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Koplove v. Ford Motor Co.

argued: June 3, 1986.

LYNNE KOPLOVE AND JAY S. KOPLOVE, APPELLANTS
v.
FORD MOTOR COMPANY, APPELLEE



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY - CAMDEN (D.C. Civil No. 84-4615; D.J. John F. Gerry).

Author: Stapleton

Before GIBBONS, BECKER, and STAPLETON, Circuit Judges

STAPLETON, Circuit Judge.

Plaintiff-appellants Lynne and Jay Koplove appeal from the entry of summary judgment in favor of appellee Ford Motor Company. We affirm.

I.

Plaintiffs commenced their action on November 14, 1984, claiming damages for injuries suffered in a December 20, 1982 auto accident, allegedly caused by deficiencies in their 1982 Ford Escort.

The record discloses almost no direct evidence regarding the cause of the accident. Plaintiff Lynne Koplove, the driver and sole occupant of the automobile at the time of the accident, suffers retrograde amnesia regarding the critical events. A single witness saw the vehicle swerve but did not know what caused it to lose control. Furthermore, plaintiffs turned the car over to their insurance company, which apparently disposed of it. No expert examination of the vehicle ever took place.

After plaintiffs filed their complaint, the court established a discovery schedule that required plaintiffs to provide defendant with all expert reports to be offered at trial by July 15, 1985. Plaintiffs served defendant with interrogatories and production of document requests on January 21 and February 11. Defendant also served discovery requests on plaintiff.

In May, 1985, plaintiffs answered defendant's Interrogatories. Plaintiffs identified the vehicle's defect as the "sudden stalling, stumbling and loss of control caused by defects in the carberator (sic) of the vehicle, carberator jets and pertinent parts thereto." 54OA. One week before the accident, plaintiff's vehicle had been served for stalling, poor gas mileage and throttle sticking. In reply to a request for the facts upon which plaintiffs would rely to establish a design defect that caused the accident, plaintiffs stated that they would:

rely on proof of stalling, carberator defects, loose carberator jets, defective wiring harnesses and other defects in pertinent parts thereto causing stalling. Plaintiff reserves the right to supplement this answer as Plaintiff receives discovery from defendant.

539A. In addition, plaintiffs indicted that they would rely on expert testimony.

On June 5, 1985, defendant moved for summary judgment. In response, plaintiffs, on June 13, filed a memorandum of law opposing summary judgment and a Rule 56(f) affidavit.*fn1 In their brief, plaintiffs pointed out that the July 15, 1985 deadline for expert information had not yet passed, and that defendant had not yet responded to plaintiffs' initial discovery requests. In their Rule 56(f) affidavit, plaintiffs averred that "the facts concerning the liability of defendant are virtually exclusively within the knowledge of the defendant," 48A, and that "until plaintiffs have an opportunity to take further discovery, they are not in a position to make any determination whatsoever concerning defendant's culpability." 48-49A.

On June 25, 1985, defendant submitted its response to plaintiffs' discovery requests. Defendant objected to most of plaintiffs' sweeping questions regarding defects in the carburetor and power steering systems, taking the position that it could not offer more meaningful answers to the interrogatories "unless defendant receives a report from an expert on behalf of the plaintiff indicating some . . . viable cause of the accident." Defendant stressed that it had "not had an opportunity to inspect . . . (the) vehicle and has no knowledge where . . . (the) vehicle is at the present time," 103A.

The district court granted summary judgment, without opinion, on August 16. Ten days later, plaintiffs filed a motion for reconsideration. They labeled defendant's responses to their discovery requests "meaningless," and set forth the results of their own independent investigation, which purportedly revealed evidence of a generic defect in 1982 Ford Escorts that causes accidents similar to the one in this case. Plaintiffs contended that, given more time, they could establish the cause of the accident through expert testimony that would compare the accident as it occurred to a hypothetical accident caused by the alleged generic defect. The ...


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