Campbell v. Fawber et al
Filing
41
MEMORANDUM AND ORDER denying GM's MSJ 17 , denying Campbell's motion for partial summ jdgmt 11 & granting GM's motion for partial summ jdgmt on issue of punitive damages 14 . (See memo & order for complete details.) Signed by Honorable Christopher C. Conner on 3/29/13. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CALLAN CAMPBELL,
Plaintiff,
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v.
HOLLY F. FAWBER, and
GENERAL MOTORS
CORPORATION,
Defendants
Civil Action No. 1:11-1215
(Judge Conner)
MEMORANDUM
Presently before the court in the above-captioned matter are two motions for
partial summary judgment, filed by defendant Motors Liquidation Company GUC
Trust (formerly known as General Motors Corporation, and hereinafter referred to
as “GM”) (Doc. 14), and plaintiff Callan Campbell (“Campbell”) (Doc. 11), and a
motion for summary judgment (Doc. 17) filed by GM. The motions have been fully
briefed, and are ripe for disposition.
I.
Background
A.
The Automobile Accident
This matter arises out of a single vehicle car accident that occurred on
August 17, 2004, in Wiconisco Township, Pennsylvania. Defendant Holly Fawber
(“Fawber”) was driving a 1996 GMC Jimmy sport utility vehicle, in which the
plaintiff, Callan Campbell, was a passenger. At the time, Fawber and Campbell
were 16 and 18 years old, respectively. Campbell was seated in the right front seat
of the vehicle, and was wearing her seatbelt. Fawber, while making a lefthand turn
from Pottsville Street onto Machamer Avenue, lost control of the vehicle. The
Jimmy swerved and rolled in a driver-side leading fashion, meaning that the
passenger’s side rotated over the driver’s side in the roll. The vehicle came to rest
on its roof.
Campbell suffered catastrophic injuries as a result of the accident. Though
the extent and precise nature of her injuries are disputed, the parties generally
agree that Campbell suffered fractures of her C6 and C7 vertebrae, which damaged
her spinal cord and rendered her quadriplegic.
B.
The Bankruptcy Proceedings
Campbell commenced this action on August 31, 2005, by filing a complaint in
the Court of Common Pleas of Lackawanna County, Pennsylvania, alleging
negligence against Fawber, and strict liability and negligence against GM. The
matter remained exclusively in state court until June 1, 2009, when General Motors
Corporation declared bankruptcy and commenced voluntary Chapter 11 filings in
the United States Bankruptcy Court for the Southern District of New York, at
which point all proceedings and judicial actions against GM were automatically
stayed. See 11 U.S.C. § 362. On July 5, 2009, the Bankruptcy Court approved GM’s
asset sale motion. Upon consummation of the asset sale, GM changed its name to
Motors Liquidation Company. The Bankruptcy Court established November 30,
2009, as the deadline for filing proofs of claim against Motors Liquidation Company,
based upon pre-petition claims. See 11 U.S.C. § 502(b)(9). Campbell filed her proof
of claim on October 26, 2009. On March 28, 2011, the Bankruptcy Court established
the GUC Trust pursuant to the Motors Liquidation Company GUC Trust
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Agreement. Campbell’s claim was then transferred to the GUC trust, making the
GUC Trust GM’s successor in this matter. On May 31, 2011, the Bankruptcy Court
entered an order modifying the automatic stay under § 362. The Court lifted the
stay to the extent necessary to allow this action to proceed to final judgment or
settlement.
GM removed to federal court on June 27, 2011. See 28 U.S.C. § 1334(b)
(granting district courts subject matter jurisdiction over cases “arising in or related
to” bankruptcy proceedings). By order dated July 22, 2011, this court established
filing deadlines for Campbell’s amended expert reports, GM’s expert reports, and
Campbell’s rebuttal reports, for depositions of all experts, and for filing dispositive
motions.
II.
Campbell’s Expert Witnesses
GM has moved for summary judgment on the grounds that Campbell’s
expert witness testimony is inadmissible under Federal Rule of Evidence 702.
Rather than challenge the reliability of each expert’s testimony in depth, GM
bluntly asserts that all of their opinions are unreliable for lack of sufficient
“testing.” Accordingly, it is appropriate for the court to discuss at some length the
processes and methodologies employed by four of Campbell’s expert witnesses.
A.
Dr. Michael Freeman
Campbell retained Dr. Michael Freeman to provide an opinion on whether,
and to what degree, Campbell’s cervical spine injuries were caused by the collapse
of the Jimmy’s roof. Dr. Freeman has a Ph.D. in public health, with a specialization
3
in epidemiology, and an M.P.H. in epidemiology and biostatistics. (Freeman CV,
Doc. 27-3 at 2). He serves currently as an affiliate professor of epidemiology at
Oregon Health & Science University School of Medicine, in the Department of
Public Health and Preventive Medicine. (Id.) Dr. Freeman teaches courses in
forensic and trauma epidemiology, with a focus on motor vehicle crash injuries, to
graduate medical students, M.P.H. and Ph.D. candidates, and doctors who practice
emergency medicine and trauma surgery. (Freeman Report, Doc. 19-13 at 2).
Dr. Freeman has extensive experience studying rollover crashes and car
accident-related fatalities, both as a field investigator and analyst, and as a scientist.
He is a Special Deputy Sheriff vehicular homicide investigator for the vehicular
homicide law enforcement team of Clackamas County, Oregon, and has consulted
with the Medical Examiner Division of the Oregon State Police on the subject of
forensic trauma epidemiology. (Id. at 3). Dr. Freeman is also an accredited crash
reconstructionist with the Accreditation Commission for Traffic Accident
Reconstruction. (Id.) He has published over 120 scientific papers, abstracts, books,
and book chapters, primarily on the topic of motor vehicle crash-related injuries
and fatalities, crash reconstruction, injury causation analysis, biomechanics, and
forensic epidemiology. (Id.) He has served more than 300 times as an expert
witness on these topics in state and federal courts, as well as in several foreign
countries. (Id.)
Dr. Freeman performed four statistical studies in order to evaluate the
strength of association between the degree of roof crush and the odds of sustaining
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a serious injury. These studies examined data from the National Automotive
Sampling System – Crashworthiness Database (“NASS-CDS”). (Id. at 9). The
NASS-CDS is a data set gathered from approximately 5,000 motor vehicle crashes
each year. Trained crash investigators and medical examiners log over 800
variables for each crash, including weather conditions, road conditions, the extent
of injuries to occupants or pedestrians, and damage to the vehicle. (Id. at 9).1
Dr. Freeman’s first two studies considered the head and neck injury outcome
and risk of death as a result of roof crush, controlling for other accident variables
that could affect risk of injury. The third study considered the odds of serious head
and neck injury versus no injury for occupants in the same vehicle and depending
on the degree of roof crush, controlling for other variables, but matching for roll
severity and the roof’s strength-to-weight ration (“SWR”). The fourth study
considered the risk of serious cervical spinal injury, relative to the occupant’s
position in the vehicle, depending on whether the vehicle sustained greater than, or
less than, six inches of roof crush.
Dr. Freeman examined data from single vehicle rollover crashes involving
occupants ages 13 or over who were sitting in the front-right or front-left seats of a
car, minivan, pickup truck, or SUV. (Id. at 11). The studies considered occupants
1
To be recorded in the NASS-CDS, a crash must meet several criteria: a
police report must have been completed; the crash must have occurred within a
primary sampling unit; the crash must have involved at least one passenger car, van
or light truck; and at least one vehicle must have been towed from the accident site.
(Id. at 10).
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for whom an intrusion of a “specified vehicle component” occurred at their seating
position, and who suffered a head, neck or spine injury (“Type M occupants”), and
those for whom the specified component did not cause an injury, or the injury
caused was not related to the head, neck or spine (“Type O occupants”). The
studies excluded major vehicle fires, vehicle immersions, occupants seated in the
center seat or in the second row, arrested rollover crashes, and end-over-end
rollovers.
Applying these criteria, Dr. Freeman abstracted 3,088 vehicle occupants,
1,118 of whom were Type M occupants and 1,970 of whom were Type O. Within the
Type M group, occupants were removed if death, air bag deployment, seatbelt use
or roll direction were unknown, or if the vehicle was a convertible. (Id.) This left
960 Type M occupants to comprise the “cohort study,” wherein their “putative
injury exposure level (degree of roof crush) was gathered and categorized, and the
outcome of interest was head and neck injury presence and severity.” (Id.) The
Type M occupants were then classified according to the abbreviated injury scale
(“AIS”) used in the NASS-CDS, which broadly classifies injury severity as follows:
0: no injury; 1: minor; 2: moderate; 3: serious; 4: severe; 5: critical; 6: maximum; 7:
injured, unknown severity. The 0 and 7 categories were removed. The NASS-CDS
further classifies injured occupants according to the area of the body injured: 1:
head; 2: face; 3: neck (referring to all tissue between the head and thorax, but
excluding the spinal column); 4: thorax; 5: abdomen; 6: spine (referring to the
cervical, thoracic, and lumbar regions of the spinal column); 7: upper extremity; 8:
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lower extremity; 9: unspecified. Dr. Freeman calculated a composite score of
overall injury severity, called the New Injury Severity Score (“NISS”), which
consists of the sum of the squares of the AIS scores of an occupant’s three most
severe injuries. (Id.) Dr. Freeman further refined the scoring mechanism by
evaluating only injuries to the head or neck (the “HN-NISS”).
Controlling for other variables, Dr. Freeman determined that roof crush of
greater than six inches was associated with increased odds of head and neck injury
and death. (Id. at 23). Specifically, Dr. Freeman determined that the odds of a
serious cervical spine injury among vehicle occupants with greater than six inches
of roof crush at their seating location were 817% greater than those at seating
positions with less than six inches of crush. In each statistical model, roof crush
was a substantially stronger predictor of serious injury than any other variable
except roll arc side and seat position.
B.
Dr. Carl Nash
Campbell retained Dr. Carl Nash to testify on the causal relationship
between the Jimmy’s roof structure and Campbell’s injuries. Dr. Nash received a
Ph.D. in Physics from the University of North Carolina at Chapel Hill. (Nash
Report, Doc. 19-8 at 2). He served as Confidential Special Assistant to the National
Highway Traffic Safety Administration (“NHTSA”) for fifteen years, where he
oversaw rulemaking programs, directed the agency’s planning and evaluation
activities, and directed the agency’s crash investigation and data collection
activities. (Id.) Since his retirement from the NHTSA, Dr. Nash has served as an
7
adjunct professor of engineering at the National Crash Analysis Center at George
Washington University, conducting research and teaching graduate engineering
courses on motor vehicle safety. (Id.) Dr. Nash has conducted investigations and
reconstructions of more than twenty rollover crashes, and has been an expert
witness numerous times. He has been published and given major presentations in
the field of motor vehicle safety. (Id.)
In his report, Dr. Nash concluded that “the roof structure of the 1996 GMC
Jimmy involved in this rollover was defectively weak and unreasonably dangerous
beyond the contemplation of the average consumer,” and that the structural failure
of the roof was the primary cause of Campbell’s injuries. (Id. at 3). Dr. Nash
further opined that “adopting alternative design approaches and materials that
were technologically feasible and available” at the time of the GMC’s design could
have prevented Campbell’s injuries. (Id.) He considered, among many other
sources, a reconstruction of the accident, undertaken by Steven M. Schorr, as well
as the police report of the accident, which was prepared by Trooper Brian M. Knorr
of the Pennsylvania State Police.
In reaching his conclusions, Dr. Nash employed standard scientific systems
analysis techniques. (Id.) Systems analysis “considers all aspects of the automotive
system through the full crash sequence,” and allows an analyst to “assess and
determine whether some aspect of a vehicle’s design, construction and performance
is defective and caused the crash injuries.” (Id.) Systems analysis involves
consideration of “crash statistics, vehicle dynamics, occupant kinematics, injury
8
susceptibility and mechanism, crashworthiness, and occupant protection.” (Id.) It
also involves testing, assessing safety defects and their causal relationship with
crashes and injuries, and determining the foreseeability of consequences.
Dr. Nash describes some of the testing methods used to determine roof
strength. The first is the Federal Motor Vehicle Safety Standard 216 (“FMVSS
216"), which Dr. Nash describes as “very old and limited.” (Id. at 12). This test is
conducted by applying a large, flat platen to the roof of the vehicle, over the Apillar. The platen is placed at a 5E pitch angle and a 25E roll angle. (Id.) Force is
then applied. To meet the standard, a light truck with a gross vehicle weight under
6,000 pounds must resist the force of the platen to at least 1.5 times its weight,
before crushing 5 inches. Among other weaknesses of this test, Dr. Nash notes that
only one side of the vehicle is tested, whereas in actual rollovers, both sides of a
vehicle will strike the ground. (Id.) Dr. Nash also notes that the required force is
“unrealistically low,” because actual SUV rollovers typically subject a roof to three
to four times the vehicles’ weight. (Id. (“The low force permits manufacturers to
use the strength of the windshield (which virtually always fails in a rollover) to
contribute to crush resistance.”)).
Dr. Nash also discusses a two-side roof strength test, which Xprts LLC
performed on a 1995 Chevrolet S-10 Blazer, on March 25, 2004. (Xprts Blazer Test,
Doc. 27-5 at 4). The 1995 Blazer has the same roof structure as the 1996 Jimmy.
This test, known as the M216 test, differs from the FMVSS 216, and “better
assess[es] the rollover roof crush performance of vehicles.” (Nash Report, Doc. 19-8
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at 13). The M216 test of the Blazer was conducted by applying a platen first to one
side of the vehicle’s roof at a roll angle of 25E, and a pitch angle of 10E. (Id. at 13-14).
Force was then applied to test the ability of the roof to withstand a rollover crash.
(Id.) Then the second side was tested at the same roll and pitch angles. (Id.) The
Blazer’s first side roof crush resistance was 4,657 pounds, but only 2,943 pounds
after the windshield failed at 3 inches of crush. (Id.) The second side performance
was similar, with a maximum resistance of 4,656 pounds, and 3,114 pounds after the
windshield failed. (Id.) According to Dr. Nash, this is not even sufficient to support
the vehicle’s own weight. (Id.)
Dr. Nash obtained and examined a 2000 Chevrolet Blazer, also a “sister” of
the 1996 Jimmy, and used a female model of nearly the same height as Campbell
(five feet, five inches tall, as compared to Campbell’s five feet, five and a half inches)
to estimate Campbell’s seated height and headroom. (Nash Report, Doc. 19-8 at 10).
He found that when the model sat normally in the front right passenger seat, she
had about seven inches of headroom. (Id.) When she sat upright, she had between
four and five inches of headroom. (Id.) The Jimmy involved in Campbell’s crash
suffered three to four inches of residual intrusion over the driver’s seat, and about
six to eight inches over the front passenger seat. (Id. at 8).
Dr. Nash also refers to stability testing conducted by the NHTSA on a 2001
Chevrolet Blazer S-10, which like the previous Blazers, is a sister vehicle of the 1996
Jimmy. That test found that the Blazer had a static stability index – a measurement
of rollover propensity – of 1.09, which would give the Blazer a rollover rating of two
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out of five stars under the NHTSA’s New Car Assessment Program. (Id. at 11). The
NHTSA indicated that this measurement applied to Blazer S-10s from model years
1991-2003. (Id.)
Finally, Dr. Nash studied alternate designs that could improve roof crush
resistance, in particular focusing on the Volvo XC-90. (Id. at 16). He reviewed a
variety of tests conducted on the XC-90, concluding that it performed uniformly
well, and dramatically better than the Jimmy. (Id.)
C.
Dr. Nicholas Perrone
Campbell retained Dr. Nicholas Perrone to offer an opinion on the strength
of the Jimmy’s roof, as well as its propensity to rollover. He holds a Ph.D. in applied
mechanics from the Polytechnic Institute of Brooklyn. (Perrone CV, Doc. 27-8 at 3).
Dr. Perrone has served as a thesis advisor for graduate students at Catholic
University, and on the doctoral committee at American University. (Id.) He has
taught courses on engineering physics and mechanics, and strength of materials,
and limit analysis of structures, among others. (Id.) He has edited or co-edited
twelve books on the subjects of biomechanics and structural mechanics, (id. at 7),
and has published upwards of 70 academic articles on various engineering and
biomechanics subjects, including articles about crashworthiness and rollover
probability. (Id. at 12-19).
Dr. Perrone concluded that the “1996 Jimmy vehicle had an incredibly weak
roof structure combined with a high propensity to rollover,” and that these
weaknesses directly caused Campbell’s injuries. (Perrone Report, Doc. 19-5 at 5).
11
In forming this opinion, Dr. Perrone created a reconstruction of Campbell’s crash.
Campbell’s accident took place at approximately 4:45 in the afternoon on a dry road
with no adverse weather conditions. (Id. at 4). The section of Machamer Avenue
upon which the accident occurred is on a hill. (Id.) It has a downgrade of
approximately 8% at the top, and about 4% where the accident occurred, 200 feet
from the top of the hill. (Id.) The accident occurred when Fawber turned left onto
Machamer Avenue at a speed of 30 to 35 miles per hour. (Id.) Braking into the
turn, Fawber turned rapidly to the left and then rapidly to the right, staying on the
road. (Id.) While turning to the right, the vehicle sustained an untripped rollover.
All of the occupants were wearing their seatbelts. After the accident, while the
Jimmy was on its roof, both Fawber and the third occupant, Nicole Maurer
(“Maurer”), were able to exit the vehicle, but Campbell was not due to “almost
immediate paralysis.” (Id.)
Dr. Perrone opines that Campbell’s injuries were caused by roof collapse.
The roof over Campbell’s seat was significantly more compromised than the roof
over the other occupants. (Id. at 5). He concludes that if GM’s “diving” theory,
discussed at length infra, were meritorious, then Maurer should also have been
significantly injured because she also was on the trailing side of the vehicle, and
weighed nearly twice as much as Campbell. (Id.) Maurer, however, walked away
from the accident.
Dr. Perrone also considers the impact that the Jimmy’s stability had on the
accident. He opines that the Jimmy’s Static Stability Factor (“SSF”) of 1.09,
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produces a 36% probability of an untripped rollover. He recommends that the track
width be increased approximately five inches, which would raise the Jimmy’s SSF
to 1.2, with a 22% chance of an untripped rollover.
D.
Dr. James Pugh
Dr. James Pugh is Campbell’s biomedical engineer. He has a Ph.D. in
biomedical engineering, and a B.S. in metallurgy and materials, both from MIT.
(Pugh CV, Doc. 27-11 at 2). He is currently a professor at the Cooper Union School
of Engineering in New York, and previously held professorships at other
universities, including the University of Washington and New York University. (Id.)
He has taught courses in the areas of applied mechanics, materials science,
biomechanics, biomaterials, ergonomics, occupational health and safety, strength of
materials, and orthopaedic engineering. (Id.) He has published 73 technical articles
in engineering and scientific journals, and delivered more than 50 lectures
nationally and internationally.
Dr. Pugh inspected the Jimmy and examined the reports of Drs. Nash and
Perrone, and Steven M. Schorr. (Pugh Report, Doc. 19-7 at 2). Dr. Pugh observes
that Campbell “was ‘nutcracked’ between the collapsing roof structures and the
seat when the vehicle was in the largely inverted configuration.” (Id. at 3). He
opines that it was economical and feasible to design the Jimmy so that dynamic roof
collapse could be limited to five to seven inches, which would allow an occupant to
resist injury due to a collapsing roof because the human head-spine complex is
inherently elastic and compliant. He explains that injuries could be avoided if “the
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body is adequately restrained by the belt system so that it remains largely confined
to the normal seating position.” (Id.) He further opines that the “residual or static”
roof intrusion of the Jimmy was between six and eight inches, and that the dynamic
intrusion was 30-50% greater. (Id.) Thus, he believes that the dynamic deflection to
which Campbell was subjected was as much as twice the biomechanicallyallowable maximum of five to seven inches that her body could resist. (Id.) He also
asserts that the seatbelt in the Jimmy should have been equipped with a locking
latch plate and a rollover sensor that “fully locks the seatbelt for the duration of the
rollover, by means of a pretensioner or other non-inertial mechanism.” (Id.) Dr.
Pugh observes that Campbell’s seatbelt likely unlocked and unspooled throughout
the rollover, providing too much slack and failing to keep her properly secured.
(Id.)
III.
Jurisdiction and Standard of Review
The court’s jurisdiction is premised on 28 U.S.C. § 1334(b), which grants the
district courts original jurisdiction over all “civil proceedings arising under title 11,
or arising in or related to cases under title 11.” A civil proceeding is “related to”
bankruptcy when “the outcome of that proceeding could conceivably have any
effect on the estate being administered in bankruptcy.” In re Guild and Gallery
Plus, Inc., 72 F.3d 1171, 1180-81 (3d Cir. 1996) (quotation marks omitted). Section
1334(b)’s grant of jurisdiction is broad, extending to any proceeding that “could
alter the debtor’s rights, liabilities, options, or freedom of action (either positively or
negatively) and which in any way impacts upon the handling and administration of
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the bankrupt estate.” Id. Campbell seeks significant money damages against GM,
and it is certainly “conceivable” that the outcome of this litigation will affect the
bankruptcy estate. Hence, the jurisdictional requirements of § 1334(b) are satisfied.
Through summary adjudication the court may dispose of those claims that do
not present a “genuine issue as to any material fact” and for which a jury trial
would be an empty and unnecessary formality. See FED . R. CIV . P. 56(a). The
burden of proof is upon the non-moving party to come forth with “affirmative
evidence, beyond the allegations of the pleadings,” in support of its right to relief.
Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a
matter of law, to sustain a judgment in favor of the non-moving party on the claims.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED . R. CIV . P.
56(a). Only if this threshold is met may the cause of action proceed. Pappas, 331 F.
Supp. 2d at 315.
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IV.
Discussion
Before the court presently are GM’s motions for summary judgment and for
partial summary judgment, and Campbell’s motion for partial summary judgment.
The court will address each in turn.
A.
GM’s Motion for Summary Judgment
GM advances three arguments in support of its motion for summary
judgment. First, GM argues that Campbell’s proffered expert opinion testimony is
inadmissible under Federal Rule of Evidence 702, because her experts failed to
engage in testing to support their hypotheses. Second, because Campbell’s expert
testimony is inadmissible, she is unable to show that she suffered “enhanced
injuries,” as required under Pennsylvania products liability law. Third, GM argues
that Campbell lacks admissible expert testimony sufficient to show that an
alternative design would have prevented the Jimmy from rolling over. GM does not
engage in an in-depth challenge of any of Campbell’s experts, but rather broadly
attacks the reliability of all of the experts because they did not engage in sufficient
testing.
Pennsylvania applies strict liability against sellers who release defectively
designed or manufactured products into the stream of commerce. Walton v. Avco
16
Corp., 610 A.2d 454, 458 (Pa. Super. 1992).2 The doctrine of “crashworthiness” as a
“subset” of products liability. Kupetz v. Deere & Co., Inc., 644 A.2d 1213, 1218 (Pa.
Super. 1994) (recognizing the implicit adoption of the crashworthiness doctrine by
the Pennsylvania Supreme Court in McCown v. Intern’l Harvester Co., 342 A.2d 381
(Pa. 1975)). Crashworthiness is sometimes referred to as the “second collision”
doctrine. The second collision concept, at least with regard to automobile
accidents, refers to the vehicle occupant’s collision with the interior of the vehicle,
or with the ground if the occupant is ejected. Id. The theory is that although the
alleged defect was not the cause of the actual accident, the defect exacerbated the
plaintiff’s injuries.
To prevail on her crashworthiness claim, Campbell must prove three
elements. First, she must show that the vehicle design was defective, and that at
the time that the vehicle was designed a safer alternative existed that was
2
The court is aware that there exists some ambiguity as to whether
Pennsylvania will continue to apply the law of strict products liability formulated in
§ 402A of the Restatement (Second) of Torts, or will adopt the analysis of §§ 1 and 2
of the Restatement (Third). See Covell v. Bell Sports, Inc., 651 F.3d 357, 362 (3d Cir.
2011). The Third Circuit has predicted that the Pennsylvania Supreme Court, if
confronted with the question, would adopt the Restatement (Third), Berrier v.
Simplicity Mfg., Inc., 563 F.3d 38, 40 (3d Cir. 2009), and in the absence of a definitive
ruling from the Pennsylvania Supreme Court, this court is bound by the Third
Circuit’s determination. Covell, 651 F.3d at 362. However, the ambiguity may soon
be resolved because the Pennsylvania Supreme Court recently granted allocatur in
Tincher v. Omega Flex, Inc., — A.3d —, 2013 WL 1222123 (Pa. March 26, 2013) (per
curiam), to address whether the Third Restatement analysis should be adopted.
Neither party has raised this issue, and the court will not do so unprompted.
Whether, and to what extent, Campbell’s crashworthiness claim differs under §
402A of the Restatement (Second) or §§ 1 and 2 of the Restatement (Third) is a
question that will be left for another day.
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practicable under the circumstances. Id. Second, Campbell must identify what
injuries, if any, she would have received had the safer alternative been
implemented. Gaudio v. Ford Motor Co., 976 A.2d 524, 532 (Pa. Super. 2009). Third,
she must identify what injuries she suffered as a result of the defect. Id. Campbell
must support her claims with expert testimony. See Jones v. Toyota Motor Sales,
USA, Inc., 282 F. Supp. 2d 274, 277-78 (E.D. Pa. 2003); see also Huddell v. Levin, 537
F.2d 726, 737 (3d Cir. 1976) (recognizing that “unlike orthodox products liability . . .
litigation, crashworthy or second collision cases impugning the design of a product
require a highly refined and almost invariably difficult presentation of proof”);
Andrews v. City of Pittsburgh, 41 Pa. D. & C.3d 520, 526 (Pa. Ct. of Common Pleas
1984).
The admission of expert testimony in federal court is governed by Federal
Rule of Evidence 702, which states:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the facts
of the case.
FED . R. EVID . 702; see also Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316,
321 (3d Cir. 2003) (explaining that the Rule 702 requirements constitute “the ‘trilogy
of restrictions on expert testimony: qualification, reliability and fit’” (quoting
Schneider v. Fried, 320 F.3d 396, 405 (3d Cir. 2003)). Rule 702 requires district court
18
judges to act as “gatekeepers” to ensure that expert testimony is both reliable and
relevant, see Daubert v. Merrell Dow Pharmaceuiticals, Inc., 509 U.S. 579, 589
(1993), but courts nonetheless must adopt a “liberal policy of admissibility,” and
favor the admission of any evidence that may assist the trier of fact, Pineda v. Ford
Motor Co., 520 F.3d 237, 243 (3d Cir. 2008).
GM asserts that the methodologies employed by Campbell’s proffered
experts are not “reliable.” With respect to this prong of the analysis, the Third
Circuit has held that “‘an expert’s testimony is admissible so long as the process or
technique the expert used in formulating the opinion is reliable.’” Id. at 244
(quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-42 (3d Cir. 1994)). The
party offering expert testimony must make “more than a prima facie showing” of
reliability, but “‘[t]he evidentiary requirement of reliability is lower than the merits
standard of correctness.’” Id. at 247 (quoting Paoli, 35 F.3d at 744). Factors that a
court may consider in assessing the reliability of expert testimony include:
(1) whether a method consists of a testable hypothesis; (2) whether the
method has been subject to peer review; (3) the known or potential
rate of error; (4) the existence and maintenance of standards
controlling the technique’s operation; (5) whether the method is
generally accepted; (6) the relationship of the technique to methods
which have been established to be reliable; (7) the qualifications of the
expert witness testifying based on the methodology; and (8) the nonjudicial uses to which the method has been put.
Id. at 247-48. These factors are intended to be “helpful, not definitive,” and not all
factors will necessarily apply in any given case. Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 151 (1999).
19
The gravamen of GM’s argument is that none of Campbell’s experts
conducted a roll test of a 1996 Jimmy with their proposed design improvements
using instrumented crash-test dummies. They therefore do not know whether such
improvements could have prevented Campbell’s injuries, rendering their opinions
unreliable and inadmissible. This argument is unpersuasive.
GM relies heavily on Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir. 2000). The
plaintiff in Oddi was driving a bread truck on a highway when he struck a guardrail
and bridge abutment, crushing his legs so completely that they had to be
amputated. Id. at 141. The basic components of the truck he was driving – the
frame rails, axles, engine, drive train, wheels, and front bumper – were
manufactured and assembled by Ford, and then modified by a third party for use as
a bread delivery truck. Id. Oddi brought claims of Pennsylvania strict liability,
negligence, breach of warranty and failure to warn against both Ford and the third
party, Grumman. Id. He retained an engineer to testify as an expert on the alleged
manufacturing and design defects of the truck, and a biomechanist to testify as an
expert on how Oddi suffered his injuries. The district court granted summary
judgment to Ford on the grounds that neither expert met the admissibility
standards of Daubert. Id.
The Third Circuit affirmed. The court began its analysis by discussing some
of the factors that will guide a court’s inquiry into the relevance and reliability of
proffered expert testimony. These factors include whether the theory can and has
been tested; whether the theory has been subjected to peer review and publication;
20
what the potential or known rate of error is for the particular scientific technique at
issue; and whether the technique has been generally accepted by the relevant
scientific community. Id. at 144-45. Importantly, however, the court emphasized
that the standard under Rule 702 is not a high one, and does not require plaintiffs
“to prove their case twice – they do not have to demonstrate to the judge by a
preponderance of the evidence that the assessments of their experts are correct,
they only have to demonstrate by a preponderance of evidence that their opinions
are reliable.” Id. at 145 (internal quotation marks omitted).
The court then discussed the testimony proffered by the two experts. Oddi’s
design engineer would testify that the design of the left front bumper of the truck
was defective because it was not reinforced by a backing plate or brackets, allowing
it to deform backward and inward when the truck hit the guardrail, which ramped
the truck onto the rail rather than deflecting it away. Id. at 146-47. He also posited
that the flooring of the cab should have been thicker or reinforced with ribbed
metal to strengthen the integrity of the cab. Id. But Oddi’s expert was unable to
identify any specific literature upon which he relied to formulate his opinions. Id.
at 148. He had not evaluated the force the truck inflicted on the guardrail or the
bridge abutment at the time of impact, and had not measured the strength or
rigidity of the guardrail. Id. at 149. Nor had he determined how much force the
bumper could sustain before it bent. Id. Finally, the expert had not tested or
substantiated any of the proposed design modifications that he suggested. Id. at
149. Oddi’s biomechanist was similarly unable to provide information on how he
21
had arrived at his opinions, stating that he could not determine what injuries Oddi
would have suffered in the absence of the alleged design flaws. Id. at 150-51.
In evaluating the engineer’s testimony, the Third Circuit found that he
satisfied none of the factors discussed in Paoli II. Not only had the engineer failed
to test his hypotheses, Oddi could not even identify what methodology and research
supported the hypotheses. See id. at 156 (noting that the engineer “testified that he
had ‘studied’ bread trucks but was not able to state if they were the same kind of
truck that Oddi was driving or even if they were produced by the same
manufacturer”).3
Campbell’s proffered expert testimony is worlds away from that offered in
Oddi. Dr. Nash uses established systems analysis techniques to form his opinion,
3
Oddi’s engineering expert had, for all intents and purposes, conducted no
research, as exemplified by this passage from his deposition:
Q: What type of vehicles [did you examine]?
A: Bread trucks.
Q: Whose bread trucks? Who made them?
A: They were in front of a grocery store and I walked up and looked at them.
I didn’t record anything off of them. I seen them [i.e., bracketry or wedge
supports] on them [i.e., front bumpers].
...
Q: You didn’t make a note of what the bread truck was so you could go back
and say, “Here’s the design I’m proposing and somebody is already using
this.”
A: I said that in my mind, and I had groceries and I didn’t have a camera and
nothing else.
Id. at 156-57 (alterations in original). The engineer’s research largely amounted to
glancing at a bread truck while he was grocery shopping.
22
evaluating “crash statistics, vehicle dynamics, occupant kinematics, injury
susceptibility and mechanism, crashworthiness, and occupant protection.” (Nash
Report, Doc. 19-8 at 1-2). He examines a number of materials, including those
published in peer-reviewed journals. (Id. at 43-49). Most importantly, however, Dr.
Nash relies on the M216 test conducted on a 1995 Chevrolet Blazer S-10, a vehicle
that has the same roof structure as the 1996 Jimmy, and concludes that the roof
could not “even support the weight of the vehicle.” (Id. at 14). He also evaluates
alternative designs, as used in the Volvo XC-90, Honda CR-V, Volkswagen Jetta,
and the Toyota Camry, and concludes that they performed “dramatically better”
than the Jimmy in roof crush tests. (Id. at 16).
Dr. Freeman provides significant details on the source of the data he drew
upon for his statistical analysis on the risk of suffering a significant head or neck
injury during a rollover in which the roof collapses. He posits that:
[T]he most probable explanation for the cervical spine and spinal cord
injuries sustained by Callan Campbell in the August 17, 2004 rollover
collision was the degree of dynamic and static roof crush
inferred/observed in the 1996 GMC Jimmy in which she was a right
front seat passenger at the time of the collision. Specifically, there is a
risk ratio of > 8.0 (> 800% risk) for Callan Campbell’s injuries related
to the degree of roof crush sustained by the GMC.
(Freeman Report, Doc. 19-14 at 54). GM’s complaint that Dr. Freeman “did not
even inspect the vehicle,” (Doc. 19 at 18 n.5), is wholly immaterial: Dr. Freeman
conducted a statistical analysis of the likelihood of obtaining the types of injuries
Campbell suffered when involved in the type of rollover collision in which she was
involved. He examined data from hundreds of crashes and compared it to damage
23
information about the Jimmy that he obtained from Dr. Nash’s report. (See
Freeman Report, Doc. 19-13 at 8 (“My understanding of the relevant facts in this
[case] is from my review of the April 16, 2009 preliminary report by Dr. Nash.”)). It
is difficult to conjure how a first-hand examination of the Jimmy would have altered
or improved Dr. Nash’s analysis.
Dr. Pugh examined the Jimmy and studied the reports of Drs. Nash and
Perrone, and Schorr. (Pugh Report, Doc. 19-7 at 2). He also reviewed Campbell’s
medical records, the accident site, and the police report. (Id.) In his expert report,
he describes the biomechanical limits to the elasticity of the head, neck, thorax, and
lumbar spinal anatomy, and determines after having viewed the Jimmy that the
roof intrusion over Campbell’s seat would have subjected her to as much as twice as
much dynamic deflection as her body could withstand. (Id. at 3). Similarly, Dr.
Perrone observed the crash location, and took measurements in order to
reconstruct the accident scene. (Perrone Report, Doc. 19-5 at 4). He observed the
different degrees of roof crush over Campbell’s seat in the Jimmy compared to
Fawber’s and Maurer’s, as well as the differences in height and weight of Campbell,
Maurer, and Fawber. (Id. at 5). Dr. Perrone states that SSF is “an important and
reliable indicator for rollover propensity” according to the NHTSA and the
National Academy of Sciences, and that the NHTSA had conducted tests and found
that vehicles with SSFs of 1.17 or greater were “almost impossible to . . . overturn
on the highway with emergency maneuvers.” (Id. at 6). The Jimmy had an SSF of
1.09, which Dr. Perrone asserts contributed to Campbell’s injuries. (Id.)
24
GM’s fundamental argument is that none of Campbell’s experts conducted a
test wherein they modified a 1996 Jimmy with a strengthened roof, placed into the
vehicle instrumented crash-test dummies to measure neck load or other indicia of
injury, and then applied force to the vehicle’s roof to determine whether Campbell
would have been injured. Rule 702 does not impose such a demanding standard.
To do so would require plaintiffs “to prove their case twice.” Oddi, 234 F.3d at 145.
Rather, Rule 702 imposes a “flexible” standard for the admissibility of expert
testimony, see Daubert, 509 U.S. 579, 594-95 (1993), where no single factor is
dispositive, Oddi, 234 F.3d at 145. Indeed, the Supreme Court specifically held that
the factors enunciated in Daubert are not a “definitive checklist or test.” Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999).
Campbell’s experts engaged in significant research and data-driven
statistical analysis. Their reports are neither conjecture nor speculation, and rely
upon generally accepted methodologies of systems and statistical analysis. To the
extent that GM challenges the accuracy of their conclusions, such a challenge
simply goes to the weight of the evidence rather than its admissibility. See
Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802, 809 (3d Cir. 1997) (noting that the
test is not whether “the expert might have done a better job”). GM may
appropriately explore its concerns about accuracy on cross-examination.
25
As Campbell correctly notes, GM has not challenged the sufficiency of the
evidence to survive summary judgment, outside of its argument regarding
admissibility. Accordingly, having rejected GM’s argument on this point, the court
will deny GM’s motion for summary judgment.
B.
Campbell’s Motion for Partial Summary Judgment on Causation
Campbell moved for partial summary judgment on the issue of causation.
She asserts that GM has failed to produce evidence in support of its “diving” theory
of causation – that Campbell’s injuries were not caused by roof collapse, but instead
by Campbell’s body colliding with the roof during the roll. For the reasons to be
discussed, the court concludes that a genuine dispute of material fact exists as to
the cause of Campbell’s injuries, and therefore her motion for partial summary
judgment will be denied.
A brief discussion of the parties’ competing theories is warranted before
proceeding to the merits. Campbell postulates, as has been thoroughly discussed
supra, that her injuries were caused by intrusion of the Jimmy’s roof into the
passenger cabin as the vehicle rolled, and that if the roof had been designed with a
higher SWR, her injuries would have been less serious or perhaps even nonexistent.
GM’s theory, supported in part by its biomechanical expert Dr. Debora Marth, is
that Campbell fractured her C6 and C7 vertebrae when her “head (augmented by
her torso) . . . [struck] the right roof rail/roof panel area when that part of the roof
impacted the ground . . . [and that] the significant deformation of the roof occurred
after the injury.” (Doc. 24 at 5 (internal quotation marks and emphasis omitted)).
26
GM’s theory may generally be referred to as a “diving” or “torso augmentation”
theory of injury, meaning that Campbell “dove” into the roof.
Campbell argues that the NHTSA has “conclusively determined” that vehicle
roof crush causes the types of injuries that she suffered, and that this finding
forecloses GM’s diving theory of causation. (See generally Doc. 6). In support of
her position, Campbell recounts a lengthy history of the development of NHTSA’s
roof crush standard, including some of the research that the NHTSA relied on in
formulating the standard. She also cites her own expert reports to support her
argument that in this case, and in rollover accidents more broadly, roof crush can
cause the type of head and neck injuries that she suffered in the rollover. However,
Campbell’s lengthy motion amounts simply to arguing the weight of the evidence,
an issue which is inappropriate for resolution under Federal Rule of Civil
Procedure 56.
Campbell refers to a notice of proposed rulemaking (“NPRM”), published by
the NHTSA in 2005. See Federal Motor Vehicle Safety Standards; Roof Crush
Resistance, 70 Fed. Reg. 49223 (proposed Aug. 23, 2005). The NHTSA proposed
increasing the required roof SWR from 1.5 times the weight of the vehicle, to 3
times its weight, and to extend the standard to those vehicles with a gross vehicle
weight rating (“GVWR”) of between 6,000 and 10,000 pounds. The agency discussed
a 1994 study conducted to consider if roof intrusion was related to the severity of
occupant injury, and observed that the study found a “relationship between the
amount of roof intrusion and the risk of injury to belted occupants in rollover
27
events.” Id. at 49231; see also id. at 49229 (observing that “some occupants” that
sustained injuries in crashes where the vehicle rolled more than one-quarter turn
or end-over-end “could potentially benefit from upgrading the roof crush resistance
requirements”). Importantly, the NHTSA did not find that roof crush was the
exclusive cause of head and neck injuries in rollover crashes, nor did it categorically
exclude diving or torso augmentation as a potential cause of injury.
The NHTSA promulgated a final rule on May 12, 2009, and addressed
comments offered by the automobile industry on the causal relationship between
roof crush and serious injury. Federal Motor Vehicle Safety Standards; Roof Crush
Resistance; Phase-In Reporting Requirements, 74 Fed. Reg. 22348, 22378-79 (final
rule promulgated May 12, 2009) (codified at 49 C.F.R. §§ 571, 585). Auto
manufacturers criticized the agency’s reliance on a study that linked roof intrusion
and serious injury, and commented that a statistical correlation did not establish a
causal relationship between the two. Id. The agency agreed, to an extent,
acknowledging that “as a general principle, a statistical correlation does not in itself
prove that a causal relationship exists.” Id. at 22379. The agency further stated:
There are logical reasons to believe that a collapsing roof that strikes
an occupant’s head at the nearly instantaneous impact velocity
experienced when structures deform might cause serious injury. . . .
The agency believes that the statistically significant relationship
between roof intrusion and belted occupant injury found in the
Strashny [roof intrusion] study indicates not just a suggestion, but a
probability that increasing roof strength reduces injuries.
Id. Nothing contained in the agency’s response suggests that the final rule
categorically excluded torso augmentation or diving as a cause of head and neck
28
injury in a rollover crash. To the contrary, the NHTSA’s response was resolutely
probabilistic. Furthermore, Campbell has shown nothing in the NHTSA’s
regulations that would suggest that the agency’s study of roof crush injuries could
prevent a party from presenting at trial evidence of an alternative explanation.4
Campbell’s assertion that GM’s diving theory has been foreclosed by the NHTSA is
therefore without merit.
In support of her motion, Campbell relies upon a report from the Insurance
Institute for Highway Safety (“IIHS”), her own experts’ reports, and a rollover
crash study conducted by the Accident Research Center. (See, e.g., Doc. 12 at 19-20
(discussing an IIHS report stating that the “association between vehicle roof
strength and occupant injury risk in rollover crashes appears robust across
different vehicle groups and across roof SWR values”); id. at 21 (report of Dr.
Perrone that “the Jimmy is among the worst of all possible vehicles regarding roof
strength”)). Despite the volume of evidence that she has amassed in her favor, GM
4
Campbell asserts that the NHTSA’s conclusion that roof crush is a cause of
injury is entitled to deference under Chevron v. National Resources Defense
Council, 467 U.S. 837 (1984). In Chevron, the Supreme Court held that courts must
give deference to an agency’s reasonable interpretation of the statute that it
administers. Id. at 842-43; see also Swallows Holding, Ltd. v. C.I.R., 515 F.3d 162,
167 (3d Cir. 2008) (“In Chevron, the Supreme court reasoned that the judiciary was
to afford an agency discretion to interpret ambiguous provisions of the agency’s
organic or enabling statute.”). The court disagrees with Campbell’s argument that
the NHTSA conclusively determined that roof crush is the exclusive cause of head
and neck injury in rollover collisions and, therefore, it is unnecessary to address her
Chevron argument.
29
has produced contrary evidence. It is the province of the jury to determine the
merits of the parties’ competing theories.
GM’s evidence includes the report of its biomechanical expert Dr. Marth,
who concludes:
Callan Campbell’s head was close to or in contact with the right roof
rail/roof panel area when that part of the roof impacted the ground.
Specifically, the high left parietal area of her head was near the rear
portion of the roof rail and grab handle. When this occurred, her
buttocks were not compressing the seat cushion. With her head and
the roof stopped on the ground, her torso, in accordance with the laws
of physics, continued toward the ground producing a compressive load
to her neck. The compressive load caused her cervical spine to buckle,
with portions subjected to local flexion and portions subjected to local
extension. . . . The significant deformation of the roof occurred after
the injury.
(Expert Report of Dr. Debora Marth, Doc. 24-1 at 11-12). Dr. Marth opines that,
while the Jimmy was rolling, Campbell “would have moved up and out in response
to centrifugal force.” (Id. at 10). Campbell would have moved off of her seat, and
when the vehicle roof impacted the roadway “her head would have essentially been
stopped on the ground with the roof in between.” (Id.) Dr. Marth’s report creates a
triable issue of fact as to whether Campbell’s injuries were caused by roof crush, or
by Campbell “diving” in to the roof.
Campbell argues in the alternative that even if the court accepts the
plausibility of GM’s diving theory, summary judgment in Campbell’s favor is
warranted because GM contends that she suffered a compression fracture, and her
“teardrop” fracture is not a form of compression fracture. Again, Campbell’s
argument is thwarted by factual issues that must be determined by the jury. GM’s
30
experts plainly contradict her assertion that a “teardrop” fracture cannot be caused
by a compressive load on the neck. In his expert report, GM witness Dr. Robert
Nightingale describes the type of injury that Campbell sustained:
The CT of her neck showed bilateral jumped facets at C6-C7 with an
associated teardrop fracture of C7. . . . There were also some bony
fragments posterior to C6. According to the MRI, there was cord
compression and contusion at C6-7, damage to the posterior ligaments,
and bleeding anterior to the vertebral bodies. All these are consistent
with the total joint disruption that is characteristic of bilateral facet
dislocations.
(Expert Report of Dr. Robert Nightingale, Doc. 24-5 at 4). Dr. Nightingale then
explains that the “mechanism for the bilateral facet dislocation is now understood
to be caused by local shear and bending secondary to neck compression and
buckling.” (Id. at 5 (emphasis added)). He concludes that when the Jimmy landed
on its roof, “both the roof and Ms. Campbell’s head were abruptly stopped and her
cervical spine was subjected to the kinetic energy of her torso. Within 15
milliseconds, the inertia of her body fractured her neck.” (Id. at 6). He opines that
Campbell suffered “a classic compression-flexion neck injury at one of the most
commonly injured levels of the cervical spine.” (Id.) Thus, GM has produced
evidence that the type of “teardrop” fracture suffered by Campbell may be caused
by compression forces acting on the cervical spine.
As a final argument, Campbell asserts that it is “undisputed” that she tucked
her head, neck, and back in toward the driver’s seat as the Jimmy rolled, and that
in this position, her injuries could not have been caused by torso augmentation.
(Doc. 12 at 44). Campbell refers to a portion of the deposition of Jeffrey Croteau,
31
GM’s corporate designee, who when questioned about whether Campbell could
have sustained a diving injury if she had tucked her head and neck in, stated:
I would say that if we were to – first of all, I believe that she remembers
that she was to the left and I believe that that particular memory is
during the trip phase, okay, and then the vehicle rotates around
her. . . . If that’s the case, then she is not going to be aligned such that
she is projected through torso augmentation into the roof with the
velocity and in orientation that will yield the compressive load on the
neck that I understand would case a cervical spine to fracture.
(Dep. of Jeffrey Croteau, Doc. 24-4 at 4). Campbell suggests that this statement is a
concession that Campbell was in a position in which she could not have suffered a
compression fracture, and that GM has adduced no other evidence to refute this
concession. Both assertions are plainly incorrect. First, Mr. Croteau’s response
assumes, for the purpose of a hypothetical question, that Campbell’s recollection is
correct; he is not conceding that it is. Second, Dr. Marth opines in her report that
centrifugal force would have moved Cambpell’s body upward and outward, striking
her head against the roof. (Expert Report of Dr. Debora Marth, Doc. 24-1 at 10).
Finally, as GM correctly points out, Campbell’s recollection of her body position is
refuted by her own experts. Dr. Pugh, Campbell’s biomechanical expert, testified at
his deposition that “I don’t believe her butt was necessarily securely in the seat
because I believe there was some seat belt slack. And she said that she was – she
had tried to bunch herself up or something. I – I don’t – I don’t think she was able to
curl herself up into a ball. She wasn’t – you know, just – just wasn’t enough time to
do that.” (Dep. of Dr. James Pugh, Doc. 24-2 at 3). Contrary to Campbell’s
assertions, a material factual dispute exists as to her body position during the
32
rollover accident. This issue is therefore inappropriate for resolution on a motion
for summary judgment.
In the alternative, Campbell requests that the court preclude GM from
offering evidence in support of its diving theory at trial, on the grounds that the
theory has been “thoroughly debunked,” and because the theory is premised on
existence of a compression fracture, which is not the type of fracture that Campbell
suffered. (Doc. 12 at 48). For the reasons discussed with respect to Campbell’s
motion for partial summary judgment, the court deems it inappropriate to preclude
GM from presenting evidence in support of its theory.
For the reasons previously discussed, there exists a genuine dispute of
material fact as to the cause of Campbell’s injuries, and therefore she is not entitled
to judgment as a matter of law. Accordingly, Campbell’s motion for partial
summary judgment on the issue of causation will be denied.
C.
GM’s Motion for Partial Summary Judgment on Punitive Damages
GM filed a motion for partial summary judgment on Campbell’s claim for
punitive damages. GM argues that Michigan law governs Campbell’s claim for
punitive damages, and that because Michigan law precludes recovery of punitive
damages against manufacturers of consumer products, Campbell’s request for
punitive damages must be dismissed. As alternative arguments, GM asserts that
equity compels enjoining punitive damages because GM is a liquidating debtor, and
punitive damages would pointlessly deplete GM’s resources for subsequent
33
creditors, and that in any event, Campbell has failed to produce evidence sufficient
to create a disputed issue of material fact as to punitive damages.
i.
Choice of Law Rules
Before determining whether the court should apply Pennsylvania or
Michigan law governing punitive damages, the court must determine what choice of
law rules apply. Federal courts sitting in diversity are obliged to apply the choice of
law rules of the forum state, i.e., the state in which the district court sits. See
LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069, 1071 (3d Cir. 1996). However, the court’s
jurisdiction in this case is not premised on diversity of citizenship of the parties, as
both Campbell and Fawber are citizens of Pennsylvania. Rather, the court’s
jurisdiction is conferred pursuant to 28 U.S.C. § 1334(b), which grants the district
courts original – but not exclusive – jurisdiction over all “civil proceedings arising
under title 11, or arising in or related to cases under title 11.”
Courts are split as to whether a federal court sitting in bankruptcy is
required to apply the choice of law rules of the forum in which it sits, or federal
choice of law rules, a species of federal common law. See 19 CHARLES ALAN WRIGHT
& ARTHUR R. MILLER , FEDERAL PRACTICE & PROCEDURE § 4518 (2d ed. 1987)
(database updated Dec. 2012); see also In re Gaston & Snow, 243 F.3d 599, 605 (2d
Cir. 2001). In In re Lindsay, 59 F.3d 942, 948 (9th Cir. 1995), the Ninth Circuit held
that in “federal question cases with exclusive jurisdiction in federal court, such as
bankruptcy, the court should apply federal, not forum state, choice of law rules.”
The court further reasoned that the need to avoid forum shopping between state
34
and federal courts, which counsels in favor of applying state law, is not implicated
in matters where federal courts have exclusive jurisdiction. Id.; accord In re Vortex
Fishing Systems, Inc., 277 F.3d 1057, 1069 (9th Cir. 2002) (“In a bankruptcy case, the
court must apply federal choice of law rules.”); Wallace Lincoln-Mercury Co., Inc. v.
Gentry, 469 F.2d 396, 300 (5th Cir. 1972). In the Third Circuit, the Bankruptcy
Court for the Eastern District of Pennsylvania has held that when a dispute
involving federal substantive law arises in bankruptcy litigation, federal common
law principals will govern. In re August, 448 B.R. 331, 348 (Bankr. E.D. Pa. 2011).
Other courts have disagreed, extending to bankruptcy cases the holding of
Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496-97 (1941), which
held that when sitting in diversity, a federal court must apply the conflict of laws
rules of the state in which it sits. In In re Merritt Dredging Co., Inc., 839 F.2d 203
(1988), the Fourth Circuit addressed whether the law of South Carolina or of
Louisiana governed determination of the property rights in the assets of a bankrupt
estate. Id. at 205. The court noted that the “Klaxon rule rested on the rationale
that a federal court, in determining state law issues which arise in federal court only
by the accident of diversity, must apply state law, including state conflict of law
rules, to those issues.” Id. Applying forum state rules governing conflicts of law
would be in accordance with the principles underlying both Klaxon and Erie R. Co.
v. Tompkins, 304 U.S. 64 (1938), which made clear that “federal law may not be
applied to questions which arise in federal court but whose determination is not a
matter of federal law.” See In re Merritt, 839 F.2d at 206; id. (“[e]xcept in matters
35
governed by the Federal Constitution or by Acts of Congress, the law to be applied
in any case is the law of the State.” (quoting Erie, 304 U.S. at 78)); id. (“It would be
anomalous to have the same property interest governed by the laws of one state in
federal diversity proceedings and by the laws of another state where a federal court
is sitting in bankruptcy.”); accord In re Gaston & Snow, 243 F.3d 599, 607 (2d Cir.
2001) (agreeing with the Fourth Circuit and holding that “bankruptcy courts
confronting state law claims that do not implicate federal policy concerns should
apply the choice of law rules of the forum state”).
The matter at bar differs somewhat from both lines of authority. First, unlike
In re Merritt, this case could not have originated in federal court as a diversity
action, because the parties are not completely diverse of citizenship. See In re
Merritt, 839 F.2d at 206. Second, this case does not arise out of bankruptcy
proceedings per se, but rather has been removed to federal court based upon the
court’s ability to hear cases “related to” a bankruptcy. See U.S.C. § 1334(b).
However, even with these distinctions in mind, the court is persuaded by the
reasoning of the Fourth and Second Circuits, and will apply forum state choice of
law rules.
Several justifications undergird the court’s holding. First, as the Fourth
Circuit trenchantly observed in In re Merritt, the rule in Klaxon was predicated on
the notion that something as fortuitous as “the accident of diversity” should not
stop a federal court from applying state conflicts rules. 839 F.2d at 205. This matter
arrived in federal court by a path equally as accidental as diversity. The parties
36
litigated this case in the Court of Common Pleas of Lackawanna County for several
years before removal. Campbell filed her complaint on August 31, 2005. When GM
filed for bankruptcy on June 1, 2009, the case was automatically stayed, and
remained so until May 31, 2011, when the bankruptcy court lifted the stay. Only
then did a basis for federal court jurisdiction arise, upon which GM removed. But
for the bankruptcy filing, this matter would have been resolved by Pennsylvania
state courts.
Second, the claims in this case arise exclusively out of Pennsylvania law.
Campbell alleges state law negligence against Fawber (Count I), and state law strict
liability and negligence against GM (Counts II and III, respectively). It is for this
reason that the court’s holding is not in tension with our sister district’s decision in
In re August, 448 B.R. 331, 347-48 (Bankr. E.D. Pa. 2011). There, the court was
required to decide whether an unpaid line of credit from a casino could be
discharged by a debtor in bankruptcy under 11 U.S.C. §§ 523(a)(2) and (6), when
Pennsylvania and New Jersey laws differed as to whether gambling debts could be
enforced. The court recognized that state law generally determines whether a debt
is enforceable against a debtor. 448 B.R. at 347. Whether the debt was enforceable
directly implicated an issue of federal substantive law, because if the obligation was
unenforceable, then there was no “debt” that could be discharged under 11 U.S.C.
§ 523(a). The litigation involved a dispute arising out of federal substantive law, and
37
therefore federal choice of law rules governed. Id. at 348. No such federal
substantive concern is implicated in the instant matter because the claims that
Campbell brings arise wholly out of state law.
Third, the facts of the instant matter are distinguishable from the facts of In
re Lindsay, 59 F.3d 942 (9th Cir. 1995). There, the Ninth Circuit held that “in
federal question cases with exclusive jurisdiction in federal court, such as
bankruptcy,” federal choice of law rules should apply. Id. at 948 (emphasis added).
When a case can only be litigated in federal court, the concern against forum
shopping does not apply. Id. This rationale is not implicated in the instant matter.
District courts have concurrent jurisdiction with state courts over matters “related
to” bankruptcy. 28 U.S.C. § 1334(b) (“the district courts shall have original but not
exclusive jurisdiction” over matters “related to” a bankruptcy). Thus, concerns
arising from possible forum shopping are not ameliorated in the instant matter by
exclusive federal jurisdiction.
For all of these reasons, the court is persuaded that Pennsylvania’s choice of
law rules, rather than federal common law, must govern the court’s analysis.
ii.
Whether Pennsylvania or Michigan Law Regarding Punitive Damages
Applies
Pennsylvania’s choice of law methodology is a flexible approach, combining
“contacts” analysis and “interest” analysis. See Kelly v. Ford Motor Co., 933 F.
Supp. 465, 467-68 (E.D. Pa. 1996); see also Carrick v. Zurich-American Ins. Group,
14 F.3d 907, 909-10 (3d Cir. 1994); Griffith v. United Air Lines, Inc., 203 A.2d 796 (Pa.
38
1964). A threshold issue exists, however, as to whether a “true conflict’ or a “false
conflict” exists between the laws of the two jurisdictions. A false conflict exists
when “only one jurisdiction’s governmental interests would be impaired by the
application of the other jurisdiction’s law.” Lacey v. Cessna Aircraft Co., 932 F.2d
170, 187 (3d Cir. 1991). By contrast, a “real” or “true” conflict exists when the
interests of both jurisdictions would be impaired if its were law not applied. Id.
n.15. If a true conflict exists, the court must determine which state has the greater
interest in having its law applied; if a false conflict exists, then the court must apply
the law of the state whose interests would be harmed. Id.
Pennsylvania permits plaintiffs to collect punitive damages against
defendants in order to deter outrageous conduct. See, e.g., Weston v. Northampton
Personal Care, Inc., — A.3d —, 2013 WL 474701, at *63-64 (Pa. Super. 2013).
Michigan, on the other hand, prohibits the collection of punitive damages. See
Fellows v. Superior Products, Co., 506 N.W.2d 534, 536 (Mich. Ct. App. 1993). In
Kelly, the Eastern District of Pennsylvania faced the identical issue presented here,
namely, whether Pennsylvania choice of law rules required applying Michigan’s
prohibition on punitive damages to a products liability case arising out of an
automobile accident. The court reasoned that a true conflict existed because
punitive damages are intended to punish the defendant for outrageous conduct,
and Michigan’s prohibition of punitive damages was intended to shield “Michigandomiciled defendants from excessive financial liability.” Kelly, 933 F. Supp. at 468
(citing In re Disaster at Detroit Metro. Airport on August 16, 1987, 750 F. Supp. 793,
39
805 (E.D. Mich. 1989). The court agrees that a true conflict exists between Michigan
and Pennsylvania law, and so a contacts and interest analysis must be performed.
Pennsylvania courts have turned to the Second Restatement of Conflict of
Laws for guidance in evaluating a state’s “contacts” with a case. Carrick, 14 F.3d at
909. These factors may include: (1) “the place where the injury occurred;” (2) “the
place where the conduct causing the injury occurred;” (3) “the domicil, residence,
nationality, place of incorporation and place of business of the parties;” and (4) “the
place where the relationship, if any, between the parties is centered.”
RESTATEMENT (SECOND ) OF CONFLICT OF LAWS § 145(2). The contacts must be
evaluated on a “qualitative rather than quantitative scale.” Cipolla v. Shaposka, 267
A.2d 854, 857 (Pa. 1970).
Campbell asserts that a conflicts analysis is unnecessary, because GM has
“voluntarily agreed to be subjected to Pennsylvania law to the same extent as if it
were incorporated in Pennsylvania by choosing to conduct its business in the
Commonwealth.” (See Doc. 22 at 9). Campbell directs the court’s attention to a
Certificate of Authority to conduct business within Pennsylvania, issued to GM on
December 29, 1941. (See Doc. 22-2). Pursuant to 15 PA . CONS. STAT . § 4142,
A qualified foreign business corporation, so long as its certificate of
authority is not revoked, shall enjoy the same rights and privileges as a
domestic business corporation, but no more, and, except as in this
subpart otherwise provided, shall be subject to the same liabilities,
restrictions, duties and penalties now in force or hereafter imposed upon
domestic business corporations, to the same extent as if it had been
incorporated under this subpart.
40
Id. (emphasis added). Campbell argues that by holding a Certificate of Authority,
GM has voluntarily subjected itself to Pennsylvania’s laws, including the availability
of punitive damages. The court disagrees.
As GM correctly observes, the purpose of a Certificate of Authority is to bring
foreign corporations within the reach of legal process, as well as Pennsylvania’s tax
laws. Hoffman Const. Co. v. Erwin, 200 A. 579, 580 (Pa. 1938). A corporation is also
required to hold a Certificate of Authority in order to maintain “any action or
proceeding” in Pennsylvania. 15 PA. CONS. STAT . § 4141(a). However, nothing in
Pennsylvania’s Foreign Business Corporations Law suggests that issuance of a
Certificate of Authority would supplant Pennsylvania’s choice of law analysis.
Rather, the issuance of a Certificate of Authority is simply one factor to be
considered amongst others. See RESTATEMENT (SECOND ) OF CONFLICT OF LAWS §
145(2)(c) (stating that a party’s “domicil, residence, nationality, place of
incorporation, and place of business” are relevant factors to consider in a choice of
law analysis).
Campbell’s reliance on Oil Shipping B.V. v. Sonmez Denizcilek Ve Ticaret
A.S., 10 F.3d 1015 (3d Cir. 1993), is misplaced. In Oil Shipping, the Third Circuit
recognized that, before engaging in a conflict of laws analysis, a court should first
determine whether a statute preempts the analysis and dictates what law the court
should apply. Id. at 1019. The court determined that the Ship Mortgage Act of
1920, ch. 250, 41 Stat. 1000 (1920) (codified as amended at 46 U.S.C. § 31301-31343),
preempted a choice of law analysis to determine whether Turkish or American law
41
governed maritime mortgage lien priority. Id. at 1023-24. To reach this decision,
the court relied extensively upon the Ship Mortgage Act’s language and legislative
history. Id. Notwithstanding Campbell’s unsupported assertions to the contrary,
Pennsylvania’s Foreign Business Corporations Law does not evince legislative
intent to preempt a traditional conflicts analysis.
In Kelly, the Eastern District of Pennsylvania reasoned that when the subject
of a conflict of laws is punitive damages, the residence of the plaintiff and the
location of the injury are not relevant contacts, because the purpose of punitive
damages is not to compensate for injury but to punish and deter outrageous
conduct. Kelly, 933 F. Supp. 465, 469 (E.D. Pa. 1996). Accordingly, the most
relevant contacts are the location where the allegedly outrageous conduct took
place, and the state of incorporation and principal place of business of the
corporation involved. Id. (“If the primary purpose of the tort rule involved is to
deter or punish misconduct . . . the state where the conduct took place may be the
state of dominant interest and thus that of most significant relationship.” (quoting
RESTATEMENT (SECOND ) OF CONFLICT OF LAWS § 145 cmt. c)).
The relevant contacts weigh in favor of applying Michigan law on the issue of
punitive damages. GM is incorporated in Delaware, but maintains its principal
place of business in Detroit, Michigan. (Doc. 1 at 17); see § 145 cmt. e (“[A]
corporation's principal place of business is a more important contact than the place
of incorporation, and this is particularly true in situations where the corporation
does little, or no, business in the latter.”). GM “designed, engineered, and made all
42
of the significant decisions concerning the design and engineering” of the Jimmy in
Michigan. (Affidavit of Carl Lange, Doc. 31 at 1). Campbell brings a defective
design claim, which means that the place of the allegedly outrageous conduct was
the state in which the Jimmy was designed – Michigan. Michigan therefore has the
most relevant contacts under Pennsylvania choice of law rules.
With respect to the “interest” prong of Pennsylvania’s choice of law analysis,
Kelly is once again instructive. Michigan has a strong interest in “seeing that its
domiciliary defendants are protected from excessive financial liability,” in order
that it may induce firms to conduct business within its borders. Kelly, 933 F. Supp.
at 471. Pennsylvania has a valid interest in allowing punitive damages, in order
that it may punish those whose outrageous conduct injure its residents, and deter
others from acting similarly. RESTATEMENT (SECOND ) OF TORTS § 908(1).
Pennsylvania and Michigan both have strong policy interests in having their
punitive damages law applied to the instant matter. However, particularly in light
of the unique purpose of punitive damages, Michigan has more significant contacts,
and so Michigan law must be applied to this issue. The court’s decision, however, is
limited strictly to the issue of punitive damages. See Berg Chilling Systems, Inc. v.
Hull Corp., 435 F.3d 455, 462 (3d Cir. 2006) (“Because choice of law analysis is issuespecific, different states’ laws may apply to different issues in a single case, a
principle known as ‘depecage.’”); see also Taylor v. Mooney Aircraft Corp., 265 Fed.
App’x 87, 91 (3d Cir. 2008) (“Although Pennsylvania courts have not explicitly
addressed it, this Court has assumed that Pennsylvania’s choice of law analysis
43
employs depecage. . . .”). Pennsylvania law will control for all remaining issues in
this matter.
Michigan law governs on the issue of punitive damages, and Michigan law
precludes the recovery of punitive damages. Accordingly, GM’s motion for partial
summary judgment as to punitive damages will be granted.
V.
Conclusion
For the aforementioned reasons, the court will deny GM’s motion for
summary judgment and Campbell’s motion for partial summary judgment, and will
grant GM’s motion for partial summary judgment.
An appropriate order will issue.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
Dated:
March 29, 2013
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CALLAN CAMPBELL,
Plaintiff,
v.
HOLLY F. FAWBER, and
GENERAL MOTORS
CORPORATION,
Defendants
:
:
:
:
:
:
:
:
:
Civil Action No. 1:11-1215
(Judge Conner)
ORDER
AND NOW, this 29th day of March, 2013, upon consideration of the motions
for partial summary judgment, filed by defendant Motors Liquidation Company
GUC Trust (formerly known as General Motors Corporation, and hereinafter
referred to as “GM”) (Doc. 14), and plaintiff Callan Campbell (“Campbell”) (Doc.
11), and a motion for summary judgment (Doc. 17) filed by GM, and for the reasons
discussed in the accompanying memorandum, it is hereby ORDERED that:
1.
GM’s motion for summary judgment (Doc. 17) is DENIED.
2.
Campbell’s motion for partial summary judgment (Doc. 11) is
DENIED.
3.
GM’s motion for partial summary judgment on the issue of punitive
damages (Doc. 14) is GRANTED.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
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