Wood v. Toyota Motor Corp.

MURPHY, Chief Judge. In the Circuit Court for Prince George’s County, Anita Wood, appellant, asserted a products liability action in which she claimed that the driver’s air bag in her 1993 Toyota Tercel automobile (“Tercel”) had been defectively designed. After the Honorable Michelle D. Hotten granted appellees’ motions (1) in limine and (2) for summary judgment, 1 this appeal-followed, in which appellant presents two questions for our review: I. Did the circuit court err in granting appellee’s motion for summary judgment?

II

Did the circuit court abuse its discretion by granting appellee’s motion in limine and excluding the testimony of appellant’s expert witness? For the reasons that follow, we shall answer “no” to each question and affirm the judgment of the circuit court. ⁵¹⁵ Background Appellant claimed that on April 25, 1995, while driving her Tercel, she was involved in an automobile accident during which she suffered chemical burns to her cheek when she was struck in the face by the air bag on the driver’s side of the vehicle. 2 Appellant identified Michael D. Leshner as an expert witness who would testify that the chemical burns she sustained in the accident were caused by a design defect in the air bag. 3 Toyota moved in limine to exclude Mr. Leshner’s testimony. Judge Hotten granted that motion. Toyota then moved for summary judgment on the ground that the cause of action asserted in this case requires the presentation of expert testimony.

Judge Hotten granted that motion and this appeal followed. Discussion I. Expert Testimony in Air Bag Cases When ruling on Toyota’s motion for summary judgment, 4 Judge Hotten stated the following explanation for her conclu ⁵¹⁶ sion of law that expert testimony is required to generate the issue of whether a person’s injury was caused by a design defect in a vehicle’s air bag: The standard is whether a fair minded jury could find for the plaintiff in light of the pleadings and the evidence presented, and there must be more than a scintilla of evidence in order to proceed to trial, as set forth in the case of Seaboard Surety Company v. Richard Kline, Inc., 91 Md.App. 236 , 603 A.2d 1357 , which was a 1992 appellate decision. Additionally, if the facts are susceptible to more than one inference, inference must be drawn in favor of the moving party____ The main issues before the court relative to the plaintiffs complaint and amendments thereto are issues relative to products liability negligence and breach of warranty, among others. The plaintiffs assertion, which has been set forth in exhausting detail by the testimony of Mr. Leshner, and as set forth in the appropriate pleadings and arguments is that in fact as a result of a defect in the air bag system that she was injured, and that there was a causal connection between that defect and the injury.

As such, the plaintiff, to support her theories, must assert or establish that, one, a defect existed. Two, that somehow the defect was peculiarly within the perview of the defendant; that is, that the defect is somehow attributable to the defendant under the appropriate legal theory or standard, and that the plaintiff was injured, and that there is a causal relationship between this defect and her injuries. The general rule is well established that expert testimony is only required when the subject of the inference is so ⁵¹⁷ particularly related to some science or profession that it is beyond the ken of the average layman. Experts are not required, however, on matters on which the jurors would be aware by virtue of common knowledge.

Air bag technology is highly specialized, and while no Maryland cases have been decided on this issue, other jurisdictions have required an expert in air bag deployment and defect cases. Without expert testimony in this case the peculiar issues before the court are outside the realm of lay juror’s understanding, and without it the theories asserted by the plaintiff are speculative at best. The court does not believe that the theory of Res Ipsa Loquitur is appropriate under the circumstances and the issues presented. Accordingly, upon consideration of the arguments that have been presented relative to the defendant’s motion for summary judgment, the court’s review of the record and the pleadings, the court at this time grants the motion for summary judgment in the defendant’s favor, pursuant to Maryland Rule 2-501.

We agree with that analysis, which is consistent with other appellate courts that have considered the question, including Britt v. Chrysler Corp., 699 So.2d 179 (Ala.1997), in which the Civil Court of Appeals of Alabama affirmed the entry of summary judgment against a plaintiff who had failed to proffer expert testimony: The airbag system involved in this case is comprised of clock spring sensors, diagnostic units, and an airbag/inflator unit. Therefore, we hold that an airbag system is “precisely the type of complex and technical commodity that [requires] expert testimony to prove an alleged defect.” Britt, 699 So.2d at 181 (internal citations omitted). 5 In a products liability case, the plaintiff must prove “(1) the existence of a defect; (2) the attribution of the defect ⁵¹⁸ to the seller; and (3) a causal relation between the defect and the injury.” Jensen v. American Motors Corp., 50 Md.App. 226, 234 , 437 A.2d 242 (1981). It is well settled 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.” Hartford Accident and Indemnity Comp. v. Scarlett Harbor Assoc. Limited Partnership, 109 Md.App. 217, 257 , 674 A.2d 106 (1996), aff'd. 346 Md. 122 , 695 A.2d 153 (1997) (citing Virgil v. “Kash N’ Karry” Service Corp., 61 Md.App. 23,23 , 484 A.2d 652 (1984), cert. denied, 302 Md. 681 , 490 A.2d 719 (1985)).

Although “[e]xpert testimony is not required ... on matters of which the jurors would be aware by virtue of common knowledge,” Babylon v. Scruton, 215 Md. 299, 307 , 138 A.2d 375 (1958), the issue of whether an air bag was defectively designed is well “beyond the ken of the average layman.” The correct resolution of that issue requires the application of science, mechanics, and engineering, rather than of matters that jurors “would be aware [of] by virtue of common knowledge.” We therefore hold 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. 6 ⁵¹⁹ II. Expert Testimony Judge Hotten stated the following explanation for her decision to grant Toyota’s motion in limine: Maryland Rule 5-702 governs expert testimony, and provides such testimony will be admitted if it will assist the trier of fact to understand the evidence, or determine a fact in issue, and if, one, the witness is qualified to render the expert opinion by virtue of knowledge, skill, training or experience or education; and two, that there is a sufficient factual basis to support the expert factual opinions made by that witness; and three, that the expert testimony is appropriate on this subject. Mr. Leshner’s testimony, unfortunately, does not meet the requirements of Maryland Rule 5-702 in terms of his qualifications and sufficiency of the factual basis for his opinions or assumptions. Had Mr. Leshner been minimally qualified to render the expert opinions proffered, I would have agreed with plaintiffs counsel that any objections by the defendant relative to Mr. Leshner’s training, expertise or basis of knowledge would go to the weight of the evidence, and not to its admissibility.

Unfortunately, such is not the case at bar. Accordingly, reluctantly, upon consideration of testimony, the motion at this time is granted. Appellant asserts that this ruling was incorrect. 7 We are not persuaded, however, that Judge Hotten’s decision consti ⁵²⁰ tuted an unfairly prejudicial abuse of discretion. 8 A. The Qualifications Issue Mr. Leshner has been a mechanical engineer for twenty-six years and has a state license in professional engineering. He has a bachelor’s degree in science and completed one year of graduate studies.

He worked as mechanical engineer for several companies on systems such as automotive cooling and heating, air conditioning, defrosting, engine electronics, control systems, and hospital- equipment. Mr. Leshner is a member of several societies, including the National Society of Professional Engineers, National Forensic Center, National Association of Professional Accident Reconstruction Specialists, and National Academy of Forensic Engineers. He had held 15 U.S. patents and some corresponding foreign patents on automotive electronic control systems, medical products, stoves, and combustion. Mr. Leshner admitted that none of these patents related to air bag systems or components.

He has also published several articles, but none of the articles involved air bags. Mr. Leshner has never been accepted as an expert witness in a trial involving air bag design. His knowledge of air bags was mostly (if not entirely) derived from his employment as a litigation consultant. 9 He is not a medical doctor and has no ⁵²¹ medical training. He does not have any “hands on” experience relating to air bag technology, and none of the courses he has taken involved “air bag design, manufacture or assembly.” Although Mr. Leshner held himself out as a “expert in air bag technology,” “air bag denting,” and “air bag folding patterns,” he has never (1) designed an air bag system, (2) designed a component for an air bag system, (3) “been to a plant where air bags or air bag components are manufactured,” nor (4) seen a video of air bag components being installed into a vehicle.

Mr. Leshner had not personally “seen an air bag system or any of its components being installed into a car,” nor had he been to any automotive assembly plans since the mid 1980’s. He also never (1) “designed a protocol or a methodology for analyzing an air bag system or an air bag component,” (2) personally saw an air bag deployed, nor (3) “personally conducted or participated in any type of crash test.” Although an expert is “qualified” if he or she demonstrates a “minimal amount of competence or knowledge in the area in which [he] purports to be an expert,” Naughton v. Bankier, 114 Md.App. 641, 655 , 691 A.2d 712 (1997), we are not persuaded that Judge Hotten erred or abused her discretion in concluding that Mr. Leshner was not qualified to express the proffered opinion. B. The “Factual Basis” Issue Mr. Leshner’s opinion was based on: (1) general engineering principles, (2) his examination of the subject air bag and other components from appellant’s car, 10 (3) his interpre ⁵²² tation of a photograph taken of appellant two days after the accident (looking at the “circular mark on her cheek [which was the] same size and shape as the vents in the air bag,” (4) his review of appellant’s medical records, (5) his analysis of other air bag cases, (6) his understanding that appellant was wearing her seat belt when the accident occurred, 11 and Toyota’s supplemental responses to appellant’s request for admissions, in which Toyota stated that “a minute amount of sodium hydroxide” was generated during deployment, and that air bags might have caused “minor burns, or abrasions and swelling.” In addition, Mr. Leshner examined photographs of crash tests conducted with a crash dummy, where red make-up was placed on the face of the dummy. He claimed that he was able to determine where the air bag hit the dummy’s face from observing where the red make-up ended up on the air bag.

Although the make-up had also been placed on the dummy’s arms, hands, knees, and steering wheel, Mr. Leshner stated that he could nonetheless distinguish “what red, on these air bags, comes from the face as opposed to the arms, the hands, or the knees, or the steering wheel.” Mr. Leshner reviewed expert testimony presented in other air bag cases, and he conducted a search of the National Highway Traffic Safety Administration website and determined that several persons had complained about being ⁵²³ “burned” by air bags. He did not, however, conduct a followup investigation of any of these complaints, none of which mentioned the word “chemical.” It is well settled that the trial judge — not the expert witness — determines whether there exists an adequate factual basis for the opinion at issue. Madden v. Mercantile-Safe Deposit & Trust Co., 27 Md.App. 17, 44 , 339 A.2d 340 (1975). We are not persuaded that Judge Hotten was clearly erroneous in finding that Mr. Leshner’s opinion was based on an incomplete factual predicate.

C. The Methodology Issue Even if we were to assume that Mr. Leshner were (1) minimally qualified to express an opinion, and (2) had an adequate factual basis for the opinion he was prepared to express, we would nonetheless affirm Judge Hotten’s in limine ruling. 12 Mr. Leshner never explained how the data upon which he relied led him to the conclusion that the size of the vent holes caused appellant’s injuries. Thus, his opinion was properly excluded under Maryland Rule 5-702 and the cases interpreting that rule. 13 No trier of fact could conclude ⁵²⁴ that vent holes in an air bag caused an injury merely because an expert said that they did. Mr. Leshner’s theory provided no rational explanation for why the size or location of the vent holes had anything to do with the injuries that appellant sustained. Mr. Leshner had admitted at deposition that it “would be impossible to estimate” the precise direction that the vent holes were facing before, during, and after contact with appellant’s face.

He reviewed a test report prepared by Toyota “which compares the potential for [thermal ]bums, based on different vent locations....,” but he conducted “[n]o testing to determine the effect on the gas flow of moving the vent holes from their present location on