Ford gets reversed in the 10th Circuit in a case in which the plaintiff asserted negligence and product liability theories, alleging the Ford truck was unreasonably dangerous because it lacked front-wheel anti-lock brakes!
Reversing summary judgment, the court found:
In his deposition testimony, [expert] Medcalf initially conceded that he did not know when Moore began his counter-steer, and therefore could not tell whether anti-lock brakes would have prevented the accident.
Later in that same deposition, however, he categorically stated that four-wheel anti-lock brakes would have prevented the accident.
Q. My question to you is: Had this vehicle had full wheel anti[-]lockbrakes, would the vehicle have been able to come out of that yaw sufficiently to avoid this collision with [M.J.H.]?. . . .[A]. Yes.Q. Is that based on a reasonable degree of engineering certainty? A. Yes.A few questions later, Medcalf repeated this categorical assertion.
Q. Now, looking at your opinion number five on page two of Exhibit 35, you write: It is my opinion that to a reasonable degree of engineering certainty had the vehicle been equipped with a fourwheel anti-lock brake system, it is more likely than not that Mr. Moore would have regained steering capability as he turned the wheels back to the right, allowing him to avoid a collision with[M.J.H.]. Is that still your opinion today? A. Yes.
These assertions are crucial. The entire basis of the district court’s grant of summary judgment was that, once it denied BancFirst’s attempts to alter Medcalf’s testimony, “the court [was] left with a failure of proof on [BancFirst’s] part,” because BancFirst “has no competent evidence that the accident would not have occurred had Moore’s truck been equipped with four-wheel ABS.”
However, in the unaltered deposition, Medcalf asserts that four-wheel anti-lock brakes would have prevented the accident. Even though he appears to contradict himself earlier in the deposition, the evidence viewed in the light most favorable to BancFirst creates a genuine dispute of material fact. Summary judgment was improper.
The appellate court gets it right. Unpublished opinion here.