Opinion
No. X05 CV08-5007144 S
May 11, 2011
MEMORANDUM OF DECISION GRANTING MOTION FOR SUMMARY JUDGMENT (#173)
This is a memorandum of decision articulating the reasons for granting summary judgment in an automotive products liability case. The allegations surround a fatal one-vehicle car crash on April 9, 2006 that resulted in the death of the driver of the car, the lone occupant. The accident occurred in the dark in the early morning hours (approximately 1:27 a.m.) on the exit ramp of a limited access highway. This ramp is located in the town of Trumbull, Connecticut on Route 15, better known as the Merritt Parkway. The vehicle was a Toyota Scion being operated by the plaintiff's decedent.
The motion for summary judgment was heard on March 24, 2011, less than six weeks before the trial exposure date. It was granted without further elaboration by the court on April 27, 2011 (#173.86). The parties were so notified, and at that time the court indicated that this memorandum of decision would follow shortly.
The plaintiff administrator essentially claims enhanced injuries to the plaintiff's decedent from a product defect in the car's safety systems. Plaintiff claims that the defect is the front airbag, an airbag which did not deploy in this accident, and which the plaintiff alleges should have deployed had it been working properly. The motor vehicle make and model in question is a 2006 Toyota Scion tC (Toyota Scion or Scion) manufactured by the defendant Toyota Motor Sales, U.S.A., Inc. and sold to the plaintiff's decedent in this state by the codefendant. This is the Connecticut motor vehicle dealer doing business as Crabtree Motors, Inc., and also doing business as the authorized Toyota Scion dealer known as Scion of Westport (both defendants collectively, Toyota Motor Sales).
This case was brought pursuant to the statutory right of action for products liability claims created by General Statutes Section 52-572m et seq. In order to recover under this statute, the plaintiff must prove that: "1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in its condition." Giglio v. Connecticut Light Power Co., 180 Conn. 230, 234, 429 A.2d 486 (1980) citing Restatement (Second) of Torts, § 402A (1965).
The law in Connecticut is that a product is deemed defective if it is determined to be unreasonably dangerous, beyond the expectations of the ordinary user of such products. However, where an ordinary consumer may not be able to form their own expectations of the safety of a given product based on everyday experience, the Supreme Court has adopted what is referred to as a "modified consumer expectation test." Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 199, 220, 694 A.2d 1319 (1997). Summary judgment was granted here because the court finds that in this case alleging products liability due to non-deployment of an airbag, the plaintiff is required to produce expert evidence establishing that the airbag system was defective. The court finds that expert testimony is needed to survive a motion for summary judgment because these allegations fall into the category recognized by the Supreme Court in Potter, which noted, "Although today we continue to adhere to our long-standing rule that a product's defectiveness is to be determined by the expectations of an ordinary consumer, we nevertheless recognize that there may be instances involving complex product designs in which an ordinary consumer may not be able to form expectations of safety." Id., 219. This case is one of those instances. "In light of the . . . exceptionally complicated nature and regulatory requirements regarding airbags, expert evidence was required." Predom v. Hadfield, Superior Court, judicial district of New Haven, Docket No. 419156 (January 26, 2011, Levin, J.) (granting Ford Motor Company's motion for summary judgment in light of plaintiff's failure to produce expert testimony).
In Lisella v. Ford, United States District Court, Docket No. 3:97 CV 2001 (DJS) (D.Conn. October 26, 1999), the United States District Court for the district of Connecticut granted summary judgment in favor of a vehicle manufacturer due to the plaintiff's failure to proffer expert testimony concerning the allegedly defective design or operation of a car's restraint system and the causal connection to the plaintiff's injuries. The Court held that in products liability cases such as this, "[w]here the issue concerns a product's design . . . it would seem that expert opinion is the only available method to establish defectiveness, at least where the design is not patently defective." Id., citing Huddell v. Levin, 537 F.2d 726, 736 (3rd Cir. 1976); Humphreys v. General Motor Corp., 839 F.Sup. 822, 827 (N.D.Fla. 1993), aff'd, 47 F.3d 430 (11th Cir. 1995) ("[p]roving the defect requires relating the force of the collision, the design and construction of the device, and occupant kinematics. Evaluating this relationship is beyond the capacity of lay persons and requires expert testimony"); Jaffe v. State Dept. of Health, CT Page 11264 135 Conn. 339, 349, 64 A.2d 330 (1949) (requiring that where an issue presented is such that its solution can only be reached upon the basis of the special knowledge of expert witnesses, such evidence be produced). Moreover, expert testimony is invaluable in these cases "to elucidate the mechanics of the accident, to indicate the different reconstructions of the sequence that might be inferred, and to describe the physical injuries sustained by each plaintiff and the damaging forces that could be inferred from those injuries." (Internal quotation marks omitted.) Caiazzo v. Volkswagenwerk, A.G., 647 F.2d 241, 251 (2d Cir. 1981).
The complaint alleges that Toyota Motor Sales is liable and legally responsible to the plaintiff administrator for the plaintiff decedent's injuries and death caused by product defects in the Toyota Scion. The plaintiff alleges that the Toyota Scion was in a defective and unreasonably dangerous condition in one or more of the following ways:
Although the language of the complaint is not quoted verbatim, it is accurately summarized herein.
a. that the Scion was subject to having its front airbags not deploy in a collision, and could not be driven without unreasonable risk of injury;
b. that Toyota Motor Sales failed to warn or instruct the plaintiff's decedent that the Scion was dangerous and subject to its front airbags not deploying in a collision;
c. that Toyota Motor Sales either failed to disclose and/or gave inadequate disclosure to the plaintiff's decedent and the general public about the dangerous propensities of the Scion's airbags not deploying in a collision;
d. that Toyota Motor Sales was negligent in failing to properly and adequately test the airbag mechanism prior to selling the Scion, and also designed airbags which it knew or should have known were dangerous and defective, yet continued their manufacture and distribution, and further used improper materials in their construction; and
e. that Toyota Motor Sales misrepresented to the plaintiff's decedent and to the general public that the Scion was safe for use by the public, and also breached express and/or implied warranties, including the product's merchantability, because the Scion was not of merchantable quality nor fit for its intended purpose, and it was not safe and effective for its intended use.
The single occupant of the Toyota Scion was the driver, Melissa Koutsoukos, the plaintiff's decedent (Koutsoukos). She was not wearing her seat belt/shoulder harness at the time of the accident, and Koutsoukos was ejected from the vehicle sometime during the crash. The evidence is uncontested that certain airbags in the car did in fact deploy at various stages during the rapid chain of events as the vehicle careened and yawed over the road, striking a rock embankment on the left driver's side door of the Scion. The 2006 Scion tC was equipped with side bolster airbags and side curtain shield airbags, both of which deployed on the driver's side. It is also uncontested that other airbags in the Toyota Scion did not deploy, including the front driver's side airbag located in the steering wheel. The defense maintains through its examination of the damage to the Scion that there was a lack of sufficient force in the front-to-rear direction to activate the driver's front airbag, and that under these circumstances, it would not be expected to deploy. The defense further maintains that even if the driver's side front airbag had deployed, it would not have afforded Koutsoukos protection from the force of a rear/side impact, nor would it have prevented her from being ejected from the vehicle and sustaining the injuries caused by that ejection.
The law governing summary judgment and the accompanying standard of review are well settled. "Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted 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. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings." (Citation omitted; internal quotation marks omitted.) Gohel v. Allstate Ins. Co., 61 Conn.App. 806, 809, 768 A.2d 950 (2001).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004). It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion "must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Harvey v. Boehringer Ingelheim Corp., 52 Conn.App. 1, 4, 724 A.2d 1143 (1999).
Demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). Moreover, "[t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." (Citations omitted.) Id., 244-45.
Initially, the party moving for summary judgment, in this instance Toyota Motor Sales, must show that there is no genuine issue of material fact. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 447 A.2d 1005 (1984). Once the moving party makes this showing, the party "opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence demonstrating the existence of such an issue." Id.; see also 2830 Whitney Ave. Corp. v. Heritage Canal Development Associates, Inc., 33 Conn.App. 563, 567, 636 A.2d 1377 (1994) (nonmoving party must show genuine issue of material fact by "counteraffidavits and concrete evidence"). "The mere presence of an adverse claim will not in itself defeat the motion." Union Trust Co. v. Jackson, 42 Conn.App. 413, 417, 679 A.2d 421 (1996). A review of the affidavits and sworn deposition testimony proffered by both sides is necessary to determine this issue.
The defendants argue that the case presents issues of accident reconstruction, mechanical engineering and injury causation that are beyond the understanding of the ordinary juror. The defendants further contend that expert testimony is required for the plaintiff's case to reach the jury on various issues, including the circumstances of the accident, the forces involved, crash dynamics, occupant kinematics, biomechanics, the alleged malfunction of the Scion's supplemental restraint system, and whether it caused or contributed to Koutsoukos being ejected, and/or whether any airbag malfunction may have enhanced her injuries.
The plaintiff has not proffered any expert(s) who will testify at trial concerning the vehicle design and biomechanical issues presented in this case. The defendants argue that the physical evidence from the accident and the testimony of its experts in accident reconstruction, vehicle design and biomechanics demonstrate that the supplemental restraint system in the Scion functioned properly. They further argue that the plaintiff's decedent (the driver Koutsoukos) did not suffer any of her fatal injuries as a result of any product defect. In the absence of expert testimony supporting the plaintiff's claimed product defect leading to an enhanced injury in the crash, the defendants argue that a jury could not reasonably award any damages to the plaintiff on this evidence without resorting to speculation or conjecture.
The plaintiff objects to the motion for summary judgment, and advances several grounds in support of his position. The post-mortem examination of the body of the plaintiff's decedent shows that she sustained multiple blunt force injuries, including a potentially fatal liver injury. The plaintiff, however, seeks to limit the cause of death to one factor. He claims that the testimony of Dr. Wayne Carver, the Chief Medical Examiner, establishes that Koutsoukos died from a trauma to her chest area. This trauma caused her chest cavity to fill with blood and her lungs to collapse. The plaintiff argues that a jury could reasonably conclude from Dr. Carver's testimony that had the front air bag in the Scion deployed, such injuries possibly would not have happened. The plaintiff also argues that a jury could reasonably conclude without expert testimony that any driver could reasonably expect that all the airbags in the Scion would deploy in this type of accident. He further argues that had the front airbag deployed, Koutsoukos might not have sustained fatal chest injuries. Therefore, the argument goes that a jury could reasonably conclude that a car with a front air bag that fails to deploy in a crash of this nature is a defective product and one that is unreasonably dangerous.
Expert testimony specifically about the Scion and the operation of its airbag system is lacking. This is a product defect case, and this is a defect that cannot be cured by pointing to either the medical testimony concerning the injuries to Koutsoukos or the accident reconstruction testimony. Granted, there are sufficient questions of fact raised about the road conditions on the Merritt Parkway ramp in question, physical evidence from the accident scene, including damage to the Scion, evidence of the car's path of travel and estimates of speed and the multiple injuries to the body of the plaintiff's decedent. All of this constitutes circumstantial and direct evidence that will prove what it proves, depending upon what weight a jury might assign to the testimony of these witnesses. There is no claim by the plaintiff that the non-deployment of the Scion's airbag somehow caused this accident to happen in the first instance. But where is there any evidence of the mechanics of the car itself and a product defect in the airbag of the Toyota Scion which supposedly factored into this outcome? This is a crashworthiness or enhancement of injury claim, and proof as to that car and its mechanical systems being somehow at fault or having had some influence in the fatal outcome is lacking.
The plaintiff's final argument in opposition to summary judgment is that, "[a] jury is free to reject all of the testimony of defendants' experts." This is a truism, and while correct in one sense, it is a simplistic statement that is not of much assistance because it lacks the virtue of simplifying the issues. In this case, the defense experts would only testify after the plaintiff rests, and only in the event the plaintiff's claimed product defect in the Scion's airbag is then deemed sufficient to get to a jury in the first place. Even viewing this evidence in a light most favorable to the plaintiff, he has proffered no experts to offer competent testimony on occupant and driver kinematics and biomechanics in light of the design of the Scion and the resulting accident; any alleged malfunction or shortcoming in any aspect of the Scion's supplemental restraint system in the accident, a mechanical or electrical malfunction not due to operator error; whether any claimed malfunction in design or operation caused or contributed to Koutsoukos being ejected; and whether any airbag malfunction may have enhanced her injuries.
After all factual and expert discovery was completed, the defendants sought summary judgment. Briefs, including affidavits of experts and excerpts from the sworn statements of potential witnesses both for and against this proposition were further exchanged by the parties. The matter was set down for a hearing on this motion, where the court gave each side the opportunity to explain its theory of the case. This included an assessment of the anticipated testimony and the proof offered by the plaintiff to establish a products liability claim, all in light of the standards applicable to motions for summary judgment. There are no known eyewitnesses to this fatal accident. It involved only one car, and the operator of that car is deceased as a result of injuries sustained in that accident. Therefore, much of the evidence to consider in this motion came from the affidavits of experts in various fields.
Lacking eyewitness testimony of the events as they unfolded for Koutsoukos alone in her Toyota in those early morning hours while it was still dark on the Merritt Parkway exit ramp, the available circumstantial evidence is critical to both sides here. Yet the plaintiffs have not disclosed a single expert to testify on the issue of the front airbag deployment in this Toyota. The plaintiff argues that the answers to the questions why the bag did not inflate here and what role, if any, that played in the outcome of the accident and the plaintiff's injuries can be answered by a jury without any expert testimony on those specific issues. The court is not persuaded. The weight of prior case law on this issue is, in fact, to the contrary. Airbag claims have been litigated before, in both state and federal courts, and this issue is not one of first impression. It is this deficiency which the defendants attack, and they have demonstrated such a deficiency in the plaintiff's proof that summary judgment is appropriate. This is not a case where ordinary knowledge of the product (the airbag) can allow an inference of consumer expectations without any further proof.
The plaintiffs proffer the testimony of the State Police accident reconstruction unit, and also that of Dr. H. Wayne Carver, II, the Chief Medical Examiner. The plaintiffs do not claim that the Toyota's airbags in any way caused the initial loss of control of the car. The plaintiff's claim essentially is that had Koutsoukos' front airbag on the driver's side deployed at some point in time during the collision, she might not have been ejected from the Toyota. This in turn might have resulted in less injury, and although unbelted, Koutsoukos might have remained in the driver's seat, the traumas to her body cushioned by the airbags and surrounded by the car frame. Because of the plaintiff's lack of any expert to testify as to front airbag deployment in the Scion, and in light of the defendants' own countervailing proof, the defendants have now moved for summary judgment. They contend that there are no genuine issues of material fact raised by the complaint and the plaintiff's offer of proof.
The affidavits of the defendant Toyota Motor Sales' experts contend that the Scion's airbags did not malfunction. They assert that the non-deployment of the front driver's side airbag under these circumstances was an indication that the airbags in the Toyota were working properly, that the external impacts the car sustained did not warrant the deployment and activation of Koutsoukos' steering wheel airbag. The plaintiff has no experts to counter that defense evidence and testimony with any proof of his own, beyond speculation, to establish by a preponderance of the evidence, as the plaintiff must, that this was an airbag malfunction, an actionable defect in this Toyota Scion and thereby chargeable to Toyota Motor Sales under our products liability tort jurisprudence. The plaintiffs have only speculation based on an inference that the bag should have gone off, and that it might have made some difference.
Both parties agree that the side airbags on the driver's side did in fact deploy at some point in the chain of events. Both parties agree that the front driver's side airbag that was part of a system of vehicle airbags did not deploy. The plaintiff contends this fact — standing alone and without expert testimony, means that a jury might find that a defect existed in the airbag deployment and /or activation process in the Scion. The plaintiff further posits that the failure of the defective bag to deploy exacerbated the grievous and ultimately fatal injuries suffered by the driver Koutsoukos. It is important to note that the plaintiff here is not claiming that the product defect in the airbag caused the fatal accident in the first instance. That is, the bag was not the causal factor in the loss of control by the plaintiff's decedent.
The court has considered the respective positions of the parties. It has read the affidavits of the experts. As was confirmed at oral argument, no one is disputing the actual injuries to the body of the plaintiff's decedent, as reported and documented during the course of the autopsy by Dr. Carver. Those injuries were extensive. Moreover, the law makes no probative distinction between direct and circumstantial evidence. The testimony of Dr. Carver is not able to forge sufficient links in the causal chain, such as would assist a jury to reach further educated guesses grounded in reasonable probabilities about how and when such injuries occurred to the plaintiff's decedent, and which injuries might be linked causally to the front airbag as a product defect. The doctor was noticed and deposed on his autopsy findings by the defendants, but he seemed surprised to be called as an expert in this matter. Dr. Carver has never even reviewed the state police accident report, which included the police reconstruction, certain measurements, photos and sketches, the location where Koutsoukos was found, and a detailed description of the damage to the Toyota Scion. The court was concerned enough about that shortcoming in terms of summary judgment to have specifically confirmed it at the hearing on this motion.
"The Court: Did he [Dr. Carver] review the state police accident reconstruction?
Atty. Bogdansky: He did not. He did not have the accident report. He did not have the photographs. He did not have the EMT run sheet. He didn't know the speed of the vehicles. He didn't know the direction of the vehicles. He didn't know how they rotated, what they crashed into. So he was just looking at the injuries and giving us the benefit of some of his thoughts . . ." Transcript of hearing, March 24, 2011, p. 18.
However skilled Dr. Carver may be in performing autopsies and reporting his findings, his testimony does not link A to B, with A being the fatal injuries to the body of the plaintiff's decedent, and B being the non-deployment of the front airbag in the defendant's Toyota Scion operated by the plaintiff's decedent. Lacking that causal link, summary judgment on this products liability claim is entirely appropriate. Moreover, neither Dr. Carver nor the state police investigators are competent witnesses to opine on the existence of a defect in the front airbag. The plaintiffs failed to further strengthen their case by any offer of proof beyond that of Dr. Carver and the results of the accident reconstruction. Without more, the plaintiff cannot prove what he says he can prove — that a possibly defective front airbag may have enhanced the decedent's injuries here. The question before this court is whether to allow the very question of the non-deployment of a particular airbag to get to a jury, and the plaintiff's case itself to get to a jury without any expert testimony on front airbags per se offered by the plaintiffs. This means expert testimony from one of the automotive engineering disciplines. This testimony would shed light on what consumers and Toyota operators, like the plaintiff's decedent, can and should reasonably expect out of the front drivers side automotive air bag in this instance. That means in this accident and under these conditions specifically.
There is no allegation that the airbags themselves caused the plaintiff's decedent to crash her Toyota. The outcome might well have been the same regardless of whether or not this front airbag deployed. The cause of an automobile collision is not at issue in a crashworthiness claim. Foster v. American Honda Motors, Superior Court, judicial district of Waterbury, Docket No. 128535 (July 2, 1996, Vertefeuille, J.) [ 17 Conn. L. Rptr. 247]. In this case the plaintiff administrator has the burden of proving that Koutsoukos suffered additional or more serious injuries than she would have suffered had the front airbag deployed, and also that the non-deployment of the car's airbag constituted a defective product. Toyota Motor Sales placed its product, this 2006 Scion, into the stream of commerce just like tens of thousands of other cars of this same make and model year. Like everything else on this Toyota, every other piece of factory-installed equipment on this car, or in any other car, for that matter, from the horn down to the tires, and everything automotive in between, it all boils down to one question: a question of performance. A question of airbag performance according to a driver's reasonable expectations, and the manufacturers' ability to meet those expectations. Granted, some aspects of the normal performance of this Toyota Scion are undoubtedly within the common knowledge of the average juror and the average driver to comprehend. A jury does not always need an expert to assist in making certain findings as to a car's performance. But some are not as familiar, and this case is an example of the latter. When and under what conditions should the front airbag deploy? Without any expert testimony, an airbag deployment (or the lack thereof as alleged in this case) involves too many engineering variables for a mere driver's license to be the only qualification for a juror's license to decide this issue of automotive products liability and injury enhancement as a layman. It is inadequate as a matter of law without expert testimony.
Experts are needed because so many aspects of all the other components that make up this motor vehicle were possibly implicated — if not heavily involved — in the outcome of this collision, besides any operator error. This includes passenger safety information and specific testimony about this car, such as the Toyota Scion's head lights, engine, brakes, tires, steering mechanism, suspension, auto body frame construction and design, both interior and exterior, glass, doors, door latching mechanisms and any car security seat features and design, including driver restraint systems, both active and passive.
Here's the point that is missing in the plaintiff's proof. Driving a car under normal conditions does not make the average juror a front airbag deployment expert, any more than going to a garage makes someone a mechanic. An airbag does not normally deploy under "normal" driving conditions, but rather as a result of certain impacts. These were not the circumstances in which an ordinary driver sitting on a jury could evaluate this evidence using their own "normal" driving experience, without more assistance than that provided by the testimony of Dr. Carver and the state police. This loss of operator control was extreme enough to result in the unbelted operator's actual ejectment from the automobile, sustaining injuries that unfortunately were fatal. Even when the plaintiff's case is evaluated in a light most favorable to the plaintiff, a jury would still not be able to use its unassisted deductive reasoning to reach a sound conclusion about this contested issue, the evidence as to the front airbag. It would not be a verdict that this court could have any confidence in, because this case involves fact specific products liability. As to the critical issue of airbag deployment, such a verdict would amount to speculation. This case would simply not survive a motion for a directed verdict on this evidence. If the circumstances were otherwise, this court would not have granted summary judgment here.
The court has considered the plaintiff's arguments against the need for him to call any experts to testify on the issue of airbag deployment in the Scion. The arguments cannot be dismissed out of hand, and warrant further analysis. In a nation of drivers, where so many millions of drivers spend so much time behind the wheel of their cars, logging so many miles, and where airbags themselves have been a feature of so many cars for so many years, must this need for experts in these kinds of cases be necessary to establish products liability? The short answer is yes, and here's why. Even if the sum and substance of Dr. Carver's testimony and the State Police accident reconstruction evidence is credited in its entirety, and all of those opinions are further viewed in a light most favorable to the plaintiff, the plaintiff's case still offers no expert testimony that the Toyota Scion's front airbag should in fact have deployed under the circumstances of this accident; and if so, how that airbag deployment might have made any difference to the ultimate outcome, or otherwise lessened the injuries or prevented the death of the plaintiff's decedent. The plaintiff has only speculation.
Plaintiff's final argument in opposition to summary judgment is that, "A jury is free to reject all of the testimony of defendants' experts." While true in one sense, it is a simplistic statement, one that in this case is not of much assistance, as it lacks the virtue of simplifying the issues. Even assuming plaintiff can prove everything substantiated by his affidavits, summary judgment should be granted. The defendant's affidavits raise issues that must be countered with more proof than the statement that a jury is free to disregard the defense experts. The jury is indeed free to do so, but for purposes of deciding summary judgment, some expert is needed to provide some analysis for the jury's benefit first, some evidentiary basis for making a finding that all the airbags should have deployed in an accident of this type. A jury cannot reject expert testimony it never has, and neither can it find liability or award damages to the plaintiff on expert testimony it does not hear. There promises to be no attempt or effort by a plaintiff's expert to deconstruct the internal working of this Toyota Scion and its airbags as it went through this crash.
In this case, Toyota's experts would only testify after the plaintiff rests, and only in the event the plaintiff's case is deemed sufficient to get to a jury. When the expert testimony is viewed in this manner, the flaw in this approach is obvious. For example, it is like trying to prove a products liability claim in an aviation crash, one that involves a commercial airliner and a loss of life. It is difficult to imagine a viable claim which offered only an accident reconstruction report prepared by the Federal Aviation Administration, and the results of autopsies on passengers who perished in the crash. In that type of products liability case, as here, in order to survive a motion for summary judgment, there must be an expert to opine about the specifics of the downed jet itself, and the company that manufactured the plane, its engines, its prior flight history and maintenance and repair history.
Even viewing this evidence in a light most favorable to the plaintiff, he has no experts to proffer competent testimony on:
1. occupant and driver kinematics and biomechanics,
2. the alleged malfunction of any aspect of the Scion's supplemental restraint system;
3. whether any claimed malfunction in design or operation caused or contributed to Koutsoukos being ejected; and
4. whether any airbag malfunction may have enhanced the injuries to the plaintiff's decedent.
The court's findings as stated in this opinion reflect both the law governing summary judgments, and the facts as they were presented before this court for consideration. The defense criticism is that the case cannot be tried without proffering an expert on the car itself, the allegedly defective product. This reduces the salient point of the case to a narrow issue. This products liability claim is lacking because the plaintiff's proof of facts does not adequately address the serious factual issues raised by the affidavits of the defendants' experts. Summary judgment may therefore enter.
IT IS SO ORDERED