PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLOTTE BINAKONSKY, individually
and as mother and next friend of
the minor children and as personal
representative of the estate of the
deceased, aka David Alan
Binakonsky; JANE MARILYN
BINAKONSKY, minor child of the
deceased; RACHEL DARA
BINAKONSKY, minor child of the
                                                               No. 96-2165
deceased; LUCY ANN BINAKONSKY,
minor child of the deceased; EMILY
BINAKONSKY, minor child of the
deceased,
Plaintiffs-Appellants,

v.

FORD MOTOR COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Alexander Harvey II, Senior District Judge.
(CA-95-2529-H)

Argued: June 2, 1997

Decided: January 5, 1998

Before HALL and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________
Affirmed in part, reversed in part, and remanded by published opin-
ion. Senior Judge Butzner wrote the majority opinion, in which Judge
Hall joined. Judge Niemeyer wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Martin Henry Freeman, FREEMAN & JENNER, P.C.,
Rockville, Maryland, for Appellants. Malcolm Edward Wheeler,
PARCEL, MAURO, HULTIN & SPAANSTRA, P.C., Denver, Colo-
rado, for Appellee. ON BRIEF: Grace R. den Hartog, Joseph K.
Reid, III, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Rich-
mond, Virginia, for Appellee.

_________________________________________________________________

OPINION

BUTZNER, Senior Circuit Judge:

The widow and children of David Binakonsky, who brought this
action against the Ford Motor Company, appeal the district court's
entry of summary judgment for Ford. Because there are genuine
issues of material fact, we vacate the district court's summary judg-
ment and remand the case for trial.

I

In February 1988, David Binakonsky purchased a 1988 Ford E-150
Econoline van equipped with a 5.8 liter fuel-injected engine. Like
most full size vans, the Ford E-150 contained a shortened engine
compartment which was situated between the driver and passenger
seats. The engine had an insulated, fiberglass cover known as a "dog-
house."

The fuel system of the 1988 E-150 consisted of plastic (Nylon 11
or 12) fuel lines and plastic "snap-together" fuel line connectors. The
plastic fuel lines carried fuel from two 20-gallon fuel tanks through
a high-pressure electronic fuel pump and up to the fuel injection rail
at the rear of the engine. The plastic connectors were used as attach-

                    2
ment mechanisms along the fuel lines, and metal"snap-together" con-
nectors were used to connect the lines to the engine. The E-150 van
also had an inertia fuel cut-off switch to shut off the fuel pump and
stop the flow of fuel to the engine in the event of an accident.

On August 30, 1992, Binakonsky drove his E-150 van off the road
and into a large tree. The accident occurred in Maryland, whose sub-
stantive law is applicable to this case. Upon impact, the engine was
pushed into the passenger compartment. Gasoline ignited, an intense
fire erupted, and Binakonsky, unable to escape the burning vehicle,
was killed. Accident reconstruction experts estimated the van hit the
tree at a speed between 40 and 47 miles per hour. The speed limit was
30 m.p.h. A postmortem examination revealed Binakonsky's blood-
alcohol content was between .14% and .16%, far above Maryland's
allowable limit. He was an alcoholic with a long history of serious
traffic violations, and, at the time, had no license.

The plaintiffs seek damages for Binakonsky's death as result of the
postcollision fire. Their claims are based on the"crashworthiness"
doctrine. Crashworthiness cases differ from traditional automotive
product liability cases. Complaints in these cases do not allege that a
defect in the vehicle caused the initial accident, which in this case was
the crash into a tree. Instead, complaints in crashworthiness cases
allege that a defective product or a defectively designed product
caused or aggravated injuries after the initial accident. See generally
Volkswagen of America, Inc. v. Young, 272 Md. 201, 321 A.2d 737,
739-45 (1974) (explaining "crashworthy doctrine"). The plaintiffs
allege that the van's defectively designed fuel system caused it to
explode in flames after the crash. The plaintiffs contend that when the
E-150 crashed, its plastic fuel lines and connectors ruptured. They
allege that the ensuing fire was ignited and continually fed by
siphoned fuel from both tanks.

The autopsy report of the assistant medical examiner for the State
of Maryland is consistent with the plaintiffs' allegation that Binakon-
sky died as a result of the fire. The autopsy and testimony of the assis-
tant medical examiner disclosed that the cause of death was thermal
injury to the larynx from breathing superheated air. He also had fourth
degree burns over 100% of his body surface, and a carbon monoxide
level of 8%. The assistant medical examiner testified that the autopsy

                    3
disclosed that all fractures, including a skull fracture, were thermal
fractures.

The plaintiffs brought their allegations of defective design under a
theory of strict liability, first adopted by Maryland courts in Phipps
v. General Motors Corp., 278 Md. 337, 350-53, 363 A.2d 955, 957-
63 (1976). The term "strict liability" does not make the seller of the
product an insurer of its safety. The bulk of the plaintiffs' documen-
tary and testimonial evidence addresses the alleged defects in the
design of the fuel system--namely that the plastic fuel lines and con-
nectors were defective because they were not designed to withstand
excessive heat and pressure. The plaintiffs also maintained that the
fuel system was not equipped with an antisiphoning device which
would have stopped the fuel from flowing into the engine compart-
ment.

The complaint also alleged negligence, but during the proceedings
in the district court the plaintiffs conceded that Binakonsky's contrib-
utory negligence barred recovery under their negligence counts.

Ford based its motion for summary judgment on the assertions that
Maryland does not recognize strict liability premised on the theory of
a design defect; Ford also alleged that contributory negligence and
assumption of risk preclude recovery. Finally, Ford asserts that the
van was reasonably designed as a matter of law. See Binakonsky v.
Ford Motor Co., 929 F. Supp. 915, 920 (D. Md. 1996).

The district court properly held that Maryland recognizes strict lia-
bility claims based on defective design in a "crashworthy case."
Binakonsky, 929 F. Supp. at 921. The district court also properly held
that contributory negligence is not available in Maryland in a suit
alleging strict liability. Id. at 922. After weighing factors of price,
uniqueness of design, practicality of alternative designs, and the cir-
cumstances of the accident itself, the court concluded that the design
of the 1988 E-150 van was reasonable. Id. at 922-24.

II

We review summary judgment claims de novo, drawing all facts
and reasonable inferences in favor of the nonmoving party. Ramos v.

                     4
Southern Maryland Elec. Co-Op. Inc., 996 F.2d 52, 53 (4th Cir.
1993). Summary judgment is warranted whenever there exists no gen-
uine issue of material fact and the moving party proves that it is enti-
tled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986). The plaintiffs have the burden of proof,
and they must establish each essential element of their case. Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). They must meet their
burden of proof by showing more than an existence of a scintilla of
evidence. Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir.
1984). On appeal the court reviews de novo, applying the same stan-
dards as the district court. Ramos, 996 F.2d at 53.

Maryland, in Phipps, 278 Md. 337, 363 A.2d 955, adopted
Restatement (Second) of Torts § 402A (1965), which allows users and
consumers of defective products to sue the products' sellers. To pre-
vail in a defective design case on the theory of strict liability, a plain-
tiff must show 1) the existence of a defect, 2) the attribution of a
defect to the seller, and 3) a causal relation between the defect and
the injury. Jensen v. American Motors Corp., 50 Md. App. 226, 234,
437 A.2d 242, 247 (1981).

In order to prove the existence of a design defect in strict liability
actions, the plaintiffs must show that the alleged defect rendered the
van "unreasonably dangerous" to the consumer. See Phipps, 278 Md.
at 344, 363 A.2d at 959. Section 402A, Comment I, defines an unrea-
sonably dangerous product as one which is "dangerous to an extent
beyond that which would be contemplated by the ordinary consumer
who purchases it, with the ordinary knowledge common to the com-
munity as to its characteristics." See Phipps , 278 Md. at 344, 363
A.2d at 959. Determining whether a design is "unreasonably danger-
ous" requires a balancing of the "utility of the risk inherent in the
design against the magnitude of the risk." Phipps, 278 Md. at 345,
363 A.2d at 959. Maryland suggests using a seven factor risk-utility
analysis developed by Professor John W. Wade in his seminal article,
"Strict Tort Liability of Manufacturers," 19 S.W.L.J. 5, 17 (1965).
Troja v. Black & Decker Mfg., 62 Md. App. 101, 108, 488 A.2d 516,
519 (1985); see also Phipps, 278 Md. at 344 n.6, 363 A.2d at 959 n.6.

The district court did not follow Troja's suggestion about the Wade
factors. Instead, the court conducted a "reasonableness" inquiry pat-

                     5
terned after Dreisonstok v. Volkswagenwerk, A.G. , 489 F.2d 1066 (4th
Cir. 1974), a crashworthiness case involving the lack of adequate
"crush-space" in the Volkswagen microbus. Relying on Virginia neg-
ligence law, the Dreisonstok court, balancing the likelihood of harm
against the burden of avoiding the harm, concluded that the manufac-
turer had not violated its duty of ordinary care. The district court in
Binakonsky's case held: "The result in Dreisonstok compels the con-
clusion that defendant Ford cannot as a matter of law on the record
in this case be held liable for the death of David Binakonsky."
Binakonsky, 929 F. Supp. at 923.

Dreisonstok was helpful with regard to Binakonsky's claim of neg-
ligence because both Virginia and Maryland apply common law prin-
ciples of negligence. Nevertheless, the district court's reliance on
Dreisonstok with respect to strict liability based on a postcollision fire
is questionable. Phipps clearly explains the fundamental difference
between negligence and strict liability in these terms: "The relevant
inquiry in a strict liability action focuses not on the conduct of the
manufacturer but rather on the product itself." 278 Md. at 344, 363
A.2d at 958. Dreisonstok did not deal with a postcollision fire in a
strict liability setting. Consequently, the risk component of the risk-
utility balance in Dreisonstok is quite different from the risk in this
case.

Since Dreisonstok is an imperfect guide with respect to a claim of
strict liability arising out of a postcollision fire, we will instead apply
the Wade factors:

(1) The usefulness and desirability of the product--its utility to
the user and to the public as a whole.

If properly designed, the Ford van that is the subject of this action
is a useful and desirable product.

(2) The safety aspects of the product--the likelihood that it will
cause injury, and the probable seriousness of the injury.

The plaintiffs contend that the fuel delivery system was defectively
designed. The defendant contends that the system was safe.

                     6
The fuel delivery system consisted of two tanks located behind the
rear axle. A low pressure pump in the tanks and a high pressure pump
on the left side rail underneath the driver's door supplied the fuel to
the engine. Plastic lines and connectors carried the fuel from the tanks
to the engine compartment. Metal lines attached to the plastic lines
fed fuel to the engine. The district court recognized that the impact
drove the engine into the passenger compartment and that the gasoline
ignited and "was spewed at high pressure into the passenger compart-
ment." Binakonsky, 929 F. Supp. at 918. The fire consumed all of the
fuel in the gas tanks.

The district court also believed that the fuel cut-off switch "could
hardly have been expected to operate properly in a collision of this
magnitude." Binakonsky, 929 F. Supp. at 924. The switch to which
the court referred is an inertia activated switch, which is designed to
shut off the fuel pump in the event of a collision. Ford takes issue
with the district court about the inertia switch. It claims that the iner-
tia switch operated and that upon impact gas did not continue to flow
from the tanks until the final stages of the fire. The plaintiffs' expert
also assumed, in light of the evidence available to him at the time,
that the switch operated.

Though the inertia switch may have operated, the plaintiffs,
through the use of Ford documents and by cross-examination of
Ford's designated corporate representative, established that gasoline
siphoned from the gas tanks into the engine and passenger compart-
ments when the fuel line ruptured:

           [Plaintiff's counsel]: My question is very simple. Do
          you agree with the statement that the 1988 EFI light truck,
          including an E 150 van, with a 5.8 liter engine with plastic
          fuel lines uses an in-tank low pressure pump without check
          valves and a frame rail-mounted high pressure pump with
          forward/reverse check valve and that it does not prevent
          tank siphoning if the pressure line between the tank and
          frame-mounted pump is cut?

JA 589.

          Q. . . . So my question is, do you agree with that state-
          ment that I just read?

                     7
          [Ford witness]: I agree with that statement.

JA 590.

An engineer engaged by Ford or its counsel inspected the van after
the accident. He found that the nylon fuel lines burned while the
metal components did not, reporting his findings as follows:

          There is no evidence of collision damage to either of the
          fuel tanks or their fuel filler systems. The fire has essentially
          consumed all of the nylon fuel lines leading from the fuel
          tanks forward to the engine compartment. However, the
          metal components of the fuel system remain and are rela-
          tively undamaged and intact. The fuel injection manifold
          (rail) remains atop the engine intake manifold and in its
          proper position. There is no evidence of disruption of the
          fuel line attachments to that manifold. The high pressure
          fuel pump and filter are located in an area adjacent to the
          buckled left frame siderail. There is no evidence of collision
          trauma that disrupted the high pressure pump itself. The fuel
          filter is not currently present.

JA 808-09.

This is not the first time Ford has addressed the Econoline fuel sys-
tem. A Ford employee in 1986 commented: "Design should consider
getting rid of plastic connectors to improve overall integrity of the
system." A Ford 1987 "Concern Analysis Report: Econoline Fuel
Line Leaks" addressed problems with the fuel line leaks in the 1985-
87 E-series vans. The same plastic fuel system, consisting of plastic
fuel lines and plastic connectors, was incorporated into the 1988 E-
150 van Binakonsky drove.

The plaintiffs' expert testified that the plastic fuel connectors in the
Binakonsky van came unsnapped during the accident, either by vibra-
tion from the accident or by the movement of the various components
of the fuel system. He testified that if the fuel lines had been made
of braided stainless steel and held together with nut and feral connec-
tors, the fire would not have been fed by fuel and would have been

                     8
much more manageable. He also testified that in his opinion Ford
should not use nylon 11 or 12 within the heat distribution zone of the
engine, explaining:

          [T]he broken fuel line in the engine compartment with the
          separated connectors of the fuel line in the engine compart-
          ment go directly to the bottom of the tank where the fuel
          pump is. And it doesn't matter whether the fuel pump is run-
          ning or not, it's going to transmit fuel up to the engine com-
          partment.

JA 299.

The plaintiffs produced sufficient evidence to show a likelihood
that the fuel delivery system in the event of an accident was unreason-
ably dangerous and caused serious injury. The plaintiffs' evidence
satisfies the second Ward factor.

The third and fourth Wade factors can be considered together for
the purpose of this opinion:

(3) The availability of a substitute product which would meet the
same need and not be as unsafe.

(4) The manufacturer's ability to eliminate the unsafe character
of the product without impairing its usefulness or making it too
expensive to maintain its utility.

The engineer engaged by Ford reported on the characteristics of
both plastic and metal parts of the fuel delivery system. The fact that
metal components of the fuel delivery system were relatively undam-
aged and intact after the collision, while the plastic components suc-
cumbed to fire, gives rise to a reasonable inference that steel lines and
connectors would have been safer than plastic. Because the evidence
disclosed that other 1988 Ford trucks and cars were using steel rather
than plastic fuel lines, steel lines and connectors were available as a
suitable substitute for the plastic.

There is no question that gasoline siphoned from both tanks and
that it fueled the fire until the tanks were empty. The plaintiffs' expert

                     9
testified that a slide bar valve placed in front of the fuel tank would
stop all flow to the engine automatically within 20 to 60 seconds. He
testified that the lack of such device rendered the vehicle defective.
He advocated using the simplest slider valve available and estimated
the cost of the valve to be between $1.35 to $1.60. While claiming
that the technology behind the slider valve is not new, he only named
NASCAR vehicles and helicopters as examples of fuel systems utiliz-
ing his proposed design. Ford argues that the expert's failure to point
to other cars utilizing this slider valve rendered it impracticable. But
in addition to the expert's personal proposed alternative, plaintiffs
produced evidence to show that Ford had designed its own version of
antisiphoning check valves for some 1988 vehicles. Discovery was
incomplete at the time the district court granted summary judgment.
See Binakonsky, 929 F. Supp. at 917 n.1. Consequently, the plaintiffs
were unable to prove the relative costs of making the fuel delivery
system safer. Nevertheless, since the evidence disclosed that steel fuel
lines, steel connectors, and check valves were used in other Ford
vehicles, the plaintiffs are entitled to the reasonable inference that the
costs of making the van safer were not prohibitive.

(5) The user's ability to avoid danger by the exercise of care in
the use of the product.

This factor is phrased in terms of the user's "exercise of care"--a
contributory negligence concept, but contributory negligence is not a
defense in a strict liability action. § 402A com. n. Nevertheless, the
fifth Wade factor and the prohibition against the defense of contribu-
tory negligence can be reconciled. Section 402A com. h provides: "A
product is not in a defective condition when it is safe for normal han-
dling and consumption." Maryland has relied on comment h to fash-
ion a defense to strict liability known as "misuse" of the product. This
defense is explained in Ellsworth v. Sherne Lingerie, Inc., 303 Md.
581, 495 A.2d 348 (1985):

           We conclude, as have most courts which have considered
          the issue, that "reasonable foreseeability" is the appropriate
          test, and thus a seller is required to provide a product that
          is not unreasonably dangerous when used for a purpose and
          in a manner that is reasonably foreseeable. If a product is
          unreasonably dangerous for such use it is "defective" within

                     10
          the meaning of § 402A of the Restatement, and if that defect
          is a cause of damage the seller will be responsible. On the
          other hand, if the product is not unreasonably dangerous
          when used for a purpose and in a manner that is reasonably
          foreseeable, it simply is not defective, and the seller will not
          be liable.

           Misuse of a product may also bar recovery where the mis-
          use is the sole proximate cause of damage, or where it is the
          intervening or superseding cause.

303 Md. at 595-96, 495 A.2d at 355 (footnote omitted). Maryland's
view of foreseeability in the context of strict liability for second colli-
sion cases is set forth in Lahocki v. Contee Sand & Gravel Co., 41
Md. App. 579, 585-86, 398 A.2d 490, 496 (1979), rev'd on other
grounds, 286 Md. 714, 410 A.2d 1039 (1980):"We now must adjust
our thinking to recognize that accidents are a part of driving . . . and
foreseeability is a factual question unless the accident is so unques-
tionably `bizarre' as to be a matter over which reasonable minds
could not differ." (citation omitted).

While we recognize that at some point foreseeability is so remote
that it can be decided by a judge as a matter of law, in most cases
foreseeability is an issue left to the jury. Gill v. Hango Ship-
Owners/AB, 682 F.2d 1070, 1074 (4th Cir. 1982) (whether plaintiff's
injury was foreseeable was an issue for the jury that precluded sum-
mary judgment). See also Lust v. Clark Equip. Co., Inc., 792 F.2d
436, 439 (4th Cir. 1986) ("foreseeability of the risk of harm is ordi-
narily an issue for the jury") (citing Gardner v. Q.H.S., Inc., 448 F.2d
238, 242-43 (4th Cir. 1971)). In this respect federal law and Maryland
law do not significantly differ. In Lahocki, 41 Md. App. at 585-86,
398 A.2d at 496; Frericks v. General Motors Corp., 374 Md. 288, 336
A.2d 118 (1975); and Volkswagen, 272 Md. 201, 321 A.2d 737,
Maryland courts have held that whether an accident was so unusual
as to be unforeseeable is an issue for the jury. In none of those cases
did the court rule that the accident was so bizarre that it was unfore-
seeable as a matter of law.

We cannot say that a car crashing into a tree at as high as 47 miles
per hour is "unquestionably bizarre." The same 40-47 mile per hour

                     11
single car collision could have been produced by a myriad of other
events, such as a car veering off the road to avoid an oncoming colli-
sion, or a car losing control on a patch of ice or because of drowsi-
ness. For example, in Frericks, 274 Md. 288, 336 A.2d 118, the
plaintiff was injured when the roof of the vehicle he was in collapsed.
The roof collapsed when the car ran off the road and overturned due
to excessive speed. The Maryland Court of Appeals stated that the
accident was not so bizarre as to be unforeseeable as a matter of law.
The court also stated that General Motors could be held liable for the
"secondary impact injuries" the plaintiff sustained from the defec-
tively designed roof.

The fact that Binakonsky was drunk does not make the physical
aspects of the crash any more bizarre. In this respect, care must be
exercised not to confuse contributory negligence with misuse. On this
issue, Maryland law is clear. "The fact that a negligent driver may be
the initial cause of an accident does not abrogate the manufacturer's
duty to use reasonable care in designing an automobile to reduce the
risk of "secondary impact injuries." Frericks, 274 Md. at 302-03, 336
A.2d at 127. Frericks was decided before Maryland adopted the doc-
trine of strict liability, but its comment about a negligent driver is
applicable to the doctrine. See Restatement (Second) of Torts § 402A
com. n.

(6) The user's anticipated awareness of the dangers inherent in
the product and their avoidability, because of general public knowl-
edge of the obvious condition of the product, or of the existence of
suitable warnings or instructions.

Assumption of risk, sometimes called a form of contributory negli-
gence, is a defense to claims based on strict liability. The defense is
available against a plaintiff who unreasonably uses a product despite
a known risk of danger. Phipps, 278 Md. at 346, 363 A.2d at 960;
402A com. n. Drunk driving is an unreasonable use of a car, and it
is common knowledge that a driver who strikes a tree will cause dam-
age. For this reason, a drunk driver, such as Binakonsky, assumes the
risk of injury from the initial impact.

It is not generally known, however, that plastic lines and connec-
tors and the lack of an antisiphoning device will cause a vehicle to

                    12
burst into a devastating postcollision fire. Moreover, Ford gave no
warning about the likelihood of such a fire. For these reasons the
plaintiffs are entitled to the reasonable inference that Binakonsky did
not assume the risk of a lethal fire. To reiterate, Binakonsky assumed
the risk of injury from the initial impact. For the purpose of summary
judgment, it cannot be inferred that he assumed the risk of an alleg-
edly defective fuel delivery system.

(7) The feasibility, on the part of the manufacturer, of spreading
the loss by setting the price of the product or carrying liability
insurance.

There is no controversy about this factor.

In sum for the purpose of reviewing a summary judgment, the
plaintiffs have shown that the lack of an antisiphoning device and the
use of plastic connectors and fuel lines were unreasonably dangerous,
while steel connectors and lines remained intact. They have disclosed
that in 1988 steel components and antisiphoning devices were avail-
able and that they were used in other Ford vehicles without incurring
prohibitive costs. They have posited valid inquiries about the fore-
seeability of similar crashes from a variety of mishaps. They have
drawn a reasonable inference that the general public was not aware
of the dangers of plastic fuel lines and connectors and the absence of
an antisiphoning device. This indicates that Binakonsky did not
assume the risk of a postcollision fire. At this stage of the proceed-
ings, with respect to the fuel delivery system, the plaintiffs have intro-
duced sufficient evidence to comply with the Wade factors and to
establish that the risk of the system outweighed the utility of the vehi-
cle.

III

Having concluded that the plaintiffs have shown sufficient evi-
dence of a defect, we turn to the second and third requirements of
their case. See Jensen, 50 Md. App. at 234, 437 A.2d at 247. The sec-
ond test requires plaintiffs to show that the alleged defect is attribut-
able to the manufacturer. It is undisputed in this case that Ford
manufactured Binakonsky's E-150 van, including its fuel system
components, and placed it in the stream of commerce. The third and

                     13
final Jensen test requires the plaintiffs to show a "causal relation
between the defect and the injury." Id.

As one commentator observed, when the issue of causation is in
dispute "the primary function of the jury is the determination of ques-
tions of fact upon which reasonable persons might differ." W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 45 at 319
(5th ed. 1984). A party's evidence is sufficient to reach a jury under
federal law when a jury could reasonablely embrace that party's the-
ory of the case. Wratchford v. S. J. Groves & Sons Co., 405 F.2d
1061, 1066-67 (4th Cir. 1969). See also Mayer v. Gray Partners &
Co., Ltd., 29 F.3d 330, 334 (7th Cir. 1994) ("the federal standard [is]
whether reasonable minds could deem the evidence adequate under
the governing substantive rule"). In this case, causation is a two-step
analysis. Plaintiffs must prove that a defectively designed fuel system
caused the postcollision fire and that the fire was the cause of death.
The plaintiffs produced sufficient evidence of a defectively designed
fuel delivery system. The plaintiffs' expert testified that both fuel
tanks were empty after the crash, indicating that their contents had
been consumed by fire in the engine and passenger compartment.
Ford contends that initially the fire was fed largely by engine fluids
rather than by fuel. Whether fuel or fluids killed Binakonsky raises
a genuine issue of material fact that must be submitted to the jury.

Plaintiffs have also produced sufficient evidence to show that the
postcollision fire, not the accident itself, caused Binakonsky's death.
The postmortem report listed the cause of death as"thermal injuries,"
adding that there was no evidence of any nonthermal injuries. Dr.
Margarita Korella, the assistant medical examiner who performed the
autopsy, testified that her examination indicated no nonthermal frac-
tures to the extremities and no evidence of external bleeding. She also
testified that there was no "internal evidence of blunt force or pene-
trating injury to the thoracoabdominal area." Based upon burns found
in the larynx, she concluded that the specific thermal injury that
caused Binakonsky's death was "the inhalation of superheated hot
air."

Ford unsuccessfully argued that Daubert v. Merrill Dow Pharma-
ceuticals, 509 U.S. 579 (1993), required the district court to disregard
what it called Dr. Korella's "foundationless and preposterous opin-

                     14
ion." Daubert, however, is inapplicable because it pertains to the sci-
entific validity of an expert's methodology. Dr. Korella, however,
was a fact witness. The plaintiffs neither engaged her as an expert nor
paid her to testify. Moreover, she completed her autopsy report long
before this litigation commenced. Ford is essentially challenging the
factual observations that she drew from her examination of Binakon-
sky's body. See Freeman v. Case Corp., 118 F.3d 1011, 1016 n.6 (4th
Cir. 1997) (Daubert inapplicable to testimony based on experience
and training). Ford contends that the forces undergone by Binakonsky
as a result of the collision were the same as if he had jumped out of
a seven-story window. This is a proper issue for cross-examination at
trial, but in the summary judgment proceedings the plaintiffs are enti-
tled to the benefit of the findings set forth in the postmortem report
and the testimony of Dr. Korella.

IV

Federal law governs whether an issue should be allocated to a
judge or jury. Byrd v. Blue Ridge Rural Elec. Co-op., 356 U.S. 525,
537 (1958). See also Burcham v. J.P. Stevens & Co., 209 F.2d 35, 40
(4th Cir. 1954).

To comport with Byrd and the Seventh Amendment, we believe
that a case should be submitted to the jury when there is sufficient
evidence to support a claim that a particular product design was "un-
reasonably dangerous." In Singleton v. International Harvester Co.,
685 F.2d 112 (4th Cir. 1981), we considered a strict liability claim
arising out of accident caused by a farm tractor designed without a
Roll Over Protective Structure. After setting forth the Wade factors
pertaining to the risk/utility analysis for determining whether the
design of the tractor was defective, we stated that"the plaintiffs could
create a jury issue on liability for defective design by producing evi-
dence upon which a jury could determine the manufacturer's reason-
ableness in marketing a tractor without a [Roll Over Protection
Structure] in 1948." 685 F.2d at 115 (dictum) (insufficient evidence).

The plaintiffs have produced sufficient evidence about the fuel
delivery system to submit the issue of unreasonable dangerous design
to the jury. Other courts have stated that this issue is for the jury. See
e.g. Freeman, 118 F.3d at 1015 (by implication); Eiland v. Westing-

                     15
house Elec. Corp., 58 F.3d 176, 179-81 (5th Cir. 1995); Nettles v.
Electrolux Motor AB, 784 F.2d 1574, 1576 (11th Cir. 1986); Walker
v. Paccar, Inc., 802 F.2d 1053, 1056 (8th Cir. 1986).

In addition to the genuine issues of material fact that we have men-
tioned, the parties fundamentally differ about the use of plastic in the
fuel delivery system. Ford contends that its use is justified because it
is lighter than steel and it delivers cleaner fuel to the engine. The
plaintiffs contend that the use of plastic is more dangerous than the
use of steel and that steel is readily available without prohibitive cost.

V

We decline to review Ford's contention that foreseeability should
be governed by Federal Motor Vehicle Safety Standards. This issue
was not addressed in the district court proceedings and was not
argued in the parties' briefs. See Cades v. H & R Block, Inc., 43 F.3d
869, 876 (4th Cir. 1994).

VI

The plaintiffs also alleged that the Ford van was defectively
designed because it failed to withstand the impact of the collision
with the tree, and, consequently, the doors jammed, impairing rescue.
With respect to this aspect of the case, the district court rightly found
Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066 (4th Cir. 1974),
to be helpful in evaluating the risk-utility analysis. The plaintiffs'
expert criticized all vans of whatever make because the engine
extended into the passenger compartment. But as Dreisonstok and the
district court point out, there was no "practical way of improving the
`crashability' which would have been consistent with the peculiar
purposes of its design." Binakonsky, 929 F. Supp. at 923. Also, as we
have previously mentioned, Binakonsky assumed the risk of collision
by driving while drunk. For these reasons, the plaintiffs have failed
to satisfy the Wade factors prescribed by Maryland law with respect
to the failure of the doors to withstand the impact.

VII

The parties have also briefed at length the restrictions the district
court placed on discovery.

                     16
After reviewing their arguments, we conclude that for the purpose
of summary judgment the district court did not abuse its discretion.
Since the case must be tried, however, discovery should be reopened
and conducted in accordance with Fed. R. Civ. P. 26 and local rules.

VIII

We affirm that aspect of the summary judgment pertaining to the
impact of the collision which resulted in jamming the doors.

We reverse that aspect of the summary judgment pertaining to the
van's fuel delivery system and remand the case for trial.

Costs shall be equally divided.

AFFIRMED IN PART; REVERSED
IN PART; AND REMANDED

NIEMEYER, Circuit Judge, dissenting:

The majority opinion rules, by implication, that an automobile
manufacturer has a duty to design its automobiles to withstand risks
of injury from a head-on collision with an oak tree at a speed of 40-
47 miles per hour. Because I believe that the majority's holding in
this case imposes a duty far greater than that imposed by Maryland
law, I dissent.

In August 1992, David Binakonsky, driving his four-year old Ford
E-150 van at approximately 65 miles per hour in a 30 mile per hour
zone, missed a turn and drove through a wooded area head-on into an
oak tree, 20 inches in diameter. Binakonsky's speed at the time of the
collision was estimated by experts for both parties to have been
between 40 and 47 miles per hour. Binakonsky's blood-alcohol con-
tent at the time of the collision was between .14% and .16%, indicat-
ing that he was drunk. Moreover, Binakonsky was driving without a
license and without insurance.

The impact occurred in the center front of the van so that the sides
of the van wrapped around the tree, forming a sharp V in the center-

                    17
front bumper area. The tree penetrated the front of the vehicle two to
three feet, driving the engine rearward, seriously damaging all of the
major components of the vehicle and rupturing the fuel line. The spill-
ing gasoline caught fire, and Binakonsky was dead by the time he was
removed from the vehicle. His family contends that the fire caused his
death, while Ford contends that he was killed upon impact with the
tree.

In claiming that Ford sold a van that was defectively designed, the
Binakonsky family contends that Ford "designed, manufactured and
located the fuel injection lines, connections, and inertia fuel shut-off
switch in a negligent and defective fashion, such that their integrity
could not, and did not, survive the frontal collision." They also con-
tend that the van "was not equipped with an anti-siphoning device to
prevent fuel from flowing to the front of the vehicle in the event the
fuel lines were broken."

With the introduction of electric fuel injected engines in 1988, Ford
began using nylon instead of steel for its fuel lines. Ford states that
it selected nylon because nylon was superior to steel in delivering
cool, clean fuel under pressure to fuel injectors. Ford points out that
the van was equipped with an "inertia switch," which is a mechanical
device that acts as a fail-safe mechanism to shut off fuel flow in the
event of an impact. Ford contends that it was and remains today the
only domestic manufacturer of automobiles to incorporate this safety
device into the design of its vehicles. The Binakonsky family argues
that notwithstanding that safety feature designed to minimize the
spilling of gasoline, Ford should have installed a slider valve at the
orifice of the fuel tank to prevent gasoline from flowing out of the
tank in the event that the fuel lines were severed in a collision. They
acknowledge, however, that no passenger vehicle-- car, van, or truck
-- incorporated this feature in 1988, or at any time before or since.

The district court granted Ford summary judgment holding that

          Defendant Ford had no duty to design the fuel system of an
          E-150 van in such a way that it would withstand a high
          speed, head-on crash into a large tree brought about by an
          inebriated driver.

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929 F. Supp. 915, 924. The court explained that the fuel cut-off
switch in this particular vehicle could hardly have been expected to
operate properly in a collision of this magnitude, which imposed a
force on Binakonsky's body equivalent to his jumping out of a seven-
story window. Id. at 924 & n.9. Interpreting the duties imposed by
Maryland law, which in turn incorporates strict liability as stated in
§ 402A of the Restatement (Second) of Torts, the district court con-
cluded that as a matter of law "the design of this van was not unrea-
sonably dangerous." Id. at 925.

I do not take issue with the majority opinion's summary of Mary-
land law and the fact that Maryland has adopted Restatement (Second)
of Torts § 402A (imposing strict liability). As the majority opinion
notes, Maryland law requires that a manufacturer design products so
as not to be "unreasonably dangerous" to the consumer, and a product
is unreasonably dangerous when it is dangerous "to an extent beyond
that which would be contemplated by the ordinary consumer who pur-
chases it, with the ordinary knowledge common to the community as
to its characteristics." Phipps v. General Motors Corporation, 278
Md. 337, 344, 363 A.2d 955, 959 (1976). The majority opinion also
correctly notes that Maryland recognizes a misuse defense to strict
liability, summarized by Maryland courts as follows:

          [I]f the product is not unreasonably dangerous when used
          for a purpose and in a manner that is reasonably foreseeable,
          it simply is not defective, and the seller will not be liable.

           Misuse of a product may also bar recovery where the mis-
          use is the sole proximate cause of damage, or where it is the
          intervening or superseding cause.

Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 596, 495 A.2d 348,
355 (1985) (footnotes omitted).

Applying these principles, I agree with the district court that as a
matter of law the Ford van was not defectively designed. Ford used
the latest technology in the design of the fuel system on the van in
question, and it incorporated a safety feature that no other manufac-
turer had adopted, the inertia switch which stops the flow of electrical
power to the vehicle's fuel pump, in the event of an impact. The slide

                    19
valve that plaintiffs maintain in retrospect should have been employed
has never been incorporated into any vehicle, before or since the colli-
sion in this case. If the plaintiff's theory that strict liability requires
manufacturers to install slide valves in fuel tanks has merit, then all
vehicles on the road today are defectively designed. While collisions
are foreseeable, the law does not require a manufacturer to design a
motor vehicle to withstand any collision; there is a magnitude of colli-
sion beyond which it can no longer be said that the vehicle is being
"used for a purpose and in a manner that is reasonably foreseeable."
Ellsworth, id.

To rule that this case presents a jury question, the majority states,
"We cannot say that a car crashing into a tree at as high as 47 miles
per hour is `unquestionably bizarre.'" Slip op. at 11. This, I respect-
fully submit, misses the issue. The question is not whether an accident
is so bizarre as not to be foreseeable, but whether the risk of injury
or death is reasonably foreseeable if a design feature is not adopted.
Applied to this case, the question is whether it was foreseeable that
a slide valve, which has never been used in any motor vehicle, could
reasonably have prevented Binakonsky's death. I submit that as a
matter of law we must say that this goes beyond foreseeability and
into rank speculation. In order to anticipate that such a valve would
reasonably have participated in Binakonsky's death, Ford would have
had to assume:

          1. That Binakonsky could survive a head-on crash with a
          tree at 47 miles per hour;

          2. That the gas tank would survive such a crash and retain
          the gasoline in it;

          3. That the slide valve would survive sufficiently intact as
          to contain the gasoline;

          4. That the fuel pump would not shut off; and

          5. That a fire from some other source or that some other
          post-collision condition would not have killed Binakon-
          sky.

                     20
In speculating about such remote possibilities, and others, we would
then have to decide whether such a duty applies if the vehicle were
driven into a tree, say, at 65 miles per hour, or 85 miles per hour.
There must be a legally established limit to a manufacturer's duty. I
believe that that limit should be set at a speed where the risk of death
can meaningfully be addressed by the design feature at issue.

I find it difficult to conclude that we must assume, in imposing
duties of design, that any human-being will survive the impact of a
fall from a seven-story window -- the force that Binakonsky was
exposed to in this case. If we cannot reasonably foresee that Binakon-
sky would, except in freakish circumstances, have survived such an
impact, we certainly cannot impose a duty on a manufacturer to
design a vehicle to prevent post-collision injury from a cause other
than the collision itself.

I believe that the holding made by the majority applies a clinical
rule in a formulaic way, without considering the common sense fac-
tors that must come into play. Rules developed in this manner are
antagonistic to the law's role in preserving the manufacturer's duty to
produce practicable and desirable safety devices without destroying
their ability to continue to develop consumer products. No product
can withstand the scrutiny of an absolute safety standard. Yet, that is
the direction in which the majority opinion unfortunately is headed.

For these reasons, I would affirm the judgment of the district court.

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