Opinion
No. 98 C 3875.
February 29, 2000.
MEMORANDUM OPINION AND ORDER
Mary K. Wheeler ("Wheeler"), Special Administrator of the Estate of Jessica Wheeler, brings a wrongful death action before this Court under diversity jurisdiction. On May 16, 1996, Wheeler's daughter Jessica died in a low-speed collision (approximately 8-10 miles per hour) with another car. Wheeler was driving a 1994 Plymouth Voyager manufactured by the Chrysler Corporation ("Chrysler") with Jessica in the front passenger seat. When the passenger-side front airbag deployed upon collision, Jessica Wheeler sustained fatal injuries. In her complaint against the Chrysler, Wheeler sets forth several theories of product liability: tort claims of strict liability and negligence for a design defect in the airbag and failure to warn of its hazards to small children (Counts I-IV), and strict liability in contract for breach of warranty (Counts V and VI). Before this Court is Chrysler's motion for summary judgment. For the reasons discussed herein, Chrysler's motion is denied.
I. Summary Judgment Standard
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Cox v. Acme Health Serv., Inc., 55 F.3d 1304, 1308 (7th Cir. 1995). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-movant, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).
The movant bears the burden of establishing that there exists no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995). If the movant meets this burden, the non-movant must set forth specific facts that demonstrate the existence of a genuine issue for trial. Rule 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Rule 56(c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552-53. A scintilla of evidence in support of the non-movant's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]."Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Weighing evidence, determining credibility, and drawing reasonable inferences are jury functions, not those of a judge deciding a motion for summary judgment. Anderson, 477 U.S. at 255, 106 S.Ct. at 2515.
II. Analysis
In diversity actions, federal courts apply federal procedural rules and state substantive law. See Bourke v. Dun Bradstreet Corp., 159 F.3d 1032, 1033 (7th Cir. 1998) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 (1938)). Thus, Illinois law governs the substantive issues in this case. Because Chrysler seeks summary judgment on all counts of Wheeler's complaint, the Court will begin with a discussion of the strict liability claims and will proceed onto the negligence and warranty claims.
A. Strict Liability in Tort
The law of strict product liability imposes upon manufacturers a nondelegable duty to make products that are reasonably safe.Baltus v. Weaver Div. of Kiddie Co., 199 Ill. App.3d 821, 829, 557 N.E.2d 580, 585 (Ill.App.Ct. 1990). To prevail in a strict liability action, a plaintiff must demonstrate that her injuries resulted from an unreasonably dangerous or defective condition which existed at the time the product left the manufacturer's control. Schultz v. Hennessy Indus., Inc., 222 Ill. App.3d 532, 540, 584 N.E.2d 235, 241 (Ill.App.Ct. 1991). A product may be unreasonably dangerous because of (1) a manufacturing or design defect; or (2) a manufacturer's failure to adequately warn of a danger posed by the product of which the average consumer would not be aware. Lamkin v. Towner, 138 Ill.2d 510, 528, 563 N.E.2d 449, 457 (Ill. 1990).
Wheeler presents two claims of strict liability in tort. First, she asserts that the design of the airbag in the 1994 Voyager, set to deploy in collisions at speeds of as low as eight to twelve miles per hour, the speed at which Wheeler was traveling at the time of the May 16, 1996, accident, is defective. Although she critiques many facets of the 1994 airbag design, Wheeler's primary contention is that the airbag should have had a higher deployment threshold. In low speed collisions, she contends, the airbag is unnecessary to preserve safety and instead presents a grave danger to its occupants. Second, Wheeler argues that Chrysler is strictly liable because it failed to include, on the visor of the 1994 Voyager, a warning about the risk of harm front seat airbags pose on small children. The defective design and failure to warn claims will be discussed in turn.
1. Design Defect
To reiterate, it is incumbent upon Wheeler to prove that (1) the air bag system was dangerously defective; (2) an injury resulted from a defect in the air bag system; and (3) the defect existed at the time the air bag left Chrysler's control. Haddix v. Playtex Family Prod. Corp., 138 F.3d 681, 683 (7th Cir. 1998) (stating Illinois law). The parties do not dispute that the alleged flaw in the airbag system existed at the time the Voyager left manufacturer's control. Instead, the controversy surrounds the first and second elements; namely, the existence of an unreasonably dangerous defect and proximate causation.
Where, as here, a plaintiff alleges that the design of a product is defective, Illinois law provides plaintiffs with two approaches by which to impose strict liability. A plaintiff may introduce evidence that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Lamkin, 138 Ill.2d at 529, 563 N.E.2d at 457. This method of proof has been called the "consumer-contemplation" or "consumer-expectation" test. Alternatively, a plaintiff may utilize the "danger-utility" or the "risk-benefit" test, which seeks to demonstrate that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in the design. Id.
a. Consumer Contemplation Test
Initially, Illinois law used the consumer-contemplation definition of an unreasonably dangerous product. Adopting the formulation set forth in § 402A of the Restatement (Second) of Torts, the Illinois courts deemed a product to be unreasonably defective when it is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Lamkin, 138 Ill.2d at 528, 563 N.E.2d at 457. In 1990, the Illinois Supreme Court offered plaintiffs another method by which to subject a manufacturer to strict liability: the risk-utility approach. Id., 138 Ill.2d at 529, 563 N.E.2d at 457. Thereafter plaintiffs could establish a product liability claim either by showing that the challenged product failed to meet the expectations of an ordinary consumer (the consumer-contemplation approach), or by demonstrating that the danger posed by the product outweighed the utility of the product (the danger-utility approach). Id.; Faucett v. Ingersoll-Rand Mining Machinery Co., 960 F.2d 653, 655-56 (7th Cir. 1992).
In its motion for summary judgment, Chrysler argues that Wheeler is foreclosed from proving her case using the consumer-contemplation test. The Court agrees. An assessment of the propriety of the challenged airbag design requires knowledge that extends beyond the realm of common experience for the ordinary consumer. Accord Baltus, 199 Ill. App.3d at 835, 557 N.E.2d at 589 ("Products liability actions often involve specialized knowledge or expertise outside the layman's knowledge. . . .") As stated by Kenneth R. Laughery ("Laughery"), an expert proffered by Wheeler, dangers posed to children by the deployment of airbags is "essentially technical in nature, involving issues of velocities, forces, kinematics, and biomechanics." (Laughery Rule 26 Report, Def. Exh. F4 at 3). In contrast to cases presenting simple products wherein the consumer can hold reasonable expectations of safety, complex and technical products are not amenable to the consumer-contemplation test. See Pruitt v. General Motors Corp., 72 Cal.App.4th 1480, 1483-84, 86 Cal.Rptr.2d 4, 6 (Cal.App.Ct. 1999) (trial court's refusal to instruct jury on consumer expectations test appropriate because "the consumer expectations test is reserved for cases in which the everyday experience of the products' users permits a conclusion that the product's design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of its design. . . . Minimum safety standards for air bags are not within the common knowledge of lay jurors.").
The consumer-contemplation test might be wholly applicable where, for example, an air bag inflates while idling at a stoplight. Pruitt, 72 Cal.App.4th at 1484, 86 Cal.Rptr.2d at 6. In such an instance, the general population is capable of forming a relevant and reasonable expectation of the air bag's minimum safety standard. On the other hand, the ordinary consumer has no basis upon which to form reasonable expectations of the technical considerations and trade-offs inherent in the design of an airbag's deployment system. Hence, the consumer-contemplation test cannot be used to ascertain the dangerousness of a product where the design of the challenged product is complex and beyond the realm of common understanding. See e.g., Montag v. Honda Motor Co., Ltd., 75 F.3d 1414, 1418 (10th Cir. 1996); Soule v. General Motors Corp., 8 Cal.4th 548, 570, 882 P.2d 298, 310 (Cal. 1994). But see Bresnahan v. Chrysler Corp., 32 Cal.App.4th 1559, 1568, 38 Cal.Rptr.2d 446, 451 (Cal.App.Ct. 1995) (consumer expectations test applied to airbag product liability claim). Accordingly, this Court concludes that Wheeler may not proceed under the consumer-contemplation test.
b. Risk-Utility Test
Because the consumer-contemplation test is unavailable to Wheeler, she must utilize the risk-utility test to show that the air bag system is dangerously defective. Under the risk-utility test, also called the danger-utility test:
a product is defective if, but only if, the magnitude of the danger outweighs the utility of the product. The theory underlying this approach is that virtually all products have both risks and benefits and that there is no way to go about evaluating design hazards intelligently without weighing danger against utility. There have been somewhat different ways of articulating this ultimate standard or test. But in essence, the danger-utility test directs the attention of attorneys, trial judges, and juries to the necessity of weighing the danger-in-fact of a particular feature of a product against its utility. Under this test, a product can be said to be defective in the kind of way that makes it `unreasonably dangerous' if a reasonable person would conclude that the danger-in-fact, whether foreseeable or not, outweighs the utility of the product.Scoby, 211 Ill. App.3d at 110, 569 N.E.2d at 1150 (quoting Keeton, supra, at § 99(3), at 699). In sum, a product is unreasonably dangerous under the risk-utility test when the evidence establishes that the product "could have been designed to prevent a foreseeable harm without hindering its function or price." Besse, 237 Ill. App.3d at 500-01, 604 N.E.2d at 1001.
In order to establish a defect under the risk-utility test, plaintiffs generally produce an alternative design that either existed at the time of manufacture or that would have been feasible and effective. Although Wheeler is permitted to set forth an alternate design, she is not required to do so. See Staecker, 1998 WL 30698, at *6 (observing that Illinois law "does not require a plaintiff to produce evidence of an economical alternative design"). Rather, once Wheeler has offered evidence of proximate causation, the burden shifts to the defendant to "prove that on balance the benefit of the challenged design outweigh the risk of danger inherent in such designs." Id. at *4 (elaborating on the rationale for shifting the burden).
Proximate causation is established when there exists a reasonable certainly that the defendant's acts caused the injury.Schultz, 222 Ill. App.3d at 541, 584 N.E.2d at 241. Although Chrysler questions the credentials and reliability of Louis D'Aulerio ("D'Aulerio"), Wheeler's expert on the defective design issue, D'Aulerio's proffered testimony is unnecessary for Wheeler's ability to survive summary judgment. Chrysler casts no doubt on the reliability of Wheeler's medical expert, Dennis Shanahan ("Shanahan"), who states that Jessica Wheeler's fatal injuries were caused by the deployment of the air bag. Without the air bag, Shanahan reports, Jessica Wheeler would have not sustained significant injury because the crash forces were within the range of human tolerance. Shanahan's testimony provides a reasonable basis upon which a jury could find proximate causation.
Notwithstanding the fact that Wheeler is not charged with presenting an alternative plan, she nevertheless offers an alternative design. She insists that the airbag deployment threshold should have been higher, so that it would not inflate in low speed collisions. To support her claim, Wheeler presents D'Aulerio, an engineering expert who critiques multiple facets of the 1994 Voyager airbag system Upon review of the record, the Court is inclined to agree with Chrysler that D'Aulerio's findings may not survive scrutiny under Daubert. His conclusions, to the extent revealed by the record, may not be derived from sound scientific methodology because they were neither independently tested, nor solidly based on scientific studies.See generally Clark v. Takata Corp., 192 F.3d 750, 756-59 (7th Cir. 1999); Crespo v. Chrysler Corp., 75 F. Supp.2d 225, 228-31 (S.D. N.Y. 1999); Demaree v. Toyota Motor Corp., 37 F. Supp.2d 959, 961-64 (W.D. Ky. 1999); Hanks v. Korea Iron Steel Co., Ltd., 993 F. Supp. 1204, 1206-09 (S.D. Ill. 1998). Without a Daubert hearing whereby this Court can gain a more thorough understanding of the grounds for D'Aulerio's conclusions, however, the Court is unprepared to find conclusively that his opinions are inadmissible. However, a Daubert hearing, at least at this juncture, is unnecessary. As discussed above, Wheeler has established proximate cause, which is sufficient to defeat summary judgment in light of defendant's failure to articulate any facts showing that the benefits of the challenged airbag design outweighed its risks.
2. Failure to Warn
In her failure to warn claim, Wheeler maintains that Chrysler should have placed a warning on the visor, informing occupants of the danger posed by airbags on small children. Had she been warned that small children should be placed in the rear-seats to avoid this danger, Wheeler asserts, she would have complied, thereby preventing Jessica's injuries.
The failure to warn of a product's dangerous propensities can make that product unreasonably dangerous and may serve as a basis for holding a manufacturer strictly liable in tort. Schultz, 222 Ill. App.? 3d at 541, 584 N.E.2d at 241. Establishing a prima facie case of failure to warn requires the plaintiff to show that the manufacturer failed to warn of non-obvious dangers that it knew or should have known were posed by its products at the time the product left the manufacturer's control. Id. In addition, the plaintiff bears the burden of establishing that the failure to warn was a proximate cause of her injuries. Kane v. R.D. Werner Co., Inc., 657 N.E.2d 37, 39, 212 Ill. Dec. 342, 344 (Ill.App.Ct. 1995). Proximate causation is established where the plaintiff demonstrates that an adequate warning would have been read and heeded, and would have prevented the injuries in question.Schultz, 222 Ill. App.3d at 542, 584 N.E.2d at 242. See also Todd v. Societe Bic. S.A., 9 F.3d 1216, 1219 (7th Cir. 1993);Kane, 657 N.E.2d at 39, 212 Ill. Dec. at 344; Shepherd v. Michelin Tire Corp., 6 F. Supp.2d 1307, 1313 (N.D. Ala. 1997).
Plaintiff relies on the opinions offered by Laughery, a behavioral expert, to state her claim for failure to warn. Laughery proposes to testify that the challenged warning was inadequate, and that a warning addressing the danger posed by airbags to children in the front seat would have prevented Jessica's death. (See Laughery Report, Def. Exh. 4; Laughery Dep., Def. Exh. I, at 152). Relying on Rule 26 of the Federal Rules of Civil Procedure, Chrysler maintains that Laughery's opinions concerning causation were not properly disclosed. Thus, they urge the Court to preclude consideration of his testimony, at least to the extent that it concerns causation, in this motion and at trial. Indeed, Rule 37 provides that a "party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed." Fed.R.Civ.Pro. 37(c)(1). The instant case, however, does not warrant the preclusion of Laughery's causation testimony. Chrysler deposed Laughery in September of 1999 and examined him at length about his opinion on causation. Therefore, Chrysler was not prejudiced by the lack of disclosure in the Rule 26 report. Laughery's causation testimony will not be barred on that basis.
Chrysler also challenges the admissibility of Laughery's entire testimony under Daubert and Rule 702 of the Federal Rules of Evidence. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2768 (1993). Pursuant to Rule 702, this Court is charged with the role of functioning as a "gatekeeper." Clark, 192 F.3d at 756. In screening expert testimony, this Court must ensure that scientific testimony is both reliable and relevant.Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174 (1999). Expert testimony is reliable if it is based on scientific methodology. Clark, 192 F.3d at 756. Four nonexhaustive considerations factor into this determination: expert opinion is reliable if the proffered conclusions lend themselves to verification by testing; they are subject to peer review; they have been evaluated in light of the potential error rate of the scientific technique; and they are consistent with the generally accepted method for gathering the relevant scientific evidence.Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-97.
"Either hands-on testing or review of experimental, statistical, or other scientific data generated by others in the field may suffice as a reasonable methodology upon which to base an opinion." Clark, 192 F.3d at 758. From what this Court can gather from Laughery's deposition testimony as well as his Rule 26 report, he has not conducted his own tests of behavioral responses to airbag warnings. (See Laughery Dep., Def. Exh. I at 41-42, 157-158). Rather, his conclusions are derived from others' studies. He relies on eight criteria to formulate his opinion of whether the challenged warning is adequate. (See Laughery Dep., Def. Exh. I at 25-26, 35-36). Although Wheeler claims that those studies are widely accepted and peer reviewed, the Court cannot accept this bald assertion. (See Pl. Amend. Resp. at 11). Similarly, Laughery relies on literature on parental concern for child safety as well as studies on the effect of explicit warnings of severe consequences on compliance, but there is no way for this Court to glean from the record whether these studies are scientifically sound. (See Laughery Dep., Def. Exh. I at 161-62).
Reliance on Laughery's opinion, Wheeler argues, is unnecessary to establish causation and survive summary judgment. Wheeler claims that her own testimony serves as independent evidence of causation. In her deposition, Wheeler testified that had she been warned that children are safer in the rear seat, she would have heeded such a warning. (See Wheeler Dep. at 78). Although the Court will not go so far as to prohibit Wheeler from testifying that she would have complied with a more specific visor warning, as Chrysler urges us to do, such self-serving statements may not be sufficient, without more, to defeat summary judgment. See Shank v. William Hague, Inc., 192 F.3d 675, 682 (7th Cir. 1999) (citing Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1295 (7th Cir. 1993)).
To buttress her claim as to causation, Wheeler invites the Court to make a logical leap. Statistics compiled by the National Highway Traffic Safety Administration ("NHTSA"), she notes, support a drastic reduction in the percentage of deaths caused by airbags in the aftermath of a newly mandated airbag visor warning requiring all children to be placed in the back seat of vehicles with passenger side airbags. This, she argues, evinces a causal correlation between adequate visor warnings and parental response. Whether this evidence — namely, the NHTSA statistics plus Wheeler's assertions as to what actions she would have taken had Chrysler posted warnings — is sufficient to survive a motion for summary judgment need not be decided at this juncture.
A Daubert hearing will be held to determine the reliability and relevance of Laughery's opinions. Because the Court is unable, at this juncture, to conclude that Defendants are entitled to succeed on this claim as a matter of law, summary judgment is denied on the failure to warn claims. Upon resolution of the Daubert hearing, if Laughery's opinions are held inadmissible, then the issue will be whether Wheeler's testimony as to her conduct coupled with evidence of the NHTSA statistics are sufficient to defeat summary judgment on the failure to warn claim. If Laughery's opinions are admissible, then summary judgment will be inappropriate.
B. Negligence and Breach of Warranty Claims
To recover on a claim of common law negligence, a plaintiff must introduce evidence of a duty owned by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach. Schultz, 222 Ill. App.3d at 541, 584 N.E.2d at 241. Strict liability and negligence claims differ in their fault concept: in the former, the focus is on the defective condition of the product, regardless of fault, while in the later, defendant's fault is additionally in issue. Baltus, 199 Ill. App.? 3d at 829, 557 N.E.2d at 585. To succeed on a claim of negligent manufacture of the air bag, the plaintiff must establish that the defendant deviated from the standard of care that other manufacturers followed at the time the product was designed, or, that the defendant, in the exercise of ordinary care, knew or should have known that its product was unreasonably dangerous and failed to warn of that propensity. Baltus, 199 Ill. App.3d at 830, 557 N.E.2d at 586. The concept of proximate cause is the same in cases of negligence and strict liability in tort.Rodriguez, 28 F. Supp.2d at 1070; Schultz, 222 Ill. App.3d at 541, 584 N.E.2d at 241.
To the extent that proximate cause has been established for the design defect and failure to warn claims, Wheeler's case survives summary judgment. Chrysler does not attack the other elements of the negligence counts, and therefore, summary judgment is denied on these counts. Likewise, Chrysler makes no mention in their summary judgment motion to the breach of warranty claims asserted in counts V and VI of Wheeler's complaint. Summary judgment is denied as to those counts as well.
III. Conclusion
For the foregoing reasons, Defendant's motion for summary judgment is DENIED.