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March 30, 2004.


The opinion of the court was delivered by: BARBARA JONES, District Judge

Opinion & Order

Plaintiff pro se, Erma Jeanine Buckley, brings this personal injury action against Defendant General Motors Corporation ("GM") alleging that she was injured when an unspecified defect in her 1996 Chevrolet Blazer caused the vehicle to overturn while she was driving. Before the Court is Defendant's motion for summary judgment. For the reasons set forth below, Defendant's motion is DENIED.


  Plaintiff claims that while passing a car on the left in her 1996 Blazer, she drove over a "dent" or "bump" in the road. (Buckley Dep. at 74-75, 78-79). Plaintiff's vehicle then began to lean to the left, ultimately veering onto the left shoulder of the road. (Id. at 79-80.)*fn1 Seeking to compensate for this Page 2 leftward lean, Plaintiff steered towards the right and began pushing on the brake. (Id. at 80, 82). In response, the vehicle slowed down and returned to the left travel lane. (Id. at 85). Plaintiff continued*driving in the left lane and applied her foot to the gas pedal to gain speed. (Id. at 86). Plaintiff had no problem steering the vehicle. (Id.) Eventually, Plaintiff moved over into the right lane and attempted to slow down. (Id. at 86-87). She was unable to slow down, however, and was forced to steer the vehicle onto the right shoulder. (Id. at 88). Once on the shoulder, the vehicle still would not slow down in response to a brake application by Plaintiff. (Id. at 88-89). During this period, Plaintiff felt the vehicle lean toward the right. (Id. at 94). To compensate, Plaintiff steered the vehicle toward the left. (Id. at 93-94). Feeling that she was not steering fast enough, her son — who was a passenger in the vehicle and asleep until this point — grabbed the wheel and also turned it to the left. (Id. at 95-96). At some point either directly before or after Plaintiff's son grabbed the wheel, the vehicle began to roll over; either way, the roll-over occurred after Plaintiff began turning the steering wheel to the left. (Id. at 97).

  This case was previously scheduled for trial on November 13, 2001. In anticipation of that trial date, Defendant filed a motion in limine to exclude the testimony of Plaintiff's expert, J.R. Hulse, on the grounds that Hulse was not qualified to render Page 3 an expert opinion in this matter and that Hulse's opinion was without factual basis. The Court conducted a hearing on the morning of November 13, 2001, postponed the trial, and, in an Opinion dated November 15, 2001, granted Defendant's motion to exclude Hulse's opinion. Because, at that juncture, Plaintiff could offer no expert testimony regarding causation, and because the Court found that Plaintiff had offered no evidence upon which a reasonable juror might find causation, the Court also granted summary judgment for Defendant.

  Plaintiff appealed the Court's summary judgment decision, and the Second Circuit, in an unpublished summary order, reversed the decision and remanded on the ground that Plaintiff had not been afforded the necessary notice to oppose the entry of summary judgment. In the summary order, the Second Circuit also expressed "doubt that Buckley's lack of expert testimony in support of her theory of causation is sufficient to justify the grant of summary judgment to [GM]," noting that "New York law does not require expert witnesses to prove causation in a products liability action, but permits proximate causation to be established solely on the basis of the jury's `consideration of the characteristics of the [product] and plaintiff's description of how the accident happened.'" Buckley v. General Motors Corp., 54 Fed.Appx. 712, 713, 2003 WL 57306, at *1 (2nd Cir. Jan. 6, 2003) (quoting Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, Page 4 110 (1983)).

  Now, having received and reviewed briefs from Buckley and GM, the Court has concluded that, although Plaintiff may not introduce the testimony of her expert,*fn2 she is nonetheless entitled to a jury trial on her claim.


  Under New York's strict product liability law, the manufacturer of a defective product is liable to an injured or damaged person if:
(1) the product is `defective' because it is not reasonably dangerous as marketed; (2) the product was used for a normal purpose; (3) the defect was a substantial factor in causing the plaintiff's injuries; (4) the plaintiff by the exercise of reasonable care would not have both discovered the defect and apprehended its danger; (5) the plaintiff would not have otherwise avoided the injury by the exercise of ordinary care.
Urena v. Biro Mfg. Co., 114 F.3d 359, 363 (2d Cir. 1997). To prevail in a design defect case, a plaintiff need not present proof of a specific defect, but rather may satisfy her prima facie burden by presenting circumstantial evidence of a defect. Jarvis v. Ford Motor Co., 283 F.3d 33, 46 (2d Cir. 2002). The question presented in this case is whether a plaintiff must present a specific theory of defect or whether the mere allegation that an injury occurred when the plaintiff was using Page 5 defendant's product in a reasonably foreseeable manner is sufficient to survive summary judgment. As this Court reads the relevant New York law, a plaintiff need not specify a particular defect.

  New York law unequivocally states that a plaintiff need not present proof of a specific defect in order to prove causation.

[P]laintiff is not required to prove the specific defect, especially where the product is complicated in nature. Proof of necessary facts may be circumstantial. Though the happening of the accident is not proof of a defective condition, a defect may be inferred from proof that the product did not perform as intended by the manufacturer.
Jarvis, 283 F.3d at 44 (quoting Codling v. Paglia, 32 N.Y.2d 330, 337 (1973)); see also Halloran v. Virginia Chemicals, Inc., 41 N.Y.2d 386, 388 (1977) ("[i]n 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 or its packaging"). One Appellate Division case, Hunter v. Ford Motor Co., 37 A.D.2d 335 (3d Dep't 1971), takes the next step and concludes that a plaintiff need not "name" — i.e. specify — a particular defect in order to state a prima facie case.
  In Hunter, the court refused to set aside a verdict favorable to plaintiff where a plaintiff's expert was unable to Page 6 identify a specific defect in the axle or to find precisely the cause of the break in plaintiff's truck axle. The plaintiff testified that "while driving alone in the truck, he heard a sudden noise, `the lower left section of the truck dropped onto the road, and the truck veered sharply to the left . . . tipped over and went off the road down the [right] embankment.'" Id. at 336. After the accident, the vehicle was found to have lost its left rear wheel and the rear axle was broken. Plaintiff's expert, who was unable to identify any specific defect, testified that "a properly designed and manufactured axle should not normally break in this way and that it was his opinion that the material was defective." Id. The court found that this testimony constituted:
sufficient evidence to state a prima facie case against appellants which permitted submission of the case to the jury. This is evident since, although in both actions in negligence and breach of warranty a plaintiff must come forward with evidence of a defect, existence of the causative defect is provable by circumstantial evidence. The precise defect need not be named and proved; it is sufficient if the cumulation of circumstances and inferences, which includes the pattern of the accident, supports the conclusion that there was a defect which caused the accident.
Id. (emphasis added).

  Similarly, here, Plaintiff will testify that her vehicle veered to the left (Buckley Dep. at 79-80), she was unable to slow the vehicle down when she applied the brake (Id. at 88-89), Page 7 the vehicle then began to lean to the right (Id. at 94), and that the vehicle rolled over when she attempted to steer the vehicle to the left. (Id. at 95-97). Plaintiff will not be permitted to introduce the testimony or the theory of defect espoused by her expert, as this Court has previously held that her expert is not qualified to testify in this action. Thus, Plaintiff will be unable to point to any specific failure in any particular element of her automobile — i.e., a defect in the rear axle — that caused her injuries. She can, however, testify that her injuries were caused when her vehicle unexpectedly rolled over.

  That Plaintiff will not be able to introduce expert testimony stating that her vehicle did not perform as intended does not mandate summary judgment. "Expert testimony with reference to proximate causation [in design defect cases] is not always required." Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 110 (1983). A plaintiff need not introduce expert testimony to establish that a vehicle should neither veer nor lean to one direction if the driver is not steering in that direction, that a vehicle should slow down when the brake is applied, and that a vehicle should not roll over under normal driving conditions; such a conclusion is within the common knowledge of a juror. See W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 41, at 270 (5th ed. 1984) ("Circumstantial evidence, expert testimony, or common knowledge may provide a basis from which the Page 8 causal sequence may be inferred."); see also Ulfik v. Metro-North Commuter R.R., 77 F.3d 54, 59-60 (2d Cir. 1996) ("the trier of fact could reasonably determine, without expert testimony, that prolonged exposure to paint fumes would cause ...

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