                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 05a0274n.06
                               Filed: April 12, 2005

                                                No. 04-3130

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


RONALD L. GIST, Administrator of the                   )
Estate of Ryan M. Gist, Deceased,                      )
                                                       )
         Plaintiff-Appellant,                          )
                                                       )    ON APPEAL FROM THE UNITED
v.                                                     )    STATES DISTRICT COURT FOR THE
                                                       )    SOUTHERN DISTRICT OF OHIO
GENERAL MOTORS CORPORATION,                            )
                                                       )
         Defendant-Appellee.




         Before: BATCHELDER and DAUGHTREY, Circuit Judges, and O’KELLEY,* District
Judge.


         PER CURIAM. The plaintiff, Ronald Gist, appeals the district court’s order granting

summary judgment to the defendant, General Motors Corporation, in this diversity action

filed by Gist after his son Ryan’s tragic death, which was caused by a fire that began in a

car manufactured by General Motors. Gist originally raised several claims regarding his

son’s wrongful death, but he ultimately pursued only the claim based on strict liability under

OHIO REVISED CODE ANNOTATED § 2307.75, alleging that a design defect in the engine of

the 1986 Fiero caused the fire that occurred in November 1996.




         *
        The Hon. William C. O’Kelley, United States District Judge for the Northern District of Georgia, sitting
by designation.
       The district court noted that under Ohio law, the plaintiff in a product liability case

must allege and prove by a preponderance of the evidence that “(1) there was, in fact, a

defect in the product manufactured and sold by the defendant; (2) such 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 & Casualty Co. v.

Chrysler Corp., 523 N.E.2d 489, 493 (Ohio1988). The district court ultimately held that the

plaintiff “failed to produce evidence that w[ould] permit a jury to go beyond speculation that

a defect did exist at the time the Fiero [driven by the plaintiff’s son] left GM’s control” and,

having found the lack of a prima facie case on the first two prongs of the test, declined to

make a finding on the third and last prong, causation.


       On appeal, the plaintiff challenges the district court’s determination, citing evidence

that there was a national recall campaign in 1992 to correct a problem involving the

proximity of the Fiero’s engine, located in the rear of the vehicle, to the exhaust manifold.

This design apparently caused overheating and created a propensity for non-collision

engine fires. The parties concede that the Gist Fiero was subject to the 1992 GM recall,

a fact that would support an inference that a design defect existed when the product left the

control of the manufacturer and continued to exist absent a substantial change in the

condition in which the product was sold. See id. at 495. Here, there was proof of a

substantial change in condition because records provided by GM indicated that the Gist

vehicle had been serviced as part of the recall campaign, apparently before the car was

sold to Ryan Gist.


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       The plaintiff nevertheless insists that testimony from his expert established that any

corrective action taken as a consequence of the recall was insufficient to cure the defect

and that the Fiero retained a propensity to catch fire from overheating in the engine. But,

assuming arguendo that there remained a problem with the Fiero’s design, the record

before us is devoid of evidence that the fire that led to Ryan Gist’s death was caused by

the alleged defect. Without restating the evidentiary findings of the district court, we note

that it was no more likely that a defect caused the fire than that it was caused by Ryan

Gist’s misuse of the vehicle at the time of the fire. Even the plaintiff’s expert thought it

“possible” that misuse led to the fire, and he ultimately testified that he could not say with

a reasonable degree of certainty that a defect caused the fire. Although the district court

did not make a ruling on the issue of causation, our review of the record convinces us that

there was insufficient evidence of causation to establish a prima facie case of strict liability

in this case.


       The district court also held that because the plaintiff had failed to comply with

subsection (F) of § 2307.75, his claim of strict liability based on defective design failed as

a matter of law. That subsection requires proof that “at the time the product left the control

of its manufacturer, a practical and technically feasible alternative design or formulation

was not available that would have prevented the harm for which the claimant seeks to

recover compensatory damages without substantially impairing the usefulness or intended

purpose of the product . . . .” The district court took note of the plaintiff’s argument that the

Ohio Supreme Court has not yet interpreted the statute to determine who has the burden


                                              -3-
to establish the unavailability of a feasible alternative design, but the court also noted that

the Sixth Circuit has held that the burden is on the plaintiff. See Jacobs v. E.I. duPont

deNemours & Co., 67 F.3d 1219, 1242 (6th Cir. 1995). Even more significant, in our

judgment, is the fact that the applicable Ohio civil jury instructions also place the burden

on the plaintiff to prove the existence of a feasible alternative design under § 2307.75. See

Ohio Jury Instructions – Civil 351.09. In a comment to that instruction, the Jury Instructions

Committee noted the statute’s lack of an explicit allocation and opted to allocate the burden

in conformity with the Restatement (Second) of Torts. We conclude that the district court’s

ruling on this basis for granting summary judgment to the defendant was not in error.


       For these reasons, we AFFIRM the judgment of the district court.




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