      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MOLLIE L. NEWCOMER,              )
                                 )
         Plaintiff,              )
                                 )
    v.                           )            C.A. No. N14C-05-151 AML
                                 )
CAROLE A. BURKHOLDER,            )
NEWARK TOYOTA WORLD,             )
TOYOTA MOTOR                     )            Trial by Jury Demanded
CORPORATION, and TOYOTA          )
MOTOR SALES, U.S.A., INC.,       )
                                 )
         Defendants/             )
         Third-Party Plaintiff,  )
                                 )
    v.                           )
                                 )
NEWARK TOYOTA WORLD,             )
TOYOTA MOTOR                     )
CORPORATION, and TOYOTA          )
MOTOR SALES, U.S.A., INC.,       )
                                 )
         Third-Party Defendants. )

                        Submitted: August 15, 2016
                        Decided: November 22, 2016

                       MEMORANDUM OPINION

Gary S. Nitsche, Esquire and William R. Stewart, III, Esquire, WEIK, NITSCHE
& DOUGHERTY, Wilmington, Delaware; Attorneys for Mollie L. Newcomer.
David L. Baumberger, Esquire, LAW OFFICES OF CHRISSINGER &
BAUMBERGER, Wilmington, Delaware; Attorney for Carole A. Burkholder.

James M. Kron, Esquire, POTTER ANDERSON & CORROON LLP,
Wilmington, Delaware; Attorney for Newark Toyota World, Toyota Motor
Corporation, and Toyota Motor Sales, U.S.A., Inc.




LeGROW, J.
      The driver of a car involved in an accident sued the dealer and manufacturer

of the car for negligence and breach of warranty, alleging the vehicle was defective

and the defect caused the accident. The dealer and manufacturer have moved for

summary judgment on the basis that the driver failed to present an expert opinion

regarding the existence of a defect and whether it proximately caused the accident.

The driver contends an expert opinion is not necessary in this case because she has

offered circumstantial evidence of a defect that negates other reasonable causes of

the accident. The question before the Court is whether the evidence the driver has

adduced, namely her own testimony and a notice in a class action that the vehicle

was within a class of vehicles alleged to contain such a defect, is such that this case

falls within the relatively narrow segment of cases where expert testimony is not

necessary to prove a product defect. In my view, as explained below, the question

is not a close one, and the driver’s failure to provide an expert opinion entitles the

movants to summary judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

      Unless otherwise noted, the following facts are undisputed. The plaintiff,

Mollie L. Newcomer, alleges she sustained personal injuries and property damage

during a car accident in which a 2010 Toyota Sienna driven by Defendant Carole

A. Burkholder collided with Newcomer’s car. Three months after Newcomer filed

this action, Burkholder filed third-party claims against Newark ToyotaWorld (the


                                          1
“Dealer”), Toyota Motor Corporation (“Toyota Corporation”) and Toyota Motor

Sales, U.S.A., Inc. (“Toyota Sales” and collectively with Toyota Corporation, the

“Manufacturer Defendants”).1 Unless the distinction is material, I refer to the

third-party defendants jointly as “Toyota.”

       A. The accident and the aftermath

       In her complaint, Newcomer alleged that Burkholder negligently drove her

Toyota Sienna into Newcomer’s vehicle.              In her answer, Burkholder asserted

several affirmative defenses grounded in her contention that the accident was

unavoidable and that the injuries Newcomer sustained were proximately caused by

an intervening or superseding cause, namely a defect in Burkholder’s Toyota

Sienna (the “Burkholder Vehicle”) that caused the vehicle to accelerate at the

moment of the accident, even though Burkholder’s foot was on the brake and not

on the gas.2

       Those contentions were repeated in Burkholder’s third-party complaint

against Toyota. Specifically, Burkholder brought three claims against Toyota: one

claim against the Dealer for negligence, one claim against the Manufacturer

Defendants for negligence, and one claim against the Manufacturer Defendants for


1
  Burkholder also brought a claim against Toyota North America, Inc. According to Toyota, the
parties agreed not to pursue any claims against that party. Defs.’ Renewed Mot. Summ. J. at 1,
n.1.
2
  Burkholder Answer and Third Party Compl.; see also Third Party Compl. ¶ 6 (“The accident
was caused due to an uncontrolled acceleration of Defendant’s vehicle, despite the fact her foot
was on the brake.”).
                                               2
breach of the implied warranty of merchantability. 3 After Newcomer filed her

complaint, but before Burkholder filed the third-party claims, Burkholder disposed

of the Burkholder Vehicle, which has been within her control since the accident.

       B. Burkholder pursues discovery.

       This Court issued its initial trial scheduling order (the “Original TSO”) on

June 17, 2015, after all third-party claims and answers had been filed.               The

Original TSO set a deadline of September 15, 2015 for plaintiffs’ expert reports or

disclosures and a deadline of December 15, 2015 for defendants’ expert reports or

disclosures. There were no other expert deadlines in the scheduling order, nor

were any requested by the parties. When the September 2015 deadline passed with

neither Burkholder nor Newcomer filing an expert report or disclosure supporting

their claims against Toyota, Toyota moved for summary judgment, arguing expert

testimony was necessary to support the third-party claims against Toyota. Two

days later, Burkholder propounded her first discovery requests directed to Toyota.

Toyota then moved for a protective order, arguing the discovery was overbroad

and, in any event, would be unnecessary if Toyota’s summary judgment motion

was granted.




3
  Newcomer later amended the complaint to add negligence claims against Toyota. Newcomer
has not, however, pursued discovery from Toyota and does not oppose Toyota’s renewed motion
for summary judgment. See D.I. 85, Letter to the Court from Gary Nitsche, Esquire.
                                            3
      At the hearing on the motion for protective order, Burkholder argued that

discovery was necessary before she could evaluate whether retaining an expert was

either necessary or possible.4     The Court noted the significant time that had

elapsed, that Burkholder only now seemed to be organizing her case, and that she

arguably5 had missed the expert report deadline. The Court nonetheless reasoned

that limited discovery should be permitted so Burkholder at least had an

opportunity to investigate her claims before the Court considered the substance of

the pending summary judgment motion.

      Specifically, the Court held as follows:

      [W]ith respect to the pending discovery against the [M]anufacturer
      [Defendants], the motion for the protective order is stayed without
      prejudice to reconsideration after a submission by third-party
      plaintiff’s expert explaining why further discovery against the
      manufacturer is appropriate.

      The motion with respect to the dealership is granted, except that the
      [D]ealer shall respond to pending discovery that relates to the car in
      question by year, make and model. Once that discovery has been
      turned over, then third-party plaintiff shall have 30 days in which to
      announce whether an expert has been retained.6
      The Court’s ruling (the “Discovery Order”) permitting limited discovery and

an extension of the expert deadline was based on a number of considerations, not

the least of which was Burkholder’s representation that, once the requested

4
  Newcomer did not oppose any of the motions.
5
  Burkholder argued she was a “defendant” and therefore had until December 15, 2015 to
produce an expert report.
6
  Newcomer v. Burkholder, C.A. No. N14C-05-151 AML, at 31-32 (Del. Super. Nov. 13, 2015)
(TRANSCRIPT) (hereinafter “Nov. Tr.”).
                                           4
discovery of the Dealer was provided, Burkholder would be in a position to decide

whether she intended to retain an expert, without needing iterative rounds of

discovery.7 In fact, the Court specifically held that no further discovery of the

Toyota Defendants would be permitted unless or until Burkholder retained an

expert, reasoning that Toyota should not have to incur additional expense until

Burkholder made “a significant commitment to this litigation.”8

       C. The schedule is revised and Toyota renews its summary judgment
          motion.
       On February 22, 2016, Dealer produced the discovery required by the

Discovery Order.      The following day, Toyota asked the Court to vacate the

Original TSO, arguing the parties could not reasonably complete discovery and

pre-trial preparation before the June 6, 2016 trial date. None of the parties opposed

that request, and the Court therefore vacated the Original TSO and instructed the

parties to contact chambers to obtain new dates for trial.

       Under the terms of the Discovery Order, Burkholder had until March 23,

2016 to inform the other parties whether she had retained an expert. On March

30th, Toyota sent a letter to Burkholder asking her to advise whether she had

retained an expert.9 Burkholder responded by stating she had not had a chance to




7
  Id. at 19-20.
8
  Id. at 26; see also id. at 31-32.
9
  Defs.’ Renewed Mot. Summ. J. Ex. 9.
                                          5
review the production in detail and she would respond “early next week.”10

Burkholder did not, however, follow up with Toyota as promised. Toyota filed its

renewed motion for summary judgment on April 29, 2016, after which the Court

scheduled briefing and a hearing on the motion. The basis for Toyota’s motion is

two-fold: first, Burkholder did not identify an expert within the deadline set by the

Discovery Order and cannot maintain the claims against Toyota without expert

testimony; and second, Burkholder disposed of her vehicle, thereby preventing the

parties from examining the vehicle to determine whether a defect existed.

       Unrelated to the motion for summary judgment, the Court issued a revised

trial scheduling order (the “Revised TSO”) on May 27, 2016.11 That scheduling

order established the following expert deadlines: July 15, 2016 for plaintiffs’

expert report or disclosures; September 16, 2016 for defendants’ expert reports or

disclosures; and October 17, 2016 for plaintiffs’ rebuttal reports or disclosures.

                                       ANALYSIS

       Toyota’s motion is premised on its contention that Burkholder cannot

support her claims without expert testimony. For the sake of analytical clarity, I

therefore address that issue first, before turning to the parties’ arguments regarding

10
  Id. Ex. 10.
11
   Both parties attempt to draw conclusions from the timing of the Court’s issuance of the
Revised TSO. There is no significance to the TSO or connection to the renewed motion for
summary judgment. That process was initiated before Toyota renewed its summary judgment
motion, see D.I. 79, and the Revised TSO was issued without any further input from the parties
other than confirming their availability for trial.
                                              6
whether Burkholder missed the expert discovery deadline or whether she is entitled

to additional discovery before naming an expert.

       Summary judgment should be awarded if “the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.”12 When considering a motion

for summary judgment, the evidence and the inferences drawn from the evidence

are to be viewed in the light most favorable to the nonmoving party. 13 The Court

will accept “as established all undisputed factual assertions . . . and accept the non-

movant’s version of any disputed facts. From those accepted facts[,] the [C]ourt

will draw all rational inferences which favor the non-moving party.”14

     A. All Burkholder’s claims against Toyota require expert testimony under
        Reybold Group, Inc. v. Chemprobe Technologies, Inc.
       Toyota contends expert testimony is necessary to establish both the

existence of a defect in the Burkholder Vehicle and that the defect proximately

caused Burkholder’s and Newcomer’s injuries. Toyota maintains it is entitled to

summary judgment because both those elements are required to prove

Burkholder’s claims for negligence and breach of warranty, and Burkholder has


12
   Super. Ct. Civ. R. 56(c).
13
   Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995); Judah v. Del. Trust Co., 378 A.2d 624,
632 (Del. 1977).
14
   Marro v. Gopez, 1994 WL 45338, at *1 (Del. Super. Jan. 18, 1994) (citing Merrill v. Crothall-
Am., Inc., 606 A.2d 96, 99-100 (Del. 1992)).
                                               7
not proffered expert testimony, which Toyota contends is necessary to prove those

elements. Burkholder, on the other hand, argues that this case falls within the

exception to the rule generally requiring expert testimony because she has offered

sufficient circumstantial evidence of a defect.

      The preliminary question is whether Burkholder must prove the existence of

a defect to prevail on her claims. In my view, she must. Burkholder’s three claims

against Toyota allege negligence and breach of warranty. To prevail on a claim for

breach of the implied warranty of merchantability, Burkholder must prove: (1)

Toyota sold the vehicle; (2) the vehicle was defective at the time of sale; (3) the

defect caused injury to the ultimate consumer; (4) the proximate cause of the injury

was the defective nature of the vehicle; and (5) Toyota received notice of the

injury.15 As to Burkholder’s negligence claims, she must prove: duty, breach,

causation, and harm.16

      Although proof of a defect is an essential element of every breach of

warranty of merchantability case,17 it is not always an essential element of a

negligence claim. Here, however, proof of a defect also is a necessary element of

Burkholder’s negligence claims. Burkholder claims the Dealer was negligent by

failing to properly inspect and repair the vehicle’s “acceleration issues,” failing to
15
   Reybold Grp., Inc. v. Chemprobe Techs., Inc., 721 A.2d 1267, 1269 (Del. 1998) (citing
Neilson Bus. Equip. Ctr., Inc. v. Monteleone, 524 A.2d 1172, 1175 (Del. 1987) (citing F.E.
Myers Co. v. Pipe Maint. Servs., Inc., 599 F.Supp. 697, 703 (D. Del. 1984))).
16
   Hudson v. Old Guard Ins. Co., 3 A.3d 246, 250 (Del. 2010).
17
   Reybold, 721 A.2d at 1269.
                                            8
warn and inform Burkholder regarding the “acceleration problems,” and failing to

train its employees to identify and resolve “known acceleration problems.” She

contends the Manufacturer Defendants were negligent by failing adequately to

supervise the design, manufacture, testing, and inspection of the vehicle and by

designing a defective vehicle. Each of those contentions assumes the existence of

a defect; if there was no defect in the Burkholder Vehicle, there was no negligence

in designing, manufacturing, inspecting, or repairing it, or in failing to warn

Burkholder of a danger.18

       The ultimate issue, therefore, is whether expert testimony is necessary to

prove a defect existed in the Burkholder Vehicle’s acceleration or braking systems,

thereby causing the accident. In Reybold Group, Inc. v. Chemprobe Technologies,

Inc., the Delaware Supreme Court held that expert testimony typically is required

to prove a product is defective, and always is required “[i]f the matter in issue is

one within the knowledge of experts only and not within the common knowledge

of laymen.”19 Even when the matter is one within the common knowledge of

laymen, expert testimony is necessary unless the circumstantial evidence presented

tends “to negate other reasonable causes of the injury sustained.”20


18
   See Joseph v. Jamesway Corp., 1997 WL 524126, at * 3 (Del. Super. July 9, 1997) (“In order
to prove a claim of negligence in the context of a products liability action alleging a
manufacturing defect, the plaintiff must establish that the product was defective.”).
19
   721 A.2d at 1270; see also Atamian v. Ryan, 2006 WL 1816936, at *3 (Del. Super. June 9,
2006).
20
   Reybold, 721 A.2d at 1270.
                                             9
       Although the only claim at issue in Reybold was one for breach of warranty,

Burkholder conceded at oral argument that Reybold applies both to the negligence

and breach of warranty claims in this case because all the claims are premised on

the contention there was a defect in the Burkholder Vehicle.21 Burkholder’s claims

do not fall within the limited set of cases Reybold identifies as not requiring expert

testimony to establish a defect. First, the issue of unintended acceleration of a

vehicle, including the circumstances that may cause such acceleration and whether

those circumstances existed in particular Toyota vehicles, is not within the

common knowledge of a layperson. To the contrary, the internal mechanical

operations of a vehicle, and what might cause it to accelerate when – as Burkholder

contends – the driver is applying the brakes, is a complex issue that has been the

subject of class actions, congressional hearings, and studied debate. For that

reason alone, the claims require support through expert testimony regarding the

defect’s existence and its role in the accident in this case.

       In addition, even if this were an issue within the common knowledge of a

layperson, the circumstantial evidence Burkholder offers does not tend to negate

other reasonable causes of the injuries. The circumstantial evidence Burkholder

contends would establish a defect is: (1) Burkholder’s testimony that she was

21
  Newcomer v. Burkholder, C.A. No. N14C-05-151 AML, at 31-33 (Del. Super. Aug. 15, 2016)
(TRANSCRIPT) (hereinafter “Aug. Tr.”); see also Joseph, 1997 WL 524126, at *3 (“Where a
plaintiff is attempting to prove negligence circumstantially [in a products liability action], he
must establish that negligence is the only possible inference.”).
                                               10
pressing the brake before the collision, but that the car accelerated; (2) an occasion

two years before the accident, when Burkholder contends the car accelerated

suddenly; (3) a notice Burkholder received in connection with a class action, in

which Toyota identified her vehicle as being among a class of vehicles alleged to

contain a defect that could cause unintended acceleration; and (4) documents

indicating Toyota developed processes and protocols for inspecting vehicles in

which customers allegedly experienced unintended acceleration.22 That evidence

is not sufficient to negate other reasonable causes of the injury, such as driver

error.     Put differently, Burkholder’s testimony about the sudden acceleration,

protocols developed at the Dealer for the alleged problem, and a class-action legal

notice indicating Burkholder’s vehicle was within a class of vehicles allegedly

containing a defect is not enough to eliminate other reasonable causes of the

collision.

         Although Burkholder argued that disputed issues of material fact preclude

summary judgment, alluding that additional facts may be available through

discovery that would eliminate other reasonable causes of the accident, that

argument is unconvincing for two reasons. First, Burkholder failed to file a Rule

56(f) affidavit, as required by this Court’s rules, detailing what further discovery

she needed in order to fairly address the motion for summary judgment. She


22
     Aug. Tr. 30-34.
                                          11
therefore is precluded from relying on vague references to such additional

discovery as a basis to deny the motion. Second, in the Discovery Order, this

Court expressly precluded Burkholder from obtaining additional discovery from

the Toyota Defendants until she identified her expert and provided further

explanation, supported by her expert, regarding the need for additional discovery.23

          Accordingly, Toyota is entitled to summary judgment on the third-party

claims unless Burkholder can offer expert testimony on the issues of the existence

of a defect and proximate cause. I therefore turn to whether Burkholder has

waived her opportunity to offer an expert opinion by failing to identify an expert in

a timely manner.

      B. Burkholder conceded she does not intend to get an expert.
          Having concluded the third-party claims require expert testimony in order to

be presented to a jury, the question then becomes whether Burkholder has missed

the deadlines to disclose her expert, such that Toyota’s motion for summary

judgment should be granted. I need not address the bulk of the parties’ technical

arguments regarding the Discovery Order, whether its deadlines were vacated, or

the effect of the Revised TSO. I agree with Toyota that Burkholder failed to

disclose her expert within the deadline established by the Discovery Order, which

the Court never vacated.        Nevertheless, given the general policy encouraging


23
     Nov. Tr. 26-27, 31-32.
                                           12
resolution of claims on their merits, the Court likely would have permitted

Burkholder to proceed with her claims had she identified an expert at any time

during the briefing or argument of the motion for summary judgment. Burkholder,

however, conceded at oral argument that she will not be able to “provide an expert

opinion that says definitively that that defect existed in that vehicle as of that

time.”24 Having conceded on the record that she will not be able to obtain the

necessary expert support for her claim, amending the schedule to permit

Burkholder additional time to obtain an expert would not be fruitful.

                                 CONCLUSION

          For the foregoing reasons, the Toyota Defendants’ Motion for Summary

Judgment is GRANTED. Having concluded Toyota is entitled to summary

judgment because Burkholder failed to provide an expert to support the existence

of a defect, I need not reach Toyota’s alternate arguments that summary judgment

should be granted because Burkholder failed to preserve the subject vehicle or

because Burkholder failed to provide expert testimony regarding proximate cause.




24
     Aug. Tr. 42.
                                         13
