United States District Court, D. Colorado
ORDER GRANTING IN PART TRW VEHICLE SAFETY SYSTEMS,
INC.'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") 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
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).
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).
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 badly injured, near Vernal,
Utah, on February 25, 2013 (the "Crash" or the
"Rollover"). (See generally ECF No. 254 at
3-5.) 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.)
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
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)).)
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
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.
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.
Authenticity and Hearsay Objections
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.
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.
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.
Product Liability Claims: Strict Liability &
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).
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 ...