United States District Court, District of Columbia
January 5, 2000
THOMAS G. CORCORAN, JR., PLAINTIFF,
GENERAL MOTORS CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Oberdorfer, District Judge.
On August 14, 1998, the plaintiff filed a personal injury
complaint against General Motors in Superior Court. It alleged
that defects in a 1987 Chevrolet Corvette designed, manufactured
and sold by GM, caused it to go out of control so that the
plaintiff drove it into a wall (instead of the car in front of
him) in order to bring it to a
stop. The plaintiff sought compensation in the amount of
$5,000,000 in compensatory damages and $5,000,000 in punitive
damages for negligence, $5,000,000 in unspecified damages for
breach of warranty and $5,000,000 in unspecified damages for
strict liability. On September 14, 1998, GM removed the suit to
this Court. On November 5, 1998, the plaintiff was ordered to
designate experts and expert reports by February 15, 1999; he did
not do so.
On March 3, 1999, GM filed a motion for summary judgment. The
plaintiff represented that additional discovery would provide him
with proof of a defect in either the design or manufacture of his
brakes. On April 9, 1999, I denied the motion for summary
judgment without prejudice and allowed discovery to continue. On
July 15, 1999, the defendant renewed its motion for summary
judgment based on the plaintiff's continuing failure to designate
experts or expert opinions. The plaintiff opposed the motion on
August 12, 1999. On August 13, 1999, the plaintiff filed an
errata to is statement of disputed issues to correct typos and
grammatical mistakes in the original. On September 28, 1999, the
defendant replied. On September 2, 1999, the defendant filed a
motion to strike exhibits 5 and 6 from the plaintiff's opposition
because, as documents about brake failure experienced by other GM
owners and authored by either the Wall Street Journal, a GM
employee or another GM owner, they constitute hearsay. On
September 20, 1999, the plaintiff filed an opposition to the
motion to strike the exhibits. On October 1, 1999, the plaintiff
moved to amend the complaint to drop the breach of warranty claim
and disperse the damages sought under it to the other claims.
On October 1, 1999, the plaintiff moved to amend the complaint
to drop the breach of warranty claim and to add a request for
punitive damages to the strict liability count. At oral argument
on October 13, 1999, the plaintiff represented that he was
dropping the negligence, breach of warranty and strict liability
design defect claims. On October 14, 1999, the defendant
consented to the motion to drop the breach of warranty claim, but
moved to strike the request for punitive damages. On October 29,
1999, the plaintiff opposed the motion to strike.
A pretrial conference was held on December 14, 1999; it
addressed all three pending motions.
In an order dated October 15, 1999, I denied the defendant's
July 15, 1999 motion for summary judgment. I also denied as moot
the motion to exclude exhibits 5 and 6 from consideration of the
summary judgment motion since they were irrelevant to my
analysis. I stated in the order that I would issue a memorandum
explaining my ruling. Upon reflection, I have determined that the
October 15 order should be vacated and a judgment for the
defendant should be granted. Therefore, the motion to amend the
complaint is denied as moot. An accompanying order effects these
The following is undisputed: in 1987, the plaintiff purchased a
new Chevrolet Corvette manufactured by the defendant. The
plaintiff drove the car approximately 3,000 miles a year. During
the first seven-and-a-half years that the plaintiff owned the
Corvette, it passed all of its inspections and its brakes needed
no repairs. On August 18, 1995, the plaintiff was injured when,
unable to slow the Corvette to avoid colliding with a car ahead
of him, he turned it and collided with a wall.
The events leading up to the August 18 collision are also
undisputed and are well displayed in the plaintiff's deposition:
he that he drank some wine before entering his car.
It's my secretary's birthday; so I took her to the
University Club to buy her a drink. And at the same
time, I chose the white wine of the month or the red
wine of the month, I forget which.
And I had a glass of white wine, which was a full
glass of wine. And then there were three or four
tasting glasses of wine, that is, he just . . .
poured in a little bit so I could taste them. . . .
. . . I didn't finish the glasses except for the
last glass, which was the best one, and I finished
Q. And that secretary is Sue Lucas?
Corcoran Dep. at 110-11.
Q. How long do you think you were at the University
Twenty minutes to forty minutes.
Q. When you left the University Club, Sue Lucas
came with you?
Q. And you were going to drive her home?
A. I did drive her home.
Q. Did you go to straight to the car after leaving
the University Club or did you go back to the office?
A. I think I went right to my car.
Corcoran Dep. at 116.
The plaintiff testified that the car operated
normally during the drive:
Q. Did you notice any unusual sounds in your
Corvette in driving Ms. Lucas home?
Q. Did any indicators alight in your vehicle when
driving Ms. Lucas home?
Q. The brake pedal seemed normal when depressing
it, when driving Ms. Lucas home?
A. I don't remember anything unusual.
Q. Do you remember anything unusual about the car
at all in driving Ms. Lucas home?
Corcoran Dep. at 119-20.
After leaving Ms. Lucas at her home, the plaintiff continued to
his home. He drove northeast on Nebraska Avenue approaching
Tenley Circle.*fn1 Corcoran Dep. at 122-23. He testified.
Q. And while driving home before the accident, did
the brakes appear to be working fine?
Q. There was no trouble with the car whatsoever?
Q. No trouble?
Q. Were you speeding?
A. Well, the speed limit I think is 25. It's
possible I was going 25. It's possible I was going
Q. But you think you were going somewhere between
20 and 30 miles per hour?
Corcoran Dep. at 124-25.
What happened next is disputed. The plaintiff testified at his
deposition that as he neared Tenley Circle, he noticed the car in
front of him, which was 5 to 7 car lengths ahead, begin to slow.
"I could see the car ahead of me was slowing down, and I was
closing, as we say in the Navy, with the car in front of me."
Corcoran Dep. at 127.
The plaintiff testified that although he stepped repeatedly and
even "stomped" on the brake, the car accelerated:
Q. When you saw that car slowing, what did you do?
A. I put my foot on the brake, my right foot.
Q. So the car slowed in front of you and you put
your right foot on the brake.
And describe for me what happened at the point.
A. The brakes gave way and went to the floor, and I
picked my right foot up, and I — the second time I
hit the brake, I might not have — it went to the
floor. And then I hit it again, I think, fairly
And then . . . I began stomping on the brakes just
as hard as I could with my right foot. I go boom and
hold for a second, and I'd go boom and hold for a
second. . . .
I tried to — the car accelerated. I mean, it was
rolling down the hill, so it was gathering speed, and
I was about to go into this car in front of me, and I
was bashing this — the brakes with my right foot.
And just before I was going to go into this car, I
went in the left lane to avoid the car. All the time,
I kept pounding on the brakes with my right foot. And
at some point, I tried to ram it into park. . . .
And I kept — I kept smashing down the brake with my
right foot, you know, rhythmically, boom, boom, boom.
And I got into the left-hand lane, but this, you
know, it's only — it was a solution for about a
second because there was some car coming up in the
left-hand lane; so I couldn't go in the left-hand
lane. So I began to look for some way to escape the
situation without having a head-on collision with
And so I looked to my left, and there were people
going along the sidewalk, and I had to find some way
to stop this car without killing these people. And
there was a little driveway there into a parking lot,
and the parking lot parallels Nebraska; so if I could
do a 180, it was just — just by accident it was
there. And if I could do a 180 into this parking lot,
I thought I could stop the car by going up the
street, I mean, up the parking lot because the
parking lot was on roughly the same grade as Nebraska
. . . And I was hoping actually I was going to
make a 180, but the car only made a 90 degree turn.
So I went through — I went through a street light and
then went into a wall.
Q. A street light not being a traffic signal but —
A. No. It was a light to light the street.
Q. And you hit that and went through it?
A. I went right through it.
Q. And knocked it down?
A. I sure did.
Corcoran Dep. at 129-133.
The plaintiff testified that the car accelerated through the
incident. He also admitted that it is possible that he hit the
Q. When this whole event was occurring, you were
looking out the windshield and the windows, is that
A. Yes, just the windshield because the top is
down. There are no side windows up.
Q. You weren't looking at your feet?
Q. When we spoke earlier . . . I asked you if you
were sure that you did not hit the accelerator.
And I believe you told me that you could not rule
that out; is that correct?
A. Well, I can't it's impossible.
Q. . . . [Y]ou felt the car accelerating during
A. Yeah, but you know, it was accelerating because
it was falling down the
hill. It wasn't accelerating because I was hitting
Q. But you felt it accelerated?
A. It felt like it accelerated, yeah.
Corcoran Dep. at 140-41.
At his deposition, the plaintiff proffered evidence that the
car experienced an increase of speed of at least 20 miles per
hour before it hit the wall at 50 miles per hour:
Q. You mentioned in a previous letter that you hit
the wall at approximately 50 miles an hour; is that
A. It's the way it seemed. I mean I wasn't looking
at the speedometer.
Corcoran Dep. at 143-44.
The events following the accident are undisputed. At no time
after the crash did the plaintiff have an engineer inspect the
Q. Did you have an engineer look at the brakes?
Corcoran Dep. at 167.
When an inspector from the plaintiff's insurance company
checked the brakes on August 22, 1995, he found no defects:
During my inspection of Mr. Corcoran's Corvette, I
found that the brake pedal pumped up properly. By
this, I mean that when I depressed the brake pedal
there was resistance and the pedal returned to its
upright position when it was released. Beyond
checking the brake pedal, I did not inspect the
Corvette's braking system due to the extent of the
damage to the vehicle.
Jan. 21, 1999 Decl. of Tri Rust Pursuant to 20 U.S.C. § 1746. ¶
After the crash, the plaintiff's insurance company paid him
$18,000 for title to the Corvette. Corcoran Dep. at 168-69. The
insurance company then sold the car as salvage. Decl. of Kim
Zimmerman Pursuant to 28 U.S.C. § 1746, ¶ 4. The purchaser, Kim
Motor Company, Inc. represents that "[b]ased on the condition of
the Corvette, there did not appear to have been any repairs done
to the vehicle after the accident, before we purchased it." Id.
On February 23, 1996, Kim Motor sold the car to Richard Beers;
Kim Motor made no repairs to the vehicle before the sale. Id. at
After Beers purchased the car, he substantially repaired its
body and began driving it. He did not make any repairs to the
brakes until two years later:
I repaired the hood and grill assembly, including the
headlights. The car's frame was straightened in front
of the front wheels. The radiator and the windshield
were replaced. I replaced the front and rear brake
pads about two years after I started driving the
Corvette. Other than the replacement of the brake
pads, neither I nor anyone else has ever done any
repairs to the brakes or replacement of brake
components on my Corvette since I have owned the
Declaration of Richard L. Beers, Jr. Pursuant to 28 U.S.C. § 1746
Mr. Beers also represents:
I drove the car before I replaced the brake pads
and have driven the car after I replaced the brake
In the nearly three years that I have owned the
Corvette and in the approximately 11,000 miles that I
have driven the car, I have not experienced any
problems with the brakes on my Corvette. I did not
have any problems with the Corvette's brakes before I
replaced the brake pads and, likewise, I have not had
any problems with the brakes after I replaced the
brake pads. I have never experienced a brake failure
in my Corvette, and I have never experienced a
situation in which the brake pedal in my Corvette
went all the way to the floor when I depressed it.
Based on my personal experience with my Corvette, I
have no reason to believe that the brakes on the car
are defectively designed or defectively manufactured.
The brakes on my Corvette have always
performed properly and in no way out of the ordinary.
Id. at ¶¶ 4-6.
In February of 1999, a GM expert on brake systems inspected the
Corvette, then in the possession of Mr. Beers. He found no
evidence of brake failure like the plaintiff described:
I inspected both the front and rear brakes and
examined the master cylinder and booster.
The brakes on the Corvette appeared to be fully
functional and in proper working order. I inspected
the brakes for leaks and found none in the entire
system. The brake pedal was firm and provided normal
resistance when depressed. The fact that the pedal
generated and maintained pressure indicated that
there was not an internal or external leak in the
I examined the master cylinder and the booster and
found them to be in no way out of the ordinary. The
master cylinder reservoir was full, which again
indicated that there were no leaks in the brake
If there had been a brake failure in this Corvette,
I would expect to see a non-functioning brake system
at this time, unless repaired. To the contrary, my
inspection revealed a functioning brake system. . . .
My inspection revealed no evidence of brake failure
as plaintiff has described it.
It is my opinion that plaintiff's crash was the
result of driver error, rather than brake failure. It
is further my opinion that the Corvette's brakes are
not defectively designed or manufactured, and that an
alleged brake failure in the brakes did not cause
Affidavit of David I. Buist ¶¶ 7-9, 12-13.
Another GM expert attempted to reconstruct the accident based
on the plaintiff's estimates of the location and speed of the
Corvette prior to and during the crash. He determined that the
Corvette could not have accelerated 20 or 30 miles on Nebraska
Avenue without propulsion independent of the grade of the hill:
I conducted six drive-throughs of the accident
approach at speeds of 20, 23, 24, and 30 miles per
hour. When the Corvette reached the crest before the
descent on Nebraska Avenue, I allowed the Corvette to
coast until it reached the eastern entrance of the
American University driveway. The Corvette was in
"drive" for four of the tests; I down-shifted to
first gear at the crest on one simulation, and I
shifted the Corvette to neutral at the crest of the
final simulation. Using this procedure, I was able to
determine how much of an increase in speed was
attributable to the downhill grade on Nebraska
The Corvette used for the test increased in speed
between 0 and 3 miles per hour as a result of the
grade on Nebraska Avenue. When the Corvette was
allowed to cruise at the highest end of the range of
speed given by the plaintiff, 30 miles per hour,
there was no increase in speed. Shifting the Corvette
to neutral did not appear to make any perceivable
difference as to the increase in speed. Downshifting
the car to first gear resulted in a substantial loss
It is my opinion that plaintiff's Corvette could
not have increased in speed by 20 to 30 miles per
hour as a result of the slight downhill grade on
Nebraska Avenue just west of Tenley Circle. Based on
my simulations, plaintiff's Corvette only could have
increased in speed by a marginal amount, without some
other source of acceleration.
It is my opinion that because plaintiff steered his
Corvette into a sharp turn attempting to reach the
American University driveway, some of the Corvette's
forward speed would have dissipated before plaintiff
crashed into the wall bordering the driveway, unless
there was an independent source of acceleration.
Even if plaintiff's brakes had failed immediately
before the August 18, 1995 accident, any small
increase in plaintiff's speed due to Nebraska
Avenue's down-hill grade would have been lost in
plaintiff's sharp turn towards the American
Affidavit of Bruce R. Bowman at ¶¶ 17-20.
The plaintiff does not contest the findings of the GM experts.
Instead, he argues that he could not have stepped on the
accelerator because if he had, "the car would lurch forward."
Opp. To Mot. For Summ.Judg. at 18. He also asserts that the
experts are biased due to their employment with GM, id. at 3,
and that they performed incomplete and irrelevant analyses. Id.
at 5. He states:
GM's experts do not even address, much less explain,
what would have happened if plaintiff had in fact
repeatedly floored the accelerator in his 5.7 litre 8
cylinder, 300 horsepower Corvette, as they opine he
must have mistakenly done. . . . GM's proffered
"accident reconstruction" expert, Mr. Bowman, did not
even attempt to "reconstruct" what would have
happened under GM's theory of the case; in fact, he
did nothing whatsoever with respect to acceleration
tests or simulations.
The plaintiff also argues:
Mr. Buist spent at most forty-five minutes
"inspecting" the various components, including taking
thirty-one pictures of the parts "inspected", Buist
Depo. 220-241, and searching for and writing down
part numbers of the various parts "inspected". Buist
Depo. 230-231. Mr. Buist did not drive the car as
part of his evaluation, but testified that testing
the brakes could include a variety of tests he could
have performed by driving the vehicle, and that he
would have done so if the present owner had allowed
it. Id., 242-246.
Opp. To Mot. For Summ.Judg. at 19-20.
Further, the plaintiff theorizes that the brake failure was
"intermittent". Id. at 6. Accordingly, he argues that it is
consistent with his theory that neither the insurance adjuster
nor the GM expert experienced failure when they depressed the
Finally, the plaintiff seeks to retract his deposition
testimony that the car was traveling at 20-30 miles per hour
before the brakes supposedly failed, and 50 miles per hour at
[T]he opinions of GM's proffered accident
reconstruction and brake design and performance
experts assume that plaintiff's vehicle accelerated
from a speed of 20 to 30 miles per hour to a speed of
50 miles per hour from the time plaintiff first
pressed on what he testified was the brake pedal to
the time his Corvette crashed into the wall. Bowman
Depo. 160-162; Affidavit of David I. Buist ¶ 13 (GM
Ex. K). This assumption is based exclusively on
plaintiff's testimony that it "seemed" like he hit
the wall at 50 miles per hour (Corcoran Deposition,
143-144 (GM Ex. B)), and that it "felt" like he was
accelerating "as the car was falling down the hill"
immediately prior to the crash. Id. at 140.
However, plaintiff's testimony reflects only his
subjective impression of the speed at which his
vehicle was traveling just before it crashed into the
wall. Plaintiff's impressions do not establish that
the vehicle was actually traveling at that speed, or
that it was in fact accelerating immediately prior to
Additional evidence in the record gives rise to the
reasonable inference that plaintiff's estimation of
the vehicle's speed at the time of the crash
overstate the speed of the vehicle and therefore his
estimate is not a reliable foundation for the
opinions of GM's experts.
Plaintiff's estimate that he was traveling
somewhere between 20 and 30 miles per hour
immediately before he first applied the brake is just
that — an estimate;
a subjective impression of the speed at which his
vehicle was traveling. Corcoran Deposition, 125 (GM
Ex. B). Plaintiff testified that he was "moving
along" with the traffic; that he "might have been
closing the gap" with the people ahead of him, but he
didn't really remember; that it was "possible" he was
going 30, or "possible" he was going 25, or
"possible" he was going 20. Id. Given this
testimony, it is reasonable to infer that it is
"possible" that he may have been going 35 or 40 as
well, depending on how fast the traffic was "moving
. . . [A] trier of fact could reasonably conclude
from the evidence and the favorable inferences drawn
therefrom, that plaintiff crashed into the wall at
less than 50 miles per hour, and that his vehicle
was traveling at a speed greater that 20 to 30
miles per hour before the events leading to the
Opp. To Mot. For Summ.Judg. at 10-11; 16, 17, 23.*fn2
The plaintiff now questions whether the vehicle increased in
speed at all, stating in his brief: "if the car increased in
speed during this period, which is uncertain . . ." Id. at 24.
At the December 14, 1999 oral argument, the plaintiff represented
that he will not assert that any significant increase in speed
occurred. Rather, he intends to argue solely that the brakes
failed to engage.
The last disputed matter is the plaintiff's deposition
testimony that the Corvette's brakes failed a week before the
accident and that as a result, the plaintiff brought it to a
service station to be checked:
Q. Other than this accident, did the Corvette's
brakes ever fail?
Q. When was that?
A. Some days before the accident maybe a week. . . .
A. I pulled out of my driveway into the little
alley behind my house and . . . the brakes. . . . So
I started to push on the brakes, and they failed,
that is, the brakes went down and the car — there was
no braking power. The brakes sort of gave way.
And then about 10 or 15 — maybe 10 feet later, I
mean, I want to take back those feet. Sort of a
moment later, the brakes took hold and stopped the
car. . . .
Q. Did you think you had to get the brakes checked
A. I took it to a gas station.
Q. When was that?
A. Immediately . . .
Q. Did the brakes work after that?
And they worked getting into the gas station when
you slowed down to get into the gas station?
A. They worked every time until the accident, which
was somewhere between a few days and a week later.
A. . . . I told the guy, "The brakes momentarily
failed or appeared to fail. And could you check it
I'm not certain. I might have been more specific
than that. I might have said — I don't remember
exactly what I said. I do remember that he checked
the brake fluid.
Q. That guy was Martin Elwell?
Corcoran Dep at 76-79, 86-88.
The plaintiff does not remember whether Elwell inspected the
brakes or found anything wrong with them:
Q. And you said this guy Martin Elwell checked out
A. No. All I remember is that he checked the brake
Q. Was the brake fluid low?
A. I don't actually remember.
Q. Did you have to pay for the brake fluid?
A. I don't remember that either.
Q. Did he look under the vehicle at the brakes or
look at the brake pads or do anything else besides
looking at the brake fluid?
A. I think all he did was the brake fluid, but I
don't actually remember.
Q. What did he tell you in terms of your brake
A. . . . I don't remember that he told me anything.
Corcoran Dep. at 88-90.
Not only does Mr. Elwell deny finding a problem with Mr.
Corcoran's brakes, he claims that he does not even remember
looking at them:
I have no independent recollection of Mr. Corcoran
coming to the station in August of 1995 or any other
time prior to his accident and telling me about any
problem with his brakes. Nor do I have any
recollection of checking his brakes or brake fluid at
Declaration of Martin Elwell pursuant to 28 U.S.C. § 1746, ¶ 4.
The plaintiff claims that Mr. Elwell recalls the incident, but
is feigning ignorance to avoid involvement:
Q. Have you had any conversations with Martin
Elwell since the time of the accident?
A. Yes. Believe it or not, I can't remember whether
I talked to him on the telephone or I actually saw
him. He told me that he remembered my coming to the
Citgo station and remembered my telling him that —
that the car — that the brakes had momentarily
failed. And he remembered looking to see whether
there were — to see whether the — to check the brake
He said he did not remember topping up the brake
fluid. He was quite definite about that. I then asked
him — not at that time. I called him back later. . .
. I said at that time I would like to take his
statement or take his deposition. He told me that he
didn't want to give a deposition and that he was
considering — he was moving to Texas. And then when I
called him later, he refused to give me a deposition
and said that if I call him for deposition, he
Corcoran Dep at 210-12.
Mr. Elwell is not, and never has been, a mechanic. He explains:
My position at the Brookville Citgo station in 1995
(and today at the Connecticut Avenue Citgo station)
is that of cashier and gas attendant. I am not a
certified automobile mechanic, and I have never
performed mechanics jobs at the stations where I have
Elwell Decl. at ¶ 5.
The plaintiff claims that he told his wife about the first
alleged brake failure before the accident occurred. Corcoran Dep.
at 92. After the accident, the plaintiff told the claim
representative from his insurance company that he had had brake
trouble a week before the accident. Declaration of Julie A.
Sexton Pursuant to 28 U.S.C. § 1746.
Summary judgment is warranted where "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to summary judgment as a matter of law." Fed.R.Civ.P.
56(c). The evidence is viewed in a light most favorable to the
nonmoving party and that party is entitled to all favorable
inferences which may reasonably arise from the evidentiary
Beard v. Goodyear Tire, 587 A.2d 195, 198 (D.C. 1991) (internal
citations omitted). If the moving party makes an initial showing
that there is no genuine issue of material fact, the burden
shifts to the nonmoving party to show that an issue exists. Id.
The nonmoving party will be unable to establish a genuine issue
of material fact for trial unless there is sufficient evidence
which would allow a jury to return a verdict for that party.
Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S.Ct. 2505,
2511, 91 L.Ed.2d 202 (1986). Therefore, the evidence must be
viewed "through the prism of the substantive evidentiary burden."
Id., 477 U.S. at 253, 106 S.Ct. at 2513. "[I]n the event the
trial court concludes that the scintilla of evidence presented
supporting a position is insufficient to allow a reasonable juror
to conclude that the position more likely than not is true, the
court remains free to direct a judgment, Fed.Rules Civ.Proc.
50(a), and likewise to grant summary judgment, Fed. Rule
Civ.Proc. 56." Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Basically,
summary judgment is appropriate if there is no genuine dispute
about a material fact that is, if the evidence is such that no
reasonable jury could return a verdict for the nonmoving party.
Id., 477 U.S. at 248, 106 S.Ct. at 2510.*fn3
Since the plaintiff represented in his pleadings and at oral
argument that he wishes to abandon the negligence and breach of
contract counts of the complaint, the only claim to be addressed
on summary judgment is that GM is strictly liable for a
manufacturing defect in the plaintiff's Corvette. To carry the
burden on such a claim,
a plaintiff must prove by a preponderance of the
evidence 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 which the seller expected to and
did reach the plaintiff consumer or user without any
substantial change from the condition in which it was
sold; and (4) the defect was a direct and proximate
cause of the plaintiff's injuries.
Warner Fruehauf Trailer Co., Inc. v. Boston, 654 A.2d 1272
1274 (D.C.App. 1995) (citations omitted). A product may be found
defective if it has a manufacturing defect. Id. at 1274.
In a manufacturing defect case, a plaintiff may seek to prove
either a specific defect (that a specific, identifiable part of
the car was defective and caused the accident) or a general or
unspecified defect (which the jury can infer from the accident
itself). Pappas v. Ford Motor Co., 7 F. Supp.2d 22, 26 (D.D.C.
1998). Judge Joyce Hens Green has summarized the law of this
Circuit as follows:
To prove a specific defect in an automobile case,
plaintiffs generally introduce expert testimony based
on examination of the accident vehicle. (Citation
omitted). To prove an unspecified defect, plaintiffs
generally introduce circumstantial evidence, and
expert opinion based thereon, that some defect
attributable to the manufacturer must have been the
cause of the accident. (Citation omitted).
See Pappas, 7 F. Supp.2d at 26 citing Siegel v. Mazda Motor
Corp. 835 F.2d 1475, 1477 (D.C.Cir. 1987)(Siegel I) and
Siegel v. Mazda Motor Corp., 878 F.2d 435, 437 (D.C.Cir.
1989) (Siegel II).
The plaintiff represented in his summary judgment briefs and at
the October 13, 1999 oral argument that he was proceeding solely
on a theory of a general manufacturing defect. At the pre-trial
conference on December 14, 1999, however,
the plaintiff indicated that he may introduce a specific defect
theory; he mentioned that a defect in the master cylinder may
have caused the brakes to fail.
The plaintiff's specific defect theory implicates technical and
scientific knowledge of how the master cylinder works and
malfunctions. If the theory is "so distinctly related to some
science, profession or occupation as to be beyond the ken of the
average layperson," controlling caselaw requires the plaintiff to
proffer expert testimony to explain the theory to the jury. Hull
v. Eaton Corp., 825 F.2d 448, 455 (D.C.Cir. 1987) (citations
omitted); Beard, 587 A.2d at 200; District of Columbia v.
Freeman, 477 A.2d 713, 719-20 (D.C. 1984).
The theory that the master cylinder in the plaintiff's Corvette
had a defect is one for which precedent requires expert
testimony. Average lay people do not possess the requisite
knowledge to determine whether a defect in the master cylinder
could have caused the plaintiff's crash. Yet, the defendant has
not proffered an expert who inspected his Corvette's master
cylinder, or who will testify that a defect in it would cause the
kind of malfunction the plaintiff allegedly experienced. He also
offers fails to proffer an expert who will testify either that
such a malfunction would and could occur twice during the life of
the car and never again, or that such a malfunctioning master
cylinder would lack any trace of the malfunction after it
occurred. Requiring the plaintiff to support his theory with an
expert is especially necessitated by GM's undisputed proffer of
an expert who is prepared to testify that he found no evidence of
a malfunction in the master cylinder, and that if one occurred,
physical evidence would remain until the malfunction was fixed.
Since the plaintiff has proffered neither an expert nor physical
evidence to support his theory or rebut GM's expert, he is
precluded as a matter of law from proceeding on a specific defect
The plaintiff may proceed without an expert on a general defect
theory if the circumstantial evidence is sufficient for him to
carry his burden. To prove a general manufacturing defect the
plaintiff must proffer:
(1) evidence tending to negate causes for the
accident other than a defect in the car, and
(2) evidence tending to show that the
defendant-manufacturer introduced into the car
whatever defect might have existed. . . . Proof that
the product was new would warrant a jury inference
that a defect, if there was one, existed at the time
the product entered the stream of commerce.
McFarlane v. Caterpillar, Inc., 974 F.2d 176, 179 (D.C.Cir.
1992) (emphasis added).
Our Circuit stated in 1977 that the proof required to meet
these two elements is not great. See Stewart v. Ford Motor Co.,
553 F.2d 130, 137 (D.C.Cir. 1977). In 1987, however, our Circuit
instructed that in order to maintain a manufacturing defect claim
against a motion for judgment as a matter of law, a plaintiff
must show that it is more likely than not that the accident was
caused by a mechanical defect attributable to the manufacturer.
See Siegel I, 835 F.2d at 1480.
At a minimum, meeting this standard requires the
plaintiff to offer evidence showing difficulties with
a vehicle prior to, or at the time of, the accident
and tending to negate causes other than a defect in
the vehicle, including a "reasonably specific
negation of driver error". (citations omitted). We
have found several factors relevant to this showing:
the age of the vehicle, its service history and
testimony as to the possibility of alternative
causes. (citations omitted). It is not enough for a
plaintiff to prove that a mechanical defect was
capable of causing the accident. In the absence of
evidence that one possible explanation is more
probable than another, the jury will not be allowed
to speculate as to which actually caused it.
McFarlane, 974 F.2d at 180.
In addition a court appraising a motion for judgment as a
matter of law
"must consider all of the evidence offered by the
parties," mindful that "the question for us is not
whether there was some evidence, but whether, in
terms of `the actual quantum and quality of proof
necessary to support liability', there was sufficient
evidence upon which a jury could properly base a
verdict for the [plaintiff] . . ." (citations
Siegel II, 878 F.2d 435, 437.
At this stage, the assertions of the nonmoving party must be
considered true. The plaintiff alleges that while driving his 300
horsepower Corvette on a slight downgrade at between 20 and 30
miles per hour, he was coming too close to the car in front of
him; he attempted to apply the brakes, the car did not slow down,
but rather served to accelerate to as much as 50 miles per hour;
he swerved into the oncoming lane, swerved back, turned his car
90 degrees into a driveway and struck a wall. He asserts that the
Corvette's one previous brake failure, to wit, a single episode
of failure and re-engagement occurred during the week before the
accident. He claims that he took the car to a service station to
be inspected and that a Martin Elwell inspected the brakes and
found nothing wrong. Mr. Elwell disavows any knowledge of this
incident, but the plaintiff claims that he fabricated the denial
to avoid involvement in the case. The plaintiff also claims that
he told his wife and an insurance adjuster about the initial
brake failure. He does not unequivocally deny that he stepped on
the accelerator; in his inexpert opinion, however, if he had
stepped on the accelerator instead of the brake the Corvette
would have "surged" forward.
There is additional undisputed evidence that before the
accident, the plaintiff had driven his car for approximately
23,000 miles over a seven and a half year period without any
brake failure. After the accident, Mr. Beers drove the car
another 11,000 miles without any brake failure. Neither owner of
the car had any repairs done to the brakes except for the
replacement of the brake pads two years after the accident.
Indeed, during his December 14 oral argument the plaintiff's
counsel asserted that the brakes are in the same condition today
that they were in when they left GM. In addition, neither the
plaintiff's insurance adjuster nor GM's expert, both of whom
inspected the plaintiff's car, found any indication of brake
failure. GM's reconstruction expert was of the opinion that the
car could not have accelerated 20 or 30 miles without propulsion
independent of gravity. Finally, undisputed evidence shows that
the plaintiff consumed some wine shortly before the accident.
In McFarlane, our Circuit affirmed a directed verdict granted
by the trial court in a manufacturing defect case due to the
plaintiff's failure to negate possible alternate explanations for
the accident at issue. Id. at 180. Mr. McFarlane's accident
involved a bulldozer, which was seven months old, that had
experienced difficulties with its hydraulic system since its
delivery. Id. at 176. Numerous mechanics had investigated and
tried to fix the system. Id. The accident occurred when the
bulldozer lost all power and started to roll down a fifty-foot
slope. Id. Mr. McFarlane, who had considerable experience
operating bulldozers, tried to apply the brakes with the foot
pedal. Id. The brakes failed to engage, so Mr. McFarlane
unsuccessfully tried to stop the vehicle with the bulldozer
blade. Id. Lastly, Mr. McFarlane attempted to shift the
bulldozer into gear. Id. It would not shift. Id. Mr.
McFarlane testified that in the morning on the day of the
accident he had been using the bulldozer, and he had experienced
mechanical difficulties with gears, the emergency lights had
flashed and the instruments indicated that the pressure was low.
Id. Someone tried to fix the bulldozer at that time. Id. at
181. Immediately following the accident, the General
Superintendent from Mr. McFarlane's place of employment inspected
and failed to find any mechanical problem. Id. at 180.
The District Court granted judgment j.n.o.v. pursuant to
Federal Rule of Civil Procedure 50(b) because the "`meager
circumstantial evidence' of a defect (citation omitted)
consisting only of Mr. McFarlane's `not unbiased' testimony that
he pressed the brake pedal and it did not work, (citation
omitted) was not sufficient to show a general defect under the
District of Columbia law." Id. at 178. Likewise, if the instant
plaintiff proffers no more evidence than his own "not unbiased"
testimony that he stepped on the brake and it failed to engage,
then the plaintiff cannot meet the burden of proving a general
defect under District of Columbia law.
Persuasive to our Circuit in McFarlane was that the plaintiff
"failed to offer sufficient testimony to negate the possibility
of alternative explanations for the accident." Id. at 180. The
McFarlanes had claimed that no evidence suggested operator error,
but the Circuit determined that the inspection immediately
following the accident, which revealed no mechanical defect,
indicated that operator error had occurred. Id. The McFarlane
Court also emphasized that the plaintiff's testimony on
cross-examination "that he tried to apply the brakes with his
right foot, was inconsistent with his deposition testimony that
he normally applied the brakes with his left foot and the
accelerator with his right." Id. Finally, in McFarlane, the
District Court deemed self serving testimony by the plaintiff
denying driver error biased and insufficient to negate alternate
explanations for the accident; our Circuit affirmed. Id. at
177, 181. The Circuit agreed with the District Court's finding
that "[i]t is entirely possible, as Caterpillar suggests, that
Mr. McFarlane inadvertently stepped on the decelerator [sic]
instead of the brakes." Id. at 180 (internal citation omitted).
Our case is similar to McFarlane in many ways. First, an
insurance adjuster inspected the Corvette's brakes within a week
of the accident and failed to find a problem. The plaintiff
himself insists that the brakes are in the same condition today
as they were in at the time of the accident, yet the failure has
not reoccurred, and no experts have found any problem with the
brakes. Second, the plaintiff offers inconsistent testimony about
whether the car accelerated before the crash. The plaintiff
claimed at his deposition that the Corvette accelerated to 50
miles per hour after he stepped on what he thought was the brake,
and that during the relevant period leading up to the crash, he
was not looking at his feet. After GM's expert asserted that the
Corvette could not have accelerated 20-30 miles per hour in the
few seconds prior to the accident without propulsion independent
of the grade of the hill, the plaintiff changed his theory and
asserted that the car did not accelerate, but that the brakes
just failed to engaged. Third, the only evidence indicating
mechanical failure and negating driver error is the plaintiff's
self serving testimony. He asserts without independent
corroboration that the brakes failed and re-engaged during the
week before the accident.*fn4 He also theorizes that the gas
station attendant who inspected the car after the first alleged
failure is feigning ignorance to avoid involvement in the case.
Further, the plaintiff argues that he could not have
inadvertently stepped on the accelerator because the Corvette
lurches forward when the accelerator is pressed, no such lurch
occurred at the time of the accident and the 300 horsepower car
would have accumulated an enormous amount of speed if he had
"stomped" on the accelerator several times.
The lack of independent evidence to corroborate the plaintiff's
inconsistent, self serving testimony and inferences that a
reasonable jury might draw from the defendant's consumption of
wine shortly before the crash sustain the "the possibility of
alternative explanations for the accident."*fn5 McFarlane at
180. Indeed, the plaintiff's testimony does not foreclose a
reasonable juror from concluding that the alleged first incident
of brake failure was also the result of driver error, or that
during the second incident, the plaintiff stepped on both the
accelerator and the brake in such sequence that the car briefly
accelerated as he once testified, to such an extent as to
overwhelm the effect of his subsequent application of the brakes
in the brief interval before the struck the wall, or both.*fn6
Even if the plaintiff had enough evidence to negate alternate
causes of the accident, he has insufficient evidence to show that
the age and service history of his car support an inference of a
manufacturing defect. The Corvette was seven and a half years old
when the accident occurred. The plaintiff had driven it
continually, if intermittently, throughout the seven year period
of his ownership and had never experienced brake trouble. He has
not produced an expert who can testify that after seven years,
brake failure would suddenly occur due to a manufacturing defect,
but leave no physical evidence of the failure. The plaintiff has
also produced no evidence to support a claim that brake failure
would occur twice within a week, but then not reoccur. Finally,
although brake failure in a new car gives rise to the inference
that a defect existed when the car entered the stream of
commerce, McFarlane at 179, this inference is unavailable to
the plaintiff, whose complaint involves a seven and a half year
old car which he drove approximately 23,000 miles without
The plaintiff has failed to proffer evidence that negates
alternate explanations for driver error or indicates that the age
and service history of the Corvette support an inference of a
manufacturing defect. He would have this Court ask a jury to
speculate as to the cause of the crash. Our Circuit expressly
prohibits this jury reach. Since a reasonable jury could not find
that it is more probable than not that a defect caused the crash,
an accompanying order grants summary judgment.*fn7