Karen Pavoni v. Chrysler Group

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KAREN ANN PAVONI; PAMELA No. 13-55761
JOYCE MOYET; FRED ARTHUR
SCHEID, D.C. No.
Plaintiffs-Appellants, 2:11-cv-10513-
RGK-SP
v.

CHRYSLER GROUP, LLC, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding

Submitted May 7, 2015*
Pasadena, California

Filed June 17, 2015

Before: Harry Pregerson, Richard C. Tallman,
and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Pregerson

*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 PAVONI V. CHRYSLER GROUP

SUMMARY**

Strict Products Liability

The panel reversed the district court’s summary judgment
in favor of Chrysler Group, LLC and vacated the district
court’s award of costs in the plaintiffs’ diversity action
against Chrysler alleging strict products liability and other
theories concerning liability for deaths that occurred in a
2008 Chrysler Grand Caravan automobile.

The panel held that genuine issues of material fact existed
as to whether a “false park” defect in the Grand Caravan
caused the deaths of the plaintiffs’ mother and her husband.
The panel also held that the district court incorrectly applied
the relevant California substantive law.

COUNSEL

Robert J. Nelson, Fabrice N. Vincent, Todd A. Walburg,
Jordan Elias, and Cecilia Han, Lieff Cabraser Heimann &
Bernstein, LLP, San Francisco, California, for Plaintiffs-
Appellants.

Philip R. Cosgrove, Hall R. Marston, and Ryan E. Cosgrove,
Sedgwick LLP, Los Angeles, California, for Defendant-
Appellee.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 PAVONI V. CHRYSLER GROUP 3

OPINION

PREGERSON, Circuit Judge:

Karen Pavoni, Pamela Moyet, and Fred Scheid
(“Plaintiffs”), three of the surviving children of Rose Coats,
appeal a summary judgment order in favor of Chrysler Group,
LLC (“Chrysler”), the corporate successor to the
manufacturer of the 2008 Chrysler Grand Caravan
automobile (“Grand Caravan”) involved in the deaths of Rose
and her husband, Roy Coats. Plaintiffs contend that Chrysler
is liable for the Coats’ deaths under the theories of strict
products liability, negligent design and failure to warn,
negligence, and wrongful death. We have jurisdiction under
28 U.S.C. § 1291. We reverse the grant of summary
judgment and remand to the district court for trial. We also
vacate the award of costs in light of our reversal of summary
judgment.1

I.

According to the district court’s order granting summary
judgment in favor of Chrysler, the facts in this case are as
follows: On Sunday, February 27, 2011, police found Rose,
age 75, and Roy, age 83, dead in the garage of their Menifee,
California home. Rose “was found pinned between the Car’s
open driver-side door and the inside of the garage door frame,
where she suffocated to death.” Roy “was found lying on the
garage floor directly beneath, and in front of her, with his left
ankle under the Car’s front driver-side tire. The Car ran over
him and fractured his right ankle.” The coroner reported that

1
The costs of this appeal are taxed against Chrysler Group, LLC. See
FRAP 39(a)(3).
4 PAVONI V. CHRYSLER GROUP

Roy “died of hypertensive and atherosclerotic cardiovascular
disease, a natural cause of death.” No one witnessed the
accident.

Plaintiffs allege that a “false park” defect in the automatic
transmission of the Grand Caravan allowed Rose to exit the
vehicle, believing the car to be in park. The “false park”
defect caused the Grand Caravan to self-shift into reverse,
and begin moving backwards. While reversing, the Grand
Caravan pinned Rose between the driver’s door and the inside
frame of the garage door and struck Roy, causing him to have
a heart attack and fall to the ground.

On November 9, 2012, before the close of discovery and
before the expert disclosure deadline, Chrysler moved for
summary judgment. In their timely opposition to the motion
for summary judgment, Plaintiffs submitted a declaration
from their design defect expert, Gerald Rosenbluth, an
automobile defect investigator with 35 years of experience,
who concluded that there was a “false park” design defect in
the Grand Caravan and that defect more likely than not
caused the Coats’ deaths.

In his signed and sworn declaration, Plaintiffs’ expert
Rosenbluth explained the history of the alleged “false park”
defect in Chrysler vehicles,2 the engineering mechanics of the

2
Rosenbluth offered information from a 1990–91 National Highway
Traffic Safety Administration “false park” investigation documenting
several hundred “false park” reports against Chrysler from earlier
automobile models, including 212 incidents resulting in property damage,
109 resulting in injury, and seven resulting in fatalities. See Nat’l
Highway Traffic Safety Admin., Engineering Analysis Closing Report EA
91–010 (Dec. 31, 1991), http://www-odi.nhtsa.dot.gov/acms/cs/jaxrs/
download/doc/ACM11098066/INCR-EA91010-1787.pdf. Though
 PAVONI V. CHRYSLER GROUP 5

alleged “false park” defect, and how the alleged “false park”
defect can be avoided. Rosenbluth also tested the Coats’
Grand Caravan and found the “false park” defect, allowing
him to “place the gear shift selector in a position between
‘park’ and ‘reverse’ wherein the subject vehicle remained
motionless as if it were in ‘park’ for a period of time before
the transmission re-engaged hydraulic reverse.” Rosenbluth
concluded that more likely than not, to a reasonable degree of
scientific and technological certainty, a “false park” defect
caused the accident that resulted in Roy and Rose Coats’
deaths.

On December 5, 2012, the district court canceled a
scheduled December 10, 2012 hearing on Defendant’s motion
for summary judgment and took the summary judgment
motion under submission. On January 10, 2013, the district
court granted Chrysler’s motion for summary judgment,
finding that “the facts presented” by Plaintiffs and their
expert “are insufficient to establish the requisite causal
connection between Defendant’s actions and Decedents’
deaths.”

II.

We review a grant of summary judgment de novo. Clicks
Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th
Cir. 2001). Viewing the evidence “as a whole” and “in the

investigators noted existence of “false park”in Chrysler vehicles, the same
alleged defect was “characteristic of all vehicles tested . . . so no defect
was apparent in the subject Chrysler vehicles.” Id. at 10. Ultimately, the
NHTSA closed the investigation stating “[t]his investigation has not
disclosed the existence of a safety defect” in Chrysler vehicles as the
“number of incidents . . . in the context of the vehicle population and
exposure time, does not identify a trend of failure.” Id. at 15.
6 PAVONI V. CHRYSLER GROUP

light most favorable to the party opposing the motion,” the
court “must determine whether there are any genuine issues
of material fact and whether the district court correctly
applied the relevant substantive law.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citation omitted); Oliver v. Keller, 289 F.3d 623, 626 (9th
Cir. 2002). An issue of material fact is genuine “if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).

III.

Reviewing the record in the light most favorable to the
Plaintiffs, we find that genuine issues of material fact exist as
to whether a “false park” defect in the Coats’ Grand Caravan
caused the deaths of Roy and Rose Coats. We also find that
the district court incorrectly applied the relevant substantive
law.

Under California law, “[a] manufacturer may be held
strictly liable for placing a defective product on the market if
the plaintiff’s injury results from a reasonably foreseeable use
of the product.” Pannu v. Land Rover N. Am., Inc., 191 Cal.
App. 4th 1298, 1310 (2011); see also Greenman v. Yuba
Power Prods., Inc., 59 Cal. 2d 57, 62 (1963). The alleged
existence of the “false park” defect, documented in Chrysler
vehicles by the National Highway Traffic Safety
Administration and identified in the Grand Caravan through
Plaintiffs’ expert Rosenbluth’s testing, along with the details
of Roy and Rose Coats’ deaths, present genuine issues of
material fact that would allow a reasonable jury to conclude
that the “false park” defect was the legal cause of the accident
 PAVONI V. CHRYSLER GROUP 7

and their deaths.3 See, e.g., Hinckley v. La Mesa R.V. Ctr.,
Inc., 205 Cal. Rptr. 22, 29 (Ct. App. 1984) (“[P]roof of the
malfunction of a part for which the manufacturer alone could
be responsible, may make out a sufficient case, and so may
expert testimony.”) (citing William L. Prosser, Law of Torts:
Products Liability, Proof § 103 (4th ed. 1971)).

3
Further supporting remand, we note that it is well-established under
California law that “a plaintiff is entitled to rely on circumstantial
evidence to establish the existence of a defect and that the defect caused
the injury. Such evidence may be established by expert testimony.”
Grinnell v. Charles Pfizer & Co., 79 Cal. Rptr. 369, 375 (Ct. App. 1969)
(citations omitted). “[I]n a products liability case proof of [defect and
causation] by direct evidence is frequently impossible; a plaintiff may,
therefore, satisfy his burden of proving defect and causation by
circumstantial evidence.” Dimond v. Caterpillar Tractor Co., 134 Cal.
Rptr. 895, 901 (Ct. App. 1976).

The district court dismissed Plaintiffs’ expert Dr. Carly Ward’s
biomechanical accident analysis report, and declaration, filed with
Plaintiffs’ motion for reconsideration. Dr. Ward has a Ph.D. in
engineering, specializing in biomechanics and dynamics, from the
University of California, Los Angeles. She has served as a biomedical
engineering expert witness and consultant more than 360 times in state
and federal courts. After exhaustively analyzing the circumstantial
evidence, Dr. Ward concluded that “[b]oth deaths were caused by the
Dodge [Caravan] shifting into reverse from park.”

The district court decided that Dr. Ward’s report and declaration were
“not of such a magnitude to change the disposition of this case.” We
disagree. Under California law, Dr. Ward’s report and declaration
strengthen Rosenbluth’s conclusions and support reversing the district
court’s summary judgment order. See Thai v. Stang, 263 Cal. Rptr. 202,
207 (Ct. App. 1989) (finding that causation determinations should not be
taken away from the jury except where no reasonable person could dispute
“the absence of causality”).
8 PAVONI V. CHRYSLER GROUP

We reverse the summary judgment order of the district
court and remand for further proceedings consistent with this
opinion. We also vacate the award of costs for
reconsideration in light of our reversal of summary judgment.
See Fed. R. Civ. Pro. 54(d)(1).

REVERSED and REMANDED in part; and
VACATED in part.