Polston v. Boomershine Pontiac-GMC Truck, Inc.

• Decision Date: 06 February 1992
• Docket Number: PONTIAC-GMC,No. 90-8843,90-8843
• Citation: 952 F.2d 1304
• Parties: 34 Fed. R. Evid. Serv. 1155, Prod.Liab.Rep. (CCH) P 13,043 Linda POLSTON, Plaintiff-Appellant, v. BOOMERSHINETRUCK, INC., Defendant, Boomershine Chevrolet, Inc., Defendant, Boomershine Automobile Co., Defendant, General Motors Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1304

952 F.2d 1304

34 Fed. R. Evid. Serv. 1155, Prod.Liab.Rep. (CCH) P 13,043

Linda POLSTON, Plaintiff-Appellant, v.BOOMERSHINE PONTIAC-GMC TRUCK, INC., DefendantBoomershine Chevrolet, Inc., DefendantBoomershine Automobile Co., DefendantGeneral Motors Corporation, Defendant-Appellee.

No. 90-8843.

United States Court of Appeals Eleventh Circuit.

Feb. 6, 1992.

Halstrom Law Offices, Boston, Mass., Irwin Ellerin, Ellerin & Associates, Atlanta, Ga., for plaintiff-appellant.

King & Spalding, Atlanta, Ga., Chilton D. Varner, Sandra Elizabeth Strippoli, Atlanta, Ga., Kirkland & Ellis, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before FAY and COX, Circuit Judges, and MORGAN, Senior Circuit Judge.

PER CURIAM:

In this diversity action, Linda Polston appeals the district court's grant of General Motors Corporation's (GMC's)motion for directed verdict.

In the early morning hours of July 19, 1986, Linda Polston's Pontiac Sunbird and Joyce Banks' Oldsmobile Delta 88 collided head-on on Piedmont Road in Atlanta, Georgia.As a result of this collision, Polston suffered serious multiple injuries.She brought suit against Banks, GMC, and three GMC dealerships.¹With respect to GMC, Polston argued that her Sunbird was defectively designed in that it was not crashworthy.She maintained that, although the design did not cause the initial collision with Banks, she suffered enhanced injuries that would not have occurred if the car had been crashworthy.The district court found that in crashworthiness cases"the law of Georgia places the burden of proof on the plaintiff to prove that the defendant was the sole cause of the enhanced injury."Polston, therefore, was required to prove both the existence and extent of enhanced injury ² caused by the allegedly defective design.The district court held that Polston failed to distinguish between those injuries attributable to the initial crash and those attributable to the defective design.Because it found that Polston failed to prove either the existence of enhanced injury or the extent of such injury, the court granted GMC's motion for directed verdict.

It appears that this case involves a question of Georgia law which may be dispositive but is unanswered by any controlling precedent in the decisions of the Supreme Court of Georgia.Because this issue implicates substantial public policy concerns, we defer our decision in this case pending certification of this question to the Supreme Court of Georgia pursuant to GA. CONST. art. VI, § 6, para. 4,O.C.G.A. § 15-2-9, andRule 37 of the Supreme Court of Georgia.SeeClaussen v. Aetna Casualty & Sur. Co., 865 F.2d 1217(11th Cir.1989).

We submit the following for consideration by the Supreme Court of Georgia.

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF GEORGIA PURSUANT TO ARTICLE VI SECTION VI PARAGRAPH IV OF THE GEORGIA CONSTITUTION.

TO THE SUPREME COURT OF GEORGIA AND THE HONORABLE JUSTICES THEREOF.

I.Style of the Case

The style of the case on which this certificate is made is as follows: Linda Polston, Plaintiff-Appellant, versus Boomershine Pontiac-GMC Truck, Inc., Defendant, Boomershine Chevrolet, Inc., Defendant, Boomershine Automobile Co., Defendant, General Motors Corporation, Defendant-Appellee(D.C. Dkt. No. 1:88-CV-1509A-RHH).This case is assigned number 90-8843 in the United States Court of Appeals for the Eleventh Circuit, on appeal from the United States District Court for the Northern District of Georgia.

II.Statement of the Facts

On the night of July 18, 1986, at approximately eleven o'clock in the evening, Linda Polston drove her Sunbird to the Limelight Disco in Atlanta, where she remained for several hours.Around two thirty in the morning, Polston left the Limelight on her way back home.She headed north on Piedmont Road.As Polston approached the intersection of Piedmont and Mathison Road, Joyce Banks, heading south on Piedmont Road in her Delta 88, crossed the center line; the Delta 88 crashed head-on into Polston's Sunbird.Polston was severely injured, suffering over 30 separate fractures in her head, arms, chest, hands, wrist, legs, and ankles.

At trial, Polston argued that her Sunbird lacked crashworthiness in two respects: (1) the seat belt was defective because of the "window shade" feature which allowed Polston, either accidently or deliberately, to introduce slack in the belt so that in the collision the belt was ineffective in restraining her; (2) the Sunbird had insufficient crush space in the front end such that in this head-on collision the front end of the car was allowed to cave in on Polston.Polston also claimed that GMC was negligent in failing to warn her of these defects.

After three days of trial Polston rested her case and GMC moved for a directed verdict on three grounds: (1) Georgia law required Polston to prove both the existence and extent of any enhanced injuries suffered as a result of the defective design, and Polston had done neither; (2) Polston's evidence of "enhanced injuries" was too speculative to be presented to the jury; (3) Polston had presented no evidence supporting her failure to warn claim.The district court found that under Georgia law the plaintiff in a crashworthiness case has the burden of proving that the defendant was the sole cause of any enhanced injuries by proving both the existence and extent of such injury.The court found that Polston had failed to prove either the existence or extent of enhanced injuries specifically attributable to GMC's conduct.Further, the court found that Polston had introduced no evidence supporting her failure to warn claim.The court granted GMC's motion for directed verdict, and Polston appeals.³

III.Preliminary Issues

Before discussing the issue that will be certified to the Supreme Court of Georgia, we must first address several preliminary issues.First, we must determine whether Higginbotham v. Ford Motor Co., 540 F.2d 762(5th Cir.1976)⁴, is dispositive in this case.Second, we must decide whether the district court erred in granting GMC's motion for directed verdict with respect to Polston's proof on the existence of enhanced injuries.Finally, we must determine whether the district court erred in limiting the scope of Polston's expert's testimony.

A.

GMC asserts that in Higginbotham, the Fifth Circuit determined that Georgia law places the burden on the plaintiff to apportion damages in cases of this kind.We disagree.The court found that under Georgia law, damages were not apportionable and the defendants were joint tortfeasors when their separate acts combined to produce a single indivisible injury with no rational basis for apportionment.Id. at 773.However, the court determined that because the manufacturer in a crashworthiness case was liable only for the injuries over and above those that would have occurred in a crashworthy car, a rational basis for apportionment existed and the striking driver and manufacturer were not joint tortfeasors.Id. at 774.Although we agree with GMC that the Higginbotham court found Georgia law to require the plaintiff to prove the existence of enhanced injuries, that the manufacturer and striking drivers are not joint tortfeasors, and that the manufacturer is only liable for the enhanced injuries, we do not agree that Higginbotham interpreted Georgia law to place the burden of apportionment on the plaintiff.Although Higginbotham supports this argument the court did not go so far as to say who had the burden of apportionment under Georgia law.Therefore, Higginbotham is not dispositive on this issue.

B.

Polston argues that the district court erred in concluding that GMC was entitled to a directed verdict because Polston failed to prove the existence of enhanced injuries.We agree.When considering a motion for a directed verdict or a judgment notwithstanding the verdictwe consider the evidence in the light most favorable to the party opposing the motion.Bauer Lamp Co. v. Shaffer, 941 F.2d 1165(11th Cir.1991).The motion should be denied when there is substantial evidence on which reasonable persons could disagree.Picker Int'l, Inc. v. Parten, 935 F.2d 257(11th Cir.1991)(quotingBoeing Co. v. Shipman, 411 F.2d 365, 374(5th Cir.1969)(en banc )).

At trial, Polston relied primarily on the testimony of three expert witnesses to prove the existence and extent of her injuries and damages.The first two experts, Dr. Joseph Chandler, Polston's treating physician, and Dr. Harold Goldstein, an economist, testified to Polston's total injury, impairment and disability.They did not distinguish between injuries or damages caused by the initial collision and those caused by the fact that the vehicle was not crashworthy.However, Polston's third expert, Murray Burnstine, did testify to the existence of enhanced injuries.

Burnstine was a mechanical engineer with experience as an automobile accident investigator.He gained this experience while employed at Harvard Medical School in the department of legal medicine.During his employment with Harvard, Burnstine was one member of a five member team that investigated the scenes of fatal automobile accidents.(Supp.R. 3-22-23).As part of his duties, Burnstine consulted with automobile manufacturers concerning safety related problems he discovered in their cars.(Supp.R. 3-25).In addition, Burnstine gained experience in investigating accidents and determining, from the pattern of a person's injuries, what parts of the person's body contacted what part of the automobile.(Supp.R. 3-32-34).In other words, Burnstine was experienced in determining how certain injuries were caused in a collision and, more specifically, what injuries were caused by the vehicle's lack of crashworthiness.(Supp.R. 3-124).

At trial, Burnstine testified that in his opinion the Sunbird was...