

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

No. 97-1792

                     GENEROSO PEREZ-TRUJILLO,

                      Plaintiff, Appellant,

                                v.

                 VOLVO CAR CORPORATION (SWEDEN),

                       Defendant, Appellee.

                                                                                                

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Jos  Antonio Fust , U.S. District Judge]                                                                 

                                                                                                

                              Before

                      Lynch, Circuit Judge,                                                    

                    Cyr, Senior Circuit Judge,                                                       

                 and DiClerico*, District Judge.                                                         

                                                                                                

   Eduardo M. Joglar, with whom Esther Cresp n Credi and Law Offices                                                                              
of Eduardo M. Joglar were on brief for appellant.                            
   Carlos  A. Steffens,  with whom  Manuel A.  Guzm n and  Manuel A.                                                                              
Guzm n Law offices were on brief for appellee.                          

                                                                                                

                           March 5,1998
                                                                                                

                                              

     *Of the District of New Hampshire, sitting by designation.

          CYR,  Senior Circuit  Judge. Plaintiff  Generoso Perez-                    CYR,  Senior Circuit  Judge.                                                

Trujillo  [ Perez ] challenges  a district  court order  awarding

summary  judgment to  defendant  Volvo  Car Corporation  (Sweden)

[ Volvo ]  in this strict  product liability action.   We reverse

and remand for further proceedings.

                                I                                          I

                           BACKGROUND1                                     BACKGROUND                                               

          On  August 10,  1993, Perez  was operating  a new  1993                    On  August 10,  1993, Perez  was operating  a new  1993

Volvo 940  GL381 along  a  smooth, straight  roadway in  Bayamon,          Volvo 940  GL381 along  a  smooth, straight  roadway in  Bayamon,

Puerto Rico,  when the air  bag on the driver s  side prematurely          Puerto Rico,  when the air  bag on the driver s  side prematurely

deployed,  causing him to lose consciousness  and collide with an          deployed,  causing him to lose consciousness  and collide with an

oncoming vehicle driven by Alexis Pagan Marrero [ Pagan ].  Perez          oncoming vehicle driven by Alexis Pagan Marrero [ Pagan ].  Perez

sustained a permanent cervical disc herniation.          sustained a permanent cervical disc herniation.

          Just before  the collision,  Pagan had  seen the  Perez                    Just before  the collision,  Pagan had  seen the  Perez

vehicle "zigzagging" and  observed a "big  [air] bag" and  "white          vehicle "zigzagging" and  observed a "big  [air] bag" and  "white

smoke" in the driver's compartment.   After the accident, the air          smoke" in the driver's compartment.   After the accident, the air

bag sensor, which monitors the  rate of vehicle deceleration, was          bag sensor, which monitors the  rate of vehicle deceleration, was

sent to Volvo for testing.2          sent to Volvo for testing.

          The air bag  is designed to inflate  and deflate within                    The air bag  is designed to inflate  and deflate within

one-fifth of  a second, an  event undetectable by the  human eye.          one-fifth of  a second, an  event undetectable by the  human eye.

During deployment, the  diagnostic unit in the sensor records the          During deployment, the  diagnostic unit in the sensor records the
                                                  

     We relate  the background facts in the  light most favorable
to Perez, the nonmoving  party.  See Acosta-Orozco v.  Rodriguez-                                                                           
de-Rivera, 132 F.3d 97, 98 (1st Cir. 1997).                   

     2Should  it detect  a rate  of  frontal deceleration  beyond
preset tolerances     the   deployment threshold      the  sensor
transmits an electrical  signal to the ignitor located within the
air bag inflator, causing an ignition which instantaneously fills
the air bag with nitrogen gas.

                                2

actual  vehicle  deceleration  rate, the  status  of  the battery          actual  vehicle  deceleration  rate, the  status  of  the battery

powering the air bag, and any fault codes.  Following deployment,          powering the air bag, and any fault codes.  Following deployment,

the electrical circuits in the  sensor burn out and cannot record          the electrical circuits in the  sensor burn out and cannot record

further data.          further data.

          The air bag deployment analysis report  [ ADAR ] subse-                    The air bag deployment analysis report  [ ADAR ] subse-

quently issued by Volvo reflected that the sensor had recorded  a          quently issued by Volvo reflected that the sensor had recorded  a

[ low violence ]  crash,  normal  battery status,  with no  fault          [ low violence ]  crash,  normal  battery status,  with no  fault

codes  indicating abnormal  functioning.   Based  on these  data,          codes  indicating abnormal  functioning.   Based  on these  data,

Bengt Schultz,  a qualified  air  bag expert  employed by  Volvo,          Bengt Schultz,  a qualified  air  bag expert  employed by  Volvo,

concluded that the air bag  must have deployed after, rather than          concluded that the air bag  must have deployed after, rather than

before, the collision.          before, the collision.

          Perez  brought suit against  Volvo in  federal district                    Perez  brought suit against  Volvo in  federal district

court,  asserting a strict  product liability claim  based on the          court,  asserting a strict  product liability claim  based on the

theory that  the Perez injury  was proximately caused by  the air          theory that  the Perez injury  was proximately caused by  the air

bag  system, which  had been  defective  when it  left the  Volvo          bag  system, which  had been  defective  when it  left the  Volvo

factory.   Volvo moved for  summary judgment, in reliance  on the          factory.   Volvo moved for  summary judgment, in reliance  on the

ADAR and the expert testimony presented by its employee, Schultz.          ADAR and the expert testimony presented by its employee, Schultz.

Perez  responded  with (1)  eyewitness deposition  testimony from          Perez  responded  with (1)  eyewitness deposition  testimony from

Pagan; (2) an affidavit from Luis Diaz Gandia, a putative air bag          Pagan; (2) an affidavit from Luis Diaz Gandia, a putative air bag

expert;3 and  (3) the written  responses Volvo  provided in  July          expert;  and  (3) the written  responses Volvo  provided in  July

1994  to  a   National  Highway  Traffic   Safety  Administration          1994  to  a   National  Highway  Traffic   Safety  Administration

[ NHTSA ]  investigation, in which  Volvo could not  explain what          [ NHTSA ]  investigation, in which  Volvo could not  explain what

caused  several so-called  "inadvertent [Volvo  air bag]  deploy-          caused  several so-called  "inadvertent [Volvo  air bag]  deploy-
                                                  

     Diaz, a professor  of electrical engineering,  attested that
insurance  industry studies  have  indicated that  non-collision,
inadvertent air  bag deployments  occur in about  6 out  of every
75,000 deployments, and that an  air bag sensor s performance may
be diminished by adverse external factors such as humidity.

                                3

ments" reported to the NHTSA.          ments" reported to the NHTSA.

          The district court ultimately awarded summary  judgment                    The district court ultimately awarded summary  judgment

to Volvo, for  the following reasons.4  First,  the court consid-          to Volvo, for  the following reasons.   First,  the court consid-

ered intrinsically incredible the Pagan eyewitness testimony that          ered intrinsically incredible the Pagan eyewitness testimony that

the air bag had inflated  and  stayed inflated,  given the uncon-          the air bag had inflated  and  stayed inflated,  given the uncon-

troverted expert testimony that air bags  inflate and deflate too          troverted expert testimony that air bags  inflate and deflate too

rapidly for the  human eye to detect.   Second, the ADAR  and the          rapidly for the  human eye to detect.   Second, the ADAR  and the

expert  testimony  from  Schultz conclusively  refuted  the Pagan          expert  testimony  from  Schultz conclusively  refuted  the Pagan

eyewitness  testimony, since  the  sensor  is  designed  to  stop          eyewitness  testimony, since  the  sensor  is  designed  to  stop

recording data once  the air bag deploys, and  therefore a prema-          recording data once  the air bag deploys, and  therefore a prema-

ture deployment would have disabled the sensor from recording the          ture deployment would have disabled the sensor from recording the

subsequent collision.   Finally,  the district  court noted  that          subsequent collision.   Finally,  the district  court noted  that

Perez presented  no competent  scientific  information  to demon-          Perez presented  no competent  scientific  information  to demon-

strate that  the air  bag had   functioned  differently from  any          strate that  the air  bag had   functioned  differently from  any

other  produced  by  Volvo in  that  year,   nor any   scientific          other  produced  by  Volvo in  that  year,   nor any   scientific

explanation  how the  air bag  in  question malfunctioned  or was          explanation  how the  air bag  in  question malfunctioned  or was

poorly designed.    Thereafter, the  court denied the  motion for          poorly designed.    Thereafter, the  court denied the  motion for

reconsideration submitted by Perez.  See Fed. R. Civ. P. 59(e).          reconsideration submitted by Perez.  See Fed. R. Civ. P. 59(e).                                                  

                                II                                          II

                            DISCUSSION                                      DISCUSSION                                                

          We  review the summary judgment ruling de novo, viewing                                                                  
                                                  

     Although  the district  court  had  noted  its  own  serious
reservations regarding the admissibility  of the proffered expert
testimony from Diaz and the NHTSA investigative report, see infra                                                                           
note 7, its dismissal order was not predicated on any evidentiary
exclusion.  Instead, the court simply discounted the weight to be                                                                     
accorded the  proffered expert  testimony from Diaz.   The  court
opined that Diaz  had  provided [only] a scientific veneer, based
on no  testing or  studies.    See infra  at  p. 10  (referencing                                                  
Daubert).                 

                                4

all  disputed facts and reasonable inferences favorably to Perez,

the nonmoving  party.  See Acosta-Orozco  v. Rodriguez-de-Rivera,                                                                          

132 F.3d 97,  98 (1st Cir.  1997).  The  summary judgment  ruling

cannot stand unless  Perez failed to adduce  sufficient competent

evidence  to generate  a  trialworthy issue  as  to some  element

essential to his case.   See FDIC v. Elder Care  Servs., Inc., 82                                                                       

F.3d 524, 526  (1st Cir. 1996) (citing Celotex  Corp. v. Catrett,                                                                          

477 U.S. 317, 322-23 (1986)).

          Under  Puerto Rico law, Perez must prove four essential

elements; viz. (1) the Volvo air bag had a  manufacturing defect                         

of  which Perez  was  unaware, (2)  the defect  made the  air bag

system  unsafe, 5 (3) the  usage to which the air bag  was put by                            (3) the  usage to which the air bag  was put by

Perez  was reasonably foreseeable  by Volvo,  and (4)  the defect          Perez  was reasonably foreseeable  by Volvo,  and (4)  the defect

proximately  caused  injury  to Perez.    See  Rivera  Santana v.          proximately  caused  injury  to Perez.    See  Rivera  Santana v.                                                                        

Superior Packaging Inc., No. 89-593,  1992 WL 754830, at *4 (P.R.          Superior Packaging Inc., No. 89-593,  1992 WL 754830, at *4 (P.R.                                 

Dec. 9, 1992); see also Malave-Felix v. Volvo Car Corp., 946 F.2d          Dec. 9, 1992); see also Malave-Felix v. Volvo Car Corp., 946 F.2d                                                                 

967, 971 (1st Cir. 1991).  Given satisfactory proof of these four          967, 971 (1st Cir. 1991).  Given satisfactory proof of these four

essential elements Volvo would be strictly liable even though the          essential elements Volvo would be strictly liable even though the

air  bag was  manufactured with  reasonable  care and  regardless          air  bag was  manufactured with  reasonable  care and  regardless

whether Perez owned the Volvo.  See Restatement (Second) of Torts          whether Perez owned the Volvo.  See Restatement (Second) of Torts                                             

  402A.  Only the first and second elements are at issue here.            402A.  Only the first and second elements are at issue here.
                                                  

     The Puerto Rico  courts generally embrace the  principles of
strict product  liability prescribed in the  Restatement (Second)
of Torts   402A.  See Malave-Felix v. Volvo  Car Corp., 946  F.2d                                                                
967, 971 (1st  Cir. 1991) (citing  Mendoza v. Cerveceria  Corona,                                                                           
Inc., 97 P.R.R. 487, 495-96 (1969)).  The   unsafeness  criterion              
is  the single significant  departure, as it  further relaxes the
claimant s burden,  under the  Restatement, of  proving that  the
defective  product was "unreasonably dangerous."  See id. (citing                                                                   
Montero Saldana v. American Motors Corp., 107 D.P.R. 452 (1978)).                                                  

                                5

          As  to the first  element, a  manufacturing  defect  is                    As  to the first  element, a  manufacturing  defect  is

present  if the product  differs from the manufacturer s intended          present  if the product  differs from the manufacturer s intended

result  or  from other  ostensibly  identical units  of  the same          result  or  from other  ostensibly  identical units  of  the same

product line.   Rivera Santana, No. 89-593, 1992 WL 754830, at *5          product line.   Rivera Santana, No. 89-593, 1992 WL 754830, at *5                                        

n.7.   Volvo  does not deny  that competent  proof of an  air bag          n.7.   Volvo  does not deny  that competent  proof of an  air bag

deployment  prior  to  a frontal  collision  would  establish the          deployment  prior  to  a frontal  collision  would  establish the                           

requisite  unsafe defect.    Volvo  insists,  however,  that  the          requisite  unsafe defect.    Volvo  insists,  however,  that  the

district court  correctly dismissed, as incredible, the proffered          district court  correctly dismissed, as incredible, the proffered

testimony  that Pagan  saw the  air bag   inflated,  since  it is          testimony  that Pagan  saw the  air bag   inflated,  since  it is

undisputed  that the  human eye  cannot  perceive the  inflation-          undisputed  that the  human eye  cannot  perceive the  inflation-

deflation event.  Since we cannot agree with the district court s          deflation event.  Since we cannot agree with the district court s

characterization of the  Pagan testimony, we are unable to accept          characterization of the  Pagan testimony, we are unable to accept

its conclusion.          its conclusion.

          In  so  construing the  Pagan  eyewitness account,  the                    In  so  construing the  Pagan  eyewitness account,  the

district court  failed to  treat the evidence  in the  light most          district court  failed to  treat the evidence  in the  light most

favorable  to Perez, the nonmoving party.  See Acosta-Orozco, 132          favorable  to Perez, the nonmoving party.  See Acosta-Orozco, 132                                                                      

F.3d at 98.   Pagan did not  unambiguously attest either that  he          F.3d at 98.   Pagan did not  unambiguously attest either that  he

saw the  air bag  inflate or  while inflated,  much less that  it          saw the  air bag  inflate or  while inflated,  much less that  it

 stayed inflated.   Rather, Pagan  simply stated that just before           stayed inflated.   Rather, Pagan  simply stated that just before

the collision  he observed that   this [i.e., the Perez  car] has          the collision  he observed that   this [i.e., the Perez  car] has                                                      

the air bag open. . . . 6  Thus, even assuming an air bag deploy-          the air bag open. . . .    Thus, even assuming an air bag deploy-                                                                           
                                                  

     The record  contains a single page of  the Pagan deposition,
which Volvo did not choose to supplement:

          Q:   Okay.  When you see Mr. Perez before the
               accident,  eh   what  was he doing?   If
               you had the opportunity to see him.
          A:   No.  No I don t see him.
          Q:   Okay.     But  you   did  see   the
               automobile    as   it    approached

                                6

ment cannot  be detected by  the human eye, fairly  construed the          ment cannot  be detected by  the human eye, fairly  construed the              

Pagan eyewitness  account  indicates  that  he saw  the  air  bag          Pagan eyewitness  account  indicates  that  he saw  the  air  bag

 fully  deployed    that is, after it had inflated and deflated.           fully  deployed    that is, after it had inflated and deflated.                                                                         

          Further,  Pagan  attested  that he  did  not   see  the                    Further,  Pagan  attested  that he  did  not   see  the

driver of the  Volvo, but never intimated that it was the air bag          driver of the  Volvo, but never intimated that it was the air bag

( fully  inflated or otherwise)  that obstructed his view  of the          ( fully  inflated or otherwise)  that obstructed his view  of the

driver.  Whether this  was because Perez was no longer upright in          driver.  Whether this  was because Perez was no longer upright in

the  driver s seat after  having been knocked  unconscious during          the  driver s seat after  having been knocked  unconscious during

the air bag  deployment, or because, as Pagan  also attested, the          the air bag  deployment, or because, as Pagan  also attested, the

Volvo  was already   zigzagging  (i.e.,  Perez  had already  lost          Volvo  was already   zigzagging  (i.e.,  Perez  had already  lost                                                

control),  were   material   matters   which   required   further          control),  were   material   matters   which   required   further

factfinding.   Moreover, Perez  also represented  that two  other          factfinding.   Moreover, Perez  also represented  that two  other

eyewitnesses,  riding  with   Pagan,  would  corroborate  Pagan s          eyewitnesses,  riding  with   Pagan,  would  corroborate  Pagan s

observations at trial.          observations at trial.

                                                  

               zigzagging?
          A:   Yes.
          Q:   Do  you  know  why  the  automobile  was
               zigzagging?  If you know.
          A:   Repeat the question, please.
          Q:   Do  you know  the reason  for  which the
               automobile was zigzagging?  If you know.
               For example: did it have something stuck
               in the axle  of whatever?  Or  don t you
               know?
          A:   Yes.  The air bag.
          Q:   The air bag?
          A:   Yes.  I  see a   the big  bag and I
               see white smoke inside the car.   I
               see that  is the  problem, I    the
               first  thing I say is   in my mind,
               well, listen,  this    has the  air
               bag open, that is  
          Q:   Okay.  That is, that  when   before
               the accident, or  was it after  the
               accident that you saw the air bag?
          A:   No, before, before.

                                7

          For  its  part,  Volvo presented  no  evidence  that an                    For  its  part,  Volvo presented  no  evidence  that an

oncoming  driver could  not  see an   open   (i.e., deployed  and          oncoming  driver could  not  see an   open   (i.e., deployed  and                                                            

deflated) air bag  in these circumstances.  Nor  did Volvo under-          deflated) air bag  in these circumstances.  Nor  did Volvo under-

mine the  probativeness of  the deposition  testimony that  Pagan          mine the  probativeness of  the deposition  testimony that  Pagan

simultaneously observed   white  smoke inside  the [Perez]  car,           simultaneously observed   white  smoke inside  the [Perez]  car, 

presumably  a  reference to  the  release of  white  powder which          presumably  a  reference to  the  release of  white  powder which

normally accompanies an air bag  deployment.  In our view, there-          normally accompanies an air bag  deployment.  In our view, there-

fore, the eyewitness testimony from  Pagan could not be dismissed          fore, the eyewitness testimony from  Pagan could not be dismissed

as  incredible  without resorting  to  impermissible factfinding.          as  incredible  without resorting  to  impermissible factfinding.

See Abraham v.  Nagle, 116 F.3d 11,  15 (1st Cir. 1997)  ( It was          See Abraham v.  Nagle, 116 F.3d 11,  15 (1st Cir. 1997)  ( It was                               

not, of course, [permissible] . . . to resolve credibility issues          not, of course, [permissible] . . . to resolve credibility issues

on summary judgment. ).          on summary judgment. ).

          Next, Volvo suggests that it proffered other  competent                    Next, Volvo suggests that it proffered other  competent

evidence    the ADAR and  the expert testimony from its employee,          evidence    the ADAR and  the expert testimony from its employee,

Schultz    which  was so conclusive  that no rational  factfinder          Schultz    which  was so conclusive  that no rational  factfinder

could  credit the  eyewitness  deposition  testimony from  Pagan.          could  credit the  eyewitness  deposition  testimony from  Pagan.

Volvo  emphasizes, in particular, that the electrical circuits in          Volvo  emphasizes, in particular, that the electrical circuits in

the air bag sensor burn out as soon as the bag deploys, rendering          the air bag sensor burn out as soon as the bag deploys, rendering

the  sensor incapable  of  recording  further  impact  data,  and          the  sensor incapable  of  recording  further  impact  data,  and

therefore that the sensor could not have recorded the Perez-Pagan          therefore that the sensor could not have recorded the Perez-Pagan

 crash  had the bag deployed prematurely.              crash  had the bag deployed prematurely.   

          Nevertheless,  the Volvo  proffer did  not  rule out  a                    Nevertheless,  the Volvo  proffer did  not  rule out  a

reasonable  inference that      for  whatever  reason,  known  or          reasonable  inference that      for  whatever  reason,  known  or

unknown     the  sensor may  have  received or  recorded a  false          unknown     the  sensor may  have  received or  recorded a  false

deceleration or impact  reading, mistaken  normal driving  condi-          deceleration or impact  reading, mistaken  normal driving  condi-

tions for  a collision,  and falsely stored  that nonevent  as  a          tions for  a collision,  and falsely stored  that nonevent  as  a

                                8

[ low violence ]  crash.   Of  course, Schultz did  state, though          [ low violence ]  crash.   Of  course, Schultz did  state, though

without any factual predicate or explanation, that  [a]n  air bag          without any factual predicate or explanation, that  [a]n  air bag

sensor, even if  defective, cannot, and will not, record informa-          sensor, even if  defective, cannot, and will not, record informa-

tion of an accident that did not occur.           tion of an accident that did not occur. 

          We find particularly troubling Volvo s counterintuitive

assumption that  an electrical component  cannot malfunction  and                                                          

that its  unfailing performance  can be  predicted with  absolute

certainty in any  and all circumstances.  True,  Volvo was unable

to induce another false reading from this sensor, but the ADAR in

no  way suggests  that  Volvo attempted  to  replicate the  exact

external conditions  to which the  sensor had  been subjected  in                                                                           

situ on  August 10, 1993.  Cf. Bogosian v. Mercedes-Benz of N.A.,                                                                           

Inc.,  104 F.3d  472, 480  (1st Cir.  1997) ( Where,  as here,  a              

conclusion that  a product was  defective derives from a  test or

examination of it, there must be sufficient evidence to support a

finding  that the product was in substantially the same condition

   in relevant respects     when tested as it was at  the time of

the accident.   The absence of such a  showing renders irrelevant

any testimony based on the test or examination. ).

          Further, Volvo s  sweeping  assumption  was  placed  in

serious question by Perez.  In  its July 1994 written response to

the NHTSA investigation of inadvertent air bag deployments, Volvo

acknowledged  that  external  conditions,  such  as  exposure  to

humidity, might affect the performance of its air bag system, and

that in  some cases   Volvo cannot reasonably  determine why  the

                                9

[alleged premature] deployment occurred. 7  See Abraham, 116 F.3d                                                      See Abraham, 116 F.3d                                                                 

at  15 (witness credibility  normally a matter  for factfinding);          at  15 (witness credibility  normally a matter  for factfinding);

see also Den Norske Bank AS v. First Nat l. Bank, 75  F.3d 49, 58          see also Den Norske Bank AS v. First Nat l. Bank, 75  F.3d 49, 58                                                          

(1st Cir. 1996).  Thus, we  cannot accept the contention that  no          (1st Cir. 1996).  Thus, we  cannot accept the contention that  no

rational factfinder  could do other than reject the Pagan eyewit-          rational factfinder  could do other than reject the Pagan eyewit-

ness testimony in light of the Volvo proffer.          ness testimony in light of the Volvo proffer.

          Lastly,  Volvo insists that a strict liability claimant                    Lastly,  Volvo insists that a strict liability claimant

cannot establish an unsafe defect  in a product without expert or          cannot establish an unsafe defect  in a product without expert or

scientific evidence.   Since it does not affect  our decision, we          scientific evidence.   Since it does not affect  our decision, we

accept  arguendo Volvo s  contention  that  the expert  testimony          accept  arguendo Volvo s  contention  that  the expert  testimony                          
                                                  

     We  cite the NHTSA  report only to  demonstrate that Volvo s
written responses to the NHTSA generate a trialworthy credibility
issue in that they tend to refute Schultz s expert testimony that
Volvo sensor readings are infallible.   Since the 600-page  NHTSA
report was  on microfilm, Perez proffered only  a few transcribed
pages,  but made  clear  his willingness  to  produce the  entire
report  to  the  district  court on  request.    However,  before
dismissing  the case,  the  district  court  instead  decided  to
reserve  for trial any  question concerning the  admissibility of
the  report on  the  defect  issue.   See  supra note 4.   As the                                                          
proponent of  the report, of  course, Perez will need  to satisfy
the district  court on  remand  that  the reports  of inadvertent
deployments   received  from  consumers  by  the  NHTSA  are  not
inadmissible hearsay.  See, e.g., Fed. R. Evid. 803(8)(A) (public                                          
agency statements  "in any form" setting forth "the activities of
the  office or  agency"  are  not hearsay).    Without regard  to
whether the  entire NHTSA  report is  admissible, however,  there
presently appears  no reason to  believe at the  summary judgment
stage   that  the   responses  Volvo   provided   in  the   NHTSA
investigation    relied  upon here    could not  be introduced as
admissions of a party-opponent.  See Fed. R. Evid. 801(d)(2).                                              
     Furthermore,  Perez  claims  that  the  NHTSA  investigation
involved 1993 Volvo 900 models like the one Perez was driving  on
August 10, 1993, yet his abbreviated proffer dealt only with 1991
models.    Since   [t]he  reports of  other  incidents  would  be
probative evidence  of the existence of  a [] defect only  if the
incidents occurred  under circumstances substantially  similar to
those surrounding [plaintiff s]  accident,  Cameron v. Otto  Bock                                                                           
Orthopedic Indus., Inc., 43 F.3d 14, 16 (1st Cir. 1994), it would                                 
remain for Perez  to lay a proper evidentiary  foundation for the
latter evidence.

                                10

proffered by Perez would be inadmissible under Daubert v. Merrell          proffered by Perez would be inadmissible under Daubert v. Merrell                                                                           

Dow Pharmaceuticals, Inc.,  509 U.S. 579 (1993).   See supra note          Dow Pharmaceuticals, Inc.,  509 U.S. 579 (1993).   See supra note                                                                      

4.          4.

          The  Supreme Court of  Puerto Rico  has yet  to address                    The  Supreme Court of  Puerto Rico  has yet  to address

this precise  issue.   Thus,  we look  to  analogous  state court          this precise  issue.   Thus,  we look  to  analogous  state court

decisions, persuasive  adjudications by courts  of [the]  states,          decisions, persuasive  adjudications by courts  of [the]  states,

learned treatises, and public policy considerations identified in          learned treatises, and public policy considerations identified in

state decisional law  in order  to make an  informed prophecy  of          state decisional law  in order  to make an  informed prophecy  of

how the [Puerto Rico Supreme Court] would rule.   Rodriguez-Suris          how the [Puerto Rico Supreme Court] would rule.   Rodriguez-Suris                                                                           

v. Montesinos, 123 F.3d 10, 13 (1st Cir. 1997).          v. Montesinos, 123 F.3d 10, 13 (1st Cir. 1997).                       

          Puerto Rico consistently has looked  to the Restatement                    Puerto Rico consistently has looked  to the Restatement

(Second) of Torts   402A in defining its strict product liability          (Second) of Torts   402A in defining its strict product liability

doctrine.  See  Malave-Felix,  946  F.2d at  971;  supra  note 5.          doctrine.  See  Malave-Felix,  946  F.2d at  971;  supra  note 5.                                                                  

Accordingly, asked  to predict Puerto Rico law, we have consulted          Accordingly, asked  to predict Puerto Rico law, we have consulted

the pertinent  case law  available in  other jurisdictions  which          the pertinent  case law  available in  other jurisdictions  which

likewise embrace the Restatement model.8  Our task in the present          likewise embrace the Restatement model.   Our task in the present

context is straightforward.          context is straightforward.

          Jurisdictions which  model their  decisional law  along                    Jurisdictions which  model their  decisional law  along

Restatement lines uniformly hold that a strict liability claimant          Restatement lines uniformly hold that a strict liability claimant                                     

may  demonstrate  an  unsafe  defect  through  direct  eyewitness          may  demonstrate  an  unsafe  defect  through  direct  eyewitness

observation of a  product malfunction, and need not adduce expert          observation of a  product malfunction, and need not adduce expert

testimony to overcome a motion  for summary judgment.  See, e.g.,          testimony to overcome a motion  for summary judgment.  See, e.g.,                                                                          
                                                  

     See,  e.g., Benitez-Allende v. Alcan Aluminio do Brasil, 857                                                                      
F.2d 26, 34 (1st Cir. 1988)  (predicting Puerto Rico law in light
of fact  that   Puerto  Rico  .  . .  has  chosen  to  adopt  the
principles of strict  liability laid out in  Restatement (Second)
of  Torts   402A (1965) ); Guevara v. Dorsey Labs., 845 F.2d 364,                                                            
365 (1st Cir.  1988) (same); McPhail v.  Municipality of Culebra,                                                                          
598 F.2d 603, 605 (1st Cir. 1979) (same).

                                11

Collazo-Santiago v.  Toyota Motor  Corp., 937  F. Supp.  134, 139          Collazo-Santiago v.  Toyota Motor  Corp., 937  F. Supp.  134, 139                                                  

(D.P.R. 1996)  (predicting that  Puerto Rico  courts would  adopt          (D.P.R. 1996)  (predicting that  Puerto Rico  courts would  adopt

California law,  where it is well settled  that  a plaintiff in a          California law,  where it is well settled  that  a plaintiff in a

products liability action is entitled to present her case without          products liability action is entitled to present her case without

relying on the testimony of  an expert witness ).9    Although it          relying on the testimony of  an expert witness ).     Although it

is helpful for a plaintiff to have direct evidence of the  defec-          is helpful for a plaintiff to have direct evidence of the  defec-

tive condition  which caused  the injury or  expert testimony  to          tive condition  which caused  the injury or  expert testimony  to

point to that specific defect,  such evidence is not essential in          point to that specific defect,  such evidence is not essential in

a  strict liability  case based  on    402A  [of the  Restatement          a  strict liability  case based  on    402A  [of the  Restatement

(Second)  of Torts], " and direct observation of " [t]he malfunc-          (Second)  of Torts], " and direct observation of " [t]he malfunc-

tion  itself is  circumstantial evidence  of  a defective  condi-          tion  itself is  circumstantial evidence  of  a defective  condi-

                                                  

     See,  e.g., Woods v.  General Motors Corp.,  No. 920516326S,                                                         
1996 WL  57016,  at *3  (Conn.  Super. Ct.  Jan. 24,  1996)  ( We
conclude that in a product  liability action, it is not necessary
to  present  expert  testimony to  establish  [a  genuine factual
dispute]  that [a vehicle]  was defective. ); Varady  v. Guardian                                                                           
Co.,  506 N.E.2d  708,  712  (Ill. App.  Ct.  1987) (same,  where             
 plaintiff  testified that  as she  turned to  her left  with her
crutches  under her armpits,  the left crutch  collapsed, causing
her  to lose her  balance and fall );  Virgil v.  Kash  n  Karry                                                                            
Serv. Station, 484 A.2d 652, 656 (Md. Ct. Spec. App. 1984) (same,                       
where plaintiff testified  that a thermos bottle . . . implode[d]
when coffee  and milk  [were] poured  into  it,  since  testimony
would prove  that the   product fail[ed]  to meet  the reasonable
expectations of the user ); Tune v. Synergy Gas Corp., 883 S.W.2d                                                               
10,  14 (Mo. 1994) (en  banc) (same); Falls  v. Central Mut. Ins.                                                                           
Co.,  669 N.E.2d  560,  562  (Ohio Ct.  App.  1995) (same,  where             
plaintiff attested that  the seat belt came unfastened during the
collision,    despite   expert s  opinion   that  belt   was  not
defective);  Dansak v. Cameron  Coca-Cola Bottling Co.,  703 A.2d                                                                
489, 496-97  (Pa. Super. Ct. 1997) (same,  where plaintiff stated
that  [s]he opened the carton, removed a six-pack, and was cut by
a broken bottle in the six-pack ); Sipes v. General Motors Corp.,                                                                          
946  S.W.2d  143, 154  (Tex.  App. 1997)  (same,  where plaintiff
contended  that air bag failed to  deploy, and defendant s expert
contradicted)  (citing  McGalliard v.  Kuhlmann,  722  S.W.2d 694                                                         
(Tex.  1986)); Potter v. Van Waters &amp; Rogers, Inc., 578 P.2d 859,                                                            
865 (Wash.  Ct. App. 1978)  (same, where lay  witnesses testified
that rope was defective).

                                12

tion.    Ducko v. Chrysler Motors Corp., 639 A.2d 1204, 1206 (Pa.          tion.    Ducko v. Chrysler Motors Corp., 639 A.2d 1204, 1206 (Pa.                                                 

Super. Ct. 1994) (citations omitted).  Thus, a manufacturer s own          Super. Ct. 1994) (citations omitted).  Thus, a manufacturer s own

employee-expert  does not  necessarily trump  a strict  liability          employee-expert  does not  necessarily trump  a strict  liability

claimant s  circumstantial non- expert   evidence at  the summary          claimant s  circumstantial non- expert   evidence at  the summary

judgment stage.   See  id. at  1207  ( In granting  [defendant s]          judgment stage.   See  id. at  1207  ( In granting  [defendant s]                                    

motion for summary judgment in  the instant case, the trial court          motion for summary judgment in  the instant case, the trial court

relied upon  the deposition  testimony and  reports submitted  by          relied upon  the deposition  testimony and  reports submitted  by

Chrysler's  expert.  This  was error. [Plaintiff s]  testimony of          Chrysler's  expert.  This  was error. [Plaintiff s]  testimony of

the erratic  performance of  the vehicle's  steering and  braking          the erratic  performance of  the vehicle's  steering and  braking

systems, under the circumstances of  this case, was sufficient to          systems, under the circumstances of  this case, was sufficient to

make out  a prima facie  case of  a manufacturing  defect in  the          make out  a prima facie  case of  a manufacturing  defect in  the

vehicle.  The issue of strict liability, therefore, was a disput-          vehicle.  The issue of strict liability, therefore, was a disput-

ed  issue for  the  jury. ).10   Therefore,  even  if the  expert          ed  issue for  the  jury. ).     Therefore,  even  if the  expert

testimony proffered by Perez were  to be excluded, see supra note          testimony proffered by Perez were  to be excluded, see supra note                                                                      

3, the Pagan eyewitness testimony    standing alone    represent-          3, the Pagan eyewitness testimony    standing alone    represent-

ed competent evidence that the air bag in the Perez Volvo  had an          ed competent evidence that the air bag in the Perez Volvo  had an

unsafe defect.   See  Sipes v. General  Motors Corp.,  946 S.W.2d          unsafe defect.   See  Sipes v. General  Motors Corp.,  946 S.W.2d                                                              

143, 154  (Tex. App.  1997) (noting that   [t]he fact  finder may          143, 154  (Tex. App.  1997) (noting that   [t]he fact  finder may

accept lay  testimony [that  an air bag  failed to  deploy during          accept lay  testimony [that  an air bag  failed to  deploy during

                                                  

     Indeed, strict liability claimants may resort to an array of
circumstantial evidence.   See  Dansak, 703  A.2d  at 496  ( Such                                                
circumstantial  evidence  includes  (1)  the  malfunction  of the
product; (2) expert testimony as to a variety of possible causes;
(3)  the  timing of  the  malfunction  in  relation to  when  the
plaintiff  first  obtained  the  product; (4)  similar  accidents
involving the  same product;  (5) elimination  of other  possible
causes of the  accident; and (6) proof tending  to establish that
the accident does not occur absent a manufacturing defect. ).

                                13

frontal collision] over that of [defendants ] experts ).11           frontal collision] over that of [defendants ] experts ).   

          Of course, we express no opinion regarding the relative                    Of course, we express no opinion regarding the relative

persuasiveness  of the  competing Rule  56 proffers,  which  is a          persuasiveness  of the  competing Rule  56 proffers,  which  is a

matter for the trier of fact.          matter for the trier of fact.

          The district  court judgment is VACATED and the case is                    The district  court judgment is VACATED and the case is                                                                           

remanded for  further proceedings consistent  herewith; costs  to          remanded for  further proceedings consistent  herewith; costs  to                                                                           

appellant.  SO ORDERED.          appellant.  SO ORDERED.                                

                                                  

     11We  consider  only  the   caselaw  defining  the  standard
governing  strict  product liability  claims,  like the  present,
which allege unsafe  manufacturing defects.  We take  no position
in  regard to the standard  applicable to strict liability claims
based on design defects, or  product liability claims sounding in
negligence.

                                14
