Authored by Judge Richard A. Posner, the opinion in Smoot v. Mazda Motors of America, Inc.,{1} shoots down a products liability claim based on a theory of res ipsa loquitur, elaborates a series of proof failures by plaintiff and her expert and lectures the lawyers for both sides about delinquencies in properly describing the basis for federal subject matter jurisdiction. Because there are some lessons to be learned for plaintiffs in trying to avoid the falling-domino effect of avoidable mishaps and for defendants to take advantage of such missteps, and because of Judge Posner's stern lecture on sloppy jurisdictional pleading, we survey this articulate, barbed and interesting opinion. The Facts The facts are neither unduly complicated nor most unusual. Mrs. Smoot drove her one-year-old Mazda car at 35 to 40 mph when she struck a chunk of asphalt which dislodged from the pavement (her later version) or, more likely, a large pothole (what she earlier told the police officer who investigated the accident and what defendant's reconstruction concluded). This collision caused the windshield and left front wheel and tire to be damaged. It also triggered deployment of the air bags resulting in the personal injuries for which she sued. The car was repaired and sold before the lawsuit and could not be traced. The day before the accident, plaintiff had received a notice from Mazda advising that the owner should contact a Mazda dealer to have the air bag control unit reprogrammed because, as the notice stated, there was "an increased risk of airbag deployment in a low speed crash or minor impact to the undercarriage" in the model plaintiff was driving. Her husband made the appointment with the dealer for a few days later, but too late for the accident. Plaintiff filed suit in a Wisconsin state court but the defendants removed the case to federal court. The case then ambled along for some four years through discovery and several in-court proceedings. Thereafter, defendants successfully moved for summary judgment. Plaintiff's theory was that the air bag was defective in deploying upon a minor collision. But a number of proof problems dogged the case. The accident car was not preserved. Although photographs were taken, they did not show the air bag mechanism. Plaintiff sought to rely on the "venerable" common law doctrine of res ipsa loquitur (the thing speaks for itself) but the trial judge ruled against her. By that time discovery was closed and plaintiff had not retained an expert. The trial judge gave her time to find one and she did. But his qualifications to testify about air bags were poor. Beyond that, his study of the accident was so perfunctory that, said Judge Posner, "he quite rightly was barred from testifying." Expert Flunked Furthermore, the expert flunked all three requirements of Federal Evidence Rule 702, namely, that the expert's testimony be "based upon sufficient facts or data," that it be "the product of reliable principles and methods" and that the expert has "applied the principles and methods reliably to the facts of the case." He merely offered the "naked unsubstantiated opinion" that an air bag should not deploy when a car is traveling at only 35 to 40 mph and hits something unlikely to have brought the car to a complete and sudden stop. The expert did not inspect the car's air bag control unit. That was not his fault but a miscue by his client. Said the Seventh Circuit: "[t]he car should not have been sold or repaired (it was repaired before it was sold, and the repairs included replacing the air bag control unit) before the unit was inspected." Whether or not this would have justified a "spoliation of evidence" instruction had the case gone to a jury, the plaintiff cannot escape the responsibility for placing her expert in a difficult position. Even with this pivotal handicap, the expert simply did not do what he might have. Judge Posner illustrated: he could have inquired into the circumstances behind the recall notice and into the results of the recalls (for example, were the air bag control units found to be defective in all of the recalled vehicles? In some? None?); he could have checked into the experience of premature deployments in plaintiff's model; he could have tried to infer the deceleration of the vehicle from the car's weight and the damage sustained. He did not examine another car of the same model. He conducted no interviews of plaintiff, the investigating officer, or any of the mechanics who repaired the car. He did not review crash test data for the model involved or the car's technical specifications or pertinent literature about manufacture, design or performance of air bag systems in Mazdas. These defaults in expert conduct left plaintiff bereft of reliable expert testimony. Essentially, she was left with the recall notice plus "a certain implausibility in the notion that a properly controlled air bag would deploy when a car traveling at a relatively low speed hit a chunk of asphalt (though probably it really hit a pothole)." The plaintiff did not offer details of the recall so the appellate panel itself checked the documents available at the National Highway Traffic Safety Administration (NHTSA) Web site. While the recall covered some 214,270 vehicles, the percentage of the recalled Mazdas that turned out to have a defect that would trigger air bag deployments was unknown. Preceding the recall, NHTSA's investigation turned up 88 incidents, involving a total of 56 injuries. In 2002, Mazda said that the complaint rate for improper air bag deployment for the recalled vehicles had been 14.6 per 100,000 vehicles per year. The Seventh Circuit concluded: "[t]hese numbers would preclude inferring liability from the recall alone, which anyway the plaintiffs do not ask us to do." Little Evidence The paucity in proof, other than the too-slender reed of res ipsa, caused Judge Posner to state: "A case based on so little evidence gives rise to an inference that the plaintiffs searched no further because they were pessimistic that their case had any real merit. The judge was right to keep the case from reaching a jury." What were the flaws in advancing the res ipsa approach? Under the applicable Wisconsin law, the doctrine can be applied in a products case "as long as the defect that is claimed to have caused the accident existed before the defendant shipped the product rather than being created by tampering or use after he parted with it." The notion of a "presumption" of negligence is a misnomer and should more correctly be named a "permissible inference of negligence." In a proper case of res ipsa, a plaintiff does not, at least initially, have to present expert testimony; it may be obvious to court and jury that the accident is of a kind that rarely occurs without negligence on the part of the injurer. The typical example is where a surgeon leaves his sponge in the patient's abdomen. The Smoot case might be similar had the air bags deployed when plaintiff parked her car and turned off the ignition or, while driving steadily, she blew her horn and the air bags inflated. But, in a case where the inference of negligence from the accident itself is obvious only to an expert, there would be a need for expert testimony. The court illustrated as follows. Suppose in the surgeon hypothetical there is no sponge but when the patient wakes up he discovers that his right leg is paralyzed. A medical expert might testify that it was obvious to him (the expert) that the surgeon had sliced a nerve in the patient's abdomen rather than that the nerve had snapped spontaneously. With such testimony, the doctrine of res ipsa loquitur "would drop out of the case because the expert's evidence would have provided a complete explanation of the accident, superseding any inference that might have been drawn from the accident itself." To instruct the jury on res ipsa loquitur in such a case "would merely confuse." Here the trial court was correct to reject plaintiffs' attempt to invoke res ipsa, or more correctly, to rule that plaintiff could not prove a product defect without expert testimony. An air bag deploys not because of the car's travel speed but, rather, the rate of deceleration. Thus, if a car going 35 mph hits a wall head on and decelerates to zero mph in a 10th of a second, "you'll want your airbag to deploy because you'll have hit the wall with the same force as if you had fallen from a window 40 feet above the ground." While the panel did not know the rate of deceleration of plaintiff's car, even if the collision was with an asphalt chunk rather than a pothole, the front end damage to the car suggests rapid deceleration. One could not let a jury speculate that the deceleration was not rapid enough to trigger a properly controlled air bag. A sudden slowing of the vehicle by only eight mph concededly would trigger a properly controlled air bag. But it could not be said, as a matter of common sense or common experience, that hitting a pothole or chunk of asphalt would not "suddenly slow" the car from 35 to 27 mph. Indeed, the investigator's report depicts a pothole some two feet in diameter, though its depth was not indicated. Since the expert did not satisfy the Rule 702 reliability criteria, his unsubstantiated opinion that the air bag should not have deployed was insufficient. Res ipsa did not and could not fill the proof void. Stinging Criticism An interesting sidelight to this case is the court's insistent critique of counsel for failing to properly describe the basis for federal subject matter jurisdiction. First, the court observed that the jurisdictional statement in plaintiff's appellate brief stated that jurisdiction was based on diversity of citizenship "and the jurisdictional amount of $75,000." But, in fact, diversity jurisdiction requires that the amount exceed $75,000, exclusive of interest and costs. Further, the plaintiff's jurisdictional statement recited that plaintiffs were citizens of Wisconsin (a proper allegation) and that defendant Mazda is a foreign corporation incorporated in California. The problem with that recitation is that a corporation has two places of citizenship: where it is incorporated and where it has its principal place of business. Silence about the second place was an error. If Mazda's principal place of business were in Wisconsin, for example, diversity would be destroyed. Moreover, plaintiff's jurisdictional statement did not even mention the second defendant, an insurance company. The circuit's rule required specification of both a company's state of incorporation and the state in which the principal place of business is located. The defendants' jurisdictional statement was flawed too. It commenced by saying that plaintiff's statement was neither complete nor correct. Yet, the defense brief did not mention the amount in controversy nor did it indicate what state plaintiffs were citizens of. Indeed, the insurance company defendant was a citizen of a foreign country (Japan) so that a different subsection of the diversity statute was involved but not mentioned. The court asked the parties to submit supplemental jurisdictional statements. Plaintiffs cured one part but blundered again with respect to the insurance company by saying it was organized under the laws of Japan "with a United States branch domiciled in the State of New York" and a principal place of business located at a specified address on Park Avenue. This recitation again upset the court because the location of a branch was irrelevant to diversity jurisdiction and the use of words like "domicile" and "principal place of business" raised the question, not addressed, whether the branch might be a corporation with a principal place of business in New York but incorporated elsewhere such as Wisconsin. Defendant's supplement did not correct the defense blunders because the defense statement repeated the "branch" terminology and New York connection. The explanation was that the words, "with a U.S. Branch" are "Japanese corporate lingo." The court likewise did not appreciate two further errors: a statement that the amount in controversy "allegedly" exceeds $75,000 when, in fact, the plaintiff had said the amount "is" $75,000; and, further, that the use of the word "allegedly" was itself erroneous because, unless false to a "legal certainty," the amount plaintiff stated is "taken as true for purposes of jurisdiction." While the severity of the injuries alleged seemed to satisfy the jurisdictional amount, thus rendering the parties' errors "harmless," the court criticized the "waste of time" and "this malpractice." The court indicated that they were not being "fusspots and nitpickers" in trying to enforce rules applying to limits on subject matter jurisdiction that are not waivable or forfeitable. The courts must police their jurisdiction - a duty of care that "we are not at liberty to shirk." The court directed counsel to show cause why they should not be sanctioned for violating the circuit rule and not being compelled to attend a CLE class in federal jurisdiction. On this limited issue, one panel member, however, issued a concurring opinion declining to join the "stinging criticism" of the attorneys. While both sides had stumbled on their jurisdictional statements, these were not "blunders" or "malpractice" but rather "minor flaws," which did not justify the proposed sanction. He urged more tolerance of the "hiccups that have occurred here." Conclusion Clearly, from a plaintiff's viewpoint, this was a nightmare kind of scenario. It started with not preserving the accident vehicle and air bag control unit, the "crown jewels." The photographs that were taken did not include the air bag mechanism. Reliance on an expertless res ipsa case was contraindicated by the technical facts and the need for an expert. When the court generously allowed more time for plaintiff to retain an expert, the latter simply did not do the things necessary to satisfy the reliability requirements of the rules of evidence. The result was the proffer of a naked, unsubstantiated opinion which was excluded. Then, on appeal, came the court's criticism regarding the jurisdictional statement, the supplement and violation of the circuit rule. There are sobering lessons to be learned from this extraordinary opinion. Michael Hoenig is a member of Herzfeld & Rubin. Endnote: _________________________________________________________________________________________ [1.] 469 F3d 675, 2006 U.S. App. LEXIS 29292 (7th Cir. Nov. 29, 2006). |
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