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Res ipsa loquitur inapplicable

By: dmc-admin//December 6, 2006//

Res ipsa loquitur inapplicable

By: dmc-admin//December 6, 2006//

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Seventh Circuit: Doctrine does not apply to airbag defect case

ImageIn some products liability cases, the plaintiff can obtain a res ipsa loquitur instruction, but not one claiming that an airbag deployed prematurely after the car hit a pothole.

The Nov. 29 decision by the Seventh Circuit also included more fireworks on deficient jurisdictional statements.

Magdalene M. Smoot was driving a one-year-old Mazda at 35 to 40 mph, when she struck a pothole, triggering deployment of the airbags. The airbags caused extensive jaw injuries to Smoot.

The day before the accident, Smoot had received a notice from Mazda that her model had an increased risk of premature airbag deployment, and that she should have the control unit reprogrammed. Smoot’s husband made an appointment to do so, but the accident occurred first.

Smoot brought suit in Wisconsin state court against Mazda and its insurer, and the defendants removed the case to federal court.

Smoot attempted to proceed on a res ipsa loqitur theory, arguing that, because an airbag should not deploy unless the vehicle strikes something, Mazda had the burden of showing that the product was not defective.

The district court disagreed, but although discovery had closed, the court allowed Smoot to retain an expert to prove her case. Later, however, the court concluded that the expert retained was not qualified under FRE 702, and disqualified him.

Without any expert testimony, the court held that summary judgment must be granted to Mazda.

Smoot appealed, but the Seventh Circuit affirmed in a decision written by Judge Richard A. Posner, and joined by Judge Frank H. Easterbrook. Judge Terence T. Evans wrote a concurrence.

Jurisdiction

Before addressing the merits, the lead opinion discussed a litany of problems with the parties’ jurisdictional statements.

First, the court criticized Smoot for stating that diversity jurisdiction was based on diversity of citizenship “and the jurisdictional amount of $75,000.” The court noted that diversity depends on the amount “exceeding” $75,000. In addition, the statement stated only that Mazda is a foreign corporation incorporated in California, but did not give its principal place of business. Finally, the statement fails to mention the citizenship of Mazda’s insurer.

Turning to the appellees’ jurisdictional statement, the court found it deficient for stating that the appellees are “citizens of a different state” from the appellants, but without indicating what of what states they are citizens.

What the court held

Case: Smoot v. Mazda Motors of America, Inc., No. 05-4577

Issue: Where an airbag deployed after the vehicle hit a pothole, can the plaintiff proceed on the res ipsa loquitur doctrine against the manufacturer?

Holding: No. It is not certain that a properly functioning airbag would not deploy under those circumstances.

Because of these defects, the court had asked the parties to submit supplemental jurisdictional statements, but the court found these deficient, also.

The court noted that the appellees’ statement says that the amount in controversy “allegedly” exceeds $75,000. Taking issue with this language, the court wrote, “the use of the words ‘alleged’ or ‘allegedly’ in this connection is erroneous. The amount in controversy in a diversity case is the stakes that the plaintiff or defendant alleges, and provided the allegation is not false to a ‘legal certainty’ the amount is taken as true for purposes of jurisdiction.”

After reviewing Smoot’s injuries, however, the court found that the amount in controversy clearly exceeded $75,000, and concluded that federal diversity jurisdiction was present.

Because of the defects, however, the court ordered the attorneys to show cause why they should not be sanctioned for violating Rule 28, and also directed them to address the appropriateness of their being compelled to attend a CLE cl
ass on federal jurisdiction, as a sanction.

Res Ipsa Loquitur

Finally turning to the merits, the court held that liability could not be inferred pursuant to the doctrine of res ipsa loquitur. Under the doctrine, a plaintiff who establishes that the accident in which he was injured was of a kind that could not reasonably have been expected to occur unless the defendant was negligent makes a prima facie case of tort liability.

Although the case alleges product liability, rather than negligence, the court found the distinction irrelevant, observing, “It would make no practical difference, so far as application of the doctrine was concerned, if a car accelerated when the brake was depressed because the brake had been manufactured negligently or designed improperly.”

The court then noted that expert testimony is not always required in a proper case of res ipsa loquitur, citing the example of where a surgeon’s sponge is left in a patient’s body after an operation.

The court observed, “This would be a similar case had the airbags deployed when Mrs. Smoot parked her car and turned off the ignition, or when while driving steadily she had blown the car’s horn (cites omitted).”

However, the court found that the facts of this case do not warrant an inference that the airbag was defective. The plaintiffs conceded that a properly controlled airbag can be triggered by a sudden slowing of only 8 m.p.h.

The court concluded, “we cannot say as a matter of common sense or common experience that hitting a pothole or a chunk of asphalt could not cause a ‘sudden slowing’ of the car from 35 to 27 m.p.h.”
Expert Testimony

The court then held that the district court properly did not allow the expert retained by Smoot to testify. The court noted that: the expert had never inspected the vehicle or another vehicle of the same model; did not interview Smoot, the investigating police officer, or the mechanics who repaired the vehicle; did not review crash testing data for the model involved; and did not review any literature regarding the design of the system.

Related Article

Case Analysis

Instead, the expert offered only his opinion that an airbag should not deploy when a car is traveling at 35 to 40 mph, and hits something unlikely to bring the car to a complete stop.

Accordingly, the court held that the expert was properly excluded from testifying, and that, without an expert or a res ipsa loqitur inference to support Smoot’s case, summary judgment was properly granted to Mazda.

The Concurrence

Judge Evans wrote a concurrence, stating, “I think we should be more tolerant of the jurisdictional statement hiccups that have occurred here,” noting that no party, nor any of the district court judges who have presided over the case have questioned whether jurisdiction is present.

Evans opined, “at best, [the errors in the jurisdictional statement] are low misdemeanors; yet the court treats them like felonies. I would not label these minor flaws as ‘blunders,’ nor would I come close to saying this is ‘malpractice’ which must be stopped.”

Click here for Case Analysis.

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