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Motion 12 - product liability motion in opposition of remittitur

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Plaintiff's Response to Post Trial Motions

Plaintiff, Connie Mikolajczyk, hereby responds to the post trial motions of all defendants:


Explorer Car Crash Death Product LiabilityPlaintiff proved that the 1996 Escort was unreasonably dangerous and that it proximately caused Jim Mikolajczyk's death. This vehicle was unreasonably dangerous for the same reason that the jury in Carrillo v. Ford found the 1991 Explorer unreasonably dangerous. In both cases, the plaintiff made the identical claim: “the driver's seat was designed with inadequate strength.” (Tab 1, Given Instructions in Mikolajczyk, Plaintiffs Instruction, # 11A; Tab 2, Given Instructions in Carrillo, Defendant's Instruction 7). The same experts testified for the plaintiff (Saczalski and Burton) and Ford called Dr. Prasad as its expert in both trials. Both juries were persuaded that Saczalski and Burton carried the burden of proof.

The facts of the cases could not be more similar: belted Ford drivers were seated at red lights when they were rear ended by sedans traveling between 52 - 60 m.p.h. In both cases, the Ford drivers were thrown into the rear seat area by the failure of the driver's seat to stay relatively upright. Lydia Carrillo was paralyzed when her shoulders struck the rear seat seatback. (Tab 3, Carrillo v. Ford, Testimony of Dr. Joseph Burton, 10/22/99, pp. 922-925). Jim Mikolajczyk was killed when his head struck the rear seat seatback or header. (Burton, 2/28 p.m., pp. 35-36, 44-45). Neither Lydia nor Jim suffered any significant injury besides their catastrophic ones. This court denied Ford's post trial motion inCarrillo, the Appellate Court unanimously affirmed, and Ford's PLA was properly denied. This court should deny Ford's requests here.

There is no dispute that Dr. Saczalski was qualified to address the issues of seat design, kinematics and causation. He told the jury that it was feasible for Ford to make a seat that would have performed well and in a safe manner to protect Jim from his fatal injuries in this occurrence. The technology to do so was available in the 1960s, prototypes built in the 1970s, and commercial use of such seats began in the 1980s. (Saczalski, 3/1 a.m., pp. 138-139). He opined that the 1996 Sebring seat was technologically and in all other ways feasible to use in the 1996 Escort.(Saczalski, 3/1 p.m., p. 35).

Dr. Saczalski also opined that it was feasible to modify a standard Ford sedan seat, such as the 1990 Tempo, by using a Starcraft-type belt around the back of the seat, in the 1996 Escort. This would greatly reduce the risk of injury in a rear impact. It would have avoided or eliminated the injuries sustained and protected Jim Mikolajczyk. (Saczalski, 3/1 p.m., pp 58-60). In summarizing his testimony about the many strong seat designs discussed during his two days of testimony, Dr. Saczalski stated:

Q. Do you believe, Dr. Saczalski, that it is feasible using the strong seats that you have discussed to prevent the type of movement that Jim Mikolajczyk had?

A. Yes.

Q. And to have prevented his contact that led to his death?

A. Yes.

Q. And that was feasible in 1996 technologically, in an engineering sense, cost sense and practically?

A. Yes. (Saczalski, 3/2 p.m., p. 53).

Dr. Burton, plaintiff's other liability expert, calculated that a seat with the strength to resist 21,650 inch pounds in a rearward direction would have been sufficient to protect Jim from his fatal injuries. Dr. Burton testified that a seat with that strength was certainly feasible in 1996. (Burton, 2/28 p.m., pp. 158-159).

Ford's in-house design analysis witness, Mr. Burnett, could not offer Ford solace on the feasibility issue. He admitted that Ford could have built a seat as strong as it wished, but that it simply chose not to do so. (Burnett, 3/4 a.m., pp. 39-43). Dr. Prasad and Ford's hired experts did not challenge plaintiffs unrebutted evidence that a strong seat sufficient to prevent this death was feasible.

Dr. Saczalski presented well-qualified evidence that this vehicle was unreasonably dangerous because its seat was weak. Jim's seat collapsed during this impact. The seat was totally insufficient in energy absorption, which is one of the main functions of a seat in a rear impact. As a result of this seat collapse, Jim's body absorbed the energy of the collision when it struck the structure in the rear part of the vehicle. The seat presented an unsafe situation because it did not have sufficient energy-absorbing capacity. It yielded too easily and allowed gross deformation into the rear without any control of the body kinematics. (Saczalski, 3/1 a.m., pp 99-100; 3/1 p.m., pp 61-62).

Dr. Saczalski testified at length that a strong seat would have protected Jim from his fatal injuries. His calculations reached a similar conclusion to Dr. Burton's: a seat capable of withstanding approximately 21,000 inch pounds would have kept Jim in the front part of the vehicle and prevented his death. (Saczalski, 3/1 a.m., pp. 143-146). A seat such as the 1996 Sebring would have provided that level of protection, as would the other seats he identified that had strength characteristics greater than 21,650 inch pounds. (Saczalski, 3/1 p.m., pp. 35-36; 3/1 a.m., p. 114). He testified that the unsafe condition of the Escort was the direct cause of Jim's death. (Saczalski, 3/1 p.m., p. 62).

Dr. Burton likewise testified that the unsafe condition of the seat proximately caused Jim's death. He said that the level of G's involved in this impact, between 9 and 14 G's, was “absolutely manageable.” (Burton, 2/28 p.m., p. 88). The weak seat's performance proximately caused Jim's death.(Burton, 2/28 p.m., pp. 92-93). A feasible seat providing more than 21,650 inch pounds of strength would have prevented Jim's death. (Burton, 2/28 p.m., pp 157-159).

Ford premises its request for JNOV on the mistaken idea that plaintiff is required to prove her case by the risk-utility theory of product liability law, and that she failed to do so. A plaintiff may choose whether to proceed under the consumer expectation or risk-utility theory, or both. A case is sufficient if evidence is presented that makes out a case under either theory. Wortel v. Somerset Industries, Inc., 331 Ill. App. 3d 895, 902-904 (1st Dist. 2002). Plaintiffs evidence established her claim of strict product liability under either option.

This court should deny Ford's request for JNOV. This court should further reject Ford's claim that the verdict is against the manifest weight of the evidence. Plaintiff presented well-qualified experts with solid foundations in the facts, engineering and medicine to support her case.


Ford objected to nearly every instruction on liability issues in this case without showing that any of them incorrectly stated Illinois law. Ford failed to meet its burden to warrant the giving of non-IPI instructions. The controlling rule states:

Whenever IPI contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the IPI instruction shall be used, unless the court determines that it does not accurately state the law. Supreme Court Rule 239(a).

In this regard, “shall” means shall.

Ford has not explained how, if at all, the instructions misled the jury. That is Ford's burden at this stage of the proceedings. As the Supreme Court stated in Schultz v. Northeastern Illinois Regional Commuter Railroad , 201 Ill.2d 260, 273-274 (2002) :

The trial court has discretion to determine which instructions to give the jury and that determination will not be disturbed absent an abuse of that discretion. People v. Simms , 192 Ill. 2d 348, 412 (2000) ; In re Nancy M. , 317 Ill. App. 3d 167, 173 (2000). The standard for deciding whether a trial court abused its discretion is whether, taken as a whole, the instructions fairly, fully, and comprehensively apprised the jury of the relevant legal principles. Palmer v. Mount Vernon Township High School District 201 , 269 Ill. App. 3d 1056, 1062 (1995). A reviewing court ordinarily will not reverse a trial court for giving faulty instructions unless they clearly misled the jury and resulted in prejudice to the appellant. Sinclair v. Berlin , 325 Ill. App. 3d 458, 464 (2001).

No Illinois court has ever held that the liability instructions given in this case were erroneous. No Illinois case says that it is error to use the 400 series instructions.

Many decisions have affirmed that the IPI series on products given here, 400.01 (issues), 400.02 (burden), 400.04 (proximate cause), and 400.06 (definition of unreasonably dangerous) correctly state the law and should be given. Lindsey v. Schick, Inc. , 125 Ill. App. 3d 81, 86 (1st Dist. 1984) ; Arellano v. S.G.L. Abrasives , 246 Ill. App. 3d 1002, 1011 (1st Dist. 1993) ; McGregor v. Ruan Leasing Co., 200 Ill. App. 3d 406, 409 (1st Dist. 1990) ; Erickson v. Muskin Corp., 180 Ill. App. 3d 117, 127 (1st Dist. 1989) ; Hansen v. Baxter Healthcare Corp., 309 Ill. App. 3d 869, 883 (1st Dist. 1999), aff'd 198 Ill. 2d 420 (2002) ; Davis v. International Harvester Co., 167 Ill. App. 3d 814, 829 (2nd Dist. 1988) ; Riordan v. International Armament Corp., 132 Ill. App. 3d 642, 650 (1st Dist. 1985).

The same liability instructions were used in this case as in Carrillo v. Ford Motor Co., 325 Ill. App. 3d 955, 966 (1st Dist. 2001), pet. den.: “We conclude the instructions given the jury in this case ‘fully, fairly and comprehensively informed the jury of the relevant legal principles.’ ” This court should similarly find that Ford's claims of error in instructing our jury do not hold water.


1. Illinois decisions support the consumer expectation standard set forth in the IPI and the Restatement 2nd of Torts, Section 402A .

Before addressing the issues raised by the individual instructions, plaintiff takes issue with Ford's interpretation of Illinois law on product liability. Ford notes that the risk-utility method of proving product liability has been accepted in Illinois, based on Lamkin v. Towner, 138 Ill. 2d 510 (1990). Ford twists this to argue that risk-utility is the only way plaintiff can proceed with a case like this. Ford ignores the clear language inLamkin that makes risk-utility an alternative form of proving up a product liability case. Cf. Hansen v. Baxter Healthcare, 198 Ill. 2d 420 (2002). Neither Lamkin nor any other Illinois case says that the consumer expectation test is the wrong one to use in a product liability case in Illinois. Finally, Ford's reliance on the Restatement 3rd of Torts, Section 2 for Ford's proffered instructions is misplaced. The Restatement makes it plain that its proposed statements of law are not intended to be used to instruct any jury.

The parties briefed the questions raised in this aspect of Ford's motion before trial. The court carefully considered Ford's arguments and rejected them. The cases Ford relied on then do not support the arguments it made. Lamkin v. Towner, supra, Barker v. Lull Engineering Co., 573 P.2d 443 (Calif. 1978) ; Scoby v. Vulcan-Hart Corp., 211 Ill. App. 3d 106, 110 (4th Dist. 1991) ; Wortel v. Somerset Industries, Inc., supra; Kerns v. Engelke, 76 Ill. 2d 154 (1979).

In Lamkin, the Supreme Court recognized that a plaintiff in a products case has two alternative ways to prove liability in a design case:

This court has indicated that strict products liability in Illinois follows the formulation set forth in section 402A of the Restatement (Second) of Torts (1965), which imposes strict liability upon one “who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property.” ( Rios v. Niagara Machine & Tool Works (1974), 59 Ill.2d 79, 319 N.E.2d 232; Martin v. Harrington & Richardson, Inc . (7th Cir.1984), 743 F.2d 1200 (applying Illinois law).... A plaintiff may demonstrate that a product is defective in design, so as to subject a retailer and a manufacturer to strict liability for resulting injuries, in one of two ways: (1) by introducing evidence that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or (2) by introducing evidence that the product's design proximately caused his injury and the defendant fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs. See generally Palmer v. Avco Distributing Corp . (1980), 82 Ill.2d 211, 219-20, citing Barker v. Lull Engineering Co . (1978), 20 Cal.3d 413, 427-28. Lamkin v. Towner, supra at 528.

While a plaintiff is entitled to pursue a consumer expectation design case, that choice does not preclude evidence on risk-utility. Mele v. Howmedica, 348 Ill. App. 3d 1 (1st Dist. 2004). There, an order in limine barred defendant from offering evidence of the benefits and risks of its D-M hip prosthetic system. In discussing the issue, the Appellate Court commented that evidence of a product's risks and benefits are admissible for what a reasonable consumer should expect from the product, citing Beese v. Deere & Co., 237 Ill. App. 3d 497 (3rd Dist. 1992). Mele, supra at 19. The Appellate Court concluded that the risk-utility evidence should have been received even though plaintiff pursued the case as a consumer expectation case.

Here, plaintiff did not try to bar Ford from introducing evidence of the benefits of the design. Plaintiff provided ample evidence of the risks and dangers of Ford's design. It would have been wrong to try to preclude Ford from countering that evidence with Ford's claims that its weak seats provide some benefit. Connie Mikolajczyk did not try to bar evidence of the alleged benefits of Ford's design. The jury heard both sides of the issue. This is exactly what happened in Carrillo. Both juries heard evidence that Ford's seat designs have risks, benefits, and can feasibly be re-designed to avoid this danger. The juries deliberated about whether the claimed condition made the product unreasonably dangerous. That plaintiff had an available alternative theory of liability (risk-utility) does nothing to diminish plaintiffs case; if anything, it strengthens it. Plaintiff proved Ford liable under both consumer expectation and risk-utility.

Ford gets no benefit from its citation to Scoby v. Vulcan-Hart Corp., supra. In Scoby, a kitchen worker burned his arm when he slipped and it went into a deep fat fryer with no protective lid. The trial court granted summary judgment on his products claim, finding the danger was open and obvious. Under those circumstances, plaintiff could not prove his consumer expectation claim. Plaintiff appealed, urging application of the risk-utility alternative method to prove his case. The Appellate Court affirmed the summary judgment and refused to apply the risk-utility analysis since the danger was obvious and the product simple. Scoby is unique under Illinois jurisprudence, and has been overruled by implication. Calles v. Scripto-Tokai Corporation , ––– N.E.2d ––––, 2005 WL 1552834 (1st Dist. 2005).

Ford also cites Wortel v. Somerset Industries, Inc., supra. In Wortel, the trial court granted summary judgment to a manufacturer that persuaded the court that the danger of a pizza dough-rolling machine was open and obvious. The Appellate Court found that the danger was not open and obvious, and reversed the summary judgment. Wortel, supraat 902. The court went on to clarify that:

The consumer expectation test is not the exclusive test to be applied in a design defect case; Illinois permits a plaintiff an alternative method of proving an “unreasonably dangerous” design. In granting defendant's motion for summary judgment, the trial court applied only the consumer expectation analysis that was raised in defendant's motion and incorrectly decided that the open and obvious nature of the risk at issue precluded recovery. Id.

Ford cannot draw any benefit from Kerns v. Engelke, 76 Ill. 2d 154 (1979). The Supreme Court affirmed a plaintiff's verdict in a design defect case. The court did not require plaintiff to prove up an alternative feasible design. The court found that “the plaintiff proved, as he must, to the satisfaction of the fact finder, the unreasonably dangerous nature of the defect in design,' and here he did so by presenting pertinent evidence such as feasible alternative design,” citing Anderson v. Hyster Co., 74 Ill. 2d 364, 368 (1979). Connie Mikolajczyk did exactly the same thing.

Hansen v. Baxter Healthcare Corporation, 309 Ill. App. 3d 869 (1st Dist. 1999), is useful on a number of levels. The design defect case was tried under the IPI 400 series and the appellate court affirmed. Plaintiffs expert simply said the design was not safe “because it can come apart.” Id. at 883-884. Baxter did not think that was enough, but it was wrong:

At first blush, Sheehan's opinion seems too simple. But the law does not necessarily discourage simplicity. Our case law is grounded in a simple question posed by the Restatement: Was the product safe when put to its foreseeable use? ( Restatement 2nd of Torts, para. 402A.) Hansen v. Baxter Healthcare Corporation, supra at 884.

The court found that this was enough to sustain the verdict. The court further noted that the jury had additional evidence to consider: the feasible alternative design of the Luer lock:

Whether the jury used the “consumer expectation test” or a “risk/benefit analysis,” or both--which it may do (see Lamkin, 138 Ill.2d at 529) --it decided the defective design issue against Baxter, and we cannot say that decision was against the manifest weight of the evidence.

Id .

Hansen was appealed further and the judgment was again affirmed. Hansen v. Baxter Healthcare Corporation , 198 Ill. 2d 420 (2002). The court cited Lamkin for its statement that a plaintiff may prove her design defect case either by introducing evidence under the consumer expectation test or the risk-utility test. The court affirmed the analysis by the Appellate Court that the evidence was sufficient under both tests (not that plaintiff was required to prove her case under both tests). Hansen, 198 Ill. 2d at 434-438.

The only new decision since this trial that Ford cites is Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78 (2005).Blue does not change the law in Illinois. It does not support Ford's claim that our jury was improperly instructed. There, Justices Garman and Thomas concurred in a dicta-laden opinion that discusses Ford's hope in this case -Restatement 3rd of Torts, Section 2. The four other justices participating in the case refused to accept the dicta and wrote separate opinions. The language Ford relies on here is not the law of this state for three reasons: (1) it is nothing but dicta, (2) only two justices out of six wrote it, and, most importantly, (3) it contradicts settled Illinois law.

Glen Blue prosecuted a negligent design case against a company that sold a trash compactor. He won a verdict, but the jury answered a special interrogatory to the effect that his putting his foot into a moving compactor was an open and obvious danger. Finding that the answer was inconsistent with the verdict, the trial court entered judgment for the defense. The Appellate Court reversed and remanded the case. The Supreme Court affirmed the judgment of the Appellate Court. Justice Thomas wrote the court's first opinion. It is that lengthy opinion that contains the dicta that Ford cites. Justice Freeman concurred in the affirmance, but noted “I write separately to distance myself from the majority's analysis and its forays into dicta.” Justice Fitzgerald also noted the proliferation of dicta in the majority opinion, and Justice McMorrow concurred in this opinion. Justice Kilbride concurred in part and dissented in part, noting the “unnecessary analysis” in the majority opinion.

The parties argued these points to the high court:

• Does the risk-utility test apply in negligence cases?

• If so, does the risk-utility test apply in cases with simple products where the danger is obvious?

• If so, did plaintiff waive application of the risk-utility test?

• Was the answer to the special interrogatory irreconcilably inconsistent with the general verdict?

• Should the deliberate encounter exception of LaFever v. Kemlite , 185 Ill. 2d 380 (1998) apply here?

Blue , 2005 Lexis 621, pp. 13-14.

The Blue majority opinion made these findings:

• The risk-utility test does not apply to negligent design cases. Id. at 29. Any issue regarding waiver or whether the product is simple becomes irrelevant.

• The deliberate encounter exception does not apply to this case. Id. at 46-7.

• The special interrogatory should not have been given to the jury because it did not and could not have resolved the ultimate issue in the case. Id. at 56-57.

The Blue holding is very simple: the court disregarded the inconsistent answer to the special interrogatory because the question was not dispositive of the case and entered judgment on plaintiff's verdict. Id. at 58-59. The answer to the interrogatory should not have resulted in the jury award being vacated.

Dicta are words unnecessary to the holding of a case and which lack precedential authority. All the words that Ford has relied on in its post-trial motion are dicta. In our case, there was no inconsistent answer to a special interrogatory. There was no need for the deliberate exception doctrine. Our claim was in strict liability. Whether the risk-utility doctrine applies in a negligence case is irrelevant. Blue did not hold, nor does any other Illinois case hold, that a plaintiff must pursue her case under risk-utility instructions.

2. The Restatement 3rd of Torts, Section 2 has not been adopted as Illinois law and does not establish a new standard for instructing juries in strict product liability cases.

Ford suggests that the Restatement 3rd of Torts is now the law of Illinois. It is not. That volume has enormous problems and is based on a weak foundation. To suggest that its pronouncements replace a forty-year history of Illinois precedent in the field of strict product liability is utter nonsense.

Section 2(b) , on which Ford relies, says:

A product: (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.

Comment f to Section 2 limits the applicability of subsection (b) to “what the plaintiff must prove in order to prevail at trial.” (Restatement 3rd Torts, Section 2, Comment f, p. 24).

The Committee that drafted Section 2 then proceeded to demonstrate why Ford's discussion of the Restatement is meaningless:

Sufficient evidence must be presented so that reasonable persons could conclude that a reasonable alternative could have been practically adopted. Assuming that a court concludes that sufficient evidence on this issue has been presented, the issue is then for the trier of fact.This Restatement takes no position regarding the specifics of how a jury should be instructed. Restatement 3rd Torts, Section 2, Comment f, pp. 24-25; see also, Illustration 6, p. 25.

The Restatement 3rd does not purport to tell this or any other court what the jury instructions should say:

Third, Comment f leaves to the several states the decision as to how to phrase jury instructions. The rule set forth in Section 2(b) is a rule of law, addressed to the court,' once sufficient evidence to satisfy risk-utility has been present to the court, the text of jury instruction is for each state to decide. Restatement 3rd Torts, Section 2, p. 55.

The Restatement adopts the view that if a plaintiff does not have evidence of feasible alternative design, the case should not go to the jury, but that if the case goes to the jury, there is nothing wrong with instructing the jury along the lines of the consumer expectation test that the IPI has adopted. For example, the committee favorably cites Betts v. General Motors Corp., 689 P.2d 795 (Kan. 1984). The committee wrote:

As the Betts court made clear, the instructions a court gives to a jury are irrelevant to the burden of proof a plaintiff must meet in order to show a defective design. In Kansas, a plaintiff must first pass a risk/utility test to show a defective design before the case can proceed to the jury. This Restatement does not address appropriate jury instructions; it leaves the issue to local law. The reasonable alternative design requirement of Section 2 is intended to represent the standard a court would apply in determining whether a plaintiff has met the evidentiary burden.

Restatement 3rd Torts , Section 2, p. 68.

In Betts, the jury was given consumer expectation instructions similar to those used in Mikolajczyk. The Kansas Supreme Court said their use was appropriate:

The instruction given to the jury [the consumer expectation test] setting forth the test to be applied in determining whether a product is unreasonably dangerous really has nothing to do with the scope of evidence offered at the trial. In a products liability case involving a claimed design defect, the parties at trial may present evidence as to the degree of the likelihood of harm from an intended and reasonably foreseeable use of the product and the feasibility of a safer design. Betts , 689 P.2d at 801.

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