The opinion of the court was delivered by: GREEN
MEMORANDUM OPINION AND ORDER
This personal injury lawsuit arises out of an automobile accident that occurred in the District of Columbia. Pending are defendants' -- Ford Motor Company and Hill & Sanders Ford (collectively "Ford") -- motion for summary judgment, plaintiffs' motion to file a surreply, and plaintiffs' motion to exclude certain of Ford's testing evidence. For the reasons stated below, plaintiffs' motions will be granted, and Ford's motion will be denied.
The following facts are not in dispute. On a midsummer's evening, July 24, 1993, plaintiff Achilles Pappas ("Pappas") found himself unable to start his pickup truck, which he had parked on the 1000 block of 6th Street N.E., Washington, D.C. A Good Samaritan, Rufus Jones ("Jones"), attempted to aid Pappas in trying to jump-start the truck. That effort failed, and while Pappas continued inspecting his truck, Jones parked his 1980 Ford Fairmont Futura one car-length in front of Pappas's truck and returned to speak with Pappas. Jones had not set the parking brake and had left the motor running. The 1000 block of 6th Street slopes from north to south. Jones had parked his car to the north of Pappas's truck. As Pappas continued to work on his truck, the two men conversed for at least two minutes. Suddenly, the Fairmont began moving in reverse, crushing Pappas's leg between the rear bumper of the Fairmont and the front bumper of his pickup truck. As a consequence of the accident, Pappas's lower right leg had to be amputated.
On two occasions during the summer of 1994 -- before this lawsuit was filed -- counsel for Pappas conducted a videotaped interview of Jones concerning the incident. Describing his actions before getting out of the car, Jones stated that he was certain that he had placed the car in park, "right on P all the way over on the end" (this statement is hereafter referred to as the "Jones statement"). Jones died shortly after the second interview. Because the interview took place before there was a lawsuit, defendants were not notified that the interview was to take place, and they therefore had no opportunity to cross-examine Jones on the facts stated therein.
Pappas's contention in this lawsuit is that Jones's Fairmont self-shifted into reverse gear and caused his injuries as a result of a defect introduced into the car by defendant Ford Motor Company ("Ford"). Specifically, Pappas alleges that the defective design of the car allows a driver to shift into "illusory park," in which the gearshift is not latched in the "Park" position and in which it is possible for the car to shift in the "Reverse" position. Such an alleged defect is not unheard of in the history of automobile usage. See, e.g., Walsh v. Ford Motor Co., 257 U.S. App. D.C. 85, 807 F.2d 1000, 1002 (D.C. Cir. 1986) (remanding for determination of whether owners of Ford vehicles alleged to have park-to-reverse problem should be certified as a class); 7 AMERICAN LAW OF PRODUCTS LIABILITY 3d § 95:170 (reviewing cases involving injuries from self-shifting in different model cars).
Ford has filed a motion for summary judgment attacking the sufficiency of plaintiffs' evidence.
A. Summary Judgment Standard
Summary judgment is appropriate when there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "The inquiry performed is the threshold inquiry of determining whether there is a need for trial -- whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). To defeat a motion for summary judgment, the non-moving party must offer more than mere allegations, see id. at 249, 106 S. Ct. at 2510-11, and has the burden of designating specific facts showing there is a need for trial by the depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). The Court's role is limited to determining if a factual controversy exists; resolving factual disputes goes beyond the Court's authority in ruling on a motion for summary judgment. See Sherwood v. Washington Post, 276 U.S. App. D.C. 404, 871 F.2d 1144, 1147 (D.C. Cir. 1989).
The materiality of any fact in dispute is determined by reference to the legal standards that apply to the cause of action. The parties dispute which line of cases outlines plaintiffs' burden at trial. Although the complaint alleges a number of theories of liability, plaintiffs state in their briefs that they are proceeding on a liability theory for defective design. Pls.' Supp. Response to Def.'s Reply Mem. (hereafter "Pls.' Surreply"). The complaint alleges theories of strict liability for a design defect and negligent design.
Under District of Columbia law, to prove that Ford is strictly liable for a park-to-reverse design defect, plaintiffs must show that: (1) the seller was engaged in the business of selling the product that caused the harm; (2) the product was sold in a defective condition unreasonably dangerous to the consumer or user; (3) the product was one expected to reach the consumer without any substantial change in the condition in which it was sold; and (4) the defect was a direct and proximate cause of plaintiffs' injuries. See Ferguson v. F.R. Winkler GMBH & Co., 316 U.S. App. D.C. 421, 79 F.3d 1221, 1224 (D.C. Cir. 1996).
To prove that the alleged park-to-reverse design defect is the product of Ford's negligence, ...