Show v. Ford Motor Co.

• Decision Date: 17 March 2010
• Docket Number: Case No. 08 C 3081.
• Citation: 697 F. Supp.2d 975
• Parties: David SHOW and Maria Federici, Plaintiffs, v. FORD MOTOR COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

697 F. Supp.2d 975

David SHOW and Maria Federici, Plaintiffs, v. FORD MOTOR COMPANY, Defendant.

Case No. 08 C 3081.

United States District Court, N.D. Illinois, Eastern Division.

March 17, 2010.

John C. Ambrose, Ambrose & Associates, P.C., Chicago, IL, for Plaintiffs.

John A. Krivicich, Michael J. Borree, Donohue Brown Mathewson & Smyth LLC, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

MORTON DENLOW, United States Magistrate Judge.

Plaintiffs David Show and Maria Federici ("Show" and "Federici," or "Plaintiffs") bring this product liability action against Defendant Ford Motor Company ("Defendant"), alleging strict liability and negligence. Plaintiffs contend that a 1993 Ford Explorer manufactured by Defendant was defective and unreasonably dangerous, causing it to roll over after a low-speed collision with another vehicle. Plaintiffs seek damages for personal injury, pain and suffering, disability and disfigurement, medical bills, and lost wages. Defendant has raised a counterclaim against Show for contributory negligence. Defendant now seeks summary judgment on the grounds that Plaintiffs have not disclosed an expert witness to opine on the vehicle's defective condition. On January 26, 2010, the Court conducted an oral argument on the motion. For the reasons stated below, the Court grants Defendant's motion for summary judgment.

I. BACKGROUND FACTS

As required when considering a motion for summary judgment, the following facts are either uncontested or presented in the light most favorable to Plaintiffs when contested.¹ Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

A. Motor Vehicle Accident on September 24, 2002

At approximately 9:00 a.m. on September 24, 2002, Plaintiffs were traveling in a 1993 Ford Explorer ("Explorer") operated by Show, with Federici in the passenger seat. PRS² ¶¶ 10, 11. Show asserts he was driving the vehicle at a speed between 25 to 30 miles per hour.³ Id. at ¶ 12. As Show drove through the intersection of Elizabeth and Washington Streets in Chicago, Illinois, the Explorer was struck in the left rear side by a 1998 Dodge Neon ("Neon") traveling under five miles per hour.⁴ Id. at ¶¶ 10, 11.

The collision sent the Explorer spinning out of Show's control and it then rolled over at least three times before coming to rest on the driver's side of the car. DS ¶ 11; PRS ¶ 27. Defendant contends that the Explorer hit at least one parked vehicle during the spinout, but Plaintiffs deny the Explorer made contact with any parked vehicle. PRS ¶ 12; DS ¶ 12. Show testified in his deposition that during the crash he lunged forward in the vehicle and "I thought I was going to be decapitated. I thought I was going to die." PRS ¶ 29. Show then blacked out and came to with "the truck ... on my chest." Id.

B. Plaintiffs' Claims

Plaintiffs originally filed a complaint in June 2004 in the Circuit Court of Cook County, but voluntarily dismissed the case in April 2007. Plaintiffs later re-filed in the Circuit Court of Cook County on April 15, 2008, and Defendant removed the case to federal court on May 28, 2008. The parties consented to this Court's jurisdiction pursuant to 28 U.S.C. § 636(c)(1).

Plaintiffs' complaint raises both strict liability and negligence claims. In counts I & III, Plaintiffs allege that the Explorer was defective and unreasonably dangerous for its intended use when it left Defendant's possession, specifically that it was designed and manufactured such that it was inherently unstable and inclined to roll over in the course of foreseeable circumstances. Count I further alleges that Defendant failed to provide adequate warnings to consumers of the dangers or inherent hazards. In counts II & IV, Plaintiffs allege that Defendant was negligent in the design and manufacture of the Explorer, in failing to perform adequate testing, and in failing to warn the public of the unreasonably dangerous condition.

C. Discovery Proceedings and Disclosure of Expert Witnesses

Following removal to the district court, the parties agreed upon a schedule for discovery. The deadline for disclosure of Plaintiffs' Rule 26(a)(2) expert witnesses was originally January 5, 2009. Due to delays in fact discovery, the Court extended the cutoff date, requiring Plaintiffs to disclose expert witnesses by April 15, 2009. On April 7, 2009, Plaintiffs were granted additional time to May 12, 2009. After failing to meet this deadline, this Court again granted an extension to August 21, 2009. Plaintiffs were subsequently given one final extension to October 7, 2009.

On October 7, 2009, Plaintiffs disclosed two expert witnesses. One was Dr. Ernest P. Chiodo ("Dr. Chiodo"), a biomedical and industrial engineer, who will testify that Show's injuries were caused by the forces of the rollover accident. The other is Richard Galuska ("Mr. Galuska"), C.P.A., who will address Show's loss of income as a result of the accident. Id. Plaintiffs did not disclose an expert to opine on the vehicle's defective condition, design and manufacture.

II. LEGAL STANDARD

A court may grant summary judgment when the "pleadings, the discovery, and discovery materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The movant bears the burden of establishing that there exists no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant meets this burden, the non-movant must set forth specific facts demonstrating that there is a genuine issue for trial. Fed. R.Civ.P. 56(e); Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

In deciding a motion for summary judgment, the court can only consider evidence that would be admissible at trial under the Federal Rules of Evidence. Stinnett v. Iron Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir.2002). The evidence is viewed in the light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Summary judgment is inappropriate when alternate inferences can be drawn from the evidence, as the choice between reasonable inferences is a jury function. Id.; Spiegla v. Hull, 371 F.3d 928, 935 (7th Cir.2004).

III. DISCUSSION

The issue presented boils down to whether, as a matter of law, Plaintiffs must present expert testimony at trial to prove that the Explorer contained an unreasonably dangerous defect in its design or manufacture that caused it to roll over. Defendant contends that, without an expert, Plaintiffs cannot make out a prima facie case for strict liability or negligent design/manufacture. Since Plaintiffs have offered no expert on this point, Defendant asserts it is entitled to summary judgment. Plaintiffs, on the other hand, contend they do not need expert testimony if they proceed under the "consumer expectation" test to prove their case. Because this case comes to the Court under diversity jurisdiction, the substantive law of Illinois, the forum state, applies. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Lummis v. State Farm Fire & Cas. Co., 469 F.3d 1098, 1100 (7th Cir.2006).

A. Strict Products Liability and Methods of Proof

Illinois follows the strict liability doctrine set forth in § 402A of the Second Restatement of Torts, which imposes liability on "a seller of any product in a defective condition unreasonably dangerous to the user or consumer or to his property," regardless of the degree of care taken in the production. Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182, 185 (1965) (overturned on other grounds); Restatement (2d) Torts § 402A (1965). To show that a product is unreasonably dangerous, a plaintiff may assert any of the following: existence of a design defect, existence of a manufacturing defect, and/or failure of the manufacturer to adequately warn consumers of a product's dangerous propensities. Lamkin v. Towner, 138 Ill.2d 510, 150 Ill.Dec. 562, 563 N.E.2d 449, 457 (1990). In the present case, Plaintiffs have alleged all three. The unreasonably dangerous condition must also be the proximate cause of the plaintiff's injuries. Mikolajczyk v. Ford Motor Co., 231 Ill.2d 516, 327 Ill.Dec. 1, 901 N.E.2d 329, 339 (2008).

The Illinois Supreme Court has laid out the specific elements of a strict liability claim based on a product defect as follows: 1) a condition of the product as a result of manufacturing or design, 2) that made the product unreasonably dangerous, 3) and that existed at the time the product left the defendant's control, and 4) an injury to the plaintiff, 5) that was proximately caused by the condition. Mikolajczyk, 327 Ill.Dec. 1, 901 N.E.2d at 345. The plaintiff has the burden of proof on each element. Id.

To establish that a product is unreasonably dangerous, and thus defective, a plaintiff may proceed under two alternative methods of proof, known as the "consumer-expectation test" and the "risk-utility test." Id., 327 Ill.Dec. 1, 901 N.E.2d at 348, 352. Under the consumer-expectation test, the plaintiff must prove that the product is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Calles v. Scripto-Tokai Corp., 224 Ill.2d 247, 309 Ill.Dec. 383, 864 N.E.2d 249, 254 (2007) N.E.2d 249, 254 (2007) (quoting Restatement (Second) of Torts § 402A, cmt. i (1965)). Under the consumer-expectation test, the single question for the jury is whether the product is unsafe when put to use in an intended or reasonably foreseeable manner. Mikolajczyk, 327 Ill.Dec. 1, 901...