Schubert v. Nissan Motor Corp. in U.S.A

• Decision Date: 09 April 1998
• Docket Number: No. 97-2393,97-2393
• Citation: 148 F.3d 25
• Parties: , Prod.Liab.Rep. (CCH) P 15,279 Keith SCHUBERT and Kathy Schubert, Plaintiffs, Appellants, v. NISSAN MOTOR CORPORATION IN U.S.A., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 25

148 F.3d 25

41 Fed.R.Serv.3d 151, Prod.Liab.Rep. (CCH) P 15,279

Keith SCHUBERT and Kathy Schubert, Plaintiffs, Appellants, v. NISSAN MOTOR CORPORATION IN U.S.A., Defendant, Appellee.

No. 97-2393.

United States Court of Appeals, First Circuit.

Heard April 9, 1998.

Decided July 7, 1998.

Paul E. Mitchell, with whom William A. Schneider and Mitchell, McGowan & DeSimone, were on brief for appellants.

Brian P. Voke, with whom Richard P. Campbell, and Campbell, Campbell & Edwards, were on brief for appellees.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOWNES, Senior Circuit Judge.

In this diversity action, plaintiffs-appellants Keith and Kathy Schubert seek to hold defendant-appellee Nissan Motor Corporation in U.S.A. ("Nissan") liable for an injury to Mr. Schubert's back. Their suit is based on a claim of product liability. The district court granted Nissan's summary judgment motion, and we affirm.

I.

We recite the underlying facts in the light most favorable to the Schuberts. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam).

On December 6, 1992, Mr. Schubert was driving his 1989 Nissan pickup truck on Route 28 in Derry, New Hampshire. While he was stopped in traffic, Schubert's truck was rear-ended by a 1977 Ford sedan. Skid marks of just under seven feet were evident at the accident site, and the Ford's front end was severely damaged by the impact.

Within twenty-four hours after the accident, Mr. Schubert began to experience--among other symptoms irrelevant here--lower back pain. His complaints included pain radiating from the lower back into the right buttock and thigh, and further on into the right calf and right foot. He was treated unsuccessfully with chiropractic therapy before x-rays revealed a congenital defect in his lower back, specifically, spondylolisthesis. This condition is defined as "forward displacement ... of one vertebra over another, usually of the fifth lumbar over the body of the sacrum, or of the fourth lumbar over the fifth, usually due to a developmental defect in the pars interarticularis." Dorland's Illustrated Medical Dictionary 1563 (28th ed.1994). In lay terms, this means the forward slippage of a vertebra out of normal alignment. It is undisputed that this was a congenital defect and existed at the time of the accident. The defect, however, was not symptomatic until after the collision.

After various conservative approaches to the pain, Mr. Schubert's neurosurgeon, Dr. Peter Grillo, performed a spinal fusion operation. Despite this operation, Mr. Schubert's answers to Nissan's interrogatories state that significant lower back and lower extremity pain remain.

Plaintiffs' suit is premised upon a theory of faulty product design. Specifically, they allege that a horizontal metal pipe, located in the seat back frame and running across the length of the seat back, came into forceful contact with Mr. Schubert's spine at the time of the rear-end collision. This impact allegedly exacerbated his congenital back defect, making the asymptomatic condition suddenly symptomatic. The primary evidence in support of this hypothesis is that the horizontal pipe, which is located four and one half inches vertically from the bottom edge of the seat back, was bent backwards approximately one-half of an inch. The bend in the pipe was not part of the seat back design. It can be fairly adduced that the pipe was bent by some force in the time between the seat back's manufacture and the post-accident examination of it. It must be noted that the apex of the bend is not located directly behind the driver's side of the bench seat, but instead is at the mid-point of the pipe length. Plaintiffs' expert Murray Burnstine testified in deposition, "[i]f you have a pipe that's connected at both ends, no matter where you apply the force, it's going to bow in the middle." Burnstine Dep. at 49.

Plaintiffs filed suit against Nissan in November, 1995 in the district of Massachusetts, alleging product liability claims. The Schuberts retained the aforementioned Murray Burnstine as an expert witness. According to Plaintiffs' answers to Nissan's interrogatories, Burnstine would testify that,

parts of the seat back frame are bent consistent with a rearward force being applied to these parts by the victims [sic] lower back and spine. The padding between the victim and the metal structures was not adequate to prevent a concentration of the forces on Schuberts [sic] back.... Grounds for opinion are education and training--inspection of the seat back[,] ... a review of the file including photos of the vehicle and common sense.

Schubert App. at 38.

Nissan subsequently deposed Burnstine, and elicited from him the admission that he did not have personal knowledge that the horizontal pipe lined up vertically with the location of Mr. Schubert's spinal injury. Rather, in the deposition, Burnstine stated that he assumed that the lumbar injury lined up with the pipe's location. Burnstine admitted that he had not done anything to independently verify this assumption. See Burnstine Dep. at 27, 44. Instead, Burnstine stated that he relied on representations made to him as well as photographs depicting an individual sitting in the truck seat. For purposes of the photo, a piece of tape was placed on the seat-back to indicate the vertical position of the pipe. The face of the seated individual is not visible in the photograph. More importantly, there was no indication in the photograph of the location of the spinal injury on the back of the person in the truck seat. On the basis of this deposition testimony, Nissan moved to exclude the proposed testimony of Burnstine because the opinion lacked sufficient foundation. The district court initially dismissed the motion without prejudice.

Nissan thereafter moved for summary judgment. Nissan's motion was premised on the argument that the Schuberts had failed to make a showing sufficient to prove that the alleged design defect in the seat--the pipe--had, more likely than not, caused Mr. Schubert's injury. Nor, Nissan argued, had the Schuberts presented any evidence to demonstrate that Mr. Schubert was injured more severely than he would have been if the bench seat had been reasonably designed.

The Schuberts responded to Nissan's motion, arguing, without citation to the record, that there was "ample evidence with which to demonstrate the causal connection between the seat back design and [the] injuries; the weight of such [is] appropriate for the trier of fact, not summary judgment." The district court, however, was not satisfied and issued an order requiring plaintiffs to: (i) comply with Local Rule 56.1; ¹ and (ii) "explicitly address causation and show what admissible evidence will be offered to support plaintiff's theory of causation. A suggestion as to what an expert will testify at some future time is not enough. Plaintiff must produce admissible evidence now." Memorandum and Order of October 17, 1997 (emphasis ours).

The Schuberts responded. Appended to the new response were two sworn affidavits. The first, an affidavit of Murray Burnstine, contained the following relevant statements:

4. I have not reviewed the plaintiff's medical records ... as I have not been retained as a medical expert.... I have, however, reviewed the plaintiff's x-rays, the report of Dr. Peter Grillo and the plaintiffs's answers to interrogatories which both identify the location of the plaintiff's injury and discomfort at the plaintiff's lower lumbar spine.

5. I have examined the seat on which the plaintiff sat when another vehicle struck him from behind.... I have also examined photographs of the plaintiff seated in the subject seat. My examination of the subject seat and these photographs reveal that the horizontal pipe in the seat frame lines up consistent with the lumbar spine injury sustained by the plaintiff.

6. Based upon my years of experience in automotive design, biomechanical engineering, and occupant kinematics, it is my professional opinion that when the plaintiff's vehicle was struck from behind, the force caused the plaintiff's body to naturally move rearwards into the seat, and if some hard object exist[ing] within the seat lined up consistent with the lumbar region of the plaintiff's spine, such as the horizontal bar present in the subject seat in this case, then to a reasonable degree of professional certainty, the force with which the plaintiff struck the bar did, more likely than not, directly and proximately cause[ ] or exacerbate[ ] the injuries to the plaintiff's lumbar spine.

7. Based upon my ... experience ..., and examination of the subject seat following the ... accident, the horizontal bar in the seat frame was bent consistent with the force of the plaintiff's body moving rearwards into the seat following the plaintiff's accident. Further, ... it is my professional opinion [that] the inncorporation [sic] of the horizontal bar in the design of the seat concentrated the force of the impact on the plaintiff's lumbar spine and that an alternative design, one which would disperse the force of the impact was feasible, available, and desirable....

The second affidavit the Schuberts submitted was from Dr. Peter Grillo, Mr. Schubert's neurosurgeon, who opined that, "based upon reasonable medical certainty, Mr. Schubert's injuries are consistent with the direct application of force to his back," and "that it is more probable than not that the injuries sustained by Mr. Schubert to his back after being struck from behind in his ... truck, were directly and proximately caused by the motor vehicle accident." Appended to the Grillo affidavit was Dr. Grillo's three page reiteration of his medical treatment of Mr. Schubert to plaintiffs' counsel.

The district court granted summary judgment to Nissan. First, the district court examined the affidavit of Dr. Grillo, concluding that Grillo's...