By Michael Hoenig - New York Law Journal -
November 14, 2011
The New York Court of Appeals issued
its decision in
Doomes v. Best Transit Corp.1 on Oct. 18,
2011. The case involved a 1994 accident in which a bus driver
fell asleep at the wheel while driving on a highway at 60 miles
per hour. The bus veered across the highway onto a sloping
embankment and rolled over several times. There were 19 injured
passengers. Plaintiffs were four of them plus a mother
representing two injured infants. The plaintiffs alleged two
categories of design defects. They contended the bus was
defective for failure to have passenger seat belts. They also
alleged that the weight distribution of the bus, with its
redesigned and lengthened chassis was misbalanced, with too much
weight over its rear, preventing the driver from regaining
control of the bus.
At a joint trial, the jury
partially faulted the products liability defendant, Warrick
Industries, for failing to provide the bus with seat belts and
for manufacturing the bus with an altered weight distribution
from that provided in the original chassis made by Ford Motor
Company. The jury awarded verdicts ranging from $1 million to
$10 million which the trial court reduced to range from $550,000
to some $3.8 million. Prior to trial, Warrick unsuccessfully
moved to dismiss the seat belt claims on the ground of federal
preemption by Federal Motor Vehicle Safety Standard (FMVSS) 208,
requiring manufacturers to equip vehicles with certain
On appeal, the Appellate
Division, First Department, reversed the judgments holding that
the seat belt claims were preempted and that the weight
distribution claim had to be dismissed because there was "no
credible non-speculative evidence concerning the vehicle's
weight or its distribution" and because plaintiffs' expert
"acknowledged that the accident was unrelated to the extension
of the chassis, and admitted there was no proof it had been
caused by anything other than the driver's inattentiveness."2
The Court of Appeals held the
seat belt claims were not preempted but affirmed the Appellate
Division on dismissal of the accident-causing design claim. The
case was remanded to the Appellate Division for consideration of
issues raised but not determined on the appeal to that court.
Here we will briefly review the preemption ruling and then focus
on the insufficiency of the expert's proof on the design claim.
Both issues are important. There are lots of buses out there
without seat belts. Does Doomes now mean that a
failure-to-install-a-seat-belt claim can be filed every time a
bus occupant is injured and it is alleged that a seat belt would
have prevented or mitigated the injury? Further, what, if
anything, does the Court of Appeals' ruling regarding the
speculative expert testimony mean for other products cases?
To put into perspective the
no-preemption ruling in Doomes, a bit of background is
Geier v. American Honda Motor Co.,3 the
U.S. Supreme Court held preempted a claim that a 1987 Honda
Accord was defective for failure to have a driver-side airbag.
FMVSS 208 permitted manufacturers to choose from various types
of restraint systems and did not require airbags. The Court
reasoned that the federal safety agency deliberately sought
variety—"a mix of several different passive restraint systems."
A state law tort claim that would require installation of
airbags would frustrate the federal agency's objectives and
present an obstacle to the mix of restraint devices sought by
federal standard 208. The conflict with federal law preempted
the state tort claims.
Williamson v. Mazda Motor of America Inc.,4
however, the U.S. Supreme Court held a lawsuit claiming that a
minivan's rear compartment inner seat should have included a
shoulder harness was not preempted. FMVSS 208 was also involved
in Williamson, but it was a different section from the
one in Geier so the differences in the regulatory history
and objectives of each as well as agency views of the two
provisions persuaded the Court to hold that the California
lawsuit did not conflict with the federal scheme for purposes of
preemption.5 The full effect of the Geier and
Williamson rulings on a variety of crashworthiness
allegations that differ from those presented in the two cases
but that nevertheless seem to conflict with other FMVSS
standards has yet to unfold. Doomes is one new
development in this process.
In Priester v. Ford Motor
Co.,6 days after its Williamson decision,
the U.S. Supreme Court issued its order granting certiorari, but
vacating the matter and remanding to the South Carolina Supreme
Court for reconsideration in light of Williamson. The
Priester case involved a truck rollover in which an occupant
was ejected suffering fatal injuries. The suit contended the
manufacturer should have used laminated glass in the truck side
window instead of tempered glass. The applicable standard
offered a choice. The South Carolina Supreme Court earlier had
held the lawsuit preempted. On remand, the South Carolina Court
invited the parties to submit supplemental briefs on the effect
of the Williamson decision.
In Doomes, a 6-1 Court
of Appeals majority concluded that the regulatory record
applicable to the subject of requiring seat belts in buses made
the case "more analogous to…Williamson, which held that
the plaintiff's seat belt claims were not preempted."7
The Court found a "lack of preemptive intent."8 For
details on this reasoning, interested readers should review the
Court's discussion. There are arguments to the contrary, as
reflected in Judge Eugene F. Pigott Jr.'s dissenting opinion. He
viewed the federal standard as not requiring passenger seat
belts because "safety was paramount" in the safety agency's
decision that "larger buses are safer than smaller buses and
that the latter should have passenger seat belts while the
former need not." By holding "no-preemption," the Court has, in
essence, "required that motor carriers of large buses must
comply with small bus regulations," which Judge Pigott did not
find to be Congress' intent.9
Aside from the no-preemption
decision, the Court's discussion regarding the insufficiency of
the expert's proof on the weight distribution claim conveys
intriguing lessons for design cases generally. Let's follow the
trail cleared by the Court. The bus in question originated with
a chassis made by Ford Motor Company (which had settled with
plaintiffs). The overall gross vehicle weight rating (GVWR) was
11,500 pounds. Defendant Warrick modified the chassis by
extending its length from 138 inches to 186 inches and
increasing the GVWR to 13,500 pounds.
Plaintiffs contended that a
proper apportionment of weight between the axles is 60 percent
(rear) and 40 percent (front). The modified chassis, however,
had a distribution of 68 percent and 32 percent, respectively.
Their expert opined that this negligent distribution was a
substantial factor in causing the accident. But the Court noted
deficiencies with his opinions. First, his conclusions as to the
bus' weight were based on "speculative weight estimates of
passengers, fuel, and luggage, and not empirical data."10
Specifically, the expert testified that the evidence
alluded to the driver's inattentiveness as a contributing
factor. He attempted to calculate the weight of the bus, "but
there was insufficient information." Nor could he tell "with
certainty whether the proper 60% to 40% weight ratio existed as
his opinions were not from his experience and knowledge of [the]
While the expert discussed
various weight ratings for different components of the bus, "he
failed to present any calculations that would indicate that the
weight distribution contributed to the rollover accident." Thus,
any findings that the weight distribution adversely affected
steering and handling "were conclusory and based on speculative
data that failed to establish a causal relationship to the
Interestingly, none of the
Appellate Division precedents cited by the Court against
accepting conclusory and speculative expert proofs (the
Cotter cases)12 was a products case and
none of them involved proofs at a jury trial. All were summary
judgment settings in which the plaintiff's expert opposed the
motion with an affidavit or report. In Fotiatis,
plaintiff fell on a public roadway. The expert's affidavit was
deemed "speculative and conclusory, and his opinion was not
supported by empirical data or any relevant industry standard."
In Briggs, plaintiff
sued her landlord and a plumber alleging she was injured by a
defective radiator in her apartment. Her expert's affidavit as
to the plumber's negligence "lacked any probative value" since
it was based on the assumption, without evidentiary support,
that the plumber had installed the radiator without a control
knob or that it had been retained to install a radiator cover.
And, in Cotter,
plaintiff firefighter injured his knee and thumb while
extinguishing a fire at a Kentucky Fried Chicken restaurant. His
suit was based on violations of the city's Administrative Code
because of a hole in the floor and accumulated debris.
Plaintiff's expert did not personally inspect the premises but
only relied on documents presented to the court. The problem was
that the assertion of a hole in the floor that trapped the
fireman's foot was "pure conjecture." The allegation of
accumulated debris that made him fall was "speculative." The
expert's opinions about spread of fire and smoke due to the
violations were "speculative" and "bare conclusions."
It seems, therefore, that the
species of deficiencies in the trial testimony of the
plaintiffs' expert in Doomes was similar to
insufficiencies often found in experts' affidavits submitted in
summary judgment motions. This should be noted in conjunction
with the Court's recitation in Doomes of proof
requirements in product design cases, a helpful, nugget-size
restatement of New York law.13 Thus, generally, in a
strict products liability claim, the manufacturer of a defective
product is liable to any person injured or damaged if the defect
was a substantial factor in bringing about the injury or
In Doomes, where
plaintiffs alleged a design defect based on the negligent
modification of the bus chassis' weight distribution, the
relevant inquiry is "whether the product, as designed, was not
reasonably safe." Thus, plaintiffs "carry the burden of showing
that the product, as designed, was not reasonably safe because
there was a substantial likelihood of harm and it was feasible
to design the product in a safer manner." Moreover, plaintiffs
must show that the design defect was a proximate cause of their
injuries.14 This discussion of applicable proof
burdens preceded the Court's analysis of insufficiencies in
plaintiffs' expert evidence.
One lesson to be learned is
that proving design defects is serious business. One doesn't
show a product is "not reasonably safe" by proffering some
expert's bare personal opinion or speculative conclusion. When
the Court says plaintiffs "carry the burden of showing" that
there was a "substantial likelihood of harm" and that it was
"feasible to design the product in a safer manner," this is not
some talismanic rhetoric that is satisfied by an expert's
personal opinion. When a bus driver falls asleep at the wheel
and swerves the vehicle across the highway onto a sloping
embankment, that clearly is a highly plausible, if not certain,
cause of the rollovers. In the face of such a scenario, to show
that the product, as designed, bespoke a "substantial likelihood
of harm" is a tall order.
If the bus with a modified
chassis safely negotiates highway driving when a driver does not
fall asleep, then an expert's personal opinion does not, of
itself, establish a substantial likelihood of harm. If anything,
the proofs then have to have a high level of probative dignity.
Thus, conclusory and speculative expert testimony cannot
suffice, especially when a plausible non-defect reason for the
accident is unassailable.
Similarly, the Court's
additional proof requirement, that "it was feasible to design
the product in a safer manner," presupposes, first, a competent
showing that a "substantial likelihood of harm" emanated from
the product, as designed. If the 68 percent (rear) and 32
percent (front) weight distribution is reasonably safe, or is
not shown to be "not reasonably safe," then even good proof that
a 60 percent to 40 percent distribution is "safer" is still not
competent proof of a defect. "Optimum" or "better" safety is not
the criterion.15 And when the expert doesn't have the
necessary facts, but assumes and speculates, his conclusions
fail at the threshold. That is a sober 'Doomes'day
"no-preemption" decision may have opened up vistas of
"no-seatbelt" litigation for larger buses that traditionally
were not required to have passenger restraints. On the other
hand, the Court's piercing analysis of the insufficiency of the
expert's proofs sends a message that conclusory expert testimony
of a "safer" design should be rejected, whether in a summary
judgment setting or a trial.
Michael Hoenig is a
member of Herzfeld & Rubin.
1. 2011 NY Slip
Op 7256, 2011 N.Y. Lexis 3081 (Ct. App. Oct. 18, 2011).
2. Doomes v.
Best Transit Corp., 68 AD 3d 504, 2009 N.Y. App. Div. Lexis
8972 (1st Dept. Dec. 10, 2009), rev'd in part (preemption) and
aff'd in part (weight distribution claim), 2011 NY Slip Op 7256,
2011 N.Y. Lexis 3081 (N.Y. Ct. App. Oct. 18, 2011).
3. 529 U.S. 861
4. 131 S. Ct.
discussion of Williamson in Hoenig, "Supreme
Court Speaks (Again) on Preemption," NYLJ, March 14, 2011,
p. 3; M. Wheeler and N.J. Wittner, "A Look Through Tinted Glass:
What Does the Future Hold for Preemption in Motor Vehicle
Litigation?" 39 B.N.A. Product Safety and Liability, No. 20,
515-26 (May 16, 2011).
6. 131 S. Ct.
Lexis at **13.
8. Id., Lexis
9. Id., Lexis
at **25 to **28 (dissenting opinion).
10. Id., Lexis
at **20 -**21 (citing Fotiatis v. Cambridge Hall Tenants
Corp., 70 AD3d 631, 632 (2d Dept. 2010); Briggs v. 2244
Morris, L.P., 30 AD3d 216 (1st Dept. 2006)).
Lexis at **21 to *22 (citing Cotter v. Pal & Lee Inc., 86
AD 3d 463, 466-467 (1st Dept. 2011).
12. See nn. 10
and 11 supra.
Lexis at **19 -**20.
14. Id. (citing
and quoting from
Voss v. Black & Decker Mfg. Co., 59 NY2d 102, 106-107
Cover v. Cohen, 61 NY2d 261, 272 (1984).
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