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Pertile v. General Motors, LLC

United States District Court, D. Colorado

September 22, 2017

GENERAL MOTORS, LLC, a Delaware limited liability company, and, TRW VEHICLE SAFETY SYSTEMS, INC., a Delaware corporation, Defendants.



         In this 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") and TRW Vehicle Safety Systems, Inc. ("TRW") for claims including strict liability, negligence, breach of warranty, violation of the Colorado Consumer Protection Act, Colo. Rev. Stat. §§ 6-1-101 et seq. ("CCPA"), and loss of consortium. (See generally ECF No. 254.) Now before the Court is Defendant TRW's Motion for Summary Judgment. (ECF No. 188). For the reasons set forth below, the Motion is granted as against Plaintiffs' CCPA claim, but is denied in all other respects.


         Summary 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(a); 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).

         "To 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 fact 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). "The moving party carries the burden of showing beyond a reasonable doubt that it is entitled to summary judgment." Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2008) (alterations incorporated; internal quotation marks omitted).

         II. BACKGROUND[1]

         The following facts relevant to the present motion are undisputed where not attributed or noted otherwise.

         This case arises from a single vehicle rollover accident, in which Plaintiff Daniel Pertile was badly injured, near Vernal, Utah, on February 25, 2013 (the "Crash" or the "Rollover"). (See generally ECF No. 254 at 3-5.)[2] In particular, he was the front seat passenger in a 2011 Chevrolet Silverado 2500HD, manufactured by GM. (See ECF No. 254 at 3.) At the time of the Rollover, Mr. Pertile was wearing the seatbelt with which the Vehicle was equipped. TRW is the manufacturer who supplied the seatbelt assembly and its components. (ECF No. 188 at 2, ¶¶ 4-5; ECF No. 216 at 3, ¶¶ 4-5.)

         Plaintiffs proceed on product liability/design defect and related claims against GM as the manufacturer of the vehicle and against TRW as the manufacturer of the seatbelt. As to the Vehicle's roof, Plaintiff's allege that "the roof and its supporting structures was [sic] weak and failed during the rollover, collapsed and intruded into the occupant compartment, and severely crushed into Mr. Pertile's survival space." (ECF No. 254 at 4.) As to the seatbelt assembly and components (or the "safety restraint system")-and therefore as against TRW-Plaintiffs allege that the seatbelt "failed to reasonaby protect [Mr. Pertile] during the rollover, allowing unreasonable and excessive excursion"-that is, movement of the Vehicle occupant up or away from the seat cushion and back-and that in combination "the roof and the restraint system were designed in such a way that the restraint system performance [was] degraded by roof crush and deformation during a rollover accident." (Id.) In its present Motion, TRW moves for summary judgment against all of Plaintiffs' claims.

         III. ANALYSIS

         A. Evidentiary Issues

         1. Expert Reports

         TRW's Reply Brief argues that Plaintiff cannot rely on the written reports of their experts in opposition to TRW's Motion for Summary Judgment. (See ECF No. 250 at 2 ("An unsworn expert report is not competent summary judgment evidence (citing Sofford v. Schindler Elevator Corp., 954 F.Supp. 1459, 1462-63 (D. Colo. 1997)).)

         The problem with TRW's somewhat peevish insistence on this point is not only that it seeks to terminate Plaintiffs' claims on the basis of procedural gamesmanship rather than on their merits, but that TRW is simply wrong as a matter of current federal law. Such a formalistic approach may still be required in some jurisdictions, see, e.g., Tex. R. Civ. P. 166a(f) (requiring "[s]worn or certified copies of all papers"), but it was abandoned some years ago in the federal system (as lawyers admitted to practice in this Court probably ought to know). See Fed. R. Civ. P. 56, Advisory Committee Notes to 2010 Amendment, Subdivision (c) ("The requirement that a sworn or certified copy of a paper referred to in an affidavit or declaration be attached to the affidavit or declaration is omitted as unnecessary given the requirement in subdivision (c)(1)(A) that a statement or dispute of fact be supported by materials in the record. A formal affidavit is no longer required.").[3]

         In opposing summary judgment under Rule 56, a party "may object that the material cited .. . cannot be presented in a form that would be admissible in evidence." Fed.R.Civ.P. 56(c)(2). However, "[a]t the summary judgment phase, evidence need not be submitted in a form that would be admissible at trial, " only "the content or substance of the evidence must be admissible." Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006). It is only necessary for the party submitting the evidence to show "that it will be possible to put the information, the substance or content of the evidence, into an admissible form." Brown v. Perez, 835 F.3d 1223, 1232 (10th Cir. 2016) (citation and internal quotation marks omitted). To the extent the cases cited by TRW hold otherwise, they are based on a superseded version of Rule 56.

         Since the written reports of Plaintiffs' experts set out opinions that are anticipated to be offered in testimony at trial, there is no bar to considering those opinions here, other than any portion of an opinion the Court has found inadmissible pursuant to Federal Rule of Evidence 702.

         2. Authenticity and Hearsay Objections

         In addition, TRW objects to various documents filed as exhibits to Plaintiffs' Opposition on grounds that they were not produced in discovery in this case, and that they are "unauthenticated" and "cannot be considered by a court in determining a summary judgment motion." (ECF No. 250 at 7 (citing In re Harris, 209 B.R. 990, 996 (B.A.P. 10th Cir. 1997)).) This argument is also grounded in outdated procedural requirements for "authentication" of documents that Rule 56 no longer requires, as set out above. Moreover, the documents are filed by way of an affidavit from Plaintiffs' counsel stating that each is a "true and correct copy" of what it appears to be. TRW's authenticity objections are thus not well taken at this stage of litigation.

         TRW further objects that the contents of these documents are inadmissible hearsay. While the Court may consider such objections at this stage, the relevant question is not whether the document itself is or will be admissible, but whether the content or substance of the information it contains may be presented at trial in an admissible form, as explained above. Argo, 452 F.3d at 1199.

         The majority of the documents filed by Plaintiffs are TRW corporate documents, such as press releases, presentations made to clients, and annual reports. At a minimum, it appears likely that most of the information they contain could be elicited in the trial testimony of a TRW corporate witness at trial, or brought out as impeachment on cross-examination if the points were not conceded. Thus TRW's hearsay objections are, on the whole, not well taken at this stage of litigation. However, as is clear below, no part of the Court's analysis turns on the admissibility of these documents, so the Court need not address each of TRW's objections to these documents individually.

         B. Product Liability Claims: Strict Liability & Negligence

         1. Product Defect

         Colorado law adopts the doctrine of strict liability in product liability, 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. 2010).

         Plaintiffs may pursue such a claim here against TRW as the manufacturer of a component used in the Vehicle, and it is undisputed that TRW manufactured and supplied the seatbelt components and assembly. (ECF No. 188 at 2, ¶ 4.) 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 ...

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