Citations
- 894 F. Supp. 2d 606
Full opinion text
OPINION
MARK R. HORNAK, District Judge.
This is a products liability case seeking recovery for injuries allegedly caused by a defective golf car.
Mercedez Lynn and her parents, Robert and Melissa Lynn (collectively, the “Plaintiffs” or the “Lynns”), bring this civil action against Yamaha Golf-Car Company, Yamaha Motor Manufacturing Corporation, Yamaha Motor Manufacturing Corporation of America, and Yamaha Motor Manufacturing Corporation, U.S.A. (collectively, the “Defendants” or “Yamaha”) for severe head injuries sustained by Mercedez Lynn when, as a passenger, she was thrown from a golf car manufactured by the Defendants. Now pending before the Court are Yamaha’s Motion for Summary Judgment, ECF No. 32, and Motion to Preclude the Testimony of Kristopher Seluga, M.S., P.E., Under Federal Rule of Evidence 702. ECF No. 34. Having been fully briefed and argued, these matters are ripe for disposition. For the reasons that follow, the Motion to Preclude the Testimony of Kristopher Seluga, M.S., P.E., Under Federal Rule of Evidence 702 is denied, and the Court will grant in part and deny in part the Motion for Summary Judgment.
I. FACTUAL BACKGROUND
On April 30, 2008, Plaintiff Mercedez Lynn, then thirteen (13) years old, was a passenger in a 1999 Yamaha G16A golf car, bearing manufacturer’s serial number JN6-310453, which was being operated by her friend, Jackie Johnston, on a paved road in the Lynns’ neighborhood. Defs.’ Concise Statement of Material Facts ¶ 1. The Yamaha golf car was purchased secondhand by Mercedez Lynn’s father, Robert Lynn, on the side of the road from a private seller. Defs.’ Concise Statement of Material Facts ¶¶ 4, 8. Mr. Lynn did not receive the Yamaha Owner’s/Operator’s Manual that accompanied the vehicle on the initial purchase. Id.
Ms. Johnston, then operating a golf car for the first time, was also thirteen (13) years old at the time of the incident. Id. at ¶¶ 1, 9. Facing the public road from the Lynn property, the girls turned left out of the Lynns’ driveway and traveled north on Sutherland Road. Upon approaching a bend in the uphill portion of the road located at the top of Sutherland Road, Ms. Johnston began to make a left hand U-turn to return to the Lynn property. Pis.’ Resp. to Defs.’ Concise Statement of Material Facts ¶ 12. In order to execute this maneuver, Ms. Johnston turned slightly right into the driveway of the residence located at 224 Sutherland Road. Id. Ms. Johnston then turned the vehicle left with enough steering force to return south towards the Lynn property. Id. At some point within the U-turn, Mercedez Lynn was thrown from the golf car, and her head struck the ground following her ejection. As a result, Mercedez sustained serious head injuries and is unable to recall the events leading up to the accident. Defs.’ Concise Statement of Material Facts ¶ 2; Seluga Exp. Rep., ECF Nos. 43-7 and 45 4, at 3.
Shortly before the accident, as Jackie Johnston was approaching the driveway to make the U-turn, she saw Mercedez text messaging on her mobile telephone, which required the use of both of her hands. Defs.’ Concise Statement of Material Facts ¶ 13; Johnston Dep. Tr. at 71:2-3. Ms. Johnston testified that, while in a seated position, Mercedez’s feet were flat on the floor of the golf car just before Ms. Johnston maneuvered the golf car onto the driveway at 224 Sutherland Road. Pis.’ Responsive Statement of Facts ¶ 13. There were no other eyewitnesses to the accident on Sutherland Road. Defs.’ Concise Statement of Material Facts ¶ 2.
In pursuing their theories of liability and causation in this case, the Lynns retained the services of Kristopher Seluga, M.S., P.E., a licensed professional engineer in the State of Connecticut and an accredited traffic accident reconstructionist. ECF No. 45-2. As part of his investigation in this matter, Mr. Seluga reviewed: (1) the Police Report of April 30, 2008; (2) the transcript from Jackie Johnston’s deposition; (3) photographs of the golf car and accident scene; (4) aerial photos of the accident scene; (5) various discovery documents, including the Owner’s/Operator’s Manual of the 1999 G16A golf car; (6) the relevant national safety standard for golf cars — ANSI/NGCMA Z130.1-1993; and (7) the medical records of Mercedez Lynn containing height and weight measurements. Seluga Exp. Rep. at 9. Mr. Seluga also inspected, measured, and photographed the subject golf car and accident scene. Id. From this investigation, Mr. Seluga constructed several computer simulations recreating the accident to evaluate the effectiveness of the golf car’s passenger hip restraint. Id.
This action was initially filed in the Court of Common Pleas of Westmoreland County, Pennsylvania, and the Defendants removed the case to this Court on diversity grounds, 28 U.S.C. § 1332(a). The Complaint, ECF No. 1-3, alleges that the 1999 Yamaha G16A golf car was defectively designed by the Defendants, specifically alleging that the hip restraint on the golf car acts as a fulcrum facilitating a passenger being ejected so as to make the golf car unreasonably dangerous, and that it lacked a passenger handhold in the area between the driver and passenger. Furthermore, the Plaintiffs allege that the golf car was defective due to a lack of adequate and proper warnings. Finally, the Plaintiffs also allege claims sounding in negligence against the Defendants. The Defendants answered the Complaint on September 15, 2010. ECF Nos. 7, 8. The parties engaged in discovery, and, upon its completion, the Defendants filed the pending Motion for Summary Judgment on December 1, 2011. ECF No. 32. On the same day, the Defendants filed their Motion in Limine to Preclude the Testimony of Kristopher Seluga Pursuant to Federal Rule of Evidence 702. ECF No. 34.
II. JURISDICTION
The Court has subject matter jurisdiction over this action due to diversity of citizenship, and we will apply the substantive law of the Commonwealth of Pennsylvania and federal procedural law. 28 U.S.C. §§ 1332(a), 1652; Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir.2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).
III. DISCUSSION
Defendants’ Motion to Preclude the Testimony of Kristopher Seluga, M.S., P.E.
The Defendants move the Court to preclude the testimony of Plaintiffs’ expert, Kristopher Seluga, under Federal Rule of Evidence 702, which amounts to a challenge made under the Supreme Court’s landmark decision in Daubert v. Merrell Dow Pharm., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In acting as a gatekeeper in a Rule 702 inquiry, the Court must screen purportedly scientific evidence and ensure that any and all such proffered evidence is both relevant and reliable. Daubert, 509 U.S. at 589, 597, 113 S.Ct. 2786. This gatekeeping function also arises when an expert is offered to provide technical evidence related to the engineering field. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The Court’s inquiry is one of flexibility wherein the focus rests solely on the principles and methods used by the expert, not on the conclusions drawn from them. Daubert, 509 U.S. at 594-95, 113 S.Ct. 2786.
Rule 702 provides that “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702. In determining the admissibility of expert testimony, courts have categorized the Rule 702 requirements as (1) the expert’s qualifications, (2) the reliability of the expert’s methods, and (3) the “fit” of the expert’s methods to the facts of the case (i.e., whether the expert’s methods are helpful to the fact finder). See Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir.2003).
1) Qualifications
In order to qualify as an expert witness, the witness must possess relevant specialized expertise. Id. at 405. While the Defendants initially spent considerable effort to discount the credibility of Kristopher Seluga by labeling him as a “paid” litigation expert, they maintain that they are not seeking to preclude his testimony based on any perceived lack of qualifications. Defs.’ Reply Br. at 7. Nevertheless, because the Defendants initially objected to Mr. Seluga’s expertise, ECF No. 34 at 6-7, the Court will briefly examine his qualifications.
The Court has considerable latitude in determining whether a witness qualifies as an expert. See In Re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 741 (3d Cir.1994) (Paoli II). Our Court of Appeals has held that a broad range of knowledge, skills, and training may qualify a witness as an expert. Id. (citing Paoli I, 916 F.2d 829, 855 (3d Cir.1990)). The Paoli I court thus held that the exclusion of a witness was not proper simply because an expert did not possess the education or training that the district court thought would be most appropriate. The Court is not presented with such a problem here.
Mr. Seluga obtained undergraduate- and graduate-level degrees from the Massachusetts Institute of Technology (“M.I.T.”). Seluga Curriculum Vitae, ECF No. 45-2. Wfliile at M.I.T., Seluga was named to the Tau Beta Pi Engineering Honor Society and the Pi Tau Mechanical Engineering Honor Society and was named an M.I.T. Martin Fellow. Id. Seluga is a licensed professional engineer in the State of Connecticut and an accredited traffic accident reconstructionist. Id. He is a member of various industrial trade groups, namely the American Society of Mechanical Engineering, the Society of Automotive Engineers, the Human Factors and Ergonomics Society, the Institute of Transportation Engineers, and the National Association of Professional Accident Reconstruction Specialists. Id. Mr. Seluga also serves on the committee responsible for promulgating the national safety standards for golf cars on behalf of the American National Standards Institute (“ANSI”) and the National Golf Car Manufacturers Association, Inc. (“NGCMA”). Seluga Dep. Tr. at 46-48. In addition to developing vehicle dynamic simulation programs for accident reconstruction applications, Mr. Seluga also purports to have experience with biomechanical simulation software and dynamic testing and analysis. Seluga Curriculum Vitae, ECF No, 45-2. Finally, Mr. Seluga has published articles on various aspects of golf cars and other slow-moving vehicles. Id. In fact, one of Seluga’s writings examines the prevention of child ejections from golf cars and personal transport vehicles. See ECF No. 45-3, Kristopher Seluga & Timothy Long, Analysis and Prevention of Child Ejections from Golf Cars and Personal Transport Vehicles, 21st International Conference on the Enhanced Safety of Vehicles (ESV), Paper No. 09-0186 (June 2009).
Given Mr. Seluga’s education, activity within several relevant trade groups, experience with computer simulations in the areas of mechanical and biomechanical engineering, his receipt of awards and membership into honor societies in the industry, and publications on topics facially related to the matter at hand, the Court finds that Kristopher Seluga is a qualified expert for purposes of satisfying Rule 702. Thus, as a biomechanical engineer, Seluga is qualified to render an opinion in this case as to the general causation of the force sustained by Mercedez Lynn, but not specific injury causation that would require the identification and diagnosis of a medical condition. Burke v. TransAm Trucking, Inc., 617 F.Supp.2d 327, 334 (M.D.Pa.2009) (citing Bowers v. Norfolk Southern Corp., 537 F.Supp.2d 1343, 1377 (M.D.Ga.2007)) (internal citations omitted).
2) Reliability
Under Daubert and its progeny, expert testimony is admissible so long as the process or technique that the expert relied upon in formulating an opinion is reliable. Daubert, 509 U.S. at 589, 113 S.Ct. 2786; see also Paoli II, 35 F.3d at 742. In other words, the expert must have good grounds for the opinion, which must be based on the “methods and procedures of science” instead of a “subjective belief or mere conjecture.” Daubert, 509 U.S. at 590, 113 S.Ct. 2786. Defendants do not contest, and at oral argument conceded to, the inherent reliability of the computer programs Mr. Seluga uses to conduct computer simulations, specifically Articulated Total Body (“ATB”) and the Generator of Body Data (“GEBOD”). Instead, Defendants argue that the data Mr. Seluga used in his computer simulation lacked evidentiary support, and thus his expert testimony should be excluded. Specifically, Defendants point to Mr. Seluga’s “admission” that, when completing the computer model used to support his conclusions, he used an assumed seating position for Mercedez Lynn, with her back against the seatback and feet on the floor of the golf car. This, according to Yamaha, is not supported by the record. Defendants also claim that there is no evidence, through deposition testimony or otherwise, to support (1) the speed and angle at which Jackie Johnston entered and exited the driveway in executing the U-turn, or (2) precisely how, when, or where Mercedez came out of the golf car. Defs.’ Reply Br. at 9. Because of these alleged shortfalls in the record, Defendants argue that Seluga’s testimony should be precluded in its entirety as unreliable.
Courts treat challenges to the data used in computer simulations in different ways. Typically, a court will not strike an expert’s testimony where the simulation program used by the expert itself passes the Daubert test but an objection remains as to the data inputs utilized by the expert. See Burke, 617 F.Supp.2d at 334-35; In re Yamaha Motor Corp. Rhino ATV Prods. Liability Litigation, 816 F.Supp.2d 442, 461-62 (W.D.Ky.2011) (citing Shadow Lake Management Co. Inc. v. Landmark American Ins. Co., 2008 WL 2510121 (E.D.La. June 17, 2008)). According to the Shadow Lake Management court, where a computer program utilized by an expert is commonly used and is sufficiently reliable, any concerns about the factual basis of an expert’s reports and opinions are best resolved by “vigorous cross-examination and the presentation of contrary evidence.” In re Yamaha Motor Corp. Rhino ATV Prods. Liability Litigation, 816 F.Supp.2d at 462, Any inaccuracy in the data goes to the weight of the evidence, not its admissibility. Burke, 617 F.Supp.2d at 335, see also id. (citing Phillips v. Raymond Corp., 364 F.Supp.2d 730 (N.D.Ill.2005)). If this case were to proceed to a trial, counsel for the Defendants will have the opportunity to attempt to discredit Seluga’s conclusions in front of a jury on cross-examination. See Montgomery v. Mitsubishi Motors Corp., 2:04-cv-03234, 2006 WL 1310657 (E.D.Pa. May 12, 2006), see also Burke, 617 F.Supp.2d at 335. In Montgomery, noting the defendants’ argument that the expert’s testimony was unsupported by the record evidence in that case, and thus was unreliable based upon the accuracy of the data (primarily because the variable in the computer simulation representing the vehicle was a different model vehicle than the actual automobile in the accident), Judge Pratter concluded that the accuracy of the data was an issue for the jury to consider and that the expert’s report or testimony should not be excluded on the basis of unreliability. Montgomery, 2006 WL 1310657, at *7.
However, other courts, as Defendants correctly note, have held that preclusion of an expert’s testimony is proper when necessary to screen inaccurate data used in computer modeling. See Reali v. Mazda Motor of America, 106 F.Supp.2d 75 (D.Maine 2000). In Reali, the defendants filed motions in limine, similar to the pending motion before this Court, to exclude expert testimony. In granting the motions, Judge Hornby concluded that a certain data point — Delta V, which measures the change in the velocity of one object when struck by another — was unreliable because the expert derived the number in what amounted to “eye-balling accident photographs.” Id. at 77.
Defendants argue that the assumptions Seluga made in constructing his computer model of the accident in this case amount to subjective beliefs, observations, and methodologies that are prohibited under Fed.R.Evid. 702 and Daubert. See Meadows v. Anchor Longwall and Rebuild, Inc., 306 Fed.Appx. 781 (3d Cir.2009); Simmons v. Ford Motor Co., 132 Fed.Appx. 950 (3d Cir.2005). In Simmons, the plaintiff brought a products liability action against a car manufacturer for harm she sustained when her Lincoln Navigator spontaneously shifted out of park and struck her as she was exiting the vehicle. To prove her theory of liability (that the park gear became disengaged and did not hold the proper vehicle position), the plaintiff relied upon an expert whose opinions were excluded by the trial court. The Third Circuit held that the district court did not abuse its discretion by excluding the expert witness, and held that the expert’s testimony was unreliable because: (1) he could not identify why the car disengaged from park; and (2) he could not replicate the vehicle movement that caused the plaintiffs injuries. Simmons, 132 Fed.Appx. at 953. The Court noted that the expert arrived at two theories regarding the cause of the vehicle’s movement simply because he could not identify any other causes. Id.
Such rough-and-ready estimates or mere guesswork as seen in Reali and Simmons are not present here. Mr. Seluga personally inspected the Lynns’ golf car and took photographs of the accident scene. All of the record evidence indicates that Seluga attempted to replicate the accident within the confines of the known facts, Seluga test drove the 1999 Yamaha G16A golf car in question, where he measured, among other things, the speed, minimum turning radius, and the peak lateral car acceleration of the Yamaha golf car. Seluga Exp. Rep. at 11. He also took measurements of Sutherland Road and the driveway located at 224 Sutherland Road. Id. Defendants argue that Seluga’s testimony is unreliable and label it as “factually unsupported,” primarily based on the deposition testimony of Jackie Johnston, regarding the golf car’s speed, angle, and steering force at the time of the accident. However, the Court’s discussion below regarding the “fit” to the facts of this case demonstrates that there is factual support for Seluga’s methods, expert report, and testimony. Mr. Seluga made these assumptions within known values based on the measurements previously taken in his investigation and available record evidence as set forth below. While the Court acknowledges these arguments made by Yamaha, they go to the weight of the evidence and the credibility of Seluga and are best made to a jury.
While the Court need not engage in a reliability analysis of Seluga’s methods because of the Defendants’ concession regarding the inherent reliability of ATB and GEBOD (and our conclusion that any objection to the data that Seluga used in those computer programs can be properly addressed during cross-examination), it may also consider, among other things: (1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; (5) whether the method is generally accepted; (6) the relationships of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put. Paoli II, 35 F.3d at 742 n. 8. This list is non-exclusive; “each factor need not be applied in every case,” Elcock v. Kmart Corp., 233 F.3d 734, 746 (3d Cir.2000) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. at 152, 119 S.Ct. 1167). In addition, courts have acknowledged that these factors do not apply to the reliability of computer simulations the same way they do to traditional expert testimony. In re Yamaha Motor Corp. Rhino ATV Prods. Liability Litigation, 816 F.Supp.2d at 461 (citing Livingston v. Isuzu Motors, Ltd., 910 F.Supp. 1473 (D.Mont.1995)).
Based on the factors listed above, the Court concludes that Seluga’s opinions are reliable and were based on scientific methods and procedures instead of merely subjective beliefs or unsupported speculation. Mr. Seluga’s methodology consists of a testable hypothesis. Using the measurements gathered in the field, Seluga is able to test his hypothesis that the golf car’s hip restraint acted as a fulcrum in this case by inputting directly that data into his computer modeling, or, if the value is unknown with certainty, within known parameters based on measurements. This methodology has been subject to peer review, as is evidenced by Seluga’s scholarly work in numerous publications related to the field of biomechanics. Mr. Seluga’s scholarship also shows that his methodology has been put to non-judicial uses. Additionally, Mr. Seluga’s expertise in the area of biomechanics and accident reconstruction (specifically, ejection from slow-moving vehicles such as golf cars) enhances the reliability of the computer modeling used in this case. The Court also notes, in cases cited by the parties in their briefing materials, that the use of ATB and GEBOD, in addition to computer simulation of vehicular accidents generally, weighs in favor of the general acceptance of this methodology.
3) Fit
Citing Meadows v. Anchor Longwall and Rebuild, Inc., 306 Fed.Appx. 781 (3d Cir.2009), Defendants argue that Seluga’s report and testimony do not fit the facts of this case. Therefore, according to Yamaha, Daubert requires this Court to preclude Seluga’s testimony at trial. We disagree. Rule 702 requires that an expert’s testimony assist the trier of fact in resolving a factual dispute. Daubert, 509 U.S. at 591, 113 S.Ct. 2786. In other words, an expert’s testimony passes the “fit” test if there is a clear, valid scientific connection between the expert’s opinion and the particular disputed factual issues in the case. Meadows, 306 Fed.Appx. at 790; Paoli II, 35 F.3d at 742-43. Even if an expert’s testimony is based on considered scientific or technical knowledge, the testimony will be excluded if it is not knowledge related to the purposes of, or pertinent inquiry to, the case. Paoli II, 35 F.3d at 742-43. Additionally, an expert’s opinion must be supported by some factual foundation to satisfy the “fit” requirement. Meadows, 306 Fed.Appx. at 791 (citing Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414 (3d Cir.2002)).
This case is not at all as similar to Meadows as Defendants would have it. In Meadows, the plaintiff mineworker, while manually pressurizing a mine longwall shield in order to raise the canopy of the shield to the roof of the mine as part of a repair and refurbishment project, was struck in the face by a shut-off valve fitting when it pulled loose from the valve assembly housing, causing plaintiff to lose the use of his right eye. The mineworker and his wife hired an expert to investigate the valve malfunction and testify as to liability and causation. The Meadows’ expert testified that, using general principles of physics, a pressure spike exceeding 100,000 psi occurred in the hydraulic fluid within the system when the ram bar used to manually pressurize the longwall shield was in the down position. Our Court of Appeals upheld the trial court’s exclusion of the expert’s testimony because it was unreliable and the expert’s testing of the valves did not fit the facts of the case. Meadows, 306 Fed.Appx. at 791. Specifically as to the “fit” requirement, the Third Circuit noted that the expert did not examine the actual alleged defective product, did not replicate the conditions of the long-wall shield at the time of the accident (specifically, the hose assembly), and did not subject the valves to the pressure spike he alleged had occurred. Id. at 790. Instead, the expert, using three (3) ball valves he purchased from the lot that was the source of the allegedly defective valves, connected the valves to a metal pipe filled with water and slowly increased the pressure with an air pump. According to his tests, the valves failed at approximately 13,000 to 15,000 psi because of a leak in the valve. The Meadows court, in concluding that the district court did not abuse its discretion by excluding the expert’s testimony, noted that given the dissimilar nature of the testing methods compared to the actual valve assembly and the incongruence of the test results to the actual results found in the mine, the expert’s testimony would not assist the jury in determining what caused the accident. Id. at 791.
The Court concludes that Mr. Seluga’s testing methods, expert report, and deposition testimony sufficiently fit the facts of this case. Here, as we have already indicated above, Mr. Seluga attempted to replicate the accident in this case; he went to the scene of the accident, took photographs, and, through testing the Lynns’ golf car within the purported course taken by Mercedez and Jackie on April 30, 2008, compiled measurements relative to the actual scene and the involved golf car. In order to prepare his report and conduct a computer simulation that appropriately resembled the accident in this case, Mr. Seluga reviewed numerous documents, including the police report of the accident, the transcript of Jackie Johnston’s deposition testimony, the Owner’s/Operator’s Manual for the 1999 Yamaha G16A, the relevant ANSI/NGCMA standards, and Mercedez Lynn’s medical records. Seluga Exp. Rep. at 9.
According to Yamaha, Mr. Seluga made several important assumptions in his computer modeling that do not “fit” the facts of the case, which nonetheless requires this Court to exclude Seluga’s expert testimony. Defendants would have the Court exclude Seluga’s report and testimony based on its characterization of certain heated exchanges between its counsel and Seluga at a deposition with regard to assumptions made in the data inputs for the computer modeling. The record reveals that on two occasions in which Seluga was vigorously challenged by defense counsel, Seluga clarified previous statements related to the support for variables used in his computer simulation, namely: (1) the position of Mercedez Lynn in the golf car at the time of the accident; and (2) the speed with which Jackie Johnston was operating the golf car before, during, and after the U-turn. Mr. Seluga initially stated that Ms. Johnston “testified that, you know, [Mercedez] was seated in the passenger side seat.” Seluga Dep. Tr. at 119:24-25. In response to defense counsel’s suggestion that there was no testimony about how Mercedez was seated at any time prior to the accident, Mr. Seluga agreed. Id. at 120:8. However, later in the deposition, Mr. Seluga noted that Jackie Johnston testified that she saw Mercedez’s feet on the floor of the golf car. Id. at 154:12-13. Each of these statements is supported by the deposition testimony of Ms. Johnston. While she testified that she did not know exactly where Mercedez was positioned on the seat, or if Mercedez’s back was against the backrest, Ms. Johnston said she was unaware of what had happened until she noticed that “[Mercedez] wasn’t sitting next to me when [she] looked over.” Johnston Dep. Tr. at 71:2 (emphasis added). Therefore, given Ms. Johnston’s testimony that she saw that Mercedez was in fact seated and with her feet on the floor, and that there is no testimony, or other evidence on record, which suggests that Mercedez was in a position that otherwise makes Seluga’s data inputs so inaccurate so as to make his testimony not “fit” the facts of the case, there is sufficient record evidence supporting this element of “fit.”
Moreover, the Court finds that Seluga’s testimony with respect to the speed of the golf car competently fits the relevant facts of the case. Jackie Johnston testified that she pressed the gas pedal to the floor as she traveled north on Sutherland Road. Johnston Dep. Tr. at 71:4-7. She also testified that she let off the gas pedal as she approached the downhill section of the driveway, id. at 62:18-22, and applied the brake when she started going downhill in the driveway. Id. at 117:9-14. Seluga, after initially testifying that he based his estimation that the golf car was traveling “near 13 miles an hour” on Johnston’s testimony, in which she claimed to have the gas pedal fully depressed while entering the turn, did admit that “she would have been slowing down” in the driveway. Seluga Dep. Tr. at 104-05. However, Seluga then clarified that the input speed decreased during the two-second simulation from a starting speed of thirteen (13) miles per hour to almost nine (9) miles per hour at the end of the simulation. This, according to Seluga, is supported by the testimony and his independent testing, and shows that Mercedez could have been ejected even when Ms. Johnston let off the gas at the end of her travels. Seluga Dep. Tr. at 150. The Court notes that to the extent there exists an inconsistency in Seluga’s testimony, either in his previous statements or assumptions in rendering his opinion, Defendants may, of course, call the jury’s attention to those matters on cross-examination. However, because Seluga’s testimony considered as a whole fits the facts of this case and is otherwise reliable, the Defendants’ Motion to Preclude Seluga’s testimony is denied.
Defendant’s Motion for Summary Judgment
Legal Standard
The purpose of summary judgment is “to dispose of factually unsupported claims and defenses.” Omnipoint Comm. Enter., L.P. v. Newtown Tp., 219 F.3d 240, 242 (3d Cir.2000), Summary judgment is appropriately granted in favor of the moving party if the movant can demonstrate that no genuine issue of material fact exists, such that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Accordingly, to survive a motion for summary judgment, the non-movant must establish that there is indeed a genuine issue of material fact, which requires the action to proceed to a trier of fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis added). An issue is “genuine” only if it would prevent a rational factfinder, when viewing the record as a whole, from granting judgment for the moving party. See id. at 586, 106 S.Ct. 1348. Regarding materiality, the substantive law identifies which facts are “material,” meaning only those materially and disputed facts that “might affect the outcome of the suit under the governing law will preclude an entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Within the framework of Federal Rule of Civil Procedure 56, the moving party must first demonstrate the absence of a genuine issue of material fact by citing to relevant portions of the record, which may include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, and interrogatory answers.” Fed.R.Civ.P. 56(c)(1). See also Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, a court is not confined to the cited materials and may consider all materials in tile record. Fed.R.Civ.P. 56(c)(3). If the movant meets his burden, the non-movant must then point to evidence supporting the existence of a genuine issue of material fact. El v. Se. Pa. Transp. Auth. (SEPTA), 479 F.3d 232, 238 (3d Cir.2007). But “[t]he non-moving party cannot rest on mere pleadings or allegations; rather it must point to actual evidence in the record on which a jury could decide an issue of fact its way.” Id. (citing Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir.2006)). The court reviews all evidence in the light most favorable to the non-moving party and draws all justifiable inferences in the non-movants favor. Omnipoint Comm. Enter., L.P., 219 F.3d at 242 (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505); Matreale v. N.J. Dept. of Military & Veterans Affairs, 487 F.3d 150, 152 (3d Cir.2007).
In ruling on a motion for summary judgment, the court’s function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing cases); Equimark Commercial Finance Co. v. C.I.T. Financial Servs. Corp., 812 F.2d 141, 144 (3d Cir.1987).
Analysis
Yamaha moves for summary judgment on Plaintiffs’ strict liability claims on various grounds, primarily arguing that summary judgment is proper because: (1) Mercedez Lynn and Jackie Johnston were not intended users of the golf car, nor were they operating the vehicle in accordance with its intended use, as required to maintain a strict liability claim; (2) the Plaintiffs have failed to demonstrate that an alternative design would have prevented this accident from occurring; and (3) the Plaintiffs have failed to establish that (a) adequate warnings would have prevented this accident, and (b) the inadequate warnings, if any, caused the minor Plaintiffs injuries.
The Current State of Pennsylvania Products Liability Law
The substantive law of the Commonwealth of Pennsylvania supplies the rule of decision for the disposition of the Lynns’ strict products liability claims. 28 U.S.C. § 1652; see Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir.2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).
As this Court has recently observed, Pennsylvania products liability law may be fairly seen as being in a state of profound uncertainty. See Sansom v. Crown Equipment Corp., 880 F.Supp.2d 648, 2:10-cv-0958, 2012 WL 3027989 (W.D.Pa. July 24, 2012). The current state of the law in this area provides little clarity to consumers or manufacturers, or their counsel, as to their obligations and rights under the products liability law of this Commonwealth. Notwithstanding this reality, the Pennsylvania Supreme Court, in the face of several recent opportunities to do so, has elected to not yet rule on whether the more recently completed Restatement (Third) of Torts now provides the controlling analysis for products liability claims, rather than the analysis under the Restatement (Second) of Torts. See, e.g., Schmidt v. Boardman Co., 608 Pa. 327, 11 A.3d 924, 940-41 (2011) (acknowledging that “foundational problems” exist in Pennsylvania products liability law based upon the Restatement (Second) of Torts, but noting that the case before the Court was not selected to address these “foundational concerns”); Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1012 (2003) (Saylor, J., joined by Castille, J. and Eakin, J., concurring) (advocating adoption of the Restatement (Third) and opining that it represents “a synthesis of law derived from a reasoned, mainstream, modern consensus”). The question of which Restatement governs is important because the Restatement (Third) differs notably from its predecessor by integrating certain negligence-based foreseeability concepts into its analysis. Restatement (Third) of Torts, Products Liability § 1 cmt. a. In contrast, Pennsylvania’s products liability structure under the Restatement (Second) forbids a court to consider negligence principles. Carrecter v. Colson Equip. Co., 346 Pa.Super. 95, 499 A.2d 326, 330 (1985) (quoting Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893, 900 (1975)).
The Pennsylvania Supreme Court has also acknowledged that the over forty years of case law interpreting the Restatement (Second) of Torts, beginning with Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), and enhanced by Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978), has culminated in a products liability schema that is “almost unfathomable.” Schmidt, 11 A.3d at 940 (citing to James A. Henderson, Jr. & Aaron D. Twerski, Achieving Consensus on Defective Product Design, 83 Cornell L.Rev. 867, 897 (1998)). See also Beard v. Johnson and Johnson, Inc., 41 A.3d 823, 836 (Pa.2012) (recognizing the “continuing state of disrepair in the area of Pennsylvania strict-liability design defect law”).
Then there are the Third Circuit’s decisions holding that district courts in our circuit must apply the Restatement (Third) to design defect claims arising under Pennsylvania law, absent a clear and contrary holding from the Pennsylvania Supreme Court. See Covell v. Bell Sports, Inc., 651 F.3d 357, 360 (3d Cir.2011), cert. denied, 558 U.S. 1011, 132 S.Ct. 1541, 182 L.Ed.2d 162 (2012); Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 53-54 (3d Cir.2009), cert. denied, 558 U.S. 1011, 130 S.Ct. 553, 175 L.Ed.2d 383 (2009). Of course, when the Pennsylvania Supreme Court speaks on a particular point of Pennsylvania law, its “pronouncement is to be accepted by federal courts as defining state law unless it has later given clear and persuasive indication that its pronouncement will be modified, limited, or restricted.” West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236, 61 S.Ct. 179, 85 L.Ed. 139 (1940). When the Pennsylvania Supreme Court is silent regarding a state law issue, a federal court must predict how that Court would resolve that issue. See Holmes v. Kimco Realty Corp., 598 F.3d 115, 118 (3d Cir.2010). A federal court must look to the holdings of the state’s lower courts and accord their decisions due deference. U.S. Underwriters Ins. Co. v. Liberty Mut. Ins. Co., 80 F.3d 90, 93 (3d Cir.1996). When the federal court issuing the prediction is our Court of Appeals, the district courts in this Circuit are to apply its predictive holding to legal questions arising under that particular state law “unless the state supreme court issues a contrary decision.” Largoza v. Gen. Elec. Co., 538 F.Supp. 1164, 1166 (E.D.Pa.1982).
The Third Circuit made its prediction regarding the path of Pennsylvania products liability law in Berrier v. Simplicity Mfg., Inc. 563 F.3d at 53-54. The Berrier court was presented with the issue of whether, under Pennsylvania law, the Restatement (Second) or (Third) of Torts governed the potential imposition of liability on distributors for injuries to unintended users of their products. Id. The unintended user, or “bystander,” in that case was a minor child who suffered injuries when her leg was caught under a riding lawn mower. Id. at 41. The Third Circuit concluded, after a review of Pennsylvania appellate decisions regarding bystander liability, particularly Justice Saylor’s concurrence in Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000 (2003), that the Pennsylvania Supreme Court would adopt Sections 1 and 2 of the Restatement (Third) of Torts to determine whether an injured, unintended consumer could recover from the product’s distributor. Id. at 49-54. Accordingly, since the district court limited its summary judgment analysis to intended users under the Restatement (Second), the Berrier court remanded the case so that the district court could consider issues as to a reasonably foreseeable user pursuant to the Restatement (Third). See id. at 60-61. The Third Circuit thus directed district courts in this Circuit to apply the Restatement (Third) of Torts in cases that require the application of Pennsylvania products liability law. See id. at 57.
Nearly two years later, the Pennsylvania Supreme Court took note of the prevailing difficulties in the products liability arena. See Schmidt v. Boardman Co., 608 Pa. 327, 11 A.3d 924, 940 (2011). In Schmidt, Justice Saylor pointed to the need to settle the inconsistencies in Pennsylvania products liability law, but declined to rule directly on the issue by concluding “[t]his case was not selected to address the foundational concerns, and, accordingly, the pathways to global resolution are not developed in significant detail in the briefing.” Id. at 941. Therefore, the Schmidt court could “do little more ... than to remark that difficulties persist and to proceed to address the specific questions presented with them ... in mind.” Id. (emphasis added). The Schmidt court also took note of the Third Circuit’s prediction in Berrier, but stated that the “present status quo in Pennsylvania entails the continued application of Section 402A of the Restatement Second ....” Id.
Six months after Schmidt was decided, when faced with the question as to whether a district court properly admitted certain evidence and instructed a jury pursuant to the Restatement (Third) of Torts in a diversity suit involving the alleged defective design of a bicycle helmet, the Third Circuit concluded that the “state of [Pennsylvania products liability law] is no different now than it was when we decided Berrier.” Covell v. Bell Sports, Inc., 651 F.3d 357, 360 (3d Cir.2011). The Coveil court reiterated that “federal district courts applying Pennsylvania law to products liability cases should look to sections 1 and 2 of the Restatement (Third) of Torts.” Id. at 359. Accordingly, the Third Circuit affirmed the district court’s decision to utilize the Restatement (Third) and, in doing so, instructed district courts to rely upon the Restatement (Third) when analyzing issues relating to allegedly defective products under Pennsylvania law. See id. at 358, 363.
Since Covell, the Pennsylvania Supreme Court had the opportunity to conclude this judicial volleying in Beard v. Johnson and Johnson, Inc. 41 A.3d 823 (Pa.2012). Writing for the Beard court in March 2012, Justice Saylor again recognized the “continuing state of disrepair in Pennsylvania strict-liability design defect law.” Id. at 836. However, notably absent in Beard is any determination, holding or even persuasive dicta clearly and directly contrary to Covell regarding the applicable law governing Pennsylvania products liability cases. See, generally, id. The Beard appellee did invite the court to adopt the Restatement (Third) of Torts, but the court did not accept or decline that invitation. Id. Thus, given that the Pennsylvania Supreme Court in Beard did not affirmatively disavow the premise of the Covell decision, along with the principle that the Third Circuit’s predictions regarding Pennsylvania state law are binding on this Court absent a decision of the Pennsylvania Supreme Court expressly to the contrary, this Court must and will apply the Third Circuit’s Covell prediction and rely upon Sections 1 and 2 of the Restatement (Third) of Torts here.
Restatement (Third) of Torts-. Strict Liability
Under the Restatement (Third) of Torts, strict liability attaches to a commercial seller of a product that inflicts harm on a person because of a defect. Berrier, 563 F.3d at 54 (quoting Restatement (Third) of Torts § 1 (1998)). “One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product ... for harm to persons or property caused by the defect.” Id. (emphasis added). The Restatement (Third) further provides that a product:
(a) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;
(b) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.
Restatement (Third) of Torts, § 2 (1998). Any alleged defect must be present at the time of sale or distribution. Id. The Plaintiffs assert that the Defendants are strictly liable because the design of the 1999 Yamaha G16A golf car, namely the hip restraint, was defective and because the Defendants failed to provide adequate warnings of the risks involving ejection from the vehicle.
Design Defect Under the Restatement (Third) of torts
To establish a prima facie case of design defect under the Restatement (Third) of Torts, a plaintiff must prove the availability of a technologically feasible and practical alternative design that would have reduced or prevented the harm sustained by the plaintiff. Restatement (Third) of Torts § 2, cmt. f. The risk of harm must have been foreseeable, and the reasonable alternative design must be such that its omission renders the product not reasonably safe. Id. In other words, “the test is whether a reasonable alternative design would, at reasonable cost, have reduced the foreseeable risks of harm posed by the product and, if so, whether the omission of the alternative design by the seller ... rendered the product not reasonably safe.” Id. Of course, the plaintiff must prove that the design defect of the product caused the plaintiffs harm. See Restatement (Third) of Torts § 1.
The Court concludes that the Plaintiffs have produced sufficient evidence such that a reasonable jury could conclude that when the 1999 Yamaha G16A golf car is turned sharply to the left at or near maximum speed, there is a foreseeable risk of ejection, especially when children (or other small people) ride as passengers. The National Highway Traffic Safety Administration (“NHTSA”), in promulgating its final rule on golf cars, located at 63 FR 33913 and dated June 17, 1998, noted the growing on-road use of golf cars and the severe injuries (including deaths) related to such use. Ex. K to Pis.’ Br. Opp’n Mot. Summ. J., ECF No. 43-12. In addition, the report examines crash data from accidents occurring from 1993 to 1997, separating the data by pedestrian injury, off-road injury, on-road injury, on-road fatality, rollover injury, and ejection injury. Id. Of the 726 incidents reported to the National Electronic Injury Surveillance System, 94 resulted in injuries caused by ejection. Id. According to the Plaintiffs, the NGCMA — an association of which Yamaha is a member — “participated and was aware of the report.” Pis.’ Br. Opp’n Mot. Summ. J. at 20. Through additional accident data, Mr. Seluga states that ejection from a moving vehicle represented the most common type of golf car accident, with an estimated forty percent (40%) of the total reported accidents resulting in ejection. Seluga Exp. Rep. at 4. According to Seluga’s analysis of the data, when accident location was reported, seventy percent (70%) of accidents occur at golf courses (or other similar sporting or recreational facilities), while the remaining thirty percent (30%) take place at private homes or on public roadways. Id. When this data is filtered for children under the age of sixteen (16), Seluga reports that roughly forty percent (40%) of all documented accidents involve this age group, and over half of accidents involving this age group result in ejection from the vehicle. Id. at 5. When this data is again filtered for children under sixteen (16) years of age, and where accident location was reported, about half of the accidents occurred on the golf course, on the one hand, and half took place at a private residence or public street, on the other. Id. Mr. Seluga further states that information from case narratives highlight the foreseeability of ejection, particularly when children are passengers, upon executing a sharp turn to the left while traveling at or near maximum speed. Seluga Exp. Rep. at 5. Mr. Seluga’s previous academic scholarship further suggests that a reasonable jury could conclude that the risk of ejection from a golf car, in fact, was foreseeable. See Seluga Exp. Rep. at 7 (citing Kristopher Seluga, Irving Ojalvo, & Richard M. Obert, Low Speed Vehicle Passenger Ejection Restraint Effectiveness, J. Accident Analysis & Prevention, 37:4:801-06 (2005)), see also EOF No. 45-10.
Plaintiffs have also presented sufficient evidence for a jury to conclude that a reasonable alternative design was available — in other words, technologically feasible and economically practical — at the time of sale and would have prevented the risk of passenger ejection in the 1999 Yamaha G16A golf car. A plaintiff need not produce a prototype of the reasonable alternative design to make out a prima facie case of design defect. Restatement (Third) of Torts § 2, cmt. f. A plaintiff may rely on credible expert testimony that the alternative design could have been practically adopted at the time of sale, even where the expert itself has produced no prototype, if the testimony and other evidence reasonably supports such a conclusion. Id.; see Hoffman, 694 F.Supp.2d at 365-66. If a plaintiff introduces expert testimony to establish that a reasonable alternative design could have been adopted, a trier of fact may conclude that the product was defective notwithstanding that such a design was not adopted by any manufacturer, or ever considered for commercial use, at the time of sale. Restatement (Third) of Torts § 2, cmt. d. Further, despite the fact that Plaintiffs have produced the expert testimony of Mr. Seluga, such evidence is not required in cases where the feasibility of a reasonable alternative design is obvious and understandable to laypersons to support a finding that the product should have been designed differently and more safely. Id. at cmt. f. In addition, a plaintiff is not required to establish with particularity the costs and benefits associated with adoption of an alternative design. Id.
Plaintiffs, through Mr. Seluga, propose two alternative designs that would have made this golf car safer. One of the designs is a taller hip restraint that, at its highest point, sits nine to ten inches (9-10") above the uncompressed seat cushion. The other alternative design proposed by the Plaintiffs is a centrally-mounted handhold/hip restraint. Both of these designs were, according to Seluga, “technically and economically feasible” at the time of manufacture (and, by implication, at the time of sale). Seluga Exp. Rep. at 15. In fact, Seluga testified that some time before the 1999 Yamaha G16A golf car was made available for sale, Seluga Dep. Tr. 68:9-15, a golf car manufactured by Club Car contained an optional add-on rearward-facing bench seat where golf equipment would otherwise be held, which had a large hip restraint and a centrally-mounted handhold. Seluga Dep. Tr. 69:8-70:28. The hip restraint for the rear-facing seat, according to Seluga, was approximately ten or eleven inches (10"-11") above the seat. Id. at 70:10-11. As a counterpoint to Mr. Seluga’s claim that these alternative designs were technologically and economically available, Defendant expert, Mr. Kevin Breen, concluded “to a reasonable degree of scientific certainty” that “the 1999 Yamaha G16A represents a state-of-art design as of the day of manufacture.” Breen Exp. Rep. at 10, ECF No. 35-8. Yamaha further argues that the golf car was manufactured in compliance with the standards adopted by the ANSI/NGCMA committee, which appears to be uncontroverted by the record. Defs.’ Br. Supp. Mot. Summ. J. at 18; Defs.’ Concise Statement of Material Facts ¶ 14; Pis.’ Resp. to Defs.’ Concise Statement of Facts ¶ 14. Each position appears to have sufficient evidentiary support and they demonstrate that there exists a genuine dispute of material fact that precludes the entry of judgment as a matter of law against Plaintiffs on this point.
The Court also concludes that the Lynns have produced sufficient evidence that would enable a jury to conclude that the omission of the reasonable alternative design renders the golf car not reasonably safe. In considering whether an alternative design is reasonable and whether its omission renders a product not reasonably safe, the Court may consider the following factors: (1) the magnitude and probability of the foreseeable risks of harm; (2) the instructions or warnings accompanying the product; (3) the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing; and (4) the relative advantages and disadvantages of the product as designed compared to as it alternatively could have been designed (i.e., the likely effects of the alternative design on production costs, the effects on product longevity, maintenance, repair, and aesthetics, and the range of consumer choice among products). Id., cmt. f. See also Richetta v. Stanley Fastening Sys., L.P., 661 F.Supp.2d 500, 510 (E.D.Pa.2009) (applying factors). The overall safety of the alternative design must be considered, for the omission of an alternative design that would have prevented or reduced the harm in one instance but gives rise to other, more serious risks in another would not render the initial product unreasonably dangerous. Restatement (Third) of Torts § 2, cmt. f.
First, in his report, Mr. Seluga concludes that the injuries to Mercedez Lynn from this accident would not have occurred (or would have otherwise been prevented) had the Lynns’ golf car been equipped with a higher hip restraint and/or a centrally-mounted handhold device resembling the hip restraint in design. Seluga Exp. Rep. at 14; see also ECF No. 45-10. The statistical data analyzed by Mr. Seluga, as we have already discussed above, is evidence which would demonstrate that the risk of ejection was foreseeable. In addition, Seluga’s computer simulation shows that the magnitude of the risk is high, given that the head is among the body parts to strike the ground first when a passenger is ejected by engaging the hip restraint. Seluga Dep. Tr. at 146:15-17. The grave nature of Mercedez’s claimed injuries, which include a subdural hematoma and traumatic brain injury, supports this conclusion. Compl. ¶¶ 21-22.
Second, while the instructions or warnings accompanying the golf car do not specifically warn of the foreseeable risk of ejection, they do explicitly warn that death or serious bodily injury can occur, or, in other words, such harm is foreseeable. As the Court will examine in further detail below, the sticker directly above the vehicle’s beverage holder warns that the golf car should be driven slowly in turns, and that occupants should remain seated and hold on when the vehicle is in motion, to avoid death or serious bodily harm. A reasonable jury could conclude that such a warning is not sufficient to overcome the omission of a safer alternative design. Richetta, 661 F.Supp.2d at 511. As the Restatement (Third) instructs, warnings are not a substitute for the provision of a reasonably safe design. Restatement (Third) of Torts § 2, cmt. 1. However, although they are embedded within a list of ten (10) warnings, these warnings are prominently displayed in the center of the golf car, at a reasonable height for all occupants to notice, and in a location commonly used by occupants to store items.
Finally, the Court concludes that the relative advantages and disadvantages of Mr. Seluga’s proposed alternative designs outweigh those of the golf car as designed. As we have already indicated, the likely effects of the alternative designs on production costs would be minimal. Mr. Seluga is not proposing alternative designs that would require enhanced technology or a complete overhaul of the hip restraint. Instead, Mr. Seluga proposes a design of the restraint that differs only in height. While the Court is cognizant of the fact that a higher restraint could impede on a passenger’s ability to enter and exit the vehicle with ease, a jury could readily find that such an imposition would be insignificant compared to the increased safety users would enjoy by the alternative design. Thus, the Court concludes that the Lynns have produced sufficient evidence that a reasonable jury could conclude that Mr. Seluga’s alternative designs are reasonable and the omission of such designs makes the golf not reasonably safe.
The Intended Use and Intended User Doctrines
The heart of Defendants’ summary judgment arguments is that the use of the golf car here was by no measure an “intended use,” nor was its operation by Ms. Johnston the operation of or by an “intended user.” Defendants contend that under the analysis posited by the Restatement (Second) and by the legal norms applicable post-Azzarello, the application of these doctrines (or, in reality, either one of them) shuts the door on Plaintiffs’ strict liability claims. For the reasons which follow, the Court finds these contentions unavailing here.
Over forty years ago, the Pennsylvania Supreme Court adopted Section 402A of the Restatement (Second) of Torts. Azzarello, 391 A.2d at 1023 (citing Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966)). This provision imposed strict liability upon sellers of defective products that are “unreasonably dangerous to the user or consumer.” Restatement (Second) of Torts § 402A(1) (1965). See also Moyer v. United Dominion Indus., Inc., 473 F.3d 532, 538 (3d Cir.2007).
The Azzarello court, concerned that juries would force suppliers to also be insurers of their products in every circumstance, created a framework whereby the initial decision to expose a distributor of an allegedly “unreasonably dangerous” product to strict liability rests with the trial judge. See id. at 1023-24, 1026-27; Moyer, 473 F.3d at 538. Therefore, under Pennsylvania’s interpretation of the Restatement (Second), whether or not a product is “unreasonably dangerous” (so that placing the risk of loss on the supplier would be justified) was a question of law. See id. at 1026; Surace v. Caterpillar, Inc., 111 F.3d 1039, 1044 (3d Cir.1997).
Pennsylvania law under the Restatement (Second) provided that a product is “unreasonably dangerous” if its unavoidable dangers outweigh its utility, in light of “the availability of precautions that, though not foolproof, might prevent the injury.” See Phillips, 841 A.2d at 1013-14 (quoting Burch v. Sears, Roebuck & Co., 320 Pa.Super. 444, 467 A.2d 615, 618 (1983)). Consequently, a court, prior to submitting the plaintiffs case to the jury, was to conduct a risk-utility (or cost-benefit) analysis. Id. If the risks of the product outweigh its utility to the public under the facts alleged, then the suit proceeds to the jury, which will determine if (1) the product is defective because it left the distributor’s control lacking any element necessary to make it safe for its intended use or possessing a feature that renders it unsafe for such use and (2) the defect caused the plaintiffs injury. Surace, 111 F.3d at 1044 (citing Azzarello, 391 A.2d at 1027),
The Defendants did not move for summary judgment pursuant to this Azzarello analysis, Instead, they alleged that Plaintiffs’ strict liability claims fail as a matter of law because the golf car was being used in an unintended manner by unintended users. The Defendants ask the Court to make that determination without conducting any risk-utility analysis under Azzarello. See Defs.’ Supplemental Br. at 7. For the reasons that follow, Yamaha’s arguments regarding intended use and intended user fail as a matter of law.
As a preliminary matter, the Court would note that, given its application of the Restatement (Third) of