Patt v. Volkswagen Grp. of Am.

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RICHARD PATT, Plaintiff, v. VOLKSWAGEN GROUP OF AMERICA, INC. d/b/a Audi of America, Inc., a foreign corporation, and AUDI AG, Defendants.

No. 22-cv-21585-BLOOM/Torres

United States District Court, S.D. Florida

April 18, 2024

ORDER ON MOTION FOR SUMMARY JUDGMENT

BETH BLOOM UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendants Volkswagen Group of America, Inc., d/b/a/ Audi of America, Inc. (“VWGoA”), and Audi AG's (collectively “Defendants”) Motion for Summary Judgment, ECF No. [89] (“Motion”). Plaintiff Richard Patt filed a Response in Opposition, ECF No. [114], to which Defendants filed a Reply, ECF No. [121]. The Court has carefully reviewed the Motion, the supporting and opposing submissions,^[1]the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, Defendants' Motion is granted.

I. BACKGROUND

This is a personal injury action arising from injuries Plaintiff allegedly suffered on March 28, 2021, while driving an Audi SUV (“Vehicle”) in Miami, Florida. Plaintiff originally filed this action in state court, but VWGoA removed to this Court based on the parties' diversity. ECF No. [1]. On February 27 2023, Plaintiff filed an Amended Complaint, ECF No. [33].

A. Amended Complaint

Plaintiff's Amended Complaint alleges that he was waiting at a stoplight when his seatbelt tightened, pulled him back, crushed his chest, and caused him to suffer a collapsed lung. Id. ¶¶ 1112. He claims that the cause of the seatbelt tightening was Audi's “pre sense® rear technology,” which is designed to detect impending rear-end collisions and initiate preventive measures to protect occupants from injury. Id. ¶¶ 14-15. He asserts that the pre sense® rear technology is defective and was “falsely triggered” by bicyclists who passed near the Vehicle. Id. ¶ 16.

Plaintiff alleges one count of Strict Products Liability (Count I) against Defendants. Count

I asserts theories of “design defect, manufacturing defect, and failure to warn.” Id. ¶ 23. Plaintiff also asserts a Count of Negligence against VWGoA (Count II) and a Count of Negligence against Audi AG (Count III). Count II asserts theories of “design defect, manufacturing defect, and failure to warn.” Id. ¶ 32. Count III alleges a theory of failure to warn. Id. ¶ 38.^[2]

B. Material Facts

Based on the Parties' briefings and the evidence in the record, the following facts are not genuinely in dispute unless otherwise noted.

Audi developed, designed, manufactured, assembled and tested Plaintiff's Vehicle, a 2021 Audi Q8. SMF ¶ 1; SAMF ¶ 1. Plaintiff's Vehicle is equipped with Audi's pre sense® technology. SMF ¶ 1; SAMF ¶ 1. Audi's pre sense® technology, within the limits of the system, “can initiate measures in certain driving situations to protect vehicle occupants ....” ECF No. [92-1]. Audi's pre sense® rear technology does so by using “data from radar sensors at the rear corners of the vehicle and calculat[ing] the probability of a rear-end collision ....” ECF No. [92-2]. One of the

“preemptive safety measures” that “can be initiated if the risk of a collision with the vehicle behind you is detected[]” is the “reversible tensioning of safety belts.” ECF No. [92-3]. The pre sense® rear technology activates a reversible pretensioner when a risk of collision is detected, which uses an electric motor to tighten the seatbelt to “couple the occupant closely to the seat so that the forces in the event of a rear-end collision do not lead to large acceleration distances for the body.” ECF No. [92-4] ¶ 24.

Plaintiff leased his Vehicle from Rancho Mirage Audi dealership in Rancho Mirage, California on December 30, 2020. SMF ¶ 3; SAMF ¶ 3. In December 2019, Plaintiff came down with either pneumonia or COVID-19. SMF ¶ 4; SAMF ¶ 4. This caused Plaintiff to suffer from chronic coughing, which resulted in separating Plaintiff's ribs from his cartilage, resulting in rib fractures. SMF ¶ 4; SAMF ¶ 4. Plaintiff subsequently underwent surgery to insert three metal plates and screws over his ribs to connect them back together. SMF ¶ 4; SAMF ¶ 4. Plaintiff was diagnosed with a “moderate to large size left pneumothorax[,]” or collapsed lung, during this time. SMF ¶ 4; SAMF ¶ 4. Plaintiff's chest hardware shifted during either May or June of 2020, prompting Plaintiff to undergo revision surgery to re-secure the metal plates and screws. SMF ¶ 5; SAMF ¶ 5.

On March 28, 2021, Plaintiff was in his Vehicle and stopped at a traffic light on Biscayne Boulevard and 15th Street. SMF ¶ 6; SAMF ¶ 6. Plaintiff was driving along with a passenger, David O'Connell (“O'Connell”), who was sitting in the passenger's seat. SMF ¶ 6; SAMF ¶ 6. O'Connell testified that between two and ten “racing-type” bicycles approached the stopped Vehicle from the rear, split around and passed the Vehicle, and ran through the red light while continuing down the street. ECF No. [92-7] at 30-33.^[3]. The bicycles did not collide with Plaintiff's Vehicle. See SMF ¶ 6; SAMF ¶ 6. O'Connell described the bicycles as moving at a “fair clip[,]” and that their speed was “definitely going faster than [O'Connell] would expect . . . at a red light.” Id. at 33. Plaintiff testified that his seatbelt tightened when the bicycles passed the Vehicle, which “threw [Plaintiff] back in [his] seat.” ECF No. [92-5] at 98 (generally, the “Incident”). O'Connell's seatbelt also tightened, but he testified that he was not injured. ECF No. [92-7] at 68.

Plaintiff testified that O'Connell heard him “wheezing” after the Incident, prompting O'Connell to ask Plaintiff if he was feeling okay. ECF No. [92-5] at 133. Plaintiff noted it was quite hot that day and that he “didn't think, even if I was wheezing, that it was connected to anything[]” at that time. Id. at 134. Plaintiff subsequently went home, ordered delivery for dinner, and went to sleep. Id. Plaintiff testified that he “felt fine, other than a little drained from being outside in the heat[]” at this time. Id. Later that night, “chest pain woke [Plaintiff] up.” Id. Plaintiff estimates this occurred sometime between 1 a.m. - 5 a.m. Id. At 6:44 a.m. on March 29, 2021, Plaintiff called fire rescue and was admitted to the hospital with a pneumothorax diagnosis shortly thereafter. ECF No. [92-8] at 3; ECF No. [92-9] at 1. Plaintiff had a chest tube inserted, and his pneumothorax was resolved within 24 hours. ECF No. [92-10]. Plaintiff testified that he was told he suffered a “major pneumothorax” in the emergency room. ECF No. [92-5] at 136.

Plaintiff testified that he had his chest hardware revised again in May 2021 because the plate and screws continued to shift. ECF No. [92-5] at 158. Plaintiff had his chest hardware completely removed in January 2024. SMF ¶ 8; SAMF ¶ 8.

The Vehicle's owner's manual contains the following warnings regarding the pre sense® rear technology:

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SMF ¶ 10; ECF Nos. [92-1]-[92-3].

Plaintiff has not retained an expert who can provide expert warning testimony. SMF ¶ 9; SAMF ¶ 9. Plaintiff testified that he did not read the owners manual's warnings regarding the pre sense® rear technology prior to the Incident. SMF ¶ 11; SAMF ¶ 11; ECF No. [92-5] at 165-67, 170-71.

Plaintiff's disclosed liability expert, Christopher Wilson (“Wilson”), limits his opinions to design defect. SMF ¶ 12; SAMF ¶ 12. Wilson's expert report opines “[t]hat the ‘seatbelt tightening' described by [Plaintiff and O'Connell] was very likely due to an erroneous deployment of the reversible seatbelt pretensioners in the vehicle.” ECF No. [94-1] ¶ 32. Wilson concludes “[t]his event was more likely than not related to the passing bicycles.” Id. Wilson's supplemental expert report further provides that “the specific failure scenario that more than likely caused the erroneous deployment was anticipated by and known to Audi, and that they had encountered this failure scenario in testing, and released the car for production knowing that in certain conditions the scenario would result in erroneous deployment of seatbelt pretensioners.” ECF No. [114-1] ¶ 4. Wilson articulates this “specific failure scenario” as a “dead zone”, or blind spot, resulting from “the configuration of two corner radars looking to the sides and rear of the vehicle with their rear coverage areas converging some distance behind the vehicle, but leaving a cone directly behind the vehicle where there is no coverage.” ECF No. [114-1] ¶ 10.

Plaintiff has not retained an expert to testify on the issues of a manufacturing defect or causation between the Incident and Plaintiff's injuries. SMF ¶¶ 19-20; SAMF ¶¶ 19-20. Relevant here, Plaintiff asserts “an expert on causation is not required.” SAMF ¶ 20. One of Plaintiff's nonretained treating physicians, Dr. Lawrence Ciment (“Dr. Ciment”), initially opined in an April 9, 2021 medical record that he “believe[s] the episode with [the] car restraint caused the puncture that led to the pneumothorax.” ECF No. [92-16]. However, Dr. Ciment testified in his deposition that this opinion is “[b]ased on the story” Plaintiff told him and is not a medical diagnosis based on an evaluation of Plaintiff's medical records. ECF No. [92-17] at 41; SMF ¶ 20; SAMF ¶ 20. When asked about the cause of Plaintiff's pneumothorax, Dr. Ciment testified as follows:

Q. Got it. Right. And then the question would be what caused those screws to penetrate if they did, in fact, penetrate, correct?

A. Right. So we know they penetrated because the CAT scan shows it. I don't know how long they were penetrating or how they got penetrated. That, I don't know.

Q. Okay. Well, let me put it in these terms. You couldn't say with reasonable degree of medical certainty that the tightening of the seatbelt caused the two screws to penetrate into the

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