PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARK N. SILVESTRI,
Plaintiff-Appellant,

v.                                                                 No. 99-2142

GENERAL MOTORS CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-97-4214-WMN)

Argued: March 2, 2000

Decided: April 21, 2000

Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Niemeyer wrote
the opinion, in which Judge Widener and Judge Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: Marc Seldin Rosen, SCANLAN, ROSEN & SHAR,
L.L.C., Baltimore, Maryland, for Appellant. Brigit M. Macksey,
PIPER, MARBURY, RUDNICK & WOLFE, L.L.P., Baltimore,
Maryland, for Appellee. ON BRIEF: Proctor D. Robison, Ann Arbor,
Michigan, for Appellant. Eric S. Namrow, PIPER, MARBURY,
RUDNICK & WOLFE, L.L.P., Washington, D.C., for Appellee.

_________________________________________________________________
OPINION

NIEMEYER, Circuit Judge:

Mark Silvestri filed this products liability action against General
Motors Corporation, alleging that the air bag in a 1995 Chevrolet
Monte Carlo he was driving did not deploy as warranted when he
crashed into a utility pole and that, as a result, his injuries from the
accident were enhanced. The district court granted General Motors'
motion for summary judgment, concluding that without the testimony
of a qualified air bag expert, Silvestri could not offer competent testi-
mony to make out a prima facie case that the air bag was defective.
We vacate the summary judgment and remand because, under appli-
cable New York law, a plaintiff may make out a prima facie products
liability case circumstantially without direct evidence of a product
defect.

I

On November 5, 1994, Mark Silvestri was involved in a single
vehicle crash in Preble, New York. Driving a 1995 Chevrolet Monte
Carlo at a speed estimated by experts for both sides to be approxi-
mately 72 mph, Silvestri lost control of the vehicle on a curve and slid
off the road. His car slid sideways through a split-rail fence and, mov-
ing now at 67 mph, as calculated by Silvestri's expert, obliquely hit
a utility pole with the front center of his car. The car spun around the
pole, which acted as a fulcrum, and continued for some distance
beyond into the front yard of a residence. The oblique impact with the
utility pole caused a V-shaped depression in the front center of the
automobile approximately 18 inches deep, as estimated by Silvestri's
expert, causing the frame of the vehicle to buckle and moving the util-
ity pole at ground level about 4 inches. The vehicle's air bag did not
deploy during the accident and, although Silvestri was wearing his
seat belt, he sustained severe facial lacerations and bone fractures and
is disfigured as a result. At the time of the accident, the 1995 Monte
Carlo was new, registering only 5,627 miles on its odometer.

Silvestri retained two accident reconstruction experts who exam-
ined the car and visited the accident scene approximately one week
after the accident. They inspected the scene and took measurements

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and photographs. They also retained a land surveyor who prepared a
survey of the scene. Based on the experts' inspections of the car, the
skid marks, the accident scene, the survey, and computer calculations,
they each rendered the opinion that when the front of Silvestri's vehi-
cle obliquely hit the utility pole, the impact to the front of the vehicle
was equivalent to a 24 mph head-on collision with a fixed barrier --
the "barrier impact speed." They explained that the barrier impact
speed essentially measures the head-on rate of deceleration at the
front of the vehicle, taking into account the "give" in both the object
into which the car crashes and the car itself as it crumples. They cal-
culated the vehicle's barrier impact speed by taking into account the
forward speed of the vehicle, the angle of impact with the utility pole,
and the extent of damage to the front of the vehicle.

These experts concluded that the failure of the air bag to deploy at
a barrier impact speed of 24 mph was inconsistent with General
Motors' statement in the Monte Carlo's owner's manual about when
the air bag would deploy. The owner's manual for the vehicle pro-
vides:

          When should the air bag inflate?

          The air bag is designed to inflate in moderate to severe fron-
          tal or near-frontal crashes. The air bag will inflate only if
          you're going fast enough. For example, if your vehicle goes
          straight into a wall that doesn't move or deform, the air bag
          will inflate at between 9 and 15 mph. . . . However, if your
          vehicle strikes something that will move or deform, such as
          a parked car, your air bag will inflate only at a higher speed.
          The air bag is not designed to inflate in rollovers, side
          impacts, or rear impacts, because inflation would not help
          the occupant.

Finally, these experts concluded that Silvestri's severe facial inju-
ries would not have occurred had the air bag functioned properly. In
reaching that conclusion, they rejected as inaccurate an accident
reconstruction provided by General Motors suggesting that Silvestri's
face was struck by a fence rail.

Because Silvestri allowed his insurance company to repair and sell
the vehicle after the investigation by his experts, General Motors was

                     3
able to inspect the vehicle only after the repairs were completed. Gen-
eral Motors' air bag inspector analyzed the information from the air
bag's "sensing and diagnostic module," which constantly monitors
and diagnoses the air bag's components, including its electronic sen-
sors that cause the air bag to deploy during certain collisions, and
found that the module had not recorded any faults. He concluded that
the air bag system performed as designed during Silvestri's accident
and that the air bag was not designed to deploy under the conditions
of the accident. Recognizing that the air bag system was "designed to
deploy in a frontal barrier impact of 9 to 14 miles per hour," General
Motors' expert formed an opinion that because the front of the vehicle
had struck the utility pole obliquely or sideways, the car's change in
speed and its sideways direction did not produce the conditions under
which the air bag was designed to deploy.

Challenging the crashworthiness of the 1995 Monte Carlo, Silvestri
brought this diversity-jurisdiction action against General Motors
under theories of negligence, breach of implied warranty, breach of
express warranty, strict liability, and res ipsa loquitur, alleging that
the Monte Carlo's air bag system was defective because it did not
deploy during the accident and that the air bag's failure to deploy
enhanced his injuries. Following General Motors' motion for sum-
mary judgment, the parties presented the district court with the reports
of their experts as well as backup data, calculations, photographs, and
other evidence. While Silvestri presented the reports of his recon-
struction experts, he did not present expert testimony on air bag
design, explaining that he did not dispute the expert testimony pro-
vided by General Motors describing how air bags are designed and
how they function. Indeed, Silvestri advised the court that he planned
to offer General Motors' testimony to explain the air bag's design.
Silvestri's opposition to General Motors' motion was based on the
contention that the air bag did not perform as intended, i.e., as war-
ranted in the owner's manual, and that there was no other cause for
his enhanced injuries.

The district court granted General Motors summary judgment, con-
cluding that Silvestri could not meet his burden of establishing a
prima facie case because his reconstruction experts lacked "sufficient
knowledge of the design, manufacture, assembly or engineering of air
bag systems to qualify them to render an expert opinion regarding the

                    4
alleged defect in this case." The court explained, "Without the assis-
tance of expert testimony, any lay determination regarding the nonde-
ployment of the air bag is outside the realm of juror understanding
and is therefore impermissibly speculative." Based on its conclusion
that Silvestri "cannot establish a prima facie case without the use of
competent expert testimony," the court entered summary judgment in
favor of General Motors. This appeal followed.

II

The parties agree that New York substantive law should govern the
disposition of this case. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313
U.S. 487, 496 (1941) (holding that federal courts must apply the
choice-of-law principles of the state in which they sit); Hauch v. Con-
nor, 453 A.2d 1207, 1209-10 (Md. 1983) (holding that Maryland
adheres to the choice-of-law rule of lex loci delicti, under which
courts must apply the substantive tort law of the state in which the
injury occurs). In this case, the accident occurred and the injury was
sustained in the State of New York.

Under New York law, a plaintiff in a products liability case is not
required to prove a specific defect, "especially where the product is
complicated in nature." Codling v. Paglia, 298 N.E.2d 622, 625 (N.Y.
1973). The plaintiff may prove that the product was defective through
circumstantial evidence if he (1) establishes that"the product has not
performed as intended" and (2) excludes "all causes of the accident
not attributable to [the] defendant." Halloran v. Virginia Chemicals,
Inc., 361 N.E.2d 991, 993 (N.Y. 1977). These requirements, slightly
modified, apply as well to second collision cases (crashworthiness
cases), in which the plaintiff does not claim that the defect caused the
accident itself, but rather that the defect enhanced or aggravated his
injuries. See Pesce v. General Motors Corp., 939 F. Supp. 160, 162-
64 (N.D.N.Y. 1996). To prove circumstantially a products liability
claim grounded in the second collision doctrine, a plaintiff must show
that the product did not perform as intended and must exclude all
causes of his enhanced injuries not attributable to the defendant. See
Pesce, 939 F. Supp. at 164.

To establish that the air bag did not function as intended in this
case, Silvestri presented evidence that General Motors represented in

                    5
the owner's manual for the 1995 Monte Carlo that the air bag would
deploy "in moderate to severe frontal or near-frontal crashes" and that
if the vehicle were to crash, for example, straight into an immovable
wall at between 9 and 15 mph, the air bag would inflate. Silvestri also
presented expert testimony from two accident reconstruction experts
that he collided with the utility pole at a speed equivalent to a 24-mph
direct impact into an immovable wall, and that the air bag did not
inflate. Moreover, he noted that General Motors did not contend that
the air bag was in any way altered from its original state before the
accident. The district court acknowledged that Silvestri's experts had
extensive experience and knowledge in the area of accident recon-
struction and that their opinions about the frontal impact speed of Sil-
vestri's car could be considered to fall within the purview of their
expertise. See General Elec. Co. v. Joiner, 522 U.S. 136, 141-43
(1998) (holding that district court has discretion in determining
whether to receive expert testimony).

To exclude causes of his enhanced injury not attributable to Gen-
eral Motors' product, Silvestri offered the testimony of his experts
that Silvestri's injuries were caused by the nondeployment of the air
bag. Their opinions challenged all of General Motors' assertions
regarding causes of Silvestri's facial injuries not attributable to the
functioning of the air bag, particularly General Motors' contention
that a portion of a fence entered the passenger compartment of the
vehicle and struck his face.

Neither element essential to establish a prima facie case under New
York law would appear to require proof of what occurred within the
air bag system itself. Accordingly, Silvestri was not required to pro-
vide expert testimony as to how the air bag actually performed or why
it did not inflate. Rather, New York law establishes that a plaintiff
need merely prove that the product did not perform as intended and
must exclude all causes of the relevant injuries not attributable to the
defendant. See Pesce, 939 F. Supp. at 162; Halloran, 361 N.E.2d at
993. If a plaintiff meets these burdens, circumstantial proof is suffi-
cient under New York law to establish a prima facie case in a prod-
ucts liability suit.

Factual evaluations about the existence of a product defect and its
causation may often be difficult or in some cases impossible without

                     6
the testimony of a witness with scientific or technical expertise. See
Fed. R. Evid. 702. But in order to justify dismissing a case because
the plaintiff has failed to present expert testimony, a court must find
that the facts necessary to establish a prima facie case cannot be pre-
sented to any reasonably informed factfinder without the assistance of
expert testimony.

While the district court acknowledged that the testimony of Sil-
vestri's experts might be received to provide evidence on the recon-
struction of the accident's events, it determined that these experts
"lack[ed] the requisite experience or understanding to proffer an opin-
ion regarding whether the air bag failed to deploy as it was intended
or whether there were other causes effecting the nondeployment of
the air bag in the present case." The court reasoned, "Without the
assistance of expert testimony, any lay determination regarding the
nondeployment of the air bag is outside the realm of juror understand-
ing and is therefore impermissibly speculative." But Silvestri argues
persuasively that under New York law, he is not required to provide
an explanation of why the air bag did not deploy, nor is he required
to demonstrate any defect with direct evidence. He maintains cor-
rectly that he can employ the proof scheme established for presenting
a circumstantial case.

In this case, Silvestri presented evidence (1) that the air bag was
intended to deploy in a frontal crash with a barrier at a speed of 9-15
mph, as represented to lay persons in the vehicle's owner's manual,
(2) that his crash with the utility pole was the equivalent of a barrier
crash at a speed of 24 mph, and (3) that the air bag did not deploy.
He also presented evidence to demonstrate that his enhanced injuries
were not caused by factors other than the nondeployment of the air
bag itself. Moreover, there was no evidence of prior tampering or
misuse of the air bag. Under New York law, these facts are sufficient
to entitle a jury to "infer" that a defect in the air bag caused Silvestri's
enhanced injuries. See Pesce, 939 F. Supp. at 162; Halloran, 361
N.E.2d at 993; Codling, 298 N.E.2d at 625.

Any evidence offered by General Motors that the air bag did not
contain a defect could only tend to counter Silvestri's circumstantial
evidence and thus render inappropriate his reliance on the inference.
Indeed, in this case General Motors' experts examined the air bag

                      7
device and were unable to find any defect within the electronic mech-
anisms themselves. These experts gave the opinion that the circum-
stances under which the air bag was designed to deploy were not
present during Silvestri's accident. But these facts do no more than
create a triable question of fact under New York law. See Codling,
298 N.E.2d at 625 ("Chrysler [laid] great stress on the alleged failure
of proof of any specific defect in the power steering system and the
inadequacy of plaintiffs' tests to prove the defect.. . . These issues
were fairly put to the jury"). It may well be that General Motors will
be able to persuade a jury that the air bag in this case performed
exactly as it was designed to perform because of the nature of the
impact of Silvestri's vehicle with the utility pole. But because Sil-
vestri has made out a prima facie case based on circumstantial evi-
dence of a defect, this issue cannot be resolved on summary
judgment.

III

General Motors urges us to affirm the judgment of the district court
on the basis of Silvestri's alleged spoliation of evidence because he
repaired the automobile without giving General Motors an opportu-
nity to inspect it before the repairs. We decline, however, to reach that
issue because even if the doctrine of spoliation applies to the circum-
stances of this case, the district court has broad discretion to address
the matter, and in this case, the district court did not address spolia-
tion in its ruling on General Motors' motion for summary judgment.

For the foregoing reasons, we vacate the judgment of the district
court and remand the case for further proceedings.

VACATED AND REMANDED

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