Fourth Circuit says plaintiff does not need air bag expert to establish defect.

An injured plaintiff does not need to provide an expert to explain an air bag defect in order to establish a products liability case under New York law, the Fourth Circuit stated in April. (Silvestri v. General Motors Corp., 210 F.3d 240 (4th Cir. Apr. 21, 2000).)

The court vacated the lower court's decision to grant summary judgment to General Motors Corp. and remanded Mark Silvestri's breach of warranty and products liability case to the lower court for trial. Silvestri's suit claims that he was injured when the air bag in the 1995 Chevrolet Monte Carlo he was driving failed to deploy in a collision. The suit says GM guaranteed that the air bag would deploy when the vehicle struck an object head-on at speeds between 9 and 15 mph.

On November 5, 1994, Silvestri was driving the Monte Carlo at about 72 mph when he lost control of the vehicle, ran off the road, and struck a utility pole in upstate New York. Silvestri's accident reconstruction experts established that the speed at which the car hit the pole was about 50 mph. They also concluded that Silvestri's severe facial injuries would not have occurred had the air bag functioned properly. In addition, Silvestri presented evidence that the air bag had not been altered or tampered with before the collision.

The lower court granted summary judgment because Silvestri's reconstruction experts lacked expertise in the operation of an air bag, holding that without that expertise, Silvestri could not establish a prima facie case.

The Fourth Circuit disagreed. Although Silvestri lives in Baltimore, Judge Paul Niemeyer used New York products liability law because Maryland law requires courts to apply the law of the state in which the injury occurred.

Niemeyer wrote, "Circumstantial proof is sufficient under New York law to establish a prima facie case in a products liability suit.... 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."

Niemeyer wrote that the plaintiff's evidence was sufficient for a "jury to `infer' that a defect in the air bag caused Silvestri's enhanced injuries" and that Silvestri did not need to enlist an expert to determine and explain the exact cause of the air bag defect.

Silvestri's attorney, Marc Rosen, said the Fourth Circuit's opinion helps plaintiff lawyers avoid the lengthy and prohibitively expensive investigations typically required in a products liability case like the one brought by his client.

"Defendants often rely on the inability of plaintiffs to fund the investigation necessary to prove with precision the fault inside of a failed product. This decision relieves plaintiffs of that burden when there is a product failure," said Rosen, who practices in Baltimore.

"In [Silvestri's] case, the product defect can be inferred by the mere failure of the product."