# McElrath v. FCA US LLC

> District Court, N.D. Alabama · October 25, 2022

URL: https://www.frixlaw.com/law-library/cases/9991408

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** October 25, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION

TERRELL MCELRATH, ]
]
Plaintiff, ]
]
v. ] Case No.: 1:20-cv-01235-ACA
]
FCA US LLC, ]
]
Defendant. ]

MEMORANDUM OPINION
This case comes before the court on Defendant FCA US LLC’s amended
motion for summary judgment. (Doc. 30). Plaintiff Terrell McElrath asserts one
claim under the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”)
and state law claims for negligence, breach of implied warranty of merchantability,
and wantonness against FCA arising out of a car crash. (Doc. 1). Mr. McElrath
alleges that FCA caused the crash and his resulting injuries by manufacturing a
vehicle with a dangerously defective cruise control system. (Id. at 1–2 ¶¶ 1–4).
FCA moves for summary judgment pursuant to Rule 56 of the Federal Rules
of Civil Procedure, asserting that no genuine dispute of material fact exists and that
it is entitled to judgment as a matter of law. (Doc. 30). Because Mr. McElrath cannot
show that the alleged defect caused his injures, the court WILL GRANT the
amended motion for summary judgment.
I. BACKGROUND
On a motion for summary judgment, the court “draw[s] all inferences and

review[s] all evidence in the light most favorable to the non-moving party.”
Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012)
(quotation marks omitted).

FCA manufactured the vehicle at issue in this case, a 2014 Ram 1500 pickup
truck. (Doc. 36-2 at 2). On September 23, 2018, Mr. McElrath was driving the truck
east on Goodwater Highway in Talladega County, Alabama. (Doc. 36-1 at 7). The
truck was towing an ATV on a trailer. (Id.). Mr. McElrath testified that at some point

he engaged the cruise control set at 55 mph. (Doc. 29-3 at 21). A few minutes later,
he attempted to disengage cruise control by tapping on the brake pedal. (Doc. 36-1
at 7). When he tapped on the brake pedal, the truck “suddenly and uncontrollably”

accelerated to about 70 mph. (Id.). He kept tapping on the brakes to make the truck
stop but the truck kept accelerating. (Doc. 29-3 at 23). As a result, he lost control of
the truck, the trailer hit the back of the truck, and the truck careened off the highway
and hit a tree. (Doc. 36-1 at 7–8). The impact knocked him unconscious, and he had

to be airlifted to a hospital. (Id. at 8).
At the time of the crash, the truck was subject to an open safety recall, Safety
Recall U61, related to the cruise control system. (Doc. 29-4; doc. 29-5 at 7; see doc.

34 at 6). The recall notice provides:
The fault handling strategy of the Powertrain Control Module
(PCM) software on your vehicle does not remove positive torque
requests from the engine controller if the CAN-C bus stops
communicating while the cruise control is requesting positive torque.
In the instance of a short in the vehicle causing the CAN-C bus to stop
communicating while the cruise control is active and the vehicle speed
is below the set speed such that the cruise control system is requesting
positive torque at the exact moment of the short, it is possible for a
positive torque request to be locked on the PCM which may result in
either the vehicle maintaining its current speed or possibly accelerating.
If the driver does not shift to neutral or apply the brakes to stop the
vehicle this condition can cause a vehicle crash without warning.

(Doc. 29-4 at 2) (emphasis in original). The PCM is the computer that controls the
speed of the engine and the CAN bus1 is a network that allows computer modules in
the truck to exchange information. (Doc. 29-5 at 5). So, if cruise control is engaged
and the truck is traveling slower than the set cruise control speed, then the cruise
control system uses the CAN bus to tell the PCM to make the truck accelerate. (See
doc. 29-2 at 19–20; doc. 29-5 at 5, 7). But, according to the recall notice, if the CAN
bus fails because of a short while the truck is accelerating to the cruise control speed,
then the cruise control system would have no way to tell the PCM that the truck has
reached the cruise control speed, and the PCM therefore might be locked in the
accelerating state. (See doc. 29-2 at 19–20; doc. 29-4 at 2; doc. 29-5 at 5, 7).
The truck contained an occupant restraint control (“ORC”) computer that
recorded pre-crash data in a crash data retrieval (“CDR”) file. (Doc. 29-2 at 11; doc.

1 The parties use the terms “CAN-C bus” and “CAN bus” interchangeably. Therefore, the
court will as well using whatever convention is contained in the cited testimony.
29-5 at 7). The ORC receives information from different modules in the truck
through the CAN bus. (Doc. 29-2 at 12; doc. 29-5 at 8). The ORC measures

information like vehicle speed, odometer, cruise control status, accelerator pedal
percentage, brake pedal percentage, and more. (See doc. 29-2 at 14; doc. 29-5 at 8).
The CDR file from Mr. McElrath’s truck contained data for 5.4 seconds before

the crash. (Doc. 29-2 at 12; doc. 29-5 at 8). Experts for both parties stated, and Mr.
McElrath admitted, that the CDR file indicated that the truck was traveling at
approximately 70 mph for approximately five seconds before impact, the brake pedal
was applied approximately three seconds before impact, and the cruise control

system was off and never engaged during the entire 5.4 seconds before impact. (Doc.
29-2 at 12; doc. 29-5 at 8; doc. 37 at 4–8).
R. Patrick Donahue, who Mr. McElrath retained as an expert to inspect the

truck and opine as to the cause of the crash, concluded in his expert report that “[t]he
testimony of the driver”—i.e., that the cruise control failed to disengage when Mr.
McElrath pressed the brake pedal and the truck kept accelerating—“is consistent
with the defective failure mode described in the recall documents.” (Doc. 29-5 at 9).

Mr. Donahue supported his opinion with a particular diagnostic trouble code
(“DTC”), U0001-00, triggered by the radio frequency hub and the instrument panel
cluster in the truck. (Id. at 10). According to Mr. Donahue, the DTC indicated that

the CAN bus failed at some undetermined time before the crash, which would be
consistent with the recall condition. (Id. at 9–10). Mr. Donahue did not know exactly
when the DTC occurred because of an inexplicable discrepancy between the

odometer data from the DTC and the CDR file. (Id.). However, based on that
odometer data, he testified that the DTC happened within the four miles before
impact or was caused by the crash itself. (Doc. 29-5 at 9–10; doc. 29-7 at 37). The

DTC was “stored” as opposed to “active,” meaning that the condition that caused
the DTC was no longer present when he scanned the truck. (Doc. 29-5 at 9–10; doc.
29-7 at 39). Mr. Donahue also testified that he did not have sufficient information to
conclude that the CAN bus failure identified in Safety Recall U61 caused Mr.

McElrath’s truck to accelerate and crash. (Doc. 29-7 at 30).
Lisa Fodale was deposed as FCA’s Rule 30(b)(6) corporate designee. (Doc.
29-6). She testified extensively about the CAN bus, DTCs, and the recall condition.

(See, e.g., id. at 25–41). Mr. McElrath relies particularly on her following testimony
in asserting that his truck experienced the recall condition (see doc. 37 at 7–10, 15–
17, 19):
• “[I]f you have a short to ground, then[] the modules that communicate

through CAN bus C would not be able to communicate.” (Doc. 29-6 at 29).
• The failure of the CAN bus causes the U0001 DTC.2 (Id. at 16, 19, 24).

2 The parties refer to DTC U0001-00 and DTC U0001 interchangeably. Therefore, the
court will as well using whatever convention the cited testimony does.
• Prior to fixing the recall condition, “when the diagnostic trouble code
U0001 was set and the CAN-C bus was down, there would be no further

communication if the cruise control is engaged; it would just continue to
be engaged,” and, in other words, “if the U0001 DTC was set . . . there was
nothing that told the cruise control or nothing that controlled cancelling

cruise control.” (Id. at 19).
• She described the recall condition consistent with the recall notice and as
set out above. (See id. at 32–33). In particular, she testified that the truck

could continue accelerating past the cruise control speed if the recall
condition occurred. (Id. at 32).
• The recall fix was only a software change, after which cruise control would
be cancelled in the event of a U0001 DTC while cruise control was

engaged. (See id. at 20, 36–37).
• FCA tested the recall condition in October 2017 by forcing the CAN bus
to fail in a test vehicle, the U0001 DTC appeared as expected, and though

there was supposed to be “a reaction to that diagnostic trouble code that
[was] suppose[d] to shut off cruise control at that time,” that reaction “had
not been properly implemented in the software.” (Id. at 19).
In addition, the record contains documentation of Society of Automotive

Engineers Standard J195, a recommended “series of engineering guidelines for the
design of an automatic vehicle speed control” issued in 1970. (Doc. 36-6). Standard
J195 recommends that a cruise control system “shall be deactivated upon application

of the service brakes,” and “shall be capable of deactivation” in the event of
“[f]ailure of any power source to the device,” “short circuit of electrical leads of the
device,” or “[f]ailure of other vehicle components upon which the device is

dependent for function.” (Id. at 1–2). According to Mr. Donahue, “[t]he defective
failure mode as outlined in the recall documents is a violation of this provision of
the Standard.” (Doc. 29-5 at 7).
II. DISCUSSION

In deciding a motion for summary judgment, the court must determine
whether, accepting the evidence in the light most favorable to the non-moving party,
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);

see also Hamilton, 680 F.3d at 1318. “[T]here is a genuine issue of material fact if
the nonmoving party has produced evidence such that a reasonable factfinder could
return a verdict in its favor.” Looney v. Moore, 886 F.3d 1058, 1062 (11th Cir. 2018)
(quotation marks omitted).

Mr. McElrath brings four claims against FCA under Alabama law: (1)
violation of the AEMLD; (2) negligence; (3) breach of implied warranty of
merchantability; and (4) wantonness. (Doc. 1 at 8–12). All of Mr. McElrath’s claims

in this case are based on his allegation that the defect identified in Safety Recall U61
caused his accident. Specifically, he argues that his truck was defective because the
CAN-C bus experienced a short circuit while cruise control was engaged, and when

he tried to disengage the cruise control, the truck accelerated suddenly. (Doc. 1 at ¶¶
26–28, 36). FCA moves for summary judgment on all of Mr. McElrath’s claims,
asserting that Mr. McElrath failed to produce sufficient evidence that the alleged

defect in his truck caused the crash. (Doc. 34 at 3–4; id. at 18).
1. AEMLD Claim
“The AEMLD is a judicially created accommodation of Alabama law to the
doctrine of strict liability for damage or injuries caused by allegedly defective

products.” Keck v. Dryvit Sys., Inc., 830 So. 2d 1, 5 (Ala. 2002). To succeed on an
AEMLD claim, a plaintiff must “affirmatively show a defect in the product” and
“that the defect caused the injury.” Verchot v. Gen. Motors Corp., 812 So. 2d 296,

301 (Ala. 2001) (quotation marks omitted); see Sears, Roebuck & Co., Inc. v. Haven
Hills Farm, Inc., 395 So. 2d 991, 995 (Ala. 1981) (“The burden of proof rests with
the injured consumer to prove that the product left the defendant’s control in an
unreasonably dangerous condition not fit for its expected use, and that which

rendered the product in such an unfit condition in fact caused the injury.”)
FCA argues that Mr. McElrath’s AEMLD claim fails because he has not
produced expert testimony showing the existence of a defect or that the defect caused

his injuries. (Doc. 34 at 7–18). Although a plaintiff need not always produce expert
testimony to establish an AEMLD claim, “because of the complex and technical
nature of the product and in order to present evidence from which a lay jury may

reasonably infer that a defective condition of the product was the cause of the
product’s failure and the cause of the resultant injury to the plaintiff, expert
testimony is usually essential and, therefore, usually required.” Brooks v. Colonial

Chevrolet-Buick, Inc., 579 So. 2d 1328, 1332 (Ala. 1991) (emphasis in original).
The precise systems involved here are the PCM software and the CAN bus which
communicate with one another to operate the cruise control function in a truck. (Doc.
1 at ¶¶ 27–28; see also doc. 29-5 at 5). Whether, as alleged, the CAN bus stopped

working because of a short in the truck and did not properly send messages to the
truck’s PCM to correctly operate the cruise control is “complex and technical.”
Brooks, 579 So. 2d at 1332. Therefore, for Mr. McElrath to show that this purported

defect caused his injuries, he must support his claim with expert testimony.
The court has strong reservations about whether Mr. McElrath has presented
evidence showing that the presence of the alleged defect in his truck. But even if he
had, his AEMLD claim cannot survive summary judgment because his expert, Mr.

Donahue, did not opine that the alleged defect caused his accident.
Generally, a plaintiff need not “establish the specific defect that caused his
injury.” Goree v. Winnebago Industries, Inc., 958 F.2d 1537, 1541 (11th Cir. 1992)

(citing Sears, Roebuck & Co., Inc., 395 So. 2d at 995). But here, Mr. McElrath’s
complaint narrows the scope of any potential defect that could have caused his
accident. The complaint identifies one and only one alleged defect: the defect

identified in Safety Recall U61 which on its face requires both (1) a short in the truck
causing the CAN bus to stop communicating; and (2) that cruise control is engaged.
(Doc. 29-4 at 2). Mr. McElrath’s expert’s testimony does not establish that either of

these conditions existed at the time of the crash, and therefore, the alleged defect
could not have caused Mr. McElrath’s injuries.
Mr. Donahue has “no specific evidence” to show that that the CAN bus
shorted in the 5.4 seconds prior to the crash, and he agrees that data in the CDR file

indicates that the CAN bus was functioning just before the accident. (Doc. 29-7 at
30; see id. at 29–30). He also testified that he would “need more information” to
offer an opinion that “there was, in fact, a short in the CAN bus C that resulted in

the recall condition and caused the acceleration of” Mr. McElrath’s truck. (Id at 30.;
see also id. at 31 (stating that it was not his opinion that a short in the CAN bus
consistent with the recall condition “caused the vehicle to accelerate and be in an
accident”). Mr. Donahue also agrees that the black box data from the truck

demonstrates that cruise control was not engaged at the time of the accident and that
Mr. McElrath was depressing the accelerator pedal before applying the brakes in the
seconds before the crash. (Doc. 29-7 at 33; see also doc. 29-5 at 8).
Because Mr. McElrath has not offered expert testimony demonstrating that
the alleged defect caused his truck to crash, Mr. McElrath’s AEMLD claim fails as

a matter of law and FCA is entitled to summary judgment.
2. Remaining State Law Claims
Mr. McElrath’s claims for negligence, breach of implied warranty of

merchantability, and wantonness all require him to show that FCA’s conduct caused
his injuries. See Rutley v. Country Skillet Poultry Co., 549 So. 2d 82, 85 (Ala. 1989)
(“The necessary elements for recovery under a negligence theory are duty, breach of
that duty, proximate cause, and injury.”); Sparks v. Total Body Essential Nutrition,

Inc., 27 So. 3d 489, 492 (Ala. 2009) (“In an action based on breach of warranty, it is
of course necessary to show not only the existence of the warranty but the fact that
the warranty was broken and that the breach of the warranty was the proximate cause

of the loss sustained.”) (quoting § 7–2–314, Ala. Code 1975, Official Comment,
¶ 13) (emphasis in original); Brown v. Turner, 497 So. 2d 1119, 1120 (Ala. 1986)
(“In order for the trial court to find a party guilty of wanton conduct, it must be
shown that with reckless indifference to the consequences the party consciously and

intentionally did some wrongful act or omitted some known duty, and that this act
or omission produced the injury.”).
As discussed above, see supra pp. 9–11, Mr. McElrath has not shown that the

alleged defect caused the accident. The same analysis applies with respect to his
remaining state law claims. Because he cannot show causation, his claims for
negligence, wantonness, and implied warranty of merchantability fail as a matter of
law, and FCA is entitled to summary judgment on these claims.
Il. CONCLUSION
For the reasons explained above, Mr. McElrath has not produced sufficient
evidence to raise a genuine dispute of fact as to whether a defective and unreasonably
dangerous condition in his truck caused the crash and his resulting injuries.
Accordingly, the court WILL GRANT FCA’s amended motion for summary
judgment and WILL ENTER SUMMARY JUDGMENT in favor of FCA and
against Mr. McElrath on all of his claims.
The court will enter a separate order consistent with this memorandum
opinion.
DONE and ORDERED this October 25, 2022.
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9991408. Public record. Not legal advice.