United States District Court, D. Colorado
ORDER GRANTING DEFENDANT KELSEY-HAYES COMPANY'S
MOTION FOR SUMMARY JUDGMENT
William J. Martínez United States District Judge.
personal injury/product liability action pending under the
Court's diversity jurisdiction, 28 U.S.C. § 1332(a),
Plaintiffs Daniel and Ginger Pertile bring suit against
Defendants General Motors, LLC (“GM”), TRW
Vehicle Safety Systems, Inc. (“TRW”), and
Kelsey-Hayes Company (“Kelsey-Hayes”), for claims
including strict liability, negligence, breach of warranty,
violation of the Colorado Consumer Protection Act, Colo. Rev.
Stat. §§ 6-1-101 et seq., and loss of
consortium. (See generally ECF No. 254.) Now before
the Court is Defendant Kelsey-Hayes's Motion for Summary
Judgment. (ECF No. 187). Because Plaintiffs have failed to
muster evidence from which a reasonable jury could find that
a product component manufactured by Kelsey-Hayes was
defective, the motion is granted.
judgment is appropriate only if there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Henderson v.
Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir.
1994). Whether there is a genuine dispute as to a material
fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or, conversely,
is so one-sided that one party must prevail as a matter of
law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132
(10th Cir. 2000).
is “material” if it pertains to an element of a
claim or defense; a factual dispute is “genuine”
if the evidence is so contradictory that if the matter went
to trial, a reasonable jury could return a verdict for either
party. Anderson, 477 U.S. at 248. The Court must
resolve factual ambiguities against the moving party, thus
favoring the right to a trial. Houston v. Nat'l Gen.
Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
“[t]o survive summary judgment, a nonmoving party must
set forth specific facts showing that there is a genuine
issue for trial as to those dispositive matters for which he
carries the burden of proof.” Christy v. Travelers
Indem. Co. of Am., 810 F.3d 1220, 1233 (10th Cir. 2016)
(internal quotation marks omitted). A party responding to a
motion for summary judgment must therefore “ensure that
the factual dispute is portrayed with particularity, without
depending on the trial court to conduct its own search of the
record, ” Cross v. The Home Depot, 390 F.3d
1283, 1290 (10th Cir. 2004), and the Court is not obliged to
“comb the record” to identify factual disputes or
to make a party's case for it, Ford v. West, 222
F.3d 767, 777 (10th Cir. 2000).
following facts relevant to the present motion are undisputed
where not attributed or noted otherwise.
case arises from a single vehicle rollover accident, in which
Plaintiff Daniel Pertile was injured, near Vernal, Utah, on
February 25, 2013 (the “Crash”). (See
generally ECF No. 254 at 3-5.) Among other theories of
liability, Plaintiffs allege that “Kelsey-Hayes
designed, manufactured, and supplied an original equipment
electronic stability control (‘ESC') system to
General Motors for use in the subject vehicle, ”
(id. at 3-4), and that the ESC system was defective
and unreasonably dangerous. They proceed against Kelsey-Hayes
on claims of strict liability, negligence, breach of
warranty, violation of the Colorado Consumer Protection Act,
Colo. Rev. Stat. §§ 6-1-101 et seq., and
loss of consortium. (See ECF No. 31
¶¶ 11 & 90-118.)
undisputed that the vehicle in which Mr. Pertile was injured
was equipped with an ESC system, which GM calls
“Stabilitrack.” (ECF No. 187 at 2, ¶ 3.)
This system works to improve vehicle stability by detecting
and reducing traction. (Id. 2 ¶ 4; ECF No. 218
at 3, ¶ 4.) It functions by tracking driver inputs such
as steering and braking, and by monitoring vehicle dynamics,
including wheel speeds and directions. (ECF No. 187 at 2,
¶ 5.) Those inputs are communicated to an electronic
control module (the “control module” or
Electronic Braking Control Module (“EBCM”)), and
the system will, in certain circumstances, initiate braking
on one or more of the vehicle's wheels to assist the
driver in regaining or maintaining control. (See ECF
No. 187 at 4, ¶ 5; ECF No. 218 at 3, ¶
relevant here, Kelsey-Hayes provided components of the ESC
system including the control module. (See ECF No.
187 at 2, ¶ 6.) However, Kelsey-Hayes did not
supply the sensors which provided the data inputs to the
control module. (See ECF No. 187 at 3, ¶
parties generally agree that functioning ESC systems provide
substantial safety benefits. In addition, Plaintiffs' ESC
expert, Mr. Loudon, has testified that the ESC products
provided by Kelsey-Hayes in this case met all federal and
industry standards (ECF No. 187 at 2, ¶ 8; ECF No. 218
at 3, ¶ 8), and that “when the system was working,
it worked flawlessly” (ECF No. 187-4 at 8).
Mr. Loudon also concluded-and Kelsey-Hayes does not
dispute-that the vehicle's ESC system was disabled and
“was not active during this crash.” (ECF No.
187-4 at 17, 19.) More specifically, Mr. Loudon opines that
“this vehicle ha[d] a history of random intermittent
faults that directly affect[ed] the functioning of the [ESC]
system, ” and that “the ESC [warning] light was
intermittently and randomly turning on and disabling the ESC
function.” (ECF No. 218-2 at 34.) He reached these
opinions based on his review of 11 diagnostic fault codes
that were recorded in the vehicle's system after the
Crash. (See generally Id. at 22-34.) Based on this
review, he concluded that “three (3) faults . . .
we[re] active in the ignition cycle of the accident and
prevented the ESC system from being available to the
driver.” (Id. at 34.)
why these faults occurred, the ESC system reports diagnostic
faults when one of the data input sensors provides unreliable
data to the control module. (ECF No. 187 at 34, ¶ 12;
ECF No. 218 at 4, ¶ 12.) Testimony from
Kelsey-Hayes's Rule 30(b)(6) designee establishes that
the ESC control module responds to such faults by disabling
the ESC system, either until the “the fault corrects
itself” (for certain “latched type”
faults), or until the vehicle's next ignition cycle (for
other “ignition latched” faults). (ECF No. 187-3
at 15; see also ECF No. 187 at 3, ¶ 13; ECF No.
218 at 4, ¶ 13.)
the particular data in this case, Plaintiff's expert, Mr.
Loudon, testified in particular that the vehicle's
steering wheel position sensor (also referred to as the
steering wheel angle sensor) reported unreliable data to the
ESC control module prior to the Crash. (ECF No. 187 at 4,
¶ 15; ECF No. 218 at 4, ¶ 15.) The ESC control
module then disabled the system, so that it was not engaged
at the time of the Crash. (ECF No. 187 at 4, ¶ 16; ECF
No. 218 at 4, ¶ 16.) In assessing “why the system
detected” the faults related to the steering wheel
angle sensor, Mr. Loudon testified that “a failure in
the sensors is the likely cause.” (ECF No. 187-4 at
12.) Regarding the resulting operation of disabling the ESC
system, Mr. Loudon testified as follows:
Q. * * * If you have a fault that is detected, whether it be
a sensor or a communication, either one, the appropriate
response is to disable ESC; correct?
A. Yes. If a sensor-if it is based on a sensor that is a
fundamental part of the ESC system, yes.
Q. Because if it doesn't know what's going on it
can't make correct adjustments?
Q. Now, why do you think that the vehicle had intermittent
A. Because the-it either had a sensor problem or if the
diagnostic strategy was not well conceived.
(ECF No. 187-4 at 16.) However, as to the final statement
quoted above, the Court has, by separate contemporaneous
order, found that any testimony from Mr. Loudon regarding a
problem with the ESC system's “diagnostic
strategy” does not correspond to a disclosed opinion
identifying any such actual diagnostic problem, and is
inadmissible under Federal Rule of Evidence 702.
(See ECF No. 332 at 8-11.)
Product Defect: Strict Liability & Negligence
has long recognized the doctrine of strict liability in
product liability actions against manufacturers of defective
products, following the Restatement (Second) of Torts §
402A. Union Supply Co. v. Pust, 583 P.2d 276, 280
(1978) (citing Hiigel v. Gen. Motors Corp., 544 P.2d
983 (1975)). Generally speaking, “[t]he Colorado
Products Liability Act, Colo. Rev. Stat. §§
13-21-401 et seq., defines ‘manufacturer,
' limits liability of sellers and distributors who are
not manufacturers, and creates a presumption of
non-defectiveness for products sold ten years or more before
any claimed injuries. Under Colorado law, the sine qua
non of a strict liability claim is the ‘sale'
of a ‘product.'” Hidalgo v. Fagen,
Inc., 206 F.3d 1013, 1017-18 (10th Cir.
2000).To establish liability, “[a]
plaintiff has the burden of persuasion as to the defective
condition of a product. Regardless of whether a product
liability action is grounded in negligence or strict
liability, a plaintiff must prove that the product was
defective.” Mile Hi Concrete, Inc. v. Matz,
842 P.2d 198, 205 (Colo. 1992); Kokins v. Teleflex,
Inc., 621 F.3d 1290, 1300 (10th Cir.
may pursue such a claim here against Kelsey-Hayes as the
manufacturer of a component used in the vehicle,
specifically, the control module or other components of the
ESC system that were manufactured by Kelsey-Hayes. See
Union Supply, 583 P.2d at 281. Colorado law
“follow[s] the majority view that a manufacturer of
component parts may be held strictly liable for injuries to a
consumer caused by design defects in the component parts when
they are expected to and do reach the consumer without
substantial change in condition.” Id.
for summary judgment, Kelsey-Hayes cites to Mr. Loudon's
testimony, set out above, explaining that the reason the ESC
system was disabled at the time of the Crash-and therefore
was allegedly defective- was because the steering wheel angle
sensor was reporting unreliable data to the control module,
that the control module therefore disabled the ESC system,
and that this was the appropriate response to unreliable
sensor data. (See ECF No. 187 at 3-6; ECF No. 187-4
at 12, 16.) In other words, Kelsey-Hayes's argument
implies that while Plaintiffs might have a viable component
defect as to the data sensors, Kelsey-Hayes did not
manufacture those sensors. Kelsey-Hayes argues “[t]here
is no evidence of any product defect in any components
designed, manufactured, or supplied by Kelsey-Hayes, ”
including the ESC control module. (ECF No. 187 at 6.)
argue that the vehicle's “ESC system was defective,
” and that “Kelsey-Hayes is the designer of the
2011 Chevy Silverado's ESC controller that determines
when the system will engage.” (ECF No. 218 at 8.)
Initially, there is some disconnect between, on the one hand,
Plaintiffs' arguments directed to a defect in the
“ESC system” as a whole (see,
e.g., id. (“the ESC system as
designed and manufactured is defective and unreasonably
dangerous”) and, on the other hand, Kelsey-Hayes's
argument distinguishing between the data sensors and the
system component(s) that were manufactured by Kelsey-Hayes.
Kelsey-Hayes argues “Plaintiffs . . . must demonstrate
the specific component Kelsey-Hayes ...