                                                                                          RECOMMENDED FOR FULL-TEXT PUBLICATION
8       Harris v. General Motors Corp.                     No. 99-3092                         Pursuant to Sixth Circuit Rule 206
                                                                                       ELECTRONIC CITATION: 2000 FED App. 0039P (6th Cir.)
have discussed them above, are sufficiently unassailable2 to                                       File Name: 00a0039p.06
take the issue of credibility from the jury.
IV. CONCLUSION                                                                 UNITED STATES COURT OF APPEALS
  For the foregoing reasons, the district court’s grant of                                       FOR THE SIXTH CIRCUIT
summary judgment is REVERSED, and the case is                                                      _________________
REMANDED to the district court for trial.

                                                                                                            ;
                                                                                                             
                                                                                RUBY HARRIS,
                                                                                                             
                                                                                        Plaintiff-Appellant,
                                                                                                             
                                                                                                             
                                                                                                                            No. 99-3092
                                                                                         v.
                                                                                                             
                                                                                                              >
                                                                                GENERAL MOTORS               
                                                                                                             
                                                                                        Defendant-Appellee. 
                                                                                CORPORATION,

                                                                                                             
                                                                                                            1

                                                                                        Appeal from the United States District Court
                                                                                         for the Northern District of Ohio at Toledo.
                                                                                        No. 97-07171—James G. Carr, District Judge.
                                                                                                 Argued: December 15, 1999
                                                                                             Decided and Filed: January 31, 2000
    2
      In this regard, we also note that although the trial court considered     Before: RYAN and NORRIS, Circuit  Judges; FEIKENS,
the affidavits of both Everest and Lighthall, it did not undertake a Daubert                     District Judge.*
inquiry as to either proposed expert. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Company v.
Carmichael, ___ U.S. ___, 119 S. Ct. 1167 (1999). While this omission
may be explained, in part, by the fact that Harris did not raise the Daubert
issue before the district court, we note that on remand, the district court
must, consistent with its gatekeeping role, perform a Daubert analysis of
the proposed testimony of the defense experts, particularly Everest.
Certainly, nothing in the record as it now exists evinces either the
reliability or validity of Everest’s testimony as to the DERM. Our own             *
research did not reveal a single reported case addressing the Daubert               The Honorable John Feikens, United States District Judge for the
issue as to General Motors’ automotive “black box.”                            Eastern District of Michigan, sitting by designation.

                                                                                                                1
2      Harris v. General Motors Corp.               No. 99-3092      No. 99-3092            Harris v. General Motors Corp.          7

                     _________________                               go so far. The affidavit concludes merely that the DERM data
                                                                     suggests that the airbag deployed properly; it does not
                          COUNSEL                                    establish beyond factual dispute that the airbag could not have
                                                                     deployed belatedly in the manner described by Harris.
ARGUED: Edward A. Van Gunten, EDWARD VAN
GUNTEN & COMPANY, Toledo, Ohio, for Appellant.                         In short, neither of General Motors’ expert affidavits
Francis J. Grey, Jr., LAVIN, COLEMAN, O’NEIL, RICCI,                 establishes the “undisputed physical facts” necessary to justify
FINANELLI & GRAY, Philadelphia, Pennsylvania, for                    rejection of Harris’ testimony in the context of General
Appellee. ON BRIEF: Edward A. Van Gunten, EDWARD                     Motors’ motion. The district court’s application of the
VAN GUNTEN & COMPANY, Toledo, Ohio, for Appellant.                   “physical facts rule” in this case was error.
Francis J. Grey, Jr., LAVIN, COLEMAN, O’NEIL, RICCI,
FINANELLI & GRAY, Philadelphia, Pennsylvania, Ray A.                    We note one other difficulty with application of the
Farris, FULLER & HENRY, Toledo, Ohio, for Appellee.                  physical facts rule in this case. As this court noted in Powers
                                                                     v. Bayliner Marine Corp., 83 F.3d 789 (6th Cir. 1996):
                     _________________
                                                                       "There are many circumstances in which testimony need
                         OPINION                                       not be accepted even though formally uncontradicted,"
                     _________________                                 Sheppard v. Maxwell, 346 F.2d 707, 726 (6th Cir.1965),
                                                                       rev'd on other grounds, 384 U.S. 333, 86 S.Ct. 1507, 16
    FEIKENS, District Judge.                                           L.Ed.2d 600 (1966). "[T]he jury is instructed that it is
                                                                       completely free to accept or reject an expert's testimony,
I. INTRODUCTION                                                        and to evaluate the weight given such testimony in light
                                                                       of the reasons the expert supplies for his opinion."
  This is an appeal from a decision granting summary                   United States v. 0.161 Acres of Land in Birmingham,
judgment to defendant General Motors Corporation (“General             Ala., 837 F.2d 1036, 1040-41 (11th Cir.1988).
Motors”). Ruby Harris (“Harris”) appeals the grant, and for
the reasons that follow, we reverse the district court’s grant       Id. at 797-98. We have no doubt that, in some cases, a
and remand the case for trial.                                       proffered expert’s testimony as to physical facts will be
                                                                     sufficiently unassailable so as to justify a grant of summary
II. BACKGROUND                                                       judgment notwithstanding contrary evidence submitted by a
   On June 10, 1996, 76 year-old Harris was driving her 1991         non-movant. However, such circumstances must be viewed
Chevrolet Corsica in Toledo, Ohio. Harris attempted to turn          with due regard to the general rule that in consideration of a
left into a parking lot, accidentally turning into the path of an    motion for summary judgment, the evidence is considered in
on-coming vehicle. A nearly head-on but relatively low-              the light most favorable to the non-movant. In this case, we
speed collision resulted. Harris, who was wearing her                cannot conclude that defendant’s experts’ affidavits, as we
seatbelt, was uninjured in the initial crash. She testified in her
deposition that immediately after the crash, when she reached
with her right hand to turn off the ignition, the airbag in the
Corsica deployed, hitting her in the face, wrapping itself
around her right arm and breaking that arm. Harris’ sole
6     Harris v. General Motors Corp.                No. 99-3092      No. 99-3092            Harris v. General Motors Corp.        3

Harris’ right arm would have been in front of and across her         passenger, Michele Packer (“Packer”), confirmed that the
body as she made the left turn just prior to the accident. From      airbag did not deploy until after the accident. Based on these
this, he concludes that Harris’ arm was broken when the              facts, Harris filed suit, contending that the airbag had been
airbag properly deployed, striking her arm, during the               defective in deploying after the accident and had caused her
accident.                                                            injuries.
   Based on the content of this affidavit, General Motors              After discovery, General Motors moved for summary
argued that it would have been physically impossible for             judgment. In support of that motion, General Motors
Harris’ right forearm to have been broken in the manner in           submitted the affidavits of two proposed experts. In response,
which she alleged, and it is apparent from the district court’s      plaintiff submitted her deposition testimony and that of her
opinion that the judge was persuaded, at least in part, by that      passenger, maintaining that the airbag had not deployed until
representation. As counsel for General Motors concedes on            after the accident. The district court granted General Motors’
appeal, however, Lighthall’s affidavit does not state that           motion, accepting the testimony of defendant’s expert
Harris’ injury could not have happened as she alleged.               witnesses and expressly rejecting plaintiff’s testimony.
Rather, the affidavit merely presents defendant’s alternative
theory of the case. Such an affidavit does not establish             III. DISCUSSION
“undisputed physical facts” or demonstrate the lack of a
triable issue of fact. To the contrary, Lighthall’s affidavit          We review the district court’s grant of summary judgment
posits the very factual dispute that gives rise to a jury question   de novo, applying the same standard as did the district court.
in this case.                                                        See Aparicio v. Norfolk & Western Railway Co., 84 F.3d 803,
                                                                     806 (6th Cir. 1996). Courts properly grant summary
   The second affidavit submitted by General Motors is that of       judgment where the moving party establishes through
Brian Everest. Everest, an engineer employed by General              pleadings, depositions, answers to interrogatories, admissions,
Motors, stated in his affidavit that he had downloaded data          and affidavits that “there is no genuine issue as to any
from a device onboard Harris’ Corsica known as a                     material fact, and that the moving party is entitled to a
“Diagnostic Energy Reserve Module” or DERM. Everest                  judgment as a matter of law.” Mauro v. Borgess Medical
likened the DERM to an airplane’s “black box.” He                    Center, 137 F.3d 398, 401 (6th Cir. 1998) (quoting Fed. R.
described the functions of the DERM, noting that the DERM            Civ. P. 56(c)). Under Rule 56(c), defendant bears an initial
monitors the airbag system for malfunctions and that the             burden of demonstrating that an essential element of the non-
DERM “warns the operator by controlling the ‘air bag’                moving party’s case is lacking. Kalamazoo River Study
warning light on the instrument panel.” He then concluded,           Group v. Rockwell Int’l Corp., 171 F.3d 1065, 1068 (6th Cir.
“The DERM data from the Corsica suggests the supplemental            1999) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
restraint system (SIR) functioned as designed by deploying           (1986)). Once the moving party has met this burden, the
during the plaintiff’s accident. . . .” (Emphasis added.)            nonmoving party must show the court that there is in fact a
                                                                     genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477
   General Motors argued, and the district court found, that         U.S. 242, 250 (1986). The nonmoving party must identify
Everest’s affidavit established the undisputable fact that the       specific facts, supported by evidence, and may not rely on
airbag “deployed properly during impact, that is, the moment         mere allegations contained in the pleadings. Lujan v.
when plaintiff was executing her left turn.” (District Court         Defenders of Wildlife, 504 U.S. 555, 561 (1992); Liberty
Opinion, p. 4.) Clearly, however, Everest’s affidavit does not       Lobby, 477 U.S. at 248. In deciding a motion for summary
4      Harris v. General Motors Corp.              No. 99-3092    No. 99-3092                Harris v. General Motors Corp.              5

judgment, the court must view the factual evidence in the              The name generally given to this concept is the
light most favorable to the nonmoving party. Mount Elliott          'physical facts rule.' The rule has been variously stated: E.
Cemetery Ass’n v. City of Troy, 171 F.3d 398, 402-03 (6th           G., 'the testimony of a witness which is opposed to the
Cir. 1999) (citing Matsushita Elec. Indus. Co. v. Zenith Radio      laws of nature, or which is clearly in conflict with
Corp., 475 U.S. 574, 587-88 (1986)).                                principles established by the laws of science, is of no
                                                                    probative value and a jury is not permitted to rest its
  In this case, the parties presented two conflicting versions      verdict thereon.' [citation omitted]. 'The testimony of a
of events. Harris submitted evidence which, if believed, may        witness which is positively contradicted by the physical
support her theory of liability; General Motors submitted           facts cannot be given probative value by the court.' Lovas
contrary evidence which, if admitted and believed, may              v. General Motors Corp. 212 F.2d 805, 808 (6th Cir.
negate a finding of liability. Viewing all factual evidence in      1954).
the light most favorable to Harris, General Motors was not
entitled to summary judgment.                                     Id. at 12. Thus, under the physical facts rule, where the “the
                                                                  palpable untruthfulness of plaintiff's testimony” is evident
  The district court ruled otherwise, relying on the “physical    because the testimony is “obviously inconsistent with,
facts rule” as explained by the Ohio Supreme Court in             contradicted by, undisputed physical facts,” id. at 12-13,
McDonald v. Ford Motor Co., 42 Ohio St. 2d 8 (1975):              summary judgment is warranted     notwithstanding testimony
                                                                  offered by the plaintiff. Id.1
      Ordinarily, where testimony conflicts, the credibility of
    witnesses is a matter for the jury. However, in certain         The primary difficulty with application of the physical facts
    instances testimony cannot be considered credible.            rule to this case is that General Motors’ affidavits simply do
    Where a witness testifies that he looked and listened at a    not establish undisputed physical facts fatal to Harris’
    railroad crossing, but neither saw nor heard a train          products liability claim. See Fortunato v. Ford Motor Co.,
    approaching, and the only reasonable conclusion upon          464 F.2d 962, 965-66 (2nd Cir. 1972).
    the evidence is that there is no doubt that had he looked
    he must have seen the train, the witness's testimony            In support of the motion, General Motors submitted the
    cannot be considered credible. Detroit, Toledo & Ironton      affidavits of two defense experts. One was Dr. James
    Rd. Co. v. Rohrs 114 Ohio St. 493 (1926); See, also,          Lighthall. Lighthall, a doctor of anatomy and neuroscience,
    Zuments v. B. & O. Rd. Co. 27 Ohio St.2d 71 (1972).           and a former employee of General Motors, stated that he is an
      The 'railroad crossing' cases are a single example of the   expert on injury causation and occupant kinematics. His
    broad range of cases in which courts have recognized that     affidavit elaborates on his theory as to how, consistent with
    eye-witnesses' testimony, essential though it may be, is      the physical evidence and the proper functioning of the
    fundamentally 'soft' evidence, subject to human failings      airbag, Harris’ injury might have occurred. He opined that
    of perception, memory and rectitude. In law, as in other
    spheres of human affairs, simple facts may be far more
    persuasive than the most learned authorities. As in Dean          1
    Prosser's homely example, 'there is still no man who                In this regard, we note that the “physical facts rule” is entirely
    would not accept dog tracks in the mud against the sworn      consistent with the standard set forth in FRCP 56(c) - that summary
                                                                  judgment is warranted where there is no “genuine issue as to any material
    testimony of a hundred eye-witnesses that no dog has          fact”. FRCP 56(c) (emphasis added). Obviously, where the only
    passed by.' Prosser on Torts (4 Ed.), 212.                    evidence submitted by a non-movant is contradicted by indisputable
                                                                  physical facts, there can be no genuine issue of material fact for trial.
