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April 11, 2002


The opinion of the court was delivered by: Diamond, District Judge.


Plaintiffs commenced this personal injury action seeking monetary damages for injuries sustained by Mark Walters in a single motor vehicle accident. Plaintiffs contend defendant is liable for those injuries based upon a manufacturing defect in the air bag safety restraint system installed in the vehicle. The defect was the failure of the air bag to deploy in a "near frontal" crash, causing Mr. Walters to sustain serious head injuries. Presently before the court is defendant's motion for summary judgment. For the reasons set forth below, the motion will be granted.

Fed.R.Civ.P. 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. National State Bank v. Federal Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(a), (e)) (emphasis in Matsushita). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In meeting its burden of proof, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party "must present affirmative evidence in order to defeat a properly supported motion" and cannot "simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent "merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v. GAF Corp., 967 F.2d 846: (3d Cir. 1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n. 12 (3d Cir. 1990). If the non-moving party's evidence merely is colorable or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993) (although court is not permitted to weigh facts or competing inferences, it is no longer required to "turn a blind eye" to the weight of the evidence).

Plaintiffs contend that a strict product liability claim may be maintained on the ground that a supplemental inflatable restraint system (i.e., a driver's side air bag) failed to deploy in a 1996 Chevrolet Blazer when Mark Walters lost control of it and crashed into a hillside on May 17, 1998. The Blazer was manufactured by defendant and purchased by Louann Walters as new from a Youngstown, Ohio, dealership. The vehicle was equipped with a driver's side air bag and the owner's manual provided the following pertinent description of the manner in which it was intended to operate:

The air bag is designed to inflate in moderate to severe frontal or near-frontal crashes. The air bag will inflate only if the impact speed is above the system's designed "threshold level." If your vehicle goes straight into a wall that does not move or deform, the threshold level is about 14 to 18 mph (23-29 km/h). The threshold level can vary, however, with specific vehicle design, so that it can be somewhat above or below this range. If your vehicle strikes something that will move or deform, such as a parked car, the threshold level will be higher. The air bag is not designed to inflate in rollovers, side impacts or rear impacts, because inflation would not be helpful to the occupant.

Exhibit C to Plaintiffs' Response to Defendant's Motion for Summary Judgment (Document No. 17). The owner's manual further explained inflation of the air bag would restrain the driver from striking the steering wheel by distributing the driver's forward momentum more gradually. It then noted in contrast: "But air bags would not help you in many types of collisions, including rollovers, rear impacts and side impacts, primarily because an occupant's motion is not toward the air bag." Id. It also indicated the Blazer was equipped with a diagnostic module designed to record information about the air bag system, including information about the readiness of the system, when the sensors are activated and the driver's safety belt usage at deployment. Id.

The record as read in the light most favorable to plaintiffs will support the following scenario. At 8:30 p.m. on May 17, 1998, Mark Walters was operating the 1996 Blazer and traveling north on State Route 1006 in Washington Township, Lawrence County, Pennsylvania. He was restrained by the seatbelt. Mr. Walters lost control of the vehicle and traveled off the roadway onto the east berm. In attempting to return to the roadway, Mr. Walters veered to the left and crossed the center line into the southbound lane. He then veered back into the northbound lane and onto the east berm, colliding into a hillside, causing the vehicle to roll onto its roof and come to a final stop 5 feet from the east berm of the roadway. The Blazer sustained damage to the right front fender and right side of the hood, and extensive damage to the driver's side front wheel and undercarriage directly below the driver's side door. The air bag did not deploy. Mr. Walters suffered head injuries as a result of the accident.

Immediately following the accident Mr. Walters was life flighted to Allegheny General Hospital. He suffered closed head injuries, including two contusions to the brain, and was comatose for several days. Upon awakening Mr. Walters required rehabilitation and retraining in walking, talking and writing. He experienced chronic headaches, double vision and permanent speech impairment. He remained hospitalized until May 22, 1998, when he was transferred to an inpatient rehabilitation center. He remained in the center until July 6, 1998, and thereafter continued to receive outpatient therapy until August 12, 1998. Since that time Mr. Walters has been under the care of two treating physicians who have placed him on anti-seizure medication and monitored his condition.

Mr. Walters has no actual recollection of the accident. See Exhibit B to General Motors' Motion for Summary Judgment (Document No. 13). His memory of the evening in question ends shortly before the accident occurred. There are no known witnesses to the accident itself. The information concerning the sequence of events compromising the accident primarily are derived from the accident report of the investigating police officer. Id. at 20. Plaintiff is unable to identify what portion of the vehicle his head struck during the course of the accident. Id. at 21.

Following the accident the Blazer was "totaled" by Louann Walters' first-party insurance carrier. As a result the vehicle subsequently was destroyed prior to the plaintiffs contacting an attorney.*fn1 Defendant thus was never provided with an opportunity to examine the product which plaintiffs claim was defective.

Among other grounds, defendant contends it is entitled to summary judgment because plaintiffs have failed to come forward with sufficient evidence to sustain their burden of proof at trial on the essential elements of a strict products liability claim. In its motion for summary judgment and initial brief in support defendant points out that plaintiffs have not filed a pretrial narrative statement nor proffered the reports of any experts. It further observes that plaintiffs are not seeking to establish that the alleged defect caused the accident, but instead are apparently contending that Mr. Walters sustained enhanced injuries because the driver's side air bag did not deploy. It asserts plaintiffs lack evidence to prove a specific design defect in the air bag and similarly have failed to advance expert testimony to support the contention that Mr. Walters sustained enhanced injuries because the air bag did not deploy. From its perspective plaintiffs' failure to identify an expert precludes the existence of a design defect at trial, or the proffering of a safer alternative design, elements which plaintiffs are required to prove in order to establish a design defect claim. Plaintiff failure to offer a report from a "biomechanical" or similar expert similarly precludes any claim that enhanced injuries were sustained because the vehicle was not crash worthy.

In response plaintiffs acknowledge that they have no expert testimony to offer and argue that they can sustain their burden of proof at trial under the malfunction theory of product liability as recognized by Pennsylvania law, which permits the jury to infer the existence of a defect under special circumstances. They argue that the testimony of Louann Walters, Mark Walters and the investigating state police officer coupled with photographs of the vehicle taken after it was removed from the scene of the accident are sufficient to permit the jury to infer that there was a frontal or near frontal impact of sufficient speed to trigger the activation of the air bags and that they failed to deploy during the accident. Plaintiffs also contend that the malfunctioning of the air bags and Mr. Walters' testimony that he was wearing his seatbelt are facts from which the jury can infer that his closed head injuries were caused entirely by the failure of the air bag to deploy.

In its reply defendant argues forcefully that plaintiffs cannot satisfy their lesser burden of proof under a malfunction theory. In addition, defendant reiterates that plaintiffs' response does not offer any expert report or factual basis to satisfy plaintiffs' burden of demonstrating that ...

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