This is а products liability case seeking recovery for injuries allegedly caused by a defective golf car.
Mercedez Lynn and her parents, Robert and Melissa Lynn (collectively, the “Plaintiffs” or the “Lynns”), bring this civil action against Yamaha Golf-Car Company, Yamaha Motor Manufacturing Corporation, Yamaha Motor Manufacturing Corporation of America, and Yamaha Motor Manufacturing Corporation, U.S.A. (collectively, the “Defendants” or “Yamaha”) for severe head injuries sustained by Mercedez Lynn when, as a passenger, she was thrown from a golf car manufactured by the Defendants. Now pending before the Court are Yamaha’s Motion for Summary Judgment, ECF No. 32, and Motion to Preclude the Testimony of Kristopher Seluga, M.S., P.E., Under Federal Rule of Evidence 702. ECF No. 34. Having been fully briefed and argued, these matters are ripe for disposition. For the reasons that follow, the Motion to Preclude the Testimony of Kristopher Seluga, M.S., P.E., Under Federal Rule of Evidence 702 is denied, and the Court will grant in part and deny in part the Motion for Summary Judgment.
I. FACTUAL BACKGROUND
On April 30, 2008, Plaintiff Mercedez Lynn, then thirteen (13) years old, was a passenger in a 1999 Yamaha G16A golf car, bearing manufacturer’s serial number JN6-310453, which was being operated by her friend, Jackie Johnston, on a paved road in the Lynns’ neighborhood. Defs.’ Concise Statement of Material Facts ¶ 1. The Yamaha golf car was purchased secondhand by Mercedez Lynn’s father, Robert Lynn, on the side of the road from a private seller. Defs.’ Concise Statement of Material Facts ¶¶ 4, 8. Mr. Lynn did not receive the Yamaha Owner’s/Operator’s Manual that accompanied the vehicle on the initial purchase. Id.
Ms. Johnston, then operating a golf car for the first time, was also thirteen (13) years old at the time of the incident. Id. at ¶¶ 1, 9. Facing the public road from the Lynn property, the girls turned left out of the Lynns’ driveway and traveled north on Sutherland Road. Upon approaching a bend in the uphill portion of the road located at the top of Sutherland Road, Ms. Johnston began to make a left hand U-turn to return to the Lynn property. Pis.’ Resp. to Defs.’ Concise Statement of Material Facts ¶ 12. In order to execute this maneuver, Ms. Johnston turned slightly right into the driveway of the residence located at 224 Sutherland Road. Id. Ms. Johnston then turned the vehicle left with enough steering force to return south towards the Lynn property. Id. At some point within the U-turn, Mercedez Lynn was thrown from the golf car, and her head struck the ground following her ejection. As a result, Mercedez sustained serious head injuries and is unable to recall the events leading up to the accident. Defs.’ Concise Statement of Material Facts ¶ 2; Seluga Exp. Rep., ECF Nos. 43-7 and 45 4, at 3.
Shortly before the accident, as Jackie Johnston was approaching the driveway to make the U-turn, she saw Mercedez text messaging on her mobile telephone, which required the use of both of her hands. Defs.’ Concise Statement of Material Facts ¶ 13; Johnston Dep. Tr. at 71:2-3. Ms. Johnston testified that, while in a seated position, Mercedez’s feet were flat on the floor of the golf car just before Ms. Johnston maneuvered the golf car onto the driveway at 224 Sutherland Road. Pis.’ Responsive Statement of Facts ¶ 13. There were no other eyewitnesses to the accident on Sutherland Road. Defs.’ Concise Statement of Material Facts ¶ 2.
This action was initially filed in the Court of Common Pleas of Westmoreland County, Pennsylvania, and the Defendants removed the case to this Court on diversity grounds, 28 U.S.C. § 1332(a). The Complaint, ECF No. 1-3, alleges that the 1999 Yamaha G16A golf car was defectively designed by the Defendants, specifically alleging that the hip restraint on the golf car acts as a fulcrum facilitating a passenger being ejected so as to make the golf car unreasonably dangerous, and that it lacked a passenger handhold in the area between the driver and passenger. Furthermore, the Plaintiffs allege that the golf car was defective due to a lack of adequate and proper warnings. Finally, the Plaintiffs also allege claims sounding in negligence against the Defendants.
II. JURISDICTION
The Court has subject matter jurisdiction over this action due to diversity of citizenship, and we will apply the substantive law of the Commonwealth of Pennsylvania and federal procedural law. 28 U.S.C. §§ 1332(a), 1652; Chamberlain v. Giampapa,
III. DISCUSSION
Defendants’ Motion to Preclude the Testimony of Kristopher Seluga, M.S., P.E.
The Defendants move the Court to preclude the testimony of Plaintiffs’ expert, Kristopher Seluga, under Federal Rule of Evidence 702, which amounts to a challenge made under the Supreme Court’s landmark deсision in Daubert v. Merrell Dow Pharm.,
Rule 702 provides that “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702. In determining the admissibility of expert testimony, courts have categorized the Rule 702 requirements as (1) the expert’s qualifications, (2) the reliability of the expert’s methods, and (3) the “fit” of the expert’s methods to the facts of the case (i.e., whether the expert’s methods are helpful to the fact finder). See Schneider ex rel. Estate of Schneider v. Fried,
1) Qualifications
In order to qualify as an expert witness, the witness must possess relevant specialized expertise. Id. at 405. While the Defendants initially spent considerable effort to discount the credibility of Kristopher Seluga by labeling him as a “paid” litigation expert, they maintain that they are not seeking to preclude his testimony based on any perceived lack of qualifications. Defs.’ Reply Br. at 7. Nevertheless, because the Defendants initially objected to Mr. Seluga’s expertise, ECF No. 34 at 6-7, the Court will briefly examine his qualifications.
The Court has considerable latitude in determining whether a witness qualifies as an expert. See In Re Paoli R.R. Yard PCB Litigation,
Mr. Seluga obtained undergraduate- and graduate-level degrees from the Massachusetts Institute of Technology (“M.I.T.”). Seluga Curriculum Vitae, ECF No. 45-2. Wfliile at M.I.T., Seluga was named to the Tau Beta Pi Engineering Honor Society and the Pi Tau Mechanical Engineering Honor Society and was named an M.I.T. Martin Fellow. Id. Seluga is a licensed professional engineer in the State of Connecticut and an accredited traffic accident reconstructionist. Id. He is a member of various industrial trade groups, namely the American Society of Mechanical Engineering, the Society of Automotive Engineers, the Human Factors and Ergonomics Society, the Institute of Transportation Engineers, and the National Association of Professional Accident Reconstruction Specialists. Id. Mr. Seluga also serves on the committee responsible for promulgating the national safety stan
Given Mr. Seluga’s education, activity within several relevant trade groups, experience with computer simulations in the areas of mechanical and biomechanical engineering, his receipt of awards and membership into honor societies in the industry, and publications on topics facially related to the matter at hand, the Court finds that Kristopher Seluga is a qualified expert for purposes of satisfying Rule 702. Thus, as a biomechanical engineer, Seluga is qualified to render an opinion in this case as to the general causation of the force sustained by Mercedez Lynn, but not specific injury causation that would require the identification and diagnosis of a medical condition. Burke v. TransAm Trucking, Inc.,
2) Reliability
Under Daubert and its progeny, expert testimony is admissible so long as the process or technique that the expert relied upon in formulating an opinion is reliable. Daubert,
Courts treat challenges to the data used in computer simulations in different ways. Typically, a court will not strike an expert’s testimony where the simulation program used by the expert itself passes the Daubert test but an objection remains as to the data inputs utilized by the expert. See Burke,
However, other courts, as Defendants correctly note, have held that рreclusion of an expert’s testimony is proper when necessary to screen inaccurate data used in
Defendants argue that the assumptions Seluga made in constructing his computer model of the accident in this case amount to subjective beliefs, observations, and methodologies that are prohibited under Fed.R.Evid. 702 and Daubert. See Meadows v. Anchor Longwall and Rebuild, Inc.,
Such rough-and-ready estimates or mere guesswork as seen in Reali and Simmons are not present here. Mr. Seluga personally inspected the Lynns’ golf car and took photographs of the accident scene. All of the record evidence indicates that Seluga attempted to replicate the accident within the confines of the known facts,
While the Court need not engage in a reliability analysis of Seluga’s methods because of the Defendants’ concession regarding the inherent reliability of ATB and GEBOD (and our conclusion that any objection to the data that Seluga used in those computer programs can be properly
Based on the factors listed above, the Court concludes that Seluga’s opinions are reliable and were based on scientific methods and procedures instead of merely subjective beliefs or unsupported speculation. Mr. Seluga’s methodology consists of a testable hypothesis. Using the measurements gathered in the field, Seluga is able to test his hypothesis that the golf car’s hip restraint acted as a fulcrum in this case by inputting directly that data into his computer modeling, or, if the value is unknown with certainty, within known parameters based on measurements. This methodology has been subject to peer review, as is evidenced by Seluga’s scholarly work in numerous publications related to the field of biomechanics. Mr. Seluga’s scholarship also shows that his methodology has been put to non-judicial uses. Additionally, Mr. Seluga’s expertise in the area of biomechanics and accident reconstruction (specifically, ejection from slow-moving vehicles such as golf cars) enhances the reliability of the computer modeling used in this case. The Court also notes, in cases cited by the parties in their briefing materials, that the use of ATB and GEBOD, in addition to computer simulation of vehicular accidents generally, weighs in favor of the general acceptance of this methodology.
3) Fit
Citing Meadows v. Anchor Longwall and Rebuild, Inc.,
This case is not at all as similar to Meadows as Defendants would have it. In Meadows, the plaintiff mineworker, while manually pressurizing a mine longwall shield in order to raise the canopy of the shield to the roof of the mine as part of a repair and refurbishment project, was struck in the face by a shut-off valve fitting when it pulled loose from the valve assembly housing, causing plaintiff to lose the use of his right eye. The mineworker and his wife hired an expert to investigate the valve malfunction and testify as to liability and causation. The Meadows’ expert testified that, using general principles of physics, a pressure spike exceeding 100,000 psi occurred in the hydraulic fluid within the system when the ram bar used to manually pressurize the longwall shield was in the down position. Our Court of Appeals upheld the trial court’s exclusion of the expert’s testimony because it was unreliable and the expert’s testing of the valves did not fit the facts of the case. Meadows,
The Court concludes that Mr. Seluga’s testing methods, expert report, and deposition testimony sufficiently fit the facts of this case. Here, as we have already indicated above, Mr. Seluga attempted to replicate the accident in this case; he went to the scene of the accident, took photographs, and, through testing the Lynns’ golf car within the purported course taken by Mercedez and Jackie on April 30, 2008, compiled measurements relative to the actual scene and the involved golf car. In order to prepare his report and conduct a computer simulation that appropriately resembled the accident in this case, Mr. Seluga reviewed numerous documents, including the police report of the accident, the transcript of Jackie Johnston’s deposition testimony, the Owner’s/Operator’s Manual for the 1999 Yamaha G16A, the relevant ANSI/NGCMA standards, and Mercedez Lynn’s medical records. Seluga Exp. Rep. at 9.
According to Yamaha, Mr. Seluga made several important assumptions in his computer modeling that do not “fit” the facts of the case, which nonetheless requires this Court to exclude Seluga’s expert testimony. Defendants would have the Court
Moreover, the Court finds that Seluga’s testimony with respect to the speed of the golf car competently fits the relevant facts of the case. Jackie Johnston testified that she pressed the gas pedal to the floor as she traveled north on Sutherland Road. Johnston Dep. Tr. at 71:4-7. She also testified that she let off the gas pedal as she approached the downhill section of the driveway, id. at 62:18-22, and appliеd the brake when she started going downhill in the driveway. Id. at 117:9-14. Seluga, after initially testifying that he based his estimation that the golf car was traveling “near 13 miles an hour” on Johnston’s testimony, in which she claimed to have the gas pedal fully depressed while entering the turn, did admit that “she would have been slowing down” in the driveway. Seluga Dep. Tr. at 104-05. However, Seluga then clarified that the input speed decreased during the two-second simulation from a starting speed of thirteen (13) miles per hour to almost nine (9) miles per hour at the end of the simulation. This, according to Seluga, is supported by the testimony and his independent testing, and shows that Mercedez could have been ejected even when Ms. Johnston let off the gas at the end of her travels. Seluga Dep. Tr. at 150. The Court notes that to the extent there exists an inconsistency in Seluga’s testimony, either in his previous statements or assumptions in rendering his opinion, Defendants may, of course, call the jury’s attention to those matters on cross-examination. However, because Seluga’s testimony considered as a whole fits the facts of this case and is otherwise reliable, the Defendants’ Motion to Preclude Seluga’s testimony is denied.
Defendant’s Motion for Summary Judgment
Legal Standard
The purpose of summary judgment is “to dispose of factually unsupported claims and defenses.” Omnipoint Comm. Enter.,
Within the framework of Federal Rule of Civil Procedure 56, the moving party must first demonstrate the absence of a genuine issue of material fact by citing to relevant portions of the record, which may include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, and interrogatory answers.” Fed.R.Civ.P. 56(c)(1). See also Celotex Corp. v. Catrett,
In ruling on a motion for summary judgment, the court’s function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. Anderson,
Analysis
Yamaha moves for summary judgment on Plaintiffs’ strict liability claims on various grounds,
The Current State of Pennsylvania Products Liability Law
The substantive law of the Commonwealth of Pennsylvania supplies the rule of decision for the disposition of the Lynns’ strict products liability claims. 28 U.S.C. § 1652; see Chamberlain v. Giampapa,
As this Court has recently observed, Pennsylvania products liability law may be fairly seen as being in a state of profound uncertainty. See Sansom v. Crown Equipment Corp.,
The Pennsylvania Supreme Court has also acknowledged that the over forty years of case law interpreting the Restatement (Second) of Torts, beginning with Webb v. Zern,
Then there are the Third Circuit’s decisions holding that district courts in our circuit must apply the Restatement (Third) to design defect claims arising under Pennsylvania law, absent a clear and contrary holding from the Pennsylvania Supreme Court. See Covell v. Bell Sports, Inc.,
The Third Circuit made its prediction regarding the path of Pennsylvania prod
Nearly two years later, the Pennsylvania Supreme Court took note of the prevailing difficulties in the products liability arena. See Schmidt v. Boardman Co.,
Six months after Schmidt was decided, when faced with the question as to whether a district court properly admitted certain evidence and instructed a jury pursuant to the Restatement (Third) of Torts in a diversity suit involving the alleged defective design of a bicycle helmet, the Third Circuit concluded that the “state of [Pennsylvania products liability law] is no different now than it was when we decided Berrier.” Covell v. Bell Sports, Inc.,
Restatement (Third) of Torts-. Strict Liability
Under the Restatement (Third) of Torts, strict liability attaches to a commercial seller of a product that inflicts harm on a person because of a defect. Berrier,
(a) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;
(b) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.
Restatement (Third) of Torts, § 2 (1998). Any alleged defect must be present at the time of sale or distribution. Id. The Plaintiffs assert that the Defendants are strictly liable because the design of the 1999 Yamaha G16A golf car, namely the hip restraint, was defective and because the Defendants failed to provide adequate warnings of thе risks involving ejection from the vehicle.
Design Defect Under the Restatement (Third) of torts
To establish a prima facie case of design defect under the Restatement (Third) of Torts, a plaintiff must prove the availability of a technologically feasible and practical alternative design that would have reduced or prevented the harm sustained by the plaintiff.
The Court concludes that the Plaintiffs have produced sufficient evidence such that a reasonable jury could conclude that when the 1999 Yamaha G16A golf car is turned sharply to the left at or near maximum speed, there is a foreseeable risk of ejection, especially when children (or other small people) ride as passengers. The National Highway Traffic Safety Administration (“NHTSA”), in promulgating its final rule on golf cars, located at 63 FR 33913 and dated June 17, 1998, noted the growing on-road use of golf cars and the severe injuries (including deaths) related to such use. Ex. K to Pis.’ Br. Opp’n Mot. Summ. J., ECF No. 43-12.
Plaintiffs have also presented sufficient evidence for a jury to conclude that a reasonable alternative design was available — in other words, technologically feasible and economically practical — at the time of sale and would have prevented the risk of passenger ejection in the 1999 Yamaha G16A golf car.
Plaintiffs, through Mr. Seluga, propose two alternative designs that would have made this golf car safer. One of the designs is a taller hip restraint that, at its highest point, sits nine to ten inches (9-10") above the uncompressed seat cushion.
First, in his report, Mr. Seluga concludes that the injuries to Mercedez Lynn from this accident would not have occurred (or would have otherwise been prevented) had the Lynns’ golf car been equipped with a higher hip restraint and/or a centrally-mounted handhold device resembling the hip restraint in design. Seluga Exp. Rep. at 14; see also ECF No. 45-10. The statistical data analyzed by Mr. Seluga, as we have already discussed above, is evidence which would demonstrate that the risk of ejection was foreseeable. In addition, Seluga’s computer simulation shows that the magnitude of the risk is high, given that the head is among the body parts to strike the ground first when a passenger is ejected by engaging the hip restraint. Seluga Dep. Tr. at 146:15-17. The grave nature of Mercedez’s claimed injuries, which include a subdural hematoma and traumatic brain injury, supports this conclusion. Compl. ¶¶ 21-22.
Second, while the instructions or warnings accompanying the golf car do not specifically warn of the foreseeable risk of ejection, they do explicitly warn that death or serious bodily injury can occur, or, in other words, such harm is fоreseeable. As the Court will examine in further detail below, the sticker directly above the vehicle’s beverage holder warns that the golf car should be driven slowly in turns, and that occupants should remain seated and hold on when the vehicle is in motion, to avoid death or serious bodily harm. A rea
Finally, the Court concludes that the relative advantages and disadvantages of Mr. Seluga’s proposed alternative designs outweigh those of the golf car as designed. As we have already indicated, the likely effects of the alternative designs on production costs would be minimal. Mr. Seluga is not proposing alternative designs that would require enhanced technology or a complete overhaul of the hip restraint. Instead, Mr. Seluga proposes a design of the restraint that differs only in height. While the Court is cognizant of the fact that a higher restraint could impede on a passenger’s ability to enter and exit the vehicle with ease, a jury could readily find that such an imposition would be insignificant compared to the increased safety users would enjoy by the alternative design. Thus, the Court concludes that the Lynns have produced sufficient evidence that a reasonable jury could conclude that Mr. Seluga’s alternative designs are reasonable and the omission of such designs makes the golf not reasonably safe.
The Intended Use and Intended User Doctrines
The heart of Defendants’ summary judgment arguments is that the use of the golf car here was by no measure an “intendеd use,” nor was its operation by Ms. Johnston the operation of or by an “intended user.” Defendants contend that under the analysis posited by the Restatement (Second) and by the legal norms applicable post-Azzarello, the application of these doctrines (or, in reality, either one of them) shuts the door on Plaintiffs’ strict liability claims. For the reasons which follow, the Court finds these contentions unavailing here.
Over forty years ago, the Pennsylvania Supreme Court adopted Section 402A of the Restatement (Second) of Torts.
Pennsylvania law under the Restatement (Second) provided that a product is “unreasonably dangerous” if its unavoidable dangers outweigh its utility, in light of “the availability of precautions that, though not foolproof, might prevent the injury.” See Phillips,
The Defendants did not move for summary judgment pursuant to this Azzarello analysis,
As a preliminary matter, the Court would note that, given its application of the Restatement (Third) of Torts to the case sub judice, and given the evolution of the precedent of our Court of Appeals, the district courts within the circuit, and the Supreme Court of Pennsylvania, the legal principles of “intended use” and “intended user” have little bearing on the current state of products liability law in Pennsylvania as this Court is required to apply it. They are issues endemic to a Restatement (Second) analysis. As the Berrier court noted, it is difficult, if not impossible, to determine if a product is safe for its “intended use” by its “intended user” without considering foreseeability, a Restatement (Third) concept. Berrier,
The Defendants first argue that they cannot be held liable because the golf car in this case was not being used in its intended manner, as required by applicable law. See Pennsylvania Dep’t of Gen. Servs. v. U.S. Mineral Prods. Co. (“DGS”),
We are not as constrained as Defendants would desire in determining the intended use of a product in strict liability cases. See Warnick
Limiting the intended use to that proposed by the Defendants — a vehicle that is only used to convey persons on a turf golf course by licensed drivers — would require the Court to “put on blinders,” Beard,
Citing to Phillips, the Defendants also urge the Court to enter summary judgment against Plaintiffs because Ms. Johnston and Mercedez Lynn were not intended users of the vehicle. In Phillips, the trial court’s finding that a two-year-old child was not an intended user of a cigarette lighter required that the manufacturer of that product could not be liable in strict liability. Phillips,
Phillips is distinguishable from this case. The Phillips court held that the child was not an intended user of the lighter because: (1) the plaintiff did not contest that the butane lighter was intended to be used solely by adults and specifically not by a two-year-old child; and (2) she did not contend that, as designed, the lighter was unsafe for use by the adult intended user. Id. Here, the Lynns do not concede that the golf car was intended to be used solely by adults, and, through Mr. Seluga’s testimony, posit that the golf car is defective as to all passengers, including adults. Seluga Dep. Tr. at 44:12^5:24. Second, there is no evidence in the record to show that teenagers are unintended users as drivers of the golf car. Yamaha relies on Mr. Seluga’s statements that the golf car was not being operated by intended users as conclusive evidence of a legal conclusion to be determined by the Court. Defs.’ Br. Supp. Mot. Summ. J. at 11; Defs.’ Reply Br. at 7. The Court notes that the warnings actually present on the golf car at the time of the accident simply caution that the vehicle should be operated “only when authorized and only in designated areas.” ECF No. 51-30 at 32. This warning does not tell us what kind of authorization is required, nor does it tell the user (or the Court) who can give such authorization, or that the only acceptable “authorization” is a current state-issued driver’s license.
Third, the Court is hard pressed to hold that Mercedez Lynn was an unin
The Court would also note that this extension of the Defendants’ argument presents an example of what is perhaps one of the fundamental jurisprudential bases supporting the adoption of Sections 1 and 2 of the Restatement (Third) of Torts. The highly cabined nature of the intended use and intended user doctrines is at odds with the reality of manufacturers, users and courts necessarily taking into account, in their usual and normal daily work, the reasonably foreseeable uses of a product or procedure, and the risks flowing from such uses of manufactured products. One need only consider the facts and holding in Beard as to the multiple intended uses of a product to reach that conclusion.
Reliance on narrow definitions of “intended uses” and “intended users” in the face of reasonably foreseeable, or even obviously foreseeable, other uses by other users will too often lead to the necessity for judicial engrafting of concepts such as “multiple” intended uses onto these labels in order to avoid results wholly at odds with the “defective product” principles underlying longstanding strict liability law. The application of the concept of “reasonable foreseeability” central to the Restatement (Third), has the dual advantages of invoking an analytical principle long applied in tort law, thereby providing a greater degree of predictability to the legal process, and at the same time, holding true to the foundational principles оf product liability law as to when a manufacturer will, and will not, be held accountable for harm caused by a defective product. In short, rather than the focal point being whether a given plaintiff, or given conduct, fits within a tightly-defined classification, the focus is instead on whether the circumstances are such that a manufacturer should be held to account for harm resulting from a product defect because such harm was, in the circumstances, reasonably foreseeable.
Causation-Design Defect
While the question of causation in Pennsylvania is normally for the jury, “if the relevant facts are not in dispute and the remoteness of the causal connection between the defendant’s negligence and the plaintiffs injury clearly appears, the question becomes one of law.” Conti v. Ford Motor Co.,
The Restatement (Second) and Restatement (Third) of Torts both require that the Plaintiffs prove that the defective hip restraint on the 1999 Yamaha G16A caused the harm sustained by Mercedez in order for strict liability to apply. See Berkebile,
The Court concludes that there is a genuine issue of material fact with respect to causation that warrants the denial of Defendants’ summary judgment motion. The Plaintiffs have presented evidence to support their theory of causation that Mercedez Lynn, seated in the golf car, was ejected because the hip restraint acted as a fulcrum (instead of acting as a passive restraint) when she engaged it in the middle of the left-handed U-turn. Jackie Johnston testified that, just before entering the driveway to execute the U-turn, she saw Mercedez with her feet on the floor and in the seated position. Johnston Dep. Tr. at 71:2-3.
Defendants argue that there is no evidence from which a reasonable jury, let alone an expert witness,
However, Plaintiffs’ expert, Mr. Seluga, testified that, while it is certainly possible that Mercedez left the vehicle in some other fashion (e.g., through the opening in front of the hip restraint), given the facts available to him at the time of his investigation and testing — such as the Johnston deposition transcript, police reports, and the various measurements related to the accident (including speed, turning radius, and surface slope) — it is highly likely that Mercedez exited the golf car via a path over the hip restraint. This conclusion, according to Seluga, is buttressed by the physical location of Mercedez on the surface of Sutherland Road, because she otherwise would not have landed in the same spot within the turn had she exited the vehicle some other way. These assertions, coupled with the contrary arguments advanced by the Defendants require the Court to find that there is a genuine issue of material fact as to all of the elements of causation, making summary judgment improper. These matters must, therefore, be submitted to the jury for consideration.
Failure to Warn Under the Restatement (Third) of Torts
Sеllers of commercial products are required to provide reasonable instructions and warnings about the foreseeable risks of injury posed by their products.
The Plaintiffs claim that Defendants’ purported warnings about the operation of the golf car were insufficient “in all respects.” Pis.’ Br. Opp’n Mot. Summ. J. at 19. The Lynns claim that: (1) the text of the Operating Instructions merely informed golf car drivers that the vehicle did not comply with federal motor vehicle safety standards applicable to passenger cars rather than warning that operating the vehicle on a public road could be dangerous; and (2) that the Operating Instructions failed to warn occupants of the risk that a passenger could be ejected during a turn. Pis.’ Br. Opp’n Mot. Summ. J. at 8-10, 19. As we explain below, these arguments miss the mark.
There is no dispute that the Owner’s/Operator’s Manual did not accompany the golf car when it came into the Lynns’ possession. Defs.’ Concise Statement of Material Facts ¶ 8; Pis.’ Resp. Statement to Defs.’ Concise Statement of Material Facts ¶ 8. It is also undisputed that the label titled “Operating Instructions” was not permanently affixed to the golf car’s steering wheel in accordance with the ANSI standards at the time of the accident. Defs.’ Br. Supp. Mot. Summ. J. at 8; Pis.’ Resp. to Defs.’ Concise Statement of Material Facts ¶ 14; see also ECF No. 51-80 at 36. Plaintiffs also argue that no warnings were on the golf car. Pis.’ Br. Opp’n Mot. Summ. J. at 7. This assertion, however, is not accurate. The record is clear. At the time of the accident, the golf car contained explicit warnings that touch on the risks involved here. See ECF No. 51-30 at 32, 33. The sticker labeled “[symbol below] WARNING ” — which was affixed directly below the cup holder in the vehicle’s center console and was facing the occupants — expressly states, in capital letters, that “DEATH OR SEVERE PERSONAL INJURY CAN RESULT FROM FAILURE TO FOLLOW THESE INSTRUCTIONS.” Id. The instructions that follow this preamble caution the driver to, among other things, “[d]rive slowly in turns” and caution the occupants to “[r]emain seated and hold on when in motion.” Id.
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The Court does not believe that a reasonable jury could conclude, based on the record evidence presented, that the golf car was defective because of inadequate instructions or warnings. In a
The Court notes that the Plaintiffs also fail to bring any evidence that more or modified information would have prevented Mercedez from riding, or Mr. and Mrs. Lynn from allowing Mercedez to ride while Jackie was driving, the golf car in the same manner on April 30, 2008. To establish causation, the plaintiff must demonstrate that the user of the product would have avoided the risk had he or she been warned of it by the seller.
Plaintiffs point to no evidence that supports any theory of causation that connects inadequate warnings, if any, to Mercedez’s injuries. As noted, there was a clear, direct warning present on the golf car. Additionally, Plaintiffs fail to show how the foreseeable risks of harm posed by the golf car could have been reduced or avoided by the adoption and use of other reasonable instructions or warnings (whatever those might be, since Plaintiffs do not propose any substitute warnings). While the warning label on the vehicle’s cup holder explicitly warns that death or severe personal injury could result if the vehicle is not driven slowly in turns or if the passenger does not hold on while the golf car is moving, the depositions of record in this case are silent with respect to any actual or hypothetical alternative warnings, specifically regarding how the provision of
Failure to Warn Under the Restatement (Second) of Torts
If the Restatement (Second) of Torts were applied to this claim, the result is the same. A plaintiff in a failure-to-warn products liability claim under the Restatement (Second) of Torts must establish: (1) that the product was defective; (2) that the defect was the proximate cause of the plaintiffs injuries; and (3) that the defect causing the injury existed at the time the product left the seller’s hands. Berkebile,
The Court concludes that, as a matter of law, a reasonable jury could not find that the warnings on the 1999 Yamaha G16A golf car in question were inadequate so as to make the golf car defective. As indicated above, the Lynns make no demonstration beyond the pleadings that the golf car’s warnings were either inadequate or altogether lacking. The Court takes note that the beverage-holder warning contains clear, explicit warnings that put a golf car driver, passenger, or owner on notice that death or severe personal injury can result from failure to follow the instructions, which include the need to drive slowly in turns and to remain seated and hold on when the vehicle is in motion. These warnings are concise, to the point, and written in plain English such that teenagers like Jackie Johnston and Mercedez Lynn (and Ms. Lynn’s parents) would be able to observe and follow them.
Post-Sale Duty to Warn
Plaintiffs also argue that the Defendants violated their post-sale duty to warn of the risk of ejection in the 1999 Yamaha G16A golf car. Pis.’ Br. Opp’n Mot. Summ. J. at 20. Where a product was defective at the time of sale and a manufacturer or commercial seller came upon subsequent actual knowledge of the defect, the manufacturer or commercial seller is thereafter required to warn its customers of such a defect. See Walton,
In Walton, Hughes Helicopter, Inc. (“Hughes”), a helicopter manufacturer, incorporated as a component part of its helicopter an engine manufactured by Avco Corporation (“Avco”). After an investigation of a Hughes helicopter crash caused by a seized engine, it was discovered that the Avco engine had a failed oil pump. Avco knew about the defective oil
IV. CONCLUSION
For the foregoing reasons, the Defendants’ Motion to Preclude the Testimony of Kristopher Seluga, M.S., P.E., Pursuant to Rule 702 is DENIED. The Defendants’ Motion for Summary Judgment is GRANTED in part and DENIED in part. Plaintiffs’ defective design claims based on defective design will proceed to trial. As to their claims based on alleged failure to provide adequate warnings, or to provide a post-sale warning, summary judgment will be granted, and those claims arising in the Complaint are dismissed with prejudice. The Court defers ruling on the continued viability of Plaintiffs negligence claims, pending disposition of their recent Motion seeking the application of the Restatement (Second) of Torts based on the application of the doctrine of judicial estoppel.
An appropriate order will issue.
Notes
. Plaintiffs proffered, both in their Response in Opposition to Defendants’ Motion for Summary Judgment and at oral argument, that they would not proceed on the negligence claims even though they averred that there is sufficient evidence to support a finding in their favor on such claims. According to the Plaintiffs' counsel, this would have avoided any confusion among jurors when hearing evidence on the strict liability counts. For reasons explained at length, infra, the Court will not address the effect (if any) of that concession at this point.
. ATB and GEBOD are biomechanical simulation programs used by Seluga in conducting computer simulations to create, or recreate as the case may be, certain events given a measured data set used as variables in the simulation. In one of Mr. Seluga’s peer-reviewed articles, he describes ATB as a program that "models the dynamic response of systems of connected or free bodies such as the human body during a dynamic event.” Kristopher Seluga & Timothy Long, Analysis and Prevention of Child Ejections from Golf Cars and Personal Transport Vehicles, at 4, 21st International Conference on the Enhanced Safety of Vehicles (ESV), Paper No. 09-0186 (June 2009). GEBOD is a companion program to ATB that generates a model of the human body for use in ATB simulations. Id. Further, ATB has been used to study ejections during motor vehicle accidents. Id. Other courts have noted the use of ATB. See Reali v. Mazda Motor of America, Inc.,
. Of course, the natural extension of Defendants' argument is that such exclusion would be required in any case where there is no eyewitness, or photographic, evidence possessing the level of exactitude Defendants posit. Putting aside for the moment the breadth of such a position, for the reasons which follow, the record here does provide the requisite level of support for Seluga’s opinions.
. The Court's searching review of the transcript of Mr. Seluga’s deposition reveals that defense counsel appears more than up to this task, and that Mr. Seluga has the ability to likewise engage in the parry and thrust of such an exchange.
. The Court’s discussion of Meadows, infra, demonstrates the importance of Seluga’s replication of the accident conditions and examination of the actual golf car in this case.
. The Defendants argue that because Seluga’s proposed alternative design was not adopted by the ANSI committee in developing its safety standards, his testimony is unreliable because it is not generally accepted. However, this cuts to the conclusions reached by Seluga in his testing and not to the methodology itself in reaching such conclusions. As our inquiry focuses upon the methodology, this argument does not carry the day at this stage of the case.
. For example, the record evidence in Meadows showed that the apparatus on which the plaintiff was working did not contain a ram bar or a base jack lift, which is the essential equipment that the Meadows expert relied upon in reaching his conclusions.
. Yamaha also bases its Motion for Summary Judgment on the failure of proof that would result from excluding Mr. Seluga’s expert testimony. Given the Court’s denial of the Motion to Exclude Mr. Seluga's testimony, the Motion for Summary Judgment on such grounds is denied.
. Yamaha also moves for summary judgment on the negligence claims advanced by the Lynns because, according to Yamaha, they fail to present any evidentiary support to show that: (1) Yamaha breached a duty it owed to the Lynns; and (2) allegedly unreasonable conduct, if any, was the proximate cause of Mercedez Lynn’s injuries. Defs.’ Br. Supp. Mot. Summ. J. at 13-21. In response to Yamaha's Motion for Summary Judgment, the Plaintiffs maintain that there is enough evidence to bring a negligence claim without any further factual support whatsoever. Pis.' Br. Opp'n Mot. Summ. J, at 15. They also previously stated, however, that they would elect not to proceed with the negligence claims against the Defendants. Id. In light of the Plaintiffs' most recent filing, a Motion to Establish Restatement Torts (Second) § 402A as the Applicable Law in the Present Case or, in the Alternative, Motion to Reopen Discovery and Pleadings, ECF No. 117, the Court will defer ruling on the Motion for Summary Judgment as to the negligence claims pending disposition of that Motion.
. In the absence of a definitive adoption of the Restatement (Third) by the Pennsylvania Supreme Court, one might suppose that the Restatement (Second) applies by default. However, the multiple opinions in Phillips v. Cricket Lighters,
. As noted below, note 12 infra, several of our sister federal district courts in this Circuit have held that post-Berrier and Coveil, the Pennsylvania Supreme Court has spoken with the requisite level of clarity and persuasion such that the Berrier and Coveil predictions should now be viewed as prematurely inaccurate. While this Court certainly respects the thorough and searching analyses that has led those courts to that conclusion, this Court respectfully disagrees, and concludes that in the face of the various holdings and reasoning of our state's supreme court in its most recent series of strict liability cases, including in Beard,
. After the Third Circuit's decision, in Berrier, but before Judge Aldisert's opinion for that court in Coveil, district courts in this circuit were split on whether to apply the Restatement (Second) or (Third) of Torts and the principles set forth therein. Compare Covell v. Bell Sports, Inc., No. 9-2470,
. The Restatement (Third) of Torts recognizes that product sellers may be subject to liability even if a reasonable alternative design did not exist at the time of sale. See Restatement (Third) of Torts § 2, cmt. e. However, in that instance, a plaintiff must prove that the product design was manifestly unreasonable (i.e., the product had such low social utility coupled with a high degrеe of danger that the absence of a reasonable alternative design would not obstruct a plaintiff from obtaining relief). Because the Court is satisfied that a jury could conclude that a reasonable alternative design for the hip restraint existed at the time of initial sale of the 1999 Yamaha G16A golf car, it need not examine whether the product was manifestly unreasonable.
. This standard is remarkably different than that prescribed under the Restatement (Second) of Torts § 402A. As other courts in this circuit have noted, “[the Restatement (Second) ] standard focuses on an intended user making an intended use of the product, [whereas the Restatement (Third) ] focuses on the foreseeable risks of harm and whether an alternative design could have minimized or eliminated that risk.” Giehl v. Terex Utilities, 3:12-0083,
. Defendants’ expert, Kevin Breen, maintains that the accident data used by Seluga does not provide significant insight for this case because the data is limited in scope (due to its small sample size) and is not well suited to the generalized scaling-up process used by the data collector because of the seasonal nature and use of golf cars. These arguments go to the weight of the evidence put forward by the Plaintiffs, and, therefore, they are more appropriately made in front of a jury.
. For our purposes in deciding the Motion for Summary Judgment, our inquiry is whether the Plaintiffs have presented sufficient evidence such that a reasonable jury could conclude that a reasonable alternative design could have been practically adopted. Restatement (Third) of Torts § 2, cmt. f.
. The actual hip restraint here was approximately five and one-half to six and one-half inches (5 ó1/^") above the uncompressed seat cushion. Seluga Exp. Rep. at 16.
. The Restatement (Third) of Torts allows a defendant to introduce evidence regarding industry standard that bears on whether the alternative design was practicable at the time of sale and whether the оmission of the alternative design renders the product, as sold, not reasonably safe. Restatement (Third) of Torts § 2, cmt. d. An industry standard is admissible evidence of the reasonableness of the product’s current design, since such standards make it more probable than not that all possible care was exercised in preparing and marketing the product. See Sansom,
.In any event, the Court is satisfied that the alternative designs for the hip restraint are obvious and understandable to laypersons. Thus, while Seluga’s testimony is of apparent assistance to the trier of fact, the jury could conclude, without the benefit of further expert testimony (e.g., testimony of in-house engineers at Yamaha or business experts of other similar golf car manufacturers), that these designs would have been available at the time of sale of the Yamaha golf car in this case. The designs propounded by Seluga would involve similar, if not the exact same, technolo
. As to the third point, the summary judgment record lacks evidence of the nature and strength of consumer expectations regarding the Yamaha golf car in question. While the Plaintiffs submit photographs used on the Yamaha website, these do not address the marketing of the 1999 Yamaha G16A specifically.
. The Court would note that it reaches this conclusion based on the narrow issue of whether the alternative design proposed by Seluga is reasonable and whether its omission renders the 1999 Yamaha G16A golf car not reasonably safe. This conclusion is merely a factor in the inquiry required under the Restatement (Third), and it should not be deemed as an adequacy determination of the warning itself.
. Section 402A of the Restatement (Second) states:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although: (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. Restatement (Second) Torts § 402A (1965).
. While the Defendants bear the burden of establishing that the product is not unreasonably dangerous under the Azzarello test, Warnick,
. The Defendants hang their hat on the potential illegality of Jackie Johnston’s operation of the vehicle on Sutherland Road as demonstrative of the unintended use of the vehicle, and thus evidence that Jackie Johnston was an unintended user. However, the Court is satisfied that any such testimony is more properly brought in raising the affirmative defenses of voluntary assumption of risk, product misuse, or highly reckless conduct under Reott v. Asia Trend, Inc.,
. An examination of the various opinions in DGS,
. This determination does not change the Court’s analysis regarding Mr. Seluga's computer simulation wherein Mercedez Lynn is seated in the upright position, with her feet on the floor and back against the seatback, since that data entry is supported, and not contradicted, by the deposition testimony of Jackie Johnston.
. A plaintiff's conduct is also relevant to the issue of causation when considering the affirmative defenses of voluntary assumption of risk, product misuse, and highly reckless conduct. See Reott,
. The Defendants allege in their Motion to Preclude the Testimony of Kristopher Seluga, M.S., P.E., styled in terms of a Daubert motion, that Seluga’s testimony should be excluded because it is unreliable and fails to fit the facts of this case. As already set forth in greater detail above, the Court disagrees.
. Commercial product sellers are generally not liable for failing to warn or instruct about obvious risks generally known by foreseeable users. Restatement (Third) of Torts § 2, cmt. j. Warnings about such risks may be ignored and may dilute the effectiveness of • other warnings about non-obvious risks. Id. The Defendants argue that the risk of ejection
. Previous failure-to-warn cases applying the Restatement (Second) of Torts § 402A noted that, as a logical corollary to comment j of § 402A of the Restatement (Second), plaintiffs had the benefit of a rebuttable presumption that when no warning (or an inadequate warning) is provided, the user would have read and heeded an adequate warning had one been given by the manufacturer. See Pavlik v. Lane Ltd./Tobacco Exporters Intern.,
. The Walton court also noted that the unique nature of the helicopter industry supported the imposition of the responsibility of warning customers of defects post-sale, Walton,