Malave-Felix v. Volvo Car Corp., MALAVE-FELIX
| Decision Date | 10 September 1991 |
| Docket Number | MALAVE-FELIX,No. 91-1296,91-1296 |
| Citation | 946 F.2d 967 |
| Parties | Prod.Liab.Rep. (CCH) P 12,963 Leila, et al., Plaintiffs, Appellants, v. VOLVO CAR CORPORATION, et al., Defendants, Appellees. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Federico Lora Lopez, Hato Rey, P.R., with whom Judith Berkan and Jose A. Lugo, Santurce, P.R., were on brief, for plaintiffs, appellants.
Manuel A. Guzman, with whom McConnell Valdes Kelley Sifre Griggs & Ruiz-Suria, Hato Rey, P.R., was on brief, for defendant, appellee, Volvo Car Corp.
Before SELYA, Circuit Judge, COFFIN and TIMBERS, * Senior Circuit Judges.
Appellants, Dr. Leila Malave Felix and her husband, Jose Soto Martinez, ("Malave"), appeal from a judgment entered February 19, 1991 in the District of Puerto Rico, Jaime Pieras, Jr., District Judge, upon a directed verdict dismissing all claims against appellee Volvo Car Corporation ("Volvo").
Malave raises essentially two claims of error on appeal: (1) that she presented sufficient evidence to support her claim that Volvo was liable on a theory of negligence or strict liability for the manufacture of a defective product, and that the district court erred in granting Volvo's motion for a directed verdict; and (2) that the district court's conduct at the trial reflects bias in favor of Volvo.
For the reasons set forth below, we affirm the directed verdict dismissing all claims against appellee; and we find that the district court conducted the trial without bias.
We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal. The facts are summarized in the light most favorable to Malave in order to help focus our review upon the propriety of a directed verdict.
On March 3, 1989, Malave finished her duties at the Ashford Presbyterian Community Hospital in Santurce, Puerto Rico, at approximately 11:00 p.m. She proceeded to the parking area where her car, a 1987 Volvo Turbo Intercooler manufactured by Volvo, a Swedish corporation, and sold to plaintiff by Volvo's authorized representative in Puerto Rico, Trebol Motors Corporation, was parked approximately ten feet in front of a wall. On her way to her car Dr. Malave noticed several people near an ambulance that was stopped, due to a tangled chain in one of the ambulance's tires, about seven to eight feet behind her car.
Rather than wait for the ambulance to move, Dr. Malave decided to perform an admittedly "tight maneuver" in order to leave. Upon entering the car, Dr. Malave put her seat-belt on, started the engine, turned on the lights, and looked in her rear view mirror (to see the people and ambulance behind her car). She then released the emergency brake, placed her foot on the brake pedal, and shifted into reverse. What happened next is not entirely clear.
Dr. Malave testified that while moving in reverse the car began to make a "slightly different noise" and started to go a little faster than she wanted. She stated that she then pressed the brake pedal, but the car would not stop; so she "pressed it harder and changed it to drive." In all, the car traveled backwards between three and four feet. After she shifted into drive Dr. Malave heard the car make a "big noise"; so she continued pressing harder on what she believed was the brake pedal. Instead of slowing down, the car speeded up and crashed into the wall in front of where her car had been parked. It is uncontroverted that, at the time her car crashed into the wall, Dr. Malave's foot was on the accelerator. As a result of the crash, Dr. Malave sustained a severe knee injury for which she seeks to recover damages.
Dr. Malave attempted to prove at trial, helped by the testimony of her expert witness, Mr. Rosenbluth, that her injuries were caused by defects in her car's idle air control valve and brakes boost check valve. Rosenbluth testified that he found the brakes boost check valve was manufactured incorrectly for its service life, causing it to fail. He further testified that the idle air control valve was inadequate and unreliable for its expected service life. The parts were warranted for 50,000 miles. Malave's car had run approximately 27,000 miles at the time of the accident.
The idle air control valve is an electrically operated shutter system that regulates the flow of air into an idling engine. It plays no role, however, if even moderate pressure is placed on the accelerator pedal. Rosenbluth testified that he found the presence of "arcing" (evidence of electrical discontinuity) and other irregularities in the idle air control valve that could cause the valve to remain open, and thereby increase the flow of air (and consequently the flow of fuel). The result would be a sudden surge or acceleration of the car's engine while it idled. According to Rosenbluth, a fully opened, defective idle air control valve could have caused Malave's car to accelerate, just prior to the accident, to a speed of one and three-fourths to three miles per hour while in reverse.
The brakes boost check valve creates a "booster reservoir" of negative air pressure (a vacuum) in the brake system that allows for limited power-brake operation (one to two steps on the pedal) when the engine either dies or is turned off. Without the aid of the booster, the brakes still function as standard brakes, requiring the exertion of greater pressure on the brake pedal (about twice as much as with power brakes). Rosenbluth testified that he found the brakes boost check valve to be defective because it allowed air back into the booster reservoir, thereby destroying the vacuum necessary to provide power-braking after the car's engine had died or had been turned off. Moments after an engine is turned on, the brakes boost check valve is no longer needed because a continuous vacuum is created in the brake booster which allows the power brakes to function properly. It requires two or three seconds after a car is turned on for it to attain a fully charged booster; a partial charge is attained in one and one-half to two seconds.
Rosenbluth speculated that malfunctions in the idle air valve and brakes boost check valve caused Malave's car to accelerate when she put it in reverse and while the power brakes were still not fully functioning. He thought that these malfunctions caused Dr. Malave to make the consequential error of pressing the accelerator, thus propelling her car forward into the wall. That is the inference that Malave wanted a jury to make so that she could recover in this action based on the theory of negligence or strict liability.
On the fourth day of this five-day trial (during which eleven witnesses testified) the judge, at a bench conference, once referred to Malave's expert witness, Rosenbluth, as a "come-for-hire expert" and later called him . The court also ruled that Rosenbluth could not testify as to the human and mental factors that may have caused the accident, since the court believed such matters were beyond the scope of his expertise. Malave argues that this unfavorable treatment of Rosenbluth, together with two adverse evidentiary rulings (that Malave admits are insufficient alone to sustain the appeal), is conduct sufficient to warrant a finding that the district court's conduct of the trial reflects bias in favor of Volvo.
When Malave concluded her case, Volvo made a motion for a directed verdict. After finding that there was insufficient evidence to support a reasonable inference by the jury that Volvo was the proximate cause of Malave's injuries, the court granted the motion.
On appeal, Malave essentially contends (1) that she presented sufficient evidence to have reached the jury on her claim that Volvo was liable for negligence or strict liability; and (2) that the district court's conduct at the trial reflects bias in favor of Volvo.
Volvo is a Swedish corporation. The car in question, a 1987 Volvo Turbo Intercooler, was manufactured by Volvo and was sold to Dr. Malave, a citizen of Puerto Rico, through Volvo's authorized representative in Puerto Rico, Trebol Motors Corporation. This action was properly commenced in the District Court of Puerto Rico based on diversity jurisdiction pursuant to 28 U.S.C. § 1332 (1988). The law of Puerto Rico provides the law of decision in this case. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). We must make a de novo determination of the applicable Puerto Rico law. Salve Regina College v. Russell, --- U.S. ----, 111 S.Ct. 1217, 1225113 L.Ed.2d 190 (1991).
When reviewing a directed verdict, we examine the evidence and inferences reasonably extractable therefrom in the light most favorable to the nonmovant. Lubanski v. Coleco Indus., 929 F.2d 42, 48 (1st Cir.1991). To affirm a directed verdict, we must find that, so viewed, the evidence would permit thoughtful factfinders to reach but one conclusion in favor of the moving party. Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1088 (1st Cir.1989). We may not consider the credibility of witnesses, resolve conflicts in testimony, or evaluate the weight of the evidence. Lubanski, supra, 929 F.2d at 48. Nevertheless, a "mere scintilla of evidence" is not enough to forestall a directed verdict on a claim for which the burden of proof rests with the objecting party. Fashion House, supra, 892 F.2d at 1088. The plaintiff may not rely on conjecture or speculation, but rather the evidence offered must make the existence of the fact to be inferred more probable than its nonexistence. Goldstein v. Kelleher, 728 F.2d 32, 39 (1st Cir.1984).
Malave has commenced this action on the alternative theories of negligence and strict liability.
Negligence has been defined by the Commonwealth courts as the failure to exercise due diligence to avoid foreseeable risks. Jimenez v. Pelegrina, 112 D.P.R. 700 (1982) (...
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