Howard Piltch v. Ford Motor Company ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-1965
HOWARD PILTCH, et al.,
Plaintiffs-Appellants,
v.
FORD MOTOR COMPANY, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:11-cv-00001-JTM-CAN — James T. Moody, Judge.
ARGUED DECEMBER 1, 2014 — DECIDED FEBRUARY 11, 2015
Before BAUER, KANNE, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. Howard Piltch and Barbara Nelson-
Piltch (the “Piltches”) were traveling in their 2003 Mercury
Mountaineer in February 2007 when they hit a patch of black
ice, causing the car to slide off the road and into a wall. Upon
impact, none of the car’s air bags deployed and both Piltches
were injured. The Piltches filed the present action in Indiana
state court against Ford Motor Company (“Ford”) in 2010,
alleging the vehicle was defective under Indiana law. Ford
2 No. 14-1965
removed the action to federal court, and shortly thereafter
moved for summary judgment. On March 28, 2014, the district
court granted Ford’s summary judgment motion holding that,
without expert testimony, the Piltches could not create an issue
of fact as to proximate cause. On appeal, the Piltches contend
that (1) they state a claim for relief under the Indiana Products
Liability Act (“IPLA”); (2) there is sufficient circumstantial
evidence of a defective product that expert testimony is not
required; (3) they are not required to produce expert testimony
to establish proximate cause; and (4) the doctrine of res ipsa
loquitur applies, raising an inference of negligence on the part
of Ford. We affirm.
I. BACKGROUND
The Piltches were co-owners of a 2003 Mercury Mountain-
eer. While driving the Mountaineer in 2006, the Piltches were
involved in a car accident in which the air bags did not deploy.
Following the accident, the Piltches had the vehicle repaired.
They did not confirm whether the restraint control module,
which monitors a crash and decides whether to deploy air
bags, was reset during or after repairs after the 2006 collision.
But Mr. Piltch explained that it was his understanding that
“whatever needed to be reset in the Mercury Mountaineer …
was, in fact, reset.”
A year later in 2007, the Piltches were involved in another
accident after driving over some black ice. This time, their
Mountaineer did a 360-degree turn and struck a low wall. The
vehicle ricocheted off the wall, slid down a hill, and collided
with several trees before coming to a rest. The vehicle’s air
bags again did not deploy during or after the accident. As a
No. 14-1965 3
result of the accident, Mr. Piltch broke several vertebrae and
Mrs. Piltch sustained neurological injuries. After this crash, the
Piltches had their Mountaineer repaired at the same shop that
had repaired the car after the 2006 accident.
In 2009, the Piltches sold the Mountaineer. The buyer
happened to be a mechanic who reprogrammed the vehicle’s
blackbox, wiping any data that might remain from either crash.
In February 2010, the Piltches sued Ford in federal court,
alleging the Mountaineer’s air bags were defective and
enhanced the injuries they suffered as a result of the 2007
accident. Due to a deficient jurisdictional statement, the court
dismissed the complaint without prejudice. The Piltches again
filed suit in December 2010, this time in state court, and Ford
removed the case to federal court. During discovery, the
Piltches never served any expert reports, despite obtaining an
extension of the expert-disclosure deadline.
Ford moved for summary judgment in November 2011,
arguing that the Piltches could not prove a prima facie case of
design or manufacturing defect without expert testimony, nor
could they prove their injuries were more severe than they
would have been without the alleged defect. In response, the
Piltches argued they did not need an expert. They asserted that
their circumstantial evidence, namely the Mountaineer’s
owner’s manual and Mr. Piltch’s testimony, created genuine
issues of fact as to defect and proximate cause. The Piltches
also argued that the jury could infer a defect under the doctrine
of res ipsa loquitur.
The district court granted Ford’s motion for summary
judgment on all claims. Specifically, the court held that the
4 No. 14-1965
Piltches’ circumstantial evidence was insufficient to go beyond
speculation and create a legal inference as to proximate cause.
As to res ipsa loquitur, the court held that the Piltches’ circum-
stantial evidence was not enough to negate all possible causes
other than defect for the air bags’ failure to inflate. This appeal
followed.
II. DISCUSSION
We review a district court’s grant of summary judgment
de novo in the light most favorable to the non-moving party.
Ellis v. DHL Express Inc., 633 F.3d 522, 525 (7th Cir. 2011).
Summary judgment is only appropriate if there is no genuine
issue of material fact. Id.
The Piltches present four issues on appeal; the first three
can be addressed in a single discussion as to whether the
circumstantial evidence, without support from expert testi-
mony, creates a genuine issue of material fact for their claims
under the IPLA. We will separately address the fourth issue of
res ipsa loquitur.
A. Expert Testimony
Because we are sitting in diversity, Indiana law applies. See
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (holding a federal
court sitting in diversity must apply the substantive law of the
state in which it sits). The IPLA governs all actions brought by
a user or consumer against a manufacturer for physical harm
caused by a product, regardless of the legal theory upon which
the action is brought. See Ind. Code § 34-20-1-1.
Under the IPLA, the plaintiff must establish that “(1) he or
she was harmed by a product; (2) the product was sold ‘in a
No. 14-1965 5
defective condition unreasonably dangerous to any user or
consumer’; (3) the plaintiff was a foreseeable user or consumer;
(4) the defendant was in the business of selling the product;
and (5) the product reached the consumer or user in the
condition it was sold.” Bourne v. Marty Gilman, Inc., 452 F.3d
632, 635 (7th Cir. 2006) (referencing Ind. Code § 34-20-2-1). A
plaintiff can satisfy the second element by showing a design
defect, a manufacturing defect, or a failure to warn. Hathaway
v. Cintas Corp. Serv., Inc., 903 F. Supp. 2d 669, 673 (N.D. Ind.
2012). See also Natural Gas Odorizing, Inc. v. Downs, 685 N.E.2d
155, 161 (Ind. Ct. App. 1997). A plaintiff is also required to
prove that his injuries were proximately caused by the defect
(in the cases of manufacturing defect and failure to warn) or
breach of duty (in the case of design defect). See Ford Motor Co.
v. Rushford, 868 N.E.2d 806, 810 (Ind. 2007). Finally, and
particularly pertinent to the issues raised on appeal, expert
testimony on an issue is required when the issue is not within
the understanding of a lay person. Daub v. Daub, 629 N.E.2d
873, 878 (Ind. Ct. App. 1994) (requiring expert testimony on
issue of cause outside understanding of lay person); Owens v.
Ford Motor Co., 297 F. Supp. 2d 1099, 1103–04 (S.D. Ind. 2003)
(requiring expert testimony where existence of a defect
depends on matters beyond understanding of lay person).
The Piltches invoke both design defect and manufacturing
defect theories in their suit. Cook v. Ford Motor Co., 913 N.E.2d
311, 319 (Ind. Ct. App. 2009) (“A product may be defective
within the meaning of the [Indiana Product Liability] Act
because of a manufacturing flaw, a design defect, or a failure
to warn of dangers in the product’s use.”). To demonstrate a
design defect under Indiana law, “the plaintiff must compare
6 No. 14-1965
the costs and benefits of alternative designs” and “show that
another design not only could have prevented the injury but
also was cost-effective under general negligence principles.”
Pries v. Honda Motor Co., 31 F.3d 543, 545–46 (7th Cir. 1994).
Here, not only did the Piltches fail to produce alternative air
bag designs, but they also failed to introduce expert testimony
on the question of design defect. Without expert testimony, a
lay jury would be unable to compare the costs and benefits of
supposed alternative air bag designs with the Mountaineer’s
actual air bag design. See Whitted v. General Motors Corp., 58
F.3d 1200, 1206 (7th Cir. 1995) (affirming summary judgment
where plaintiffs failed to present evidence of design defect and
that an alternative design was cost effective). See also Hathaway,
903 F. Supp. 2d at 675 (granting summary judgment against
plaintiff’s design defect claim where plaintiff submitted no
evidence indicating cost effectiveness of alternative design).
Similarly, a lay jury would be unable to discern from circum-
stantial evidence whether another air bag design could have
prevented the injury. Thus, without expert testimony, the
Piltches’ design defect claim cannot survive summary judg-
ment.
The Piltches’ manufacturing defect claim fares no better. To
demonstrate a manufacturing defect, the plaintiff must show
that “the product … deviates from its intended design.” Id. at
673 (applying Indiana law and citing Restatement (Third) of
Torts: Products Liability § 2(a) (1988)). The Piltches contend that
the Mountaineer’s owner’s manual establishes the intended
design of the air bags, and that the state of the air bags during
and after the 2007 collision indicates a departure from that
intended design.
No. 14-1965 7
Citing Cansler v. Mills, 765 N.E.2d 698 (Ind. Ct. App. 2002),
the Piltches argue that this evidence, taken together, raises a
genuine issue of material fact as to defect even in the absence
of expert testimony. In Cansler, the court found that the
plaintiff designated sufficient circumstantial evidence on the
issue of whether the air bags in question were defective,
rendering expert testimony unnecessary to create a triable
issue of fact. Id. at 706–07. The circumstantial evidence in-
cluded the plaintiff’s testimony about the speed of the car just
before the collision and a mechanic’s testimony about the
damage to the vehicle after the collision. Id. at 706. Though not
an expert, the mechanic was deemed a “skilled witness” who
could testify to opinions or inferences based on facts within his
personal knowledge, in addition to his observations. Id. at
703–04 (defining a “skilled witness” as “a person with ‘a
degree of knowledge short of that sufficient to be declared an
expert … but somewhat beyond that possessed by the ordinary
jurors.’” Mariscal v. State, 687 N.E.2d 378, 380 (Ind. Ct. App.
1997)). The mechanic testified that he had almost two decades
of experience examining automobile wrecks with deployed air
bags. Cansler, 765 N.E.2d at 702. After examining the plaintiff’s
car three to four days after the accident, he opined that “based
on his observations of other vehicles that had been in accidents
severe enough to cause front frame damage [like the plain-
tiff’s], the air bag in [the plaintiff’s] Corvette should have
deployed.” Id. The plaintiff also presented the car’s owner’s
manual, which detailed the conditions that would warrant air
bag deployment, including the threshold velocity of impact
that would trigger deployment.
8 No. 14-1965
The Piltches’ circumstantial evidence is not analogous to
that in Cansler. Most notably, the Piltches do not provide
testimony about the accident other than their own. We also do
not have testimony on the state of the car following the
collision. This is especially problematic considering the Piltches
preserved neither the Mountaineer nor, critically, the Moun-
taineer’s blackbox, which could have contained details about
the crash. Without this information, and without an accident
reconstruction expert or otherwise “skilled witness” to fill in
some of these blanks, a lay person would be unable to discern
whether the circumstances of the crash should have triggered
air bag deployment or not. Furthermore, the presentation of
the Mountaineer’s owner’s manual does nothing to elevate this
evidence out of the realm of speculation. Unlike the manual in
Cansler, the conditions for air bag deployment in the Moun-
taineer’s manual are written in broad generalities. The manual
merely states that the air bags are designed to activate when
the vehicle sustains sufficient longitudinal deceleration.
However, it neither defines “sufficient,” nor specifies the
precise impact speeds at which the air bags are expected to
deploy.
Finally, in addition to showing a defect, both theories of
liability require a showing that the defect proximately caused
the Piltches’ injuries to survive summary judgment. The
Piltches allege a “crashworthinesss” case. The crashworthiness
doctrine expands the proximate cause element, see Barnard v.
Saturn Corp., 790 N.E.2d 1023, 1032 (Ind. Ct. App. 2003), and
imposes liability for design defects that enhance injuries from
a collision, but did not cause the collision in the first place. See
Whitted, 58 F.3d at 1205; Montgomery Ward & Co. v. Gregg, 554
No. 14-1965 9
N.E.2d 1145, 1154 (Ind. Ct. App. 1990). The plaintiff’s burden
of proof for an enhancement injury claim is as follows:
First, the plaintiff must prove that the manufacturer
placed into the stream of commerce a defectively de-
signed, unreasonably dangerous product. Second, the
plaintiff must prove that a feasible safer alternative
product design existed. Third, the plaintiff must prove
that after the original impact or collision the defectively
designed product proximately caused (i.e. enhanced) the
injuries that resulted.
Barnard, 790 N.E.2d at 1032 (citation omitted).
As discussed above, the Piltches cannot establish the
existence of a defect without expert testimony. Because they
cannot establish a defect, they cannot meet their burden of
proof for an enhanced injury claim and we need not discuss
whether they are able to establish proximate cause through
their presented circumstantial evidence. However, even if the
Piltches established a design defect, under the facts of this case,
without expert testimony, a lay juror could not distinguish
between the injuries caused by the collision and the enhanced
injuries caused by the air bags’ failure to deploy without
engaging in pure speculation. The same would be true even if
the Piltches had offered evidence of a manufacturing defect.
See U-Haul Int’l, Inc. v. Nulls Mach. & Mfg. Shop, 736 N.E.2d 271,
285 (Ind. Ct. App. 2000) (affirming summary judgment in
manufacturing defect case where plaintiff provided no expert
opinion sufficient to present a question of fact with respect to
proximate cause).
10 No. 14-1965
In sum, the Piltches ask the court to find their own testi-
mony combined with the manual’s instruction sufficient to
permit an inference of defect and of proximate cause. But it is
not—without expert testimony, a jury would only be able to
speculate as to the viability of the Piltches’ IPLA claims.
B. Res ipsa loquitur
To bring a claim under the doctrine of res ipsa loquitur, a
plaintiff must show that the occurrence is “one which in the
ordinary course of business does not happen if those who
control the circumstances use proper care.” Gary Cmty. Sch.
Corp. v. Lardydell, 8 N.E.3d 241, 247 (Ind. Ct. App. 2014). A
plaintiff must also show that the injuring instrumentality was
in the exclusive control of the defendant at the time of injury.
Whitted, 58 F.3d at 1207. The doctrine of res ipsa loquitur may
be applied in the “rare instances” in which “circumstantial
evidence may produce reasonable inferences upon which a
jury may reasonably find that a defendant manufactured a
product containing a defect.” Id. at 1208.
In Whitted, we held that the plaintiff, suing over an alleg-
edly defective seat belt, “did not present enough evidence to
establish that Defendants retained control or dominion over
the seat belt—that is, that six years of invariable use did not
disturb Defendants’ influence or authority over the product.”
Id. Although the plaintiff presented evidence that the seat belt
appeared to be in good condition and had not demonstrated
problems before, we held that this was not enough to “nullify
enough of the probable explanations of the seat belt break.” Id.
The Piltches have done even less to nullify other explanations
for the air bags’ failure to inflate. Given that the Piltches did
No. 14-1965 11
not, or perhaps could not, confirm that the air bag mechanism
was not reset after their 2006 accident, it remains a reasonable
possibility that the air bag failed to deploy due to not being
reset. What’s more, on this record a jury could only speculate
as to whether the circumstances of this accident should have
triggered deployment of the air bags in the first place, as
previously discussed. Thus, the Piltches’ presentation of
circumstantial evidence is not, as the district court put it, “one
of the ‘rare instances’ where it is enough to negate all possible
causes other than a product defect.” Piltch v. Ford Motor Co., 11
F. Supp. 3d 884, 892 (N.D. Ind. 2014) (quoting Whitted, 58 F.3d
at 1208).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
grant of summary judgment in favor of Ford.