Opinion
CA7:00-CV-005-R
September 24, 2001
MEMORANDUM OPINION AND ORDER
Plaintiff Sandra Reberger ("Reberger") asserts claims under Texas law against defendant Bic Corporation ("Bic") for strict products liability, negligence, and breach of warranty claims. This court has jurisdiction over this action pursuant to 28 U.S.C, § 1332. Now before this Court is Defendant's Motion for Summary Judgment, filed March 29, 2001, and Defendant's Motion to Strike Plaintiff's Expert Testimony, pursuant to FRE 702. For the reasons stated below, Defendant's Motion to Strike Expert Testimony is DENIED and Defendant's Motion for Summary Judgment is GRANTED in part and DENIED in part.
I. FACTUAL SUMMARY
Reberger purchased a disposable Bic lighter from a local Walgreens in early January 1998. The flame on the lighter was abnormally large, and according to Reberger the lighter was non-extinguishing. As a result of these problems, Reberger only used the lighter about twenty times. After deciding to stop using the lighter, she placed it on the headboard of her bed before retiring on on January 6, 1998.
A non-extinguishing lighter is one on which the flame does not go out when the user releases his finger from the fuel control.
On the morning of January 7, 1998, Reberger awoke and left her bed. She returned to bed and began to talk to her daughter while lying down. After a few minutes, Reberger turned on the light on the headboard of the bed. Within the next five minutes, the lighter exploded and shattered the bulb of the headboard's light fixture.
The shards of glass were strewn across the bed, floor and headboard. Reberger sought medical attention the following day. Medical personnel removed plastic and glass fragments from Reberger's hair and scalp and rinsed foreign matter from her eye. Reberger soon reported significant pain and stiffness in her neck and lower back. A neurosurgeon evaluated Reberger and found her to be suffering from a herniated disc that Reberger attributes to the events surrounding the explosion.
Bic's expert, Larry Broutman ("Broutman"), has a doctorate in materials engineering and science from the Massachusetts Institute of Technology. Broutman has analyzed and tested disposable butane lighters since 1979, and he has experience with lighter design. After examining the physical evidence found in the lighter and the condition of the ruptured lighter, Broutman performed numerous scientific tests placing the subject lighter in close proximity to an external heat source. Broutman believes that the lighter could not have ruptured while lying fifteen inches below the light, but rather that the lighter must have been placed within the headboard lamp against the warnings provided by Bic. Broutman believes that placing the lighter within the lamp caused the lighter to rupture and shatter the lamp's bulb.
Bic's employee Paul Lebrum ("Lebrum") was also deposed regarding non-extinguishing lighters. He concluded that a non-extinguishing lighter cannot be relit. Fuel still runs through the lighter if the flame continues without someone depressing the fuel control. Then when the flame is blown out, Lebrum believes that fuel continues to escape. After its initial lighting, the lighter cannot be relit because the fuel supply has been exhausted.
Reberger's expert, Wayland Rippstein ("Rippstein"), holds a degree in chemistry from the University of Texas. He has been employed with NASA for twenty years, and throughout his career he has worked with polymers (plastics) and their contamination. His later work with NASA from 1973-83 required that he conduct tests on the flammability and combustion levels of polymers, which familiarized him with the causes of polymer explosion. He has also consulted for Scripto, another manufacturer of disposable lighters, which familiarized him with the design, function, and specifications of butane lighters similar to the lighter at issue in this case. Rippstein has never manufactured or performed design work on disposable lighters.
Rippstein disputes Broutman's findings. He examined the ruptured lighter microscopically and noted the presence of a significant number of tiny fractures in the lighter's fragments. He believes that these fractures initiated as a result of heat shock, a phenomenon whereby the lighter tank cools as the butane fuel escapes. This heat shock, he theorizes, weakened the lighter body at the contaminated points. When the room temperature began to rise on January 7, 1998, the internal pressure of the lighter's fuel tank to increased and the fracturing process accelerated. Rippstein contends that this pressure differential and increased fracturing led to the explosion, but no fire occurred because there was little fuel remaining in the lighter.
II. LEGAL ANALYSIS
A. SUMMARY JUDGMENT STANDARDRule 56(c) of the Federal Rules of Civil Procedure allows summary judgment only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Ass'n. of Am., 114 F.3d 557, 559 (5th Cir. 1997), An issue is "material" if it involves a fact that might affect the outcome of the suit under governing law. See Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994). The court must decide all reasonable doubts and inferences in the light most favorable to the non-moving party. See Walker v. Sears. Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988); Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). In addition, when both parties have submitted contradictory evidence, factual controversies are resolved in favor of the nonmovant.See Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994). As long as there appears to be some support for the disputed allegations such that "reasonable minds could differ as to the import of the evidence," the motion must be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. Where the nonmoving party bears the burden of proof on a claim upon which summary judgment is sought, the moving party may discharge its summary judgment burden by showing that there is an absence of evidence to support the nonmoving party's case. See id. at 325.
Once the moving party has satisfied this burden, the nonmoving party must go beyond the pleadings and by its own affidavits or by depositions, answers to interrogatories, and admissions on file set forth specific facts showing a genuine issue for trial. See id. at 324; Anderson, 477 U.S. at 256-57. Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."Celotex. 477 U.S. at 322.
B. CHOICE OF LAW
When deciding claims based on state law, a federal district court sitting in diversity must apply the choice of law rules of the state in which it sits. See Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). "Texas state courts use a choice of law formula borrowed from section 6 and 145 of the Restatement (Second) of Conflict of Laws, and will apply the law of the state with the most significant relationship to a particular substantive issue." Coughlan v. Wellcraft Marine Corp., 240 F.3d 449, 452, n. 2 (5th Cir. 2001). Texas' choice of law rules dictate that products liability claims are governed by Texas law when the accident in question occurs in Texas, because Texas has the most "significant relationship" to a resolution of tort claims that occur within its borders. Access Telecom Inc., v. MCI Telecommunications Corp., 197 F.3d 694, 705 (5th Cir. 1999) (stating that it is "reasonable" to apply Texas law when the injury site is in Texas.)
C. MOTION TO EXCLUDE EXPERT TESTIMONY
Bic first contests the qualification of Mr. Rippstein as an expert witness and refutes the admissibility of his testimony under the Federal Rules of Evidence. As such, this Court's resolution of Defendant's Motion to Exclude Expert Testimony is essential before the Court can fully consider the merits of the Defendant's Motion for Summary Judgment.
1. LEGAL STANDARD
A party's expert may only produce testimony if it is first shown that the expert is qualified to give the opinions and that the opinions provided are reliable and relevant. Specifically, Federal Rule of Evidence 702 states that, "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Fed.R. Ev. 702.
In addition to ensuring that the expert witness is qualified, the trial judge must ensure that scientific testimony or evidence is both relevant and reliable. Daubert v. Merrell Dow Pharmaceuticals. Inc., 509 U.S. 579, 589 (1993). "First, the district court must determine whether the expert's testimony is reliable . . . [a] district judge should assure himself . . . that the expert knows whereof he speaks. In the context of theoretical and applied science, this requirement places on the Court the obligation to ensure that the proffered testimony pertains to scientific knowledge . . . it must rule out subjective belief or unsupported speculation." Watkins v. Telesmith, Inc., 121 F.3d 984 (5th Cir. 1997). The subject of scientific testimony need not be known to a certainty, but the proposed testimony must be supported by appropriate validation. See id. at 590.
Daubert's general principles may be applied to all expert matters described in FRE 702, including opinions about engineering. Id. at 148: see also Kumho Tire Company Ltd. v. Carmichael, 526 U.S. 137, 151-52 (1999).
The trial judge must therefore determine if the expert is proposing to testify as to scientific knowledge that will assist the trier of fact to understand or determine a fact in issue. See id. at 592.
This determination is a flexible one; however, the focus must turn on the principles and methodology used rather than how the conclusions are generated. See id. The four key inquiries stressed by the Supreme Court in Daubert include: 1) whether the postulated theory or technique has been or can be tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential error rate; and 4) the general acceptance of the theory in the relevant scientific community. Id. at 594.
The trial court must also ensure that an expert employs the same level of intellectual rigor that characterizes the practices of an expert in the relevant field. See Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). In the Fifth Circuit, a trial judge may exclude expert testimony when the expert offers little more than his credentials and a subjective opinion. See Viterbo v. Dow Chemical Co., 826 F.2d 420, 421 (5th Cir. 1987). To be deemed reliable, the subject of expert testimony must be scientific knowledge and therefore the testimony must constitute more than unsupported speculation or subjective belief. See Curtis v. MS Petroleum. Inc., 174 F.3d 661, 668 (5th Cir. 1999), The party seeking to admit expert testimony must demonstrate through an objective and independent validation of the expert's methodology that the expert's findings are based on the scientific method. See Moore v. Ashland Chemical. Inc., 151 F.3d 269, 276 (5th Cir. 1998).
Here, Bic objects to Rippstein's testimony on two levels. First, they question his qualifications as an expert because he has no experience with lighter manufacturing per se. Next, Bic argues that Rippstein's testimony does not satisfy the relevance and reliability requirements under FRE 702, Each of Bic's arguments is addressed below.
2. RIPPSTEIN'S QUALIFICATIONS
Rippstein is trained as an analytic chemist, with extensive training in polymer construction. He also worked at NASA for twenty years, during which time he investigated the causes of polymer combustion. Although this experience alone does not qualify Rippstein as an expert, his work as a consultant with another lighter manufacturer gives him the requisite knowledge of the design, function, and specifications of butane lighters to offer an expert opinion regarding the malfunctioning of the lighter in question, Rippstein's qualifications are sufficient to meet the Daubert standard and it would be inappropriate for the Court to exclude him at the summary judgment stage.
3. RIPPSTEIN'S OPINIONS ARE RELIABLE UNDER DAUBERT
Defendant's second argument regarding Rippstein is that his opinions fail to meet the reliability standard established underDaubert. According to the evidence presented on summary judgment, Rippstein's theory is that "the Reberger lighter was a non-extinguishing lighter that suddenly failed due to polymer contamination." To support this theory, Rippstein interviewed the witnesses present during the explosion, and examined the fragments of the lighter under a microscope. PL's Resp. at 8. According to the Plaintiff, there is no other "elaborate test protocol" or studies regarding cigarette lighter explosions by which Rippstein could formulate or test Ms theory. Pl.'s. Resp. at 8. The Plaintiff also argues that the Defendant's expert witnesses used the same examination methodology in drawing their own conclusions. Finally, the Plaintiff notes that Rippstein used published literature and research studies as a basis for his conclusion.
In short, Reberger's argument that Rippstein's testimony is reliable is as follows: 1) a fully-functioning Bic lighter should not explode under the conditions presented in this case, and 2) the failure of the lighter "due to polymer contamination" can be supported by research methodology that includes a studied microscopic and visual examination of the lighter. Therefore, this Court need not conduct aDaubert analysis on this issue.
However, the Court disagrees with the Plaintiff that Daubert is not relevant to the case at hand. Daubert is always applicable in cases involving evidence of a scientific or technical nature. However, it is equally clear from the record that it would be inappropriate to exclude Rippstein from this case at this stage, because the gatekeeping function required from the district court underDaubert must be "tied to the facts" of a particular case,Daubert. 509 U.S. at 594. For instance, it would be inappropriate to exclude the Plaintiff's expert under Daubert for lack of hypothetical "testing" when the Defendant's experts relied on the same or similar methodology in rendering their conclusions. Both of Bic's experts testified in their depositions that their examinations of the lighter at issue were limited to a visual inspection. Defendant refers to their own "expert methodology" as superior to Rippstein's, but fails to explain exactly how their methodology was superior or different from Rippstein's.
Moreover, the tests relied on by the Defendant placed the lighter in a hypothetical situation that differed from Reberger's versions of events. Bic's experts tested lighter explosion when the lighter was placed "in close proximity" to an external heat source. Ms. Reberger's deposition testimony indicates that the lighter was not within close proximity, but was a full fifteen inches away from the headboard lamp, and that the lighter had only been exposed to the lamp for five minutes at most As such, in order for the Defendant's expert testimony regarding testing to be relevant, a jury would have to consider Ms. Reberger's testimony about the lighter's placement and the time lapse prior to the explosion. In addition, evidence about Reberger's headboard lamp wattage would have to be compared to the heat source wattage used in the Defendant's experts" tests. In Short, these are questions of material fact, and summary judgment precluding these inquiries is premature and unwarranted.
Although Rippstein's conclusions fail to exclude alternate causes for the accident, such exclusion is not mandatory at the summary judgment stage. The Defendant's experts also have not yet produced evidence excluding Plaintiff's evidence that the lighter could have exploded due to defective polymers. Thus, while exclusion of alternate causes is a "necessary ingredient" of expert testimony that a particular conduct or condition occurred, the Defendant's own experts also tail in this regard.See Michaels v. Avitech, Inc., 202 F.3d 746, 753 (5th Cir. 2000).
Instead, it appears from the record that while Rippstein believes the "crazing" he saw on the microscope could only be caused by pre-existing polymer contamination, the Defendant's experts concluded that the explosion could have been caused only by proximity to an external heat source. The resolution of these two conflicting opinions directly rests on whether or not a jury finds credible Ms. Reberger's testimony that she did not put the lighter directly next to the lamp in her bedroom, and that the lamp had only been turned on for a few minutes before the explosion.
All parties agree that lighters should not spontaneously explode when used properly. The circumstances surrounding the explosion are therefore questions of material fect that a jury must resolve. The weight of all experts' testimonies in this case turns primarily on the credibility of Ms. Reberger. The Defendant has thus failed to discredit Rippstein's testimony such that its exclusion from the jury would be warranted.
Defendant's Motion to Exclude Expert Testimony is DENIED.
D. REBERGER'S STRICT PRODUCTS LIABILITY CLAIMS
1. MANUFACTURING DEFECT
Texas has adopted the strict products liability standard established in the Restatement (Second) of Torts § 402A. This section provides that one who sells any product in a defective condition unreasonably dangerous to the user, consumer, or his property is subject to liability for physical harm caused to the ultimate user or consumer, or to his property if the seller is engaged in the business of selling such a product, and it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. In a manufacturing defect claim, the plaintiff must show: 1) a manufacturing flaw that rendered the product unreasonably dangerous; 2) that the defect existed at the time the product left the seller; and 3) that the defect was the producing cause of the plaintiff's injury.
A claim should be sustained when a finished product deviates, in terms of its construction or quality, from the specifications or planned output in a manner that makes the product unreasonably dangerous. See Robins v. Kroger Co., 982 S.W.2d 156,160 (Tex.App. 1998). The mere fact that an accident occurs does not entitle a plaintiff to recovery based on strict liability. See Bass v. General Motors Corp., 491 S.W.2d 941, 947 (Tex.Civ.App. 1973). If a defendant's motion for summary judgment produces expert testimony, the plaintiff must counter with expert testimony focused on the issues about which a lay person would not be generally informed. See id.
Here, Ms. Reberger procured an expert who supports her testimony that this lighter exploded through no fault of her own, but as a result of a defect in the composition of the lighter case. This evidence is sufficient for her claim to survive summary judgment, because it creates a question of material fact about the cause of the explosion.See Anderson, 477 U.S. at 250, Defendant's Motion for Summary Judgment is DENIED as to Plaintiff's manufacturing defect claim.
2. DESIGN DEFECT
In a products liability case that alleges a design defect, the plaintiff must prove by a preponderance of the evidence that at the time of design there was a safer alternative design and that the design defect caused the injury. See TEX. CIV. PRAC. REM. CODE ANN. § 82.005. Reberger's complaint alleges a design defect in the disposable Bic lighter. Her subsequent pleadings, however, fail to establish that a safer alternative design existed, and she concedes in her response that the lawsuit concerns only a manufacturing defect. Mr. Rippstein's testimony solely concerns the presence of faulty polymer construction. Reberger has therefore provided no grounds upon which to sustain her design defect claim. There is no evidence in the record that expert testimony regarding a safer lighter design exists. As a result, Bic is entitled to judgment as a matter of law on this claim.
Defendant's Motion for Summary Judgment is GRANTED as to Plaintiff's design defect claim.
3. FAILURE TO WARN
A plaintiff must prove five elements to sustain a failure to warn claim under Texas law. Reberger must show: 1) that there was an inherent risk with the use of the lighter or that a risk might arise from the intended or reasonably anticipated use of the lighter; 2) that Bic should have foreseen the risk of harm; 3) that Bic failed to give an adequate warning of the danger; (4) that the failure to warn made the lighter unreasonably dangerous; and (5) that the failure to warn was the causative nexus of her injuries. See McClennan v. Am. Eurocopter Corp., 245 F.3d 403, 427 (5th Cir. 2001).
On summary judgment, all factual inferences must be evaluated in the light most favorable to the nonmoving party. However, there is no evidence in the record provided by Reberger that tends to show the existence of a genuine question of material fact with regards to Bic's failure to warn. Specifically, Bic argues that Reberger has provided no evidence of the inadequacy of the supplied warnings or instructions, or of the availability of alternative warnings, or testimony regarding where additional warnings should be placed, or what a better warning would look like. See Bristol-Myers Co. v. Gonzalez, 651 S.W.2d 801, 803-04 (Tex. 1978); Skotak v. Tenneco Resins. Inc., 953 F.2d 909, 912 (5th Cir. 1992). Since there has been no factual argument presented, there are no facts for the Court to evaluate in Ms. Reberger's favor, and her cause of action fails the third and fourth prong of the failure to warn test set out above.
Moreover, Reberger's claim fails prong five of this test, because she has not established the requisite causation to sustain it Her complaint states, "the product was defective because Defendant failed to warn or adequately warn against the hazard of a spontaneous explosion." Pl.'s-Comp. at 3. The complaint and the brief in opposition of summary judgment, however, do not make further reference to how the failure to warn proximately caused Reberger's injuries. In fact, her response brief appears to abandon the claim completely, and thus this Court must dismiss her strict products liability claim as it pertains to Bic's failure to warn.
Defendant's Motion for Summary Judgment is GRANTED as to Plaintiffs failure to warn claim.
In sum, Defendant's Motion for Summary Judgment is DENIED as to Plaintiff's strict products liability manufacturing defect claim. Defendant's Motion for Summary Judgment is GRANTED as to Plaintiff's strict liability design defect and failure to warn claims. E. REBERGER'S OTHER CLAIMS
The Court here notes that Bic Corporation neglected to move for summary judgment on either the Plaintiff's negligence claim or the breach of warranty claim, wrongly arguing that the Plaintiff had "abandoned" these claims by not discussing them in her Response to Motion for Summary Judgment. However, the Plaintiff had no obligation to defend those claims that the Defendant does not raise on a summary judgment motion. Motions for partial grants of summary judgment are routine and ordinary in this Court's practice, and it will not assume that judicial action is necessary in absence of a motion. It is not the Court's role to advocate for the parties, and it would be improper for this Court to dismiss a feasible, adequately pled jury claim without offering the Plaintiff an opportunity to defend such a claim with evidentiary support.
Reberger also pleads two additional causes of action: negligence and breach of warranty. However, neither of Bic's motions to the court address the negligence claim; nor do Bic's motions dispute the existence of an implied warranty or its breach. In fact, Bic fails to plead anything regarding either of these two claims, instead arguing "generally" that: 1) Reberger has abandoned those claims, and 2) Reberger's failure to show a defect is dispositive of the negligence and breach of warranty claims. As to the former, the Defendant's argument fails because the Plaintiff specifically notes "Bic does not discuss the legal or factual grounds for summary judgment on Plaintiff's negligence or warranty theories; therefore, Ms. Reberger has no specific response." Pl.'s Resp. at 25. It is clear from this statement that the Plaintiff is certainly not abandoning these claims, and this Court will not leap into the role of Bic's defense counsel sua sponte to evaluate the merits of her other claims. See supra, n. 3;see also Celotex, 477 U.S. at 323 ("Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying . . . the absence of a genuine questions of material fact.")
As to the latter argument, this court has already held that Reberger has proffered sufficient evidence to withstand summary judgment on her strict liability claim, and that the credibility of her expert witness is for the jury to decide. Since the Court has been presented with no other legal argument or evidence by the Defendant that supports an early disposition of Ms. Reberger's breach of warranty and negligence claims, summary judgment of those claims is improper.
III. CONCLUSION
For the aforementioned reasons, Defendant's Motion to Strike the Expert Testimony of Wayland Rippstein is DENIED. Defendant's Motion for Summary Judgment is GRANTED in part and DENIED in part. The parties will proceed to trial on all remaining claims.IT IS SO ORDERED