Chaulk by Murphy v. Volkswagen of America, Inc., No. 86-1046

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore POSNER and FLAUM, Circuit Judges, and FAIRCHILD; FLAUM; POSNER
Citation808 F.2d 639
PartiesProd.Liab.Rep.(CCH)P 11,248 Lauren A. CHAULK, Incompetent, by James J. MURPHY, her Guardian ad Litem, Gerald Chaulk and Marion Chaulk, Plaintiffs-Appellants, v. VOLKSWAGEN OF AMERICA, INC., and Volkswagenwerk Aktiengesellschaft, Defendants- Appellees.
Docket NumberNo. 86-1046
Decision Date25 March 1987

Page 639

808 F.2d 639
Prod.Liab.Rep.(CCH)P 11,248
Lauren A. CHAULK, Incompetent, by James J. MURPHY, her
Guardian ad Litem, Gerald Chaulk and Marion
Chaulk, Plaintiffs-Appellants,
v.
VOLKSWAGEN OF AMERICA, INC., and Volkswagenwerk
Aktiengesellschaft, Defendants- Appellees.
No. 86-1046.
United States Court of Appeals,
Seventh Circuit.
Argued Sept. 9, 1986.
Decided Dec. 31, 1986.
Rehearing and Rehearing En Banc Denied March 25, 1987.

James J. Murphy, Gillick, Murphy, Gillick & Wicht, Milwaukee, Wis., for plaintiffs-appellants.

Frank A. Scherkenbach, Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee, Wis., for defendants-appellees.

Before POSNER and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FLAUM, Circuit Judge.

This diversity action is a personal injury suit arising from an automobile accident that occurred in Milwaukee, Wisconsin. Plaintiffs tried the case to a jury on the theories of negligence and products liability. At the close of the evidence, defendants moved for a directed verdict on both claims. The district court allowed the products liability claim to go to the jury, but directed a verdict for defendants on the negligence claim. The jury found for defendants on the products liability claim. Plaintiffs moved for a new trial, challenging the directed verdict on the negligence claim as erroneous. The motion was denied, and the plaintiffs appeal. We reverse the judgment of the district court.

Page 640

I.

The automobile accident that gave rise to this suit occurred at approximately 2:00 a.m. on October 30, 1981, at the intersection of 24th and Wells Streets in Milwaukee, Wisconsin. Plaintiff Lauren Chaulk was the front seat passenger in a 1977 Volkswagen Rabbit. As the Volkswagen entered the intersection, it was broadsided on the passenger side by a 1978 Ford LTD. The drivers of both cars sustained minor injuries. Chaulk, however, was ejected from the car and thrown to the ground some 65 feet away from the estimated point of impact. She was knocked unconscious and remained in a coma for several months.

At trial, plaintiffs argued that the door latch system of the 1977 Volkswagen Rabbit was designed in such a way that the force of a side impact collision could release the latch, and that Chaulk was ejected from the car as a result of just such an inadvertent release. In plaintiffs' view, this latch system was both negligently designed and inherently dangerous.

At the close of the evidence, defendants moved for a directed verdict on both the negligence and the products liability claims. The court granted the motion as to the negligence claim, but permitted the products liability claim to go to the jury. On September 26, 1985, the jury returned a verdict in favor of defendants on the products liability claim. Plaintiffs filed a motion for a new trial on October 4, 1985. The district court denied this motion on December 13, 1985, and the plaintiffs have appealed.

II.

A.

In diversity cases, this court applies the state standard of review to the trial court's decision to grant or deny a directed verdict. Gonzalez v. Volvo of America Corp., 752 F.2d 295, 301 (7th Cir.1985); Davis v. FMC Corp., 771 F.2d 224, 229 (7th Cir.1985); McMahon v. Eli Lilly & Co., 774 F.2d 830, 832 (7th Cir.1985). Because the law of Wisconsin governs in this case, we must apply the Wisconsin standard. In Wisconsin, the standard of review for an appellate court when passing on the correctness of the trial court's decision to direct a verdict is "whether the trial court was clearly wrong." State v. Leach, 124 Wis.2d 648, 370 N.W.2d 240, 249 (1985); Greiten v. LaDow, 70 Wis.2d 589, 235 N.W.2d 677, 683 (1975).

A Wisconsin trial court should not direct a verdict if there is "any credible evidence which under a reasonable view would support a verdict contrary to that which is sought." State v. Leach, 370 N.W.2d at 249 (quoting Thompson v. Howe, 77 Wis.2d 441, 253 N.W.2d 59, 62 (1977)). 1 In this case, plaintiffs' evidence of negligence was not only credible but substantially uncontroverted by defendants. We therefore conclude that the trial court's decision to direct the verdict on the negligence claim in favor of defendants was "clearly wrong." 2

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B.

In design defect cases, "[a]ll that it is necessary to prove [negligence] is that the product is designed with a lack of ordinary care and that lack of care resulted in injury." Greiten, 235 N.W.2d at 685; see also Fischer v. Cleveland Punch & Shear Works, 91 Wis.2d 85, 280 N.W.2d 280, 283 (1979) ("A cause of action in negligence requires proof that the defendant failed to exercise ordinary care and that the act or omission complained of was the cause of the plaintiff's injury."). "Ordinary care" involves the concept of foreseeability. Greiten, 235 N.W.2d at 685; Fischer, 280 N.W.2d at 283. Therefore, for plaintiffs to be entitled to a new trial on the issue of negligence, the record must clearly show credible evidence as to (1) a lack of ordinary care, including the foreseeability of the accident; (2) causation; and (3) injury. 3 We hold that the plaintiffs presented some credible evidence as to each of these issues. 4

Page 642

That there was some credible evidence as to the issues of causation and injury is not seriously disputed here. At trial, plaintiffs' negligence case rested on the testimony of one expert witness, Mr. Jack Martens. Martens, an engineer with expertise in automobile safety, testified that in his opinion the cause of Chaulk's ejection from the car, and therefore the cause of her injuries, was a negligently designed latch system. The latch system is designed so that in theory, if the door were pushed inward in a side impact collision, the inward movement could release the latch. In Martens' opinion, such an inadvertent release caused Chaulk's ejection from the automobile. Although defendants presented opposing testimony that Chaulk was ejected through the passenger window rather than the door, and that the door only opened after her exit, on appeal they do not argue that plaintiffs' evidence as to causation was incredible. Chaulk's injuries are similarly not in dispute.

The central issue in this case is therefore whether Martens presented credible evidence as to Volkswagen's failure to exercise ordinary care. We find that Martens' evidence was not only credible but uncontroverted by the defendants. Martens testified that in his opinion Volkswagen was negligent in designing the 1977 Rabbit latch system. He stated that a reasonable design engineer should have foreseen both the possibility of a side impact collision, and the possibility of inadvertent release when this latch system was struck in such a collision. He testified that alternate, safer designs were available at the time of production of this particular Volkswagen model. Martens further stated that later in the 1977 model year--after the model in question was designed--Volkswagen changed its door handle and door latch design. In Martens' opinion, this new latch would not have activated in the same kind of collision.

The defendants argue, nevertheless, that plaintiffs presented insufficient evidence of a failure to exercise ordinary care, and point to Martens' testimony under cross-examination. Under cross-examination, Martens conceded that even the alternate designs he presented at trial were defective to some degree. Upon further questioning, Martens took the position that any means that can inadvertently open a latch produces a defect in the latch. He also conceded that any latch will fail if enough force is put on it. Therefore, the defendants argue that the impact of Martens' testimony was only that some latch systems are safer than others, but all are unsafe to some degree. In defendants' view, this evidence fails to establish a departure from ordinary care on Volkswagen's part.

If Martens' testimony amounted to nothing more than this, the defendants might be right. Contra Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis.2d 338, 360 N.W.2d 2, 17 (1984) (an entire industry may be found negligent); D.L. By Friederichs v. Huebner, 110 Wis.2d 581, 329 N.W.2d 890, 907 (1983) (same). In fact, however, Martens' testimony shows that he distinguished at least two kinds of latch system defects. One type of defect becomes apparent in a side impact, where the point of collision is the rear width of the car--that is, the length of the car between the door and the rear end--rather than the door itself. In such a situation, the body of the car may stretch, pulling the latch away from the sheet metal to which it is mounted and forcing the release mechanism open. As to this type of latch system defect, Martens indeed faulted almost every car he was asked to consider, including the alternate latch designs he presented as safer than the design in the 1977 Volkswagen Rabbit.

However, in the accident that led to Chaulk's injury the point of impact was the door itself. The latch was activated by direct force and not by stretching. Although Martens again faulted many cars with respect to this second type of design defect, he also clearly testified that other, safer designs were available at the time that would not have given way in a side impact collision, and that a reasonable design engineer should have foreseen such an

Page 643

accident. This testimony was not substantially shaken during cross-examination, nor was plaintiffs' evidence...

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  • E.I. du Pont de Nemours and Co., Inc. v. Robinson, No. 94-0843
    • United States
    • Supreme Court of Texas
    • July 8, 1996
    ...expert witnesses are available to render an opinion on almost any theory, regardless of its merit. Chaulk v. Volkswagen of Am., Inc., 808 F.2d 639, 644 (7th Cir.1986) (quoting Keegan v. Minneapolis & St. Louis R.R., 76 Minn. 90, 78 N.W. 965, 966 (1899)) (observing that almost anything, no m......
  • Logerquist v. McVey, No. CV-98-0587-PR.
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    ...at 756, 119 S.Ct. 1167. He mentions also Judge Posner's comments, in a similar vein, in Chaulk by Murphy v. Volkswagen of America, Inc., 808 F.2d 639, 644 (7th Cir.1986) (Posner, J., dissenting), and Peter Huber's book, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM (1991),7 both advocati......
  • Shirkey v. Eli Lilly & Co., No. 87-2122
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 9, 1988
    ...upon a failure to exercise ordinary care with its necessary element of foreseeability"). But see Chaulk v. Volkswagen of America, Inc., 808 F.2d 639, 643 (7th Cir.1986) (Posner, J., dissenting) (Wisconsin recognizes "little if any practical difference between negligence and strict liability......
  • Lecy v. Bayliner Marine Corp., No. 40104-1-I
    • United States
    • Court of Appeals of Washington
    • April 5, 1999
    ...(Third) Torts § 2, cmt. n at 108. 27 Restatement (Third) Torts § 2, cmt. n at 109. 28 See Chaulk v. Volkswagen of America, Inc., 808 F.2d 639, 641 n. 4 (7th Cir.1986) (noting that Wisconsin courts have consistently held that a verdict finding a products liability defendant negligent but not......
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11 cases
  • E.I. du Pont de Nemours and Co., Inc. v. Robinson, No. 94-0843
    • United States
    • Supreme Court of Texas
    • July 8, 1996
    ...expert witnesses are available to render an opinion on almost any theory, regardless of its merit. Chaulk v. Volkswagen of Am., Inc., 808 F.2d 639, 644 (7th Cir.1986) (quoting Keegan v. Minneapolis & St. Louis R.R., 76 Minn. 90, 78 N.W. 965, 966 (1899)) (observing that almost anything, no m......
  • Logerquist v. McVey, No. CV-98-0587-PR.
    • United States
    • Supreme Court of Arizona
    • April 19, 2000
    ...at 756, 119 S.Ct. 1167. He mentions also Judge Posner's comments, in a similar vein, in Chaulk by Murphy v. Volkswagen of America, Inc., 808 F.2d 639, 644 (7th Cir.1986) (Posner, J., dissenting), and Peter Huber's book, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM (1991),7 both advocati......
  • Shirkey v. Eli Lilly & Co., No. 87-2122
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 9, 1988
    ...upon a failure to exercise ordinary care with its necessary element of foreseeability"). But see Chaulk v. Volkswagen of America, Inc., 808 F.2d 639, 643 (7th Cir.1986) (Posner, J., dissenting) (Wisconsin recognizes "little if any practical difference between negligence and strict liability......
  • Lecy v. Bayliner Marine Corp., No. 40104-1-I
    • United States
    • Court of Appeals of Washington
    • April 5, 1999
    ...(Third) Torts § 2, cmt. n at 108. 27 Restatement (Third) Torts § 2, cmt. n at 109. 28 See Chaulk v. Volkswagen of America, Inc., 808 F.2d 639, 641 n. 4 (7th Cir.1986) (noting that Wisconsin courts have consistently held that a verdict finding a products liability defendant negligent but not......
  • Request a trial to view additional results
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    ...hardly anything, not palpably absurd on its face, that cannot be proven by some so-called experts." (Chaulk v. Volkswagen of Am., Inc., 808 F.2d 639, 644 (7th Cir. 1986); D. Thornburg, Junk Science - The Lawyer's Ethical Responsibilities, 25 Fordham Urb. L.J., 449, 452 (1998); H.P. Sorett, ......

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