BLOCK v. GENERAL MOTORS CO.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DEREK BLOCK : CIVIL ACTION

:

v. : NO. 22-556

:

GENERAL MOTORS LLC :

MEMORANDUM

MURPHY, J. December 14, 2023

Derek Block is an automotive technician who was replacing the battery of a 2021 GMC

Yukon when he injured his finger on a jagged bit of metal. He says the vehicle is defective. He

hopes to forestall summary judgment and reach a jury even though he has no expert to testify

about the supposed defect.

A plaintiff does not always need an expert to show a product is defective. But a plaintiff

does need enough evidence — of some kind — to allow a jury to reasonably reach that

conclusion. That’s Mr. Block’s problem. He has no expert, and his evidence consists of his own

observations and three photographs that fall below the threshold to support a verdict. Mr. Block

volunteers to be his own expert, but he never disclosed an expert report and has not demonstrated

his qualifications under Rule 702.

Viewing the facts in the light most favorable to Mr. Block, we grant GM’s summary

judgment motion with respect to Mr. Block’s products liability claims. We also grant summary

judgment with respect to Mr. Block’s breach of warranty cause of action because GM did not

sell Mr. Block the vehicle.

I. Background1

Mr. Block graduated from automotive technical school in 2005. See DI 28 ¶ 4. He began

his career in the automotive industry at Hill Buick GMC — starting as an apprentice, and

eventually becoming an automotive technician. See id. From the start of his career until 2020,

Mr. Block had “replaced ‘well over 100’” car batteries. Id. ¶ 5.

On September 29, 2020, Mr. Block injured his left index finger replacing the battery of a

2021 GMC Yukon. See id. ¶ 1. Mr. Block positioned his hand underneath the battery to remove

it, but the battery slipped. Id. ¶ 3. When it slipped, Mr. Block’s hand “‘fell’ on a ‘sharp piece of

metal.’” Id.2

The piece of metal, pictured below, was the “sharp edge ‘of the metal fender brace

nearing the battery housing’” and firewall of the Yukon. Id. ¶ 2. Mr. Block described the metal

as part of “the design of the car structure” and “part of the sheet metal of the car.” Id. Ex. C at

89:21-90:5 (Mr. Block’s deposition). The metal lacerated and fractured Mr. Block’s left index

finger. Id. ¶ 2.

1 Our background facts come from (1) the statements of fact that Mr. Block admitted in

his opposition to GM’s summary judgment motion, (2) counterstatements of material fact

submitted by Mr. Block as the non-moving party, (3) Mr. Block’s deposition testimony, and (4)

the exhibits attached to Mr. Block’s amended complaint, which Mr. Block addressed during his

deposition. See Fed. R. Civ. P. 56(c).

2 At the time of the incident, Mr. Block wore only latex gloves — no other protective

equipment. See id. ¶ 6. Nor did Mr. Block use a “fender cover.” Id. ¶ 7.

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See DI 8 Ex. A (the red arrows are Mr. Block’s).

Mr. Block sued GM for “plac[ing] into the stream of commerce a defective” metal

bracing that caused his injury. See id. J 13, 18. Mr. Block also claims that GM breached an

express and implied warranty that the GMC Yukon “was merchantable, fit for use, and suitable

and fit for its particular purpose under common law and” Pennsylvania law. See id. ¥ 42.

We were assigned Mr. Block’s case during fact discovery, see DI 18, and upon the

completion of discovery, GM moved for summary judgment, see DI 28. GM argues that Mr.

Block’s products liability claims? fail because he cannot prove to a jury that the vehicle had a

defect without expert testimony. See id. at 8-11. Mr. Block failed to submit an expert report

despite telling us that he was planning to do so and “despite three extended [case] deadlines.”

> Mr. Block asserts two products liability causes of action: a strict liability claim, see DI 8

4§ 17-35, and a negligence products liability claim, see id. [| 36-40.

Id. at 11.4 And GM argues that Mr. Block’s breach of warranty claim fails for two reasons: there

is no proof of defect, and GM never sold Mr. Block the vehicle. See id. at 13-15.

Mr. Block responds that Pennsylvania law does not require expert witness testimony to

prove his product liability claims. See generally DI 29.5 Even if it did, according to Mr. Block,

he could be his own expert given his experience as an automotive technician. See id. at 11-13.

Finally, Mr. Block argues that his breach-of-warranty claim may survive even though he is “not

the end consumer” of the vehicle. See id. at 13-14.

On reply, GM notes that Mr. Block “had an expert inspect the subject Yukon along with

GM’s expert, but did not identify that individual or produce a report (unlike GM).” DI 30 at 3.6

And GM argues that it could not challenge Mr. Block’s self-designation as an expert because he

did not disclose himself as a potential expert during discovery. Id. Further, GM contends that

Mr. Block “has no background, training, credentials or experience to qualify him as an expert as

to the alleged defect in the structure of an automobile.” See id. at 4.

We have subject-matter jurisdiction. See 28 U.S.C. § 1332(a); DI 8 ¶¶ 5-6. GM’s motion

is ripe for adjudication. For the reasons explained below, we grant GM’s motion for summary

judgment.

4 See also DI 17 (Judge Brody extending case deadlines); DI 19 (parties second joint

request for deadline extension, stating “Plaintiff’s liability expert will need time to review

Defendant’s discovery Answers”); DI 23 (our grant of the parties’ second joint motion for an

extension); DI 26 (Mr. Block’s unopposed motion to extend deadlines, explaining that he

“retained both liability and medical experts” and that his “liability expert cannot complete his

report without a vehicle inspection”); DI 27 (our grant of a third deadline extension).

5 Citations to Mr. Block’s opposition use the pagination of the CM/ECF docketing

system.

6 See also DI 26 ¶¶ 12, 13 (Mr. Block’s unopposed extension motion noting that his

“liability expert cannot complete his report without a vehicle inspection.”).

II. Standard of Review

Federal Rule of Civil Procedure 56 allows parties to move for summary judgment on

claims or defenses. We “shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Id. “The party moving for summary judgment bears the initial burden of demonstrating

the absence of a genuine issue of material fact.” Padillas v. Stork-Gamco, Inc., 186 F.3d 412,

414 (3d Cir. 1999).

“A dispute is genuine ‘if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party,’ but ‘the mere existence of a scintilla of evidence’ favoring the non-

moving party will not prevent summary judgment.” SodexoMAGIC, LLC v. Drexel Univ., 24

F.4th 183, 203-04 (3d Cir. 2022) (citation omitted) (quoting Anderson v. Liberty Lobby, 477 U.S.

242, 248 (1986)). “[A] fact is ‘material’ where ‘its existence or nonexistence might impact the

outcome of the suit under the applicable substantive law.’” Baloga v. Pittston Area Sch. Dist.,

927 F.3d 742, 752 (3d Cir. 2019) (citation omitted) (quoting Santini v. Fuentes, 795 F.3d 410,

416 (3d Cir. 2015)). “[W]e must review the facts in the light most favorable to the nonmoving

party.” Id.

III. Analysis

A. Mr. Block does not adduce sufficient non-expert evidence for a lay juror to

conclude that the metal bracing that injured his finger was defective.

Under Pennsylvania law,7 “[t]he test for strict liability . . . requires a plaintiff to prove:

‘(1) that the product was defective; (2) that the defect was a proximate cause of the plaintiff’s

injuries; and (3) that the defect causing the injury existed at the time the product left the seller’s

7 The parties do not dispute that Pennsylvania law applies to Mr. Block’s claims.

hands.’” Sikkelee v. Precision Airmotive Corp., 907 F.3d 701, 709-10 (3d Cir. 2018) (quoting

Pavlik v. Lane Ltd./Tobacco Exps. Int’l, 135 F.3d 876, 881 (3d Cir. 1998)). “There are three

different types of defective conditions that can give rise to a strict liability claim: design defect,

manufacturing defect, and failure-to-warn defect.” Phillips v. A-Best Prods. Co., 665 A.2d 1167,

1170 (Pa. 1995).8

Mr. Block has not exactly been clear about his theory of defect.9 The claims, arguments,

and limited evidence presented suggest that a design or manufacturing defect is at issue. But we

need not sort that out because Mr. Block admits that “regardless of which theory of liability [he]

pursues, he is not required to present expert testimony.” DI 29 at 8. And that is the issue that

GM wants us to focus on.

A plaintiff does not always need an expert for a case like this — it depends on what the

jury would need to reasonably find in plaintiff’s favor. A pair of Third Circuit decisions

illustrates under what circumstances courts may conclude that expert testimony is necessary to

prove a product defect. See Padillas, 186 F.3d at 415-16; Oddi v. Ford Motor Co., 234 F.3d 136

8 “Under a design defect theory, a plaintiff ‘may prove defective condition by showing

either that (1) the danger is unknowable and unacceptable to the average or ordinary consumer,

or that (2) a reasonable person would conclude that the probability and seriousness of the harm

caused by the product outweigh the burden or costs of taking precautions.’” Cohen v. Johnson &

Johnson, 634 F. Supp. 3d 216, 230 (W.D. Pa. 2022) (quoting Tincher v. Omega Flex, Inc., 104

A.3d 328 (Pa. 2014)). A manufacturing defect is demonstrated “by proving a breakdown in the

machine or a component thereof.” Sullivan v. Werner Co., 253 A.3d 730, 736 n.2 (Pa. Super. Ct.

2021) (quoting Barton v. Lowe’s Home Ctrs., Inc., 124 A.3d 349, 354-55 (Pa. Super. Ct. 2015)).

And “[t]o prevail on a failure to warn theory, [a plaintiff] must show the [product] is

unreasonably dangerous with the warning provided, and that the absence of warning was the

proximate cause of his injury.” Kurzinsky v. Petzl Am., Inc., 2019 WL 220201, at *4 (E.D. Pa.

Jan. 16, 2019) (citing Berkebile v. Brantly Helicopter Corp., 337 A.2d 893, 901-03 (Pa. 1975)).

9 See DI 8 ¶¶ 19a-i (alleging “defective design and/or manufacture,” as well as a “failure

to warn purchasers and end users of the dangers of the” car). In opposition to GM’s motion, he

says “that the defect is apparent.” DI 29 at 10. He also responds to GM’s statement of

undisputed material facts by arguing “[e]xpert testimony is not required under a failure to warn

theory.” DI 29 ¶ 21 (emphasis added).

(3d Cir. 2000). On the one hand, expert testimony is required if the subject matter of the

products liability claim is of a “highly technical nature.” McCracken v. Ford Motor Co., 392 F.

App’x 1, 3 (3d Cir. 2010) (citing Oddi, 234 F.3d at 159). On the other hand, “expert evidence”

is “unnecessary” where “testimony and pictures may enable the jury to clearly see the

construction of the [allegedly defective product] and the manner of its use.” Padilla, 186 F.3d at

416.

For example, the plaintiff in Padilla, injured by the blade of a chicken cutter, proffered

“other non-expert proof” for his claims, like pre-accident reports noting the cutter’s unsafe

condition, evidence of a cutter with “a more robust guard system” than the one that injured him,

and an employee’s memorandum referring to the cutter’s preexisting dangers. Marshall v.

Zimmer, Inc., 2020 WL 5408209, at *7 (E.D. Pa. Sept. 9, 2020) (summarizing Padillas). The

non-expert proof, according to the Third Circuit, made it possible for a jury to decide whether a

defect existed without expert testimony. Padillas, 186 F.3d at 416.

In Oddi, the Third Circuit “drew a distinction between” Padillas and an allegedly

defective “front bumper and flooring of the cab of [a] truck.” Zimmer, 2020 WL 5408209, at *8;

see Oddi, 234 F.3d at 159. The plaintiff in Oddi, a truck driver, argued that Ford defectively

designed the “front bumper of the bread truck” he drove, leading to injuries when the truck hit a

guardrail. Oddi, 234 F.3d at 141. The Third Circuit rejected the truck driver’s argument that he

could pursue a negligent failure-to-warn claim against Ford10 without expert testimony,

“believ[ing] that a juror could [not] look at the front bumper and the flooring of the cab of the

truck [the truck driver] was driving and reasonably conclude, not only that its design was

10 The truck driver also brought a failure-to-warn claim against the company that

“designed and manufactured the finished car.” Id. at 140.

defective, but also that testing would have disclosed the defect and that it could have been

remedied.” Id. at 159. Unlike the front bumper of a car, a “whirling cutting blade” for chicken

“without a proper guard is obviously dangerous” to a lay juror. Id.

Here, the parties essentially ask us to classify this case under either Padillas or Oddi.

Compare DI 28 at 12 (“The Third Circuit’s decision in Oddi demonstrates the necessity of expert

testimony here.”), with DI 29 at 10 (Mr. Block drawing comparison to Padillas). But the

question is not merely whether the defect at issue is more like a chicken cutter or front bumper of

a bread truck. The bigger question is whether Mr. Block has sufficient non-expert evidence for a

lay juror to conclude that the metal bracing was defective. And the degree of non-expert

evidence required to support a potential verdict depends entirely on the facts and circumstances

of a particular case.

Without an expert,11 the record evidence in this case is too sparse to allow a jury to find

in Mr. Block’s favor. Unlike the plaintiff in Padillas, Mr. Block does not have sufficient forms

of non-expert proof. The only evidence Mr. Block provides is his own deposition testimony and

three pictures of the GMC Yukon’s interior. See DI 29 at 10. And one of the three pictures is of

the interior of a different GMC Yukon — not the one that injured Mr. Block. See DI 29 Ex. A at

119:10-120:16; DI 8 Ex. A. “[O]n the [limited] record before us, we cannot” determine that Mr.

Block’s “non-expert evidence will be sufficient to submit his claim of defect to the jury.”

Padillas, 186 F.3d at 416. It may well be that Mr. Block could prove his case without an expert,

but there is simply not enough non-expert evidence. Thus, his products liability claims do not

11 The expert question is probably a red herring because the record reveals nothing that an

expert might even base her opinion on consistent with Federal Rule of Evidence 702. Perhaps

that’s why no expert report was ever surfaced in this case.

survive summary judgment.12

B. Mr. Block fails to demonstrate that he is qualified to testify as an expert

regarding the vehicle’s metal bracing.

Mr. Block suggests that he could simply act as his own expert. GM responds that Mr.

Block is not qualified. DI 30 at 4 (“[H]e has no background, training, credentials, or

experience.”). It is hard to assess this question because we lack the usual source material for

making the assessment — an expert report. Mr. Block’s unexcused failure to identify himself as

an expert and produce a report precludes him from doing so now. See Fed. R. Civ. P. 37(c).

And GM points out that Mr. Block’s failure to disclose his intent to serve as his own expert

“precluded” it from “challeng[ing] the designation.” DI 30 at 4. No doubt. But regardless of

Mr. Block’s failure to disclose himself during discovery as a potential expert, he has not

demonstrated that he has the qualifications to be his own expert.

Federal Rule of Evidence 702 “has three major requirements: (1) the proffered witness

must be an expert, i.e., must be qualified; (2) the expert must testify about matters requiring

scientific, technical or specialized knowledge; and (3) the expert’s testimony must assist the trier

of fact.” Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008). The Third Circuit

construes the first requirement — qualification — liberally, but “requires ‘that the witness

possess specialized expertise.’” Id. (quoting Schneider ex rel. Est. of Schneider v. Fried, 320

F.3d 396, 404 (3d Cir. 2003)). “[A] broad range of knowledge, skills, and training qualify an

expert as such.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994).

12 Our analysis applies to both products liability causes of action brought by Mr. Block —

strict liability (Count I) and negligence (Count II). See DI 8; see also Oddi, 234 F.3d at 143, 159

(analyzing elements of “negligent failure to test” claim — which include duty, breach, causation,

and harm — and explaining that “expert evidence is generally required in a products liability

case where a defect is alleged”).

The burden to demonstrate that an expert is qualified by a preponderance of the

evidence13 falls on the party presenting the expert. See Padillas, 186 F.3d at 418. And trial

courts are the gatekeepers of expert determinations, with the Third Circuit reviewing decisions

under an abuse-of-discretion standard. Pineda, 520 F.3d at 243.

Outside of relying on the Third Circuit’s liberal standard, the only case law that Mr.

Block advances is a pre-Daubert14 decision from the Eighth Circuit, where the “owner and

operator of a body and fender shop” was permitted to testify about the “function and operation of

a ball joint” in a car’s suspension system that allegedly caused a car to crash. See Moran v. Ford

Motor Co., 476 F.2d 289, 290 (8th Cir. 1973). He says he is like the body shop owner. See DI

29 at 12. The body shop owner “had frequently examined wrecked cars . . . inspected suspension

systems to discover what parts were broken or worn . . . was familiar with the function and

operation of a ball joint and . . . was able to recognize visible wear patterns on automobile metal

parts.” Moran, 476 F.2d at 290. And the Eighth Circuit held that his “practical experience . . .

ma[de] him well qualified as an expert witness.” Id.

Mr. Block’s practical experience — as best as we can understand from the limited

record — differs from the body shop owner in Moran because there is no evidence that Mr.

Block has any specialized knowledge of the car component that injured his finger. Mr. Block

relies on his deposition testimony, which walks through his fifteen-year background as an

13 Federal Rule of Evidence 702 was amended on December 1, 2023. Citing Federal

Rule of Evidence 104(a), the Committee Notes state that one purpose of amending Rule 702 is

“to clarify and emphasize that expert testimony may not be admitted unless the proponent

demonstrates to the court that it is more likely than not that the proffered testimony meets the

admissibility requirements set forth in the rule.” Fed. R. Evid. 702 Advisory Committee’s Note

to 2023 Amendments. In other words, the preponderance-of-the-evidence standard “applies to

the three reliability-based requirements” of Rule 702, which includes the requirement that an

expert be qualified. Id.

14 Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993).

automotive technician. See DI 29 at 12. The testimony shows that Mr. Block has a wealth of

experience inspecting vehicles, but it does not sufficiently demonstrate that he has specialized

knowledge of, for example, the design of metal bracing under the hood of a car, or how car

manufacturers design (or provide warnings for) the metal bracing.

Indeed, “generalized qualifications” may suffice to show qualification. In re Paoli, 35

F.3d at 741. But the record does not reflect that Mr. Block’s practical experience made him

“familiar” with the compartment issues that caused his injury. Moran, 476 F.2d at 290; cf.

Pineda, 520 F.3d at 244-45 (holding an expert with “expertise in the stresses and other forces

that might cause a material such as glass to fail” was substantively qualified to testify about a

liftgate shattering on a Ford Explorer — despite no qualifications “in the design of automobile

rear liftgates or the drafting of service manual instructions”).

Therefore, we reject Mr. Block’s argument that he could serve as his own expert.15

C. Mr. Block’s breach-of-warranty cause of action fails because GM did not sell

him the car that injured him.

Mr. Block brings a single cause of action alleging breaches of both express and implied

warranties. See DI 8 ¶ 42. But to recover under either theory of liability under Pennsylvania

law, a sale must have occurred. See, e.g., McGrain v. C.R. Bard, Inc., 551 F. Supp. 3d 529, 543

(E.D. Pa. 2021) (citing 13 Pa. Cons. § 2313) (“Under Pennsylvania law, an express warranty

arises out of the representations or promises of the seller.” (emphasis added)); Altronics of

Bethlehem, Inc. v. Repco, Inc., 957 F.2d 1102, 1105 (3d Cir. 1992) (“To establish a breach of

either [the implied warranty of merchantability and the warranty of fitness for a particular

purpose], plaintiffs must show that the equipment they purchased from defendant was

15 And of course we have no idea what evidence Mr. Block would use to form his expert

opinion, how he would proceed to analyze that evidence, or whether those analytical methods

hold any water.

defective.” (emphasis added)).

There is nothing to suggest that Mr. Block was sold the vehicle that injured his finger.

The only case that Mr. Block cites in support of his cause of action addresses whether “privity of

contract is required to state a claim for breach of warranty” — not whether a sale occurred.

Israel Phoenix Assur. Co., Ltd. v. SMS Sutton, Inc., 787 F. Supp. 102, 103 (W.D. Pa. 1992). And

even still, a sale of goods occurred in SMS Sutton — making the Pennsylvania Uniform

Commercial Code applicable. See id.

Without a sale, we grant GM’s motion to dismiss Mr. Block’s breach-of-warranty cause

of action.

IV. Conclusion

Because of the absence of evidence — expert or otherwise — that a jury could rely upon

to find in Mr. Block’s favor, we grant GM’s summary judgment motion. We also grant GM’s

motion with respect to Mr. Block’s breach-of-warranty cause of action.