UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 25, 2004
Decided June 6, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 04-1611 Appeal from the United States
District Court for the Southern
In re BRIDGESTONE / FIRESTONE District of Indiana, Indianapolis
INCORPORATED, TIRES Division.
PRODUCT LIABILITY
LITIGATION. No. 01 C 5307
Sarah Evans Barker,
Judge.
ORDER
Valerie Jett was injured in an automobile accident while driving her Ford
Explorer. She later sued Bridgestone/Firestone (“Firestone”), alleging that the
tread on one of her Explorer’s Firestone tires separated and caused the accident.
The allegedly defective tire was not preserved, however, and no expert ever
examined the tire. The district court granted Firestone’s motion for summary
judgment, reasoning that Jett had not presented sufficient evidence from which a
jury could conclude that a defect in the tire caused Jett’s accident. For the reasons
that follow, we agree and affirm.
I. Background
Valerie Jett purchased a new Ford Explorer in October 1997 that came
equipped with Firestone Wilderness AT tires. On March 26, 1998, while driving
No. 04-1611 Page 2
her Explorer on a state highway in Arkansas, Jett heard a “tapping” noise
emanating from the rear tire on the passenger side of her vehicle. According to
Jett, it then “went out of control, the Ford Explorer began to spin, and [she] woke
up in the hospital.”
After the accident, Jett went to a salvage yard and saw her vehicle, where
she observed that the tread had separated from the body of the tire on the rear
passenger tire. The separated tread was underneath the vehicle, however, and she
could not recover the damaged tire. Later, her Explorer was sold to a second
salvage yard. When she visited the second salvage yard, she was told her vehicle
had been sold and no longer belonged to her.
Approximately two years later, Jett learned from newspaper and television
reports that some Firestone Wilderness AT tires had experienced tread separation
problems. She stated in an affidavit that had she known in March 1998 about
these problems, “I would have made sure that I could have recovered the tire.”
Firestone later recalled certain of its Wilderness AT tires that had been provided
with Ford Explorers. By the time Jett learned of the recall, she could not locate her
vehicle, and the allegedly defective tire was not preserved. Jett filed this
products liability action against Firestone in federal court in Arkansas alleging
strict liability, negligence, and breach of an implied warranty of merchantability.1
This case was then transferred to the United States District Court for the Southern
District of Indiana, where similar cases had been consolidated under an order of the
Judicial Panel on Multidistrict Litigation. See 28 U.S.C. § 1407.
Firestone filed a motion for summary judgment, arguing that Jett had not
provided sufficient evidence that any defect in the tire caused her accident. Along
with her June 27, 2002 response to Firestone’s motion for summary judgment, Jett
attached as exhibits an affidavit from Kenneth Pearl dated June 3, 2002, which had
as an exhibit Pearl’s “Firestone Tire Report” dated January 30, 2002;2 portions of
the deposition testimony of Vivian Brown and Kenneth Brown; and her own
affidavits dated April 24, 2002 and May 20, 2002. (R. 11.) On October 31, 2002,
Jett filed a supplemental affidavit, as well as a supplemental affidavit from Pearl.
Firestone filed a motion to strike these supplemental affidavits. The district court
granted Firestone’s motion for summary judgment, and, in light of this ruling, did
not rule on Firestone’s motions to strike these affidavits and other materials.
II. Analysis
Jett also sued Ford, but Ford is not a party to this appeal.
1
2
The undated “Report of Kenneth L. Pearl,” a different document that appears in
the record as an exhibit to a brief in support of a Firestone motion to strike, was not
submitted with Jett’s response to Firestone’s motion for summary judgment.
No. 04-1611 Page 3
Firestone maintains the district court properly granted summary judgment
in its favor because, it argues, Jett has not sufficiently shown that any defect in a
Firestone tire was a proximate cause of her injury. Firestone also contends that
Jett relies on documents that either are not in the record or are not properly in the
record. We will begin by reviewing the district court’s grant of summary judgment
under the assumption that all the documents on which Jett relies are properly in
the record.
We review a district court’s grant of summary judgment de novo. Davis v.
G.N. Mortg. Co., 396 F.3d 869, 877 (7th Cir. 2005). In a case such as this one where
our jurisdiction is premised on diversity, summary judgment should be granted
when there is “no genuine issue as to any material fact,” Fed. R. Civ. P. 56(c), and
“the non-moving party lacks enough evidence to sustain a jury verdict according to
the federal standard: whether reasonable minds could deem the evidence adequate
under the governing [state] substantive rule.” Knoblauch v. DEF Exp. Corp., 86
F.3d 684, 687 (7th Cir. 1996) (quoting Mayer v. Gary Partners & Co., 29 F.3d 330,
334 (7th Cir. 1994)). If the non-moving party fails to make a sufficient showing on
an element for which she has the burden of proof, the moving party is entitled to
judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The parties agree that the substantive law of Arkansas applies.
Under Arkansas law, to recover under a strict liability theory of product
liability, “a plaintiff must prove that the product as supplied was defective so as to
render it unreasonably dangerous and that such defect was the proximate cause of
the accident.” Yielding v. Chrysler Motor Co., 783 S.W.2d 353, 355 (Ark. 1990);
Ark. Code Ann. § 4-86-102. A plaintiff may prove the product's defective condition
by showing defective design, defective manufacture, or inadequate warning.
Harrell v. Madison County Miss. Mote Co., Inc., 370 F.3d 760, 762 (8th Cir. 2004)
(applying Arkansas law); Hill v. Searle Laboratories, Inc., 884 F.2d 1064, 1066-67
(8th Cir. 1989) (same). Here, Jett alleges that the Firestone tire on her vehicle was
defectively designed or manufactured.
Like strict liability claims, negligence and warranty claims brought under
Arkansas law also require that the plaintiff prove that her injuries were
proximately caused by the defendant’s product. Mason v. Jackson, 914 S.W.2d 728,
730 (Ark. 1996) (negligence); Lakeview Country Club, Inc. v. Superior Products, 926
S.W.2d 428, 431 (Ark. 1996) (breach of implied warranty of merchantability).
Arkansas law provides that proximate cause can be proven by direct or
circumstantial evidence. St. Paul Fire & Marine Ins. Co. v. Brady, 891 S.W.2d 351,
353 (Ark. 1995); Yielding, 783 S.W.2d at 355. Because proximate cause can be
shown by circumstantial evidence, the absence of the tire is not fatal to Jett’s claim.
However, the Arkansas Supreme Court has instructed,“if direct proof is
lacking, a plaintiff must negate other possible causes of the accident by a
No. 04-1611 Page 4
preponderance of the possibilities.” Yielding, 783 S.W.2d at 355. Therefore,
although proximate cause can be proven by circumstantial evidence, “[i]t is . . .
necessary that there be evidence that would tend to eliminate other causes that
may fairly arise from the evidence and that the jury not be left to speculation and
conjecture in deciding between two equally probable possibilities.” St. Paul Fire &
Marine Ins. Co., 891 S.W.2d at 353-54.
Firestone argues that in the light most favorable to Jett, the evidence in the
record shows only that the Wilderness AT line of tires had a design defect that led
to a higher chance of failure. Jett’s expert, Kenneth Pearl, for example, stated in an
affidavit that the “population of Firestone tires of which the subject tire is a
member contain several significant design defects.” Firestone contends that a risk
of failure, however, does not establish that the risk materialized in this case. See
Crossley by Crossley v. General Motors Corp., 33 F.3d 818, 821 (7th Cir. 1994)
(“The mere existence of a defect does not prove that the defect was responsible for
subsequent injuries--if a person intentionally drives a defective Blazer off a cliff,
the driver’s estate cannot recover against General Motors because the vehicle in
which the injuries occurred was defective.”)
The district court held that Jett’s evidence of causation was insufficient to
survive summary judgment. According to Federal Rule of Civil Procedure 56(e),
“[s]upporting and opposing affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.”
Jett states in her own affidavit that “the tread separation problems with Firestone
Wilderness AT tires were exactly what had caused” her accident. Jett’s statement
of the cause of the accident was outside her personal knowledge and appropriately
not considered. See Whitted v. General Motors Corp., 58 F.3d 1200, 1206 (7th Cir.
1995). The depositions of Kenneth Brown, a mechanic, and Vivian Brown, also do
not aid Jett. Both testified that they saw Jett’s vehicle in the salvage yard after the
accident, but neither offers any information helpful in establishing causation.
Both parties submitted affidavits from experts. Firestone’s expert, Brian
Queiser, stated in his affidavit that tread separation can be caused “by a variety of
conditions other than a manufacturing or design defect,” including “impact damage;
road hazard damage and/or punctures from nails or other objects; improper tire
inflation or other servicing, which includes under inflation and overloading;
mounting damage; improper vehicle alignment; improper rim components; and
operator driving habits.” Jett did not submit any evidence that contradicts this
statement. Instead, she attempted to demonstrate that none of these other
conditions existed in her case, averring in her affidavits, for example, that she
“never struck a large object, hazard or pothole” and “never drove the tires in an
under inflated condition.”
No. 04-1611 Page 5
Jett’s expert, Ken Pearl, stated in an affidavit that he reviewed photographs
of the vehicle and Jett’s affidavit, “including her testimony that she did not strike
any pot-holes or other large objects or structures, that the inflation pressures and
loading were maintained as suggested by the manufacturer, and that the tire never
suffered any form of puncture or other damage requiring that the tire be repaired.”
After stating, “Given the foregoing, . . . and assuming the facts to be true, the
failure (tread belt separation) of the present tire would have resulted from the
design and manufacturing inadequacies of the recalled tires and not from some
extraneous cause or reason.”
It is true that under Arkansas law, “[a] properly qualified expert's opinion
constitutes substantial evidence unless it is shown that the expert's opinion is
without reasonable basis.” Ford Motor Co. v. Massey, 855 S.W.2d 897, 899 (Ark.
1993). Pearl’s conclusion that a defect caused the tire failure lacks a reasonable
basis because it relies on information that does not appear in Jett’s affidavits.
Unfortunately for Jett, her affidavits do not make the broad statements that Pearl
attributes to them. Although her affidavit does state that she did not strike any
potholes or other large objects, nowhere does she state that the tire “never” suffered
any puncture or other damage. Likewise, Jett stated she herself never drove the
car in an underinflated condition, but Jett does not aver that the inflation pressures
were always maintained properly. Rather, Jett’s affidavit speaks only to her own
experience while she drove the vehicle, and she does not assert that she was the
only person to drive the vehicle. Pearl’s conclusion that a defect caused the tire
failure, which is based on statements that do not appear in the record, thus lacks a
reasonable basis. See also Navarro v. Fuji Heavy Industries, Inc., 117 F.3d 1027,
1031 (7th Cir. 1997) (“a conclusion without any support is not one based on expert
knowledge and entitled to the dignity of evidence”).
Similarly, Jett’s affidavits detailing her driving habits do not sufficienty
negate other possible causes of her tire’s failure. As the district court recognized,
although Jett may not have struck any object while she drove the vehicle, “we do
not know whether there were other drivers or what their driving habits and
experiences were.” This recognition does not amount to improper
speculation–rather, it demonstrates that Jett has not sufficiently negated other
possible causes of the accident. See, e.g., Mixon v. Chrysler Corp., 663 S.W.2d 713,
714-15 (Ark. 1984) (affirming summary judgment where steering system
unavailable for inspection and although affidavits stated that no one known to have
access to vehicle tampered with steering system, affidavits did not negate other
possible causes of accident including slick roads or normal wear and tear); Higgins
v. General Motors Corp., 465 S.W.2d 898, 901 (Ark. 1971) (evidence failed to negate
possibility that brake hose rupture resulted from normal and tear or other reasons).
Jett has thus failed to show that a defect in the tire was the probable cause of
her tire failure and her injuries. Instead, the evidence shows that a defect was but
No. 04-1611 Page 6
one of many possible causes of tread separation. Summary judgment was thus
appropriate in favor of Firestone. In light of this conclusion, we need not consider
Firestone’s argument that Jett relied on materials not properly before the court.
III. Conclusion
The district court’s decision to grant Firestone’s motion for summary
judgment is AFFIRMED.