OPINION & ORDER
PRINCE, United States Magistrate Judge.
Nature of the Case
This action is brought by L.V. Elgin Lowmack, Jr. and Michelle A. Lowmack, as Administrators of the Estate of Mekia E. Lowmack, Deceased, plaintiffs ("Lowmack"), against Century Products Company, defendant ("Century"), the manufacturer of a Child Restraint System ("CRS"), or car seat, for the wrongful death of Mekia, who was 22 months old at the time of her death, on October 11, 1994, in an automobile accident.
It is alleged that Michelle Lowmack was operating a 1994 Pontiac Grand Am with Mekia riding in the back seat of the car in the CRS. Mr. Lowmack was a front seat passenger. Ms. Lowmack lost control of the car, and while it was out of control "the CRS in which Mekia was strapped came loose from its position (although the seat belt itself never unlatched or became disengaged), and allowed the infant to be tossed around the car, while still strapped within the CRS, to such an extent that the infant suffered a broken neck [,which caused her death]." ¶ 15. It is alleged that "[b]ut for the fact that the CRS came loose from its original position ... the infant plaintiff [sic] would have survived the accident." ¶ 19. Century's negligence is alleged to have been in its design of the CRS, which made it defective and unreasonably dangerous to use, and in failing to adequately warn users of the dangers. Mekia's death "was proximately caused by the defect in the CRS ... [and] as a result [she] died in the automobile accident." ¶¶ 42-43. Damages of $8,425,227, "plus all damages provided by the [Virginia Wrongful Death Act]" are claimed.
Century filed a motion for summary judgment based on two grounds: 1) that plaintiffs' evidence is insufficient to prove that the vehicle seat belt in the back, which was used to restrain the car seat, loosened during the accident;
Facts Concerning the Loosening
Mr. Lowmack testified that when the car came to a stop on its roof, he saw his daughter "dangling in front of me." (Docket # 10, Ex. 10 (Elgin Lowmack Deposition), p. 21.) For the following eighteen pages of his deposition, Mr. Lowmack described what he saw of the car seat in sufficient detail to permit a jury, after considering its weight and credibility, to conclude that the restraining belt had loosened during the course of the accident.
It is the opinion of the Court that the combined testimony of Mr. Lowmack and Dr. Pearsall is sufficient to create a genuine issue of material fact as to whether the vehicle seat belt used to restrain the car seat loosened during the accident, and that summary judgment should not be granted on the first ground stated.
Allegations and Facts Concerning the Cause of Death
As stated earlier, it is alleged in ¶ 19 of the Complaint that "[b]ut for the fact that the CRS came loose from its original position ... [Mekia] would have survived the accident"; in ¶ 42, that "[t]he death of plaintiffs' decedent was proximately caused by the defect in the CRS manufactured by [Century]"; and in ¶ 43, that "[a]s a direct result of the combined negligence of the defendants, GM and Century, the plaintiffs' decedent died in the automobile accident."
In Plaintiffs' Brief in Opposition to the Defendant's Motion for Summary Judgment (Docket # 14), they argue that they have "presented evidence that the failure of Century in any one or more of these particulars more likely than not caused the death of Mekia Lowmack" (id. at 7); that "the plaintiffs have clearly proffered testimony and evidence that as a direct result of [Century's] failures as set out above, the death of Mekia Lowmack occurred (id. at 8); and that the plaintiff[s have] established through expert and factual testimony the following: ... (6) As a direct result of the problems set out above, the infant Mekia Lowmack died in this automobile accident." (Id. at 8.)
Plaintiffs directed the Court's attention in their brief to Prof. Pearsall's testimony of causation as follows:
(Docket # 14, p. 4.)
During oral argument, plaintiffs referred to the testimony of Prof. Pearsall on page 54 of his deposition:
Pearsall Dep. at 54-55.
In oral argument, plaintiffs also directed the Court to the testimony of Dr. Michael E. Hurst on page 12 of his deposition. (Century's Reply Memorandum in Support of Its Motion for Summary Judgment (Docket # 15), Ex. 23.) Dr Hurst is the State Medical Examiner called upon to investigate Mekia's death. His deposition was taken by Century, although he was asked one question by plaintiffs as follows:
Pages 54-55 of the deposition of Prof. Pearsall, and page 12 of the deposition of Dr. Hurst, were not referred to in plaintiffs' memorandum. These parts of the depositions were identified in oral argument in connection with two Virginia cases not cited in plaintiffs' memorandum,
Before discussing this theory of proximate cause, there is other testimony of Dr. Hurst and Prof. Pearsall that should be noted. Dr. Hurst stated that no autopsy was performed.
Prof. Pearsall stated that he had no basis for an understanding of what the cause of death was other than what he had been told. He added: "but I will say that it's consistent with what I would expect if a child in a child seat is — if the child seat is capable of moving when the car is impacted and then suddenly being stopped when the child seat came to the end of the seat belt, this is certainly not a surprising result." (Pearsall Dep. 42.) He also said that he had no opinion of when the injury occurred, what the injury was other than what he was told, or at what level of the neck it occurred. (Id. at 42-43.) Other than what the injury was, he thought it insignificant as to when the injury occurred or at what level was the fracture. He could not say if the forces exerted on Mekia before the car flipped over were sufficient to break her neck, but "everything seems consistent with that." (Pearsall Dep. 145.) Earlier in his deposition, he had said:
During oral arguments, plaintiffs' counsel stated that they do not contend that their evidence is sufficient to prove that Mekia's death was proximately caused by the defective car seat under the ordinary definition of proximate cause: "A proximate cause of an accident, injury, or damage is a cause which in natural and continuous sequence produces the accident, injury, or damage. It is a cause without which the accident, injury, or damage would not have occurred." Virginia Model Jury Instruction No. 5.000; approved in Blondel v. Hays, 241 Va. 467, 403 S.E.2d 340, 344 (1991). Devitt, Blackmar and Wolff, Federal Jury Practice and Instructions, § 80.18, defines proximate cause as follows:
Instead, plaintiffs contend that their proof of proximate cause is established by their evidence from Prof. Pearsall that the defective car seat caused a significant loss of a chance of survival. For this argument they cite Hadeed v. Medic-24, Ltd., 237 Va. 277, 377 S.E.2d 589 (1989), and Brown v. Koulizakis, 229 Va. 524, 331 S.E.2d 440 (1985).
In Brown, the Supreme Court of Virginia stated:
Id. 331 S.E.2d at 446.
Brown was followed by the Supreme Court of Virginia in Hadeed. In Blondel v. Hays, 241 Va. 467, 403 S.E.2d 340, 344 (1991), the court explained Whitfield, Brown, and Hadeed as employing "a decisional standard for the guidance of trial courts in deciding a motion to strike the evidence[, because] if a plaintiff's evidence has shown that the defendant's negligence has destroyed any possibility of the patient's survival, then there is sufficient evidence of proximate cause to go to the jury, and a motion to strike the evidence should be overruled." Blondel, 403 S.E.2d at 344. See also Dolwick v. Leech, 800 F.Supp. 321, 327 (E.D.Va.1992).
The Supreme Court of Virginia first established this relaxed proof of proximate cause in Whitfield v. Whittaker Memorial Hospital, 210 Va. 176, 169 S.E.2d 563 (1969), citing Hicks v. United States, 368 F.2d 626 (4th Cir.1966), Gardner v. National Bulk Carriers, Inc., 310 F.2d 284 (4th Cir.1962), and Harvey v. Silber, 300 Mich. 510, 2 N.W.2d 483, 488 (1942). Hicks is apparently the genesis for this "lost chance" theory. See Hurley v. U.S., 923 F.2d 1091, 1093 (4th Cir.1991); Waffen v. U.S. Dept. of Health & Human Services, 799 F.2d 911, 915 (4th Cir. 1986); Holton v. Memorial Hospital, 223 Ill.Dec. 429, 223 Ill.Dec. 429, 679 N.E.2d 1202 (1997).
In Hicks, a medical malpractice death case, the court stated in dicta that:
Hicks, 368 F.2d at 632 (citing Harvey v. Silber, 300 Mich. 510, 2 N.W.2d 483 (1942)).
In the Fourth Circuit, Hicks has had an interesting and varying influence. Hicks was a medical malpractice-wrongful death action brought under the Federal Tort Claims Act applying Virginia law. Although citing Harvey for its dicta, the court said that Gardner v. National Bulk Carriers, Inc., 310 F.2d 284 (4th Cir.1962), was an apt analogy. There, a seaman was discovered to be missing from a moving vessel five hours after he was last seen. The master of the vessel did not alter the speed or course of the vessel or take other steps to find him. The Fourth Circuit reversed the trial judge who found that there was no causal connection between the failure to conduct a search and the seaman's death, holding that the master's duty to attempt a rescue
Hicks, 368 F.2d at 633 (citations omitted) (emphasis in original)
Twenty years after Hicks, in Waffen v. U.S. Dept. of Health & Human Services, 799 F.2d 911 (4th Cir.1986), the court was faced with a medical malpractice action filed in this district, but applying Maryland law. By then, the proximate cause rule of Hicks had been approved in Maryland in Thomas v. Corso, 265 Md. 84, 288 A.2d 379, 390 (1972) and Hetrick v. Weimer, 67 Md.App. 522, 508 A.2d 522 (1986), and had evolved into a separate cause of action for negligence diminishing
Id. at 918 (emphasis in original).
In Hurley v. U.S., 923 F.2d 1091 (4th Cir.1991), the court was asked to decide if Maryland law recognized a cause of action for "loss of a substantial possibility of successful recovery," i.e., the impairment of recovery caused by negligence. (In Waffen, the claim was for the "loss of a substantial possibility of survival." Plaintiff Waffen concededly suffered cancer without any hope of recovery.) The court said that both causes of action are very similar and they would be discussed intermittently in the analysis of case history, which the court then undertook. The analysis began with the statement that the dicta in Hicks "precipitated misunderstanding throughout the courts." Id. at 1093. The Hurley court stated that the Gardner case was not at all analogous to the medical malpractice situation in Hicks, despite the fact that the Hicks court had found it to be an apt analogy. In fact, the court stated that:
Howsoever the Hurley Court's reinterpretation of Hicks led it to affirm the trial court's decision that Maryland did not recognize a cause of action for a substantial possibility of a successful recovery, it does not affect the law of Virginia that in a medical malpractice death case, "if a defendant physician, by action or inaction, has destroyed any substantial possibility of the patient's survival, such conduct becomes a proximate cause of the patient's death." Brown v. Koulizakis, 229 Va. 524, 331 S.E.2d 440 (1989).
Having said all of that, the question comes down to this: Is the decisional standard announced in Whitfield, Brown and Hadeed, and examined in those contexts in Blondel limited to medical malpractice cases? If so, plaintiffs' claim must fail; if not, it should survive. Whitfield, Brown, Hadeed, and Blondel were medical malpractice death cases. In Whitfield, the court speaks of physician negligence that has "effectively terminated a person's chance of survival." 169 S.E.2d at 568. In Brown, the court said that "in a death case, if a defendant physician, by action or inaction, has destroyed any substantial possibility of the patient's survival, such conduct becomes a proximate cause of the patient's death." 331 S.E.2d at 446. This was repeated in Hadeed. 377 S.E.2d at 593-94. In Blondel, the court said: "The plaintiff correctly points out that our decisions have stated emphatically, in medical malpractice-wrongful death cases, that a defendant physician's destruction of `any substantial possibility of the patient's survival' is `a proximate cause of the patient's death.'" 403 S.E.2d at 343 (emphasis in original).
In the case at bar, plaintiffs argue that the relaxed standard applies in all tort actions, because in Brown the Supreme Court of Virginia stated that "[i]n medical malpractice cases, as in other negligence actions, the plaintiff must establish" both negligence and proximate cause. Id. at 445-46 (emphasis added). From this statement plaintiffs argue that the relaxed standard applies in medical malpractice and other negligence actions. In doing so they have misread the Brown line of cases. Those cases stand for no more than that in all negligence cases plaintiffs must prove proximate cause, but that in medical malpractice-wrongful death cases the evidence is sufficient for the case to go to the jury if the evidence of negligence shows no more than that defendant's negligence has destroyed any substantial possibility of the patient's survival. In other words, in medical malpractice-wrongful death cases, evidence of the destruction of any substantial possibility of survival is sufficient evidence of proximate cause to go to the jury. In those cases, the jury should be instructed in the standard definition of proximate cause, in which case "the plaintiff's theory of the case could have been readily established by proof that the defendant physician's negligence was a proximate cause of the patient's death because, in the absence of that negligence, her death would not have occurred when it did." Blondel v. Hays, 403 S.E.2d 340, 344.
Plaintiffs' evidence is insufficient to prove that the defect in the car seat was a proximate cause of Mekia's death, as proximate cause is traditionally used in Virginia. They have conceded this. The law of Virginia does not recognize a proof of proximate cause of a death by a proof of a substantial or significant loss of a chance of survival that is less
It is ORDERED that defendant Century's motion for summary judgment be GRANTED, and that plaintiffs' complaint be DISMISSED.