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March 21, 1994



The opinion of the court was delivered by: RAYMOND J. DURKIN

Before the court is defendant's motion for summary judgment. (Doc. No. 17).

 In this product's liability action where jurisdiction is founded on diversity of citizenship, plaintiff seeks damages for injuries sustained in a single vehicle automobile accident which occurred on March 8, 1991 when plaintiff drove his 1988 Honda Accord off Schoolhouse Road and into a telephone pole. In his complaint, plaintiff alleges that at the time of the accident he was utilizing the harness and seat belt mechanism provided by the manufacturer and was duly strapped in, but nevertheless upon impact, the mechanism offered no restraint with the result that plaintiff sustained personal injuries. Plaintiff alleges that these injuries were the proximate result "of the defective shoulder harness and related protective mechanisms on said motor vehicle."

 Defendant is American Honda Motor Company, Inc., (Honda) distributor of the Honda vehicle in the United States. Honda filed an answer in which it denied that its product contained any defects. On May 27, 1993, the parties filed a consent to have a magistrate judge conduct all proceedings in this case, including the trial and order the entry of final judgment.

 After a period of time for discovery, on January 7, 1994, Honda filed a motion for summary judgment to which were attached various documents including a request for admissions directed to plaintiff, plaintiff's deposition, and emergency room and hospital records concerning plaintiff's treatment after the accident, and a supporting memorandum. (Doc. Nos. 17 and 18). On January 28, 1994, plaintiff filed a response to which was also attached certain pages of his deposition as well as an estimate of damage to the vehicle and copies of pictures which are difficult or impossible to discern. On February 8, 1994 defendant filed a reply, together with an affidavit and color photographs of the vehicle in question.

 Honda's motion for summary judgment is based on plaintiff's "spoliation" of the evidence necessary to prove his product liability claim, an allegedly defective seat belt mechanism, and that this "spoliation" also deprived Honda of an opportunity to examine the product to attempt to show there was no defect and therefore deprived Honda of the means to defend in this case.

 Summary judgment is appropriate when supporting materials, such as affidavits and other documentation, show that there are no material issues of fact to be resolved and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Rule 56(c) "mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Further, Rule 56(e) requires that the non-moving party go beyond the pleadings and by his own affidavits, or by depositions, answers to interrogatories, and admissions on file designates specific facts showing that there is genuine issue for trial. Id. at 324. In Anderson v. Liberty Lobby, 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) it was held that an opposing party must adduce more than a mere scintilla of evidence in its favor and cannot simply reassert factually unsupported allegations in his pleadings. See Celotex, 477 U.S. at 325. Further, an opposing party cannot defeat summary judgment simply by asserting that a jury might disbelieve an opponent's affidavit. Liberty Lobby, 477 U.S. at 256-257. An asserted disputed fact is "material" if its resolution could affect the outcome of the case and is "genuine" if the evidence bearing on the disputed fact is such that a reasonable person could find for the non-moving party. Hozier v. Midwest Fasteners, Inc. 908 F.2d 1155, 1158 (3d Cir. 1990).

 With the above principles in mind, the magistrate judge will now address the allegations in the complaint, the materials and documentation submitted by the defendant to pierce these allegations in an attempt to show there are no triable issues and that it is entitled to judgment, and the response by plaintiff in an attempt to controvert the defendant's materials and demonstrate that there exist a triable issue of material fact.

 To pierce these allegations, Honda initially relies on plaintiff's own deposition testimony as well as matters admitted with respect to a request for admissions which Honda served on plaintiff. The admissions were as follows:

1. On or about March 8, 1991, at approximately 10:34 p.m., plaintiff was involved in a one-car automobile accident, wherein a 1988 Honda Accord, VIN 1HGCA5523JA084992, struck a Bell of Pennsylvania guide pole on State Road, 4006 Schoolhouse Road, Hemlock Township, Columbia County, Pennsylvania.
2. After the accident, plaintiff consented to a Blood Alcohol test after his arrival at Bloomsburg Hospital, and his blood was drawn at approximately 11:30 p.m., on March 8, 1991.
3. A legal Blood Ethanol Test was conducted by the Department of Laboratory Medicine, Geisinger Medical Center, at 11:00 A.M., on March 11, 1991, and plaintiff's blood was confirmed to indicate the presence of Ethanol, in the amount of .179 g/dl.
4. At the above time and date of the automobile accident in question, the subject motor vehicle in this litigation had mileage in the amount of 91, 879 miles.
5. State Farm Insurance Company conducted an appraisal of the subject vehicle after the accident on March 14, 1991, and the damage sustained exceeded the then value of the vehicle.
6. On March 15, 1991, plaintiff granted State Farm Insurance Company permission to move the subject vehicle for salvage purposes.
7. The subject Honda Accord presently is not in the possession of plaintiff, his agents or his attorney.
8. The subject vehicle has either been disposed, destroyed, demolished and/or sold for salvage, ...

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