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?
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?
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.
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?
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?
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?
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 ...