1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Steven Updike, No. CV-21-01379-PHX-DJH
10 Plaintiff, ORDER
11 v.
12 American Honda Motor Company Incorporated, et al., 13 Defendants. 14 15 This case arises from a roll-over accident Mr. James Updike, Sr. (“Decedent”) was 16 involved in while driving his 2019 Honda Talon utility terrain vehicle (“Talon”). (Doc. 1- 17 2 at ¶ 4; Doc. 83 at 2). Plaintiff Steven Updike (“Plaintiff”) and Defendant American 18 Honda Motor Company Incorporated (“Defendant”) have each filed motions for summary 19 judgment. (Docs. 83 & 84). Plaintiff seeks partial summary judgment on Defendant’s 20 misuse affirmative defense. (Doc. 83 at 1). Defendant seeks summary judgment on 21 Plaintiff’s products liability claim. (Doc. 84). These Motions are fully briefed. (Docs. 22 100, 107, 112, 113). The Court denies both parties’ Motions for the following reasons.1 23 I. Background2 24 Plaintiff, Decedent’s son, has brought this wrongful death action on behalf of 25 Decedent and Decedent’s statutory beneficiaries. (Doc. 1-2 at 13). On February 7, 2020,
26 1 Defendant has requested oral argument in this matter. (Doc. 84). The Court denies this request because the issues have been fully briefed and oral argument will not aid the 27 Court’s decision. See Fed. R. Civ. P. 78(b) (court may decide motions without oral hearings); LRCiv 7.2(f) (same). 28 2 The following facts are undisputed, unless stated otherwise. 1 Decedent was driving his Talon in the Imperial Sand Dunes in Glamis, California. 2 (Id. at ¶¶ 10-15). Decedent was driving approximately twenty to twenty-five miles per 3 hour when he drove over a soft sand dune and became airborne as he reached its crest. 4 (Doc. 83 at 2; Doc. 84 at 2). 5 During its descent, the Subject Talon pitched forward, rolled end-over-end, and 6 came to rest on its wheels. (Docs. 83 at 2; Doc. 84 at 2). Plaintiff alleges that the Talon’s 7 rollover protection system (“ROPS”) failed when the rear cross bar at the top of the roll 8 cage directly behind and above the driver’s head “snapped”3 and several other parts of the 9 roll cage buckled and injured Decedent. (Doc. 1-2 at ¶¶ 16–17). Decedent added several 10 aftermarket modifications to the Talon, including a “Quick Lite whip and a Rugged Radio 11 aerial antenna” to the cross bar that fractured. (Doc. 84 at 3; Doc. 100 at 16–17). He also 12 added an aftermarket Pro Armor restraint harness. (Doc. 84 at 3; Doc. 100 at 6). There is 13 much dispute as to whether these aftermarket accessories can be attributed to the failure of 14 the ROPS and Decedent’s injuries. (See Doc. 84 at 3; Doc. 100 at 17). Defendant denies 15 that the Talon’s ROPS contained a defect or that this defect was the proximate cause of 16 Decedent’s injuries, as Plaintiff alleges. (Doc. 84 at 7). 17 Stemming from this roll-over accident, Plaintiff has brought claims for negligence 18 (Doc. 1-2 at ¶¶ 20–30), strict product liability (id. at ¶¶ 31–44), breach of express/implied 19 warranty (id. at ¶¶ 45–48) and punitive damages4 (id. at ¶¶ 49–52) against Defendant. 20 Defendant has asserted the affirmative defense of misuse and contends that Plaintiff 21 “materially altered” the Talon and that this alteration was not foreseeable. (Doc. 84 at 12). 22 Plaintiff argues that there is no evidence that Decedent’s aftermarket modifications to the 23 Talon caused it to roll over or caused the ROPS to fail. (Doc. 100 at 17). 24 To support its claims against Defendant, Plaintiff has retained several experts in this 25 case. (Doc. 123 at 3). He has retained Dr. Michael Markushewski to opine on the
26 3 Defendant disputes that the cross bar “snapped,” and argues that it “fractured but did not snap cleanly through.” (Doc. 107 at 3 n.4 (citing Doc. 84-3 at 15 (“The rear cross member 27 of the ROPS fractured approximately 4 inches left of center.”)).
28 4 Plaintiff has stipulated to the entry of judgment in Defendant’s favor on his punitive damages claim. (Doc. 84 at 5 n. 4). 1 crashworthiness of the Talon; Dr. Andrew Rentschler to opine on the “mechanism” of 2 Decedent’s injury; and Dr. James Mason to “assess the pre-drilled design of the ROPS bar 3 and tubing that failed during [Decedent’s] rollover.” (Id. at 7, 12, 15). Relevant here, 4 Dr. Markushewski concludes that the Talon’s roll cage failed and that the roof panel and 5 roll cage tubing collapsed downward toward the driver occupant space. (Id. at 4). Dr. 6 Rentschler opines that “[t]he injury mechanism responsible for [Decedent’s] C2 7 nondisplaced type II/III fracture of the dens involves localized hyperextension with 8 associated compression. This injury mechanism resulted from the contact between 9 [Decedent’s] helmeted head and the intruding roof structure/roll cage during the subject 10 incident.” (Id. at 12). Finally, Dr. Mason concludes that “[t]he ROPS was defective in 11 design due to the introduction of a hole in the underside of the rear cross bar and due to the 12 use of thin-walled tubes in its construction, i.e. tubes with too large of a diameter and too 13 small of a wall thickness” and that “[t]he aftermarket components attached to the rear 14 crossmember were foreseeable and likely increased the stress around the hole in the 15 crossmember by approximately 3-4%, much less than the hole itself.” (Id. at 16). The 16 Court recently declined to exclude these experts as Defendant requested. (Id. at 11, 15 17 and 18). 18 II. Legal Standard 19 A court will grant summary judgment if the movant shows there is no genuine 20 dispute of material fact and the movant is entitled to judgment as a matter of law. Fed. R. 21 Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A fact is “material” 22 if it might affect the outcome of a suit, as determined by the governing substantive law. 23 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “genuine” 24 when a reasonable jury could return a verdict for the nonmoving party. Id. Courts do not 25 weigh evidence to discern the truth of the matter; they only determine whether there is a 26 genuine issue for trial. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1131 (9th 27 Cir. 1994). This standard “mirrors the standard for a directed verdict under Federal Rule 28 of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the 1 governing law, there can be but one reasonable conclusion as to the verdict.” Anderson, 2 477 U.S. at 250. “If reasonable minds could differ as to the import of the evidence, 3 however, a verdict should not be directed.” Id. at 250–51 (citing Wilkerson v. McCarthy, 4 336 U.S. 53, 62 (1949)). 5 The moving party bears the initial burden of identifying portions of the record, 6 including pleadings, depositions, answers to interrogatories, admissions, and affidavits, 7 that show there is no genuine factual dispute. Celotex, 477 U.S. at 323. Once shown, the 8 burden shifts to the non-moving party, which must sufficiently establish the existence of a 9 genuine dispute as to any material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio 10 Corp., 475 U.S. 574, 585–86 (1986). Where the moving party will have the burden of 11 proof on an issue at trial, the movant must “affirmatively demonstrate that no reasonable 12 trier of fact could find other than for the moving party.” Soremekun v. Thrifty Payless, 13 Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue as to which the nonmoving party will 14 have the burden of proof, however, the movant can prevail “merely by pointing out that 15 there is an absence of evidence to support the nonmoving party’s case.” Id. (citing Celotex 16 Corp., 477 U.S. at 323). 17 If the moving party meets its initial burden, the nonmoving party must set forth, by 18 affidavit or otherwise as provided in Rule 56, “specific facts showing that there is a genuine 19 issue for trial.” Anderson, 477 U.S. at 250; Fed. R. Civ. P. 56(e). The non-moving party 20 must make an affirmative showing on all matters placed in issue by the motion as to which 21 it has the burden of proof at trial. Celotex, 477 U.S. at 322. The summary-judgment stage 22 is the “ ‘put up or shut up’ moment in a lawsuit, when the nonmoving party must show 23 what evidence it has that would convince a trier of fact to accept its version of events.” 24 Arguedas v. Carson, 2024 WL 253644, at *2 (S.D. Cal. Jan. 22, 2024) (citation omitted). 25 In fact, the non-moving party “must come forth with evidence from which a jury could 26 reasonably render a verdict in [its] favor.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 27 387 (9th Cir. 2010) (citation omitted). In judging evidence at the summary judgment stage, 28 the court does not make credibility determinations or weigh conflicting evidence. Rather, 1 it draws all inferences in the light most favorable to the nonmoving party. See T.W. Electric 2 Service, Inc. v. Pacific Electric Contractors Ass’n, 809 F.2d 626, 630–31 (9th Cir. 1987). 3 III. Defendant’s Motion for Summary Judgment 4 Defendant seeks summary judgment on Plaintiff’s product liability claim. 5 (Doc. 84). 6 Federal district courts apply state law to products liability claims brought in federal 7 court pursuant to diversity jurisdiction. Adams v. Synthes Spine Co., 298 F.3d 1114, 1117 8 (9th Cir. 2002). “The doctrine of strict products liability is a public policy device to spread 9 the risk from one to whom a defective product may be a catastrophe, to those who marketed 10 the product, profit from its sale, and have the know-how to remove its defects before 11 placing it in the chain of distribution.” State Farm Ins. Companies v. Premier 12 Manufactured Sys., Inc., 142 P.3d 1232, 1234 (Ariz. Ct. App. 2006) (internal citations 13 omitted). Strict products liability “does not rest on traditional concepts of fault.” 14 Id. at 1236. For instance, a strict products liability plaintiff “does not have to prove the 15 defendant was negligent.” Id. at 1235 (citations omitted). However, the Arizona Supreme 16 Court has “made clear that proof of the defect alone is not sufficient for liability.” Sw. Pet 17 Prod., Inc. v. Koch Indus., Inc., 273 F. Supp. 2d 1041, 1051 (D. Ariz. 2003) (citing 18 Readenour v. Marion Power Shovel, 719 P.2d 1058, 1063 (Ariz. 1986)). “Instead, ‘[s]trict 19 liability in tort is found only where the defective condition causes the product to be 20 unreasonably dangerous.’ ” Id. (emphasis added). 21 In Arizona, to establish a prima facie case of strict products liability, a plaintiff must 22 show that: (1) the product is defective and unreasonably dangerous; (2) the defective 23 condition existed at the time it left defendant’s control; and (3) the defective condition is 24 the proximate cause of the plaintiff’s injuries and property loss. Dietz v. Waller, 685 P.2d 25 744, 747 (Ariz. 1984); Bonar v. General Motors Corp., 2009 WL 44872, * 4 (Ariz. Ct. 26 App. 2009). Under element one, three types of defects can result in an unreasonably 27 dangerous product: (1) manufacturers defects, (2) design defects, and (3) informational 28 defects. Dillon v. Zeneca Corp., 42 P.3d 598, 603 (Ariz. Ct. App. 2002). 1 In its Complaint, Plaintiff alleges two types of defect theories: a design defect theory 2 and an informational defect theory. (Doc. 1-2 at ¶ 35 (“the 2019 Honda Talon was 3 defective as to design”), ¶ 43 (Defendant “failed to warn of the potential risks or hazards 4 associated with riding a 2019 Honda Talon with a ROPS that was not capable of protecting 5 the driver when using the Talon as expected and intended”)). In its Motion, Defendant 6 does not address Plaintiff’s failure to warn theory and limits its arguments to Plaintiff’s 7 design defect theory. (Doc. 84). 8 Defendant specifically argues that Plaintiff’s design defect claim cannot survive 9 summary judgment because: (1) Plaintiff has failed to show that the Talon was defective 10 or unreasonably dangerous; (2) he has not shown that a defect was present when it left 11 Defendant’s control; (3) there is no evidence that a defect proximately caused Decedent’s 12 injuries; and (4) Decedent misused the Talon by making material alterations to it, which 13 were not foreseeable.5 (Doc. 84 at 6, 12, 16). 6 14 1. Design Defect 15 Defendant first argues that Plaintiff cannot meet his burden of demonstrating the 16 existence of a defect present in the Talon because his expert, Dr. Mason, has not done any 17 testing on the amount of force required to deform the Talon’s ROPS or to break its cross 18 bar. (Doc. 84 at 8). It further argues that Dr. Mason has not done any case-specific testing, 19 so, Plaintiff has failed to show that the Talon suffered from a defect. (Id.) Plaintiff argues, 20 in response, that it has set forth sufficient evidence that the Talon contained a design defect 21 through evidence that the cross bar failed where Defendant intentionally drilled a hole in 22 it, which significantly increased the stress on the crossbar and made its tubing easier to rip. 23 (Doc. 100 at 11). 24 5 Defendant also argues that, if the Court were to grant one of its six Daubert Motions, that 25 Plaintiff will not have the proof he needs and it will be entitled to summary judgment. (Doc. 84 at 17). The Court did not grant any of Defendant’s Daubert Motions and instead 26 declined to exclude any of his experts, so, this argument is moot. (See Doc. 123).
27 6 The Court notes that Defendant seeks “summary final judgment in its favor and against the plaintiff.” (Doc. 84 at 1). Defendant’s arguments only attack Plaintiff’s strict products 28 liability claim and do not address Plaintiff’s negligence claim or his breach of warranty claim. (See Doc. 1-2 at ¶¶ 20–30, 45–48). 1 A defectively designed product is “one that is made as the manufacturer intended it 2 to be but that is unreasonably dangerous.” St. Clair, 2011 WL 5331674, at *4. A design 3 defect claim “begins with the assertion that a manufacturer produced a product that fails to 4 meet ‘the purpose for which it is designed.’ ” Jones v. Medtronic Inc., 411 F. Supp. 3d 5 521, 531 (D. Ariz. 2019) (quoting Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1194 6 (9th Cir. 2007)). In Arizona, two tests may be used in determining whether a product is 7 defectively designed: the Consumer Expectation Test or the Risk/Benefit Analysis Test. 8 See Martinez v. Terex Corp., 241 F.R.D. 631, 641 (D. Ariz. 2007). 9 Under the Consumer Expectation Test, “the fact-finder determines whether the 10 product ‘failed to perform as safely as an ordinary consumer would expect when used in 11 an intended or reasonable manner.’ ” Golonka v. General Motors Corp., 65 P.3d 956, 962 12 (Ariz. Ct. App. 2003) (quoting Dart v. Wiebe Mfg., Inc., 709 P.2d 876, 879 (Ariz. 1985)). 13 Expert testimony is not needed to establish a design defect under the Consumer Expectation 14 Test because the test “focuses on the safety expectations of an ordinary consumer rather 15 than those of an expert.” Long v. TRW Vehicle Safety Sys., Inc., 796 F. Supp. 2d 1005, 16 1010 (D. Ariz. 2011) (citation omitted). The Consumer Expectation Test finds that a 17 defective product is unreasonably dangerous when “its inherent danger exceeds the 18 expectation of the ordinary user or consumer.” Id. (citing Gomulka v. Yavapai Mach. & 19 Auto Parts, Inc., 745 P.2d 986, 989 (Ariz. Ct. App. 1987)). 20 When application of the Consumer Expectation Test is “unfeasible or uncertain” 21 courts additionally or alternatively employ the risk/benefit analysis to determine “whether 22 a design is defective and unreasonably dangerous.” Golonka, 65 P.3d at 963. The risk- 23 benefit analysis test asks the fact-finder to decide, in light of relevant factors, whether “the 24 benefits of [a] challenged design . . . outweigh the risk of danger inherent in [the] design.” 25 Dart, 709 P.2d at 879. If not, the design was defective and unreasonably dangerous. Id. 26 Courts apply the Consumer Expectation Test when an ordinary customer through 27 use of a product develops “an expectation regarding the performance safety of the product.” 28 Brethauer v. GM Corp., 211 P.3d 1176, 1183 (Ariz. Ct. App. 2010). Indeed, this Court 1 has previously held, as Plaintiff notes, that “the ordinary consumer could reasonably 2 expect, similar to a seatbelt, that [a] ROPS should restrain a passenger body within the 3 confines of the vehicle during a rollover crash.” Thompson v. Polaris Indus. Inc., 2019 4 WL 2173965, at *2 (D. Ariz. May 17, 2019) (citing Nance v. Toyota Motor Sales USA, 5 Inc., 2014 WL 4702781, at *2 (D. Ariz. Sept. 22, 2014). 6 Here, Plaintiff has set forth sufficient evidence for a jury to find that the Talon’s 7 crossbar failed to perform as safely as an ordinary consumer would expect when used in 8 an intended or reasonable manner through his experts. See Long, 796 F. Supp. 2d at 1010. 9 First, Dr. Markushewski conducted an “inversion test” with a new Pro Armor 3-inch wide, 10 4-point restraint system in a machine which allows for testing of full-size vehicles in a 11 rotational manner under a 1G environment. (Doc. 100-3 at 31). He concluded that “the 12 seat belt provided the restraint necessary to prevent [Decedent’s] neck injury in this 13 protectable rollover incident if the roll cage d[id] not collapse.” (Id. at 34). Markushewski 14 concluded, in sum, that (1) the roll cage failed and the roof panel and roll cage tubing 15 collapsed downward toward the driver occupant space, (2) Decedent’s helmet was 16 impacted by the collapsing roof and roll cage structure creating a mechanism for his 17 ultimately fatal injuries, and (3) the roll cage structure is defectively designed and 18 unreasonably dangerous and not suited for its intended purpose. (See id. at 33–34). 19 Next, Dr. Andrew Rentschler concluded that “[t]he intruding roof structure/roll cage 20 contacted [Decedent’s] helmet . . . [causing] type III fracture of the dens in combination 21 with failure of the anterior longitudinal ligament and widening of the C1-2 articulations as 22 noted in the available diagnostic studies.” (Doc. 123 at 13). He also testified at his 23 deposition that “absent deformation or crush damage to the ROPS, [Decedent] would not 24 have sustained the cervical injuries that he did as a result of the incident.” (Id. at 14). 25 Finally, Dr. Mason concluded in his report that “[t]he ROPS was defective in design 26 due to the introduction of a hole in the underside of the rear cross bar and due to the use of 27 thin-walled tubes in its construction, i.e. tubes with too large of a diameter and too small 28 of a wall thickness” and that “[t]he aftermarket components attached to the rear 1 crossmember were foreseeable and likely increased the stress around the hole in the 2 crossmember by approximately 3-4%, much less than the hole itself.” (Doc. 123 at 16).7 3 Reviewing this evidence collectively, the Court finds that Plaintiff has set forth 4 sufficient evidence form which a jury could concluded that the Talon suffered from a defect 5 which caused Decedent’s injuries. See Matsushita Elec. Indus. Co., 475 U.S. at 585–86. 6 Under the Consumer Expectation Test, Plaintiff has set forth facts to show that the Talon’s 7 ROPS failed to perform as safely as an ordinary consumer would expect when used in an 8 intended or reasonable manner. Golonka, 65 P.3d at 962. Indeed, consumers have 9 developed a reasonable expectation that a vehicle’s ROPS should restrain a passenger’s 10 body within the confines of the vehicle during a rollover crash. Thompson, 2019 WL 11 2173965, at *2 (“the ordinary consumer could reasonably expect, similar to a seatbelt, that 12 ROPS should restrain a passenger body within the confines of the vehicle during a rollover 13 crash.”). 14 Defendant argues this case is akin to Kostic v. AutoZone Parts Inc., 2021 WL 15 461939 (D. Ariz. Feb. 9, 2021). It is not. Kostic dealt with an informational defect theory, 16 not a design defect theory. See id. at *2. As well, unlike the plaintiff in Kostic, Plaintiff 17 has furnished evidence of a defect here. In Kostic, the court found that the plaintiff failed 18 to provide “any evidence” that the product lacked warnings and instructions ordinarily 19 included with it when it left the manufacturers hands. See id. Here, Plaintiff has furnished 20 evidence which demonstrates that the ROPS failed due to its defective design. (Doc. 100 21 at 11). Plaintiff’s expert, Dr. Mason concluded that the Talon’s ROPS was defective in 22 design because of the introduction of a hole in the underside of the rear cross bar.” (Doc. 23 123 at 16). Plaintiff also advances that Defendant’s own expert, Mr. Cooper, admitted in
24 7 While Dr. Mason did not perform any of his own testing, the Court found that “the admissibility of expert testimony ‘does not depend on the expert personally performing 25 testing.’ ” (Doc. 123 at 18 (citing Speaks v. Mazda Motor Corp., 118 F. Supp. 3d 1212, 1219 (D. Mont. 2015)). The Court also concluded that “Dr. Mason is qualified to testify 26 on the failure of the Talon’s crossbar generally and [it] will not exclude him from testifying” and noted that his testimony is “is ripe for rigorous cross-examination, not 27 exclusion.” (Id. (citing Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (“Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and 28 attention to the burden of proof, not exclusion.”)). 1 his deposition that “[a] hole of any kind creates a stress concentration . . . So the 2 contribution to the strength of that particular member is an increase in the localized stress 3 by a factor of 3.” (Doc. 100-2 at 69–70). In simpler terms, Dr. Cooper explained that “by 4 looking at the little tabs that are on almost every package that you want to get into these 5 days [there] are a stress concentration, which is a point where you can rip the top of the 6 bag open.” (Id. at 70). The experts in this case agree that the hole in the cross bar of the 7 Talon’s ROPS weakened it, so, Plaintiff has set forth evidence that the Talon contained a 8 defect—unlike the plaintiff in Kostic. Cf. Kostic, 2021 WL 461939 at *2. 9 Because Plaintiff has set forth evidence that the ROPS collapsed downward toward 10 Decedent during the roll-over and that this collapse caused his injuries, contrary to what a 11 reasonable consumer would expect, Plaintiff has satisfied the Consumer Expectation Test. 12 Martinez, 241 F.R.D. at 641. Furthermore, the fact that Decedent added aftermarket parts 13 to the roof of his Talon does not prevent Plaintiff from satisfying this test because he has 14 set forth credible evidence that the modifications he installed were foreseeable and only 15 increased the stress to the crossmember by three to four percent, so, he has, at the very 16 least, shown that a genuine dispute of fact exists as to this issue. Celotex Corp., 477 U.S. 17 at 322–23. 18 2. Whether the Defective Condition Existed at the Time it Left Defendant’s Control 19 20 Defendant next argues that Plaintiff cannot show that a defect was present when the 21 Talon left its control. (Doc. 84 at 14 n.8). 22 A plaintiff is not required to show that a defendant “caused a specific defect while 23 in control of the product,” they must only show that “some defect existed when the product 24 passed from defendant’s control to plaintiff.” Dietz, 685 P.2d at 747 (emphasis in original). 25 “[N]o specific defect need be shown if the evidence, direct or circumstantial, permits the 26 inference that the accident was caused by a defect.” Id. 27 Here, Plaintiff has put forth evidence that the Talon’s ROPS suffered from a defect 28 which existed when it left Defendant’s control. Dr. Mason concluded that the introduction 1 of a hole in the underside of the rear cross bar resulted in a defect to the Talon’s ROPS. 2 (Doc. 123 at 16). He also stated that “[t]he introduction of the hole made the cross bar 3 three times weaker than it was without the hole. The logical alternative designs include 4 eliminating the hole or moving the hole to the top or side of the tube. This is basic 5 engineering.” (Id. at 17; Doc. 84-10 at 6). And Dr. Markushewski concluded that the roll 6 cage failed and the roof panel and roll cage tubing collapsed downward toward the driver 7 occupant space. (Doc. 123 at 4). 8 Furthermore, changes to a product have not prevented a showing that a defect 9 existed where, as here, it could be reasonably inferred that the defect was the result of a 10 structural problem. See Dietz, 685 P.2d at 747. Dr. Mason’s testimony establishes as 11 much. (See Doc. 123 at 17). While “reasonable minds could differ over the conclusions 12 to be drawn from the evidence presented,” see Anderson, 477 U.S. at 250, this evidence 13 could allow a reasonable jury to infer that the Talon’s ROPS suffered from a defect. Dietz, 14 685 P.2d at 747. Thus, Plaintiff has set forth specific facts showing that there is a genuine 15 issue for trial as to this element. Anderson, 477 U.S. at 250; Fed. R. Civ. P. 56(e). 16 3. Proximate Cause 17 Defendant finally argues that Plaintiff cannot show that the alleged defect was the 18 proximate cause of Decedent’s injuries. (Doc. 84 at 7). 19 “The proximate cause of an injury is defined in Arizona as ‘that which, in a natural 20 and continuous sequence, unbroken by any efficient intervening cause, produces and 21 injury, and without which the injury would not have occurred.’ ” Long, 796 F. Supp. 2d at 22 1011 (quoting Shelburg v. City of Scottsdale Police Dep’t, 2010 WL 3327690, at *9 (D. 23 Ariz. Aug. 23, 2010)). “Ordinarily, what constitutes the proximate cause of any injury is 24 a question of fact. However, the jury is not entitled to make a decision absent a proper 25 evidentiary foundation.” D’Agnese v. Novartis Pharms. Corp., 952 F. Supp. 2d 880, 890 26 (D. Ariz. 2013) (quoting Gebhardt v. Mentor Corp., 191 F.R.D. 180, 184 (D. Ariz. 1999)). 27 In other words, “there must be some evidentiary foundation of proximate cause before the 28 question may be turned over to the jury.” Walsh v. LG Chem Am., 2021 WL 5177864, at 1 *5 (D. Ariz. Nov. 8, 2021) (citation omitted). 2 Here, there is, at the very least, some evidence that a defect in the Talon’s design 3 proximately caused Decedent’s injuries and death. Id. As stated above, Dr. Markushewski 4 concluded, in sum, that (1) the roll cage failed and the roof panel and roll cage tubing 5 collapsed downward toward the driver occupant space, (2) Decedent’s helmet was 6 impacted by the collapsing roof and roll cage structure creating a mechanism for his 7 ultimately fatal injuries, and (3) the roll cage structure was defectively designed and 8 unreasonably dangerous and not suited for its intended purpose. (See Doc. 100-3 at 33– 9 34). Dr. Rentschler further concluded that “[t]he intruding roof structure/roll cage 10 contacted [Decedent’s] helmet . . . [caused] type III fracture of the dens in combination 11 with failure of the anterior longitudinal ligament and widening of the C1-2 articulations as 12 noted in the available diagnostic studies.” (Doc. 123 at 13). He also testified at his 13 deposition that “absent deformation or crush damage to the ROPS, [Decedent] would not 14 have sustained the cervical injuries that he did as a result of the incident.” (Id. at 14). This 15 evidence sets forth specific facts showing that there is a genuine issue for trial as to the 16 proximate cause element. Dietz, 685 P.2d at 747; Anderson, 477 U.S. at 250. 17 In sum, Plaintiff has set forth sufficient facts to establish a prima facie case of strict 18 products liability as he has shown that a reasonable juror could find that (1) the Talon was 19 defective and unreasonably dangerous; (2) the defective condition existed at the time it left 20 Defendant’s control; and (3) the defective condition was the proximate cause of Decedent’s 21 injuries and death. See Dietz, 685 P.2d at 747; Anderson, 477 U.S. at 250 (stating that the 22 nonmoving party must set forth, by affidavit or otherwise as provided in Rule 56, “specific 23 facts showing that there is a genuine issue for trial.”). So, Defendant is not entitled to 24 judgment as a matter of law on Plaintiff’s strict products liability claim. 25 4. Defendant’s Affirmative Defense of Misuse 26 Defendant also argues that it is entitled to summary judgment because Plaintiff 27 materially altered the Talon and that this alteration was unforeseeable, which would 28 establish its misuse defense. (Doc. 84 at 12–13). Defendant essentially argues that Plaintiff 1 misused the Talon by installing the Quick Lite whip and a Rugged Radio aerial antenna to 2 the cross bar and improperly installing and/or using the aftermarket harness. (Id. at 14). 3 Defendant specifically argues that these modifications proximately caused Decedent’s 4 injuries because (1) the harness failed to properly restrain Decedent during the roll over 5 and (2) the mislocated whip “applied a concentrated load to the cross member during the 6 ROPS-to-ground contact that likely contributed to its fracture.” (Id.) (emphasis added). 7 Arizona law provides that a defendant in a strict products liability action shall not 8 be liable if it proves that “[t]he proximate cause of the incident giving rise to the action 9 was an alteration or modification of the product that was not reasonably foreseeable, made 10 by a person other than the defendant and subsequent to the time the product was first sold 11 by the defendant.” A.R.S. § 12-683(2). Similarly, a defendant can also shield themselves 12 from liability by proving that the proximate cause of the plaintiff’s injury was (1) “a use or 13 consumption of the product that was for a purpose, in a manner or in an activity other than 14 that which was reasonably foreseeable or [(2)] was contrary to any express and adequate 15 instructions or warnings appearing on or attached to the product . . .” A.R.S. § 12-683(3) 16 (emphasis added); see also Monje v. Spin Master Inc., 2015 WL 13648554, at *6 (D. Ariz. 17 July 24, 2015), aff'd, 679 Fed. Appx. 535 (9th Cir. 2017). Arizona law defines a reasonably 18 foreseeable use as one “that would be expected of an ordinary and prudent purchaser, user 19 or consumer and that an ordinary and prudent manufacturer should have anticipated.” 20 A.R.S. § 12-681(8). “[S]ome abnormal, or unintended uses will not constitute a legal 21 misuse of the product, if they are reasonably foreseeable.” Kavanaugh v. Kavanaugh, 641 22 P.2d 258, 263 (Ariz. Ct. App. 1981) (citations omitted). As a general rule, whether misuse, 23 modification, or alteration of a product is reasonably foreseeable is a question of fact for 24 the jury. See id. (misuse); Piper v. Bear Med. Sys., 883 P.2d 407, 412–13 (Ariz. Ct. App. 25 1993) (alteration or modification). 26 Here, Defendant has not “affirmatively demonstrate[d]” that a reasonable jury could 27 only find for it on the defense of misuse, in large part, because of the opinions of Dr. Mason 28 as well as concessions its own expert, Mr. Eddie Cooper, made during his deposition. See 1 Soremekun, 509 F.3d at 984. Dr. Mason concluded in his expert report that: 2 The ROPS was defective in design due to the introduction of a hole in the underside of the rear cross bar and due to the use of thin-walled tubes in its 3 construction, i.e. tubes with too large of a diameter and too small of a wall 4 thickness. The aftermarket components attached to the rear crossmember were foreseeable and likely increased the stress around the hole in the 5 crossmember by approximately 3-4%, much less than the hole itself. 6 (Doc. 123 at 16). This opinion essentially rebuts the conclusion that the modifications 7 were the cause of the cross member snapping or fracturing because the modifications only 8 increased the stress to it by three or four percent—“much less” than the predrilled hole. 9 (See id.) 10 Dr. Mason further states that “[t]he aftermarket components attached to the rear 11 crossmember were foreseeable.” (Doc. 123 at 16). As well, Mr. Cooper admitted in his 12 deposition that Decedent was using the Talon as it was intended and foreseeable. (Doc. 83- 13 7 at 4). This evidence prevents a finding that Decedent was misusing the Talon because, 14 to prove misuse, Defendant must affirmatively demonstrate that no reasonable trier of fact 15 could find other than for it. See A.R.S. § 12-683(3); Soremekun, 509 F.3d at 984. 16 Furthermore, Plaintiff has also set forth evidence that Decedent’s modifications 17 were not contrary to any express instructions or warnings appearing on or attached to the 18 product—which also undermines Defendant’s entitlement to judgment on its misuse 19 defense. A.R.S. § 12-683(3). Another of Plaintiff’s experts, Mr. Mark Cannon, was 20 engaged to “evaluate and comment on the reports submitted by [Defendant’s experts] Dr. 21 Fowler and Dr. Dorris on behalf of [Defendant]” and “address the issue of information and 22 warnings provided on the Honda Talon and the contrast between the findings in Drs. 23 Fowler’s and Dorris’ reports.” (Doc. 123 at 15). Mr. Cannon concluded in his rebuttal 24 report8 that the “[a]ntenna and flagpole bracket mounting are not addressed in these 25 8 The Court found in its Order dismissing Defendant’s Motions to Exclude Plaintiff’s 26 Experts that “since Mr. Cannon is designated as a rebuttal expert, he cannot testify in Plaintiff’s case-in-chief or at all unless and until Defendant’s experts testify as to the 27 opinions for which he has been designated as a rebuttal expert.” (Doc. 123 at 21). The Court will consider this evidence because “[t]o survive summary judgment, a party does 28 not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56.” Savage 1 warnings and the information about the bracket, as cited by Dr. Fowler, does not comport 2 with the warnings format extolled by Dr. Dorris.” (Id. at 15–16). Mr. Cannon also noted 3 that “[i]f the flagpole mounting information is as critical as Dr. Fowler describes, then it 4 needs to follow Dr. Dorris’ recommended format regarding warnings relative to safety. 5 And by Dr. Dorris’ reckoning, the flagpole bracket information in the manual is deficient 6 and not reasonable nor appropriate.” (Id. at 18). These opinions support Plaintiff’s 7 contentions that (1) the ROPS’ failure was due to a product defect, not the installation of 8 aftermarket parts; (2) the installation of these aftermarket parts was foreseeable; and (3) 9 the warnings against such modification were deficient. (See id. at 15–18). A misuse 10 defense is only available when an alteration or modification of the product is concerned if 11 the modification was “[t]he cause of the incident giving rise to the action.” A.R.S. § 12- 12 683(2) (emphasis added). The opinions of Plaintiff’s experts demonstrate that there are 13 genuine issues of material fact regarding the cause of the incident here. 14 Moreover, “[d]etermining the credibility of witnesses, resolving evidentiary 15 conflicts, and drawing reasonable inferences from proven facts” falls within the exclusive 16 province of the jury. Taylor v. Cnty. of Pima, 2023 WL 2652602, at *3 (D. Ariz. Mar. 27, 17 2023) (quoting United States v. Lukashov, 694 F.3d 1107, 1116 (9th Cir. 2012)). 18 Defendant’s experts and Plaintiff’s experts each establish facts for and against misuse. For 19 the Court to find one way, or the other, on this issue, the Court would necessarily have to 20 make credibility determinations or weigh conflicting evidence—which, again, the Court 21 cannot do at the summary judgment stage. See T.W. Electric Service, 809 F.2d at 630–31. 22 Indeed, whether the misuse, modification, or alteration of a product is reasonably 23 foreseeable is generally a question of fact for the jury—and this question should be decided 24 by the jury in this case—not the Court. See Kavanaugh, 641 P.2d at 263. 25 In sum, Defendant has not demonstrated that it is entitled to judgment as a matter of 26 law on Plaintiff’s strict product liability claim because there are genuine issues of material
27 v. City of Whittier, 689 F. Supp. 3d 781, 794 (C.D. Cal. 2023) (citation omitted). “[W]hen evidence is not presented in an admissible form in the context of a motion for summary 28 judgment, but it may be presented in an admissible form at trial, a court may still consider that evidence.” Id. (emphasis added). 1 fact showing that this claim is ripe for trial. Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 2 322–23 3 IV. Plaintiff’s Motion for Summary Judgment 4 Next, the Court will address Plaintiff’s Motion for Partial Summary Judgment. 5 Plaintiff seeks judgment on a narrow issue: Defendant’s affirmative defense of misuse. 6 (Doc. 83 at 1). Plaintiff argues that, although misuse is an available affirmative defense 7 under A.R.S. § 12-683(3), it is not available in this case because the Talon’s rollover was 8 foreseeable. (Id. at 6 (citing Cota v. Harley Davidson, 141 Ariz. 7, 684 P.2d 888 (Az. Ct. 9 App. 1984)). Defendant argues that Arizona law provides for a misuse defense here 10 because Decedent acted contrary to the express and adequate Talon instructions and his 11 misuse was not reasonably foreseeable. (Doc. 107 at 8). Interestingly, even though 12 Defendant also moved for summary judgment on this ground, it argues that there are 13 genuine issues of material fact which prevent judgment as a matter of law on the issue of 14 misuse. (Id. at 7). 15 As stated above, Arizona law provides that a defendant in a strict products liability 16 action shall not be liable if it proves that “[t]he proximate cause of the incident giving rise 17 to the action was an alteration or modification of the product that was not reasonably 18 foreseeable, made by a person other than the defendant and subsequent to the time the 19 product was first sold by the defendant.” A.R.S. § 12-683(2). A defendant can also shield 20 themselves from liability by proving that the proximate cause of the plaintiff's injury was 21 (1) “a use or consumption of the product that was for a purpose, in a manner or in an activity 22 other than that which was reasonably foreseeable or [(2)] was contrary to any express and 23 adequate instructions or warnings appearing on or attached to the product . . .” A.R.S. § 24 12-683(3) (emphasis added); see also Monje, 2015 WL 13648554, at *6. As a general rule, 25 whether misuse, modification, or alteration of a product is reasonably foreseeable is a 26 question of fact for the jury. See id. (misuse); Piper, 883 P.2d at 412–13. 27 Here, the Court agrees with Defendant that Plaintiff cannot show he is entitled to 28 judgment as a matter of law on misuse because Defendant has set forth evidence that 1 Decedent’s modifications to the Talon could have caused the cross bar to fracture. The 2 proposed expert testimony shows that the proximate cause of Decedent’s injuries, whether 3 it was the modifications or a defect, is ripe for trial. For example, Defendant’s expert, Dr. 4 Michael Carhart, noted that “the original equipment restraint system of the [Talon] had 5 been removed prior to the subject pitch-over crash and replaced with an aftermarket four- 6 point restraint that was not properly installed or adjusted at the time of the crash.” (Doc. 7 107-9 at 12) (emphasis added). Dr. Fowler also opines that Decedent’s installation of a 8 “Quick Lite mounting bracket” which was “bolted and welded to the center roof attachment 9 tab . . . applied a concentrated load to the rear cross member during the ROPS-to-ground 10 contact.” (Doc. 107-3 at 15). Fowler further states that “[t]he Quick Lite whip mounted 11 to the rear roof bracket and the base of the Rugged Radio aerial antenna would have applied 12 a concentrated load to the cross member during the ROPS-to-ground contact.” (Id. at 26) 13 (emphasis added). Dr. Fowler also notes that Defendant provides a “flagpole bracket low 14 on the C-pillar which, had it been used, would not generate the same loading patterns to 15 the ROPS in the advent of a tip over as occurred in the subject incident.” (Doc. 107-3 at 16 21). Defendant expressly warns users that accessories can add extra weight to the ROPS, 17 which reduces the overall weight that the ROPS is capable of bearing. (Doc. 107-5 at 12 18 (“Modifying your vehicle or using non-Honda accessories can make it unsafe . . . You 19 should also be aware that accessories add weight, reducing the amount of cargo and total 20 weight you can carry, and can raise the vehicle’s center of gravity, increasing the risk of a 21 rollover.”)). 22 When juxtaposed to Plaintiff’s evidence, Defendant’s evidence demonstrates that 23 there are genuine fact issue for trial. Anderson, 477 U.S. at 250; Fed. R. Civ. P. 56(e). As 24 previously discussed, Dr. Mason states that the modifications Decedent installed were 25 foreseeable and that they did not cause the cross bar to fail during the roll over. 26 (Doc. 123 at 16). Instead, Dr. Mason opines that the cross bar failed because the hole that 27 was drilled in the middle of it made it weaker. (Id.) 28 As demonstrated, the parties’ expert testimony in this case is in direct conflict, so, the applicability of Defendant’s misuse defense will require the fact-finder to make 2|| credibility determinations as to these experts. This responsibility falls to a jury —not the 3|| Court. See Kavanaugh, 641 P.2d at 263. Thus, the Court declines to enter judgment in 4|| Plaintiff's favor on the issue of misuse. 5 Accordingly, 6 IT IS ORDERED that Plaintiff’s Motion for Partial Summary Judgment (Doc. 83) 7\| and Defendant’s Motion for Summary Judgment (Doc. 84) are DENIED. 8 IT IS FURTHER ORDERED that Plaintiff's punitive damages claim contained in Count IV of his Complaint (Doc. 1-2 at {| 49-52) is DISMISSED, as the parties have 10 || stipulated to this dismissal. 11 IT IS FINALLY ORDERED that considering Plaintiff's remaining claims, the parties are directed to comply with Paragraph 10 of the Rule 16 Scheduling Order 13 || (Doc. 10 at 6—7) regarding notice of readiness for pretrial conference. Upon a joint request, the parties may also seek a referral from the Court for a settlement conference before a 15 || Magistrate Judge. 16 Dated this 23rd day of September, 2024. 17 18 fe La 13 norable'Diang4. Hurmetewa 0 United States District Fudge 21 22 23 24 25 26 27 28
-18-