Long et al v. TRW Vehicle Safety Systems Inc., No. 2:2009cv02209 - Document 162 (D. Ariz. 2011)
Court Description: ORDER denying 115 Motion for Summary Judgment; denying 118 Motion to Strike ; denying 119 Motion to Strike ; denying 154 Motion to Strike. The Court will set a final pretrial conference by separate order. Signed by Judge David G Campbell on 6/20/2011.(NVO)
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Long et al v. TRW Vehicle Safety Systems Inc. 1 Doc. 162 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 Kenneth Long, the surviving father of Cynthia Jo Johnson, deceased, as Guardian and/or next best friend of minors, Christopher Dean Johnson and Sean McKnight; and Cherish Leighan Rogers, No. CV-09-2209-PHX-DGC ORDER Plaintiffs, 13 14 vs. 15 TRW Vehicle Safety Systems, Inc., a foreign corporation, 16 Defendant. 17 18 This case arises from a single-vehicle rollover accident that occurred nearly six 19 years ago in La Paz County, Arizona. Plaintiffs assert strict product liability, negligence, 20 and wrongful death claims against seatbelt manufacturer TRW Vehicle Safety Systems, 21 Inc. Doc. 1-1 at 5-11. Defendant has filed a motion for summary judgment (Doc. 115), 22 motions to exclude the testimony of Plaintiffs’ expert witnesses (Docs. 118, 119), and a 23 motion to strike Plaintiffs’ controverting statement of facts (Doc. 154). For reasons 24 stated below, the motions will be denied.1 25 26 27 28 1 The requests for oral argument are denied because the issues have been fully briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). Dockets.Justia.com 1 I. Background. 2 On June 19, 2005, Phillip McKnight drove his 2003 Ford Expedition west on I-10 3 with Sean McKnight, Cynthia Jo Johnson, Christopher Johnson, Cherish Rogers, and 4 several other passengers. The vehicle became uncontrollable and rolled over three times 5 after the tread separated from the right rear tire. Cynthia Jo and Sean were ejected from 6 the vehicle. Tragically, Cynthia Jo died and Sean suffered severe head trauma. 7 Two years later, Plaintiffs and several other persons brought suit in state court 8 against Ford Motor Company and Continental Tire North America, Inc. See Long v. 9 Ford Motor Co. (“Long I”), No. CV2007-010952 (Ariz. Super. Ct. June 18, 2007). TRW 10 Automotive U.S., LLC (“AUS”), the alleged manufacturer of the vehicle’s seatbelts, was 11 added as a defendant in October 2007. See id. 12 District Court and assigned to Judge Teilborg. Long I, No. CV-07-2206-PHX-JAT (D. 13 Ariz. Nov. 14, 2007); Docs. 1, 9. The case was then removed to this 14 In November 2008, more than eight months after the deadline to amend pleadings 15 had expired, Plaintiffs sought leave to replace Defendant AUS with TRW Vehicle Safety 16 Systems, Inc. (“VSSI”) on the ground that VSSI was the actual manufacturer of the 17 seatbelts and thus the proper defendant in the suit. Long I, Docs. 26, 84. Judge Teilborg 18 denied the motion to amend, finding that Plaintiffs’ decision not to join VSSI prior to the 19 deadline was tactical and Plaintiffs had not otherwise shown good cause for the delay. 20 Doc. 101. Plaintiffs settled with Ford and Continental and, on July 29, 2009, Judge 21 Teilborg granted Plaintiffs’ motion to voluntarily dismiss the claims against AUS without 22 prejudice. Docs. 102, 105. 23 Several weeks after the dismissal of Long I, Plaintiffs filed the instant action 24 against VSSI in state court. See Long v. TRW Vehicle Safety Sys., Inc. (“Long II”), 25 CV2009-026565 (Ariz. Super. Ct. Aug. 19, 2009). The case was removed to this Court 26 one month later. Long II, No. CV-09-2209-PHX-DGC (D. Ariz. Oct. 21, 2009); Doc. 1. 27 Defendant VSSI moved to dismiss the complaint on the ground of claim preclusion 28 -2- 1 (res judicata). Doc. 10. The Court denied the motion in an order dated February 26, 2 2010. Doc. 20. 3 I. Summary Judgment Standard. 4 A party seeking summary judgment “bears the initial responsibility of informing 5 the district court of the basis for its motion, and identifying those portions of [the record] 6 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 7 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the 8 evidence, viewed in the light most favorable to the nonmoving party, shows “that there is 9 no genuine issue as to any material fact and that the movant is entitled to judgment as a 10 matter of law.” Fed. R. Civ. P. 56(c)(2). Only disputes over facts that might affect the 11 outcome of the suit will preclude the entry of summary judgment, and the disputed 12 evidence must be “such that a reasonable jury could return a verdict for the nonmoving 13 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 14 II. Summary Judgment Motion. 15 Defendant seeks summary judgment on several grounds: (1) Plaintiffs’ claims are 16 barred by the doctrines of claim preclusion and duplicative litigation, (2) Plaintiffs are 17 without admissible and probative expert testimony and thus cannot prove their strict 18 product liability claim,2 (3) the violent nature of the accident constitutes a superseding 19 legal cause of Plaintiffs’ injuries, and (4) Defendant cannot be held liable as a mere 20 component supplier to Ford. Doc. 115. The Court will address these arguments below. 21 A. The Doctrines of Claim Preclusion and Duplicative Litigation. 22 In seeking summary judgment on the ground of claim preclusion, Defendant 23 essentially reasserts the arguments made in support of its motion to dismiss. See Docs. 24 10 at 4-9, 115 at 12-13. The Court previously rejected those arguments, finding that the 25 claims asserted against VSSI in this case are not barred by the doctrine of claim 26 27 28 2 Defendant also asserts that if Plaintiffs cannot prevail on the strict product liability claim, then the negligence and wrongful death claims necessarily fail. Doc. 115 at 11 n.4. -3- 1 preclusion because AUS and VSSI are different parties and Long I produced no final 2 judgment on the merits with respect to the claims asserted against AUS. Doc. 20 at 3-7. 3 The Court finds no basis to deviate from that conclusion. 4 Defendant further asserts that Plaintiffs claims are barred by the related rule 5 against duplicative litigation. Doc. 115 at 13-14.3 6 maintaining “‘two separate actions involving the same subject matter at the same time in 7 the same court and against the same parties.’” Adams v. Cal. Dep’t of Health Servs., 487 8 F.3d 684, 688 (9th Cir. 2007) (citation omitted). Because Long I was dismissed prior to 9 the filing of this action, there is no other ongoing litigation. The Court does not find that 10 Plaintiffs filed the case at bar merely to circumvent the denial of their untimely motion to 11 amend in Long I. See Doc. 20 at 8 (distinguishing Estrada v. City of San Luis, No. CV- 12 08-0945-PHX-DGC, 2008 WL 3286112 (D. Ariz. Aug. 7, 2008)). Moreover, while the 13 claims asserted in Long I and this case are similar, they are brought against different 14 parties – AUS in Long I and VSSI in this action. See Atl. Recording Corp. v. Andersen, 15 No. CV-05-933-AS, 2008 WL 151825, at *1-2 (D. Or. Jan. 14, 2008) (distinguishing 16 Adams because the plaintiff was not pursuing duplicative litigation and previously had 17 not litigated claims against the current defendant). In the exercise of its discretion, see 18 Adams, 487 F.3d at 688, the Court declines to dismiss Plaintiffs’ claims under the 19 duplicative litigation doctrine. This rule prevents plaintiffs from 20 B. No Expert Testimony Is Needed to Establish a Design Defect. 21 Plaintiffs allege that the seatbelts worn by Cynthia Jo Johnson and Sean 22 McKnight, and designed by Defendant VSSI, were defective in that they failed to restrain 23 Cynthia Jo and Sean during the rollover accident. Doc. 1-1 at 5-13.4 Summary judgment 24 25 26 27 28 3 Defendant previously raised this defense in its reply to the motion to dismiss (Doc. 19 at 5-6), but the Court declined to consider it on the ground that defenses raised for the first time in a reply brief are deemed waived (Doc. 20 at 8 n.5). 4 There is a genuine dispute as to whether Cynthia Jo was wearing her seat belt at the time of the accident. See Docs. 115 at 5-6 & n.2, 148 ¶ 5. For purposes of Defendant’s summary judgment motion, this factual dispute must be resolved in favor of -4- 1 is warranted, Defendant contends, because expert testimony is required to prove the 2 alleged design defect and the testimony of Plaintiffs’ experts is inadmissible and 3 otherwise too speculative to establish a defect in the belts. Doc. 115 at 15-16. Plaintiffs 4 argue, correctly, that the alleged defects in the seatbelts can be proven without expert 5 testimony. Doc. 142 at 7-9. The Court will deny summary judgment in this regard.5 6 “A manufacturer is strictly liable for injuries caused by use of any product that 7 was in a ‘defective condition unreasonably dangerous.’” Golonka v. GM Corp., 65 P.3d 8 956, 962 (Ariz. Ct. App. 2003) (quoting Dart v. Wiebe Mfg., Inc., 709 P.2d 876, 878 9 (1985)). In Arizona, two models may be used to determine whether a product was 10 defectively designed: the consumer expectation test and risk/benefit analysis. Id. 11 Defendant’s motion addresses only risk/benefit analysis, arguing that the claimed design 12 defect will “require the production of expert testimony showing that the inherent risk of 13 danger for the chosen design outweighs its benefits.” Doc. 115 at 12. 14 Under the consumer expectation test, “the fact-finder determines whether the 15 product ‘failed to perform as safely as an ordinary consumer would expect when used in 16 an intended or reasonable manner.’” Golonka, 65 P.3d at 962 (quoting Dart, 709 P.2d at 17 879). No expert testimony is necessary to establish a design defect under the consumer 18 expectation test because the test “focuses on the safety expectations of an ordinary 19 consumer rather than those of an expert.” Bell v. BMW, 181 Cal. App. 4th 1108, 1129 20 (Ct. App. 2010). Stated differently, “‘where the minimum safety of a product is within 21 the common knowledge of lay jurors, expert witnesses may not be used to demonstrate 22 23 24 25 26 27 28 Plaintiffs. See Anderson, 477 U.S. at 255. The Court does not find the affidavit testimony on this issue (Doc. 148-1 at 3) to be inadmissible “sham” testimony. See Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). Nor does the Court find the evidence of seat belt use to be in “equipoise” such that it may not be submitted to the jury. See Doc. 157 at 6. 5 The Court accordingly need not, at the summary judgment stage, decide whether the testimony of Plaintiffs’ expert witnesses is admissible. The motions to exclude (Docs. 118, 119) will be denied without prejudice. Defendant may seek to exclude expert testimony at trial by filing motions in limine consistent with the separate order setting a final pretrial conference. -5- 1 what an ordinary consumer would or should expect.’” Id. (quoting Soule v. GM Corp., 8 2 Cal. 4th 548, 557 (1994)); see Albee v. Continental Tire N. Am., Inc., --- F. Supp. 2d ----, 3 2011 WL 221421, at *3 (E.D. Cal. Jan. 21, 2011) (expert testimony unnecessary under 4 consumer expectation test); Sigler v. Am. Honda Motor Co., 532 F.3d 469, 484 n.7 (6th 5 Cir. 2008) (same); Fisher v. Ford Motor Co., 13 F. Supp. 2d 631, 638 n.10 (N.D. Ohio 6 1998) (same). Application of the consumer expectation test is warranted where “the 7 ordinary consumer, through the use of a product, has developed an expectation regarding 8 the performance safety of the product.” Brethauer v. GM Corp., 211 P.3d 1176, 1183 9 (Ariz. Ct. App. 2010). 10 The Court finds persuasive the conclusion reached in Brethauer and several other 11 cases that consumers have developed reasonable expectations about how safely seatbelts 12 should perform. 13 “buckling up.” “In short, most consumers use seatbelts daily and are familiar with their 14 single, safety-related function: keeping belted passengers restrained within a vehicle.” 15 Brethauer, 211 P.3d at 1184. “When a seat belt, designed to be an instrument of 16 protection, becomes an instrument of life-threatening injury, a consumer is justified in 17 concluding that it did not perform as safely as promised.” GM Corp. v. Farnsworth, 965 18 P.2d 1209, 1221 (Alaska 1998). Contrary to Defendant’s assertion (Doc. 115 at 14), 19 seatbelts are not complex products about which no ordinary consumer could form an 20 expectation regarding their safety and performance in automobile accidents. See Jackson 21 v. GM Corp., 60 S.W.3d 800, 806 (Tenn. 2001) (rejecting similar argument); see also 22 Tran v. Toyota Motor Corp., 420 F.3d 1310, 1314 (11th Cir. 2005) (noting that the 23 consumer expectation test applies to seatbelts under Florida law). Our society is taught from a young age about the importance of 24 Brethauer’s conclusion that consumers have safety expectations about seatbelts is 25 mere nonbinding dicta, Defendant asserts, because the conclusion was reached “in the 26 context of an intermediate appellate court passing on – and affirming – a trial court’s 27 failure to instruct the jury about the consumer expectation test.” 28 -6- Doc. 157 at 8 1 (emphasis in original). In affirming the defense verdict on the ground of harmless error, 2 the court of appeals explicitly found that “the trial court erred by failing to instruct the 3 jury on the consumer expectation test[.]” Brethauer, 211 P.3d at 1185. In making that 4 finding, the court necessarily was required to “decide whether an ordinary consumer’s 5 expectation concerning a seatbelt’s function equates to an expectation concerning the 6 seatbelt’s safety performance.” Id. at 1183 (emphasis added). The court’s affirmative 7 answer to that question is not reasonably construed as mere nonbinding dicta. But even if 8 it were to be so construed, it is nonetheless instructive as to how the Arizona Supreme 9 Court would likely decide the issue. See Ariz. Elec. Power Co-op, Inc. v. Berkeley, 59 10 F.3d 988, 991 (9th Cir. 1995) (when deciding a novel state law issue, a federal court must 11 predict how the highest state court would decide the issue using intermediate appellate 12 court decisions and decisions from other jurisdictions); see also Smith v. Allstate Ins. Co., 13 202 F. Supp. 2d 1061, 1064-65 (D. Ariz. 2002) (declining to certify a novel legal 14 question to the state supreme court where precedents from other jurisdictions “appear to 15 be nearly uniform – indicating a lack of serious debate”). 16 Defendant’s reliance on Woodward v. Chirco Construction Co., 687 P.2d 1275 17 (Ariz. Ct. App. 1984), is misplaced. That case involved the alleged negligent 18 construction of a house, and expert testimony was required because no ordinary 19 homebuyer would know whether a reasonable builder in the community would have 20 obtained a soil test prior to construction. 687 P.2d at 1277; see also Pruitt v. GM Corp., 21 72 Cal. App. 4th 1480, 1483 (Ct. App. 1999) (the deployment of an air bag is not part of 22 the “everyday experience” of the consuming public); Soule v. GM Corp., 8 Cal. 4th 548, 23 556, 570 (1994) (no ordinary consumer would know whether a design defect allowed the 24 vehicle’s front wheel to break free, collapse rearward, and smash the floorboard into the 25 plaintiff’s feet). 26 Defendant cites Gray v. GM Corp., 312 F.3d 240, 242 (6th Cir. 2002), for the 27 proposition that expert testimony is required to prove claims of defectively designed 28 -7- 1 seatbelts in rollover cases. Doc. 157 at 8 n.3. But Gray does not discuss the consumer 2 expectation test. Under Arizona law – the applicable law in this case – the consumer 3 expectation test applies to claims that seatbelts were defectively designed in that they 4 failed to restrain belted passengers. See Brethauer, 211 P.3d at 1183-84. 5 In summary, no expert testimony is necessary for Plaintiffs to prove their strict 6 product liability claim. The Court will deny summary judgment to the extent Defendant 7 argues that expert testimony is required and the testimony of Plaintiffs’ experts is 8 inadmissible and otherwise too speculative to create a triable issue. Docs. 115 at 14-16, 9 157 at 5-9; see Martinez v. Terex Corp., 241 F.R.D. 631, 642 (D. Ariz. 2007) (denying 10 summary judgment on design defect claim even absent expert testimony where guards 11 installed on a cement mixer failed to prevent the plaintiff from being pulled under the 12 mixer); Anderson v. Nissei ASB Mach. Co., 3 P.3d 1088, 1092 (Ariz. Ct. App. 1999) 13 (noting that generally the jury determines whether a product is defective and whether it 14 proximately caused the plaintiff’s injuries). 15 C. Causation. 16 Defendant contends that the sheer violence of the rollover accident supersedes any 17 seatbelt defect as the proximate cause of Plaintiffs’ injuries. Doc. 115 at 16. “The 18 proximate cause of an injury is defined in Arizona as ‘that which, in a natural and 19 continuous sequence, unbroken by any efficient intervening cause, produces and injury, 20 and without which the injury would not have occurred.’” Shelburg v. City of Scottsdale 21 Police Dep’t, No. CV-09-1800-NVW, 2010 WL 3327690, at *9 (D. Ariz. Aug. 23, 2010) 22 (quoting Saucedo v. Salvation Army, 24 P.3d 1274, 1278 (Ariz. Ct. App. 2001)). 23 Generally, where “the violence of a crash is the effective efficient cause of plaintiff’s 24 injuries to the extent that it supersedes other factors such as defective design and makes 25 them immaterial, the plaintiff cannot recover.” Endicott v. Nissan Motor Corp., 73 Cal. 26 App. 3d 917, 926 (Ct. App. 1977). Under Arizona law, however, “[a] superseding cause, 27 sufficient to become the proximate cause of the final result and relieve the defendant of 28 -8- 1 liability, arises only when the intervening force was unforeseeable and may be described, 2 with the benefit of hindsight, as extraordinary.” Shelburg, 2010 WL 3327690, at *9 3 (citing Robertson v. Sixpence Inns of Am., 789 P.2d 1040, 1047 (Ariz. 1990)); see Rossell 4 v. Volkswagen of Am., 709 P.2d 517, 526 (Ariz. 1985); Ontiveros v. Borak, 667 P.2d 200, 5 206 (Ariz. 1983). 6 For several reasons, the Court cannot conclude as a matter of law that the severity 7 of the rollover accident was a superseding cause of Plaintiffs’ injuries. First, a jury might 8 well conclude that when the driver of a large sport utility vehicle loses control due to a 9 separated tire tread, it is foreseeable that the vehicle could rollover multiple times and 10 become severely deformed. “‘It is not necessary that Defendant[] foresaw the actual 11 harm that occurred, only that the harm could occur.’” Fletcher v. U-Haul Co. of Ariz., 12 No. 2:07-cv-01193 JWS, 2008 WL 509331, at *2 (D. Ariz. Feb. 22, 2008) (quoting 13 Petolicchio v. Santa Cruz County Fair & Rodeo Ass’n, Inc., 866 P.2d 1342, 1349 (Ariz. 14 1994)). Second, even with the benefit of hindsight, a jury reasonably could conclude that 15 a multiple-rollover accident following a tread separation “is not so extraordinary that a 16 reasonable person would not anticipate this danger.” Id. (a vehicle colliding with a van 17 broken down on the side of a highway is not necessarily an extraordinary event). Third, 18 where the alleged design defect increases the foreseeable risk of a particular harm 19 occurring from an intervening force, the defendant is not relieved of liability. See id.; 20 Ontiveros, 667 P.2d at 206. Plaintiffs note, correctly, that the accident in this case is an 21 example of harm which seatbelts are designed to prevent. Doc. 142 at 18. Finally, there 22 were seven people in the vehicle when it rolled over, but the two most seriously hurt were 23 the only passengers whose seatbelts are alleged to have failed. A jury reasonably could 24 infer that the alleged defective seatbelts “contributed at least ‘a little’” to Plaintiffs’ 25 injuries. Robertson, 789 P.2d at 1047. 26 Defendant’s reliance on Estate of Bigham v. DaimlerChrysler Corp., 462 F. Supp. 27 2d 766 (E.D. Ky. 2006), is misplaced. That case involved “crashworthiness” claims 28 -9- 1 under Kentucky law, which required the plaintiff to establish (1) an alternative, safer 2 design, (2) the injuries, if any, that would have resulted had the alternative design been 3 used, and (3) some method of showing the extent of enhanced injuries attributable to the 4 defective design. 462 F. Supp. 2d at 773. Defendant has cited no legal authority showing 5 that Plaintiffs are required to make a similar prima facie showing under Arizona law. 6 Moreover, a jury reasonably could conclude that the alleged defective seatbelts were a 7 “substantial factor” in bringing about Plaintiff’s harm. Id. at 778. 8 In summary, there is a triable issue as to whether the alleged design defect 9 proximately caused Plaintiffs’ injuries. The Court will deny summary judgment in this 10 respect. See Petolicchio, 866 P.2d at 1348 (noting that proximate cause generally is 11 question of fact for the jury). 12 D. The Component Supplier Defense. 13 Defendant argues that because the seat belts at issue were designed to meet Ford’s 14 specifications, Defendant served only as a component supplier and therefore is relieved 15 of any duty to analyze the design and assembly of the completed product. Doc. 115 at 16 17-18. Defendant cites no Arizona law in support of this argument. Even if the Court 17 were to assume that the component supplier defense is available under Arizona law, the 18 “defense requires a showing that the component part standing alone is not defective.” 19 Yu-Santos v. Ford Motor Co., No. 1:06-CV-01773-AWI-DLB, 2009 WL 1392085, at *16 20 (E.D. Cal. May 14, 2009); see Restatement (Third) of Torts: Products Liability § 5. 21 Defendant has not shown, as a matter of undisputed fact, that there was no defect in the 22 component part. 23 component supplier defense. 24 relieved from liability where the alleged defect was in the seatbelt itself). 25 III. Summary judgment therefore will be denied with respect to the See Yu-Santos, 2009 WL 1392085, at *16 (VSSI not Motion to Strike. 26 Plaintiffs’ controverting statement of facts should be stricken, Defendant contends, 27 because it avoids direct responses followed by citations to the record and includes facts 28 - 10 - 1 not directly responding to Defendant’s own statement of facts. Doc. 154 at 2. The Court 2 finds that the controverting statement of facts (Doc. 148) substantially complies with 3 Local Rule of Civil Procedure 56.1(b). The motion to strike will be denied. 4 IT IS ORDERED: 5 1. Defendant’s motion for summary judgment (Doc. 115) is denied. 6 2. Defendant’s motions to exclude the testimony of Plaintiffs’ expert 7 witnesses (Docs. 118, 119) are denied without prejudice. Defendant may seek to exclude 8 expert testimony at trial by filing appropriate motions in limine. 9 10 3. Defendant’s motion to strike Plaintiff’s controverting statement of facts (Doc. 154) is denied. 11 4. The Court will set a final pretrial conference by separate order. 12 Dated this 20th day of June, 2011. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 -
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