Piltch v. Ford Motor Co.

• Decision Date: 11 February 2015
• Docket Number: No. 14–1965.,14–1965.
• Citation: 778 F.3d 628
• Parties: Howard PILTCH, et al., Plaintiffs–Appellants, v. FORD MOTOR COMPANY, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

778 F.3d 628

Howard PILTCH, et al., Plaintiffs–Appellants

v.FORD MOTOR COMPANY, et al., Defendants–Appellees.

No. 14–1965.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 1, 2014.

Decided Feb. 11, 2015.

Rehearing Denied April 1, 2015.

Donald E. Wertheimer, Donald E. Wertheimer Law Office, South Bend, IN, for Plaintiffs–Appellants.

Sean Marotta, Dominic Francis Perella, Hogan Lovells US LLP, Washington, DC, Kevin C. Schiferl, Vanessa A. Davis, Frost Brown Todd LLC, Indianapolis, IN, for Defendants–Appellees.

Before BAUER, KANNE, and HAMILTON, Circuit Judges.

Opinion

BAUER, Circuit Judge.

Howard Piltch and Barbara Nelson–Piltch (the “Piltches”) were traveling in their 2003 Mercury Mountaineer in February 2007 when they hit a patch of black ice, causing the car to slide off the road and into a wall. Upon impact, none of the car's air bags deployed and both Piltches were injured. The Piltches filed the present action in Indiana state court against Ford Motor Company (“Ford”) in 2010, alleging the vehicle was defective under Indiana law. Ford removed the action to federal court, and shortly thereafter moved for summary judgment. On March 28, 2014, the district court granted Ford's summary judgment motion holding that, without expert testimony, the Piltches could not create an issue of fact as to proximate cause. On appeal, the Piltches contend that (1) they state a claim for relief under the Indiana Products Liability Act (“IPLA”); (2) there is sufficient circumstantial evidence of a defective product that expert testimony is not required; (3) they are not required to produce expert testimony to establish proximate cause; and (4) the doctrine of res ipsa loquitur applies, raising an inference of negligence on the part of Ford. We affirm.

I. BACKGROUND

The Piltches were co-owners of a 2003 Mercury Mountaineer. While driving the Mountaineer in 2006, the Piltches were involved in a car accident in which the air bags did not deploy. Following the accident, the Piltches had the vehicle repaired. They did not confirm whether the restraint control module, which monitors a crash and decides whether to deploy air bags, was reset during or after repairs after the 2006 collision. But Mr. Piltch explained that it was his understanding that “whatever needed to be reset in the Mercury Mountaineer ... was, in fact, reset.”

A year later in 2007, the Piltches were involved in another accident after driving over some black ice. This time, their Mountaineer did a 360–degree turn and struck a low wall. The vehicle ricocheted off the wall, slid down a hill, and collided with several trees before coming to a rest. The vehicle's air bags again did not deploy during or after the accident. As a result of the accident, Mr. Piltch broke several vertebrae and Mrs. Piltch sustained neurological injuries

. After this crash, the Piltches had their Mountaineer repaired at the same shop that had repaired the car after the 2006 accident.

In 2009, the Piltches sold the Mountaineer. The buyer happened to be a mechanic who reprogrammed the vehicle's blackbox, wiping any data that might remain from either crash.

In February 2010, the Piltches sued Ford in federal court, alleging the Mountaineer's air bags were defective and enhanced the injuries they suffered as a result of the 2007 accident. Due to a deficient jurisdictional statement, the court dismissed the complaint without prejudice. The Piltches again filed suit in December 2010, this time in state court, and Ford removed the case to federal court. During discovery, the Piltches never served any expert reports, despite obtaining an extension of the expert-disclosure deadline.

Ford moved for summary judgment in November 2011, arguing that the Piltches could not prove a prima facie case of design or manufacturing defect without expert testimony, nor could they prove their injuries were more severe than they would have been without the alleged defect. In response, the Piltches argued they did not need an expert. They asserted that their circumstantial evidence, namely the Mountaineer's owner's manual and Mr. Piltch's testimony, created genuine issues of fact as to defect and proximate cause. The Piltches also argued that the jury could infer a defect under the doctrine of res ipsa loquitur.

The district court granted Ford's motion for summary judgment on all claims. Specifically, the court held that the Piltches' circumstantial evidence was insufficient to go beyond speculation and create a legal inference as to proximate cause. As to res ipsa loquitur, the court held that the Piltches' circumstantial evidence was not enough to negate all possible causes other than defect for the air bags' failure to inflate. This appeal followed.

II. DISCUSSION

We review a district court's grant of summary judgment de novo in the light most favorable to the non-moving party. Ellis v. DHL Express Inc., 633 F.3d 522, 525 (7th Cir.2011). Summary judgment is only appropriate if there is no genuine issue of material fact. Id.

The Piltches present four issues on appeal; the first three can be addressed in a single discussion as to whether the circumstantial evidence, without support from expert testimony, creates a genuine issue of material fact for their claims under the IPLA. We will separately address the fourth issue of res ipsa loquitur.

A. Expert Testimony

Because we are sitting in diversity, Indiana law applies. See Erie R.R. Co. v. Tompkins,

304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (holding a federal court sitting in diversity must apply the substantive law of the state in which it sits). The IPLA governs all actions brought by a user or consumer against a manufacturer for physical harm caused by a product, regardless of the legal theory upon which the action is brought. See Ind.Code § 34–20–1–1.

Under the IPLA, the plaintiff must establish that “(1) he or she was harmed by a product; (2) the product was sold ‘in a defective condition unreasonably dangerous to any user or consumer’; (3) the plaintiff was a foreseeable user or consumer; (4) the defendant was in the business of selling the product; and (5) the product reached the consumer or user in the condition it was sold.” Bourne v. Marty Gilman, Inc., 452 F.3d 632, 635 (7th Cir.2006) (referencing Ind.Code § 34–20–2–1 ). A plaintiff can satisfy the second element by showing a design defect, a manufacturing defect, or a failure to warn. Hathaway v. Cintas Corp. Serv., Inc., 903 F.Supp.2d 669, 673 (N.D.Ind.2012). See also Natural Gas Odorizing, Inc. v. Downs, 685 N.E.2d 155, 161 (Ind.Ct.App.1997). A plaintiff is also required to prove that his injuries were proximately caused by the defect (in the cases of manufacturing defect and failure to warn) or breach of duty (in the case of design defect). See Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810 (Ind.2007). Finally, and particularly pertinent to the issues raised on appeal, expert testimony on an issue is required when the issue is not within the understanding of a lay person. Daub v. Daub, 629 N.E.2d 873, 878 (Ind.Ct.App.1994) (requiring expert testimony on issue of cause outside understanding of lay person); Owens v. Ford Motor Co., 297 F.Supp.2d 1099, 1103–04 (S.D.Ind.2003) (requiring expert testimony where existence of a defect depends on matters beyond understanding of lay person).

The Piltches invoke both design defect and manufacturing defect theories in their suit. Cook v. Ford Motor Co., 913 N.E.2d 311, 319 (Ind.Ct.App.2009) (“A product may be defective within the meaning of the [Indiana Product Liability] Act because of a manufacturing flaw, a design defect, or a failure to warn of dangers in the product's use.”). To demonstrate a design defect under Indiana law, “the plaintiff must compare the costs and benefits of alternative designs” and “show that another design not only could have prevented the injury but also was cost-effective under general negligence principles.” Pries v. Honda Motor Co., 31 F.3d 543, 545–46 (7th Cir.1994). Here, not only did the Piltches fail to produce alternative air bag designs, but they also failed to introduce expert testimony on the question of design defect. Without expert testimony, a lay jury would be unable to compare the costs and benefits of supposed alternative air bag designs with the Mountaineer's actual air bag design. See Whitted v. General Motors Corp., 58 F.3d 1200, 1206 (7th Cir.1995) (affirming summary judgment where plaintiffs failed to present evidence of design defect and that an alternative design was cost effective). See also Hathaway, 903 F.Supp.2d at 675 (granting summary judgment against plaintiff's design defect claim where plaintiff submitted no evidence indicating cost effectiveness of alternative design). Similarly, a lay jury would be unable to discern from circumstantial evidence whether another air bag design could have prevented the injury. Thus, without expert testimony, the Piltches' design defect claim cannot survive summary judgment.

The Piltches' manufacturing defect claim fares no better. To demonstrate a manufacturing defect, the plaintiff must show that “the product ... deviates from its intended design.” Id. at 673 (applying Indiana law and citing Restatement (Third) of Torts: Products Liability § 2(a) (1988) ). The Piltches contend that the Mountaineer's owner's manual establishes the intended design of the air bags, and that the state of the air bags during and after the 2007 collision indicates a departure from that intended design.

Citing Cansler v. Mills, 765 N.E.2d 698 (Ind.Ct.App.2002), the Piltches argue that this evidence, taken together, raises a genuine issue of material fact as to defect even in the absence of expert testimony. In Cansler, the court found that the plaintiff designated sufficient circumstantial evidence on the issue of whether the air bags in question were defective, rendering expert testimony unnecessary to create a triable issue of fact. Id. at 706–07. The circumstantial evidence included the...