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
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
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.
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 ...