UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ORDER. Before WILLIAM J. BAUER, Circuit Judge. HOWARD PILTCH, et al.. Plaintiffs - Appellants

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1 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Everett McKinley Dirksen United States Courthouse Room S. Dearborn Street Chicago, Illinois Office of the Clerk Phone: (312) March 26, 2015 ORDER Before WILLIAM J. BAUER, Circuit Judge HOWARD PILTCH, et al.. Plaintiffs - Appellants No v. Bi MM FORD MOTOR COMPANY, et al.. Defendants - Appellees ^^KMHKKHBKKttKKKKBM District Court No: 3:ll-cv JTM-CAN Northern District of Indiana, South Bend Division District Judge James T. Moody Upon consideration of the MOTION FOR LEAVE TO FILE PETITION FOR REHEARING OUT-OF-TIME, filed on March 25,2015, by counsel for Appellant Barbara Nelson-Piltch, IT IS ORDERED that the motion is GRANTED. The mandate is RECALLED and the appeal REINSTATED. The clerk of this court shall file INSTANTER and distribute the tendered petition for panel rehearing. form name: c7_order_3j(form ID: 177)

2 HOWARD PILTCH and BARBARA NELSON-PILTCH, Appellants (Plaintiffs below), UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT APPEAL NO v. FORD MOTOR COMPANY, Appellee (Defendant below). APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA CAUSE NO. 3:11-CV JTM THE HONORABLE JAMES T. MOODY, JUDGE PETITION FOR REHEARING Appellants Howard Piltch and Barbara Nelson-Piltch, by counsel, respectfully petition the Court for a panel rehearing of the Court's February 11, 2015 judgment rendered in this appeal.

3 TABLE OF CONTENTS ARGUMENT 1. The Court'sfindingson expert testimony are a misapplication of Indiana law The Court'sfindingson res ipsa loquitur are a misapplication of law. 5 CONCLUSION 6

4 TABLE OF AUTHORITIES Anderson v. Liberty Lobby. 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) 3 Best Homes. Inc. v. Rainwater. 714 N.E.2d 702 (Ind. Ct. App. 1999) 4 Cansler v. Mills. 765 N.E.2d 698 (Ind. Ct. App. 2002) 1,4 Ramon v. Glenrov Const. Co.. Inc N.E.2d 1123 (Ind. Ct. App. 1993) 3 Silvestri v. General Motors Corp F.3d 240 (4 th Cir. 2000) 1 Smith v. Beatv. 639 N.E.2d 1029 (Ind. Ct. App. 1994) 3 U-Haul International. Inc. v. Nulls Machine and Manufacturing Shop. 736 N.E.2d 271 (Ind. Ct. App. 2000) 3, 4 Whitted v. General Motors Corp.. 58 F.3d 1200 (7th Cir. 1995) 2, 5 n

5 ARGUMENT 1. The Court's findings on expert testimony are a misapplication of Indiana law. Appellants Howard Piltch and Barbara Nelson-Piltch respectfully contend that this Court's February 11, 2015 judgment has misapplied the law of Indiana regarding product liability as expressed in the case of Cansler v. Mills. 765 N.E.2d 698, (Ind. Ct. App. 2002), and the case of Silvestri v. General Motors Corp F.3d 240 (4 th Cir. 2000), on which the Cansler opinion relied. The question presented in this appeal is whether the Piltches may withstand summary judgment and allow the jury to reach the question of whether the air bag system in the Piltches' 2003 Mercury Mountaineer was in a defective and unreasonably dangerous condition when it failed to operate at all in a 40 mile-per-hour head-on collision, without the assistance of expert testimony. The Court's opinion holds that the Piltches' design defect claim fail because the Piltches failed to produce evidence of alternative air bag designs or introduce expert testimony of a design defect. However, this is precisely what the Cansler and Silvestri cases held that the plaintiff is not required to produce when the air bag system fails to operate at all. As stated in the Cansler case, The 1994 Corvette Owner's Manual entered into evidence by General Motors explained that the air bag in the car was designed to deploy when the vehicle was in a moderate to severe frontal or near-frontal crash. The Owner's Manual also clarified that in order for the air bag to deploy, the car should be traveling at a speed between 9 and 15 mph or, in some cases, a considerably higher velocity if the car hits another object that can absorb some of the impact. Cansler's designated evidence could support an inference that his air bag was defective because it did not deploy despite the presence of all the necessary elements outlined in the Owner's Manual. Cansler. 765 N.E.2d at Similarly, in the Silvestri opinion relied on in the Cansler case, the court held: Neither element essential to establish a prima fascia case under New York law would 1

6 appear to require proof of what occurred within the air bag system itself. Accordingly, Silvestri he was not required to provide expert testimony as to how the air bag actually performed or why it did not inflate. Rather, New York law establishes that a plaintiff need merely prove that the product did not perform as intended and must exclude all causes of the relevant injuries not attributable to the defendant. Silvestri, 210 F.3d at 244. Thus, a reasonably informed trier of fact could conclude that no alternative air bag design would have prevented the Piltches' injuries if the system failed to operate at all in a severe headon collision such as the Piltches described. Furthermore, a reasonably informed trier of fact could conclude from circumstantial evidence, without the assistance of expert testimony, that the system was defective when it failed to operate despite the presence of the elements outlined in the Owner's Manual. Thus, this Court's finding that the Piltches' design defect claim cannot survive summary judgment without expert testimony is inconsistent with Indiana law and is a misapplication of the law. 1 This Court's finding that the Piltches' manufacturing defect claim cannot withstand summary judgment is similarly a misapplication of Indiana law. The Court's opinion on this issue is grounded on the finding that the Piltches do not provide testimony about the accident other than their own, and fail to designate evidence of a "skilled witness" about the severity of the collision, such as was provided in the Cansler case. However, the Cansler opinion makes clear that the testimony of a "skilled witness" is not expert testimony and is not a matter of "scientific principles" which are governed by rules of evidence relating to expert testimony. 1 The Piltches' case in the present appeal is also distinguishable from the finding of this Court in Whitted v. General Motors Corp.. 58 F.3d 1200 (7th Cir. 1995) because the Whitted case did not deal with an air bag system at all, but with an alleged defect in a seat belt system, which is a passive restraint and not at all analogous to an active restraint such as an air bag system.

7 Cansler. 765 N.E.2d at 703. The Cansler opinion makes clear that the testimony of the "skilled witness" is lay testimony. While such testimony may be helpful to the determination of a fact in issue, it is not scientific, technical, or other specialized which is necessary to assist the trier of fact in understanding the evidence. The testimony of the "skilled witness" therefore relates only to the weight of the evidence and not to the existence of a genuine issue for trial. However, weighing the evidence is inappropriate in a summary judgment proceeding under both federal and Indiana law. Anderson v. Liberty Lobby. 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Ramon v. Glenrov Const. Co.. Inc N.E.2d 1123, 1127 (Ind. Ct. App. 1993). This is a misapplication of both federal and Indiana law and warrants rehearing of the Court's February 11, 2015 judgment. Finally, this Court's February 11, 2015 opinion is a misapplication of Indiana law respecting proximate cause. The Court's opinion relies on U-Haul International. Inc. v. Nulls Machine and Manufacturing Shop. 736 N.E.2d 271 (Ind. Ct. App. 2000) fo the proposition that, even if the Piltches can establish the existence of a design or manufacturing defect, the Piltches would be unable to establish the existence of a genuine issue of material fact on the question of proximate cause without expert testimony. However, this is a misapplication of the U-Haul opinion, which states: We are mindful that causation in a negligence case need not always be proven by expert testimony. See Smith v. Beatv. 639 N.E.2d 1029 (Ind. Ct. App. 1994). Rather, it may be proven by circumstantial evidence if that evidence is of sufficient probative force to constitute a basis for legal inference and not merely speculation. Id. If causation is within a lay person's understanding, expert testimony is not necessary. Id As explained elsewhere in this opinion, the matters in question were such that an expert's opinion was necessary. U-Haul. 736 N.E.2d at 285 n.3.

8 However, the "matters in question" referred to in the footnote related to the existence of a defect which led to the accident, as set forth in the following portion of the opinion: The brake system on the trailer was composed comprised of many mechanical components. Although most people are undoubtedly aware that the purpose of the vehicles brake system is to stop the vehicle's motion, the manner in which the separate components operate within that system is beyond their knowledge or understanding. When liability is premised upon allegation that a specific component of the brakes failed and caused the brakes to malfunction, expert testimony on that subject is necessary. U-Haul at 285. Thus, the "proximate cause" analysis in the U-Haul case related to the question of whether defective brakes were the cause of the accident. In the Cansler case, on the other hand, the court found that expert testimony is not required to assist the trier of fact in understanding that the failure of the air bag system to operate is sufficient to establish both the existence of a defect and the cause of the plaintiffs injuries. In fact, the Cansler opinion expressly relied on the U-Haul opinion to support its conclusion that expert testimony on the question of proximate cause was not necessary. Cansler at 706. It is common sense, not speculation, to comprehend that if an air bag system completely fails to operate in a severe head-on collision, the occupants are likely to suffer serious injury. This is why air bags were invented in the first place. What would be pure speculation would be to speculate as to what injuries the Piltches would or would not have suffered if the air bags had operated as they were supposed to do. Indiana law does not place such an impossible hurdle before a plaintiff in a products liability case. Under Indiana law, the question of causation is usually inappropriate for summary disposition because it often requires the weighing of disputed facts. Best Homes. Inc. v. Rainwater. 714 N.E.2d 702, 706 (Ind. Ct. App. 1999). Ordinarily, the question of proximate cause is a question for the jury and is not properly resolved by summary judgment. Id. This is therefore a misapplication of Indiana

9 law which warrants rehearing of the Court's February 11, 2015 judgment. 2. The Court's findings on res ipsa loquitur are a misapplication of law. The Court's February 11, 2015 judgment also misapplies the doctrine of res ipsa loquitur as raised in Appellants' Brief. The Court's opinion is premised on the finding that the Piltches could not confirm that the air bag mechanism was not reset after their 2006 accident. However, the Piltches provided the testimony of a skilled witness, James O' Boyle, that after collisions, black boxes are removed from the vehicle in the collision and replaced with a new computer/black box. The Piltches also designated evidence that the air bag system did not indicate any signal of malfunction, as the Owner's Manual said it would if the system were inoperable. As stated in Appellants' Brief, this rebuts any presumption that an earlier collision of the vehicle somehow caused the air bags to fail to deploy, and brings this question as well into the province of the trier of fact. Furthermore, the Piltches contend that a defective air bag system is precisely the type of instrumentality to which the doctrine of res ipsa loquitur is intended to apply. "First, the doctrine recognizes that under certain rare instances, common sense alone dictates that someone was negligent... The second element recognizes that certain injuring instrumentalities are within the special knowledge and control of the defendant, and that the plaintiff does not have free access to these instrumentalities." Whitted. supra. 58 F.3d at The Owner's Manual for the Piltches' 2003 Mercury Mountaineer states: "Do not attempt to service, repair, or modify the air bag supplemental restraint system or its fuses. See your Ford or Lincoln Mercury Dealer." (Owner's Manual, p. 116). Thus, the air bag system is truly an instrumentality that is within the exclusive knowledge and control of the manufacturer, and there is nothing the vehicle owner can

10 do to make the system any more or less reliable. If the Piltches' system was capable of operating and failed to do so, the reasonable trier of fact can infer that the system was defective. Conversely, if the system was incapable of operation and failed to activate a warning signal as the Owner's Manual stated it would, the reasonable tier of fact can infer that the system was defective. This is precisely the situation to which the doctrine is intended to apply and allow the question of negligence to be decided by the trier of fact. For these reasons, appellants request rehearing on the Court's finding that this is not a case in which the doctrine applies. CONCLUSION For these reasons, the facts and the applicable law do not support the granting of summary judgment in favor of Ford. WHEREFORE, appellants Howard Piltch and Barbara Nelson-Piltch respectfully pray that this Court grant rehearing of its February 11, 2015 judgment, and reverse the District Court's grant of summary judgment in favor of Ford, and remand this case for trial on the issues herein, and that appellants be granted all further relief which the Court shall find to be just and proper. Respectfully submitted this 24 th day of March, Is/ Donald E. Wertheimer Donald E. Wertheimer # E.Jefferson Blvd. South Bend, Indiana Phone: 574/ Attorney for Plaintiffs