Navarro v. Fuji Heavy Industries, Ltd.

• Decision Date: 27 June 1997
• Docket Number: No. 96-3176,96-3176
• Parties: 47 Fed. R. Evid. Serv. 446, Prod.Liab.Rep. (CCH) P 15,018 Maria NAVARRO, Plaintiff-Appellant, v. FUJI HEAVY INDUSTRIES, LTD., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1027

117 F.3d 1027

47 Fed. R. Evid. Serv. 446, Prod.Liab.Rep. (CCH) P 15,018

Maria NAVARRO, Plaintiff-Appellant, v. FUJI HEAVY INDUSTRIES, LTD., Defendant-Appellee.

No. 96-3176.

United States Court of Appeals, Seventh Circuit.

Argued April 7, 1997.

Decided June 27, 1997.

Jane E. Reames (argued), Sheldon A. Brenner, Brenner & Moltzen, Ltd., Chicago, IL, for Plaintiff-Appellant.

Jeffrey Singer, Paul E. Wojcicki (argued), Robert E. O'Malley, Segal, McCambridge, Singer & Mahoney, Chicago, IL, for Defendant-Appellee.

Before POSNER, Chief Judge, and FLAUM and ROVNER, Circuit Judges.

POSNER, Chief Judge.

Maria Navarro, the plaintiff in a diversity personal-injury suit which the parties agree is governed by the law of Illinois, was a passenger in a 1982 Subaru that had been manufactured in Japan in 1981 by Fuji Heavy Industries, the defendant. The driver lost control of the car when its rear suspension gave way suddenly and unexpectedly as a result of having rusted through. Navarro was flung from the car, which rolled over several times and came to rest on top of her. The accident occurred in 1992 in Chicago, where the car, which had 125,000 miles on its odometer, had mainly been driven. Her claim of strict products liability was barred by Illinois' 10-year statute of repose for such suits, 735 ILCS 5/13-213(b), so Navarro proceeded on the basis of a claim of negligence that Fuji concedes is not barred by the statute of repose. The claim is that Fuji was negligent in designing the car's rear suspension in such a way that it might rust through if the car was driven in an area in which the roads are heavily salted during the winter--as is the case in Chicago--and, moreover, rust through from the inside out (the suspension not being completely sealed against the elements) so that there would be no visual clue that the suspension was about to give way. Two years before the accident, Fuji had acknowledged the problem in a notice of recall that the owner-driver of the Subaru in which Navarro was injured had not seen. Fuji does not argue that the sending of the recall notice to known owners of its cars insulates it from liability, and, conversely, Navarro does not argue that Fuji breached a duty to warn owners of the defect once Fuji discovered it. After the case was removed from the Illinois state court in which it had been filed originally, the district judge granted summary judgment for Fuji on the ground that Navarro had failed to present sufficient evidence of defective design to create a triable issue, and he dismissed the suit. 925 F.Supp. 1323 (N.D.Ill.1996). Later he dismissed the plaintiff's motion for reconsideration as well.

As we said, this suit is based on negligence rather than on strict products liability. But there is little or no practical difference in a case of defective design, at least so far as the standard of liability is concerned (we have just seen that there is a big difference with respect to the deadline for bringing suit): you must prove that the design was defective in either kind of case, and whether the design was defective is determined by use of the same Hand-formula or cost-benefit approach that is used to determine negligence in a tort case not involving a product. E.g., Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 317 (7th Cir.1996); Bammerlin v. Navistar International Transportation Corp., 30 F.3d 898, 902 (7th Cir.1994); Flaminio v. Honda Motor Co., 733 F.2d 463, 467 (7th Cir.1984). It is true that cases in Illinois and elsewhere often say that in a strict liability products case the manufacturer's negligence is irrelevant. E.g., Simpson v. General Motors Corp., 118 Ill.App.3d 479, 74 Ill.Dec. 107, 111, 455 N.E.2d 137, 141 (1983), aff'd, 108 Ill.2d 146, 90 Ill.Dec. 854, 483 N.E.2d 1 (1985). But the significance of such language is in curtailing the defense of contributory negligence in products cases and in preventing the manufacturer from defending such a case on the ground that the negligence in the design was due to carelessness by the manufacturer of a component. Id. at 111, 455 N.E.2d at 141; Flaminio v. Honda Motor Co., supra, 733 F.2d at 467. The points are related: the manufacturer cannot defend such a case by pointing to someone else's negligence, whether the victim's or a supplier's. It is also true that the cases frequently offer the plaintiff a choice between proving that the design was defective and proving that it was not as safe as the consumer would reasonably have expected. E.g., Lamkin v. Towner, 138 Ill.2d 510, 150 Ill.Dec. 562, 570, 563 N.E.2d 449, 457 (1990). But this comes to the same thing; the consumer expects the products he buys not to be defectively designed.

So there is one test, and it is objective, Flaminio v. Honda Motor Co., supra, 733 F.2d at 467; it is based on what Fuji should have done about rust in light of what it should have known, not what it should have done in light of what it did know. The fact that as a Japanese firm it may not have known much about Chicago driving conditions is irrelevant (as well as highly improbable, since it has and had an elaborate distribution and dealership network throughout the United States, including the Chicago area). Fuji intended to sell its cars in the Chicago area and is therefore charged with whatever knowledge can reasonably be imputed to automobile manufacturers, wherever located, desiring to serve that market. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 32, pp. 184 (5th ed.1984).

And while we are clearing away the underbrush of this suit we point out that there is no merit to Fuji's argument, which it puts forward as an alternative ground for upholding the district court's judgment, that the Subaru "just wore out," so that the accident was not caused by the defect in the suspension. It is true that cars become inoperable for a variety of reasons many of which are not attributable to the manufacturer, including driver abuse and neglect, poor maintenance by dealers and auto repair shops, defective replacement parts, collisions, metal fatigue, and corrosion. Fuji did not warrant that its 1982 Subarus would still be operable after ten years and 125,000 miles of driving on Chicago's roads--but neither did it warn buyers that it was unsafe to drive a car with such a history because it might veer out of the driver's control without warning. Nor did the car fall apart because of the mechanical equivalent of old age (the one-horse-shay phenomenon) or the actions or inactions of the driver, the dealer, or anyone else--besides the designers of the rear suspension system. Had they designed it differently, the car would not have given out as soon as it did (at least without warning from visible rust) and Navarro would not have been injured. Fuji does not argue that the car was otherwise in so dangerous a condition through no fault of Fuji's that Navarro's damages should be cut down to reflect the likelihood that she would soon have been injured by some other disastrous failure of the car's aging components. Lancaster v. Norfolk & Western Ry., 773 F.2d 807, 822-23 (7th Cir.1985); Stoleson v. United States, 708 F.2d 1217, 1223-24 (7th Cir.1983); Steinhauser v. Hertz Corp., 421 F.2d 1169, 1173-74 (2d Cir.1970) (Friendly, J.); cf. Doll v. Brown, 75 F.3d 1200, 1205-06 (7th Cir.1996). On this record we must assume that the design of the rear suspension was a cause of the accident, and a culpable cause if the design was defective.

To show that it was defective--that is, that due care required Fuji to design the rear suspension in such a way that it either would not rust even if driven for many years in Chicago or, more plausibly, that if it did rust the rust would show so that the suspension could be replaced before it gave way--the plaintiff presented the affidavit of a qualified engineer, the recall notice, a corrosion report by a trade association, and an affidavit by another expert that the judge properly ruled inadmissible because unverified and that in any event added nothing material to the first expert's affidavit. The affidavit of the first expert was the centerpiece of Navarro's case and the judge found that it was inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See also People Who Care v. Rockford Board of Education, 111 F.3d 528, 537 (7th Cir.1997); Minasian v. Standard Chartered Bank, PLC, 109 F.3d 1212, 1216 (7th Cir.1997); Cummins v. Lyle Industries, 93 F.3d 362, 367-69 (7th Cir.1996); Rosen v. Ciba-Geigy Corp., supra, 78 F.3d at 318-19.

It is noteworthy that the affidavit and the plaintiff's other evidentiary materials were not presented in response to affidavits or other evidence in support of the defendant's motion for summary judgment. The defendant did not present any evidence in support of its motion. It was not required to. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Fitzpatrick v. Catholic Bishop, 916 F.2d 1254, 1256 (7th Cir.1990). It could put the plaintiff to her proof, though in doing so it was taking the risk that the plaintiff might try to establish her prima facie case not by presenting evidence but by invoking the doctrine of res ipsa loquitur, which in Illinois goes by the name of the Tweedy doctrine when it is invoked in a products liability case. Tweedy v. Wright Ford Sales, Inc., 64 Ill.2d 570, 2 Ill.Dec. 282, 285, 357 N.E.2d 449, 452 (1976); see Rizzo v. Corning Inc., 105 F.3d 338, 340 (7th Cir.1997); Welge v. Planters Lifesavers Co., 17 F.3d 209, 211 (...