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August 12, 1996

FREDERICK PESCE, as Guardian of the Person and Property of JOAN PESCE, a person alleged to be incapacitated, Plaintiff,

The opinion of the court was delivered by: HURD

 Presently before the court are numerous motions filed by both parties, as outlined below. Oral arguments by the parties were heard by the court on June 13, 1996, in Utica, New York.


 The plaintiff, Frederick Pesce, filed this diversity action on behalf of his wife Joan Pesce alleging that she was very seriously injured while driving her 1990 Chevrolet Berretta manufactured by defendant General Motors Corporation ("GM"). The claims include defective design and manufacture, breach of implied and express warranties, negligence, and strict products liability, seeking compensatory and punitive damages. Plaintiff also alleges a consequent loss of companionship and the services of his wife. The defendant denies the material allegations in the complaint and alleges various affirmative defenses.


 On February 4, 1992, Joan Pesce was driving her car within the Town of Hartwick, New York, west on County Route 11 which was partially snow covered. Mrs. Pesce approached the vehicle traveling in front of her, which was traveling at a slower rate of speed, and applied her brakes. She then skidded into the oncoming lane of traffic, and her vehicle was struck by a 1977 Oldsmobile being driven by a Gary Harrington.

 Mrs. Pesce suffered severe permanent injuries, including brain damage. Many of the specific facts as to the causes of her injuries are hotly contested by the parties. The issue of how Mrs. Pesce sustained her injuries has partially to do with the manner in which the vehicles interacted during the crash sequence, which is also contested by the parties and the experts they have retained. Mrs. Pesce was unquestionably wearing her seat belt at the time of the incident. Plaintiff alleges that the seat belt in the Pesce vehicle manufactured by defendant GM failed to protect his wife. Several weeks after her injury and during her hospitalization, Mr. Pesce received in the mail a recall notice from GM pertaining to the seat belts in Mrs. Pesce's Chevrolet. GM had discovered a manufacturing defect in vehicles like the 1990 Chevrolet Beretta, which potentially would render the front seat belts inoperative.

 At some point after the collision, but before the beginning of litigation, the driver's shoulder belt "D" ring and shoulder belt retractor were "chiseled" out of the vehicle and are now missing and unaccounted for. GM contends that without the missing items to examine, there is no direct evidence of the failure of the seat belt to protect Mrs. Pesce.


 A. Defendant's Motion for Summary Judgment

 Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).

 When the moving party has met the burden, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586. At that point, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56; Liberty Lobby, Inc., 477 U.S. at 250; Matsushita Elec. Indus. Co., 475 U.S. at 587. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-49; Matsushita Elec. Indus. Co., 475 U.S. at 587.

 In a diversity action, the court must apply the substantive law of New York. Caiazzo v. Volkswagenwerk A.G., 647 F.2d 241, 243 (2d Cir. 1981). The New York Court of Appeals has extended liability to vehicle manufacturers in matters often referred to as "second collision" cases. Tiner v. General Motors Corp., 909 F. Supp. 112, 116 (N.D.N.Y. 1995). These cases involve defects which the plaintiff does not claim caused the accident itself, but rather enhanced or aggravated plaintiff's injuries. Bolm v. Triumph Corp., 33 N.Y.2d 151, 159, 350 N.Y.S.2d 644, 305 N.E.2d 769 (1973). Such cases involve incidents where a driver and possibly a passenger of a vehicle are involved in a collision with another vehicle or object during which time, as a result of the initial collision, the occupants of the vehicle move about and hit interior portions of the cabin or are ejected from the vehicle and injured. Caiazzo, 647 F.2d at 243 n. 2.

 "In a products liability case it is now established that, if plaintiff has proven that the product has not performed as intended and excluded all causes of the accident not attributable to defendant, the fact finder may, even if the particular defect has not been proven, infer that the accident could only have occurred due to some defect in the product . . . ." Halloran v. Virginia Chemicals Inc., 41 N.Y.2d 386, 388, 393 N.Y.S.2d 341, 361 N.E.2d 991 (1977); see also Codling v. Paglia, 32 N.Y.2d 330, 337-338, 345 N.Y.S.2d 461, 298 N.E.2d 622 (1973) (jury could correctly find that defendant was liable without direct proof of a malfunction, through inference); Fogal v. Genesee Hosp., 41 A.D.2d 468, 477-478, 344 N.Y.S.2d 552 (4th Dep't 1973) (while evidence in case was circumstantial, it was sufficient to affix liability to manufacturer).

  General Motors moves for summary judgment, and doing so, claims that having come forward, it meets the burden of proof necessary to establish that there is no genuine issue of material fact. GM argues that it is incumbent upon the plaintiff to come forward because "then the burden shifts to the nonmovant to proffer evidence demonstrating that a trial is required because a disputed issue of material fact exists." Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir. 1993). Defendant contends that because the shoulder belt retractor and "D" ring are missing, and because the retractor is the allegedly defective item, that there can be no direct proof of the failure of the seat belt to protect plaintiff from enhanced injury during the collision.

 Under such circumstances, GM argues that direct proof of the defect is not possible, and plaintiffs must circumstantially establish that the evidence excludes all explanation for the occurrence other than that the seat belt was defective and significantly enhanced Mrs. Pesce's injuries.

 General Motors argues that it has, through the examination of evidence by several experts, established that the cause of Joan Pesce's injuries was in fact, not the failure of the seat belt retractor to lock, but rather the manner in which the Pesce vehicle and the other vehicle collided. An expert retained by defendant, Dr. Murray MacKay ("MacKay"), examined the injury pattern of the plaintiff and determined that in his expert opinion, the evidence appeared to be that the seat belt did lock, and therefore, there was no malfunction of the allegedly defective retractor. MacKay based his opinion upon several interpretations of evidence. First, MacKay opined that the right lower rib fractures of Joan Pesce are conclusive of the seat-belt locking. This opinion was buttressed with the fact that the lap portion of the seat belt, containing an "energy management loop," or webbing stitching designed to tear under direct pressure, was not torn. MacKay claimed that only direct pressure would tear the lap belt stitching. Because the direct pressure was allegedly absorbed by the shoulder belt, it was to be expected that the lap belt stitching would not be torn. Further, MacKay opined that the ...

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