Todd et al v. Ford Motor Co Inc

Filing 107

ORDER granting #90 Motion for Summary Judgment. Signed by Honorable Joseph F Anderson, Jr on 01/17/2013.(bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Marvin J. Todd and Carolyn D. Todd,
Plaintiffs,
vs.
Ford Motor Co.,
Defendant.

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C/A No.: 3:10-cv-787-JFA

ORDER ON MOTION
FOR SUMMARY JUDGMENT

This matter comes before the court on Defendant Ford Motor Company’s Motion
for Summary Judgment. (ECF No. 90). The Plaintiffs oppose the motion.1 For the
reasons that follow, this court grants the motion for summary judgment.
I.

Facts and Procedural History
Plaintiffs initiated these proceedings by filing their Summons and Complaint with

the court on March 29, 2010. In their initial pleading, Plaintiffs asserted strict liability,
negligence, breach of warranty, and loss of consortium claims against Ford stemming
from injuries sustained in a March 31, 2007 motor vehicle collision. At this point, the
Plaintiffs have amended their pleadings to include a failure to warn claim.
The accident at issue in this case occurred in the northbound lane of U.S. Highway
1 in Lexington County when non-party Katherine Toth improperly attempted to pass to

1
The court notes that the Plaintiffs initially had counsel who managed this case and filed pleadings on
their behalf. However, unfortunately for the Plaintiffs, the primary attorney in their case had his law
license temporarily revoked and was forced to withdraw from this case in June of 2012. Soon after, his
firm disbanded, and his former law partners and associates also withdrew. On several occasions, the
court extended the deadlines in this case to allow the Plaintiffs to find substitute counsel, but they were
unable to do so. As such, the Plaintiffs are now proceeding pro se.

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her left, crossed the center line into the Plaintiffs’ lane of travel and struck their vehicle
essentially head-on. Through this action, Plaintiffs are attempting to recover for the
injuries that Mrs. Todd sustained in the accident, which they claim resulted from a design
or manufacturing defect in the passenger restraint system of their 1995 Mercury
Mystique.

Mr. Todd has also asserted claims for negligent infliction of emotional

distress and for loss of consortium. Ford has denied the defect allegations and has
asserted numerous substantive defenses grounded in South Carolina product liability law.
On October 24, 2012, the Defendant filed this Motion for Summary Judgment.
Because the Plaintiffs are proceeding pro se, the court then issued an order pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), to the Plaintiffs directing them to
file a response by December 3, 2012 and further instructing them on summary judgment
procedure. In response to the Motion for Summary Judgment, the Plaintiffs filed the
report of Kenneth Brown, an expert who they retained to evaluate the design, usage, and
performance of the occupant restraint systems in the Todd’s 1995 Mercury Mystique.
The Plaintiffs also filed two other documents relating to vehicle safety that appear to have
been created by random law firms.
II.

Legal Standard
A.

Summary Judgment

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be rendered when a moving party has shown that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The court must determine whether the evidence presents a sufficient disagreement to
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require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). Summary
judgment should be granted in those cases where it is perfectly clear that there remains no
genuine dispute as to material fact and inquiry into the facts is unnecessary to clarify the
application of the law. McKinney v. Bd. of Trustees of Mayland Community College, 955
F.2d 924, 928 (4th Cir. 1992). In deciding a motion for summary judgment, “the judge’s
function is not himself to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
B.

Products Liability

Pursuant to South Carolina law, a plaintiff may bring a product liability action
under alternative theories, including negligence, strict liability, and warranty. Talkington
v. Atria Reclamelucifers Fabrieken BV (Cricket BV), 152 F.3d 254, 261 (4th Cir. 1998).
“In South Carolina, ‘to recover under a strict liability theory, the plaintiff must establish
that: (1) the defendant’s product was in a defective condition unreasonable dangerous for
its intended use; (2) the defect existed when the product left the defendant’s control; (3)
the defect was the proximate cause of the injury sustained.’” Id. at 263 (quoting Bragg v.
Hi-Ranger, Inc., 462 S.E.2d 321, 328 (S.C. Ct. App. 1995)). On the other hand, to
recover under negligence, “a plaintiff must prove three elements: ‘(1) a duty of care owed
by the defendant to the plaintiff; (2) a breach of that duty by a negligent act or omission;
and (3) damage proximately resulting from the breach of duty.’” Id. (quoting Rickborn v.
Liberty Life Ins. Co., 468 S.E.2d 292, 298 (1996)). “In most design-defect cases, the
proof under the two theories will dovetail . . . .” Id.
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“A supplier and manufacturer of a product are liable for failing to warn if they
know or have reason to know the product is or is likely to be dangerous for its intended
use; they have no reason to believe the user will realize the potential danger; and, they
fail to exercise reasonable care to inform of its dangerous condition or of the facts which
make it likely to be dangerous.” Livingston v. Noland Corp., 362 S.E.2d 16, 18 (S.C.
1987) (citing Gardner v. Q.H.S., Inc., 448 F.2d 238 (4th Cir. 1971)).
The South Carolina Supreme Court has held “that the exclusive test in a products
liability design case is the risk-utility test with its requirement of showing a feasible
alternative design.” Branham v. Ford Motor Co., 701 S.E.2d 5, 14 (S.C. 2010). At the
same time, South Carolina adheres to the “longstanding” principle “that a product is not
in a defective condition unreasonably dangerous merely because it ‘can be made more
safe.’” Id. at 16 (quoting Marchant v. Mitchell Distrib. Co., 240 S.E.2d 511 (S.C.)).
Thus, “[i]n sum, in a product liability action, the plaintiff must present evidence of a
reasonable alternative design. The plaintiff will be required to point to a design flaw in
the product and show how his alternative design would have prevented the product from
being unreasonably dangerous.” Branham, 701 S.E.2d at 16.
III.

Analysis
Ford believes that it is entitled to judgment as a matter of law on both the

manufacturing or design defect claim and the failure to warn claim. In support of its
arguments, Ford cites the deposition testimony of the following Plaintiffs’ experts:
Kelly B. Kennett, with InSciTech, Inc. in Suwanee, Georgia. Plaintiffs
disclosed Kennett as their retained biomechanical engineer and expect him
to testify regarding Mrs. Todd’s mechanism of injury.
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Kenneth A. Brown, with Forensic Safety Group in Willow Grove,
Pennsylvania. Brown’s report, which was submitted by the Plaintiffs as
part of their Response, states that he was retained to “investigate the design,
use, and performance of the occupant protection systems, including the
seatbelt and seat, being used by Mr. and Mrs. Todd at the time of the
crash.”
Kenneth R. Laughery, Ph.D., of Janesville, Wisconsin. Plaintiffs disclosed
Laughery as their expert on “human factors and warnings issues.”
Though not submitted as part of the Plaintiffs’ Response to the Motion for Summary
Judgment, the court has taken upon itself to review the reports of these experts and the
reports of the other experts previously disclosed by the Plaintiffs.2

Despite this

comprehensive review, the court finds that summary judgment is appropriate in this case.
A.

Manufacturing or Design Defect

Defendant argues that the passenger restraint system installed in the Todd’s 1995
Mercury Mystique was free from any manufacturing or design defect. And, according to
their deposition testimony, none of the Plaintiffs’ experts were able to identify any
manufacturing or design defect in the passenger restraint system in the Todd’s 1995
Mercury Mystique.
As the retained expert on Mrs. Todd’s mechanism of injury, Kennett was unable to
articulate any malfunctions in or flaws with the seatbelt webbing, the seatbelt hardware,
or the passenger side airbag that resulted in Mrs. Todd’s injuries. Rather, Kennett

2
Fed. R. Civ. P. 56 states, “The court need consider only the cited materials, but it may consider other
materials in the record.” The Fourth Circuit has “recognized that, in assessing a summary judgment
motion, a district court is obliged to consider its ‘entire record.’” Sinclair v. Mobile 360, Inc., 417 F.
App’x 235, 242 (2011) (quoting Campbell v. Hewitt, Coleman & Associates, Inc., 21 F.3d 52, 55 (4th Cir.
1994)). The language of Rule 56 has changed since the Fourth Circuit first recognized that obligation—
nevertheless, this court found it appropriate to consider the entire record in making its decision.

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explained that Mrs. Todd’s morbid obesity “presents particular challenges in restraining
occupants like Mrs. Todd in frontal collisions.” (ECF No. 90-10, p. 33). He further
opined that those challenges would be present “for pretty much all comparable vehicles”
of which he is aware. Id. at p. 30.
Brown believes that the occupant restraint system in the 1995 Mercury Mystique
was not designed to protect a woman of Mrs. Todd’s size, and he opines that “Ford failed
to guard Mrs. Todd from the dangers associated with this foreseeable and otherwise
protectable crash.” (ECF No. 96-2, p. 8). However, in his deposition testimony, Brown
was unable to describe a guard for the system installed in the 1995 Mystique that Ford
could have implemented to protect overweight occupants like Mrs. Todd. Additionally,
though presented with a number of alternative design choices that Ford could have made
with regard to the seating and restraint system, Brown concedes that none of them would
have eliminated the potential for Mrs. Todd’s injuries in the accident.
Plaintiffs’ experts were unable to identify any design or manufacturing defect in
the 1995 Mercury Mystique that lead to Mrs. Todd’s injuries in this case. Moreover, no
expert volunteered any alternative design that could have prevented Mrs. Todd’s injuries.
Thus, this court finds in favor of the Defendant as to the manufacturing and design defect
claim.
B.

Failure to Warn

In the absence of any concrete design or manufacturing defect opinion, Brown
believes that Ford should have provided a warning to obese front seat passengers. In his
report, Brown states, “[h]ad Mrs. Todd been adequately warned that the vehicle was
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unable to protect her in foreseeable and otherwise protectable crash events, she would
have at least been alerted to the dangers she encountered in order to make other decisions
for her transportation needs.” (ECF No. 96-2, p. 9). In his deposition, Brown deferred to
Laughery, the Plaintiffs’ warnings/human factors expert, for the warning that should have
been conveyed.
In his report, Laughery states that “[t]he hazard restraint system failure associated
with excessively overweight seat occupants in a crash accident are not open and
obvious.” (ECF No. 56-3, p. 5). He also believes that the warning system in the 1995
Mystique to overweight passengers is inadequate and “virtually nonexistent.”

Id.

Laughery offers the following warning, which he believes would have been adequate if it
was prominently placed in the Owner Guide:
HAZARD – RESTRAINT SYSTEM MAY FAIL IF OCCUPANT IS
OVERWEIGHT
The seat belts and seat backs in this vehicle may fail to restrain overweight
occupants in frontal or rear end collisions. This safety issue is greater if
the seat occupant weighs more than XXX pounds, and the hazard
increases with higher weights.
In a frontal collision the restraint system failure will cause the occupant to
be thrust forward into the dash or windshield and suffer severe or fatal
injuries. Similarly, in a rear end collision the seat back may collapse
causing the occupant to be thrust backward with severe or fatal injury
outcomes.
(ECF No. 56-3, p. 7). Laughery notes, in his report, that the maximum safe weight is
stated as XXX pounds and submits that the appropriate value should be established
through testing by Ford.

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Ford points out that the Owner Guide does describe for passengers how safety
belts should be worn and it further warns passengers about the hazards involved in
wearing safety belts improperly.3 Neither Plaintiffs nor their experts dispute that these
warnings are adequate. Thus, Defendant contends that the only remaining question is
whether Ford should have provided an additional or alternative warning to overweight
occupants of the unique possibility of danger (forward excursion even when properly
belted) that might confront them in a frontal collision. Ford submits that, as to that
question, Laughery’s opinions are “woefully inadequate and should be disregarded.”
(ECF No. 90-1, p. 19).
Ford points out that in his own testimony Laughery admits that he is “assuming
that [vehicle testing] will identify, since it’s a measurable variable, what a safe or unsafe
weight is. And I don’t know what that number is, but that’s a number that, presumably,
is identifiable through testing and it could be a part of the warning system.” (ECF No.
90-12, p. 28). Laughery goes on to concede that it is not in his expertise as to whether

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The Owner Guide provides the following warning in bold and italicized text:
Make sure that you and your passengers, including pregnant women, wear safety belts.
Be sure that the lap belt portion of your safety belt fits snugly and as low as possible
around the hips. If safety belts are not used properly, the risk of you or your passengers
being injured in a collision greatly increases.
(ECF No. 90-14, p. 4). Elsewhere, the Owner Guide instructs users to “[m]ake sure that the lap belt is as
low around your hips as possible [and not to] wear the lap belt around your waist. If you do not use the
lap belts properly, the risk of being injured in a collision greatly increases.” (ECF No. 90-14, p. 5).

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there are any reliable, repeatable tests to allow a manufacturer to test for restraint
effectiveness on a 5’2”, 300-pound occupant—he merely assumes that it can be done.4
Additionally, Laughery could not be sure that his proposed warning would have
been heeded by the Plaintiffs. Based on Mrs. Todd’s own testimony, she did not review
any of the documentation for the Mercury Mystique.5

Thus, she would not have

encountered the proposed warning on her own, and Laughery is left to conclude that her
husband would have noticed the warning and brought it to her attention.
The deficiencies that Ford highlights in Laughery’s opinion and proposed warning
are fatal to Plaintiffs’ failure to warn claim. Plaintiffs have not presented evidence that
proper tests exist to determine the maximum passenger weight, and such lack of evidence
is particularly harmful to their failure to warn claim.
IV.

Conclusion
Based on the foregoing findings, this court hereby grants Defendant’s Motion for

Summary Judgment. (ECF No. 90). Accordingly, this case is dismissed with prejudice.
IT IS SO ORDERED.

January 17, 2013
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

4
Brown testified that it was possible to get a dummy in any size. However, “[w]hat you don’t get out of
that is you don’t necessarily get a biofidelic dummy. You don’t get a certified or a dummy that’s useable
for something, other than just size and weight.” (ECF No. 90-11, p. 4).
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In fact, Mrs. Todd was asked three times about whether she reviewed the Mercury Mystique
documentation, and she said, “[n]o” each time. At the hearing on the instant motion, Mrs. Todd stated
that she did, in fact, review the Owner Guide, but, given her clear deposition testimony, the court feels
constrained to find the contradictory statements made during the hearing “a sham issue of fact.”
Rohrbough v. Wyeth Laboratories, Inc., 916 F.2d, 970 (4th Cir. 1990). 

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