Doomes’day for Speculative Design Evidence

New York Law Journal

The New York Court of Appeals issued its decision in Doomes v. Best Transit Corp.¹  on Oct. 18, 2011. The case involved a 1994 accident in which a bus driver fell asleep at the wheel while driving on a highway at 60 miles per hour. The bus veered across the highway onto a sloping embankment and rolled over several times. There were 19 injured passengers. Plaintiffs were four of them plus a mother representing two injured infants. The plaintiffs alleged two categories of design defects. They contended the bus was defective for failure to have passenger seat belts. They also alleged that the weight distribution of the bus, with its redesigned and lengthened chassis was misbalanced, with too much weight over its rear, preventing the driver from regaining control of the bus.

At a joint trial, the jury partially faulted the products liability defendant, Warrick Industries, for failing to provide the bus with seat belts and for manufacturing the bus with an altered weight distribution from that provided in the original chassis made by Ford Motor Company. The jury awarded verdicts ranging from $1 million to $10 million which the trial court reduced to range from $550,000 to some $3.8 million. Prior to trial, Warrick unsuccessfully moved to dismiss the seat belt claims on the ground of federal preemption by Federal Motor Vehicle Safety Standard (FMVSS) 208, requiring manufacturers to equip vehicles with certain restraints.

On appeal, the Appellate Division, First Department, reversed the judgments holding that the seat belt claims were preempted and that the weight distribution claim had to be dismissed because there was “no credible non-speculative evidence concerning the vehicle’s weight or its distribution” and because plaintiffs’ expert “acknowledged that the accident was unrelated to the extension of the chassis, and admitted there was no proof it had been caused by anything other than the driver’s inattentiveness.”²

The Court of Appeals held the seat belt claims were not preempted but affirmed the Appellate Division on dismissal of the accident-causing design claim. The case was remanded to the Appellate Division for consideration of issues raised but not determined on the appeal to that court. Here we will briefly review the preemption ruling and then focus on the insufficiency of the expert’s proof on the design claim. Both issues are important. There are lots of buses out there without seat belts. Does Doomes now mean that a failure-to-install-a-seat-belt claim can be filed every time a bus occupant is injured and it is alleged that a seat belt would have prevented or mitigated the injury? Further, what, if anything, does the Court of Appeals’ ruling regarding the speculative expert testimony mean for other products cases?

Preemption Rulings

To put into perspective the no-preemption ruling in Doomes, a bit of background is helpful. In Geier v. American Honda Motor Co.,³  the U.S. Supreme Court held preempted a claim that a 1987 Honda Accord was defective for failure to have a driver-side airbag. FMVSS 208 permitted manufacturers to choose from various types of restraint systems and did not require airbags. The Court reasoned that the federal safety agency deliberately sought variety—”a mix of several different passive restraint systems.” A state law tort claim that would require installation of airbags would frustrate the federal agency’s objectives and present an obstacle to the mix of restraint devices sought by federal standard 208. The conflict with federal law preempted the state tort claims.

In Williamson v. Mazda Motor of America Inc.,⁴ however, the U.S. Supreme Court held a lawsuit claiming that a minivan’s rear compartment inner seat should have included a shoulder harness was not preempted. FMVSS 208 was also involved in Williamson, but it was a different section from the one in Geier so the differences in the regulatory history and objectives of each as well as agency views of the two provisions persuaded the Court to hold that the California lawsuit did not conflict with the federal scheme for purposes of preemption.⁵  The full effect of the Geier and Williamson rulings on a variety of crashworthiness allegations that differ from those presented in the two cases but that nevertheless seem to conflict with other FMVSS standards has yet to unfold. Doomes is one new development in this process.

In Priester v. Ford Motor Co.,⁶ days after its Williamson decision, the U.S. Supreme Court issued its order granting certiorari, but vacating the matter and remanding to the South Carolina Supreme Court for reconsideration in light of Williamson. The Priester case involved a truck rollover in which an occupant was ejected suffering fatal injuries. The suit contended the manufacturer should have used laminated glass in the truck side window instead of tempered glass. The applicable standard offered a choice. The South Carolina Supreme Court earlier had held the lawsuit preempted. On remand, the South Carolina Court invited the parties to submit supplemental briefs on the effect of the Williamson decision.

In Doomes, a 6-1 Court of Appeals majority concluded that the regulatory record applicable to the subject of requiring seat belts in buses made the case “more analogous to…Williamson, which held that the plaintiff’s seat belt claims were not preempted.”⁷ The Court found a “lack of preemptive intent.”⁸ For details on this reasoning, interested readers should review the Court’s discussion. There are arguments to the contrary, as reflected in Judge Eugene F. Pigott Jr.’s dissenting opinion. He viewed the federal standard as not requiring passenger seat belts because “safety was paramount” in the safety agency’s decision that “larger buses are safer than smaller buses and that the latter should have passenger seat belts while the former need not.” By holding “no-preemption,” the Court has, in essence, “required that motor carriers of large buses must comply with small bus regulations,” which Judge Pigott did not find to be Congress’ intent.⁹

Aside from the no-preemption decision, the Court’s discussion regarding the insufficiency of the expert’s proof on the weight distribution claim conveys intriguing lessons for design cases generally. Let’s follow the trail cleared by the Court. The bus in question originated with a chassis made by Ford Motor Company (which had settled with plaintiffs). The overall gross vehicle weight rating (GVWR) was 11,500 pounds. Defendant Warrick modified the chassis by extending its length from 138 inches to 186 inches and increasing the GVWR to 13,500 pounds.

Plaintiffs contended that a proper apportionment of weight between the axles is 60 percent (rear) and 40 percent (front). The modified chassis, however, had a distribution of 68 percent and 32 percent, respectively. Their expert opined that this negligent distribution was a substantial factor in causing the accident. But the Court noted deficiencies with his opinions. First, his conclusions as to the bus’ weight were based on “speculative weight estimates of passengers, fuel, and luggage, and not empirical  data.”¹⁰ Specifically, the expert testified that the evidence alluded to the driver’s inattentiveness as a contributing factor. He attempted to calculate the weight of the bus, “but there was insufficient information.” Nor could he tell “with certainty whether the proper 60% to 40% weight ratio existed as his opinions were not from his experience and knowledge of [the] particular bus.”

Expert’s Deficiencies

While the expert discussed various weight ratings for different components of the bus, “he failed to present any calculations that would indicate that the weight distribution contributed to the rollover accident.” Thus, any findings that the weight distribution adversely affected steering and handling “were conclusory and based on speculative data that failed to establish a causal relationship to the accident.”¹¹

Interestingly, none of the Appellate Division precedents cited by the Court against accepting conclusory and speculative expert proofs (the Fotiatis, Briggs and Cotter cases)¹² was a products case and none of them involved proofs at a jury trial. All were summary judgment settings in which the plaintiff’s expert opposed the motion with an affidavit or report. In Fotiatis, plaintiff fell on a public roadway. The expert’s affidavit was deemed “speculative and conclusory, and his opinion was not supported by empirical data or any relevant industry standard.”

In Briggs, plaintiff sued her landlord and a plumber alleging she was injured by a defective radiator in her apartment. Her expert’s affidavit as to the plumber’s negligence “lacked any probative value” since it was based on the assumption, without evidentiary support, that the plumber had installed the radiator without a control knob or that it had been retained to install a radiator cover.

And, in Cotter, plaintiff firefighter injured his knee and thumb while extinguishing a fire at a Kentucky Fried Chicken restaurant. His suit was based on violations of the city’s Administrative Code because of a hole in the floor and accumulated debris. Plaintiff’s expert did not personally inspect the premises but only relied on documents presented to the court. The problem was that the assertion of a hole in the floor that trapped the fireman’s foot was “pure conjecture.” The allegation of accumulated debris that made him fall was “speculative.” The expert’s opinions about spread of fire and smoke due to the violations were “speculative” and “bare conclusions.”

It seems, therefore, that the species of deficiencies in the trial testimony of the plaintiffs’ expert in Doomes was similar to insufficiencies often found in experts’ affidavits submitted in summary judgment motions. This should be noted in conjunction with the Court’s recitation in Doomes of proof requirements in product design cases, a helpful, nugget-size restatement of New York law.¹³  Thus, generally, in a strict products liability claim, the manufacturer of a defective product is liable to any person injured or damaged if the defect was a substantial factor in bringing about the injury or damages.

In Doomes, where plaintiffs alleged a design defect based on the negligent modification of the bus chassis’ weight distribution, the relevant inquiry is “whether the product, as designed, was not reasonably safe.” Thus, plaintiffs “carry the burden of showing that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner.” Moreover, plaintiffs must show that the design defect was a proximate cause of their injuries.¹⁴ This discussion of applicable proof burdens preceded the Court’s analysis of insufficiencies in plaintiffs’ expert evidence.

One lesson to be learned is that proving design defects is serious business. One doesn’t show a product is “not reasonably safe” by proffering some expert’s bare personal opinion or speculative conclusion. When the Court says plaintiffs “carry the burden of showing” that there was a “substantial likelihood of harm” and that it was “feasible to design the product in a safer manner,” this is not some talismanic rhetoric that is satisfied by an expert’s personal opinion. When a bus driver falls asleep at the wheel and swerves the vehicle across the highway onto a sloping embankment, that clearly is a highly plausible, if not certain, cause of the rollovers. In the face of such a scenario, to show that the product, as designed, bespoke a “substantial likelihood of harm” is a tall order.

If the bus with a modified chassis safely negotiates highway driving when a driver does not fall asleep, then an expert’s personal opinion does not, of itself, establish a substantial likelihood of harm. If anything, the proofs then have to have a high level of probative dignity. Thus, conclusory and speculative expert testimony cannot suffice, especially when a plausible non-defect reason for the accident is unassailable.

Similarly, the Court’s additional proof requirement, that “it was feasible to design the product in a safer manner,” presupposes, first, a competent showing that a “substantial likelihood of harm” emanated from the product, as designed. If the 68 percent (rear) and 32 percent (front) weight distribution is reasonably safe, or is not shown to be “not reasonably safe,” then even good proof that a 60 percent to 40 percent distribution is “safer” is still not competent proof of a defect. “Optimum” or “better” safety is not the criterion.¹⁵  And when the expert doesn’t have the necessary facts, but assumes and speculates, his conclusions fail at the threshold. That is a sober ‘Doomes’day message.

Conclusion

The Doomes “no-preemption” decision may have opened up vistas of “no-seatbelt” litigation for larger buses that traditionally were not required to have passenger restraints. On the other hand, the Court’s piercing analysis of the insufficiency of the expert’s proofs sends a message that conclusory expert testimony of a “safer” design should be rejected, whether in a summary judgment setting or a trial.

Michael Hoenig is a member of Herzfeld & Rubin.

Endnotes

1.  2011 NY Slip Op 7256, 2011 N.Y. Lexis 3081 (Ct. App. Oct. 18, 2011).
2.  Doomes v. Best Transit Corp., 68 AD 3d 504, 2009 N.Y. App. Div. Lexis 8972 (1st Dept. Dec. 10, 2009), rev’d in part (preemption) and aff’d in part (weight distribution claim), 2011 NY Slip Op 7256, 2011 N.Y. Lexis 3081 (N.Y. Ct. App. Oct. 18, 2011).
3.  529 U.S. 861 (2000).
4.  131 S. Ct. 1131 (2011).
5.  See discussion of Williamson in Hoenig, “Supreme Court Speaks (Again) on Preemption,” NYLJ, March 14, 2011, p. 3; M. Wheeler and N.J. Wittner, “A Look Through Tinted Glass: What Does the Future Hold for Preemption in Motor Vehicle Litigation?” 39 B.N.A. Product Safety and Liability, No. 20, 515—26 (May 16, 2011).
6.  131 S. Ct. 1570 (2011).
7.  Doomes, Lexis at **13.
8.  Id., Lexis at **15.
9.  Id., Lexis at **25 to **28 (dissenting opinion).
10.  Id., Lexis at **20 —**21 (citing Fotiatis v. Cambridge Hall Tenants Corp., 70 AD3d 631, 632 (2d Dept. 2010); Briggs v. 2244 Morris, L.P., 30 AD3d 216 (1st Dept. 2006)).
11.  Doomes, Lexis at **21 to *22 (citing Cotter v. Pal & Lee Inc., 86 AD 3d 463, 466—467 (1st Dept. 2011).
12.  See nn. 10 and 11 supra.
13.  Doomes, Lexis at **19 —**20.
14.  Id. (citing and quoting from Voss v. Black & Decker Mfg. Co., 59 NY2d 102, 106—107 (1983)).
15. Cover v. Cohen, 61 NY2d 261, 272 (1984).