MYRON H. THOMPSON, District Judge.
In this civil action, plaintiff Douglas Norman Rudd brings suit to recover damages from defendant General Motors Corporation ("GM") for injuries sustained when a fan blade on Rudd's 1970 GM pickup truck broke loose and struck him while he was in front of the vehicle's open hood. Jurisdiction over this diversity action is proper under 28 U.S.C.A. § 1332. This case is currently before the court on a summary-judgment motion by GM, which, for reasons set forth below, will be granted in part and denied in part.
On February 2, 2000, Rudd filed a complaint in this court seeking five million dollars in damages from GM as compensation for serious and permanently disabling injuries resulting from the separation and propulsion of his truck's fan blade into his head, neck, and left arm while he was advancing the truck's timing. Rudd contends that the fan is a GM product; that it was defective at the time GM manufactured and placed it into the stream of commerce; and that the fan's defects proximately caused his injuries. More specifically, Rudd alleges that GM is liable under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") on account of each of three fan-related defects: manufacturing flaws in the fan's metal that rendered the fan vulnerable to "fatigue failure" over time; GM's failure to equip the fan with a protective guard to shield people in the event of any blade separation; and GM's failure to provide adequate warning about the risk of fan-blade separation.
On October 10, 2000, GM moved for summary judgment against Rudd on both his AEMLD and negligence claims. GM argues that Rudd has produced no admissible evidence that would support an inference
II. LEGAL STANDARDS
A. The AEMLD
The Alabama Supreme Court has expressly modeled its AEMLD on § 402A of the Second Restatement of Torts and the landmark line of common-law cases beginning with Judge Cardozo's MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), that allow consumer tort recovery without privity of contract between a manufacturer and an injured party, and without direct proof of negligence in the manufacturing process. See Atkins v. American Motors Corp., 335 So.2d 134, 137-138 (Ala.1976); see also Restatement of the Law, Third, Torts: Products Liability, § 3, at 111. However, the Alabama doctrine departs somewhat from the Restatement's strict-liability regime in retaining aspects of a fault-based system. See Atkins, 335 So.2d at 140. To affirm the importance of "moral culpability," the AEMLD makes certain affirmative defenses and general denials available to defendant manufacturers. Id. at 137-139. Absent such defenses, however, culpable "scienter is supplied as a matter of law" when a plaintiff shows that a manufacturer placed a product into the stream of commerce that was unreasonably dangerous when put to its intended use. Id. at 141; see also id. at 140, 139. "[A] defendant is liable if he puts on the market a product which is not reasonably safe, and the plaintiff is injured as a result of a contemplated use of that product." Id. at 140; see also Taylor v. General Motors Corp., 707 So.2d 198, 201 (Ala.1997).
"To establish liability:
Atkins, 335 So.2d at 141; see also Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 469-470 (11th Cir.1993); Jordan v. General Motors Corp., 581 So.2d 835 (Ala.1991); Casrell v. Altec Industries, Inc., 335 So.2d 128, 132 (Ala.1976).
For purposes of the AEMLD, "a `defect' is that which renders a product `unreasonably dangerous,' i.e., not fit for its intended purpose." Casrell, 335 So.2d 128, 133 (internal citations omitted). "[I]t makes no difference whether [a product] is dangerous by design or defect. The important factor is whether it is safe or dangerous when the product is used as it was intended to be used. However, danger may be obviated by an adequate warning." Id. The question "Whether a product is `unreasonably dangerous' is for the trier of fact." Id.
B. Admissibility of Expert Testimony
The Federal Rules of Evidence govern the admissibility of expert testimony. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587, 113 S.Ct. 2786,
The burden is traditionally placed on the proponent of expert testimony to establish that such admissibility requirements have been met by a "preponderance of the evidence." See Bourjaily v. United States, 483 U.S. 171, 172-173, 107 S.Ct. 2775, 2776-2777, 97 L.Ed.2d 144 (1987) (while Rule of Evidence 104(a) assigns the court the task of determining preliminary admissibility questions without specifying any particular standard of proof of reliability, a preponderance-of-proof standard is traditionally imposed regardless of the
According to the advisory committee notes, Rule 702 was amended, effective December 1, 2000, in order expressly to endorse the gatekeeping model of the trial judge envisioned by the Supreme Court in Daubert. This judicial screening of expert testimony before it reaches the factfinder is justified by the fact that expert witnesses are given wider latitude to offer opinions than that afforded other witnesses under the federal rules, including, for example, a relaxation of the usual requirement of firsthand knowledge. See Daubert, 509 U.S. at 592, 113 S.Ct. at 2796. The trial judge's gatekeeping inquiry, when properly conducted, avoids usurping the role of the trier of fact, said the Daubert court, because the court's "focus ... must be solely on principles and methodology, not on the conclusions that they generate." Id. at 595, 113 S.Ct. at 2797.
In Daubert, the Supreme Court set forth a list of factors that may guide the trial judge's Rule 702 decision as to whether expert testimony might reliably assist the factfinder, including: whether a theory or technique can be or has been tested; whether a theory or technique has been subjected to peer review or publication; whether a theory or technique has gained widespread acceptance within a relevant community of experts, or, rather, has been unable to garner more than minimal support; and the known or potential rate of error of a technique, and the existence and maintenance of standards controlling the technique's operation. See id. at 593-594, 113 S.Ct. at 2796-2797.
These Daubert factors are not, the Supreme Court has emphasized, appropriately used as a "definitive checklist" but should instead be understood as non-exclusive, nondispositive considerations that may shape the trial judge's "flexible inquiry" under Rule 702. See id. at 594, 113 S.Ct. at 2797; see also Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (the trial judge must have considerable leeway in deciding how to go about determining whether particular expert testimony is reliable but should consider the specific factors identified in Daubert where they are reasonable measures of reliability); United States v. Paul, 175 F.3d 906, 910-911, (11th Cir.1999) (affirming the admission of a handwriting expert's testimony without specifically applying or reviewing the Daubert factors, and explaining that "Daubert's list of specific factors neither necessarily nor solely applies to all experts or in every case"); United States v. Cunningham, 194 F.3d 1186, 1194 (11th Cir.1999); United States v. Zapata, 139 F.3d 1355, 1357 (11th Cir.1998). Consistent with this understanding, the advisory committee notes for Rule 702 explain that the 2000 amendment, while intended as an endorsement of the Daubert conception of the trial judge as gatekeeper, was not intended to "codify" the specific factors mentioned in Daubert.
In Kumho, an automobile-products liability case, the Supreme Court clarified that the trial court's Rule 702 gatekeeping responsibilities obtain equally for all expert testimony, not just scientific testimony. 526 U.S. at 142, 119 S.Ct. at 1171. The Kumho Court held that the trial judge below did not abuse his discretion when he excluded the technical or engineering testimony of a tire-failure analyst under a Daubert-type inquiry into reliability. See id. at 158, 119 S.Ct. at 1179. The trial judge had found the depositions of the plaintiff's would-be expert witness to be riddled with internal inconsistencies and had determined that, in light of the four Daubert factors, the expert's theory "fell outside the range where experts might reasonably differ" and was, thus, too unreliable to be
While Kumho affirmed the potential applicability of the Daubert factors to testimony that is technical-, engineering-, or experience-based, the Kumho Court also made it clear that a trial court should tailor its Rule 702 evaluation to the particular circumstances before it, and that the Daubert-type analysis should not be used to disfavor expert testimony grounded in experience or engineering practice rather than in pure scientific theory:
Id. at 150, 119 S.Ct. at 1175 (internal citations and quotations omitted).
The advisory committee notes for Rule 702, as amended effective December 1, 2000, comment that the amended rule was formulated in part to affirm Kumho's holding that the trial judge's gatekeeper function applies to all expert testimony. But the newly-expanded rule goes further than Kumho to "provide some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony." Id. (emphasis added). While there is a dearth of caselaw interpreting the new reliability standards set forth in Rule 702 (that "(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case"),
Id. (internal citations and quotations omitted).
While the inquiry into "reliable principles and methods" has been a familiar feature of admissibility analysis under Daubert, the new Rule 702 appears to require a trial judge to make an evaluation that delves more into the facts than was recommended in Daubert, including as the rule does an inquiry into the sufficiency of the testimony's basis ("the testimony is based upon sufficient facts or data") and an inquiry into the application of a methodology to the facts ("the witness has applied the principles and methods reliably to the facts of the case").
However, while this court can find no caselaw precisely implementing these kinds of analyses, the amended rule's reliability-of-application inquiry was at least foreshadowed in General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), where the Supreme Court suggested that Daubert's distinction between factual conclusions and methodology might be too sharply-drawn. See Joiner, 522 U.S. at 146, 118 S.Ct. at 519 (in some cases a trial court "may conclude that there is simply too great an analytical gap between the data and the opinion proffered"); see also Fed.R.Evid. 702, advisory committee notes, 2000 amendment (discussing Joiner and stating that the revised version of Rule 702 incorporates a conscious rejection of Daubert's sharply-drawn conclusions-versus-methodology distinction).
Going beyond the permissive language of Joiner, the plain language of new Rule 702, as well as the advisory committee notes to the new Rule, makes it clear that this court is now obliged to screen expert testimony to ensure it stems from, not just a reliable methodology, but also a sufficient factual basis and reliable application of the methodology to the facts. Despite this express provision for judicial evaluation of such factually-entwined matters, however, the advisory committee notes caution that the trial judge must still avoid usurping the role of the trier of fact:
Fed.R.Evid. 702, advisory committee notes, 2000 amendment (internal citations and quotations omitted).
C. Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." "Where, as here, the non-moving party bears the burden of proof on an issue at trial, the moving party, in order to prevail, must do one of two things: show that the non-moving party has no evidence to support its case, or
Once the party seeking summary judgment has informed the court of the basis for its motion, the burden shifts to the non-moving party to demonstrate why summary judgment would be inappropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). To this end, the non-moving party must affirmatively set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of his or her pleadings. See Fed. R.Civ.P. 56(e).
The court's role at the summary-judgment stage is not to weigh the evidence or to determine the truth of the matter, but rather to determine only whether a genuine issue exists for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In making this determination, the court must view the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in its favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
A. Admissibility of Rudd's Proposed Expert Testimony Regarding a Defect in the Fan Metal
"[O]rdinarily, expert testimony is required" in AEMLD cases, Sears, Roebuck & Co., Inc. v. Haven Hills Farm, Inc., 395 So.2d 991, 995 (Ala.1981), and Rudd has met this expectation by offering three expert witnesses, Preston Brazell, Semih Genculu, and Harry Edmondson. Brazell is an automotive mechanic with over 30 years experience and training in the repair and rebuilding of motor vehicles, especially GM products; Genculu is a metallurgist and materials engineer with extensive experience in failure analysis and materials testing; and Edmondson is a mechanical engineer with extensive experience in the field of failure analysis.
In the pretrial order, GM has specifically objected to the admission of Edmondson's opinion that a manufacturing defect caused the fan-blade separation, and, more generally, the company has requested an admissibility hearing for any testimony by any of Rudd's experts that implicates an opinion that the fan or truck was defective.
GM makes it clear that it does not question the competence of any of Rudd's expert witnesses or the relevance of their opinion testimony: "GM's motion does not challenge the qualifications of plaintiff's experts or the fact that they have offered opinions on certain issues...."
Under Daubert, Joiner, and old Rule 702, it might be a close question whether a factual sufficiency-of-basis inquiry like that requested by GM should even be part of a trial judge's gatekeeping decision. Under the newly-amended Rule 702, however, a "quantitative" inquiry into whether "the testimony is based upon sufficient facts or data" is not only permissible but expressly mandated. See Fed.R.Evid. 702; Fed. R.Evid. 702, advisory committee notes, 2000 amendment. Thus, the admissibility analysis in this case will vary depending upon whether this court should apply the new rule, in whole or in part, or rather should fall back on old Rule 702. Rudd's complaint commenced on February 2, 2000, that is, prior to December 1, 2000, the effective date of the amendment. But the new Rule 702 "shall govern all proceedings in civil cases" pending December 1, 2000, "insofar as just and practicable." Orders of the Supreme Court of the United States Adopting and Amending Rules, Order of April 17, 2000.
In the present case, pending as it was December 1, this court finds that it is "just and practicable" to employ new Rule 702 to judge the admissibility of at least the testimony specifically challenged by GM, that is, Edmondson's statements relating to a manufacturing defect in the fan metal. First, even though the testimony in the record of all three of Rudd's experts was given prior to December 1, GM's contentions in the pretrial order include a reference to the new Rule 702, and no objection to its application was registered.
Edmondson's `opinion number two' is that the fan blade was not bent prior to the accident, and that no visible damage in the fan could explain the fatigue fracture that led to the blade separation. Based on visual examination, "total indicator reading" measurements, and his background reading, Edmondson determined that there was some warping of the fan assembly, that is, "either the shaft [attached to the water pump] or the pulley was bent," a kind of warping that can be explained by use or time.
Edmondson offered an `opinion number three' that Rudd's pre-accident operation of his truck would not have caused a nondefective fan to break, an opinion which he later expanded into a conclusion with a "reasonable degree of engineering certainty" that the fan blade must have been marred by a microscopic defect.
Edmondson then rehearsed a list of the reasons a metal-fatigue fracture might occur: (1) the nature of the material itself, if the metal were composed of high-strength alloys, as is not the case with the accident fan; (2) a grind mark or microscopic-level scratch or imperfection that might be left during the manufacturing process; and (3) disruption in the cast material, if the component is a cast product, "where there's either an inclusion of some sort that amounts to a stress riser or it could be a
When pressed, Edmondson explained that these three explanations are those he has encountered in his experience as a metal-failure analyst but that they are not the only possible explanations for metal-fatigue fractures in every kind of metal.
Once he narrowed down the explanations to those involving a microscopic defect, Edmondson further considered and eliminated various ways that the fracture might have resulted from a microscopic defect placed on the fan during its operation, that is, subsequent to the manufacturing process:
GM argues this testimony should be inadmissible because, the company says,
Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 564 (11th Cir.1998); see also Ambrosini v. Labarraque, 101 F.3d 129, 135-136 (D.C.Cir.1996) (the dispositive relevance question in a Daubert admissibility inquiry is whether the testimony will assist the factfinder to understand the evidence or to determine a fact in issue, and not whether it will satisfy the plaintiff's burden on an ultimate issue for trial.)
By presenting facts and conclusions that purportedly negate alternative explanations for the metal-fatigue fracture, Edmondson's testimony about a manufacturing defect at least "constitute[s] one piece of the puzzle that the plaintiffs endeavor to assemble before the jury." Harcros, 158 F.3d at 564. Similarly, Edmondson's testimony that Rudd's pre-accident operation of his vehicle was normal, as well as his testimony that the fan had no pre-accident bending or visible damage connected to the fan-blade separation, could support Edmondson's manufacturing-defect conclusion by cutting against alternative explanations for the fan-blade separation; opinions one and two then likewise supply "piece[s] of the puzzle" that a jury might rationally consider relevant in its evaluation of Rudd's manufacturing-defect theory. Id. Thus, this court finds, by a preponderance of the evidence under Rule 702, that Edmondson's testimony relating to a fan-blade defect (including opinions number one, two and three) is relevant and will assist the jury in determining the issue of whether the fan metal was unreasonably dangerous when placed into the stream of commerce.
The issue of whether Edmondson's challenged testimony is reliable presents a somewhat closer question. Ultimately, however, this court concludes, by a preponderance of the evidence, that Edmondson's testimony is reliable under Rule 702, that is, it is based upon sufficient data, reliable principles and methods, and reliable application of the methods to the facts. See Fed.R.Evid. 702. This does not, of course, mean that this court determines Edmondson's testimony to be true; rather, this court finds that his testimony falls within the range where experts might reasonably differ.
First, Edmondson's testimony has a sufficient factual basis. His investigative procedure involved consideration of the following: visual inspection of other fans (as well as a conscientious but failed effort to procure a fan identical to Rudd's fan), Rudd's testimony about the use history of the fan and truck, "total indicator reading"
Second, Edmondson's method for settling on a cause for the fatigue-fracture through a process of eliminating alternative possible causes is, by a preponderance of the evidence, a reliable one. Inference chains built upon such circumstantial evidence are a well-established feature of admissible expert testimony. See, e.g., id; Ambrosini v. Labarraque, 101 F.3d 129, 140-141 (D.C.Cir.1996); Carmichael v. Samyang Tire, Inc. (S.D.Ala.1996) ("the Court perceives no inherent flaw in a process-of-elimination form of proof per se, so long as the underlying methodology is scientifically valid"), rev'd, 131 F.3d 1433 (11th Cir.1997), rev'd sub nom Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Further, Edmondson testified that this method was the one relied upon in a specialty-publication's model failure analysis: A case history of an automobile-fan metal-fatigue fracture in this failure-analysis text reaches its conclusion that a fracture resulted from a metal defect near the fracture site, not on the basis of any direct evidence of such a defect, but on the basis of evidence allowing the exclusion of other possible causes.
Third, by a preponderance of the evidence, this court finds that Edmondson's application of this method to Rudd's fan (including his scrutiny of the metal for any of the physical indicia of alternative possible causes, and his elimination of the possibility of abnormal operation of the fan, as well as of any connection between visible fan imperfections and the fracture) is reliable. This is not to say that Edmondson's testimony on these reasoning processes is ideal. It would, for example, have been preferable if Edmondson had offered a systematic exposition of his testimony in his own report rather than require the court to piece together his analysis from the deposition questioning. More substantively, Edmondson's opinion testimony suffers from ambiguity on a crucial issue: he fails to make it clear whether he was stating with "a reasonable degree of engineering certainty" that the fan-metal fatigue fracture was caused by an imperceptible metal defect or, more tellingly for Rudd's AEMLD claim, that he meant he had that degree of confidence in his further conclusion that the fracture resulted from an imperceptible manufacturing defect in the fan metal.
However, even without a more definite statement about his degree of confidence that he has exhausted every possibility, Edmondson's testimony is reliable because he provides a step-by-step and transparent account of the explanations he has considered, the physical indicia he associates with each possible alternative cause, and his reasons for excluding each of the alternative causes. At no point does he attempt to rest simply on his authority as an expert; rather, each time Edmondson relies upon his experience, he "explain[s] how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts." Fed.R.Evid. 702, advisory committees notes, 2000 amendment. Edmondson's testimony is ultimately reliable because he has made his reasoning processes and data sources sufficiently transparent so that, if there are counter-arguments and counter-evidence available to suggest Edmondson has failed to consider a possible cause or is wrong to rely so conclusively on the physical indicia he has specified, the adversary system will be competent to make this evident through "vigorous cross-examination" and "presentation of contrary evidence." Id.; see also Ambrosini v. Labarraque, 101 F.3d at 140 (when an expert relies upon a process-of-elimination for testimony on specific causation, "the fact that several possible causes might remain uneliminated" goes to the weight rather than the admissibility of his testimony) (internal citations and quotations omitted).
B. Rudd's Defective Fan-Metal Claim under the AEMLD
GM, in seeking summary judgment against Rudd, argues that Rudd has failed to establish a prima-facie AEMLD case for two reasons: (1) all of Rudd's expert testimony favoring a manufacturing-defect explanation for the fan-blade separation (especially Edmondson's testimony) is inadmissible, leaving Rudd with no admissible evidence with which to establish a "defect" under the AEMLD; and (2) as a matter of substantive law, Rudd's evidence regarding a defective fan blade — whatever its admissibility — cannot satisfy his burden of proof on the element of a "defect" under the AEMLD. GM's summary-judgment strategy is a negative one, hinging entirely on these twin arguments that Rudd has failed to establish even a prima-facie case under the AEMLD.
GM's first argument fails because, as discussed above, Edmondson's testimony relating to a fan-metal defect is admissible in full. GM's second argument for summary judgment also fails, and for reasons quite parallel to the problems with the first argument. In its inadmissibility argument, GM has contended that Rudd's defect-related expert testimony cannot satisfy Rule 702 because it proceeds via a process-of-elimination and without direct evidence of a specifically-identified defect. Similarly, in its substantive-law argument, at least as formulated at the November 30, 2000, pretrial conference, GM contends that, even if Rudd's expert testimony were admissible, his prima-facie case cannot satisfy the AEMLD because it proceeds via a process-of-elimination and without direct evidence of a specifically-identified defect.
From its earliest formulations, the AEMLD has been construed as allowing plaintiffs to show a product was defective or unreasonably dangerous despite a lack of direct evidence identifying a specific defect: "a defect is that which renders a product unreasonably dangerous, i.e., not fit for its intended purpose.... [I]t makes no difference whether [the product] is dangerous by design or defect." Casrell v. Altec Industries, Inc., 335 So.2d 128, 133 (Ala.1976) (internal citations and quotations omitted). "[P]roof of the specific defect, i.e., the exact act, omission, process, construction, etc., resulting in the product's failing its intended use, is not required. `If a product is unreasonably dangerous, it is necessarily defective, and the consumer should not be required to prove defectiveness as separate matter.'" Sears, Roebuck & Co., Inc. v. Haven Hills Farm, Inc., 395 So.2d 991 (Ala.1981). While a prima-facie case is not established by a showing of the mere fact of consumer injury or product failure, "the Plaintiff has proved a prima facie case where the evidence raises a reasonable inference from which the fact finder may rationally conclude that plaintiff's injuries and damages resulted proximately from the product's failure of performance causally related to its defective condition." Id. at 995, 996; see also Goree v. Winnebago Industries, Inc., 958 F.2d 1537, 1541 (11th Cir.1992) ("A[n] [AEMLD] plaintiff does not have to establish the specific defect that caused his injury, only that the product was unreasonably dangerous."); Atkins v. American Motors Corp., 335 So.2d 134, 142 (Ala. 1976) (while the doctrine of "res ipsa loquitur" is inapplicable to a products-liability action under the AEMLD, a defective product constitutes "negligence per se", and can be defined simply as an "unreasonably dangerous" product without that definition being tautological).
More recent AEMLD cases, including the cases cited by GM, emphasize that a plaintiff must affirmatively come forward with some evidence to support an inference that the product had a defect (that is, a defect that was present at the time the product was sold by the defendant and one that is causally related to the plaintiff's injuries). But, in no way do these cases reverse course on the tradition that a plaintiff need not have evidence specifically identifying the exact nature of the defect. See Taylor v. General Motors Corp., 707 So.2d 198, 201-202 (Ala.1997) (the mere fact that a car inexplicably ran off the road is insufficient to establish a defect under the AEMLD because, while the law does not require proof of a specific defect, the plaintiff must prove the existence of a defective condition and proximate cause); Townsend v. General Motors Corp., 642 So.2d 411 (Ala.1994) (under the AEMLD, proof of a defect must be affirmatively shown, that is, mere proof of accident and injury is insufficient); Jordan v. General Motors Corp., 581 So.2d 835 (Ala.1991) (while proof of a specific defect is not required, mere proof of an accident with resulting injuries is insufficient to establish AEMLD fault because "the plaintiff must affirmatively show that the product was sold with a defect or in a defective condition"); Brooks v. Colonial Chevrolet-Buick, Inc., 579 So.2d 1328 (Ala.1991) (the plaintiffs did not establish a prima-facie case because they offered no expert and no evidence of a defect other than their alleged injuries and their belief that the car brakes must have been defective); see also Hall v. General Motors Corp., 647 F.2d 175, 178-179 (D.C.Cir.1980) (under D.C. Circuit law, it is appropriate to instruct a jury that a manufacturer-defendant may be liable under a "general theory" of an obvious or unidentified hidden defect rather than a "specific theory" of a defect if the plaintiff presents "(1) evidence tending to negate causes for the accident other
Rudd has, in fact, made out a prima-facie claim under the AEMLD, and one that—given GM's failure to offer rebuttal evidence—survives summary judgment. Rudd's evidence includes uncontradicted and admissible expert testimony opining that an imperceptible metal defect present at the time of manufacture must have been the cause of the fatigue-fracture and resulting accident because of the absence of the indicia of other possible causes, including evidence, such as Rudd's own testimony about his operation of the vehicle, that negates product misuse. A reasonable trier of fact could infer from Edmondson's and Rudd's uncontradicted testimony alone that the accident fan left GM's hands in a state that was unreasonably dangerous, causing injury to Rudd while he was engaged in a contemplated use of that product.
C. Rudd's Failure-to-Warn and Lack-of-a-Protective-Shield Claims under the AEMLD
In addition to his defective fan-metal claim, Rudd attempts to assert GM's failure to adequately warn him of the danger of fan-blade separation and GM's failure to provide a protective shield for the fan, as distinct AEMLD claims. Against the latter two claims, GM relies again on a primarily negative strategy, arguing that Rudd has failed to establish his prima-facie case. This time, GM's strategy works. Rudd has not established a prima-facie case for allowing the protective-shield and failure-to-warn arguments to go forward as distinct AEMLD claims.
Issues such as adequate warning and lack-of-a-protective-shield commonly arise in the form of affirmative defenses in AEMLD cases. See, e.g., Atkins v. American Motors Corp., 335 So.2d 134 (Ala. 1976). But when the AEMLD plaintiff is the party to raise these issues as distinct claims, he or she must at least satisfy the usual AEMLD standard, offering proof that the lack-of-adequate-warning or lack-of-a-protective-shield itself constitutes a defect, that is, a condition that was "unreasonably dangerous" for intended uses of the product. See Townsend v. General Motors Corp., 642 So.2d 411 (Ala.1994); Yarbrough v. Sears, Roebuck and Company, 628 So.2d 478 (Ala.1993); King v. S.R. Smith, Inc., 578 So.2d 1285 (Ala.1991);
D. Merger of Rudd's Non-AEMLD Claims
Rudd alleges that GM's failure to equip the fan with a protective guard and GM's failure to provide adequate warning about the risk of fan-blade separation constitute not only AEMLD claims but also negligence under Alabama common law. Rudd's negligence claims, however, must be treated by this court as merged into his AEMLD claims. In a recent case, the Eleventh Circuit determined that negligence claims based on the same underlying allegations and theory as an AEMLD claim were merged into the latter as a matter of Alabama law. See Spain v. Brown & Williamson Tobacco Corporation, 230 F.3d 1300 (11th Cir.2000). The Eleventh Circuit held open the possibility that, in the future, at the Alabama Supreme Court's instruction, such negligence and AEMLD claims could turn out to be distinct from each other in their proof requirements. See id. (it is "prudent to set out our understanding of state law on these other points and invite the Alabama Supreme Court to correct our view on them if that view is wrong").
Accordingly, for the reasons above, it is ORDERED that defendant General Motors Corporation's motion for summary judgment, filed on October 10, 2000, is granted as to plaintiff Douglas Norman Rudd's AEMLD failure-to-warn and lack-of-a-protective-shield claims and his negligence claims and is denied in all other respects.
The clerk of the court is DIRECTED to provide a copy of this order to counsel for all parties by facsimile transmittal.