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MCCORD-SHELL v. VOLKSWAGEN OF AMERICA

April 16, 1990

BARBARA McCORD-SHELL, Administrator of the Estate of LAMONT LEWIS MOSS, Deceased; and DENNIS NICHOLS, Administrator of the Estate of SHEILA NICHOLS-MANGUN, Deceased, Plaintiffs,
v.
VOLKSWAGEN OF AMERICA, INC., a foreign corporation, Defendant



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE.

 BACKGROUND

 Before turning to the merits of the motion, we will set forth relevant aspects of the procedural history of this case bearing on our disposition of the motion for summary judgment. Volkswagen filed its motion for summary judgment at a time when there was a considerable amount of outstanding discovery and Volkswagen was having difficulty in securing the plaintiffs' compliance with the discovery schedule we had originally set. Volkswagen's motion was accordingly predicated on an alleged lack of any substantive evidence having been offered by the plaintiffs to support their claim. The plaintiffs' response to Volkswagen's motion for summary judgment was originally due on October 23, 1989. The plaintiffs then sought leave for a 35 day extension of time in which to take the deposition of one of their medical experts Dr. Jorge Sfier, which we granted. The deposition, however, was never taken and instead the plaintiff submitted two affidavits from Dr. Sfier, sworn to by the doctor on August 31, 1989, and one supplemental affidavit, sworn to on September 28, 1989 -- all well prior to the day the plaintiffs requested more time. The plaintiff's did make use of the additional time, however, in securing an affidavit from Roy Jelinek concerning the issue of the alleged design defect in the Scirocco.

 During the briefing period for the motion for summary judgment, the discovery disputes were the subject of several proceedings before this Court and Magistrate Lefkow. Yet, no stay of the motion for summary judgment was sought pending resolution of those matters. The discovery proceedings then resulted in a recommendation from the Magistrate that partial discovery sanctions be imposed against the plaintiffs, although the dismissal sought by Volkswagen was denied. The Magistrate then set a new discovery schedule. At the most recent status hearing, however, the plaintiffs took the position that they wanted a ruling on Volkswagen's motion for summary judgment before proceeding to engage in obtaining further discovery of expert witness opinion in their case. In essence, they clearly indicated that they wanted to stand on their submissions in response to Volkswagen's motion. *fn1"

 DISCUSSION

 Volkswagen has sought summary judgment on the grounds that plaintiffs have failed sufficiently to establish the existence of two elements essential to their claims and on which they bear the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Volkswagen contends that the plaintiffs have offered no supporting evidence on the issues of proximate cause and conscious pain and suffering. Mindful that we must draw all inferences from the evidence presented on summary judgment in the light most favorable to the plaintiffs, we agree that, regarding Lamont Moss, the plaintiffs have failed to put forward any positive, competent, or relevant evidence from which a favorable inference may be drawn concerning these two elements. Regarding Sheila Nichols, however, we find that the plaintiff has sufficiently created a genuine issue of material fact.

 I. Dr. Sfier's Affidavits

 Volkswagen first asserts that the plaintiffs' evidence fails to establish an inference that either of the decedents suffered and died as a result of the fire that broke out after the collision. On this issue, the plaintiffs rely almost exclusively on the affidavit testimony of Dr. Jorge Sfier. The plaintiffs claim that these affidavits establish an issue of fact to the effect that both plaintiffs' decedents suffered and died of inhalation asphyxia caused by breathing lethal levels of carbon monoxide produced by the fire.

 We find the affidavits of Dr. Sfier wanting in several respects as to both decedents, and ultimately insufficient so as to create a genuine issue of material fact in favor of the estate of Moss. Dr. Sfier's "Supplemental Report and Affidavit," dated September 28, 1989, was neither signed nor sworn to by the doctor. Accordingly, we strike that affidavit as inadmissible. Next, the August 31, 1989 affidavits provide almost nothing regarding Dr. Sfier's competence to testify to the matters contained in them. The affidavit merely states that Dr. Sfier is a licensed physician practicing in Chicago. No practice area or place of employment is given. In fact, the affidavit does not even offer an address for the doctor. On this point, however, we will give the plaintiffs the benefit of the doubt at this stage as to Dr. Sfier's qualifications as an expert to testify to the matters in his affidavit.

 We next observe that the plaintiffs contend on summary judgment that the evidence, gleaned from Dr. Sfier's affidavits, shows that both decedents died from inhaling lethal amounts of carbon monoxide. In their complaint, however, the plaintiffs allege that both decedents burned to death. Unrefuted deposition testimony, given by Dr. Edmund R. Donoghue, the Deputy Chief Medical Examiner for Cook County, suggests that there is a substantial difference between a situation in which a person actually burns to death through exposure to flames where there is an abundant supply of oxygen and a situation in which a person dies of asphyxiation through exposure to an abundance of carbon monoxide caused by combustion and an increasing lack of oxygen, and where the person may or may not be directly exposed to flames. See Donoghue Dep. at 22-32. Here too, however, we will give the plaintiffs the benefit of the doubt and consider the plaintiffs' allegation that the decedents burned to death as embracing either situation.

 Dr. Sfier also bases neither of his opinions as to the cause of decedents' deaths upon a reasonable degree of medical certainty. Lacking that foundation, the doctor's opinion is normally inadmissible under Federal Rule of Evidence 702 and 703. Nevertheless, we are willing to infer for the purposes of summary judgment that this foundation problem is one that may be cured. *fn2" We shall therefore consider the substantive merit of Dr. ...


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