The Circuit Court of Appeals for the Seventh Circuit upheld the grant of summary judgment where plaintiffs had failed to designate an expert witness on the subject of a vehicle’s design. In Show v. Ford Motor Company, ____ F. 3d ____ (7th Cir. 2011) plaintiffs’ 1993 Ford Explorer, while passing through an intersection, was struck in the left rear wheel by another car. The Explorer rolled over and the driver and a passenger were injured. Plaintiffs claimed that the Explorer was defective because its design rendered it unstable.
By the time discovery had closed the plaintiffs had not designated an expert on the subject of the vehicle design. The Court granted summary judgment on the basis that the suit could not proceed without expert testimony. Plaintiffs claimed that an expert was not necessary because the jurors, as consumers, can find in their own experience all of the evidence required for liability under the consumer-expectation approach. The District Court’s rejection of this contention and the entry of summary judgment was affirmed by the Court of Appeals.
The Circuit Court of Appeals pointed out that perhaps federal rather than state law determines whether expert evidence is essential. However, since the lower court and both parties treated Illinois law applying the consumer-expectation test as applicable, the Court discussed the necessity for an expert witness in light of that test and held that “without an expert’s assistance the juries decision would depend upon speculation, which cannot establish causation – an issue on which plaintiffs bear both the burden of production and the risk of non-persuasion”.