Harris v. GMC

RECOMMENDED FOR FULL-TEXT PUBLICATION 8 Harris v. General Motors Corp. No. 99-3092 Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0039P (6th Cir.) have discussed them above, are sufficiently unassailable2 to File Name: 00a0039p.06 take the issue of credibility from the jury. IV. CONCLUSION UNITED STATES COURT OF APPEALS For the foregoing reasons, the district court’s grant of FOR THE SIXTH CIRCUIT summary judgment is REVERSED, and the case is _________________ REMANDED to the district court for trial.

;  RUBY HARRIS,  Plaintiff-Appellant,   No. 99-3092 v.  > GENERAL MOTORS   Defendant-Appellee.  CORPORATION,

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Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 97-07171—James G. Carr, District Judge. Argued: December 15, 1999 Decided and Filed: January 31, 2000 2 In this regard, we also note that although the trial court considered Before: RYAN and NORRIS, Circuit Judges; FEIKENS, the affidavits of both Everest and Lighthall, it did not undertake a Daubert District Judge.* inquiry as to either proposed expert. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Company v. Carmichael, ___ U.S. ___, 119 S. Ct. 1167 (1999). While this omission may be explained, in part, by the fact that Harris did not raise the Daubert issue before the district court, we note that on remand, the district court must, consistent with its gatekeeping role, perform a Daubert analysis of the proposed testimony of the defense experts, particularly Everest. Certainly, nothing in the record as it now exists evinces either the reliability or validity of Everest’s testimony as to the DERM. Our own * research did not reveal a single reported case addressing the Daubert The Honorable John Feikens, United States District Judge for the issue as to General Motors’ automotive “black box.” Eastern District of Michigan, sitting by designation.

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_________________ go so far. The affidavit concludes merely that the DERM data suggests that the airbag deployed properly; it does not COUNSEL establish beyond factual dispute that the airbag could not have deployed belatedly in the manner described by Harris. ARGUED: Edward A. Van Gunten, EDWARD VAN GUNTEN & COMPANY, Toledo, Ohio, for Appellant. In short, neither of General Motors’ expert affidavits Francis J. Grey, Jr., LAVIN, COLEMAN, O’NEIL, RICCI, establishes the “undisputed physical facts” necessary to justify FINANELLI & GRAY, Philadelphia, Pennsylvania, for rejection of Harris’ testimony in the context of General Appellee. ON BRIEF: Edward A. Van Gunten, EDWARD Motors’ motion. The district court’s application of the VAN GUNTEN & COMPANY, Toledo, Ohio, for Appellant. “physical facts rule” in this case was error. Francis J. Grey, Jr., LAVIN, COLEMAN, O’NEIL, RICCI, FINANELLI & GRAY, Philadelphia, Pennsylvania, Ray A. We note one other difficulty with application of the Farris, FULLER & HENRY, Toledo, Ohio, for Appellee. physical facts rule in this case. As this court noted in Powers v. Bayliner Marine Corp., 83 F.3d 789 (6th Cir. 1996): _________________ "There are many circumstances in which testimony need OPINION not be accepted even though formally uncontradicted," _________________ Sheppard v. Maxwell, 346 F.2d 707, 726 (6th Cir.1965), rev'd on other grounds, 384 U.S. 333, 86 S.Ct. 1507, 16 FEIKENS, District Judge. L.Ed.2d 600 (1966). "[T]he jury is instructed that it is completely free to accept or reject an expert's testimony, I. INTRODUCTION and to evaluate the weight given such testimony in light of the reasons the expert supplies for his opinion." This is an appeal from a decision granting summary United States v. 0.161 Acres of Land in Birmingham, judgment to defendant General Motors Corporation (“General Ala., 837 F.2d 1036, 1040-41 (11th Cir.1988). Motors”). Ruby Harris (“Harris”) appeals the grant, and for the reasons that follow, we reverse the district court’s grant Id. at 797-98. We have no doubt that, in some cases, a and remand the case for trial. proffered expert’s testimony as to physical facts will be sufficiently unassailable so as to justify a grant of summary II. BACKGROUND judgment notwithstanding contrary evidence submitted by a On June 10, 1996, 76 year-old Harris was driving her 1991 non-movant. However, such circumstances must be viewed Chevrolet Corsica in Toledo, Ohio. Harris attempted to turn with due regard to the general rule that in consideration of a left into a parking lot, accidentally turning into the path of an motion for summary judgment, the evidence is considered in on-coming vehicle. A nearly head-on but relatively low- the light most favorable to the non-movant. In this case, we speed collision resulted. Harris, who was wearing her cannot conclude that defendant’s experts’ affidavits, as we seatbelt, was uninjured in the initial crash. She testified in her deposition that immediately after the crash, when she reached with her right hand to turn off the ignition, the airbag in the Corsica deployed, hitting her in the face, wrapping itself around her right arm and breaking that arm. Harris’ sole

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Harris’ right arm would have been in front of and across her passenger, Michele Packer (“Packer”), confirmed that the body as she made the left turn just prior to the accident. From airbag did not deploy until after the accident. Based on these this, he concludes that Harris’ arm was broken when the facts, Harris filed suit, contending that the airbag had been airbag properly deployed, striking her arm, during the defective in deploying after the accident and had caused her accident. injuries. Based on the content of this affidavit, General Motors After discovery, General Motors moved for summary argued that it would have been physically impossible for judgment. In support of that motion, General Motors Harris’ right forearm to have been broken in the manner in submitted the affidavits of two proposed experts. In response, which she alleged, and it is apparent from the district court’s plaintiff submitted her deposition testimony and that of her opinion that the judge was persuaded, at least in part, by that passenger, maintaining that the airbag had not deployed until representation. As counsel for General Motors concedes on after the accident. The district court granted General Motors’ appeal, however, Lighthall’s affidavit does not state that motion, accepting the testimony of defendant’s expert Harris’ injury could not have happened as she alleged. witnesses and expressly rejecting plaintiff’s testimony. Rather, the affidavit merely presents defendant’s alternative theory of the case. Such an affidavit does not establish III. DISCUSSION “undisputed physical facts” or demonstrate the lack of a triable issue of fact. To the contrary, Lighthall’s affidavit We review the district court’s grant of summary judgment posits the very factual dispute that gives rise to a jury question de novo, applying the same standard as did the district court. in this case. See Aparicio v. Norfolk & Western Railway Co., 84 F.3d 803, 806 (6th Cir. 1996). Courts properly grant summary The second affidavit submitted by General Motors is that of judgment where the moving party establishes through Brian Everest. Everest, an engineer employed by General pleadings, depositions, answers to interrogatories, admissions, Motors, stated in his affidavit that he had downloaded data and affidavits that “there is no genuine issue as to any from a device onboard Harris’ Corsica known as a material fact, and that the moving party is entitled to a “Diagnostic Energy Reserve Module” or DERM. Everest judgment as a matter of law.” Mauro v. Borgess Medical likened the DERM to an airplane’s “black box.” He Center, 137 F.3d 398, 401 (6th Cir. 1998) (quoting Fed. R. described the functions of the DERM, noting that the DERM Civ. P. 56(c)). Under Rule 56(c), defendant bears an initial monitors the airbag system for malfunctions and that the burden of demonstrating that an essential element of the non- DERM “warns the operator by controlling the ‘air bag’ moving party’s case is lacking. Kalamazoo River Study warning light on the instrument panel.” He then concluded, Group v. Rockwell Int’l Corp., 171 F.3d 1065, 1068 (6th Cir. “The DERM data from the Corsica suggests the supplemental 1999) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 restraint system (SIR) functioned as designed by deploying (1986)). Once the moving party has met this burden, the during the plaintiff’s accident. . . .” (Emphasis added.) nonmoving party must show the court that there is in fact a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 General Motors argued, and the district court found, that U.S. 242, 250 (1986). The nonmoving party must identify Everest’s affidavit established the undisputable fact that the specific facts, supported by evidence, and may not rely on airbag “deployed properly during impact, that is, the moment mere allegations contained in the pleadings. Lujan v. when plaintiff was executing her left turn.” (District Court Defenders of Wildlife, 504 U.S. 555, 561 (1992); Liberty Opinion, p. 4.) Clearly, however, Everest’s affidavit does not Lobby, 477 U.S. at 248. In deciding a motion for summary

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judgment, the court must view the factual evidence in the The name generally given to this concept is the light most favorable to the nonmoving party. Mount Elliott 'physical facts rule.' The rule has been variously stated: E. Cemetery Ass’n v. City of Troy, 171 F.3d 398, 402-03 (6th G., 'the testimony of a witness which is opposed to the Cir. 1999) (citing Matsushita Elec. Indus. Co. v. Zenith Radio laws of nature, or which is clearly in conflict with Corp., 475 U.S. 574, 587-88 (1986)). principles established by the laws of science, is of no probative value and a jury is not permitted to rest its In this case, the parties presented two conflicting versions verdict thereon.' [citation omitted]. 'The testimony of a of events. Harris submitted evidence which, if believed, may witness which is positively contradicted by the physical support her theory of liability; General Motors submitted facts cannot be given probative value by the court.' Lovas contrary evidence which, if admitted and believed, may v. General Motors Corp. 212 F.2d 805, 808 (6th Cir. negate a finding of liability. Viewing all factual evidence in 1954). the light most favorable to Harris, General Motors was not entitled to summary judgment. Id. at 12. Thus, under the physical facts rule, where the “the palpable untruthfulness of plaintiff's testimony” is evident The district court ruled otherwise, relying on the “physical because the testimony is “obviously inconsistent with, facts rule” as explained by the Ohio Supreme Court in contradicted by, undisputed physical facts,” id. at 12-13, McDonald v. Ford Motor Co., 42 Ohio St. 2d 8 (1975): summary judgment is warranted notwithstanding testimony offered by the plaintiff. Id.1 Ordinarily, where testimony conflicts, the credibility of witnesses is a matter for the jury. However, in certain The primary difficulty with application of the physical facts instances testimony cannot be considered credible. rule to this case is that General Motors’ affidavits simply do Where a witness testifies that he looked and listened at a not establish undisputed physical facts fatal to Harris’ railroad crossing, but neither saw nor heard a train products liability claim. See Fortunato v. Ford Motor Co., approaching, and the only reasonable conclusion upon 464 F.2d 962, 965-66 (2nd Cir. 1972). the evidence is that there is no doubt that had he looked he must have seen the train, the witness's testimony In support of the motion, General Motors submitted the cannot be considered credible. Detroit, Toledo & Ironton affidavits of two defense experts. One was Dr. James Rd. Co. v. Rohrs 114 Ohio St. 493 (1926); See, also, Lighthall. Lighthall, a doctor of anatomy and neuroscience, Zuments v. B. & O. Rd. Co. 27 Ohio St.2d 71 (1972). and a former employee of General Motors, stated that he is an The 'railroad crossing' cases are a single example of the expert on injury causation and occupant kinematics. His broad range of cases in which courts have recognized that affidavit elaborates on his theory as to how, consistent with eye-witnesses' testimony, essential though it may be, is the physical evidence and the proper functioning of the fundamentally 'soft' evidence, subject to human failings airbag, Harris’ injury might have occurred. He opined that of perception, memory and rectitude. In law, as in other spheres of human affairs, simple facts may be far more persuasive than the most learned authorities. As in Dean 1 Prosser's homely example, 'there is still no man who In this regard, we note that the “physical facts rule” is entirely would not accept dog tracks in the mud against the sworn consistent with the standard set forth in FRCP 56(c) - that summary judgment is warranted where there is no “genuine issue as to any material testimony of a hundred eye-witnesses that no dog has fact”. FRCP 56(c) (emphasis added). Obviously, where the only passed by.' Prosser on Torts (4 Ed.), 212. evidence submitted by a non-movant is contradicted by indisputable physical facts, there can be no genuine issue of material fact for trial.