DAVID SHOW and MARIA FEDERICI v. Ford Motor Company

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-2428 & 10-2637
DAVID SHOW and MARIA FEDERICI,
Plaintiffs-Appellants,
v.
FORD MOTOR COMPANY,
Defendant-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 3081—Morton Denlow, Magistrate Judge.
ARGUED DECEMBER 2, 2010—DECIDED SEPTEMBER 19, 2011
Before EASTERBROOK, Chief Judge, and MANION and
WILLIAMS, Circuit Judges.
EASTERBROOK, Chief Judge. While passing through an
intersection at roughly 30 miles per hour, a 1993 Ford
Explorer was struck by another car near the left rear
wheel. The Explorer rolled over; David Show, the
driver, and Maria Federici, a passenger, were injured.
They sued in state court, contending that the Explorer
was defective because its design rendered it unstable.

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2 Nos. 10-2428 & 10-2637
The suit was removed under the diversity jurisdiction.
The parties consented to final decision by a magistrate
judge. See 28 U.S.C. §636(c). Come the close of discovery,
Show and Federici had not designated an expert on the
subject of the vehicle’s design. The magistrate judge
concluded that the suit could not proceed without
expert testimony and granted summary judgment to
Ford. 697 F. Supp. 2d 975 (N.D. Ill. 2010).
In products liability cases in which the plaintiff alleges
a design defect, Illinois (whose law supplies the substan-
tive rules) permits the claim to be established “in either
of two ways. First, the plaintiff may introduce ‘evi-
dence that the product failed to perform as safely as an
ordinary consumer would expect when used in an in-
tended or reasonably foreseeable manner.’ This has
come to be known as the consumer-expectation test.
Second, the plaintiff may introduce ‘evidence that the
product’s design proximately caused his injury.’ If the
defendant thereafter ‘fails to prove that on balance the
benefits of the challenged design outweigh the risk of
danger inherent in such designs,’ the plaintiff will pre-
vail. This test, which added the balancing of risks
and benefits to the alternative design and feasibility
inquiries . . . , has come to be known as the risk-utility
or risk-benefit test.” Mikolajczyk v. Ford Motor Co., 231 Ill.
2d 516, 526–27 (2008) (citations omitted).
Plaintiffs concede that testimony by an engineer or
other design expert is essential when a claim rests on
the risk-utility approach. But they say that jurors, as
consumers, can find in their own experience all of

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Nos. 10-2428 & 10-2637 3
the evidence required for liability under the consumer-
expectation approach. The district court rejected this
contention, observing that in Mikolajczyk and other
consumer-expectation cases plaintiffs have proffered
experts. The Supreme Court of Illinois has not con-
sidered any design-defect suit involving a complex prod-
uct, such as a car, in which the plaintiff declined to pro-
duce expert evidence, so they have not definitively held
that such testimony is essential. Several intermediate
appellate decisions in Illinois say that expert testimony
is vital in design-defect suits when aspects of a product’s
design or operation are outside the scope of lay know-
ledge. See, e.g., Baltus v. Weaver Division of Kidde & Co.,
199 Ill. App. 3d 821, 834–36 (1990); Henry v. Panasonic
Factory Automation Co., 396 Ill. App. 3d 321, 326–27 (2009).
The magistrate judge thought that the Supreme Court of
Illinois is likely to concur when a suit finally presents
the issue. See also Smoot v. Mazda Motors of America, Inc.,
469 F.3d 675, 680–82 (7th Cir. 2006) (Wisconsin law).
The magistrate judge, like counsel for both sides, as-
sumed that state law determines whether expert testi-
mony is essential. The assumption rests on a belief that
the quality of proof is part of the claim’s substantive
elements, which depend on state law under the Erie
doctrine even when substantive doctrine is implemented
through evidentiary rules. See Barron v. Ford Motor Co.,
965 F.2d 195, 199–201 (7th Cir. 1992); cf. Gasperini v. Center
for Humanities, Inc., 518 U.S. 415 (1996). Language in
Mikolajczyk raises the question whether Illinois treats
the risk-utility and consumer-expectations approaches
as distinct legal doctrines, or as aspects of a more general

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4 Nos. 10-2428 & 10-2637
theory of liability: that a product is unreasonably danger-
ous. After an extended discussion of its cases, the
Supreme Court of Illinois wrote: “In [an earlier decision],
we stated that a plaintiff ‘may demonstrate that a
product is defective in design, so as to subject a retailer
and a manufacturer to strict liability for resulting
injuries, in one of two ways.’ We then set out the
consumer-expectation test and the risk-utility test. These
two tests, therefore, are not theories of liability; they are
methods of proof by which a plaintiff ‘may demonstrate’
that the element of unreasonable dangerousness is
met.” 231 Ill. 2d at 548 (emphasis in original; citations
omitted).
If the consumer-expectation test is not an independent
theory of liability, perhaps federal rather than state law
determines whether expert evidence is essential. Rules
about jury control, and the allocation of tasks between
judge and jury, are matters of forum law. See Mayer v.
Gary Partners & Co., 29 F.3d 330 (7th Cir. 1994). Likewise
the rules about expert evidence are found in the
Federal Rules of Evidence, which like other rules
adopted under the Rules Enabling Act control federal
litigation notwithstanding contrary state law. See Shady
Grove Orthopedic Associates, P.A. v. Allstate Insurance Co.,
130 S. Ct. 1431 (2010); Walker v. Armco Steel Corp., 446
U.S. 740 (1980).
Federal law often requires expert evidence about con-
sumers’ knowledge and behavior, because jurors are
supposed to decide on the basis of the record rather
than their own intuitions and assumptions. In trademark

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Nos. 10-2428 & 10-2637 5
litigation, for example, surveys conducted by experts
may be needed to establish that consumers would be
confused by particular packaging or messages. See
Libman Co. v. Vining Industries, Inc., 69 F.3d 1360, 1361 (7th
Cir. 1995); Braun Inc. v. Dynamics Corp. of America, 975
F.2d 815, 828 (Fed. Cir. 1992); Lever Brothers Co. v.
American Bakeries Co., 693 F.2d 251, 258 (2d Cir. 1982).
Similarly expert evidence often is vital under the Fair
Credit Reporting Act or the Fair Debt Collection
Practices Act to show that brochures would confuse an
unsophisticated borrower. See Pettit v. Retrieval Masters
Creditor Bureau, Inc., 211 F.3d 1057, 1062 (7th Cir. 2000);
Walker v. National Recovery, Inc., 200 F.3d 500 (7th Cir.
1999); Johnson v. Revenue Management Corp., 169 F.3d 1057,
1060–61 (7th Cir. 1999). Many federal civil cases are
resolved by six-person juries, and none by more than
twelve. Fed. R. Civ. P. 48(a). That is too few to reveal
what expectations consumers as a whole may have.
Professional surveys of consumers’ beliefs entail carefully
designed questions put to hundreds of persons. See
DeKoven v. Plaza Associates, 599 F.3d 578, 580–81 (7th
Cir. 2010); Muha v. Encore Receivable Management, Inc., 558
F.3d 623 (7th Cir. 2009). If federal courts require expert
evidence, rather than relying on jurors’ experience, in
trademark and credit suits, why not in product-design-
defect cases? Jurors know less about product design
than they know about what confuses people who buy
toothpaste or borrow $10,000.
Another passage in Mikolajczyk tells us that neither the
risk-utility approach nor the consumer-expectations
approach has “elements”, and that both are just windows
into a larger inquiry:

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6 Nos. 10-2428 & 10-2637
Although we have declined to adopt section 2
of the Products Liability Restatement as a state-
ment of substantive law, we do find its formula-
tion of the risk-utility test to be instructive.
Under section 2(b), the risk-utility balance is to
be determined based on consideration of a “broad
range of factors,” including “the magnitude and
probability of the foreseeable risks of harm, the
instructions and warnings accompanying the
product, and the nature and strength of consumer
expectations regarding the product, including expecta-
tions arising from product portrayal and marketing,”
as well as “the likely effects of the alternative
design on production costs; the effects of the
alternative design on product longevity, mainte-
nance, repair, and esthetics; and the range of
consumer choice among products.” (Emphasis
added.) Restatement (Third) of Torts: Products
Liability §2, Comment f, at 23 (1998).
This formulation of the risk-utility test is an “inte-
grated” test . . . . Under this formulation, consumer
expectations are included within the scope of the
broader risk-utility test. In addition, the test
refines the consumer-expectation factor by specifi-
cally allowing for advertising and marketing
messages to be used to assess consumer expecta-
tions.
. . .
Adoption of this integrated test resolves the ques-
tion of whether the answer to the risk-utility test

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Nos. 10-2428 & 10-2637 7
“trumps” the answer to the consumer-expectation
test because the latter is incorporated into the
former and is but one factor among many for
the jury to consider.
231 Ill. 2d at 555–56 (emphasis in original). Whether or
not this implies that federal law determines what kind
of evidence is required—a subject that we bypass,
given the parties’ shared assumption—it assuredly means
that there is no sharp line between the risk-utility and
consumer-expectations approaches. If, as plaintiffs con-
cede, it takes expert evidence to establish a complex
product’s unreasonable dangerousness through a risk-
utility approach, it also takes expert evidence to estab-
lish a complex product’s unreasonable dangerousness
through a consumer-expectations approach.
Plaintiffs’ argument that jurors should be able to rely on
their own expectations as consumers reflects a belief
that “expectations” are all that matters. Yet because
under Mikolajczyk the consumer-expectations approach
is just a means of getting at some issues that bear
on the question whether a product is unreasonably dan-
gerous, it is impossible to dispense with expert knowl-
edge. Consider one vital question in this case: Did the
design decisions that went into the 1993 Ford Explorer
even contribute to the rollover? Causation is a question
about physics, and design options are the province of
engineers. Jurors own cars, but people own lots of
products without being able to explain (or even under-
stand) the principles behind their construction and opera-
tion. Christopher Chabris & Daniel Simons, The Invisible

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8 Nos. 10-2428 & 10-2637
Gorilla: And Other Ways Our Intuitions Deceive Us 119-27
(2010), found that most people can’t explain what makes
a bicycle or toilet work. Cars are far more complex.
Counsel for the plaintiffs repeat the mantra that cars
“just don’t roll over in low-speed collisions” unless de-
fectively designed. How do they know that? The record
doesn’t tell us even why this car rolled over, let alone
what cars usually do in particular kinds of collisions—or
what design changes could reduce the rollover rate, by
how much. Plaintiffs say that the second car struck
the Explorer near the left rear wheel. Perhaps this
caused the Explorer to pivot, with the rear wheels sud-
denly moving to the right. Then the Explorer’s body
would be going in the same direction as before, but the
car’s wheels would be inclined 45 degrees, perhaps
more, to the line of travel. The Explorer’s own forward
speed, not momentum transferred from the colliding
vehicle, could cause a rollover. The wheels, now pointed
at a steep angle to the line of travel, would cause the
bottom of the car to decelerate rapidly (and the car as
a whole to veer), while the top of the car retained its
forward energy. When the wheels are pointed in the
direction of travel, the car’s center of gravity remains
within the wheelbase during rapid deceleration and a
rollover cannot occur; but when wheels are perpendic-
ular to the line of travel, a tilt in the direction of travel
can put the center of gravity outside the wheelbase,
and the car will roll over. Many articles available
on the Internet discuss the physics of this process.
See, e.g., http://mb-soft.com/public/rollover.html. Under-
standing requires some geometry and algebra; jurors’

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Nos. 10-2428 & 10-2637 9
unguided intuitions will not solve the equations. Without
an expert’s assistance the decision would depend on
speculation, which cannot establish causation—an issue
on which plaintiffs bear both the burden of production
and the risk of non-persuasion.
Because consumer expectations are just one factor in
the inquiry whether a product is unreasonably dangerous,
a jury unassisted by expert testimony would have to
rely on speculation. This record does not show whether
1993 Explorers are unduly (or unexpectedly) dangerous,
because it lacks evidence about many issues, such as:
(a) under what circumstances they roll over; (b) under
what circumstances consumers expect them to do so;
(c) whether it would be possible to reduce the rollover
rate; and (d) whether a different and safer design would
have averted this particular accident. All of these are
subjects on which plaintiffs bear the burden of proof.
There are other issues too, such as whether the precau-
tions needed to curtail the rate of rollovers would be cost-
justified. That is a topic on which Ford may have the
burden under state law, but we needn’t pursue how
that burden is allocated.
The part of Mikolajczyk most helpful to plaintiffs is this
sentence: “No evidence of ordinary consumer expecta-
tions is required, because the members of the jury may
rely on their own experiences to determine what an
ordinary consumer would expect.” 231 Ill. 2d at 554.
Once again we bypass the question whether state or
federal law governs methods of proof in federal court.
The sentence does not avail plaintiffs, even if state law

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10 Nos. 10-2428 & 10-2637
governs, because it concerns only the question what
ordinary consumers expect. Design-defect litigation
under Illinois law requires many additional questions to
be resolved; consumers’ expectations are just factors
“included within the scope of the broader risk-utility
test” (231 Ill. 2d at 555); and the absence of expert
evidence on these additional subjects, some of which
we have mentioned, is fatal to plaintiffs’ suit.
AFFIRMED
9-19-11

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