Ruby Harris v. General Motors Corporation

8 Harris v. General Motors Corp. No. 99-3092
2In this regard, we also note that although the trial court considered
the affidavits of both Everest and Lighthall, it did not undertake a Daubert
inquiry as to either proposed expert. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Company v.
Carmichael, ___ U.S. ___, 119 S. Ct. 1167 (1999). While this omission
may be explained, in part, by the fact that Harris did not raise the Daubert
issue before the district court, we note that on remand, the district court
must, consistent with its gatekeeping role, perform a Daubert analysis of
the proposed testimony of the defense experts, particularly Everest.
Certainly, nothing in the record as it now exists evinces either the
reliability or validity of Everest’s testimony as to the DERM. Our own
research did not reveal a single reported case addressing the Daubert
issue as to General Motors’ automotive “black box.”
have discussed them above, are sufficiently unassailable2 to
take the issue of credibility from the jury.
IV. CONCLUSION
For the foregoing reasons, the district court’s grant of
summary judgment is REVERSED, and the case is
REMANDED to the district court for trial.
*The Honorable John Feikens, United States District Judge for the
Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0039P (6th Cir.)
File Name: 00a0039p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
R UBY HARRIS,
Plaintiff-Appellant,
v.
GENERAL M OTORS
C ORPORATION ,
Defendant-Appellee.
;>

1
No. 99-3092
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 97-07171—James G. Carr, District Judge.
Argued: December 15, 1999
Decided and Filed: January 31, 2000
Before: RYAN and NORRIS, Circuit Judges; FEIKENS,
District Judge.*

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2 Harris v. General Motors Corp. No. 99-3092
_________________
COUNSEL
ARGUED: Edward A. Van Gunten, EDWARD VAN
GUNTEN & COMPANY, Toledo, Ohio, for Appellant.
Francis J. Grey, Jr., LAVIN, COLEMAN, O’NEIL, RICCI,
FINANELLI & GRAY, Philadelphia, Pennsylvania, for
Appellee. ON BRIEF: Edward A. Van Gunten, EDWARD
VAN GUNTEN & COMPANY, Toledo, Ohio, for Appellant.
Francis J. Grey, Jr., LAVIN, COLEMAN, O’NEIL, RICCI,
FINANELLI & GRAY, Philadelphia, Pennsylvania, Ray A.
Farris, FULLER & HENRY, Toledo, Ohio, for Appellee.
_________________
OPINION
_________________
FEIKENS, District Judge.
I. INTRODUCTION
This is an appeal from a decision granting summary
judgment to defendant General Motors Corporation (“General
Motors”). Ruby Harris (“Harris”) appeals the grant, and for
the reasons that follow, we reverse the district court’s grant
and remand the case for trial.
II. BACKGROUND
On June 10, 1996, 76 year-old Harris was driving her 1991
Chevrolet Corsica in Toledo, Ohio. Harris attempted to turn
left into a parking lot, accidentally turning into the path of an
on-coming vehicle. A nearly head-on but relatively low-
speed collision resulted. Harris, who was wearing her
seatbelt, was uninjured in the initial crash. She testified in her
deposition that immediately after the crash, when she reached
with her right hand to turn off the ignition, the airbag in the
Corsica deployed, hitting her in the face, wrapping itself
around her right arm and breaking that arm. Harris’ sole
No. 99-3092 Harris v. General Motors Corp. 7
go so far. The affidavit concludes merely that the DERM data
suggests that the airbag deployed properly; it does not
establish beyond factual dispute that the airbag could not have
deployed belatedly in the manner described by Harris.
In short, neither of General Motors’ expert affidavits
establishes the “undisputed physical facts” necessary to justify
rejection of Harris’ testimony in the context of General
Motors’ motion. The district court’s application of the
“physical facts rule” in this case was error.
We note one other difficulty with application of the
physical facts rule in this case. As this court noted in Powers
v. Bayliner Marine Corp., 83 F.3d 789 (6th Cir. 1996):
"There are many circumstances in which testimony need
not be accepted even though formally uncontradicted,"
Sheppard v. Maxwell, 346 F.2d 707, 726 (6th Cir.1965),
rev'd on other grounds, 384 U.S. 333, 86 S.Ct. 1507, 16
L.Ed.2d 600 (1966). "[T]he jury is instructed that it is
completely free to accept or reject an expert's testimony,
and to evaluate the weight given such testimony in light
of the reasons the expert supplies for his opinion."
United States v. 0.161 Acres of Land in Birmingham,
Ala., 837 F.2d 1036, 1040-41 (11th Cir.1988).
Id. at 797-98. We have no doubt that, in some cases, a
proffered expert’s testimony as to physical facts will be
sufficiently unassailable so as to justify a grant of summary
judgment notwithstanding contrary evidence submitted by a
non-movant. However, such circumstances must be viewed
with due regard to the general rule that in consideration of a
motion for summary judgment, the evidence is considered in
the light most favorable to the non-movant. In this case, we
cannot conclude that defendant’s experts’ affidavits, as we

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6 Harris v. General Motors Corp. No. 99-3092
Harris’ right arm would have been in front of and across her
body as she made the left turn just prior to the accident. From
this, he concludes that Harris’ arm was broken when the
airbag properly deployed, striking her arm, during the
accident.
Based on the content of this affidavit, General Motors
argued that it would have been physically impossible for
Harris’ right forearm to have been broken in the manner in
which she alleged, and it is apparent from the district court’s
opinion that the judge was persuaded, at least in part, by that
representation. As counsel for General Motors concedes on
appeal, however, Lighthall’s affidavit does not state that
Harris’ injury could not have happened as she alleged.
Rather, the affidavit merely presents defendant’s alternative
theory of the case. Such an affidavit does not establish
“undisputed physical facts” or demonstrate the lack of a
triable issue of fact. To the contrary, Lighthall’s affidavit
posits the very factual dispute that gives rise to a jury question
in this case.
The second affidavit submitted by General Motors is that of
Brian Everest. Everest, an engineer employed by General
Motors, stated in his affidavit that he had downloaded data
from a device onboard Harris’ Corsica known as a
“Diagnostic Energy Reserve Module” or DERM. Everest
likened the DERM to an airplane’s “black box.” He
described the functions of the DERM, noting that the DERM
monitors the airbag system for malfunctions and that the
DERM “warns the operator by controlling the ‘air bag’
warning light on the instrument panel.” He then concluded,
“The DERM data from the Corsica suggests the supplemental
restraint system (SIR) functioned as designed by deploying
during the plaintiff’s accident. . . .” (Emphasis added.)
General Motors argued, and the district court found, that
Everest’s affidavit established the undisputable fact that the
airbag “deployed properly during impact, that is, the moment
when plaintiff was executing her left turn.” (District Court
Opinion, p. 4.) Clearly, however, Everest’s affidavit does not
No. 99-3092 Harris v. General Motors Corp. 3
passenger, Michele Packer (“Packer”), confirmed that the
airbag did not deploy until after the accident. Based on these
facts, Harris filed suit, contending that the airbag had been
defective in deploying after the accident and had caused her
injuries.
After discovery, General Motors moved for summary
judgment. In support of that motion, General Motors
submitted the affidavits of two proposed experts. In response,
plaintiff submitted her deposition testimony and that of her
passenger, maintaining that the airbag had not deployed until
after the accident. The district court granted General Motors’
motion, accepting the testimony of defendant’s expert
witnesses and expressly rejecting plaintiff’s testimony.
III. DISCUSSION
We review the district court’s grant of summary judgment
de novo, applying the same standard as did the district court.
See Aparicio v. Norfolk & Western Railway Co., 84 F.3d 803,
806 (6th Cir. 1996). Courts properly grant summary
judgment where the moving party establishes through
pleadings, depositions, answers to interrogatories, admissions,
and affidavits that “there is no genuine issue as to any
material fact, and that the moving party is entitled to a
judgment as a matter of law.” Mauro v. Borgess Medical
Center, 137 F.3d 398, 401 (6th Cir. 1998) (quoting Fed. R.
Civ. P. 56(c)). Under Rule 56(c), defendant bears an initial
burden of demonstrating that an essential element of the non-
moving party’s case is lacking. Kalamazoo River Study
Group v. Rockwell Int’l Corp., 171 F.3d 1065, 1068 (6th Cir.
1999) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986)). Once the moving party has met this burden, the
nonmoving party must show the court that there is in fact a
genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). The nonmoving party must identify
specific facts, supported by evidence, and may not rely on
mere allegations contained in the pleadings. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992); Liberty
Lobby, 477 U.S. at 248. In deciding a motion for summary

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4 Harris v. General Motors Corp. No. 99-3092
judgment, the court must view the factual evidence in the
light most favorable to the nonmoving party. Mount Elliott
Cemetery Ass’n v. City of Troy, 171 F.3d 398, 402-03 (6th
Cir. 1999) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986)).
In this case, the parties presented two conflicting versions
of events. Harris submitted evidence which, if believed, may
support her theory of liability; General Motors submitted
contrary evidence which, if admitted and believed, may
negate a finding of liability. Viewing all factual evidence in
the light most favorable to Harris, General Motors was not
entitled to summary judgment.
The district court ruled otherwise, relying on the “physical
facts rule” as explained by the Ohio Supreme Court in
McDonald v. Ford Motor Co., 42 Ohio St. 2d 8 (1975):
Ordinarily, where testimony conflicts, the credibility of
witnesses is a matter for the jury. However, in certain
instances testimony cannot be considered credible.
Where a witness testifies that he looked and listened at a
railroad crossing, but neither saw nor heard a train
approaching, and the only reasonable conclusion upon
the evidence is that there is no doubt that had he looked
he must have seen the train, the witness's testimony
cannot be considered credible. Detroit, Toledo & Ironton
Rd. Co. v. Rohrs 114 Ohio St. 493 (1926); See, also,
Zuments v. B. & O. Rd. Co. 27 Ohio St.2d 71 (1972).
The 'railroad crossing' cases are a single example of the
broad range of cases in which courts have recognized that
eye-witnesses' testimony, essential though it may be, is
fundamentally 'soft' evidence, subject to human failings
of perception, memory and rectitude. In law, as in other
spheres of human affairs, simple facts may be far more
persuasive than the most learned authorities. As in Dean
Prosser's homely example, 'there is still no man who
would not accept dog tracks in the mud against the sworn
testimony of a hundred eye-witnesses that no dog has
passed by.' Prosser on Torts (4 Ed.), 212.
No. 99-3092 Harris v. General Motors Corp. 5
1In this regard, we note that the “physical facts rule” is entirely
consistent with the standard set forth in FRCP 56(c) - that summary
judgment is warranted where there is no “genuine issue as to any material
fact”. FRCP 56(c) (emphasis added). Obviously, where the only
evidence submitted by a non-movant is contradicted by indisputable
physical facts, there can be no genuine issue of material fact for trial.
The name generally given to this concept is the
'physical facts rule.' The rule has been variously stated: E.
G., 'the testimony of a witness which is opposed to the
laws of nature, or which is clearly in conflict with
principles established by the laws of science, is of no
probative value and a jury is not permitted to rest its
verdict thereon.' [citation omitted]. 'The testimony of a
witness which is positively contradicted by the physical
facts cannot be given probative value by the court.' Lovas
v. General Motors Corp. 212 F.2d 805, 808 (6th Cir.
1954).
Id. at 12. Thus, under the physical facts rule, where the “the
palpable untruthfulness of plaintiff's testimony” is evident
because the testimony is “obviously inconsistent with,
contradicted by, undisputed physical facts,” id. at 12-13,
summary judgment is warranted notwithstanding testimony
offered by the plaintiff. Id.1
The primary difficulty with application of the physical facts
rule to this case is that General Motors’ affidavits simply do
not establish undisputed physical facts fatal to Harris’
products liability claim. See Fortunato v. Ford Motor Co.,
464 F.2d 962, 965-66 (2nd Cir. 1972).
In support of the motion, General Motors submitted the
affidavits of two defense experts. One was Dr. James
Lighthall. Lighthall, a doctor of anatomy and neuroscience,
and a former employee of General Motors, stated that he is an
expert on injury causation and occupant kinematics. His
affidavit elaborates on his theory as to how, consistent with
the physical evidence and the proper functioning of the
airbag, Harris’ injury might have occurred. He opined that

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