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January 5, 2000


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 decisions.


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 that.

Q. And that secretary is Sue Lucas?

A. Yes.

Corcoran Dep. at 110-11.

Q. How long do you think you were at the University Club?

Twenty minutes to forty minutes.

Q. When you left the University Club, Sue Lucas came with you?

A. Yes.

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?

A. No.

Q. Did any indicators alight in your vehicle when driving Ms. Lucas home?

A. Nope.

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?

A. No.

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?

A. Yes.

Q. There was no trouble with the car whatsoever?

A. No.

Q. No trouble?

A. None.

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 20.
Q. But you think you were going somewhere between 20 and 30 miles per hour?

A. yes.

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 moderately.
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 this car.
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 Avenue.
. . . 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 ...

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