Istvan v. Honda Motor Co., Ltd., 122011 FED6, 10-1555

Docket Nº:10-1555
Opinion Judge:CLAY, Circuit Judge.
Party Name:ANDREW J. ISTVAN, Personal Representative of the Estate of Andrew Jason Istvan, Deceased, Plaintiff, v. HONDA MOTOR COMPANY, LTD..; HONDA R&D COMPANY LIMITED; AMERICAN HONDA MOTOR CO., INC.; and AMERICAN HONDA INCORPORATED, Defendants.
Judge Panel:BEFORE: MERRITT, CLAY, and SUTTON, Circuit Judges
Case Date:December 20, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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ANDREW J. ISTVAN, Personal Representative of the Estate of Andrew Jason Istvan, Deceased, Plaintiff,

v.

HONDA MOTOR COMPANY, LTD..; HONDA R&D COMPANY LIMITED; AMERICAN HONDA MOTOR CO., INC.; and AMERICAN HONDA INCORPORATED, Defendants.

No. 10-1555

United States Court of Appeals, Sixth Circuit

December 20, 2011

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: MERRITT, CLAY, and SUTTON, Circuit Judges

CLAY, Circuit Judge.

In this diversity case governed by 28 U.S.C. § 1332, plaintiff Andrew J. Istvan, personal representative of his son's estate, appeals an order granting summary judgment in favor of the defendants (collectively "Honda") on Istvan's negligent manufacture and breach of warranty claims. Because Istvan failed to create a genuine issue of material fact on several elements of his claims, we AFFIRM.

STATEMENT OF FACTS

Samir Raval bought a 2002 Honda CBR954RR motorcycle in May 2002. Roughly one year later, Raval sold it to the decedent, Andrew Jason Istvan. Shortly after Istvan's purchase, a Michigan service technician completed a product update on Istvan's CBR954RR, which included new steering bearings aimed at improving the motorcycle's steering balance.

At roughly 9:00 p.m. on June 11, 2005, the decedent and his friend, Jonathan O'Neill, were riding their motorcycles southbound on Brigden Road in Sarnia, Ontario, Canada. At some point, the decedent's front tire began wobbling. O'Neill, who was riding a head of the decedent and on the right side of the same lane, slowed his motorcycle and watched the decedent pull his bike to the right side of the road. The decedent's motorcycle then rode into a ditch adjacent to the road and flipped end-over-end several times. The decedent was thrown from the motorcycle and suffered fatal injuries.

In a police report prepared shortly after the crash, O'Neill said he saw the front tire begin to wobble while he was looking in his rear view mirror. O'Neill signed the police statement, but the body of the statement was not written in O'Neill's handwriting. In a second statement he gave to police five days later, O'Neill said that he saw the decedent's front tire begin to wobble when he looked into his mirror and then back over his shoulder. O'Neill testified identically in his deposition. O'Neill also discounted the possibility that the decedent rode his motorcycle hazardously leading up to the accident. Having ridden with the decedent four or five times before, O'Neill testified that he never saw the decedent do a "wheelie" or an "endo" or otherwise take any serious risks.1

Istvan offered Pedro Gregorio as an expert to testify that the CBR954RR was not reasonably safe and that an alternative design was feasible. Gregorio obtained a master's degree in mechanical engineering from the University of Michigan in 1991, with a focus on automotive engineering, and has worked as a freelance writer for a magazine entitled Midwest Motorcyclist since 2000. In his deposition, Gregorio theorized that the CBR954RR's "steering geometry" made the motorcycle vulnerable to "steering oscillations, " which in turn could cause an operator to lose control of his motorcycle. Gregorio also suggested that the installation of a steering damper would have reduced the tendency of the CBR954RR's steering system to oscillate. A steering damper is a device, akin to a shock absorber installed on an automobile, designed to prevent a motorcycle's front wheel from oscillating left or right when traveling over unstable road conditions.

The district court decided that Gregorio's testimony was unreliable under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and concluded that Istvan failed to raise a genuine issue of fact regarding the essential elements of defect, alternative design, and causation. The district court entered summary judgment and Istvan timely appealed.

DISCUSSION

I. Exclusion of Plaintiff's Expert Witness

A. Legal Framework

Istvan challenges the district court's decision to exclude Gregorio's testimony.2 We review a district court's decision to exclude expert testimony for an abuse of discretion. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 258 (6th Cir. 2001). A district court abuses its discretion if its ruling stems from "an erroneous view of the law or a clearly erroneous assessment of the evidence." Ky. Speedway, LLC v. Nat'l Ass'n of Stock Car Auto Racing, Inc., 588 F.3d 908, 915 (6th Cir. 2009) (internal quotation marks and citation omitted). We will only reverse for an abuse of discretion where we are left with "the definite and firm conviction that [the district court] committed a clear error of judgment in its conclusion." In re Scrap Metal Litig., 527 F.3d 517, 528 (6th Cir. 2008) (internal quotation marks and citation omitted).

Istvan's six claims are species of Michigan's two most prominent products liability causes of action, negligent manufacture and breach of warranty. In a case like this one, in which a plaintiff alleges the same party both manufactured and sold the accused product, the elements of negligent manufacture and breach of warranty are "for all intents and purposes, identical." Hollister v. Dayton Hudson Corp., 201 F.3d 731, 736–37 (6th Cir. 2000); see Prentis v. Yale Mfg. Co., 365 N.W.2d 176, 186–87 (Mich. 1984). Istvan was required to demonstrate (1) that the product was not reasonably safe when it left the control of the manufacturer, and (2) that "a practical and technically feasible alternative production practice was available that would have prevented the harm without significantly impairing the usefulness or desirability of the product." Hollister, 201 F.3d at 738; Croskey v. BMW of North America, Inc., 532 F.3d 511, 516 (6th Cir. 2008) (citing Mich. Comp. Laws § 600.2946(2)).

Michigan law requires the trier of fact to engage in a "risk-utility balancing test" in order to decide whether a product was defective. Id. The purpose of the risk-utility test lies in allowing the "jury to balance the magnitude of the risk versus the feasibility of other design alternatives, or otherwise to weigh the 'unreasonableness' of risks arising from the [design chosen]." Miller v. Ingersoll-Rand Co., 148 F.App'x 420, 423 (6th Cir. 2005) (citing Siminski v. Klein Tools, Inc., 840 F.2d 356, 358 (6th Cir. 1988)). Under the risk-utility test, the plaintiff must offer evidence demonstrating:

(1) that the severity of the injury was foreseeable by the manufacturer;

(2) that the likelihood of the occurrence of the injury was foreseeable by the manufacturer at the time of distribution of the product;

(3) that there was a reasonable alternative design available;

(4) that the alternative available design was practicable;

(5) that the available and practicable reasonable alternative design would have reduced the foreseeable risk of harm posed by the defendant's product; and

(6) that the omission of the available and practicable reasonable alternative design rendered the defendant's product not reasonably safe.

Croskey, 532 F.3d at 516 (internal quotations and citations omitted). An alternative design is practical and feasible only if the technical knowledge "relating to production of the product" was "developed, available, and capable of use in the production of the product and was economically feasible" at the time the product in question was manufactured. Mich. Comp. Laws § 600.2946(2). Either direct or circumstantial evidence suffices to support the risk-utility showings required to prove a design defect. Croskey, 532 F.3d at 516.

A plaintiff may offer proof of the risk-utility...

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