Name of Assigned Judge Philip G. Reinhard Sitting Judge if Other or Magistrate Judge than Assigned Judge
For the reasons stated below, defendant's motion for summary judgment is granted. Judgment is entered in favor of defendant and against plaintiffs. This case is terminated.
O [ For further details see text below.] Electronic Notices.
Plaintiffs, Cars R Us Sales and Rentals, Inc., an Illinois corporation with its principal place of business in Illinois ("Cars") , Michael Beggin, a citizen of Illinois, and General Casualty Insurance Company, a Wisconsin corporation with its principal place of business in Wisconsin ("General"), bring this negligence action against defendant, Ford Motor Company, a Delaware corporation with its principal place of business in Michigan. Complete diversity of citizenship exists and the amount in controversy exceeds $75,000, so this court has jurisdiction of this matter. 28 U.S.C. § 1332 (a) (1). Defendant moves for summary judgment.
Plaintiffs claim defendant negligently designed and manufactured a certain 1997 Ford Escort ("Escort") such that it caught fire on February 24, 2005, and damaged real, personal, and business property owned by Cars and Beggin and insured by General. Plaintiffs also claim defendant failed to give adequate warnings as to the dangers posed by the negligently designed and manufactured vehicle. The Escort came factory-equipped with an airbag, an integrated airbag module ("IABM") and airbag control module ("ACM"). A recall notice dated December 6, 2002, was issued by defendant and the National Highway Traffic Safety Administration ("NHTSA") for 1997 Ford Escorts due to an issue involving water or other liquid contaminants falling on the IABM. The contaminants can cause shorting and possible fire in the vehicle. Though the Escort was subject to this recall, the recall work was never performed on this vehicle prior to the fire.
In May 2004, Beggin, the owner of Cars, purchased the Escort at an auction in Florida. A mechanic at Cars serviced the Escort for safety before Cars offered it for sale on its car lot. The Escort was given a 27-point safety inspection but that inspection did not include checking either the NHTSA or defendant's website to determine whether any safety recalls were applicable to the Escort. The Escort was sold on or about May 22, 2004 and repossessed in September 2004. The Escort was serviced at that time by Cars and again on November 8, 2004. No check for outstanding safety recalls was performed either time. In February 2005, the Escort was sold to Lynda Faragher. No investigation was undertaken by any Cars employee to determine whether the Escort was subject to a recall at the time of the sale.
Several days after buying the Escort, Faragher noticed that a red light turned on while she was driving and she brought the Escort back to Cars to be serviced. Two days before the fire, Faragher again noticed a warning light flashing on her dashboard. On the day of the fire, on her way back to Cars for service, the Escort stalled and was towed to Cars. Faragher told the truck driver of an electrical burning smell coming from the vehicle. The car sat outside for 30 minutes to one hour and was then pushed into the Cars shop. Approximately 20 minutes later, it caught fire. Witnesses observed fire at the center of the windshield/dash area, above the IABM.
Beth Anderson is an electrical engineer retained by plaintiff as an expert witness. Her opinion is that the fire was caused by arcing on the conductors attached to the IABM. Anderson was deposed on February 18, 2010. Anderson is not an automotive engineer and testified she is not familiar with the standards and policies followed by automotive or motor vehicle manufacturers or component suppliers. She has not designed any airbag or restraint system component. In her deposition, she testified that she did not know what practices defendant followed from a design, manufacture, or assembly standpoint that led to this condition in the IABM, that she did not have any knowledge of what other automotive manufacturers may do differently with respect to the design, manufacture, or assembly of airbag systems, and that based on that lack of knowledge concerning defendant's and other manufacturers' practices that she was not in any position to say whether defendant was or was not negligent with respect to the design or manufacture of the IABM included in the Escort.
Subsequent to her deposition, Anderson completed a supplemental opinion report in which she offered the opinion that to a reasonable degree of engineering certainty the fire was caused by a design defect that allowed moisture to come in contact with the energized electrical conductors of the IABM during normal operation of the vehicle allowing arcing to occur that ignited the combustible materials near the IABM and that this was negligent because defendant failed to use ordinary care in the design and manufacture of the vehicle because it knew or should have known this design defect was unreasonably dangerous. This supplemental opinion report was based on a review of documents produced by defendant on the date of Anderson's deposition. She formulated her opinion from her review of these documents in conjunction with her earlier investigation. The documents reviewed for the supplemental opinion included: six engineering drawings (though one was not viewable and a second was only partially scanned on the copy of the CD Anderson reviewed) related to the IABM wiring harness and connectors, eight pages of a Mazda Engineering Specification regarding connector labeling, a 1997 Ford Escort Owner's Guide, a 1997 Ford Escort Maintenance Schedule, a list of the Field Service Actions for the 1997 Ford Escort, a list of Technical Service Bulletins for the 1997 Ford Escort, a 1997-Model Warranty Guide, warranty records for the Escort which is the subject of this suit, The Worldwide Design Requirement for Body/Interior Occupant Protection, 996 pages of customer contact records, 17 pages of technical contact records, a copy of the Mini 999 equivalent factory invoice and a list of lawsuits and non-litigated claims received as of 12/31/2008 that allege non-collision fires associated with the electrical wiring in the 1997 Ford Escort airbag module. Defendant challenges the admissibility of this supplemental report and the opinions therein.
"To establish liability on a theory of negligent design, a plaintiff must show duty, breach, proximate cause, and damages." Malen v. MTD Products, Inc., No. 08-3855, 2010 WL 4670176, *10 (7th Cir. Nov. 19, 2010). "A design defect is established by evidence of a practical, cost-effective alternative that was technologically feasible and would have prevented [the] injury." Id. "[I]n addition to showing that the product was defective, the plaintiff must show that the manufacturer knew (or should have known) that the product was unsafe." Id. "[T]he plaintiff must provide some evidence that the manufacturer: (1) deviated from the standard of care that other manufacturers in the industry followed at the time the product was designed or (2) knew or should have known, in the exercise of ordinary care, that the product was unreasonably dangerous and that it failed to warn of the product's dangerous propensity." Salerno v. Innovative Surveillance Tech., Inc., 932 N.E.2d 101, 111-12 (Ill. App. 2010). "Because products liability actions involve specialized knowledge, the plaintiff must provide expert testimony on the standard of care and a deviation from that standard to establish either of these propositions." Id., at 112. Defendant argues plaintiffs fail to present adequate expert testimony to establish the standard of care, a deviation from that standard or that defendant knew or should have known the product was unreasonably dangerous.
Based on their responses to defendants statement of facts, plaintiffs admit that during her deposition Anderson testified she was not in a position to say whether defendant was negligent or not in the design or manufacture of the IABM. She did not know what other manufacturers did in the design and manufacture of IABMs. In preparing her supplemental report , she reviewed engineering drawings of defendant related to the IABM wiring harness and connectors and eight pages of a Mazda Engineering Specification regarding connector labeling. She notes in her supplemental report that the Mazda specification "on connector symbols indicates how a watertight connector should be labeled" and that the defendants engineering drawings "contain no such label." She notes that the Mazda specifications "on connector symbols indicates that watertight connectors do exist in automobiles" and that defendant's "engineering drawings require the use of a grease pack in the connector."
The supplemental report does not adequately establish the standard of care in the industry. Other than the two references to the Mazda engineering specifications concerning labeling connectors, the report makes no reference to other automakers at all. The references to the Mazda specifications do not establish a standard of care. The most Anderson can draw from these is that watertight connectors do exist in automobiles. There is no evidence of how any manufacturer avoids the problem of arcing which she opines caused the fire in the Escort. Plaintiffs ...