BAKER v. BRIDGESTONE/FIRESTONE CO., (W.D.Mo. 1996)

Citation Codes

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Docket Number

No. 95-4135-CV-C5.

Motions

Motion for summary judgment : Denied

Attorney(S)

Aaron Neil Woods, Risjord James, Overland Park, KS, for plaintiffs. Robert A. Horn, Blackwell, Sanders, Matheny, Weary Lombardi, Kansas City, MO, HA. Walther, Columbia, MO, for Bridgestone/Firestone, Inc. James E. McDaniel, Margaret M. Mooney, Lashly Baer, P.C., St. Louis, MO, for General Motors Corp.

Judges

Nanette Kay Laughrey

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Smart Summary

Factual and Procedural Background

Ronald Baker and his wife brought a product liability action after Baker was injured when a wheel explosively separated while he was changing a tire on a tool truck; he was struck by component parts. The wheel that caused the injury was not original equipment on the tool truck and was manufactured in 1984, at least one year after an incomplete chassis was delivered by General Motors (GM) to a Chevrolet dealer on August 22, 1983. GM moved for summary judgment, arguing Plaintiff cannot make a submissible case because there is no proof GM sold the wheel that caused the injury.

Legal Issues Presented

Whether there is a genuine issue of material fact as to whether GM placed the injury-causing wheel in the stream of commerce, such that Plaintiff's strict liability and negligence claims can proceed.
Whether GM had an obligation to warn purchasers when it sold the incomplete chassis with CR3 wheels (an alternative theory asserted by Plaintiff), and whether factual disputes regarding wheel type preclude summary resolution.

Arguments of the Parties

Plaintiff's Arguments

Plaintiff contends law does not require the wheel to have been on the chassis at the moment GM put the chassis into the stream of commerce; Plaintiff need only show GM placed the wheel in the stream of commerce.
Plaintiff presented evidence that only GM uses the ten-bolt hole, 8 3/4 inch mounting circle found on the injury-causing wheel.
The Firestone part number on the wheel corresponds to a GM part number (though the GM part number was not stamped on the wheel).
Affidavit of Robert E. Lee (former Firestone employee) that over 95% of Firestone multi-piece rim components are sold as original equipment, and affidavit of Ottfried Hahn opining the rim was sold by GM.
Plaintiff also asserts an alternative theory that GM placed CR3 wheels in the stream of commerce with the incomplete chassis and failed to warn purchasers, which would have put purchasers on notice of the defect.

Defendant's (GM's) Arguments

GM argues Plaintiff cannot present evidence that GM sold the specific wheel that injured Plaintiff and that the wheel was on the incomplete chassis when GM shipped it on August 22, 1983.
GM relied on precedent (Baughman v. Gen. Motors Corp.) to argue it had no responsibility where it never sold or had control over the product at issue.
GM asserts the wheel that injured Plaintiff was a CR2, not a CR3, creating factual dispute relevant to Plaintiff's warning theory.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 251011, 91 L.Ed.2d 202 (1986)	Standard that an issue is "genuine" only if a reasonable juror could find for the nonmoving party (summary judgment standard).	Used to state the threshold for genuine issues of material fact resisting summary judgment.
Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 144 (3d Cir. 1987)	Authority concerning summary judgment standards.	Included with other authorities to explain summary judgment burden.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)	When the nonmoving party bears the burden, it must make a showing sufficient to establish existence of every element essential to its case.	Applied to explain Plaintiff's burden to produce specific facts to defeat summary judgment.
Bailey v. Innovative Management Inv., Inc., 916 S.W.2d 805 (Mo.App. 1995)	Missouri law requiring plaintiff to show the defective product was placed in the stream of commerce by defendant and defective at that time.	Applied to state Missouri's requirements for strict liability/product liability claims.
Gunderson v. Sani-Kem Corp., 674 S.W.2d 665, 668 (Mo.App. 1984)	Missouri precedent on necessity to show defendant placed defective product in stream of commerce and defect existed then.	Applied as part of Missouri law governing product liability elements.
Welsh v. Bowling Elec. Machinery, Inc., 875 S.W.2d 569, 571 (Mo.App. 1994)	Missouri case law on product liability showing placement in stream of commerce.	Used to support the statement of applicable Missouri law for Plaintiff's claims.
Smith v. Rapid Transit, 317 Mass. 469, 58 N.E.2d 754 (1945)	Rule that statistical evidence alone is insufficient to avoid directed verdict (and by extension summary judgment).	Relied upon to explain why Plaintiff's statistical evidence alone (95% OEM) is insufficient to defeat summary judgment.
Wetzel v. Eaton Corp., 62 F.R.D. 22 (Minn. 1973)	Contrary authority suggesting different treatment of statistical evidence.	Cited as an example of dissenting authority but not adopted as controlling.
In re DES Cases, 789 F. Supp. 552 (1992)	Example of cases where statistical evidence has been treated more favorably when particularized proof is impossible.	Noted as part of the evolution eroding strict prohibition on naked statistical proof in exceptional circumstances.
Kramer v. Weedhopper of Utah, Inc., 141 Ill. App.3d 217, 95 Ill. Dec. 631, 490 N.E.2d 104 (1986)	Support for denying summary judgment at an early stage and viewing evidence in plaintiff's favor.	Relied upon to justify denying summary judgment given the early stage of litigation and the need to view evidence favorably to Plaintiff.
Baughman v. Gen. Motors Corp., 780 F.2d 1131 (4th Cir. 1986)	Authority GM relied on where defendant had not sold or had control over the product at issue (bearing on duty to warn or ability to test).	Cited by GM but the court found Baughman not dispositive because GM had control over an identical CR3 wheel and had placed that wheel in the stream of commerce without a warning.
Verge v. Ford Motor Co., 581 F.2d 384 (3d Cir. 1978)	Authority relating to which entity (manufacturer or supplier) would be in a better position to warn purchasers.	Cited to note the question of whether Firestone or GM would have been better positioned to warn is heavily fact-dependent and inappropriate for summary judgment.
Fernandez v. Ford Motor Co., 118 N.M. 100, 879 P.2d 101 (N.M.App. 1994)	Authority on the allocation of responsibility to warn between manufacturers/suppliers.	Cited to illustrate that the question of who should warn is fact specific and not suitable for resolution on summary judgment.

Court's Reasoning and Analysis

The court began with the summary judgment standard (Fed. R. Civ. P. 56), noting the plaintiff must produce specific facts to create a genuine issue for trial. Under Missouri law, Plaintiff must show the defective product was placed in the stream of commerce by the defendant and defective at that time. GM argued Plaintiff cannot show GM sold the specific wheel; Plaintiff replied that proof the wheel was on the chassis at shipment is not required, only that GM placed the wheel in the stream of commerce.

The court evaluated the evidence offered by Plaintiff: unique ten-bolt, 8 3/4 inch mounting circle used only by GM; correspondence between the Firestone and GM part numbers (though GM's number not stamped on the wheel); affidavit of a former Firestone employee that the vast majority of Firestone multi-piece rims are sold as original equipment; affidavit opining the rim was sold by GM; and the fact the chassis had no spare when shipped, suggesting a spare could have been added later using GM-purchased components. The court held that statistical evidence alone (e.g., the 95% OEM figure) is generally insufficient to avoid summary judgment, but noted exceptions where particularized proof is impossible.

Because Plaintiff offered some additional linking evidence and the case was at an early stage—requiring the court to view evidence in Plaintiff's favor—the court found a genuine issue of material fact as to whether GM placed the wheel in the stream of commerce and therefore denied summary judgment. The court also considered Plaintiff's alternative failure-to-warn theory based on CR3 wheels GM placed in the stream; a factual dispute whether the injured wheel was CR2 or CR3 further precluded summary disposition. The court rejected GM's reliance on Baughman as dispositive given factual distinctions.

Holding and Implications

Holding: It is hereby ORDERED that Defendant's Motion for Summary Judgment (Doc. # 32) is DENIED.

Implications: The denial means Plaintiff's claims against GM may proceed; factual disputes—whether GM placed the specific wheel in the stream of commerce and whether the wheel was a CR2 or CR3—preclude summary judgment. The opinion does not announce or establish a new legal precedent; it resolves only the pending summary judgment motion by finding genuine issues of material fact that require further proceedings.

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Ronald BAKER, et al., Plaintiffs, v. BRIDGESTONE/FIRESTONE CO., et al., Defendants.

ORDER

LAUGHREY, District Judge.

I. BACKGROUND

This case involves a product liability claim by Ronald Baker and his wife. Ronald Baker was injured while he was changing a tire on a tool truck. The truck wheel explosively separated after the tire was inflated and Plaintiff was struck with the component parts of the wheel. The facts are clear that the wheel which caused Plaintiff's injuries was not an original piece of equipment on the tool truck. The tool truck itself was assembled by a Chevrolet dealer. That dealership purchased the chassis from GM. When the chassis was delivered to the Chevrolet dealer on August 22, 1983, it consisted of a power train and chassis, a front axle with two front wheels and a single rear-drive axle with four wheels. The wheel which injured Plaintiff was manufactured in 1984, at least one year after the incomplete chassis was delivered to the Chevrolet dealer, making it impossible for the wheel to be on the chassis at the time it was put in the stream of commerce. Currently before the Court is the Defendant's Motion for Summary Judgment alleging that the Plaintiff cannot make a submissible case because there is no proof that GM sold the wheel which caused injury to the Plaintiff.

II. SUMMARY JUDGMENT STANDARD

A party is entitled to summary judgment if "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." Fed.R.Civ.P. 56(c). To defeat a properly supported summary judgment motion, the nonmovant must "set forth specific facts showing that there is a genuine issue for trial." See Fed.R.Civ.P. 56(e). An issue is "genuine" only if the evidence is such that a reasonable juror could find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 251011, 91 L.Ed.2d 202 (1986); Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 144 (3d Cir. 1987). Where the nonmoving party bears the burden of proof, the burden upon that party is to "make a showing sufficient to establish the existence of [every] element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

III. DISCUSSION

Ronald Baker's claim against GM is based on strict liability and negligence. In Missouri, a Plaintiff alleging strict liability and negligence in a product liability case must show that the defective product was placed in the stream of commerce by the defendant and that it was defective at that time. Bailey v. Innovative Management Inv., Inc., 916 S.W.2d 805 (Mo.App. 1995); Gunderson v. Sani-Kem Corp., 674 S.W.2d 665, 668 (Mo.App. 1984); Welsh v. Bowling Elec. Machinery, Inc., 875 S.W.2d 569, 571 (Mo.App. 1994). GM argues that the Plaintiff will not be able to present any evidence at trial to show that the allegedly defective wheel was on the incomplete chassis when it was shipped by GM on August 22, 1983, and, therefore, is unable to show that GM placed the defective product in the stream of commerce. Plaintiff correctly points out, however, that the law does not require the Plaintiff to show that the wheel was on the chassis at the time the chassis was put in the stream of commerce. He need only show that the wheel was placed in the stream of commerce by GM. Hence, the Motion for Summary Judgment must be denied if there is a genuine issue of material fact as to whether or not GM placed the injury causing wheel in the stream of commerce.

In opposition to the motion for summary judgment, Plaintiff presented evidence that only GM uses the ten-bolt hole, 8 3/4 inch mounting circle found on the wheel which caused Plaintiffs injuries. On the other hand, GM is not the only company that sells wheels for GM cars. Plaintiff also showed that the Firestone part number on the injury causing wheel corresponds to a GM part number. It is clear, however, that the GM part number was not stamped on the disk in question. Plaintiff also pointed to an affidavit of Robert E. Lee who is a past employee of Firestone, the admitted manufacturer of the wheel in question. Mr. Lee stated: "[M]ore than 95 per cent of all Firestone multi-piece rim components, including the RH5, have been sold to original equipment vehicle manufacturers for installation as original factory equipment upon the trucks and other vehicles produced by these manufacturers." (Ex. F to P1. Mem. of Law in Opp. to Gen. Motors Corp. Mot. for Sremm. J.) That does not mean that 95 per cent of all replacement wheels are sold by GM. It only means that 95 per cent of Firestone wheels are used as original equipment. There is also the affidavit of Ottfried Hahn, who expressed the opinion that the rim base which injured the Plaintiff was sold by GM. This wheel was found on a chassis admittedly manufactured by GM and that chassis did not have a spare tire when shipped by GM, raising the possibility that a spare tire was added by the Chevrolet dealership ostensibly using component parts purchased from GM.

There is very little particularized evidence in this case to show that GM placed the wheel which injured the Plaintiff in the stream of commerce. Nor has there been a showing by the Plaintiff why more particularized evidence about the origin of wheel is unavailable. As a general rule, statistical evidence alone is insufficient to avoid a motion for directed verdict and necessarily a motion for a summary judgment. Smith v. Rapid Transit, 317 Mass. 469, 58 N.E.2d 754 (1945); Rosenberg, The Causal Connection in Mass. Explosion Cases: A "Public Law" Vision of the Tort System, 97 Har.L.Rev. 849, 855-59 (1984). Not all commentators have agreed on this approach. See Kaye, The Limits of the Preponderance of Evidence Standard Justifiably Naked Statistical Evidence in Multiple Causation, (1982 Am. B. Found. Res. J. 487); Wetzel v. Eaton Corp., 62 F.R.D. 22 (Minn. 1973). This rule is founded in large part on the desirability of forcing plaintiffs to identify specific and particularized evidence to support their case. Tribe, Trial by Mathematics, Precision Ritual in the Legal Process, 84 Harv.L.Rev. 1329 (1971). Otherwise, Plaintiffs could merely show that 95 per cent of replacement wheels are sold by one Defendant and therefore in 100 per cent of all cases that Defendant would be liable unless there was definitive evidence that the defendant did not sell the wheel. Likewise, the five per cent manufacturer would never be liable unless there was definitive evidence that it did sell the wheel. Such an approach reduces a plaintiff's burden substantially and the 95 per cent supplier is responsible for more harm than it caused. This reluctance to recognize statistical probability as a basis for a verdict has been eroded in recent times when there are insurmountable obstacles to producing particularized proof, e.g., In re DES Cases, 789 F. Supp. 552 (1992); Causation, Responsibility. Risk, Probability Naked Statistics Proof Pruning the Bramble Bush by Clarifying the Concept, 73 Iowa L.Rev. 1001, 1073-77 (1988). Plaintiff in this case has shown no such obstacle. On the other hand, Plaintiff has presented some additional evidence linking the wheel to GM and because this litigation is at such an early stage, see Kramer v. Weedhopper of Utah, Inc., 141 Ill. App.3d 217, 95 Ill. Dec. 631, 490 N.E.2d 104 (1986) and because the evidence must be viewed in the light most favorable to the Plaintiff, I deny the Defendant's motion for summary judgment.

My opinion is fortified by one of the alternative theories of recovery suggested by the Plaintiff. Plaintiffs theory is that GM had an obligation to warn purchasers when it sold the incomplete chassis with CR3 wheels. Plaintiff alleges that the wheel which injured him was a CR3 wheel, identical to the wheel which GM put on the original chassis. If GM had included a warning with the chassis, Plaintiff would have been on notice about the defect in CR3 wheels even if GM did not actually sell it. The evidence is clear that GM did insert the CR3 wheels in the stream of commerce when it sold the incomplete chassis and, according to Plaintiff, the evidence will show that the warning would have prevented the Plaintiffs injuries.

The Court does not address the legal viability of this theory because there is a clear factual dispute concerning an issue critical to the theory. GM claims that the wheel which injured the Plaintiff was a CR2 (Def. Ex. D attached to Def. Resp. to Def. Mot. For Summ. J.). Baker testified that the wheel which explosively separated had two rings, indicating a CR3 wheel. This factual dispute is a further reason for denying the motion for summary judgment.

GM's reliance on Baughman v. Gen. Motors Corp., 780 F.2d 1131 (4th Cir. 1986) is not dispositive of the issue because GM did have control over a CR3 wheel identical to the wheel which injured plaintiff and did place that wheel in the stream of commerce without a warning. Baughman was based in part on the inability of the defendant to test or evaluate or warn about a product which it had never sold. Plaintiffs theory also raises the question of whether Firestone or GM would have been in a better position to warn. See Verge v. Ford Motor Co., 581 F.2d 384 (3d Cir. 1978); Fernandez v. Ford Motor Co., 118 N.M. 100, 879 P.2d 101 (N.M.App. 1994). That question is heavily fact dependent, however, and inappropriate for resolution in a motion for summary judgment.

IV. RELIEF ORDERED

It is hereby ORDERED that Defendant's Motion for Summary Judgment (Doc. # 32) is DENIED.