) Avellini explains that
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after he removed the reinforcement clip he was able to slide the speed control cable in
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and out of the collar with no resistance. (Id. at 65.). The Supplemental Report does not
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add any further detail about the mechanism that caused Prall’s vehicle to crash.2
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Supplemental Report also contains the following conclusion: “I believe the
location of the speed control cable is the design defect allowing the collar to be damaged
during maintenance. Ford engineers should have notice to this [sic] defect during the
design phase of the vehicle.” (ECF No. 40-1 at 65.) However, the Court struck that
portion of the report as untimely. (ECF No. 33.)
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Avellini was deposed a second time on December 4, 2015. (ECF No. 38-9.)
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During the deposition, Avellini explained his Supplemental Report but did not offer any
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further explanation of how or why he believes Prall’s car malfunctioned on the day of the
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accident.
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C.
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Avellini’s opinion about the cause of Prall’s accident is not based on “the
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knowledge and experience of his discipline,” and is therefore not admissible. Jinro, 266
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F.3d at 1004. This is not a question of shaky but admissible opinion evidence. Avellini is
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undoubtedly a knowledgeable and experienced auto repair specialist, as evidenced by
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his lengthy curriculum vitae and his past appearances as an expert witness. In this case,
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however, he has not provided any explanation for his opinion other than the existence of
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circumstantial evidence — evidence which a lay person is perfectly capable of
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understanding.
Analysis
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Throughout both reports and depositions, Avellini maintains that the reason he
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believes Prall’s accident was caused by a faulty speed control cable is: (1) the accident
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occurred, (2) Prall testified that the car would not stop even as she applied the break, (3)
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Ford instituted Program 13B04, and (4) he found online other instances of similar
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vehicles experiencing acceleration problems. He also repeatedly testified that he did not
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believe Ford would spend millions of dollars on a repair program if there was not a
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serious safety issue. (See, e.g. ECF No. 38-9 at 10 (“I can say that if a company was
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willing to spend almost $10 million on a repair, there’s an issue there.”)) However, this
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line of reasoning does not require any specialized insight. Nor would such reasoning be
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needed to help the jury understand the evidence, who may draw these inferences on
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their own. Allowing Avellini to offer this opinion testimony would be akin to allowing a
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brain surgeon to testify that he believes a head injury was caused by a plaintiff slipping
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on a banana peel because: (1) the plaintiff slipped, (2) there was a banana peel nearby,
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and (3) shortly afterwards the owner of the site of the accident implemented a plan to
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keep the floor clear of banana peels. While the conclusion may be plausible and
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consistent with the evidence, the brain surgeon’s opinion is not based on her specific
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expertise.
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Further, when asked for specifics Avellini simply points to Program 13B04 to
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explain the mechanics of the problem he believes occurred. However, where Avellini
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disagrees with the conclusions of Program 13B04 — namely that the problem does not
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pose a safety risk — he does not provide any sort of counter-explanation to show why.
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For example, based on testing it conducted, Ford determined that if the speed control
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cable slid out of its collar and became bound, the “worst case scenario” would be a 26-
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29% throttle opening. (ECF No. 38-4 at 5.) According to Ford’s testing, that type of
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throttle opening could be easily overcome by the vehicle’s brakes. (Id. at 15.) So, if as
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part of his expert opinion Avellini wants to rely on the problem identified by Program
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13B04, he must have some explanation for why his conclusion is different from the
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conclusions reached by Program 13B04. For example, he might have testified that
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based on his experience or on testing that he conducted, the throttle opened more than
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29%, and therefore it is not clear that the car’s brakes could stop its forward movement.
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Or he might have testified that according to his experience or tests he conducted, Ford
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was mistaken and in fact the Taurus’ brakes could not easily overcome a 29% opened
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throttle. Instead, Avellini simply asserts that Ford’s conclusions were wrong because
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Prall continued forward after slamming on her brakes. In other words, Avelleni concludes
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that the existence of one event after the existence of another is sufficient to prove the
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first event caused the second. This is a logical fallacy — post hoc ergo propter hoc.
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While the existence of the 13B04 problem is necessary to conclude that it was the cause
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of the accident, it is not, in itself, sufficient to establish causation.
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For these reasons, Avellini’s proffered expert testimony does not meet the
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standards of reliability in Daubert and Kumho Tire. Ford’s Motion to Exclude is granted
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as it relates to Avellini’s opinion that the accident was caused by the issue identified in
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Program 13B04.
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IV.
MOTION FOR SUMMARY JUDGMENT
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A.
LEGAL STANDARD
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The purpose of summary judgment is to avoid unnecessary trials when there is no
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dispute as to the facts before the court. Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18
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F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings,
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the discovery and disclosure materials on file, and any affidavits “show there is no
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genuine issue as to any material fact and that the movant is entitled to judgment as a
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matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine”
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if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for
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the nonmoving party and a dispute is “material” if it could affect the outcome of the suit
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under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
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Where reasonable minds could differ on the material facts at issue, however, summary
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judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.
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1995). “The amount of evidence necessary to raise a genuine issue of material fact is
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enough ‘to require a jury or judge to resolve the parties' differing versions of the truth at
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trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l
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Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary
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judgment motion, a court views all facts and draws all inferences in the light most
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favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793
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F.2d 1100, 1103 (9th Cir. 1986).
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The moving party bears the burden of showing that there are no genuine issues
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of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In
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order to carry its burden of production, the moving party must either produce evidence
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negating an essential element of the nonmoving party’s claim or defense or show that
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the nonmoving party does not have enough evidence of an essential element to carry its
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ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210
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F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56’s requirements,
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the burden shifts to the party resisting the motion to “set forth specific facts showing that
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there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may
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not rely on denials in the pleadings but must produce specific evidence, through
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affidavits or admissible discovery material, to show that the dispute exists,” Bhan v. NME
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Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show
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that there is some metaphysical doubt as to the material facts.” Orr v. Bank of Am., 285
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F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). “The mere existence of a
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scintilla of evidence in support of the plaintiff’s position will be insufficient.” Anderson,
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477 U.S. at 252.
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B.
Strict Liability
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Under Nevada law, a plaintiff must establish three elements to show strict liability:
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"(1) the product had a defect which rendered it unreasonably dangerous, (2) the defect
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existed at the time the product left the manufacturer, and (3) the defect caused the
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plaintiff’s injury." Fyssakis v. Knight Equip. Corp., 826 P.2d 570, 571 (Nev. 1992). In
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Stackiewicz v. Nissan Motor Corp., U.S.A., 686 P.2d 925, 928 (Nev. 1984), the Nevada
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Supreme Court held that “proof of an unexpected, dangerous malfunction may suffice to
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establish a prima facie case for the plaintiff of the existence of a product defect.”
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Stackiewicz, which also involved an automobile defect, dealt with a plaintiff who was
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injured when her steering wheel locked, which caused her car to flip. The plaintiff was
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not able to produce any expert testimony about the cause of the locked steering wheel.
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Still, the court held that in certain cases “the factfinder can find, where other identifiable
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causes are absent, that the mere evidence of a malfunction is sufficient evidence of a
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defect.” Id. The Stackiewicz court approvingly cited a number of cases from other
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jurisdictions wherein courts have held that evidence of a vehicle malfunctioning could be
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sufficient to support liability even if the exact cause of the malfunction was not
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established. Id. at 928-29 (citing Greco v. Bucciconi Engineering Co., 407 F.2d 87 (3d
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Cir.1969); Tweedy v. Wright Ford Sales, Inc., 357 N.E.2d 449 (Ill. 1976); and Vanek v.
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Kirby, P.2d 778, 779 (Or. 1969)).
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The parties do not dispute that Prall was involved in an accident and the accident
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was the cause of her injury. Nor do the parties dispute that the Program 13B04 problem
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existed when the vehicle left the manufacturer. The issues of contention are (1) whether
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the vehicle had a defect that rendered it unreasonably dangerous and (2) whether that
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defect was the cause of Prall’s accident. On summary judgment, the Court must accept
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Prall’s undisputed testimony that she pressed on the brake pedal but the car continued
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moving forward, and draw all reasonable inferences in her favor. Under the guidelines
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laid out by the Nevada Supreme Court in Fyssakis and Stackiewicz, Prall has offered
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evidence upon which a reasonable fact finder could conclude that all three elements of
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her strict liability claim have been met.
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Ford argues that Nevada law requires Prall to show that there is no reasonable
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alternative explanation for the accident other than a product defect. (ECF No. 43 at 2.)
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According to Ford, a clear reasonable alternative exists: Prall mistakenly pressed the
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accelerator instead of the break. Ford believes this means Prall cannot rely on proof of
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the malfunction occurring as proof of a defect.
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Ford’s argument misunderstands the rule announced in Fyssakis and
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Stackiewicz. While it is true that those cases, and the various published and unpublished
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opinions cited by Ford in its reply, incorporate a requirement that “other identifiable
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causes are absent,” the context in which the Court evaluates that requirement is Ford’s
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motion for summary judgment. Therefore, the Court credits Prall’s testimony that she
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applied the brake as true. Ford’s argument about alternative causes requires the Court
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to ignore the standard governing summary judgment — the Court must resolve factual
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disputes and construe all reasonable inferences in favor of the non-moving party. In
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other words, if all of the facts of this case were the same, with the additional fact that the
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road Prall was driving on was covered with patches of ice, then Ford’s argument would
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be persuasive. The Court would accept Prall’s testimony that she applied the brake as
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true, but find that the accident may have been caused by the car sliding over ice rather
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than a problem with the acceleration. Presented with such a scenario, Prall would need
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to provide some evidence to narrow the cause of Prall’s accident. However here, Prall
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has eliminated alternative explanations for the accident by providing testimony that she
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applied the brakes, rather than mistakenly hitting the accelerator.
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Prall’s testimony and the other circumstantial evidence in the record are sufficient
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to establish a prima facie case of strict product liability. Therefore, Prall’s strict liability
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claim rests on disputed material issues of fact to be resolved by a jury, and Ford’s
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Motion is denied with respect to the strict liability claim.
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C.
Negligence
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While strict liability focuses on the product and consumer expectations,
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negligence focuses on the manufacturer’s conduct. See Smith v. Wolf Performance
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Ammunition, No. 2:13-CV-2223-JCMNJK, 2015 WL 2359063, at *3 (D. Nev. May 18,
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2015). To prevail on a negligence claim, "a plaintiff must establish four elements: (1) the
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existence of a duty of care, (2) breach of that duty, (3) legal causation, and (4)
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damages." Klasch v. Walgreen Co., 264 P.3d 1155, 1158 (Nev. 2011).
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Ford relies on the same argument it offered in seeking summary judgment on
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Prall’s strict liability claim — Prall has not produced evidence to show any defect caused
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by negligence or any evidence that a defect caused her injury. (ECF No. 39 at 10-11.)
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While Prall may rely on “evidence of malfunction” in the product liability context,
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Nevada does not appear to have extended that rule to simple negligence claims. Prall
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has not provided, nor can the Court find, case law applying that concept in simple
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negligence claims, and likely for good reasons. Strict product liability is premised on
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important policy considerations. As the Nevada Supreme Court explained when it first
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adopted the doctrine of strict liability: “The public interest in human safety requires the
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maximum possible protection for the user of the product and those best able to afford it
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are the suppliers of the chattel.” Shoshone Coca-Cola v. Dolinski, 420 P.2d 855, 857
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(Nev. 1966) (quoting William L. Prosser, The Fall of the Citadel, 50 Minn. L. Rev. 791
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(1966)). The Stackiewicz rule, which is a type of burden shifting mechanism, places the
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burden of showing a malfunctioning product was not designed or manufactured
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defectively on the manufacturer because they, rather than the consumer, are in the best
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position to understand and ensure the safety of the product. Thus, the rule is unique to
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the product liability context.
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Nevada does recognize the related doctrine of res ipsa loquitor, which allows a
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plaintiff to establish negligence by inference if “(1) the event [is] of a kind which ordinarily
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does not occur in the absence of someone's negligence; (2) the event [is] caused by an
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agency or instrumentality within the exclusive control of the defendant; and (3) the event
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must not have been due to any voluntary action or contribution on the part of the
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plaintiff.” Woosley v. State Farm Ins. Co., 18 P.3d 317, 321 (Nev. 2001) (quoting Bialer
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v. St. Mary's Hospital, 427 P.2d 957, 958 (Nev. 1967)). Here, however, Prall’s Taurus
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was clearly not in Ford’s exclusive control, so the doctrine does not apply.
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Therefore, in order to establish her negligence claim, Prall must produce evidence
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that the accident (and consequently her injury) was caused by Ford breaching a duty
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owed to her. The only causation evidence that Prall has produced is the expert opinion
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of Avelleni, which, for the reasons discussed above, does not meet the requisite
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standards for opinion testimony. For these reasons, Ford has demonstrated that Prall
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has failed to meet her burden of production, and Ford’s Motion is granted with respect to
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Prall’s negligence claim.
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V.
CONCLUSION
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The Court notes that the parties made several arguments and cited to several
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cases not discussed above. The Court has reviewed these arguments and cases and
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determines that they do not warrant discussion as they do not affect the outcome of the
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Motion and the Motion to Exclude.
It is therefore ordered that Ford’s Motion to Exclude (ECF No. 38) is granted.
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It is further ordered that Ford’s Motion for Summary Judgment (ECF No. 39) is
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granted in part and denied in part. The Motion is granted with respect to Prall’s
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negligence claim and denied with respect to her strict product liability claim.
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DATED THIS 24th day of January 2017.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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