                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                            File Name: 16a0279p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


 VICTORIA A. JACKSON, individually and as ┐
 surviving wife of Daniel A. Jackson, Deceased,        │
                                  Plaintiff-Appellant, │
                                                       │                   No. 16-5488
                                                                  >
            v.                                                   │
                                                                 │
                                                                 │
 FORD MOTOR COMPANY,                                             │
                                      Defendant-Appellee.        │
                                                                 ┘
                             Appeal from the United States District Court
                           for the Western District of Tennessee at Jackson.
                      No. 1:15-cv-01180—J. Daniel Breen, Chief District Judge.

                                 Decided and Filed: November 29, 2016

                 Before: MOORE and CLAY, Circuit Judges; HOOD, District Judge.*

                                            _________________

                                                 COUNSEL

ON BRIEF: Joe Bednarz, Jr., BEDNARZ & BEDNARZ, Hendersonville, Tennessee, for
Appellant. J. Randolph Bibb, Jr., Ryan N. Clark, LEWIS, THOMASON, KING, KRIEG &
WALDROP, P.C., Nashville, Tennessee, Stephanie A. Douglas, Jessica R. Vartanian, BUSH
SEYFERTH & PAIGE PLLC, Troy, Michigan, for Appellee.
                                            _________________

                                                  OPINION
                                            _________________

        KAREN NELSON MOORE, Circuit Judge. In this diversity case, Daniel A. Jackson
(“Mr. Jackson”), the husband of Plaintiff-Appellant Victoria A. Jackson (“Mrs. Jackson” or

        *
         The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting
by designation.




                                                       1
No. 16-5488                       Jackson v. Ford Motor Co.                          Page 2


“Jackson”), died in a car accident on U.S. Highway 70 after he lost control of his 2012 Ford
Focus. Mrs. Jackson, who was a passenger in the car, was seriously injured. She now alleges
that Defendant-Appellee Ford Motor Company (“Ford”), the manufacturer of their car, was
responsible for the accident because it equipped the car with a defective “Electronic Power
Assisted Steering” (“EPAS”) system that caused the loss of control. Ford filed a motion to
dismiss, arguing, inter alia, that Jackson did not adequately plead proximate cause. The district
court granted Ford’s motion, and Jackson has appealed. For the reasons stated below, the district
court demanded too much of Jackson under the familiar Iqbal and Twombly pleading
requirements.   Accordingly, we REVERSE the district court’s judgment dismissing the
complaint and REMAND the case for further proceedings.

                                      I. BACKGROUND

       Because “[w]e . . . accept all plausible well-pled factual allegations as true,” see City of
Cleveland v. Ameriquest Mortg. Sec., Inc., 615 F.3d 496, 502 (6th Cir. 2010), the following is a
background of the case as described in Mrs. Jackson’s amended complaint. Mr. Jackson was
driving his 2012 Ford Focus on U.S. Highway 70 when “suddenly and without warning, the Ford
Focus darted left across the center line into oncoming traffic. It was struck head on by a
wrecker.” R. 36 (Am. Compl. ¶ 13–14) (Page ID #403). “[A]s a result of the collision, Mr.
Jackson received serious injuries and died. Mrs. Jackson received serious, permanent and life
threatening injuries and was life flighted to Vanderbilt University Medical Center.” Id. ¶ 15
(Page ID #403). Mrs. Jackson claims that the EPAS system “was the cause of the Plaintiff[’]s
vehicle darting left into oncoming traffic.” Id. ¶ 16 (Page ID #403); see also id. ¶¶ 104, 107,
110, 118, 121, 124, 129, 135, 139 (Page ID #427–32, 434–35).

       “The EPAS system in the 2012 Ford Focus . . . replaces the traditional hydraulic-assist
power steering pump and [consists] of a power steering control motor, electronic control unit,
torque sensor and steering wheel position sensor.” Id. ¶ 17 (Page ID #404). Jackson describes
the “systemic defect” in this system as follows: “(1) seepage of conformal coating into the
EPAS system’s ribbon cable, which leads to the loss of connections within the EPAS system;
(2) misalignment of ribbon cable pins utilized in the EPAS system, which leads to the breakage
of critical wiring and the loss of connections within the EPAS system; (3) manufacturing defects
No. 16-5488                      Jackson v. Ford Motor Co.                         Page 3


in the contact plating used in the EPAS system, which causes corrosion and an interruption in
electrical connections within the EPAS system; (4) defects in EPAS system’s sensors; and
(5) defects in the gear assembly.” Id. ¶ 17 (Page ID #404); see also id. ¶ 47 (Page ID #412–13).
Jackson claims that “[t]his defective EPAS system renders the system prone to sudden and
premature failure during ordinary and foreseeable driving situations” and that “drivers of the
Defective Vehicles experience significantly increased steering effort and an increased risk of
losing control of their vehicles when the EPAS system fails.” Id. ¶¶ 17–18 (Page ID #404).
Jackson defined “Defective Vehicles” as vehicles that “contain the same or similar EPAS as the
Plaintiff’s 2012 Ford Focus,” which include various other Ford models. Id. ¶ 37 (Page ID #409).

       The alleged EPAS defect “can, and has, caused injuries to occupants of the Defective
Vehicles.” Id. ¶ 47 (Page ID #413). Jackson points to three instances where drivers experienced
steering failure in their 2012 Ford Focuses, id. ¶¶ 87–89 (Page ID #424), and several other
instances where other vehicles equipped with the same or similar EPAS system suffered from
steering failure, id. ¶¶ 69–86, 90–91 (Page ID #419–25). Jackson’s amended complaint alleges
that Ford is strictly liable for manufacturing and design defects; strictly liable for defective
warnings; liable for negligent manufacture, design, and warning; engaged in misrepresentations;
and breached implied and express warranties. See id. ¶¶ 105–39 (Page ID #428–35).

       After Jackson filed her complaint in state court, Ford removed the case to the U.S.
District Court for the Western District of Tennessee. R. 1 (Notice of Removal at 10) (Page ID
#10). The district court then dismissed Defendants Golden Circle Ford, Lincoln, Mercury, Inc.
and Steve Marsh Ford, Inc. under the doctrine of fraudulent joinder. See Jackson v. Ford Motor
Co., No. 15-1180, 2016 WL 270485, at *1 (W.D. Tenn. Jan. 21, 2016). Ford filed a motion to
dismiss or, in the alternative, for a more definite statement pursuant to Federal Rules of Civil
Procedure 12(b)(6) and 12(e), arguing that Mrs. Jackson “has not pled facts suggesting that a
defect in the 2012 Ford Focus Mr. Jackson was driving at the time of his crash caused or
contributed to the crash.” R. 15-1 (Def.’s Mem. in Support of Its Mot. Dismiss at 1) (Page ID
#280). Following an amended complaint filed by Mrs. Jackson, R. 36 (Am. Compl.) (Page ID
#401), and a supplemental motion to dismiss filed by Ford, R. 35 (Def.’s Supp. Mem. in Support
No. 16-5488                           Jackson v. Ford Motor Co.                                 Page 4


of Mot. Dismiss) (Page ID #396),1 the district court granted Ford’s motion to dismiss. See
Jackson v. Ford Motor Co., No. 15-1180, 2016 WL 324383 (W.D. Tenn. Jan. 26, 2016).
Jackson then filed a motion to alter or amend the judgment, which the district court denied. See
Jackson v. Ford Motor Co., No. 15-1180, 2016 WL 4533028 (W.D. Tenn. Mar. 21, 2016).
Jackson has appealed the orders on the motion to dismiss and motion to alter or amend the
judgment. See R. 59 (Notice of Appeal at 1) (Page ID #526). The district court had jurisdiction
pursuant to 28 U.S.C. § 1332, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

                                            II. DISCUSSION

A. Standard of Review

        “We review de novo a district court’s decision to grant a motion to dismiss for failure to
state a claim under Rule 12(b)(6).” In re Darvocet, Darvon, & Propoxyphene Prods. Liab.
Litig., 756 F.3d 917, 926 (6th Cir. 2014). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 554, 570 (2007)).

        Jackson argues that “complex product liability cases are unique and do not lend
themselves to rigid rules of pleading.” Appellant’s Br. at 24. However, Jackson did not raise
this argument in the district court, R. 27 (Opp’n to Mot. to Dismiss) (Page ID #361–66), so she
has forfeited the right to have it addressed on appeal, see Armstrong v. City of Melvindale,
432 F.3d 695, 699–700 (6th Cir. 2006). Nevertheless, we note that we have followed the
standard set forth in Iqbal and Twombly in other products liability cases. See, e.g., In re
Darvocet, Darvon, & Propoxyphene Prods. Liab. Litig., 756 F.3d at 926.

B. Applicable Law

        “Because this suit is before us pursuant to our diversity jurisdiction, we apply the
substantive law of [Tennessee] and federal procedural law. When applying the substantive law


        1
          Although Ford filed its supplemental motion to dismiss one day before Jackson’s amended complaint, it
addresses the changes that Jackson made in her amended complaint.
No. 16-5488                       Jackson v. Ford Motor Co.                           Page 5


of [Tennessee], we must follow the decisions of the state’s highest court when that court has
addressed the relevant issue. If the issue has not been directly addressed, we must anticipate how
the relevant state’s highest court would rule in the case and are bound by controlling decisions of
that court.” City of Cleveland, 615 F.3d at 502 (internal quotation marks omitted).

C. Ford’s Motion to Dismiss

       On appeal, Jackson argues that the district court improperly dismissed her amended
complaint on the ground that she did not sufficiently plead causation. See Appellant’s Br. at 8.
The district court held that Jackson’s amended complaint consisted of “conclusory statements
regarding proximate cause.” Jackson, 2016 WL 324383, at *2. Specifically, it held, “Although
Jackson discussed at length the EPAS system in the Ford Focus and many other vehicles
produced by Ford, she failed to explain how any of the alleged defects in the system caused
Daniel Jackson’s car to suddenly veer into another lane of oncoming traffic. Indeed, while
Plaintiff insisted that numerous deficiencies exist with the Ford Focus in general, nowhere in her
complaint or amended complaint does she specify what specific flaw caused the accident in
question.” Id. (internal citation omitted). In addition, it held that Mrs. Jackson’s claim of breach
of implied warranty of merchantability and fitness failed because Mrs. Jackson “failed to
demonstrate that the alleged defect in the vehicle was the proximate cause of the accident and her
husband’s death.” Id. at *3.

       As we explain below, we hold that Jackson has stated a plausible claim to relief.
Therefore, we reverse and remand.

       Under the Tennessee Products Liability Act of 1978 (“TPLA”), “[a] manufacturer or
seller of a product shall not be liable for any injury to a person or property caused by the product
unless the product is determined to be in a defective condition or unreasonably dangerous at the
time it left the control of the manufacturer or seller.” Tenn. Code Ann. § 29-28-105(a) (West
2002). A “‘[p]roduct liability action’ includes, but is not limited to, all actions based upon the
following theories: strict liability in tort; negligence; breach of warranty, express or implied;
breach of or failure to discharge a duty to warn or instruct, whether negligent, or innocent;
misrepresentation, concealment, or nondisclosure, whether negligent, or innocent; or under any
No. 16-5488                              Jackson v. Ford Motor Co.                                    Page 6


other substantive legal theory in tort or contract whatsoever.” Id. § 29-28-102(6). “The plaintiff
also must trace his or her injury to the defect.” Brown v. Crown Equip. Corp., 181 S.W.3d 268,
282 (Tenn. 2005) (citing King v. Danek Med., Inc., 37 S.W.3d 429, 435 (Tenn. Ct. App. 2000)).
“[U]nless there is a showing that the particular defect or dangerous condition proximately caused
the plaintiff’s injury, the manufacturer is not liable.” King, 37 S.W.3d at 435, cited in Sigler v.
Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008).2

         Because “Ford does not dispute that Plaintiff’s Amended Complaint plausibly pleads a
defect in the EPAS system,” Appellee’s Br. at 12, Jackson must plausibly plead the remaining
element of a products liability action in Tennessee:                  causation.      Indeed, she has.        Under
Tennessee law, “a three-pronged test for proximate cause is applied: (1) the tortfeasor’s conduct
must have been a ‘substantial factor’ in bringing about the harm being complained of; and
(2) there is no rule or policy that should relieve the wrongdoer from liability because of the
manner in which the negligence has resulted in the harm; and (3) the harm giving rise to the
action could have reasonably been foreseen or anticipated by a person of ordinary intelligence
and prudence.” Haynes v. Hamilton Cty., 883 S.W.2d 606, 611–12 (Tenn. 1994) (internal
quotation marks omitted). Referencing the proximate cause standard set forth by the United
States Supreme Court, which bears strong resemblance to the Tennessee Supreme Court’s
standard,3 we have held that “causal weaknesses will more often be fodder for a summary-

         2
           Jackson argues that King “applied a much different standard than should be applied to the current motion
to dismiss” because it addressed a motion for summary judgment. Appellant’s Br. at 24. However, causation is an
element of a products-liability action under Tennessee law. See Brown, 181 S.W.3d at 282. At the pleading stage,
Jackson need only allege causation. See Iqbal, 556 U.S. at 678. At the summary judgment stage, she must show
that there is a genuine material dispute regarding causation. See Fed. R. Civ. P. 56(a). Just as the Supreme Court
began Iqbal “by taking note of the elements a plaintiff must plead to state a claim of unconstitutional discrimination
against officials entitled to assert the defense of qualified immunity,” 556 U.S. at 675, so too do we begin by taking
note of the elements a plaintiff must plead to state a products-liability claim under Tennessee law.
         3
            Similarly to the Tennessee Supreme Court standard described above, the United States Supreme Court has
held that proximate cause is established when there is “some direct relation between the injury asserted and the
injurious conduct alleged. Thus, a plaintiff who complained of harm flowing merely from the misfortunes visited
upon a third person by the defendant’s acts was generally said to stand at too remote a distance to recover.” See
Holmes v. Sec. Inv’r Prot. Corp., 503 U.S. 258, 268–69 (1992). The United States and Tennessee Supreme Courts
have also made similar observations about the legal foundation for proximate cause. Compare id. at 268 (“At
bottom, the notion of proximate cause reflects ideas of what justice demands, or of what is administratively possible
and convenient.” (internal quotation marks omitted)), with Snyder v. LTG Lufttechnische GmbH, 955 S.W.2d 252,
256 n.6 (Tenn. 1992) (“Proximate or legal cause is a policy decision made by the legislature or the courts to deny
liability for otherwise actionable conduct based on considerations of logic, common sense, policy, precedent and our
more or less inadequately expressed ideas of what justice demands or of what is administratively possible and
No. 16-5488                              Jackson v. Ford Motor Co.                                     Page 7


judgment motion under Rule 56 than a motion to dismiss under Rule 12(b)(6).” Trollinger v.
Tyson Foods, Inc., 370 F.3d 602, 615 (6th Cir. 2004); see also Haynes, 883 S.W.2d at 612
(“Proximate cause . . . [is] ordinarily [a] jury question[], unless the uncontroverted facts and
inferences to be drawn from them make it so clear that all reasonable persons must agree on the
proper outcome.”).

         Applying the first prong in Haynes, we conclude that Jackson has plausibly alleged that a
defect in the 2012 Ford Focus’s EPAS system was a substantial factor in bringing about the
accident. This is apparent from the litany of other accidents identified by Jackson where the
EPAS system allegedly failed, causing the driver to lose control of the vehicle.4 See id. ¶¶ 69–
86, 90–91 (Page ID #419–25). In addition, the loss of control caused by a defective EPAS
system is plainly consistent with “the Ford Focus dart[ing] left across the center line into
oncoming traffic.” Id. ¶ 14 (Page ID #403). Applying the second prong, we conclude that the
TPLA creates a cause of action for the strict liability, negligence, breach of warranty, and
misrepresentation claims raised in Jackson’s amended complaint, see Tenn. Code Ann. § 29-28-
102(6); there is no rule or policy that should relieve Ford of liability if indeed it equipped
Jackson’s Focus with a defective EPAS system. Finally, that this accident could have reasonably
been foreseen by a person of ordinary intelligence and prudence is apparent from the defect in
the EPAS system. In her amended complaint, Jackson alleged that “[t]he ‘EPAS’ was the cause
of the Plaintiff[’]s vehicle darting left into oncoming traffic.” R. 36 (Am. Compl. ¶ 16) (Page ID
#403). She explained how “seepage of conformal coating into the EPAS system’s ribbon cable,”
“misalignment of ribbon cable pins,” “manufacturing defects in the contact plating,” “defects in
[the] EPAS system’s sensors,” and “defects in the gear assembly” all result in a system that is

convenient.” (internal quotation marks omitted)). Finally, Tennessee courts have referenced the federal proximate-
cause standard in their analysis of proximate cause. See, e.g., Steamfitters Local Union No. 614 v. Philip Morris,
Inc., No. W1999-01061-COA-R9-CV, 2000 WL 1390171, at *4, 6–7 (Tenn. Ct. App. Sept. 26, 2000) (citing and
applying Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc., 191 F.3d 229 (2d Cir. 1999), which cited
the statement in Holmes that there must be “some direct relation between the injury asserted and the injurious
conduct alleged”).
         4
           Ford argues that the EPAS system failures in other vehicles “are not ‘substantially similar’ to the incident
alleged in Plaintiff’s Amended Complaint.” Appellee’s Br. at 14. However, Croskey v. BMW of North America,
Inc., the case that Ford cites for the proposition that “[t]he plaintiff has the burden of showing the substantial
similarity between prior accidents and his own,” addressed the plaintiff’s burden for the admitting evidence at trial.
532 F.3d 511, 518 (6th Cir. 2008). At this stage, Jackson’s description of other vehicles with the same EPAS
system losing control, along with her other allegations, is sufficient to plead causation.
No. 16-5488                        Jackson v. Ford Motor Co.                             Page 8


“prone to sudden and premature failure during ordinary and foreseeable driving situations.” Id.
¶ 17 (Page ID #404). This failure, Jackson alleges, causes “drivers of the Defective Vehicles [to]
experience significantly increased steering effort and an increased risk of losing control of their
vehicles,” id. ¶ 18 (Page ID #404), precisely what happened in Jackson’s case.

       Ford’s hypertechnical arguments regarding the allegations in Jackson’s amended
complaint rest on an inaccurate understanding of notice pleading. We accept the truth of
Jackson’s well-pleaded facts and apply our “judicial experience and common sense.” See Iqbal,
556 U.S. at 678–79. However, Ford makes its own factual allegations that are not in Jackson’s
amended complaint. For instance, nowhere does Mrs. Jackson allege that Mr. Jackson “was
driving straight down the highway,” Appellee’s Br. at 14; she alleges that Mr. Jackson was
driving “westbound on US HWY 70 in Benton County, Tennessee,” R. 36 (Am. Compl. ¶ 13)
(Page ID #403).

       Ford’s plausibility arguments are likewise without merit. Even if Mr. Jackson were
driving in a straight direction, it is plausible that he could lose control, cross the center line, and
hit a wrecker. See id. ¶ 104. For instance, if Mr. Jackson lost his ability to steer while driving
around a bend, he could have crossed the center line without ever steering in a particular
direction.   Similarly, difficulty steering while driving around a bend could cause “sudden
steering or darting,” see Appellee’s Br. at 14, depending on how sharp the bend is.
Alternatively, difficulty steering while driving straight could have caused Mr. Jackson to
overcompensate, which in turn could cause sudden steering or darting. In sum, these competing
inferences may be proven or disproven in discovery or at trial. But for the time being, and in
light of our admonition that “causal weaknesses will more often be fodder for a summary-
judgment motion under Rule 56 than a motion to dismiss under Rule 12(b)(6),” Trollinger,
370 F.3d at 615, Jackson has made sufficient allegations to “nudge[] [her] claim[] across the line
from conceivable to plausible.” See Twombly, 550 U.S. at 570.

                                        III. CONCLUSION

       For the foregoing reasons, we REVERSE the district court’s judgment dismissing the
complaint and REMAND the case for further proceedings.
