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HIGGINBOTHAM v. VOLKSWAGENWERK AKTIENGESELLSCHAFT

November 30, 1982

Larry Edward HIGGINBOTHAM, Administrator of the Estate of Dallas Larry Higginbotham, Deceased, Plaintiff,
v.
VOLKSWAGENWERK AKTIENGESELLSCHAFT and Volkswagen of America, Inc., Defendants, v. Charles W. HUMMEL, Jr., Third-Party Defendants



The opinion of the court was delivered by: CALDWELL

 CALDWELL, District Judge.

 On December 31, 1976, Dallas Larry Higginbotham, plaintiff's decedent, was killed when the 1975 Volkswagen "Beetle" which he was driving collided nearly head-on with a 1967 Plymouth sedan driven by third-party defendant Charles W. Hummel. Suit was brought against Volkswagenwerk Aktiengesellschaft and Volkswagen of America, Inc., and Volkswagen impleaded Hummel. The matter went to trial and, after plaintiff rested his case on June 3, 1982, the defendants' motion for a directed verdict was granted and judgment was entered in favor of defendants and against plaintiff. On June 10, 1982, the plaintiff filed a motion to vacate the directed verdict and grant a new trial. Following preparation of the trial transcript, plaintiff filed a supporting brief on August 12, 1982. Defendants' brief in opposition was filed on September 14, 1982, and the matter is now ripe for our review. The plaintiff has asserted numerous grounds for relief, which we will consider seriatim.

 We shall first address the propriety of the directed verdict based on the record before us at the conclusion of the plaintiff's case, and review the questioned rulings which shaped that record.

 Essential to our ruling on the motion for directed verdict was the absence in the record of any competent testimony to explain the intended function and possible failure of the collapsible steering column which, the plaintiff contends, caused the decedent's fatal injuries. The plaintiff argues that the testimony of his medical expert, Dr. William Bush, should have enabled him to reach the jury. Dr. Bush, the Dauphin County Coroner, reviewed the autopsy report as well as photographs and deposition testimony describing the circumstances of the accident. Dr. Bush concluded that Mr. Higginbotham's death was caused by a transection of the proximal descending aorta (N.T. 190, et seq.). Dr. Bush went on to describe the manner in which such injuries occurred in the context of automobile accidents (N.T. 195-199). Finally, the doctor gave the following testimony:

 
Prior to 1966, the transection of the aorta was an extremely common vehicular chest injury. Prior to 1966, steering wheels were not collapsible . . . . (N.T. 199)
 
When collapsible steering wheels were introduced, not only statistically, but in the studies done with the cadavers, with moving pictures, this tearing effect was rarely, if ever, demonstrated. (N.T. 200)
 
MR. ANGINO (plaintiff's counsel): And your studies have shown that if it collapses and if the speeds are under seventy, eighty, ninety, this shouldn't happen, this tearing effect, is that right?
 
DR. BUSH: It should not happen, right. (N.T. 202)

 Earlier testimony had established that both vehicles were travelling substantially slower than seventy miles per hour at the time of impact.

 Plaintiff argues that he can prove a defect under Restatement of Torts 402A by showing that the product in issue malfunctioned. The malfunction in this case, he posits, can be inferred from the nature of the decedent's injuries considered in conjunction with the statistics and studies referenced by Dr. Bush. We do not agree. Even if we assume that the malfunction theory is applicable in this case, *fn1" we do not believe the evidence presented through Dr. Bush is sufficient to raise a jury question. We also conclude that the instant case is not the kind in which a malfunction may properly be inferred absent qualified expert testimony. The typical "malfunction" case is one in which the testimony of a fact witness, without more, enables the finder of fact to infer the existence of a malfunction. For example, in the case of Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974), a crane operator set the crane's locking device to hold a load of pipe suspended about four feet from the ground. After checking to make sure that the lock was engaged, the operator left the cab. The load then fell, injuring Kuisis. When he returned to the cab after the accident, the operator found that the locking device was disengaged. In Cornell Drilling Co. v. Ford Motor Co., 241 Pa. Superior Ct. 129, 359 A.2d 822 (1976), a truck which had been recently turned off and left by its operators inexplicably burst into flames. In both cases, with the aid of pertinent fact witnesses, the malfunction, if not the specific defect, was readily apparent to a layman without technical or scientific elaboration. In the case before us, however, the alleged defect is more subtle and complicated and the inferential leap sought by plaintiff is too great. The nature of the defect or malfunction may not be readily determined by the trier of fact on the record developed. The allegedly defective component is a collapsible steering column. No evidence was introduced, however, as to what a collapsible steering column is, how it is supposed to function, and how the column in issue did, in fact, function at the time of the accident. Thus, any conclusion that the steering column malfunctioned would rest on pure speculation.

 The plaintiff asks, in effect, that the jury be permitted to infer the malfunction from the nature of the decedent's injuries. Dr. Bush testified to the statistical reduction of injuries such as those sustained by the decedent, with the advent of the collapsible steering column. He went on to say that, in his opinion, this type of injury should not occur where a car is equipped with a properly functioning collapsible steering column. *fn2" Dr. Bush, however, admitted ignorance of the design of collapsible steering columns or of their function. The doctor was unable to state how the steering column functioned at the time of the accident, and we do not believe that any statistical analysis of prior accidents could supply this crucial missing link. *fn2"

 The missing link, could, of course have been supplied by expert testimony. None was forthcoming because sanctions imposed by this court prohibited its introduction. By order of January 30, 1981, Judge Herman ordered that the plaintiff be precluded from introducing any expert evidence at trial (later construed to refer to expert evidence in technical fields such as engineering, steering column design, or automobile safety), or from presenting a claim of liability based on a "whole car" approach or a general lack of crashworthiness. Although the plaintiff argues to the contrary, we believe that these sanctions were properly imposed. Rule 37(b) (2) (B) of the Federal Rules of Civil Procedure provides that a court may impose discovery sanctions as follows:

 
If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b) (2) (6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is ...

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