Mohammad v. Toyota Motor Sales, U.S.A., Inc.

THIEME, J. This products liability action arises out of a single vehicle accident that occurred on the Dulles access road in Fairfax, Virginia on February 15, 2003. This matter is before us on appeal by plaintiff Pazir Mohammad from the entry of summary judgment in favor of defendants Toyota Motor Sales USA (“Toyota”), Darcars of Cherry Hill, Inc., and Aseer Mohammad. The defendants are the manufacturer, retail dealer, and the owner of the 2003 Toyota Tundra truck that was involved in the accident. Appellant was the driver of the Tundra at the time of the accident, and was seriously injured as a result.

A passenger lost his life. On appeal, appellant contends that the circuit court erred in granting summary judgment. The key to this appeal is whether the absence of an expert as to the presence of a defect or causation corrodes appellant’s case. The circuit court ruled that it did, and, under the circumstances found here, we affirm the entry of summary judgment as to all defendants in all respects for the reasons that follow. ⁶⁹⁶ Background A. Facts The indispensable facts, viewed in the light most favorable to the appellant, are these.

Appellee, Aseer Mohammad (“Aseer”), is the appellant’s brother and the Tundra’s owner. On December 4, 2002, Aseer, accompanied by appellant, purchased a new 2003 Toyota Tundra pickup truck from Darcars of Cherry Hill Road, Inc. He allowed only appellant to drive the Tundra. On December 27, 2002, appellant took the Tundra to the Darcars service department, complaining that the truck seemed to pull to the left. After an inspection, Darcars’s mechanics told appellant that they found no mechanical, structural, or other defects with the Tundra and instead attributed the phenomenon to uneven tire pressure.

Appellant took the truck, and later called Darcars back to complain that the problem continued. Although Darcars said that it would arrange to have a Toyota engineer or field representative call him to schedule another inspection of the truck, appellant claims that no one from Darcars contacted him again. Appellant continued to drive the Tundra because the dealer assured him that the truck had no mechanical, structural, or other defect. On February 15, 2003, appellant, who owned a construction company, drove the Tundra to a job site in Silver Spring.

His brother .Aseer and another brother accompanied him. A friend, Mr. Khalid Mahmoud, came to the job site and asked for a ride to Dulles International Airport to see a relative. Appellant and he then left for the airport, and stayed there a short time. At about 3:50 p.m., they were returning to Maryland, had just left the parking lot at the Dulles International Airport, and were pulling away from a toll booth heading eastbound on the access road when the Tundra began to accelerate without warning.- The accelerator appeared to be stuck, and when appellant pushed, the accelerator went “all the way down.” Appellant checked to make sure the cruise control had not engaged, opened his side window, and waved ⁶⁹⁷ his arm to alert drivers in front of him to get out of the way.

After four miles of travel, appellant applied the brakes and heard a breaking sound coming from the engine compartment. The Tundra veered to the left, crossed the median strip, hit a Jersey barrier, and rolled on its side. Appellant was severely injured, and Mr. Mahmoud was killed. The summary judgment record includes these additional facts.

In August 2005, Toyota issued a “Safety Recall Notice”—SSC 50J. The notice represented that “Toyota has decided that a defect, which relates to motor vehicle safety, exists in the Front Suspension Lower Ball Joint of certain 2002 through early 2004 Tundra and Sequoia vehicles.” Appellant deposed three Toyota experts-Steven Fen-ton, P.E., Robert M. Landis, and Donald F. Tandy, Jr. 1 Landis ⁶⁹⁸ inspected the Tundra and testified that the “left side ball joint ... on this vehicle is still intact, feels good, works properly and is not a separated ball joint, which is the phenomenon associated with the recall.... [T]he ball joint is in excellent shape.” Landis opined that the steering components did not break until after the truck hit the Jersey barrier or when it rolled over: Q. Did you notice whether any portions of the steering or suspension system on the left side were no longer in working order? A. Yes. The steering knuckle on the left side is bolted to the housing that the ball joint is in.

There’s four bolts that hold it and those four bolts were sheared in the impact. And there has been some distortion to all the pieces in the suspension on the left side I would say as a result of impact. * * * ... [Tjhey’re broken, they had tensile failure. Q. Do you have an opinion as to how the bolts broke or what caused the bolts to break? A. I have a preliminary opinion.

I would want to see the reconstruction to have a complete opinion, but the bolts could have broke as a result of the impact with the median or they could have broke as a result of the rollover. ⁶⁹⁹ ... [T]he vehicle came to rest, then the bolts broke. Toyota expert Donald Tandy testified that the “physical evidence is consistent with both ball joints performing properly.” B. Procedural Background On February 10, 2006, appellant filed this products liability action seeking damages from seven corporate defendants under theories of strict liability, negligence, breach of the implied warranties of merchantability and fitness for a particular purpose, and breach of express warranty. He also alleged that his brother, Aseer Mohammad, as the owner and bailor of the Tundra, was negligent by “failing to inspect and maintain” the Tundra and by otherwise permitting appellant to drive a vehicle that was defective and unsafe. After certain defendants were dismissed on July 31, 2006, this case proceeded against Toyota, Darcars, and Aseer Mohammad.

On May 12, 2006, the trial court issued a “Scheduling and Pretrial Order.” See Md. Rule 2-504. 2 This Order required, inter alia, that the parties disclose their experts by July 26, 2006. An Amended Scheduling Order reset this due date to September 15, 2006. Appellant did not identify any expert who would address the issue of liability or the presence of a manufacturing or design defect, and did not submit any expert report or opinion with respect to these issues. Discovery closed without any designation by appellant of a liability or defect expert.

On January 16, 2007, each defendant filed a motion for summary judgment. The circuit court held a hearing on these motions on March 7, 2007. Ruling from the bench after hearing argument, the circuit court entered judgment in favor ⁷⁰⁰ of the defendants on all counts. The court held that, without expert opinion or testimony with respect to the existence of a defect, there was insufficient evidence to go to the jury on the strict liability, negligence, and implied warranty counts.

As to the breach of express warranty count, the court entered summary judgment because there was no allegation of an actionable express statement. 3 The common thread in the circuit court’s analysis of the strict liability, negligence, and implied warranty counts was appellant’s failure to identify an expert witness who by testimony or report would offer an opinion with respect to a design or manufacturing defect an d the role such defect would have played in causing the accident and resulting injuries. The court noted that “proof of a defect must rise above, surmise, conjecture, or speculation. And there is no right to recovery based on any presumption from the mere happening of an accident.” This timely appeal followed. Discussion A. Introduction: Choice of Law The accident took place in the Commonwealth of Virginia.

Maryland, unlike most other States, continues to adhere to the lex loci delicti principle set forth in the Restatement, Conflict Of Laws §§ 378-390. Laboratory Corporation of America v. Hood, 395 Md. 608, 615 , 911 A.2d 841 (2006). See Farwell v. Un, 902 F.2d 282, 286 (4th Cir.1990). See also Carter v. United States, 333 F.3d 791, 794 (7th Cir.2003) (“Maryland ... adheres to the old-fashioned conflicts principle of ‘lex loci delicti.’ ”), cert. denied, 540 U.S. 1111 , 124 S.Ct. 1078 , 157 L.Ed.2d 899 (2004).

Thus, “where the events giving rise to a tort action occur in more than one State, we apply the law of the State where the injury—the last event required to constitute the tort—occurred.” Laboratory Corporation of ⁷⁰¹ America v. Hood, 395 Md. at 615 , 911 A.2d 841 (citing cases). But while substantive law of Virginia would be applied, “its application to the facts presented in the forum court is to be determined in accordance with the rules of evidence, inference and judgment of the forum State.” 4 Id. at 616 , 911 A.2d 841 . Accordingly, “Maryland law ... controls as to the inferences to be drawn from the evidence, the sufficiency of the evidence, the inferences from it to go to the jury and other procedural matters.” Vernon v. Aubinoe, 259 Md. 159, 162 , 269 A.2d 620 (1970). B. Summary Judgment At issue is the propriety of the circuit court’s entry of summary judgment in favor of TMS, Darcars and Pazir Mohammad.

Pursuant to Maryland Rule 2-501(a), “[a]ny party may file at anytime a motion for summary judgment ... on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law.” Rule 2—501(f) provides that “[t]he court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” The role of summary judgment is to “ ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’ ” Matsushita Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986) (citation omitted). In deciding a motion for summary judgment, the circuit court does not resolve disputed issues of fact but “makes rulings as a matter of law[.]” Beatty v. Trailmaster Products, ⁷⁰² Inc., 330 Md. 726, 737 , 625 A.2d 1005 (1993). See Hill v. Cross Country Settlements, LLC, 402 Md. 281, 294 , 936 A.2d 343 (2007). Because this case was decided on summary judgment, there have not yet been factual findings by a judge or jury, and [appellant’s] version of events (unsurprisingly) differs substantially from [appellees’] version.

When things are in such a posture, courts are required to view the facts and draw reasonable inferences “in the light most favorable to the party opposing the [summary judgment] motion.” 5 Scott v. Harris, 550 U.S. -, -, 127 S.Ct. 1769, 1774 , 167 L.Ed.2d 686 (2007) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 , 82 S.Ct. 993 , 8 L.Ed.2d 176 (1962) (per curiam)). See Jones v. Mid-Atlantic Funding Co., 362 Md. 661, 676 , 766 A.2d 617 (2001) (reciting standard). ⁷⁰³ We evaluate the facts and pleadings employing the same standard as does the circuit court, and will not defer to that court’s conclusions of law. Because we must determine whether the circuit court was legally correct, our review over a circuit court’s decision on summary judgment, therefore, is plenary. Hemmings v. Pelham Wood Ltd. Liab.

Ltd. P’ship, 375 Md. 522, 533 , 826 A.2d 443 (2003); Carter v. Aramark Sports and Entertainment Services, Inc., 153 Md.App. 210, 224 , 835 A.2d 262 (2003), cert. denied, 380 Md. 231 , 844 A.2d 427 (2004). Our threshold task is to determine whether there is any genuine issue of material fact. Dashiell v. Meeks, 396 Md. 149, 163 , 913 A.2d 10 (2006). See Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 534 , 836 A.2d 655 (2003) (citations omitted).

The “moving party must set forth sufficient grounds for summary judgment,” Davis v. Goodman, 117 Md.App. 378, 392 , 700 A.2d 798 (1997), and the movant is responsible for informing the circuit court of the basis for its motion and for identifying deficiencies in the pleadings and record which demonstrate the absence of a genuine issue of fact. Bond v. NIBCO, Inc., 96 Md.App. 127, 136 , 623 A.2d 731 (1993) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986)). The party opposing a motion for summary judgment must produce admissible evidence to show a genuine dispute of material fact, and offer more than “ ‘conclusory statements, conjecture, or speculation [which] will not defeat summary judgment.’ ” Carter v. Aramark, 153 Md.App. at 225 , 835 A.2d 262 (citations omitted). Summary judgment is the “ ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would convince the trier-of-fact to accept its version of events.” Schacht v. Wisconsin Department of Corrections, 175 F.3d 497, 504 (7th Cir.1999), disapproved on other grounds, Higgins v. Mississippi, 217 F.3d 951 (7th Cir.2000).

There “must be evidence upon which the jury could reasonably find for the plaintiff.” Crickenberger v. Hyundai Motor America, 404 Md. 37, 45 , 944 A.2d 1136 (2008). The Court of Appeals reminds us that undisputed material facts that are ⁷⁰⁴ susceptible of more than one inference should go to the jury. See Hill v. Cross Country, 402 Md. at 294 , 936 A.2d 343 (citation omitted). C. Expert Testimony or Opinion The theory of strict liability in tort is set forth in Section 402A of the Restatement (Second) Of Torts (1965).

The Court of Appeals adopted for Maryland the strict liability formula of Section 402A in Phipps v. General Motors Corp., 278 Md. 337 , 363 A.2d 955 (1976). Section 402A provides: Special Liability of Seller of Product for Physical Harm to User or Consumer (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his [or her] property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his [or her] property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his [or her] product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. Judge Bloom pointed out for this Court: Basically, to recover in a strict liability case, a plaintiff need not prove any specific act of negligence; he must merely prove that the product was in a defective condition and unreasonably dangerous at the time it was sold.

The defect may be one that occurred in the manufacturing process, in which case the product does not conform to the manufacturer’s own standards, or it may be a defect in design, in which case what proves to be a defect was actually intended by the manufacturer. With respect to the former, the focus is on ⁷⁰⁵ the conduct of the manufacturer; with respect to the latter, the inquiry focuses on the product itself. Klein v. Sears, Roebuck & Co., 92 Md.App. 477, 484 , 608 A.2d 1276 , cert. denied, 328 Md. 447 , 614 A.2d 973 (1992). Maryland “espoused the doctrine of strict liability in tort in order to relieve plaintiffs of the burden of proving specific acts of negligence by permitting negligence to be implied where plaintiffs can prove a product is defective and unreasonably dangerous when placed in the stream of commerce.” Nissen Carp. v. Miller, 323 Md. 613, 624 , 594 A.2d 564 (1991).

The Commercial Law Article respectively defines express warranty and the implied warranties of merchantability and fitness for a particular purpose: § 2-313. Express warranties by affirmation, promise, description, sample. (1) Express warranties by the seller are created as follows: (a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise. § 2-314. Implied warranty; merchantability; usage of trade.

(1) Unless excluded or modified (§ 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.... (2) Goods to b e merchantable must b e at least such as ... (c) Are fit for the ordinary purposes for which such goods are used; and ... § 2-315. Implied warranty; fitness for particular use; applicability to lease and bailment of goods.

(1) Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless ⁷⁰⁶ excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.... Maryland Code (1975, 2002 Repl.Vol.), §§ 2-313, 2-314 & 2-315 of the Commercial Law Article. The plaintiff in a products liability action must establish three “product litigation basics”—“ ‘(1) the existence of a defect; (2) the attribution of the defect to the seller; [and] (3) the causal relation between the defect and the injury.’ ” Wood v. Toyota Motor Corporation, 134 Md.App. 512, 517-18 , 760 A.2d 315 (quoting Jensen v. American Motors Corp., 50 Md.App. 226, 234 , 437 A.2d 242 (1981)), cert. denied, 362 Md. 189 , 763 A.2d 735 (2000). See Crickenberger v. Hyundai Motor America, 404 Md. at 49 , 944 A.2d 1136 .

In Ford v. General Accident Insurance Company, 365 Md. 321 , 779 A.2d 362 (2001), the court observed that although the themes of negligence, breach of warranty, and strict liability are distinct, they converge for “‘they all require proof that the product was defective when it left the hands of the manufacturer, and that the defective condition was the predicate cause of the injuries or damages of which the plaintiff complains.’ ” Id. at 335 , 779 A.2d 362 (quoting Robert E. Powell & M. King Hall, Jr., Proof of a Defect or Defectiveness, 5 U. Balt. L.Rev. 77 (1977) (citations omitted)). See Lloyd v. General Motors, 397 Md. 108, 134 , 916 A.2d 257 (2007) (articulating elements for recovery under strict liability in tort); Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 591 , 495 A.2d 348 (1985); Virgil v. “Kash N’ Karry” Service Corp., 61 Md.App. 23, 30 , 484 A.2d 652 (1984), cert. denied, 302 Md. 681 , 490 A.2d 719 (1985). See also Robinson v. Brandtjen & Kluge, Inc., 500 F.3d 691, 697 (8th Cir.2007) (observing that “articulation of liability, whether based on a negligent breach of a duty of care or strict liability, reduces to the single question of whether the product was defective.”) (citation omitted).

Appellant maintains that expert testimony was not required to establish a prima facie case under these liability theories. We disagree. Unquestionably, the presence of the design or manufacturing defect may be inferred in the appro ⁷⁰⁷ priate case “without the necessity of weighing and balancing the various factors involved[.]” Ford v. General Accident Insurance Company, 365 Md. at 335 n. 14, 779 A.2d 362 (quoting Phipps v. General Motors, 278 Md. at 345-46 , 363 A.2d 955 ). See Eaton Corp. v. Wright, 281 Md. 80, 89 , 375 A.2d 1122 (1977).

The accident in Phipps occurred when the accelerator of a fairly new car became “stuck without warning, causing the automobile to accelerate suddenly at a high rate of speed and leave the road.” Phipps v. General Motors, 278 Md. at 339 , 363 A.2d 955 . The Court observed that there are those kinds of conditions which, whether caused by design or manufacture, can never be said to involve a reasonable risk. For example, the steering mechanism of a new automobile should not cause the car to swerve off the road ...; the drive shaft of a new automobile should not separate from the vehicle when it is driven in a normal manner ...; the brakes of a new automobile should not suddenly fail ...; and the accelerator of a new automobile should not stick without warning, causing the vehicle suddenly to accelerate. Phipps v. General Motors, 278 Md. at 345-46 , 363 A.2d 955 (citations omitted).

In Babylon v. Scruton, 215 Md. 299 , 138 A.2d 375 (1958), the plaintiff, who was the superintendent of a contracting firm, fell to the ground when a concrete roof slab he was installing broke when he stepped on it. He filed suit against the manufacturer of the slab. The jury found for the plaintiff and the trial court denied the defendant’s motion for a judgment n.o.v. The defendant complained that no expert had testified for the appellant as to whether the design of the slab was defective or unsafe. The Court of Appeals rejected this argument.

The dispositive point was that the collapse of the concrete slab was a phenomenon within the general expertise and knowledge of ordinary reasonable jurors, and that an expert was unnecessary to illustrate this obvious point. The Court considered it to be a matter of common knowledge that concrete structures require steel reinforcement: ⁷⁰⁸ “It is a matter of general knowledge that concrete is strong in resisting compression strains and weak in withstanding tensile strains. Places at which both strains may be expected, while susceptible of accurate mathematical ascertainment, are so well known that they are determined empirically by many engaged in the art.... Thus, metal which possesses tensile strength is placed at weak points in concrete where it is subjected to tensile strains.” Babylon v. Scruton, 215 Md. at 307 , 138 A.2d 375 (quoting Turner v. Lauter Piano Company, 248 F. 930, 932-33 (3d Cir.1918)).

Drawing on this “common knowledge,” the Court concluded that “it was not essential to have expert testimony on what the jurors, as ordinary men, would be aware of, as a matter of general knowledge.” Babylon v. Scruton, 215 Md. at 307 , 138 A.2d 375 . See Virgil v. “Kash N’ Karry” Service Corp., 61 Md.App. at 31 , 484 A.2d 652 (citing general rule on need for expert witness in technical areas, but noting such evidence “hardly necessary to establish that a thermos bottle that explodes or implodes when coffee and milk are poured into it is defective.”). While in some instances the circumstances of an accident may provide sufficient evidence for a jury question in a products liability action, Maryland courts have adopted the general rule that expert testimony is required when the subject of the inference that a product is defective is particularly related to some science or profession that it is beyond the ken of the average layman. Jones v. Reichert Jung, Inc., 211 F.Supp.2d 661, 667 (D.Md. 2002) (citing Wood v. Toyota Motor Corporation, 134 Md.App. at 516-17 , 760 A.2d 315 ).

A case which illustrates when an expert opinion is required, and when it is not, is Hartford Accident & Indemnity Co. v. Scarlett Harbor Assoc. Limited Partnership, 109 Md.App. 217 (1996), aff'd, 346 Md. 122 , 695 A.2d 153 (1997). In that case, the council of condominium unit owners sued the developer of the condominium and others alleging various defective design and construction defects. ⁷⁰⁹ The circuit court granted summary judgment against the plaintiff council on a host of issues. Some of the circuit court’s rulings were based on the plaintiffs failure to present expert testimony regarding certain specific defects.

We reprised the seasoned principle that “The general rule is well established that expert testimony is only required when the subject of the inference is so particularly related to some science or profession that it is beyond the ken of the average layman.” ... Expert testimony is not required, however, on matters of which the jurors would be aware by virtue of common knowledge. In this case, the Council’s claim relates to the proper design of the heating system for an elevator shaft. We do not believe that this is a matter within the knowledge of the average layperson; most jurors would not be sufficiently versed in engineering, physics, or construction to know whether or where to install heat pumps, whether the bottom of the elevator shaft was properly unenclosed, or how to prevent the elevator cab from forcing cold air into the upper portions of the building....

Based on the evidence that the Council offered, the trier of fact would be left only to speculate as to whether there was a “defect” in the construction or design of the elevator shaft. Accordingly, we conclude that the trial court did not err in requiring the Council to offer expert testimony. Hartford v. Scarlett Harbor, 109 Md.App. at 257-58 , 674 A.2d 106 (citations omitted). Expert testimony would also be required to inform the jury on “[h]ow to grade a paved area” so as to assist the venire in its determination of whether ponding of water in the condominium lobby was due to a defect in design or construction.

Id. But we did agree with the plaintiff that expert opinion would be unnecessary to show the jury that something had to be amiss when a unit owner suffered under a constant storm of undue noise and vibration: Many lay persons have lived in apartments or stayed in hotel or motel rooms, and they would know that “constant” ⁷¹⁰ loud noise and vibrations from mechanical devices is out of the ordinary. As a matter of common knowledge, the kind of noise and vibration that results in “irrepressible annoyance,” “interrupt[s] ... sleep,” and renders a room “uninhabitable,” raises at least an inference of defective construction or design____ We conclude that the affidavit was sufficient to raise a triable issue, and that expert testimony was not necessary. Hartford v. Scarlett Harbor, 109 Md.App. at 259-60 , 674 A.2d 106 (citations omitted).

In Wood v. Toyota Motor Corporation, the driver sued Toyota claiming that the air bag on her Toyota Tercel had been defectively designed. The circuit court granted Toyota’s motion in limine to exclude the testimony of the plaintiff’s expert, and later entered summary judgment in favor of Toyota, ruling that expert testimony was required for plaintiff to make her case. This Court agreed. Judge Joseph F. Murphy, Jr., at the time Chief Judge of this Court, iterated that “expert testimony is required ‘when the subject of the inference is so particularly related to some science or profession that it is beyond the ken of the average layman.’ ” Wood v. Toyota, 134 Md.App. at 518 , 760 A.2d 315 (citations omitted).

Citing Babylon v. Scruton, we recognized that “[e]xpert testimony is not required ... on matters of which the jurors would be aware by virtue of common knowledge^]” Nevertheless, the issue in Wood , the defective design or manufacture of an air bag, was not a matter of ordinary knowledge, and this Court held that “the products liability plaintiff who claims to have been injured due to the defective design of an air bag must present expert testimony to generate a jury issue on whether the air bag was defective.” Wood v. Toyota, 134 Md.App. at 518 , 760 A.2d 315 . We rejected in Wood the argument that res ipsa loquitur would apply: Appellant argued in the alternative that, because the doctrine of res ipsa loquitur applies to this case, expert testimony is not required. Judge Hotten rejected that argument. So do we.