Mohammad v. Toyota

947 A.2d 598

179 Md. App. 693

Pazir MOHAMMAD v. TOYOTA MOTOR SALES, U.S.A., INC. et al.

No. 0183, Sept. Term, 2007.

Court of Special Appeals of Maryland.

May 8, 2008.

Anthony T. Bartlett (Mister, Winter & Bartlett, LLC on the brief), Timonium, for appellant.

Joel A. Dewey (DLA Piper US LLP on the brief), Baltimore (Michael J. Budow, Anne K. Howard, Budow and Noble PC on the brief), Bethesda, for appellee.

Argued before SALMON, JAMES R. EYLER and RAYMOND G. THIEME, JR., (Retired, Specially Assigned), JJ.

THIEME, J.

This products liability action arises out of a single vehicle accident that occurred on the Dulles access road in Fairfax, Virginia on February 15, 2003. This matter is before us on appeal by plaintiff Pazir Mohammad from the entry of summary judgment in favor of defendants Toyota Motor Sales USA ("Toyota"), Darcars of Cherry Hill, Inc., and Aseer Mohammad. The defendants are the manufacturer, retail dealer, and the owner of the 2003 Toyota Tundra truck that was involved in the accident. Appellant was the driver of the Tundra at the time of the accident, and was seriously injured as a result. A passenger lost his life.

On appeal, appellant contends that the circuit court erred in granting summary judgment. The key to this appeal is whether the absence of an expert as to the presence of a defect or causation corrodes appellant's case. The circuit court ruled that it did, and, under the circumstances found here, we affirm the entry of summary judgment as to all defendants in all respects for the reasons that follow.

BACKGROUND

A. Facts

The indispensable facts, viewed in the light most favorable to the appellant, are these. Appellee, Aseer Mohammad ("Aseer"), is the appellant's brother and the Tundra's owner. On December 4, 2002, Aseer, accompanied by appellant, purchased a new 2003 Toyota Tundra pickup truck from Darcars of Cherry Hill Road, Inc. He allowed only appellant to drive the Tundra.

On December 27, 2002, appellant took the Tundra to the Darcars service department, complaining that the truck seemed to pull to the left. After an inspection, Darcars's mechanics told appellant that they found no mechanical, structural, or other defects with the Tundra and instead attributed the phenomenon to uneven tire pressure. Appellant took the truck, and later called Darcars back to complain that the problem continued. Although Darcars said that it would arrange to have a Toyota engineer or field representative call him to schedule another inspection of the truck, appellant claims that no one from Darcars contacted him again. Appellant continued to drive the Tundra because the dealer assured him that the truck had no mechanical, structural, or other defect.

On February 15, 2003, appellant, who owned a construction company, drove the Tundra to a job site in Silver Spring. His brother Aseer and another brother accompanied him. A friend, Mr. Khalid Mahmoud, came to the job site and asked for a ride to Dulles International Airport to see a relative. Appellant and he then left for the airport, and stayed there a short time. At about 3:50 p.m., they were returning to Maryland, had just left the parking lot at the Dulles International Airport, and were pulling away from a toll booth heading eastbound on the access road when the Tundra began to accelerate without warning. The accelerator appeared to be stuck, and when appellant pushed, the accelerator went "all the way down." Appellant checked to make sure the cruise control had not engaged, opened his side window, and waved his arm to alert drivers in front of him to get out of the way. After four miles of travel, appellant applied the brakes and heard a breaking sound coming from the engine compartment. The Tundra veered to the left, crossed the median strip, hit a Jersey barrier, and rolled on its side. Appellant was severely injured, and Mr. Mahmoud was killed.

The summary judgment record includes these additional facts. In August 2005, Toyota issued a "Safety Recall Notice" — SSC 50J. The notice represented that "Toyota has decided that a defect, which relates to motor vehicle safety, exists in the Front Suspension Lower Ball Joint of certain 2002 through early 2004 Tundra and Sequoia vehicles."

Appellant deposed three Toyota experts-Steven Fenton, P.E., Robert M. Landis, and Donald F. Tandy, Jr.¹ Landis inspected the Tundra and testified that the "left side ball joint ... on this vehicle is still intact, feels good, works properly and is not a separated ball joint, which is the phenomenon associated with the recall. . . . [T]he ball joint is in excellent shape." Landis opined that the steering components did not break until after the truck hit the Jersey barrier or when it rolled over:

Q. Did you notice whether any portions of the steering or suspension system on the left side were no longer in working order?

A. Yes. The steering knuckle on the left side is bolted to the housing that the ball joint is in. There's four bolts that hold it and those four bolts were sheared in the impact.

* * *

And there has been some distortion to all the pieces in the suspension on the left side I would say as a result of impact.

* * *

... [T]hey're broken, they had tensile failure.

* * *

Q. Do you have an opinion as to how the bolts broke or what caused the bolts to break?

A. I have a preliminary opinion. I would want to see the reconstruction to have a complete opinion, but the bolts could have broke as a result of the impact with the median or they could have broke as a result of the rollover.

* * *

... [T]he vehicle came to rest, then the bolts broke.

Toyota expert Donald Tandy testified that the "physical evidence is consistent with both ball joints performing properly."

B. Procedural Background

On February 10, 2006, appellant filed this products liability action seeking damages from seven corporate defendants under theories of strict liability, negligence, breach of the implied warranties of merchantability and fitness for a particular purpose, and breach of express warranty. He also alleged that his brother, Aseer Mohammad, as the owner and bailor of the Tundra, was negligent by "failing to inspect and maintain" the Tundra and by otherwise permitting appellant to drive a vehicle that was defective and unsafe. After certain defendants were dismissed on July 31, 2006, this case proceeded against Toyota, Darcars, and Aseer Mohammad.

On May 12, 2006, the trial court issued a "Scheduling and Pretrial Order." See Md. Rule 2-504.² This Order required, inter alia, that the parties disclose their experts by July 26, 2006. An Amended Scheduling Order reset this due date to September 15, 2006. Appellant did not identify any expert who would address the issue of liability or the presence of a manufacturing or design defect, and did not submit any expert report or opinion with respect to these issues. Discovery closed without any designation by appellant of a liability or defect expert.

On January 16, 2007, each defendant filed a motion for summary judgment. The circuit court held a hearing on these motions on March 7, 2007. Ruling from the bench after hearing argument, the circuit court entered judgment in favor of the defendants on all counts. The court held that, without expert opinion or testimony with respect to the existence of a defect, there was insufficient evidence to go to the jury on the strict liability, negligence, and implied warranty counts. As to the breach of express warranty count, the court entered summary judgment because there was no allegation of an actionable express statement.³ The common thread in the circuit court's analysis of the strict liability, negligence, and implied warranty counts was appellant's failure to identify an expert witness who by testimony or report would offer an opinion with respect to a design or manufacturing defect and the role such defect would have played in causing the accident and resulting injuries. The court noted that "proof of a defect must rise above, surmise, conjecture, or speculation. And there is no right to recovery based on any presumption from the mere happening of an accident." This timely appeal followed.

DISCUSSION

A. Introduction: Choice of Law

The accident took place in the Commonwealth of Virginia. Maryland, unlike most other States, continues to adhere to the lex loci delicti principle set forth in the RESTATEMENT, CONFLICT OF LAWS §§ 378-390. Laboratory Corporation of America v. Hood, 395 Md. 608, 615, 911 A.2d 841 (2006). See Farwell v. Un, 902 F.2d 282, 286 (4th Cir.1990). See also Carter v. United States, 333 F.3d 791, 794 (7th Cir.2003) ("Maryland . . . adheres to the old-fashioned conflicts principle of `lex loci delicti.'"), cert. denied, 540 U.S. 1111, 124 S.Ct. 1078, 157 L.Ed.2d 899 (2004). Thus, "where the events giving rise to a tort action occur in more than one State, we apply the law of the State where the injury — the last event required to constitute the tort — occurred." Laboratory Corporation of America v. Hood, 395 Md. at 615, 911 A.2d 841 (citing cases). But while substantive law of Virginia would be applied, "its application to the facts presented in the forum court is to be determined in accordance with the rules of evidence, inference and judgment of the forum State."⁴ Id. at 616, 911 A.2d 841. Accordingly, "Maryland law ... controls as to the inferences to be drawn from the evidence, the sufficiency of the evidence, the inferences from it to go to the jury and other procedural matters." Vernon v. Aubinoe, 259 Md. 159, 162, 269 A.2d 620 (1970).

B. Summary Judgment

At issue is the propriety of the circuit court's entry of summary judgment in favor of TMS, Darcars and Pazir Mohammad. Pursuant to Maryland Rule 2-501(a), "[a]ny party may file at anytime a motion for summary judgment ... on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law." Rule 2-501(f) provides that "[t]he court...