33 F.3d 737 (7th Cir. 1994), 92-2297, DePaepe v. General Motors Corp.

Docket Nº:92-2297.
Citation:33 F.3d 737
Party Name:Kenneth DEPAEPE, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
Case Date:August 16, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 737

33 F.3d 737 (7th Cir. 1994)

Kenneth DEPAEPE, Plaintiff-Appellant,



No. 92-2297.

United States Court of Appeals, Seventh Circuit

August 16, 1994

Argued Jan. 21, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Sept. 14, 1994.[*]

David A. Novoselsky, Novoselsky & Associates, Chicago, IL (argued), Richard M. Goodman, Goodman, Lister, Seikaly and Peters, Detroit, MI, Stephen M. Passen, Chicago, IL, for plaintiff-appellant.

Hugh C. Griffin (argued), Diane I. Jennings, L. Anthony Lehr, Thomas J. Burke, Jr., Lord, Bissell & Brook, Chicago, IL, for defendant-appellee.

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Before MANION, KANNE, and ROVNER, Circuit Judges.


Kenneth DePaepe became a quadriplegic when his 1984 Buick Regal was struck by another vehicle on August 15, 1984. He filed this diversity action against the Buick's manufacturer, General Motors ("GM"), and a jury returned a verdict in GM's favor after a lengthy trial. DePaepe's appeal raises two important issues under Illinois law: whether it was appropriate to instruct the jury on the concept of "enhanced injury" where the evidence established that plaintiff suffered a single, indivisible harm, and whether evidence that DePaepe's vehicle had a functional restraint system was properly admitted. We find no error in the limited introduction of seat belt evidence here. Yet because the jury instructions on enhanced injury were inconsistent with Illinois law, and because, in our view, those instructions prejudiced DePaepe's substantial rights, we reverse the judgment below and remand for a new trial.


On August 15, 1984, DePaepe's 1984 Buick Regal was struck on the passenger side by an automobile driven by Rosemary Galganski-Bartlett. The collision caused the Buick to veer across two lanes of traffic and to hit a curb before stopping. Witnesses found DePaepe on the front floor of the vehicle with his head against the passenger-side door. His legs were under the steering wheel, and his feet were at an angle on the driver's seat. It was later determined that DePaepe had suffered a multiple fracture of his spinal cord, leaving him a quadriplegic.

DePaepe sued GM in federal court, invoking our diversity jurisdiction. 1 He attempted to establish through expert testimony at trial that the Buick's sun visor/header system was unreasonably dangerous and that it had caused his injury. DePaepe's primary expert, Steven Syson, explained to the jury that a "header" is the horizontal, metal structure that runs across the top of the windshield, providing support as well as a mounting surface for the windshield. In Syson's opinion, a header should be designed with a smooth surface, instead of a box-like rectangular design, so that in an accident, an occupant's head will glide past the header and into the windshield. Syson explained that automobile windshields are designed with more energy absorbing capacity than the metal header, so that the windshield will minimize the rate of deceleration when an object strikes it, thereby reducing the risk of serious injury. It was Syson's opinion that the header in DePaepe's vehicle was not a "glide" header because of its shape and the ridges that GM had placed on its surface.

In attempting to reconstruct the accident, Syson testified that the collision between the two vehicles caused DePaepe to be thrown forward and to the right. Syson believed that DePaepe's head was moving at approximately a forty-five degree angle when it brushed the edge of the rear-view mirror, hit the roof liner, and then was "pocketed" by the ridges in the header. This abruptly stopped the progress of DePaepe's head as his body moved steadily toward the dashboard. According to Syson, DePaepe's forehead then contacted the edge of the passenger-side sun visor, which had moved forward slightly in the initial collision, and pushed the visor into the windshield. This served to further entrap DePaepe's forehead as his torso continued into the dashboard. The abrupt deceleration of DePaepe's head, in connection with his moving torso, caused a compression of his neck and spine, resulting in the double fracture of his spinal cord. It was Syson's view that the ridges in the header, in conjunction with the unrecessed and unpadded sun visor, prevented DePaepe's head from gliding smoothly into the windshield, resulting in his tragic injury. Syson believed that GM could and should have used different header and sun visor designs that in all likelihood would have prevented the type of injury incurred here.

GM's experts disputed Syson's claim that either the header or the sun visor were defectively designed. Indeed, they indicated that the header in DePaepe's vehicle included

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certain of the glide characteristics that Syson had identified.

Plaintiff's experts surmised that if DePaepe's head had glided past the header and sun visor and into the windshield, he would have walked away with little or no injury. GM's experts disagreed because they believed that even if the sun visor had been recessed and equipped with additional padding, the energy forces created by the accident were sufficient to produce a similar injury. Indeed, one of GM's experts indicated that DePaepe may have suffered the same injury even had his head struck the windshield directly. After three weeks of such debate, the jury returned a general verdict in GM's favor.


  1. "Enhanced Injury"

    DePaepe's primary argument on appeal is that the district court erred as a matter of law in instructing the jury that he was required to show an "enhanced injury" that was proximately caused by the alleged defect in the sun visor/header system. 2 DePaepe maintains that because he suffered a single, indivisible injury, the concept of enhanced injury had no place in his case. In DePaepe's view, the district court's repeated reference to "enhanced injuries," along with its burden of proof instruction, suggested to the jury that he had to prove first what injuries would have resulted absent the alleged design defect and then the enhanced injuries that were proximately caused by that defect. This, DePaepe suggests, was an impossible burden, as it would require him to divide up a single, indivisible injury and to apportion it between distinct causes. DePaepe further argues that the instructions on enhanced injury were inconsistent with Illinois law, which makes two potential tortfeasors jointly and severally liable for an indivisible injury. DePaepe therefore contends that he is entitled to a new trial so that his claim can be considered by a properly instructed jury. 3

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    We agree with DePaepe that the concept of enhanced injury had no place in this case, but unfortunately, the Illinois courts made that clear only after this trial was complete. 4 In Oakes v. General Motors Corp., 257 Ill.App.3d 10, 194 Ill.Dec. 844, 628 N.E.2d 341 (1993), appeal denied, 155 Ill.2d 563, 198 Ill.Dec. 542, 633 N.E.2d 4 (1994), decided during the pendency of this appeal, the Illinois Appellate Court addressed the very issue presented here. That case too involved an automobile accident in which the plaintiff had sustained a fractured vertebrae, resulting in permanent incomplete quadriplegia. Oakes maintained at trial that his injury had been caused by the vehicle's defective seatback, which collapsed in the rear-end collision, whereas GM argued that Oakes would have suffered the same or similar spinal injuries even had the seatback remained upright. The jury returned a verdict for the plaintiff, and on appeal, GM challenged the trial court's refusal to instruct the jury on enhanced injury, arguing that the court should have required Oakes to separate out his enhanced injuries before he could recover from the vehicle's manufacturer.

    The Illinois Appellate Court rejected GM's arguments, finding them inconsistent with the decisions of the Illinois Supreme Court in Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill.2d 429, 170 Ill.Dec. 633, 593 N.E.2d 522 (1992), and Buehler v. Whalen, 70 Ill.2d 51, 15 Ill.Dec. 852, 374 N.E.2d 460 (1977). Burke and Buehler, the appellate court held, clearly establish in Illinois that "defendants are to be held jointly and severally liable when the plaintiff's injury is indivisible, assuming, of course, that evidence exists to support a finding that each defendant proximately caused the plaintiff's injury." 194 Ill.Dec. at 850-51, 628 N.E.2d at 347-48. 5 The Illinois Supreme Court held in Burke that quadriplegia is a single, indivisible injury [170 Ill.Dec. at 637, 593 N.E.2d at 526], and Oakes therefore determined that GM's enhanced injury instructions were improper, as the company was jointly and severally liable for the entire injury. 194 Ill.Dec. at 851, 628 N.E.2d at 348.

    Significantly, the court rejected the very arguments GM advances here and, in the process, disapproved of the burden imposed on DePaepe below of showing an enhanced injury. As it has done here, GM argued in Oakes:

    notwithstanding the holdings in Burke and Buehler, that application of the enhanced injury doctrine in crashworthiness cases does not require that the injuries be divisible. It maintains, rather, that the doctrine requires the jury to compare all the injuries plaintiff actually sustained in the accident (divisible or indivisible) against all the injuries (divisible or indivisible) that plaintiff would have sustained in the accident absent the alleged defect. Moreover, General Motors argues that the burden is on the plaintiff to prove the enhanced injuries.

    194 Ill.Dec. at 851, 628 N.E.2d at 348. To support these propositions, GM relied in Oakes, as it does here, on Huddell v. Levin, 537 F.2d 726, 737-38 (3d Cir.1976), where the Third...

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