Opinion

Houser, D. v. Ford Motor Company

Court: Superior Court of Pennsylvania
Filed: Apr 21, 2015
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.4%

applied crashworthiness doctrine to a single collision incident

How later courts described this case

applied crashworthiness doctrine to a single collision incident
reasoning “[t]he Pennsylvania Rules of Civil Procedure do - 15 - J-A31028-14 not give [parties] an unlimited amount of time to conduct discovery”
holding trial court properly entered summary judgment against plaintiff where plaintiff did not submit an expert report before close of discovery period

Written by the judges who cited it.

The opinion

J-A31028-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DENNIS HOUSER, ADMINISTRATOR OF IN THE SUPERIOR COURT OF

THE ESTATE OF DEBRA J. BECKER, PENNSYLVANIA

DECEASED

Appellant

FORD MOTOR COMPANY AND K & H

FORD, INC.

Appellee No. 709 MDA 2014

Appeal from the Order Entered March 24, 2014

In the Court of Common Pleas of York County

Civil Division at No(s): 2008-SU-006261-01

BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.: FILED APRIL 21, 2015

Dennis Houser, administrator of the estate of Debra J. Becker,

deceased, (“Houser”) appeals from the order entered March 24, 2014 in the

Court of Common Pleas of York County, granting summary judgment in

favor of Ford Motor Company and K & H Ford, Inc., (collectively, “Ford”) and

against Houser, in this products liability action. Houser raises the following

issues: (1) whether the court erred in granting summary judgment due to a

lack of medical expert opinion; and (2) in the alternative, whether the court

erred by not allowing Houser leave to provide an expert report. Based on

the following, we affirm.

The trial court set forth the facts and procedural history as follows:

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[Houser] commenced the above-captioned action as a

result of injuries sustained by [Houser]’s sister, now Decedent,

Debra J. Becker, (hereinafter, “Decedent”) in a motor vehicle

accident on December 29, 2006 in York County, Pennsylvania.

Decedent, who was under the influence of alcohol and had

blood-alcohol level of 0.28, rear-ended a Jeep Cherokee that was

stopped at a stop sign. At the time of the accident, Decedent

owned and operated a 1995 Ford Escort GT which was purchased

from Defendant, K & H Ford, Inc. (hereinafter, “K&H”).

[Houser] avers that as a result of the accident, the

vehicle’s driver side airbag improperly deployed, causing

blunt force trauma to the Decedent and eventually death.

More specifically, [Houser]’s Complaint alleges that the

deployment of the airbag in Decedent’s vehicle caused a

rupture in Decedent’s aortic arch. [Houser] avers the

Ford Escort was defective in that it lacked an appropriate

amount of sensors to allow for timely deployment of the

airbag during a crash.

[Houser] initiated this action by filing a Writ of Summons

on December 22, 2008. [Houser] reinstated the Writ on

February 13, 2009 and March 24, 2009. On November 4, 2009,

[Houser] filed the Complaint. Defendant K&H filed Preliminary

Objections to [Houser]’s Complaint on November 24, 2009. The

matter originally came before this Honorable Court in 2010 in

which the Court sustained Defendant K&H’s Preliminary

Objections, but did not dismiss the Complaint against Defendant

K&H. On June 24, 2010, [Houser] filed a Motion for Service

Pursuant to Special Order of Court on Defendant K&H. That

Motion was granted on September 7, 2010.

On February 4, 2010, Defendant, Ford Motor Company,

filed an Answer with Affirmative Defenses. [Houser] filed a

Reply to New Matter of Defendant, Ford Motor Company, on

February 12, 2010. On December 27, 2010, Defendant K&H

filed an Answer with New Matter. [Houser] filed a response on

January 18, 2011.

On October 1, 2012, Defendant, Ford Motor Company,

(hereinafter “Ford Motor”) filed a Motion for Summary Judgment

and Brief in Support thereof. [In the motion, Ford argued

Houser had not provided any evidence to establish a defect

existed in the vehicle at the time of the accident which caused or

contributed to his damages.] Ford Motor filed a Praecipe to List

Case for One-Judge Disposition on October 1, 2012. [Houser]

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filed a response and brief in support thereof on October 29,

2012. On January 1, 2013, this Honorable Court denied

Defendant Ford Motor’s[] Motion for Summary Judgment. On

December 2, 2013, Defendant K&H Ford [and Defendant Ford

Motor] filed a Motion for Summary Judgment and Brief in

Support thereof.[1] [Ford’s] Motion for Summary Judgment

raise[d] two issues: whether Decedent is an intended user of

the motor vehicle and whether Decedent assumed the risk. On

December 24, 2013, [Houser] filed a Response in Opposition to

the Motion for Summary Judgment and a Memorandum of Law in

Support thereof. This case was listed for one-judge disposition

on January 13, 2014 and assigned to this Honorable Court on

February 4, 2014.

On February 6, 2014, [Ford] filed a Supplemental Motion

for Summary Judgment and Brief in Support thereof.

Defendants’ Supplemental Motion for Summary Judgment

raise[d] the issue of causation.

Trial Court Opinion, 3/25/2014, at 2-4 (emphasis added).

In its supplemental motion, Ford alleged the following, in pertinent

part:

5. In support of his claims …[, Houser] has identified as a

liability expert and submitted the report of Ralph L. Hensler,

Ph.D., who issued an opinion that the driver’s side airbag was

defective in that it deployed a few milliseconds later than he

believed was optimal.

…

7. The engineering opinion of R.L. Hensler only addresses what

that expert believes to have been a defect in the air bag system,

and does not purport to constitute an expert opinion as to the

cause of death, or enhanced injuries resulting from such alleged

defect, since the said witness is not a medical doctor.

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This was technically Ford Motor’s second motion for summary judgment.

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8. The Hensler report merely speculates based on statements in

the medical records that [Decedent] died because of a ruptured

aorta caused by the airbag. The Hensler report makes the

presumption that the medical records “impl[y] aggressive

contact with the deploying airbag” (page 7); and it states that

the [D]ecedent died “presumably” due to contact with the air

bag (page 2). However, the medical records do not make any

reference to the airbag causing the injury.

9. The speculative opinions of Dr. Hensler are not supported by

the medical records. The medical records do not attribute

[Decedent]’s death to an alleged late deployment of an airbag,

the theory advanced by Dr. Hensler.

10. [Houser] has not submitted the report of any medical expert

containing a competent opinion about the cause of [Decedent]’s

death, and whether her death was causally related to the alleged

milliseconds of delay in deployment of the airbag. The Hensler

report does not, for example, opine that a timely deployment of

the air bag would have led to a different result, nor does it

compare or analyze the forces to which the [D]ecedent would

have been subjected in a timely deployment versus an alleged

untimely deployment and the effect of those varying forces on

the [D]ecedent.

11. In short, [Houser]’s sole liability expert provides only an

engineering opinion; he cannot and did not issue a competent

opinion as to the cause of [Decedent]’s injury and death, and he

cannot and did not issue a competent opinion that the failure to

use an alternative design enhanced the [D]ecedent’s injuries.

Ford’s Supplemental Motion for Summary Judgment, 2/6/2014/ at 3-5

(citations and footnote omitted; italics in original). Ford indicated this case

falls under the “crashworthiness doctrine,” which is a subset of strict

products liability law. Id. at 5.2 Ford contended Houser failed to offer the

____________________________________________

The term “crashworthiness” means “the protection that a motor vehicle

affords its passengers against personal injury or death as a result of a motor

(Footnote Continued Next Page)

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requisite testimony on the “causation” element of the crashworthiness test.

Id. at 6.

On February 27, 2014, Houser filed a Response in Opposition to Ford’s

Supplemental Motion for Summary Judgment and Brief in Support thereof.

Oral argument on the December 2, 2013, Motion for Summary Judgment

and the February 6, 2014, Supplemental Motion for Summary Judgment was

held on March 13, 2014. On March 25, 2014, the trial court denied the

motion for summary judgment but granted the supplemental motion for

summary judgment based on the following:

Given the totality of the circumstances, the Court finds

that Decedent was both an intended user of the vehicle and was

using it for its intended use. The Court also finds that

assumption of the risk defense does not bar [Houser] from

recovering as [Ford] failed to submit any evidence that

[Decedent] had subjective knowledge of the defect causing the

injury and appreciated the danger involved before using the

product. Lastly, the Court finds [Houser] failed to submit

evidence establishing the causal connection between the

defect of Decedent’s airbag and Decedent’s ultimate

death.

Trial Court Opinion, 3/25/2014, at 10 (emphasis added). Houser filed a

motion for reconsideration, followed by a notice of appeal on April 23, 2014.3

_______________________

(Footnote Continued)

vehicle accident.” Kupetz v. Deere & Co., Inc., 644 A.2d 1213, 1218 (Pa.

Super. 1994).

On April 28, 2014, the trial court ordered Houser to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Houser filed a concise statement on May 15, 2014. The trial court issued an

(Footnote Continued Next Page)

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In Houser’s first issue, he asserts the trial court erred in granting

summary judgment on Ford’s crashworthiness argument, specifically his lack

of any medical expert opinion supporting the causation element. Houser’s

Brief at 8. Houser states Ford fails to cite any authority which requires that

expert testimony, including medical expert testimony, be used to satisfy the

crashworthiness test. Id. Nevertheless, he alleges there was ample

evidentiary support, which will be discussed in detail below, identifying

Decedent’s cause of death as blunt force trauma. Id. at 9.

We begin with our well-settled scope and standard of review:

Our scope of review of an order granting summary judgment is

plenary. [W]e apply the same standard as the trial court,

reviewing all the evidence of record to determine whether there

exists a genuine issue of material fact. We view the record in

the light most favorable to the non-moving party, and all doubts

as to the existence of a genuine issue of material fact must be

resolved against the moving party. Only where there is no

genuine issue as to any material fact and it is clear that the

moving party is entitled to a judgment as a matter of law will

summary judgment be entered.

Motions for summary judgment necessarily and directly implicate

the plaintiff’s proof of the elements of his cause of action. ...

Thus, a record that supports summary judgment will either (1)

show the material facts are undisputed or (2) contain insufficient

evidence of facts to make out a prima facie cause of action or

defense and, therefore, there is no issue to be submitted to the

[fact-finder]. Upon appellate review, we are not bound by the

trial court’s conclusions of law, but may reach our own

conclusions. The appellate Court may disturb the trial court’s

order only upon an error of law or an abuse of discretion.

_______________________

(Footnote Continued)

opinion pursuant to Pa.R.A.P. 1925(a) on May 19, 2014, referring to its

March 25, 2014 order and opinion as applicable. The court also denied the

motion for reconsideration on May 6, 2014.

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Stein v. Magarity, 102 A.3d 1010, 1013 (Pa. Super. 2014), quoting

DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 585-586 (Pa. Super.

2013) (citations and quotation marks omitted).

Moreover, with respect to the “crashworthiness” doctrine, we are

guided by the following:

The Pennsylvania Supreme Court has adopted the strict

products liability doctrine enunciated in Section 402(a) of the

Restatement (Second) of Torts. Webb v. Zern, 422 Pa. 424,

220 A.2d 853 (1966). As such, to submit a Section 402(a)

products liability case to a jury, it must be shown that “a product

was sold in a defective condition unreasonably dangerous to the

user or consumer, and that the defect was the proximate cause

of the plaintiff's injuries.” Walton v. Avco Corp., 530 Pa. 568,

576, 610 A.2d 454, 458 (1992). Additionally, courts of this

Commonwealth have specified that a product is defective when it

is not fit for the intended use for which it was sold. Azzarello v.

Black Bros. Co. Inc., 480 Pa. 547, 559, 391 A.2d 1020, 1027

(1978).

The crashworthiness or second collision doctrine is merely

a subset of a Section 402(a) products liability action and

routinely arises in the context of a vehicular accident. Kupetz

v. Deere & Company, Inc., 435 Pa. Super. 16, 644 A.2d 1213,

1218 (Pa. Super. 1994), appeal denied, 539 Pa. 693, 653 A.2d

1232 (1994). Historically, a Section 402(a) strict products

liability action only created liability for injuries proximately

caused by a defect where the defect also caused the accident.

Barris v. Bob’s Drag Chutes & Safety Equipment, Inc., 685

F.2d 94, 99 (3rd Cir. 1982). However, the crashworthiness

doctrine extends the liability of manufacturers and sellers to

“situations in which the defect did not cause the accident or

initial impact, but rather increased the severity of the injury over

that which would have occurred absent the design defect.”

Kupetz, 644 A.2d at 1218 (citing Mills v. Ford Motor Co., 142

F.R.D. 271 (M.D. Pa. 1990)). Therefore, in order for a

manufacturer to avoid liability, it must design and manufacture a

product that is “reasonably crashworthy”, or alternatively stated,

the manufacturer must contemplate accidents among the

intended uses of its product. Kupetz, 644 A.2d at 1218.

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…

To prevail on a crashworthiness or second collision theory in a

products liability action under Section 402(a), a plaintiff must

prove three elements. First, the plaintiff must demonstrate that

the design of the vehicle was defective and that when the design

was made, an alternative, safer, practicable design existed.

Kupetz, 644 A.2d at 1218 (citing Craigie v. General Motors

Corp., 740 F. Supp. 353 (E.D. Pa. 1990)). Second, the plaintiff

must show what injuries, if any, the plaintiff would have received

had the alternative safer design been used. Id. Third, the

plaintiff must prove what injuries were attributable to the

defective design. Id.

Colville v. Crown Equip. Corp., 809 A.2d 916, 922-923 (Pa. Super. 2002)

(footnotes omitted).4

Turning to the present matter, the trial court opined the following:

[Ford] argue[s] that [Houser] has failed to provide an

expert opinion showing that the alleged design defect in the Ford

Escort caused [Decedent] to suffer a rupture in her aortic arch.

Primarily, [Ford’s] argument focuses on the fact that Decedent’s

medical records do not provide any support to [Houser]’s

assertion that a defect of the airbag in the vehicle caused the

alleged injury. The medical records only indicate that Decedent

suffered blunt force trauma from either impact with the other

vehicle or an airbag. The medical records do not mention a

“late-firing” airbag.

[Houser] provided an expert report from R.L. Hensler,

Ph.D., an engineer. Dr. Hensler, in his report, stated that

Decedent’s airbag fired later than what he believed to be

optimal, thereby placing the Decedent within the airbag’s

____________________________________________

We note that even though Decedent was not involved in a second collision,

the crashworthiness doctrine is still applicable because Houser is advancing

a strict products liability claim based on the theory that properly designed

airbag sensors would have prevented Decedent’s death during the accident.

See Colville, 809 A.2d at 924 (applied crashworthiness doctrine to a single

collision incident).

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deployment zone. Dr. Hensler’s opinion is that Decedent’s

airbag was defective; but, because he is not a medical expert, he

does not and cannot offer an opinion establishing that the

airbag’s defect was the proximate cause of [D]ecedent’s death.

As such, [Houser] has failed to submit any evidence which

would establish that the defect of Decedent’s airbag was the

source of injury and ultimate death of Decedent. On account of

this, the Court finds that [Houser] has failed to establish the

causal link between the alleged defect of a late-firing airbag and

Decedent’s death.

Trial Court Opinion, 3/25/2014, at 9-10.

As mentioned above, Houser alleges there is ample evidence to

support his argument linking Decedent’s cause of death to the allegedly

defective sensors. Houser’s Brief at 9. He points to the following as

satisfying the burden that a prima facie cause of action existed:5 (1) the

expert report of expert, Ralph Hensler, Ph.D.; (2) the medical records and

death certificate; (3) the police incident investigation report; (4) the

testimony from the responding emergency medical technician (“EMT”), Scott

Dean; and (5) the crash investigation report completed by Calspan

Corporation, an entity that performs crash research on behalf of the United

States Department of Transportation. Id. at 9-12. With respect to the

treating physicians, the coroner, the investigating officer, and the

responding EMT, Houser argues “these fact witnesses can provide testimony

____________________________________________

Although Houser terms his argument as there are no material facts in

dispute, it is clear from the trial court’s opinion that it focused on whether

there was sufficient evidence of facts to make out a prima facie case. See

Stein v. Magarity, 102 A.3d at 1013.

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as set forth in the medical records, death certificate and police report

allowing the jury to draw the link between the defective airbag system and

the [D]ecedent’s injuries.” Id. at 12. Furthermore, he contends:

[T]he cause of death is apparent from the factual evidence in the

case and both the Court and the jury can make its own

determination from its experience vis-à-vis motor vehicle

accidents to determine if the low speed impact between the

vehicles or the extreme forces involved in the air bag[,] inflation

and the deployment “in the 150 mph range” as noted in Dr.

Hensler’s report, were responsible for the rupture of

[D]ecedent’s aorta.

Id. Houser also states, “Although Dr. Hensler is not a medical expert, his

qualifications certainly render him more than qualified to offer an opinion

about the forces involved in an air bag deployment and whether those forces

would expose a human being to ‘blunt force trauma.’” Id.

We disagree with Houser’s argument. Our review of the record reveals

no basis to disturb the court’s ruling that Houser failed to establish the

causation element of the crashworthiness test. First, the police incident

investigation report stated, in relevant part: “A Dauphin County Coroner

advised that [Decedent] had succumbed to internal injuries resulting from

blunt force trauma, and further advised result as to alcohol content in

[Decedent]’s system.” Houser’s Response In Opposition to Ford’s Motion for

Summary Judgment, 2/27/2014, Exhibit A at 6.6 Second, the post-operative

medical records indicated Decedent’s diagnosis as “[n]ear completed

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