                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0496n.06

                                           No. 12-3908                                  FILED
                                                                                    May 16, 2013
                          UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


LINDA BUCK and DANIEL BUCK,                              )
                                                         )
       Plaintiffs-Appellants,                            )
                                                         )         ON APPEAL FROM THE
v.                                                       )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE NORTHERN
FORD MOTOR COMPANY and JOHN DOE, INC.,                   )         DISTRICT OF OHIO
                                                         )
       Defendants-Appellees.                             )                           OPINION



BEFORE:        BOGGS and COLE, Circuit Judges; QUIST, District Judge.*

       COLE, Circuit Judge. Linda Buck was injured when, J.D. White, drove a 1999 Ford

Expedition through the front window of a bakery and pinned her to the back wall. Plaintiffs-

Appellants, Linda and Daniel Buck (“Bucks”), allege that the vehicle’s cruise control system was

defectively designed causing the car to accelerate uncontrollably. The district court granted summary

judgment to Ford Motor Company on the Bucks’ claims under Ohio law for defective product design

and inadequate warning. For the following reasons, we affirm the judgment of the district court.

                                                 I.

       On April 27th, 2006, J.D. White was pulling into a parking space at Nickles Bakery in his

1999 Ford Expedition as Linda Buck shopped inside. Unexpectedly, the Expedition accelerated

forward through the window of the shop, pinning Linda Buck to the back wall.

       *
       The Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
No. 12-3908
Linda Buck, et. al., v. Ford Motor Company, et al.

        After the accident, White stated on several occasions that he was unsure if he had pressed the

brake or the gas pedal at the time of the accident. Later, however, he became sure that he had put

his foot on the brake. In his deposition, White also admitted to being a “two-footed driver,” using

one foot for the gas and one for the brake. White, a 67-year-old man who walked with a cane, never

drove again after the accident pursuant to his daughter’s request and his doctor’s orders.

        The Bucks filed suit in April 2008 in the Court of Common Pleas, Lucas County, Ohio

alleging under Ohio law that the Ford Expedition driven by White was defectively manufactured

causing it to accelerate uncontrollably. They furthermore argued that Ford was liable for failing to

warn Ms. Buck of the Expedition’s dangerous condition. Ford removed the case to federal court on

the basis of diversity jurisdiction.

        The district court granted summary judgment to Ford. The court first addressed the defective

product design claim under a res ipsa loquitur theory. It held that the Bucks did not have a

meritorious claim under res ipsa because an ordinary course of events—such as a foot on the

gas—could result in vehicle acceleration. Therefore, the acceleration itself was not evidence of

negligence.

        The court then held that the Bucks could not make out a defective product design claim

absent expert testimony.1 The Bucks argued that by offering evidence of similar incidents of sudden

acceleration with Ford cars in the United Kingdom (“UK”), they had obviated the need for expert



        1
         The Bucks have an accident reconstruction expert, Dr. William D. Berg; however, he offers
no technical expertise regarding cruise control defects or electromagnetic interference, which form
the basis of the Bucks’ defective design claim.

                                                -2-
No. 12-3908
Linda Buck, et. al., v. Ford Motor Company, et al.

evidence. The district court, however, held that the UK incidents were not “substantially similar”

to the accident in question as required under Ohio law. The UK incidents were therefore

inadmissible. Without an expert, the Bucks lacked evidence to support their claim.

       Finally, the district court held that the Bucks failure-to-warn claim failed because Ford had

no duty to warn Linda Buck of any dangerous condition or risk to her safety.

       The Bucks brought a timely appeal.

                                                 II.

       We review a district court’s grant of summary judgment de novo. Williams v. Mehra, 186

F.3d 685, 689 (6th Cir. 1999) (en banc). “The court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). In deciding a motion for summary judgment we view the

factual evidence and draw all reasonable inferences in favor of the non-moving party. Harris v. City

of Circleville, 583 F.3d 356, 364 (6th Cir. 2009). “Entry of summary judgment is appropriate

‘against a party who fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of proof at trial.’”

Williams, 186 F.3d at 689 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

       The Bucks now appeal the district court’s grant of summary judgment on both their defective

product design claim and inadequate warning claim. We address them both in turn.

                                                 A.

       In order to establish a defective product design claim under Ohio law a plaintiff must show

“(1) there was, in fact, a defect in the product manufactured and sold by the defendant; (2) such

                                                -3-
No. 12-3908
Linda Buck, et. al., v. Ford Motor Company, et al.

defect existed at the time the product left the hands of the defendants; and (3) the defect was the

direct and proximate cause of the plaintiff's injuries or loss.” State Farm Fire & Cas. Co. v. Chrysler

Corp., 523 N.E.2d 489, 493 (Ohio 1988) (citations and internal quotations omitted).

       The district court granted summary judgment to Ford on the Bucks’ defective product design

claim, holding that because the Bucks did not have a technical expert to support their claim, they

could not prove causation under Ohio law. On appeal the Bucks make the same argument they made

in the district court: that “a manufacturer’s own documents may supply evidence of general

causation, obviating the need for an expert,” and that the documentation of similar accidents with

Ford cars in the UK is sufficient to subject Ford to liability in the instant case and provide evidence

of causation. (Buck Br., p. 39.)

       An expert is not always required to make out a defective product design claim. Atkins v. Gen.

Motors Corp., 725 N.E. 2d 727, 733 (Ohio Ct. App. 1999) (holding that circumstantial evidence is

sufficient to prove a design defect if the product is not complex or technical). Ford argues that even

if the UK evidence is admissible, an expert is required in this case because the Bucks’ claim

regarding the Expedition’s cruise control system is complex and technical. See Straub v. CGC Sys.,

Inc., No. 20009-P-0044, 2010 WL 1177339, at * 5 (Ohio Ct. App. March 26, 2010) (holding that

an expert is not necessary if a claim does not present complex technical issues).

       In order for the UK incidents to be admitted as evidence under Ohio law the Bucks must

demonstrate that the accidents are “substantially similar” to the accident in the instant case. Renfro

v. Black, 556 N.E.2d 150, 154 (Ohio 1990). The district court held that the UK incidents did not

meet this test and were therefore inadmissible. We review the district court’s finding that the UK

                                                 -4-
No. 12-3908
Linda Buck, et. al., v. Ford Motor Company, et al.

incidents are not substantially similar under an abuse of discretion standard. Vogel v. Wells, 566

N.E.2d 154, 158 (Ohio 1991). “Abuse of discretion connotes more than a mere error of law or

judgment, instead requiring a finding that the trial court’s decision was unreasonable, arbitrary, or

unconscionable.” Wilson v. Brush Wellman, Inc., 817 N.E.2d 59, 66 (Ohio 2004) (internal

quotations and citation omitted).

        The Bucks argue that the district court rested its decision on a flawed understanding of the

facts and therefore abused its discretion. “The trial court found that these incidents were not

[admissible] because . . . they allegedly ‘did not involve any allegations of cars at rest or near-rest

accelerating from those positions.’” The Bucks are correct, and Ford does not dispute, that this was

a factual error by the district court. There were, in fact, reports of cars “at rest or near rest” included

in the UK documents.

        The court nevertheless did not abuse its discretion in finding no substantial similarity

between the UK incidents and Linda Buck’s accident. The UK incidents were divided into three

different incident groups based on the behavior of the cars. The Bucks’ own accident reconstruction

expert, Dr. Berg, admitted that the accident in the instant case did not match any of those three

categories. In light of the testimony of the Bucks’ own expert, this court cannot conclude that the

district court abused its discretion in finding that there was no substantial similarity between the UK

incidents and the accident at issue in this case.

        Because we affirm the district court’s finding that there is no substantial similarity, the UK

incidents are inadmissible. Since the Bucks have no technical expert, they therefore have no other

evidence on which to rely in order to support their defective product design claim.

                                                    -5-
No. 12-3908
Linda Buck, et. al., v. Ford Motor Company, et al.

                                                    B.

       The Bucks also appeal the district court’s dismissal of their failure-to-warn claim. The

district court held that Ford had no duty2 to warn Linda Buck of any dangerous condition in the Ford

Expedition. We agree.

       A “manufacturer does not breach its duty to warn . . . until the company knew or should have

known of a particular risk through the exercise of ordinary care.” Grover v. Eli Lilly & Co., 591

N.E.2d 696, 700 (Ohio 1992). Furthermore, the plaintiff must show “that the manufacturer failed

to take the precautions that a reasonable person would take in presenting the product to the public.”

Crislip v. TCH Liquidating Co., 556 N.E.2d 1177, 1182-83 (Ohio 1990). Here, the Bucks are not

even able to demonstrate that the Expedition was dangerous, let alone take the additional step of

demonstrating that Ford knew or should have known of such danger. Therefore, Ford had no duty

to warn and the district court properly granted summary judgment on this claim.

                                                   III.

For the foregoing reasons we affirm the judgment of the district court.




       2
           Although the district court discussed both duty and standing, ultimately its ruling was based
on duty.
                                                   -6-
