Product Liability, Publications

The Seventh Circuit Confirms the Requirement for Expert Testimony under the "Consumer Expectations" Tests

January 1, 2012

A recent opinion from the United States Court of Appeals for the Seventh Circuit affirmed a district court’s order granting summary judgment in favor of a defendant-manufacturer when the plaintiffs failed to present expert testimony in support of their design defect case, prosecuted under the "Consumer Expectations" test.

In Show v. Ford Motor Co., 2011 U.S. App. LEXIS 19203 (7th Cir. 2011), plaintiffs David Show and Maria Federici were the driver and passenger, respectively, in a 1993 Ford Explorer, which was struck near its left-rear wheel by another vehicle, while traveling through an intersection at approximately 30 miles per hour.  The impact caused the Explorer to roll over injuring the driver and passenger who then filed suit against Ford in state court alleging that the design of the vehicle rendered it unstable and thus defective.  The case was removed to federal court and the parties consented to the magistrate’s authority to enter a final order pursuant to 28 U.S.C. § 636(c).  At the close of discovery, plaintiffs had not disclosed an expert witness to testify about the vehicle’s design.  Believing that the case could not be submitted to the jury without expert testimony to support it, the magistrate granted summary judgment in favor of Ford and the plaintiffs appealed.

While conceding that expert testimony would be essential in a product liability case tried under the risk-utility test, plaintiffs argued that under the consumer expectation test, the jurors, as consumers themselves, could use their own experience to apply the test.  Under this test,  a plaintiff may attempt to establish the defective and unreasonably dangerous condition that gave rise to the accident and the resultant injuries by introducing evidence that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.  See Mikolajczyk v. Ford Motor Co., 231 Ill.2d 516, 526-27, 901 N.E.2d 329, 335-36 (2008) (discussing both the consumer expectation test and the broader risk-utility test as alternative methods of proof by which a plaintiff may attempt to demonstrate the unreasonably dangerous condition of product in a design-defect case).

A sentence from the Illinois Supreme Court’s decision in the Mikolajczyk case appeared to support the plaintiff’s position that no expert testimony is needed in order to proceed under the consumer expectation test:  “No evidence of ordinary consumer expectation is required because the members of the jury may rely on their own experiences to determine what an ordinary consumer would expect.”  231 Ill.2d at 554, 901 N.E.2d at 352.

The Seventh Circuit, however, interpreted this sentence to relate only to what the ordinary consumer expects, and not to the fundamental issues of defect and causation.  For example, the court said, the absence of expert testimony left unanswered critical questions such as why the plaintiffs’ Explorer rolled over, what design changes could have reduced the likelihood of rollover and by how much, and whether the precautions needed to reduce the rate of rollovers would be cost-justified.  Answers to these questions, said the court, require “some geometry and algebra; jurors’ unguided intuitions will not solve the questions.”  2011 U.S. App. LEXIS 19203 at p.11.

The court took note of Illinois Appellate Court opinions that declare expert testimony to be essential in design-defect cases in which aspects of a product’s design or operation are outside of the scope of the ordinary lay person’s knowledge.  See, e.g., Baltus v. Weaver Division of Kidde & Co., 199 Ill.App.3d 821, 834-36, 557 N.E.2d 580, 588-90 (1990); Henry v. Panasonic Factory Automation Co., 396 Ill.App.3d 321, 326-27, 917 N.E.2d 1086, 1091-93 (2009).

While noting that the Illinois Supreme Court has not yet considered the question of whether expert testimony is necessary in a design-defect case involving a complex product, such as a car, the Magistrate thought that it was likely to do so if confronted with the question and the Seventh Circuit agreed.  In affirming the Magistrate’s summary judgment order in favor of the car manufacturer, however, the Court raised, but did not decide the question of whether federal law or state law would define, in a diversity case, the type of proof necessary to maintain a design-defect case.  The magistrate and both parties had assumed that state law governs the question of whether expert testimony was necessary to submit the case to the jury, based upon the belief that the quality and kind of required proof is a substantive issue, and thereby dependant upon state law under the Erie doctrine, even though the issue also involves the application of evidentiary rules, which is usually the province of federal law in cases tried in federal courts.

Since that issue was not in contest between the parties, and its resolution was apparently not necessary for a determination of the case, a decision on the question of whether state or federal law governs the methods of proof in diversity cases tried in federal court will have to await another day.

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