Seventh Circuit rules res ipsa loquitor inapplicable.

• Author: Ziemer, David

Byline: David Ziemer

In some products liability cases, the plaintiff can obtain a res ipsa loquitur instruction, but not one claiming that an airbag deployed prematurely after the car hit a pothole. The Nov. 29 decision by the Seventh Circuit also included more fireworks on deficient jurisdictional statements. Magdalene M. Smoot was driving a one-year-old Mazda at 35 to 40 mph, when she struck a pothole, triggering deployment of the airbags. The airbags caused extensive jaw injuries to Smoot. The day before the accident, Smoot had received a notice from Mazda that her model had an increased risk of premature airbag deployment, and that she should have the control unit reprogrammed. Smoot's husband made an appointment to do so, but the accident occurred first. Smoot brought suit in Wisconsin state court against Mazda and its insurer, and the defendants removed the case to federal court. Smoot attempted to proceed on a res ipsa loqitur theory, arguing that, because an airbag should not deploy unless the vehicle strikes something, Mazda had the burden of showing that the product was not defective. The district court disagreed, but although discovery had closed, the court allowed Smoot to retain an expert to prove her case. Later, however, the court concluded that the expert retained was not qualified under FRE 702, and disqualified him. Without any expert testimony, the court held that summary judgment must be granted to Mazda. Smoot appealed, but the Seventh Circuit affirmed in a decision written by Judge Richard A. Posner, and joined by Judge Frank H. Easterbrook. Judge Terence T. Evans wrote a concurrence. Jurisdiction Before addressing the merits, the lead opinion discussed a litany of problems with the parties' jurisdictional statements. First, the court criticized Smoot for stating that diversity jurisdiction was based on diversity of citizenship "and the jurisdictional amount of $75,000." The court noted that diversity depends on the amount "exceeding" $75,000. In addition, the statement stated only that Mazda is a foreign corporation incorporated in California, but did not give its principal place of business. Finally, the statement fails to mention the citizenship of Mazda's insurer. Turning to the appellees' jurisdictional statement, the court found it deficient for stating that the appellees are "citizens of a different state" from the appellants, but without indicating what of what states they are citizens. Because of these defects, the court had asked the parties to submit supplemental jurisdictional statements, but the court found these deficient, also. The court noted...