Schubert v. Nissan Motor Corp

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit











No. 97-2393



                KEITH SCHUBERT and KATHY SCHUBERT,



                     Plaintiffs, Appellants,



                                v.



               NISSAN MOTOR CORPORATION IN U.S.A.,



                       Defendant, Appellee.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. Robert E. Keeton, U.S. District Judge]







                              Before



                     Selya, Circuit Judge,



                 Bownes, Senior Circuit Judge,



                   and Boudin, Circuit Judge.









     Paul E. Mitchell, with whom William A. Schneider and Mitchell,

McGowan & DeSimone, were on brief for appellants.



     Brian P. Voke, with whom Richard P. Campbell, and Campbell,

Campbell & Edwards, were on brief for appellees.











July 7, 1998







                                  BOWNES, Senior Circuit Judge.  In this diversity action,

plaintiffs-appellants Keith and Kathy Schubert seek to hold

defendant-appellee Nissan Motor Corporation in U.S.A. ("Nissan")

liable for an injury to Mr. Schubert's back.  Their suit is based

on a claim of product liability.  The district court granted

Nissan's summary judgment motion, and we affirm.

                                I.

  We recite the underlying facts in the light most

favorable to the Schuberts.  United States v. Diebold, Inc., 369

U.S. 654, 655 (1962) (per curiam).

  On December 6, 1992, Mr. Schubert was driving his 1989

Nissan pickup truck on Route 28 in Derry, New Hampshire.  While he

was stopped in traffic, Schubert's truck was rear-ended by a 1977

Ford sedan.  Skid marks of just under seven feet were evident at

the accident site, and the Ford's front end was severely damaged by

the impact.

  Within twenty-four hours after the accident, Mr. Schubert

began to experience   among other symptoms irrelevant here   lower

back pain.  His complaints included pain radiating from the lower

back into the right buttock and thigh, and further on into the

right calf and right foot.  He was treated unsuccessfully with

chiropractic therapy before x-rays revealed a congenital defect in

his lower back, specifically, spondylolisthesis.  This condition is

defined as "forward displacement . . . of one vertebra over

another, usually of the fifth lumbar over the body of the sacrum,

or of the fourth lumbar over the fifth, usually due to a

developmental defect in the pars interarticularis."  Dorland's

Illustrated Medical Dictionary 1563 (28th ed. 1994).  In lay terms,

this means the forward slippage of a vertebra out of normal

alignment.  It is undisputed that this was a congenital defect and

existed at the time of the accident.  The defect, however, was not

symptomatic until after the collision.

  After various conservative approaches to the pain, Mr.

Schubert's neurosurgeon, Dr. Peter Grillo, performed a spinal

fusion operation.  Despite this operation, Mr. Schubert's answers

to Nissan's interrogatories state that significant lower back and

lower extremity pain remain.

  Plaintiffs' suit is premised upon a theory of faulty

product design.  Specifically, they allege that a horizontal metal

pipe, located in the seat back frame and running across the length

of the seat back, came into forceful contact with Mr. Schubert's

spine at the time of the rear-end collision.  This impact allegedly

exacerbated his congenital back defect, making the asymptomatic

condition suddenly symptomatic.  The primary evidence in support of

this hypothesis is that the horizontal pipe, which is located four

and one half inches vertically from the bottom edge of the seat

back, was bent backwards approximately one-half of an inch.  The

bend in the pipe was not part of the seat back design.  It can be

fairly adduced that the pipe was bent by some force in the time

between the seat back's manufacture and the post-accident

examination of it.  It must be noted that the apex of the bend is

not located directly behind the driver's side of the bench seat,

but instead is at the mid-point of the pipe length.  Plaintiffs'

expert Murray Burnstine testified in deposition, "[i]f you have a

pipe that's connected at both ends, no matter where you apply the

force, it's going to bow in the middle."  Burnstine Dep. at 49.

  Plaintiffs filed suit against Nissan in November, 1995 in

the district of Massachusetts, alleging product liability claims.

The Schuberts retained the aforementioned Murray Burnstine as an

expert witness.  According to Plaintiffs' answers to Nissan's

interrogatories, Burnstine would testify that,

  parts of the seat back frame are bent

  consistent with a rearward force being applied

  to these parts by the victims [sic] lower back

  and spine.  The padding between the victim and

  the metal structures was not adequate to

  prevent a concentration of the forces on

  Schuberts [sic] back. . . .  Grounds for

  opinion are education and training

  inspection of the seat back[,] . . . a review

  of the file including photos of the vehicle

  and common sense.



Schubert App. at 38.

  Nissan subsequently deposed Burnstine, and elicited from

him the admission that he did not have personal knowledge that the

horizontal pipe lined up vertically with the location of Mr.

Schubert's spinal injury.  Rather, in the deposition, Burnstine

stated that he assumed that the lumbar injury lined up with the

pipe's location.  Burnstine admitted that he had not done anything

to independently verify this assumption.  See Burnstine Dep. at 27,

44.  Instead, Burnstine stated that he relied on representations

made to him as well as photographs depicting an individual sitting

in the truck seat.  For purposes of the photo, a piece of tape was

placed on the seat-back to indicate the vertical position of the

pipe.  The face of the seated individual is not visible in the

photograph.  More importantly, there was no indication in the

photograph of the location of the spinal injury on the back of the

person in the truck seat.  On the basis of this deposition

testimony, Nissan moved to exclude the proposed testimony of

Burnstine because the opinion lacked sufficient foundation.  The

district court initially dismissed the motion without prejudice.

  Nissan thereafter moved for summary judgment.  Nissan's

motion was premised on the argument that the Schuberts had failed

to make a showing sufficient to prove that the alleged design

defect in the seat   the pipe   had, more likely than not, caused

Mr. Schubert's injury.  Nor, Nissan argued, had the Schuberts

presented any evidence to demonstrate that Mr. Schubert was injured

more severely than he would have been if the bench seat had been

reasonably designed.

  The Schuberts responded to Nissan's motion, arguing,

without citation to the record, that there was "ample evidence with

which to demonstrate the causal connection between the seat back

design and [the] injuries; the weight of such [is] appropriate for

the trier of fact, not summary judgment."  The district court,

however, was not satisfied and issued an order requiring plaintiffs

to: (i) comply with Local Rule 56.1; and (ii) "explicitly address

causation and show what admissible evidence will be offered to

support plaintiff's theory of causation.  A suggestion as to what

an expert will testify at some future time is not enough.

Plaintiff must produce admissible evidence now."  Memorandum and

Order of October 17, 1997 (emphasis ours).

     The Schuberts responded.  Appended to the new response

were two sworn affidavits.  The first, an affidavit of Murray

Burnstine, contained the following relevant statements:

     4.   I have not reviewed the plaintiff's

     medical records . . . as I have not been

     retained as a medical expert. . . .  I have,

     however, reviewed the plaintiff's x-rays, the

     report of Dr. Peter Grillo and the

     plaintiffs's answers to interrogatories which

     both identify the location of the plaintiff's

     injury and discomfort at the plaintiff's lower

     lumbar spine.



     5.   I have examined the seat on which the

     plaintiff sat when another vehicle struck him

     from behind . . . .  I have also examined

     photographs of the plaintiff seated in the

     subject seat.  My examination of the subject

     seat and these photographs reveal that the

     horizontal pipe in the seat frame lines up

     consistent with the lumbar spine injury

     sustained by the plaintiff.



     6.   Based upon my years of experience in

     automotive design, biomechanical engineering,

     and occupant kinematics, it is my professional

     opinion that when the plaintiff's vehicle was

     struck from behind, the force caused the

     plaintiff's body to naturally move rearwards

     into the seat, and if some hard object

     exist[ing] within the seat lined up consistent

     with the lumbar region of the plaintiff's

     spine, such as the horizontal bar present in

     the subject seat in this case, then to a

     reasonable degree of professional certainty,

     the force with which the plaintiff struck the

     bar did, more likely than not, directly and

     proximately cause[] or exacerbate[] the

     injuries to the plaintiff's lumbar spine.



     7.   Based upon my . . . experience . . . ,

     and examination of the subject seat following

     the . . . accident, the horizontal bar in the

     seat frame was bent consistent with the force

     of the plaintiff's body moving rearwards into

     the seat following the plaintiff's accident.

     Further, . . . it is my professional opinion

     [that] the inncorporation [sic] of the

     horizontal bar in the design of the seat

     concentrated the force of the impact on the

     plaintiff's lumbar spine and that an

     alternative design, one which would disperse

     the force of the impact was feasible,

     available, and desirable . . . .

     The second affidavit the Schuberts submitted was from Dr.

Peter Grillo, Mr. Schubert's neurosurgeon, who opined that, "based

upon reasonable medical certainty, Mr. Schubert's injuries are

consistent with the direct application of force to his back," and

"that it is more probable than not that the injuries sustained by

Mr. Schubert to his back after being struck from behind in his

. . . truck, were directly and proximately caused by the motor

vehicle accident."  Appended to the Grillo affidavit was Dr.

Grillo's three page reiteration of his medical treatment of Mr.

Schubert to plaintiffs' counsel.

     The district court granted summary judgment to Nissan.

First, the district court examined the affidavit of Dr. Grillo,

concluding that Grillo's statement that Mr. Schubert's injuries

were "caused" by the motor vehicle accident constituted a "pure

assertion of a conclusion without any disclosure of a foundation

for it."  Memorandum and Order, November 10, 1997, at 9 (for

citation purposes, hereinafter "Memorandum").  The district court

further determined that "neither the factual statement in Dr.

Grillo's affidavit, nor any other portion of the plaintiff's

filings provide a factual foundation for Dr. Grillo's opinion that

Mr. Schubert's injury was 'consistent with' the direct application

of force."  Id. at 10.

     Having decided that "the testimony of Dr. Grillo does not

establish causation for the plaintiffs," id. at 11, the district

court turned to the Burnstine affidavit.  Stating that "[o]ne

critical part of the causation chain that plaintiffs assert in this

case is establishing that the pipe impacted Mr. Schubert's back at

the same point where the injury occurred," id., the district court

concluded from Burnstine's deposition testimony that "no foundation

exists for a critical aspect of the expert's opinion proffered in

this case," id. at 12.  The district court summed up Burnstine's

affidavit by stating that it was "a conclusory assertion about an

ultimate legal issue," id. at 14, that "relies on another asserted,

yet unproved fact, that the pipe and the injury line up," id.

     The district court therefore held that the Schuberts

failed to carry their burden on "the issue of causation even when

the evidence presented is viewed in the light most favorable to

them," id. at 15, and entered summary judgment in Nissan's favor.

This appeal followed.

                              II.

     We begin our analysis by determining what rulings the

district court made on the motion for summary judgment.  Initially

we find that the district court was not excluding the expert

testimony under the principles established in Daubert v. Merrell

Dow Pharm., Inc., 509 U.S. 579 (1993).  See Vadala v. Teledyne

Indus., Inc., 44 F.3d 36, 39 (1st Cir. 1995) ("Daubert's holding

that a scientific principle may sometimes be the basis for expert

testimony even if it is not 'generally accepted'   has nothing to

do with this case, in which the dispute concerns an event rather

than a scientific law.").

     The next question is whether the district court

determined that the affidavits were not competent evidence under

Fed. R. Civ. P. 56(e), or, alternatively, whether the district

court had examined the affidavits for their bearing on the issue of

causation in an attempt to determine whether the Schuberts had

adduced sufficient evidence on an element essential to their case.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).  The

distinction between the two approaches is of crucial importance to

our analysis.  If the district court determined Rule 56(e)

admissibility, we review that decision for abuse of discretion

prior to turning to our de novo summary judgment examination.  SeeVazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir. 1998).  "Under

Rule 56(e), affidavits supporting or opposing summary judgment must

set forth facts that would be admissible in evidence.  A district

court may exclude expert testimony where it finds that the

testimony has no foundation or rests on . . . speculative evidence.

Such decisions are reviewed for abuse of discretion."  Casas Office

Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 681 (1st Cir.

1994) (internal citations omitted).  In the absence of a

determination on Rule 56(e) admissibility, of course, our review of

the grant of summary judgment is de novo.  See G.D. v. Westmoreland

Sch. Dist., 930 F.2d 942, 946 (1st Cir. 1991).  Nissan argues that

the former course was being taken, while the Schuberts posit that

the district court improperly weighed the evidence contained in the

affidavits in deciding the summary judgment motion.  The district

court's memorandum is not completely clear   it does not directly

state that a Rule 56(e) determination was made.

     A close reading of the district court's memorandum has

convinced us that it was in fact determining that the affidavits

did not meet Rule 56(e)'s requirements of admissibility, and that

the court was excluding the affidavits from consideration for that

reason.  First, the memorandum launches the analysis concerning the

affidavits in a way which distinctly implies a Rule 56(e)

determination, stating, "[i]t is the responsibility of the trial

judge to determine, before receiving the expert's testimony for

jury consideration, whether the expert's testimony is based on an

adequate foundation to be admissible."  Memorandum at 8.  Second,

the district court specifically noted that it had previously

ordered the plaintiffs to "produce admissible evidence now."  Id.at 9 (quoting Memorandum and Order, October 17, 1997) (emphasis

ours).  Finally, the district court's primary concern throughout

its discussion of the Burnstine affidavit is that Burnstine

admitted in deposition to a lack of personal knowledge regarding

the pipe's location relative to the back injury.  In the summary

judgment context, it is Rule 56(e) which requires affidavits to be

"made on personal knowledge . . . ."  We are therefore satisfied

that the district court determined that neither affidavit was

competent evidence under Rule 56(e).  Cf. In re Paoli R.R. Yard PCB

Litig., 916 F.2d 829, 853 (3d Cir. 1990) (instance where it was

"not clear that the court was not merely choosing between opinions

as opposed to excluding plaintiff's opinion on evidentiary

grounds").

     We therefore must determine whether the district court's

exclusion of the two affidavits constituted an abuse of discretion.

We have defined abuse of discretion as follows:

     "Abuse of discretion" is a phrase which sounds

     worse than it really is.  All it need mean is

     that, when judicial action is taken in a

     discretionary matter, such action cannot be

     set aside by a reviewing court unless it has a

     definite and firm conviction that the court

     below committed a clear error of judgment in

     the conclusion it reached upon a weighing of

     the relevant factors.



In re Josephson, 218 F.2d 174, 182 (1st Cir. 1954).  In the context

of the admission or exclusion of opinion evidence, we have stated

that "we will uphold the district court's ruling in this area

unless it is 'manifestly erroneous.'"  Bogosian v. Mercedes-Benz of

N.A., Inc., 104 F.3d 472, 476 (1st Cir. 1997) (quoting Salem v.

United States Lines Co., 370 U.S. 31, 35 (1962)); see also Stevensv. Bangor and Aroostook R.R. Co., 97 F.3d 594, 600 (1st Cir. 1996)

(abuse of discretion must be "clear" to warrant reversal).

Finally, we keep in mind that under abuse of discretion review, we

are "not to substitute [our] judgment for that of the [district

court]."  Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43 (1983).

     We begin with the affidavit of Dr. Grillo.  The district

court determined that Dr. Grillo's opinion concerning the cause of

Mr. Schubert's injury constituted "pure assertion of a conclusion

without any disclosure of a foundation for it."  Memorandum at 9.

We see no abuse of discretion in this ruling.  Neither the

affidavit itself, nor the doctor's medical report on Mr. Schubert

(appended to the affidavit), provide any factual basis for the

statement that Mr. Schubert's injuries are "consistent with the

direct application of force to his back."  Although the Schuberts'

counsel argued orally that Dr. Grillo's medical report contains a

factual iteration sufficient to create a foundation for this

assertion, we have found nothing in the document which would do

that.  The district court acted well within its discretion when it

ruled that the Grillo affidavit lacked sufficient foundation to be

a competent Rule 56(e) affidavit.  Plaintiffs argue in their

appellate brief that Grillo was retained not to opine on the causal

link between the pipe and the injury, but rather to provide

information "regarding his treatment and genesis of Mr. Schubert's

medical condition," Appellants' Br. at 12.  But the doctor's

affidavit contains conclusory assertions concerning the cause of

Mr. Schubert's injury.  It was these statements that the district

court deemed without foundation.  There was no abuse of discretion.

     The exclusion of the Burnstine affidavit is a more

difficult question.  Burnstine's affidavit was, and is, the

linchpin to plaintiffs' theory of product liability.  On the

surface, Burnstine's theory is plausible   the existence of the

horizontal metal bar unduly exaggerated the force acting on Mr.

Schubert's back during the rear-end collision.  Similarly, the bend

in the pipe would seem to support this theory.  The district court,

however, decided that the affidavit was not competent evidence

because of Burnstine's deposition admission that he did not have

personal knowledge that the pipe and the back injury lined up with

each other.  To the court, Burnstine's admission demonstrated that

the opinion testimony did not rest on an adequate factual

foundation to constitute reliable opinion testimony.

     We think the question whether to admit or exclude

Burnstine's affidavit on this basis is a close call.  On the one

hand, Burnstine inspected the seat himself, and observed the bend

in the pipe.  Couple that observation with his considerable

experience in automotive crash reconstruction and engineering, and

it seems to be a reasonable inference that Mr. Schubert's rearward-

moving body was the force that bent the pipe.  We were recently

reminded, however, that although "[o]n a motion for summary

judgment[] disputed issues of fact are resolved against the moving

party . . . [,] the question of admissibility of expert testimony

is not such an issue of fact, and is reviewable under the abuse of

discretion standard."  General Elec. Co. v. Joiner, 118 S. Ct.

512, 517 (1997).

     On the evidence presented, there was no assertion that

anyone knew firsthand whether the location of the pipe lined up

with Mr. Schubert's back injury.  Courts have only those materials

which the parties supply to them.  See Diebold, 369 U.S. at 655

(favorable inferences are drawn "from the underlying facts

contained in . . . materials [submitted below]").  The materials

submitted in opposition to Nissan's motion are completely silent on

this point.  Rather, the Burnstine affidavit states that his

opinion was formed based upon his examination of the seat, and

inspection of the photographs ostensibly depicting Mr. Schubert in

the seat.  This is the same foundation that Burnstine testified to

in deposition.  Yet the photographs were not furnished in

opposition either to Nissan's exclusionary or summary judgment

motions, so there is no way to know whether and how they would

confirm that the pipe lined up with Mr. Schubert's back injury.

"It is fundamental that expert testimony must be predicated on

facts legally sufficient to provide a basis for the expert's

opinion."  Damon v. Sun Co., Inc., 87 F.3d 1467, 1474 (1st Cir.

1996) (internal quotation marks omitted).  We think it significant

that Burnstine's affidavit makes no effort to explain or correct

the deposition admissions.  See Colantuoni v. Alfred Calcagni &

Sons, Inc., 44 F.3d 1, 5 (1st Cir. 1994) (disregarding on summary

judgment affidavit which contradicts earlier deposition testimony

with little explanation).  We are therefore   as the district court

was   left to speculate as to the proximity of the pipe to the

injury site.  Thus, we cannot say on this record that the district

court's choice was "manifestly erroneous."  Bogosian, 104 F.3d at

476.

     The district court was proceeding under Massachusetts'

law of product liability.  Plaintiffs had a duty to demonstrate to

the district court "that there was greater likelihood or

probability that the harm complained of was due to causes for which

the defendant was responsible than from any other cause."  Carey v.

General Motors Corp., 387 N.E.2d 583, 586 (Mass. 1979) (quoting

McLaughlin v. Bernstein, 249 N.E.2d 17, 22 (Mass. 1969)).  Under

Massachusetts tort law, proof of causation "must be such as to make

the defendant's causality 'appear more likely or probable in the

sense that actual belief in its truth exists in the mind or minds

of the tribunal notwithstanding any doubts that still linger

there.'" Lynch v. Merrell-National Lab., 830 F.2d 1190, 1197 (1st

Cir. 1987) (quoting Smith v. Rapid Transit, Inc., 58 N.E.2d 754,

755 (Mass. 1945)).  In light of this standard, and the fact that

Mr. Schubert suffered from an underlying congenital defect and was

involved in a relatively forceful automobile collision, we are not

left with a "definite and firm conviction that the court below

committed a clear error of judgment,"  Josephson, 218 F.2d at 182,

in requiring a certain level of factual specificity.  See alsoJoiner, 118 S. Ct. at 517 (relying on "general rule" that "it is

very much a matter of discretion with the court whether to receive

or exclude the evidence; but the appellate court will not reverse

in such a case, unless the ruling is manifestly erroneous")

(quoting Spring Co. v. Edgar, 99 U.S. 645, 658 (1878)).

     We also note that the record indicates that the

plaintiffs should have been well aware of the district court's

concern over this issue.  Although the initial motion to exclude

was denied, it was done so without prejudice.  Similarly, the

clerk's notes from the summary judgment oral argument indicate that

a colloquy ensued concerning the "admissable [sic] evidence upon

which expert witness bases testimony," with Judge Keeton apparently

indicating his concern that "no black-box opinions will go to the

jury."

     "'The very mission of the summary judgment procedure is

to pierce the pleadings and to assess the proof in order to see

whether there is a genuine need for trial.'"  DeNovellis v.

Shalala, 124 F.3d 298, 305-06 (1st Cir. 1997) (quoting Fed. R. Civ.

P. 56 advisory committee's notes, 1963 Amendment) (emphasis ours).

In assessing this proof, Rule 56(e) charges the district court with

ensuring that the evidence proffered in opposition to a motion for

summary judgment has a foundation sufficient to allow it to reach

a jury.  If the nonmoving party is unable to provide such

admissible proof, then the court is unable to say that there exists

a "genuine need for trial."  Id. (emphasis ours).

     The district court's grant of summary judgment is

affirmed.  Costs on appeal awarded to appellee.