Buck et al v. Ford Motor Company et al
Filing
109
Order : granting defendant's Motion for summary judgment. (Related Doc # 103 ). Judge James G. Carr on 6/25/2012.(S,AL)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Linda Buck, et al.,
Case No. 3:08CV998
Plaintiffs
v.
ORDER
Ford Motor Company, et al.,
Defendants
This case concerns injuries plaintiff Linda Buck sustained when a 1999 Ford Expedition,
which defendant Ford Motor Company manufactures, crashed into Nickles Bakery, pinning Buck
to a wall. Buck claims that the Expedition contained a defective cruise control system that caused
the vehicle suddenly to accelerate. She asserts Ohio law claims of defective product design,
inadequate warning, failure to conform to express representation, negligence and breach of warranty.
Jurisdiction is proper under 28 U.S.C. § 1332.
Pending is defendant’s motion for summary judgment. [Doc. 103].
For the following reasons, I grant defendant’s motion.
Background
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On April 27, 2006, as plaintiff’s late husband, J.D. White, driving his 1999 Expedition, was
pulling into a parking space, the vehicle accelerated. It went over the curb, broke through the store’s
front window, and struck Buck.
White was a former “two-footed” driver who used one foot for the gas and the other for the
brake, although he stated that he did not do so anymore. He also drove with a cane in the well next
to his feet. Shortly after the incident, he stated that he was unsure whether he hit the gas pedal or
missed the brake pedal . Later he consistently asserted he hit the brake pedal while the car was
accelerating.
Buck claims the Expedition was defectively manufactured. Initially, she argued that the
vehicle’s Next Generation Speed Control system (NGSC) was defective because a way that
electromagnetic interference (EMI) emitting by the car caused sudden, uncontrollable acceleration.
Buck sought to introduce expert testimony concerning the existence and effect of EMI on the NGSC,
but I have rejected each of her two proffered experts under Daubert. [Doc. 98].
Buck, altering her theory of the case, now posits what is, essentially, a res ipsa loquitur
claim, as to which Ford seeks summary judgment. As presently framed, Buck contends the only
possible explanations for the sudden acceleration of the vehicle are either driver error or defective
design. Driver error, in her view, an unsustainable contention, she contends the only explanation
for the incident must therefore be some defect in design causing to sudden acceleration. Buck admits
this defect cannot be proven with available scientific evidence. She argues her claim can stand on
the lack of any reasonable alternative explanation for the vehicle’s acceleration.
Standard of Review
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A party is entitled to summary judgment on motion under Fed. R. Civ. P. 56 where the
opposing party fails to show the existence of an essential element for which that party bears the
burden of proof. Celotex Corp. v. Cartrett, 477 U.S. 317, 322 (1986). The movant must initially
show the absence of a genuine issue of material fact. Id. at 323.
Once the movant meets that initial burden, the “burden shifts to the nonmoving party [to] set
forth specific facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)). Rule 56(e) “requires the nonmoving party to
go beyond the [unverified] pleadings” and submit admissible evidence supporting its position.
Celotex, supra, 477 U.S. at 324.
In deciding a motion for summary judgment, I accept the opponent’s evidence as true and
construe all evidence in the opponent’s favor. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504
U.S. 451, 456 (1992). The movant can prevail only if the materials offered in support of the motion
show there is no genuine issue of a material fact. Celotex, supra, 477 U.S. at 323.
Discussion
Plaintiff asserts five claims: defective product design, inadequate warning, failure to conform
to express representation, negligence and breach of warranty. Defendant has moved for summary
judgment on each. Plaintiff has failed to contest the motion as to her failure to conform, negligence
and breach of warranty claims and so I grant summary judgment to defendant on each of those
claims.
Plaintiff’s claims of defective product design and inadequate warning remain.
A. Defective Product Design
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Plaintiff alleges defendant defectively designed the Expedition in violation of Ohio’s Product
Liability Act (OPLA), O.R.C. § 2307.75. Defendant argues that plaintiff cannot prove the defect she
alleges because the claim is sufficiently complex that it requires expert testimony, of which plaintiff
has none, to prevail on that claim, and because plaintiff can present no feasible alternative design
as required by§ 2307.75(F).
As a predicate matter, I will bring together the somewhat disparate threads of plaintiff’s
defect claim.
Plaintiff initially argued that the Expedition’s cruise control servo malfunctioned due to EMI.
The claimed defect, therefore, was inherent to the cruise control servo, which, plaintiff contended,
was improperly shielded against such interference. Plaintiff acknowledges this claim cannot stand
due to a lack of expert testimony as to its plausibility.
Plaintiff’s argument now is that the defect is not necessarily a servo improperly shielded
against EMI, but instead a servo that defendant cannot and could never properly shield against EMI
– in other words, that their previous argument was causally backwards.
Instead of arguing that the servo generated interference against which it was inadequately
shielded (i.e., the servo caused its own malfunction), plaintiff now claims EMI is omnipresent being
constantly generated randomly by the car’s numerous electronic components. .
Plaintiff is attempting to convert her complex product defect claim into a res ipsa loquitur
claim, with EMI, its origin within the vehicle unknowable and its cause and effect random, as the
reason for the inferred accident. There being, accordingly to plaintiff, no other feasible alternative
explanation for the vehicle’s actions, she is entitled to a finding of liability.
1. Res Ipsa in the Product Defect Context
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“The doctrine of res ipsa loquitur is not a substantive rule of law furnishing an independent
ground for recovery; rather, it is an evidentiary rule which permits, but does not require, the jury to
draw an inference of negligence when the logical premises for the inference are demonstrated.”
Jennings Buick, Inc. v. City of Cincinnati, 63 Ohio St.2d 167, 169 (1980).
A plaintiff must establish two elements for the doctrine of res ipsa loquitur to apply:
(1) [t]hat the instrumentality causing the injury was, at the time of the injury, or at
the time of the creation of the condition causing the injury, under the exclusive
management and control of the defendant; and (2) that the injury occurred under such
circumstances that in the ordinary course of events it would not have occurred if
ordinary care had been observed.
Nationwide Agribusiness Ins. Co. v. J.D. Equip., Inc., 2012 WL 195025, *4 (Ohio App.).
Taken in the light most favorable to the nonmoving party, on April 27, 2006, a 1999 Ford
Expedition sped up and crashed through the front wall of a bakery, pinning plaintiff to the back wall.
Something occurred that impaired or altered the operation of the car in such a way that the driver
was, despite his own best efforts, unable to stop the acceleration. Plaintiff cannot identify the
particular defect or defects that caused this acceleration, but the very fact that it occurred is,
according to her, proof that defendant negligently designed the vehicle.
A res ipsa claim only works if the plaintiff can show that either no ordinary course of events
could have caused the vehicle’s movement or, had the defendant engaged in some standard of
ordinary care, the accident would not have happened. Plaintiff cannot meet this element of a her re
ipsa claim: there is no ordinary course of events or standard of ordinary care in which defendant
could have engaged, because there exists neither an identifiable problem nor any way to avoid the
phenomenon that creates the unidentifiable problem.1
1
Defendant, on the other hand, is able to point to circumstances in which ordinary care
would have avoided the accident: namely, Mr. Buck’s post-accident statement about hitting the gas
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2. Necessity of Expert Testimony in a Complex Defect Claim
As plaintiff cannot advance her res ipsa theory, I will address the theory more fully
explained in her complaint and responsive pleadings: that the Expedition’s cruise control servo
produces EMI from which it is inadequately shielded, which in turn causes the servo to engage and
the Expedition to suddenly accelerate.
To prove defective design, plaintiff must show: 1) there was a defect in the defendant’s
product; and 2) the defect existed when the product left defendant's control, and 3) the defect
directly and proximately caused plaintiff's injuries. E.g., Donegal Mut. Ins. v. White Consol. Indus.,
Inc., 166 Ohio App. 3d 569, 576 (2006). The plaintiff must also show that there is a “practical and
technically feasible alternative design or formulation” that would resolve the alleged defect. O.R.C.
§ 2307.75(F).
When understanding the nature of the alleged defect requires “knowledge . . . beyond that
possessed by the average lay person[,]” Ohio law requires expert testimony to establish both the
defect and the practical and technically feasible alternative design. Nationwide Mut. Ins. Co. v.
ICON Health & Fitness, Inc., 2005 WL 1252543, *4 (Ohio App.).
Defendant argues that, absent expert testimony, plaintiff cannot make the requisite showing
necessary for her defective design claim. Plaintiff asserts that Ohio does not require expert testimony
for every complex defective design claim, and that she can prove the existence of a defect through
Ford’s own admission.
pedal. Though Mr. Buck later retracted those statements, they could, if the jury gave them credit,
justify a finding of his negligence and resultant proximate cause in defendant’s favor.
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Expert testimony is not required where the defendant admits the existence of the alleged
defect. Atkins v. General Motors Corp., 132 Ohio App.3d 556, 564 (1999) (holding where a
manufacturer admitted the existence of a defective hinge in a service bulletin, expert testimony was
not needed to prove the existence of the already-admitted defect). Circumstantial evidence may also
suffice where an expert cannot prove the existence of the defect directly, but the cumulative weight
of the expert testimony and evidence allow an inference that the product was in fact defective.
Pearce v. Fouad, 146 Ohio App.3d 496, 504 (2001).
Plaintiff’s contention that circumstantial evidence may suffice in a defective design case is
accurate, but inapplicable here. Circumstantial evidence is of use to prove that a product “deviated
in a material way from the design specifications, formula, or performance standards of the
manufacturer, or from otherwise identical units manufactured to the same design specifications,
formula, or performance standards.” O.R.C. § 2307.74; see also Colboch v. Uniroyal Tire Co., Inc.,
108 Ohio App.3d 448, 458 (1996).
Plaintiff has not shown and, without expert testimony, cannot show that the Expedition’s
cruise control servo deviated in such a material way from its design specifications. In both Pearce
and Colboch, the plaintiffs had supporting expert testimony to demonstrate to a jury how the
behavior of the products at issue was defective. See Pearce, 146 Ohio App.3d at 504; Colboch, 108
Ohio App.3d at 460. The fact that circumstantial evidence may prove a claim does not obviate the
need to prove the underlying elements of her claim – namely, that the technically complex product
at issue actually malfunctioned.
Plaintiff claims defendant has already admitted that its product was defective. She bases this
contention on defendant’s investigation of sudden acceleration incidents in the United Kingdom.
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Defendant argues that its U.K. investigation neither constitutes an admission that EMI-induced
sudden acceleration exists nor related to a cruise control system substantially similar to the
Expedition’s NGSC system to provide a basis for plaintiff’s contentions.
Evidence of prior incidents is only admissible if the incidents are “substantially similar.” See,
e.g., Renfro v. Black, 52 Ohio St.3d 27, 31 (1990); Eakes v. K-Mart Int’l Headquarters, Inc., 1999
WL 252481, *3 (Ohio App.). Substantial similarity “exists in incidents involving the same model,
the same design, the same defect and occurring under similar circumstances.” Tolstih v. L.G. Elecs.,
U.S.A., Inc., 2009 WL 439564, *6 (S.D. Ohio). The U.K. investigation plaintiff refers to did not
involve any allegations of cars at rest or near-rest accelerating from those positions; instead, the
specifically named incidents all involved acceleration while underway at normal speed. The
investigation also did not find at any point that EMI induced Expeditions to accelerate suddenly –
even were the incidents substantially similar, the investigation does not show what plaintiff purports
it does, and is not evidence that would suffice in lieu of expert testimony.
3. Feasible Alternative Design
Defendant also argues that plaintiff cannot show a practical and technically feasible
alternative design that would solve the alleged EMI problem.2 Plaintiff proposes three alternative
designs: better wiring on the cabling surrounding the servo, a “killswitch” that would shut down a
car’s engine if it began suddenly accelerating, or removing the cruise control altogether.
2
Plaintiff argues that the burden is instead on defendant to show that no technically feasible
alternative design exists; this assertion contradicts Ohio law, O.R.C. § 2307.75(F), and would
require defendant to research and then debunk a potentially infinite number of designs to fix a defect
it contends does not exist.
8
As mentioned supra, plaintiff requires expert testimony on any proposed alternative design
to show its practicality and feasibility. In support, plaintiff points to Samuel Sero’s October 14,
2010, Daubert testimony, during which he discussed wiring and shielding issues with coaxial cable.
This is insufficient to show a practical and technically feasible alternative design, as there is no
indication that this alternative design of the servo’s cabling system would actually solve the defect.
The witness himself does not state that his proposed solution – rewiring every electronic circuit with
coaxial cable – would be practical or technically feasible, and warns that this would increase the size
of the wiring harnesses and cable assemblies in the vehicle. [Doc. 76, at 50-52].
Plaintiff’s other proposed alternative designs are speculative, unsupported by any expert
testimony. Its “killswitch” design would convert any car in which it had been activated into a
careening, unpowered missile, with modern electronic safety provisions such as power steering and
brakes unavailable. Removing cruise control from all cars is a drastic measure that, absent a showing
to the contrary, which plaintiff has not made, is impractical and amounts to a judicial ban on a
particular product.
Because plaintiff has no available expert testimony demonstrating the Expedition's alleged
defect and has not shown any feasible alternative design, I grant summary judgment to defendants
on her defective design claim.
2. Plaintiff’s Failure to Warn Claim
Plaintiff claims that defendant failed to warn her of the dangers the Expedition posed to her
in violation of O.R.C. § 2307.76. She argues that “where no warning is given, or where an
inadequate warning is given, a rebuttable presumption arises, beneficial to the plaintiff, that the
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failure to adequately warn was a proximate cause of the plaintiff’s [use of the product].” Seley v.
G.D. Searle & Co., 21 Ohio St.2d 121, 200 (1981).
To bring a failure to warn claim, the plaintiff must have standing. Standing exists “when the
plaintiff [her]self has suffered some threatened or actual injury resulting from the putatively illegal
action.” Warth v. Seldin, 422 U.S. 490, 499 (1975) (internal quote marks removed). “The plaintiff
generally must assert [her] own legal rights and interests, and cannot rest [her] claim to relief on the
legal rights or interests of third parties.” Id.
Ohio law consistently treats failure to warn as a duty the manufacturer owes to the product’s
user. See, e.g., Boyd v. Lincoln Elec. Co., 179 Ohio App.3d 559, 574 (2008) (holding that the
manufacturer’s duty is to provide a warning to the user, regardless of whether the user read it). There
is no support in Ohio law for plaintiff’s contention that a manufacturer is required to warn a third
party who did not own or use its products of a danger when the manufacturer has no way of knowing
if or when the party will ever come into contact with its products. This also contradicts the language
of the statute itself, which requires a manufacturer to warn “in light of the likelihood that the product
would cause harm of the type for which the claimant seeks to recover compensatory damages and
in light of the likely seriousness of that harm.” O.R.C. § 2307.76(A)(1)(b).
Plaintiff’s interpretation of Ohio’s failure to warn law would create a virtually unlimited zone
of manufacturer liability. There is no indication that this was Ohio’s purpose in creating this cause
of action, or that a claim for failure to warn accrues to a party who did not use the given product.
I grant defendant’s motion for summary judgment on plaintiff’s claim for failure to warn.
Conclusion
For the foregoing reasons, it is hereby:
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ORDERED THAT:
Defendant's motion for summary judgment [Doc. 103] be, and the same hereby is granted.
So ordered.
s/James G. Carr
Sr. United States District Judge
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