J-A31028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DENNIS HOUSER, ADMINISTRATOR OF                  IN THE SUPERIOR COURT OF
THE ESTATE OF DEBRA J. BECKER,                         PENNSYLVANIA
DECEASED

                         Appellant

                    v.

FORD MOTOR COMPANY AND K & H
FORD, INC.

                         Appellee                     No. 709 MDA 2014


               Appeal from the Order Entered March 24, 2014
                In the Court of Common Pleas of York County
                 Civil Division at No(s): 2008-SU-006261-01


BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                                FILED APRIL 21, 2015

      Dennis Houser, administrator of the estate of Debra J. Becker,

deceased, (“Houser”) appeals from the order entered March 24, 2014 in the

Court of Common Pleas of York County, granting summary judgment in

favor of Ford Motor Company and K & H Ford, Inc., (collectively, “Ford”) and

against Houser, in this products liability action. Houser raises the following

issues: (1) whether the court erred in granting summary judgment due to a

lack of medical expert opinion; and (2) in the alternative, whether the court

erred by not allowing Houser leave to provide an expert report. Based on

the following, we affirm.

      The trial court set forth the facts and procedural history as follows:
J-A31028-14


           [Houser] commenced the above-captioned action as a
     result of injuries sustained by [Houser]’s sister, now Decedent,
     Debra J. Becker, (hereinafter, “Decedent”) in a motor vehicle
     accident on December 29, 2006 in York County, Pennsylvania.
     Decedent, who was under the influence of alcohol and had
     blood-alcohol level of 0.28, rear-ended a Jeep Cherokee that was
     stopped at a stop sign. At the time of the accident, Decedent
     owned and operated a 1995 Ford Escort GT which was purchased
     from Defendant, K & H Ford, Inc. (hereinafter, “K&H”).
     [Houser] avers that as a result of the accident, the
     vehicle’s driver side airbag improperly deployed, causing
     blunt force trauma to the Decedent and eventually death.
     More specifically, [Houser]’s Complaint alleges that the
     deployment of the airbag in Decedent’s vehicle caused a
     rupture in Decedent’s aortic arch. [Houser] avers the
     Ford Escort was defective in that it lacked an appropriate
     amount of sensors to allow for timely deployment of the
     airbag during a crash.

          [Houser] initiated this action by filing a Writ of Summons
     on December 22, 2008.         [Houser] reinstated the Writ on
     February 13, 2009 and March 24, 2009. On November 4, 2009,
     [Houser] filed the Complaint. Defendant K&H filed Preliminary
     Objections to [Houser]’s Complaint on November 24, 2009. The
     matter originally came before this Honorable Court in 2010 in
     which the Court sustained Defendant K&H’s Preliminary
     Objections, but did not dismiss the Complaint against Defendant
     K&H. On June 24, 2010, [Houser] filed a Motion for Service
     Pursuant to Special Order of Court on Defendant K&H. That
     Motion was granted on September 7, 2010.

            On February 4, 2010, Defendant, Ford Motor Company,
     filed an Answer with Affirmative Defenses. [Houser] filed a
     Reply to New Matter of Defendant, Ford Motor Company, on
     February 12, 2010. On December 27, 2010, Defendant K&H
     filed an Answer with New Matter. [Houser] filed a response on
     January 18, 2011.

           On October 1, 2012, Defendant, Ford Motor Company,
     (hereinafter “Ford Motor”) filed a Motion for Summary Judgment
     and Brief in Support thereof. [In the motion, Ford argued
     Houser had not provided any evidence to establish a defect
     existed in the vehicle at the time of the accident which caused or
     contributed to his damages.] Ford Motor filed a Praecipe to List
     Case for One-Judge Disposition on October 1, 2012. [Houser]
                                     -2-
J-A31028-14


        filed a response and brief in support thereof on October 29,
        2012.    On January 1, 2013, this Honorable Court denied
        Defendant Ford Motor’s[] Motion for Summary Judgment. On
        December 2, 2013, Defendant K&H Ford [and Defendant Ford
        Motor] filed a Motion for Summary Judgment and Brief in
        Support thereof.[1]  [Ford’s] Motion for Summary Judgment
        raise[d] two issues: whether Decedent is an intended user of
        the motor vehicle and whether Decedent assumed the risk. On
        December 24, 2013, [Houser] filed a Response in Opposition to
        the Motion for Summary Judgment and a Memorandum of Law in
        Support thereof. This case was listed for one-judge disposition
        on January 13, 2014 and assigned to this Honorable Court on
        February 4, 2014.

              On February 6, 2014, [Ford] filed a Supplemental Motion
        for Summary Judgment and Brief in Support thereof.
        Defendants’ Supplemental Motion for Summary Judgment
        raise[d] the issue of causation.

Trial Court Opinion, 3/25/2014, at 2-4 (emphasis added).

        In its supplemental motion, Ford alleged the following, in pertinent

part:


        5. In support of his claims …[, Houser] has identified as a
        liability expert and submitted the report of Ralph L. Hensler,
        Ph.D., who issued an opinion that the driver’s side airbag was
        defective in that it deployed a few milliseconds later than he
        believed was optimal.

                                               …

        7. The engineering opinion of R.L. Hensler only addresses what
        that expert believes to have been a defect in the air bag system,
        and does not purport to constitute an expert opinion as to the
        cause of death, or enhanced injuries resulting from such alleged
        defect, since the said witness is not a medical doctor.


____________________________________________


1
    This was technically Ford Motor’s second motion for summary judgment.


                                           -3-
J-A31028-14


       8. The Hensler report merely speculates based on statements in
       the medical records that [Decedent] died because of a ruptured
       aorta caused by the airbag. The Hensler report makes the
       presumption that the medical records “impl[y] aggressive
       contact with the deploying airbag” (page 7); and it states that
       the [D]ecedent died “presumably” due to contact with the air
       bag (page 2). However, the medical records do not make any
       reference to the airbag causing the injury.

       9. The speculative opinions of Dr. Hensler are not supported by
       the medical records.    The medical records do not attribute
       [Decedent]’s death to an alleged late deployment of an airbag,
       the theory advanced by Dr. Hensler.

       10. [Houser] has not submitted the report of any medical expert
       containing a competent opinion about the cause of [Decedent]’s
       death, and whether her death was causally related to the alleged
       milliseconds of delay in deployment of the airbag. The Hensler
       report does not, for example, opine that a timely deployment of
       the air bag would have led to a different result, nor does it
       compare or analyze the forces to which the [D]ecedent would
       have been subjected in a timely deployment versus an alleged
       untimely deployment and the effect of those varying forces on
       the [D]ecedent.

       11. In short, [Houser]’s sole liability expert provides only an
       engineering opinion; he cannot and did not issue a competent
       opinion as to the cause of [Decedent]’s injury and death, and he
       cannot and did not issue a competent opinion that the failure to
       use an alternative design enhanced the [D]ecedent’s injuries.

Ford’s Supplemental Motion for Summary Judgment, 2/6/2014/ at 3-5

(citations and footnote omitted; italics in original). Ford indicated this case

falls under the “crashworthiness doctrine,” which is a subset of strict

products liability law. Id. at 5.2 Ford contended Houser failed to offer the


____________________________________________


2
   The term “crashworthiness” means “the protection that a motor vehicle
affords its passengers against personal injury or death as a result of a motor
(Footnote Continued Next Page)

                                           -4-
J-A31028-14


requisite testimony on the “causation” element of the crashworthiness test.

Id. at 6.

      On February 27, 2014, Houser filed a Response in Opposition to Ford’s

Supplemental Motion for Summary Judgment and Brief in Support thereof.

Oral argument on the December 2, 2013, Motion for Summary Judgment

and the February 6, 2014, Supplemental Motion for Summary Judgment was

held on March 13, 2014.           On March 25, 2014, the trial court denied the

motion for summary judgment but granted the supplemental motion for

summary judgment based on the following:

            Given the totality of the circumstances, the Court finds
      that Decedent was both an intended user of the vehicle and was
      using it for its intended use.      The Court also finds that
      assumption of the risk defense does not bar [Houser] from
      recovering as [Ford] failed to submit any evidence that
      [Decedent] had subjective knowledge of the defect causing the
      injury and appreciated the danger involved before using the
      product. Lastly, the Court finds [Houser] failed to submit
      evidence establishing the causal connection between the
      defect of Decedent’s airbag and Decedent’s ultimate
      death.

Trial Court Opinion, 3/25/2014, at 10 (emphasis added).          Houser filed a

motion for reconsideration, followed by a notice of appeal on April 23, 2014.3
                       _______________________
(Footnote Continued)

vehicle accident.” Kupetz v. Deere & Co., Inc., 644 A.2d 1213, 1218 (Pa.
Super. 1994).



3
    On April 28, 2014, the trial court ordered Houser to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Houser filed a concise statement on May 15, 2014. The trial court issued an
(Footnote Continued Next Page)

                                            -5-
J-A31028-14


      In Houser’s first issue, he asserts the trial court erred in granting

summary judgment on Ford’s crashworthiness argument, specifically his lack

of any medical expert opinion supporting the causation element. Houser’s

Brief at 8. Houser states Ford fails to cite any authority which requires that

expert testimony, including medical expert testimony, be used to satisfy the

crashworthiness test.          Id.    Nevertheless, he alleges there was ample

evidentiary support, which will be discussed in detail below, identifying

Decedent’s cause of death as blunt force trauma. Id. at 9.

      We begin with our well-settled scope and standard of review:

      Our scope of review of an order granting summary judgment is
      plenary. [W]e apply the same standard as the trial court,
      reviewing all the evidence of record to determine whether there
      exists a genuine issue of material fact. We view the record in
      the light most favorable to the non-moving party, and all doubts
      as to the existence of a genuine issue of material fact must be
      resolved against the moving party. Only where there is no
      genuine issue as to any material fact and it is clear that the
      moving party is entitled to a judgment as a matter of law will
      summary judgment be entered.

      Motions for summary judgment necessarily and directly implicate
      the plaintiff’s proof of the elements of his cause of action. ...
      Thus, a record that supports summary judgment will either (1)
      show the material facts are undisputed or (2) contain insufficient
      evidence of facts to make out a prima facie cause of action or
      defense and, therefore, there is no issue to be submitted to the
      [fact-finder]. Upon appellate review, we are not bound by the
      trial court’s conclusions of law, but may reach our own
      conclusions. The appellate Court may disturb the trial court’s
      order only upon an error of law or an abuse of discretion.
                       _______________________
(Footnote Continued)

opinion pursuant to Pa.R.A.P. 1925(a) on May 19, 2014, referring to its
March 25, 2014 order and opinion as applicable. The court also denied the
motion for reconsideration on May 6, 2014.


                                            -6-
J-A31028-14



Stein v. Magarity, 102 A.3d 1010, 1013 (Pa. Super. 2014), quoting

DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 585-586 (Pa. Super.

2013) (citations and quotation marks omitted).

     Moreover, with respect to the “crashworthiness” doctrine, we are

guided by the following:

            The Pennsylvania Supreme Court has adopted the strict
     products liability doctrine enunciated in Section 402(a) of the
     Restatement (Second) of Torts. Webb v. Zern, 422 Pa. 424,
     220 A.2d 853 (1966). As such, to submit a Section 402(a)
     products liability case to a jury, it must be shown that “a product
     was sold in a defective condition unreasonably dangerous to the
     user or consumer, and that the defect was the proximate cause
     of the plaintiff's injuries.” Walton v. Avco Corp., 530 Pa. 568,
     576, 610 A.2d 454, 458 (1992). Additionally, courts of this
     Commonwealth have specified that a product is defective when it
     is not fit for the intended use for which it was sold. Azzarello v.
     Black Bros. Co. Inc., 480 Pa. 547, 559, 391 A.2d 1020, 1027
     (1978).

             The crashworthiness or second collision doctrine is merely
     a subset of a Section 402(a) products liability action and
     routinely arises in the context of a vehicular accident. Kupetz
     v. Deere & Company, Inc., 435 Pa. Super. 16, 644 A.2d 1213,
     1218 (Pa. Super. 1994), appeal denied, 539 Pa. 693, 653 A.2d
     1232 (1994).       Historically, a Section 402(a) strict products
     liability action only created liability for injuries proximately
     caused by a defect where the defect also caused the accident.
     Barris v. Bob’s Drag Chutes & Safety Equipment, Inc., 685
     F.2d 94, 99 (3rd Cir. 1982). However, the crashworthiness
     doctrine extends the liability of manufacturers and sellers to
     “situations in which the defect did not cause the accident or
     initial impact, but rather increased the severity of the injury over
     that which would have occurred absent the design defect.”
     Kupetz, 644 A.2d at 1218 (citing Mills v. Ford Motor Co., 142
     F.R.D. 271 (M.D. Pa. 1990)).           Therefore, in order for a
     manufacturer to avoid liability, it must design and manufacture a
     product that is “reasonably crashworthy”, or alternatively stated,
     the manufacturer must contemplate accidents among the
     intended uses of its product. Kupetz, 644 A.2d at 1218.
                                      -7-
J-A31028-14



                                               …

       To prevail on a crashworthiness or second collision theory in a
       products liability action under Section 402(a), a plaintiff must
       prove three elements. First, the plaintiff must demonstrate that
       the design of the vehicle was defective and that when the design
       was made, an alternative, safer, practicable design existed.
       Kupetz, 644 A.2d at 1218 (citing Craigie v. General Motors
       Corp., 740 F. Supp. 353 (E.D. Pa. 1990)). Second, the plaintiff
       must show what injuries, if any, the plaintiff would have received
       had the alternative safer design been used. Id. Third, the
       plaintiff must prove what injuries were attributable to the
       defective design. Id.

Colville v. Crown Equip. Corp., 809 A.2d 916, 922-923 (Pa. Super. 2002)

(footnotes omitted).4

       Turning to the present matter, the trial court opined the following:

              [Ford] argue[s] that [Houser] has failed to provide an
       expert opinion showing that the alleged design defect in the Ford
       Escort caused [Decedent] to suffer a rupture in her aortic arch.
       Primarily, [Ford’s] argument focuses on the fact that Decedent’s
       medical records do not provide any support to [Houser]’s
       assertion that a defect of the airbag in the vehicle caused the
       alleged injury. The medical records only indicate that Decedent
       suffered blunt force trauma from either impact with the other
       vehicle or an airbag. The medical records do not mention a
       “late-firing” airbag.

             [Houser] provided an expert report from R.L. Hensler,
       Ph.D., an engineer. Dr. Hensler, in his report, stated that
       Decedent’s airbag fired later than what he believed to be
       optimal, thereby placing the Decedent within the airbag’s
____________________________________________


4
   We note that even though Decedent was not involved in a second collision,
the crashworthiness doctrine is still applicable because Houser is advancing
a strict products liability claim based on the theory that properly designed
airbag sensors would have prevented Decedent’s death during the accident.
See Colville, 809 A.2d at 924 (applied crashworthiness doctrine to a single
collision incident).


                                           -8-
J-A31028-14


       deployment zone.      Dr. Hensler’s opinion is that Decedent’s
       airbag was defective; but, because he is not a medical expert, he
       does not and cannot offer an opinion establishing that the
       airbag’s defect was the proximate cause of [D]ecedent’s death.

              As such, [Houser] has failed to submit any evidence which
       would establish that the defect of Decedent’s airbag was the
       source of injury and ultimate death of Decedent. On account of
       this, the Court finds that [Houser] has failed to establish the
       causal link between the alleged defect of a late-firing airbag and
       Decedent’s death.

Trial Court Opinion, 3/25/2014, at 9-10.

       As mentioned above, Houser alleges there is ample evidence to

support his argument linking Decedent’s cause of death to the allegedly

defective sensors.       Houser’s Brief at 9.         He points to the following as

satisfying the burden that a prima facie cause of action existed:5               (1) the

expert report of expert, Ralph Hensler, Ph.D.; (2) the medical records and

death certificate; (3) the police incident investigation report; (4) the

testimony from the responding emergency medical technician (“EMT”), Scott

Dean; and (5) the crash investigation report completed by Calspan

Corporation, an entity that performs crash research on behalf of the United

States Department of Transportation.             Id. at 9-12.    With respect to the

treating   physicians,     the   coroner,      the   investigating   officer,   and   the

responding EMT, Houser argues “these fact witnesses can provide testimony
____________________________________________


5
   Although Houser terms his argument as there are no material facts in
dispute, it is clear from the trial court’s opinion that it focused on whether
there was sufficient evidence of facts to make out a prima facie case. See
Stein v. Magarity, 102 A.3d at 1013.


                                           -9-
J-A31028-14


as set forth in the medical records, death certificate and police report

allowing the jury to draw the link between the defective airbag system and

the [D]ecedent’s injuries.” Id. at 12. Furthermore, he contends:

       [T]he cause of death is apparent from the factual evidence in the
       case and both the Court and the jury can make its own
       determination from its experience vis-à-vis motor vehicle
       accidents to determine if the low speed impact between the
       vehicles or the extreme forces involved in the air bag[,] inflation
       and the deployment “in the 150 mph range” as noted in Dr.
       Hensler’s report, were responsible for the rupture of
       [D]ecedent’s aorta.

Id. Houser also states, “Although Dr. Hensler is not a medical expert, his

qualifications certainly render him more than qualified to offer an opinion

about the forces involved in an air bag deployment and whether those forces

would expose a human being to ‘blunt force trauma.’” Id.

       We disagree with Houser’s argument. Our review of the record reveals

no basis to disturb the court’s ruling that Houser failed to establish the

causation element of the crashworthiness test.       First, the police incident

investigation report stated, in relevant part:     “A Dauphin County Coroner

advised that [Decedent] had succumbed to internal injuries resulting from

blunt force trauma, and further advised result as to alcohol content in

[Decedent]’s system.” Houser’s Response In Opposition to Ford’s Motion for

Summary Judgment, 2/27/2014, Exhibit A at 6.6 Second, the post-operative

medical records indicated Decedent’s diagnosis as “[n]ear completed
____________________________________________


6
    See also id., Exhibit E at 5.


                                          - 10 -
J-A31028-14


traumatic intrathoracic aortic transection just distal to the left subclavian

artery” and also as “an aortic transection due to blunt force trauma.” Id.,

Exhibit B at 1; Exhibit C at 1.    Third, the death certificate stated that

Decedent’s cause of death was “aortic arch rupture.”    Id., Exhibit D at 1.

Fourth, the responding EMT, Dean, testified that it was his “impression” that

“the major internal trauma [that Decedent suffered] was from the vehicle,

from [Decedent] hitting the steering wheel and from the airbag.”         Id.,

Exhibit G at N.T., 10/24/2013, at 46 (Deposition of S. Scott Dean).

     Fifth, the crash investigation report, completed by Calspan, “focused

on the severity of the crash and the source of injury that contributed to the

death of a 54-year old female driver[, Decedent,] of a 1995 Ford Escort.”

Moreover, it stated:

            [Decedent’s] Escort struck the back of a stopped 2003
     Jeep Grand Cherokee at a three-leg intersection which resulted
     in minor severity frontal damage to the Escort and the
     deployment of the Escort’s frontal air bag system. The female
     driver was seated in a mid to forward track position and was in
     the path of the expanding air bag. The driver’s air bag expanded
     against her chest which resulted in a complete laceration of the
     aortic arch.

                                        …

           The driver was heavily intoxicated with a police reported
     BAC of .289. She was seated in a forward track position and
     unrestrained. It was possible that the driver was slumped
     forward immediately prior to impact.      At impact, the first
     generation frontal air bag system deployed. The driver was
     within the path of the deploying driver’s air bag as she
     responded to the frontal crash forces. The expanding air bag
     contacted the chest of the driver which resulted in a complete
     laceration of the aortic arch.

                                   - 11 -
J-A31028-14


Id., Exhibit H at 1, 7.

      Lastly, with respect to Hensler, he has a Ph.D. in physics. Id., Exhibit

I at 2.   He is a former director for Breed Technologies, a company that

supplied airbag crash detection sensors to Ford, and he was in charge of

developing   sensor   calibration   software   and   new   sensor   and   airbag

technology from 1989 to 1997.       Id.   In his report, he made the following

conclusions with respect to Decedent’s accident:

             The Calspan report and the medical records state that Ms.
      Becker died because of a ruptured aorta resulting from blunt
      force trauma which implies aggressive contact with the deploying
      airbag. Given her small stature, [Decedent] is in a category
      of drivers most susceptible to injuries of this type simply
      because they are located in closer proximity to the steering
      wheel than a taller person.       If the airbag fires 10 to 20
      milliseconds late, then there is an increasing likelihood that
      [Decedent] would be in the deployment zone at the time of
      deployment. The problem is exacerbated if you consider that
      [Decedent] is a 5% female, so she would be positioned closer to
      the steering wheel prior to deployment because of her seat
      position. Thus[,] the assumed 5 inch movement during the
      crash would mean she would be inside the deployment zone
      even if the airbag deployed on time. The degree of further
      movement into the deployment zone increases rapidly depending
      on the time delay in firing late. Deployment speeds for airbags
      are in the 150 mph range and are the highest when measured
      closer to the steering wheel. When near fully deployed, a well
      designed airbag drops to near zero velocity. Thus short drivers
      are far more susceptible to severe injury or death in cases of late
      deployments because the driver is inside the deployment zone
      when the airbag deploys.

      Based on my inspection and documents I have reviewed, I am of
      the opinion that:

      1 – The airbags fired late because of the extreme outboard
      location of the point of impact.


                                     - 12 -
J-A31028-14


      2 – The late deployment resulted in [Decedent] being in the
      deployment zone at the time the driver side airbag deployed
      resulting in her chest being exposed to extreme levels of force
      from the inflation of the airbag and contributing to her death.
      The impact ruptured her aorta. [Decedent] was a short person
      closer to a 5% female in terms of relative size and was seated in
      close proximity to the steering wheel vs. a 50% male which was
      assumed in the sensor calibration process.

      3 – The sensor location contributed to the late deployment and
      had they been mounted further apart or if a third sensor had
      been added, the crash could have been detected in a timelier
      manner thus deploying the airbag before [Decedent] entered the
      deployment zone.

      4 – Ford did not conduct sufficient low speed extreme offset
      vehicle to vehicle crash testing to see if the firing time response
      was acceptable for the sensor calibration chosen.

      5 – The decision by Ford to use two frontal sensors versus a
      greater number of sensors also contributed to the death of
      [Decedent].    Placing sensors outboard of the radiator was
      possible leading to a shorter delay time in firing….

      6 – The sensor system in this vehicle is a defective design which
      is a substantial contributing factor in the death of [Decedent].

Id. at 7-8.

      We      conclude   Houser   has failed to   produce   sufficient evidence

establishing a prima facie case that a delay defect in the sensors caused the

rupture.   In regards to the medical records, death certificate, and police

report, this evidence describes the accident and the cause of death, a

ruptured aorta caused by blunt force trauma, but does not attribute the

injury to the deployment of the airbag.        With respect to the responding

EMT’s testimony, while Dean states it was his “impression” that the trauma

Decedent suffered was the result of Decedent hitting the steering wheel and

                                      - 13 -
J-A31028-14


the airbag, he does not provide any explanation on a link between an

allegedly defective airbag system and the Decedent’s injuries.

       Lastly, and of most importance, the Caplan and Hensler reports

provide no medical explanation as to how the late-firing impact of an airbag

causes an aortic rupture.        The reports merely state the airbags expanded

against Decedent’s chest, which resulted in the laceration of the aorta, but

do not provide a medical explanation as to how the impact ruptured the

aorta. Moreover, Hensler is not a medical expert nor did he present any

medical expert evidence to support his conclusion. He makes assumptions

that the delay in the deployment of the airbags caused the ruptured aorta7

but does not present any evidence to explain how the trauma occurred. “It

is well settled that expert testimony is incompetent if it lacks an adequate

basis in fact,” and that, “[w]hile an expert’s opinion need not be based on an

absolute certainty, an opinion based on mere possibilities is not competent

evidence.”     Viener v. Jacobs, 834 A.2d 546, 558 (Pa. Super. 2003).

Furthermore, Hensler also opines there was a possibility that Decedent

would have been in the “deployment zone” even if the airbags deployed in a

timely manner based on her small stature.          Therefore, we conclude the

evidence was insufficient to establish prima facie case that the defective
____________________________________________


7
   For example, Hensler notes there was “an increasing likelihood” that
Decedent was in the deployment zone at the time of deployment. Houser’s
Response In Opposition to Ford’s Motion for Summary Judgment,
2/27/2014, Exhibit I at 7.


                                          - 14 -
J-A31028-14


airbag sensors caused Decedent’s aortic arch rupture, resulting in her

death. Accordingly, because Houser did not provide any other evidence to

support his causation argument, we find Hosuer’s first argument fails.

      With respect to Houser’s second issue, as an alternative, he contends

he should be permitted time to retain a medical expert to opine on the

causation element of the crashworthiness test.     See Houser’s Brief at 13.

He states Ford would not suffer any prejudice because the deadline for

providing expert reports had not passed when he made the request.        Id.

Moreover, he contends his request “for leave to provide an expert report was

reasonable and should have been granted particularly where the record

evidence clearly identified the [D]ecedent’s cause of death, and no evidence

was proffered by [Ford] through an expert or otherwise disputing same.”

Id. at 15.

      With respect to this claim, we are guided by the following:

      Although parties must be given reasonable time to complete
      discovery before a trial court entertains any motion for summary
      judgment, the party seeking discovery is under an obligation to
      seek discovery in a timely fashion. Kerns v. Methodist Hosp.,
      393 Pa.Super. 533, 574 A.2d 1068, 1074 (1990). Where ample
      time for discovery has passed, the party seeking discovery (and
      opposing summary judgment) is under an obligation to show
      that the information sought was material to their case and that
      they proceeded with due diligence in their attempt to extend the
      discovery period. Id., 574 A.2d at 1074.

Reeves v. Middletown Athletic Ass’n, 866 A.2d 1115, 1124 (Pa. Super.

2004). See also Fort Cherry School Dist. v. Gedman, 894 A.2d 135, 140

(Pa. Super. 2006) (reasoning “[t]he Pennsylvania Rules of Civil Procedure do

                                    - 15 -
J-A31028-14


not give [parties] an unlimited amount of time to conduct discovery”).

However, this Court has previously stated that the purpose of Rule 1035.2

“is to eliminate cases prior to trial where a party cannot make out a claim or

defense after relevant discovery has been completed; the intent is not to

eliminate meritorious claims prematurely before relevant discovery has been

completed.”      Burger v. Owens Illinois, Inc., 966 A.2d 611, 618 (Pa.

Super. 2009) (quotation omitted).

       A review of the record reveals Ford filed the supplemental motion for

summary judgment in February of 2014, over four years after Houser

instituted the suit against Ford in November of 2009.8              Discovery began

shortly thereafter.      On August 30, 2013, the trial court entered a case

management order, setting the discovery extension deadline for November

30, 2013, the deadline for Houser’s expert reports to be January 15, 2014,

and the deadline for Ford’s expert reports to be April 15, 2014. See Case

Management Order, 8/30/2013, at 1. The court also ordered that motions

for summary judgment and briefs were to be filed no later than May 20,

2014, and opposition responses were due 30 days therafter. Id. Houser’s

discovery request for a medical expert was filed after Ford filed the

supplemental motion, which was also after the expiration of his own expert

reports   deadline.       See    Houser’s      Response   in   Opposition   to   Ford’s
____________________________________________


8
   We also note Ford filed the initial motion for summary judgment in
October of 2012.



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J-A31028-14


Supplemental Motion for Summary Judgment, 2/27/2014, at unnumbered

12. Houser had approximately four years to engage in discovery relevant to

the issue of causation.9       See Wolloch v. Aiken, 815 A.2d 594, 597 (Pa.

2002) (holding trial court properly entered summary judgment against

plaintiff where plaintiff did not submit an expert report before close of

discovery period).         Therefore, Houser’s second argument also   fails.

Accordingly, we discern no abuse of discretion and/or error on the part of

the trial court in granting Ford’s supplemental motion summary judgment in

this matter.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2015




____________________________________________


9
   Moreover, Houser did not allege that he proceeded with due diligence in
his attempt to extend the discovery period. Reeves, 866 A.2d at 1124.


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