In the

United States Court of Appeals

For the Seventh Circuit

No. 14-1965

HOWARD PILTCH, et al.,

Plaintiffs-Appellants,

v.

FORD MOTOR COMPANY, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the 

Northern District of Indiana, South Bend Division.

No. 3:11-cv-00001-JTM-CAN — James T. Moody, Judge.

ARGUED DECEMBER 1, 2014 — DECIDED FEBRUARY 11, 2015

Before BAUER, KANNE, and HAMILTON, Circuit Judges.

BAUER, Circuit Judge. Howard Piltch and Barbara NelsonPiltch (the “Piltches”) were traveling in their 2003 Mercury

Mountaineer in February 2007 when they hit a patch of black

ice, causing the car to slide off the road and into a wall. Upon

impact, none of the car’s air bags deployed and both Piltches

were injured. The Piltches filed the present action in Indiana

state court against Ford Motor Company (“Ford”) in 2010,

alleging the vehicle was defective under Indiana law. Ford
2 No. 14-1965

removed the action to federal court, and shortly thereafter

moved for summary judgment. On March 28, 2014, the district

court granted Ford’s summary judgment motion holding that,

without expert testimony, the Piltches could not create an issue

of fact as to proximate cause. On appeal, the Piltches contend

that (1) they state a claim for relief under the Indiana Products

Liability Act (“IPLA”); (2) there is sufficient circumstantial

evidence of a defective product that expert testimony is not

required; (3) they are not required to produce expert testimony

to establish proximate cause; and (4) the doctrine of res ipsa

loquitur applies, raising an inference of negligence on the part

of Ford. We affirm.

I. BACKGROUND

The Piltches were co-owners of a 2003 Mercury Mountaineer. While driving the Mountaineer in 2006, the Piltches were

involved in a car accident in which the air bags did not deploy.

Following the accident, the Piltches had the vehicle repaired.

They did not confirm whether the restraint control module,

which monitors a crash and decides whether to deploy air

bags, was reset during or after repairs after the 2006 collision.

But Mr. Piltch explained that it was his understanding that

“whatever needed to be reset in the Mercury Mountaineer ...

was, in fact, reset.” 

A year later in 2007, the Piltches were involved in another

accident after driving over some black ice. This time, their

Mountaineer did a 360-degree turn and struck a low wall. The

vehicle ricocheted off the wall, slid down a hill, and collided

with several trees before coming to a rest. The vehicle’s air

bags again did not deploy during or after the accident. As a
No. 14-1965 3

result of the accident, Mr. Piltch broke several vertebrae and

Mrs. Piltch sustained neurological injuries. Afterthis crash, the

Piltches had their Mountaineer repaired at the same shop that

had repaired the car after the 2006 accident. 

In 2009, the Piltches sold the Mountaineer. The buyer

happened to be a mechanic who reprogrammed the vehicle’s

blackbox, wiping any data that might remain from either crash. 

In February 2010, the Piltches sued Ford in federal court,

alleging the Mountaineer’s air bags were defective and

enhanced the injuries they suffered as a result of the 2007

accident. Due to a deficient jurisdictional statement, the court

dismissed the complaint without prejudice. The Piltches again

filed suit in December 2010, this time in state court, and Ford

removed the case to federal court. During discovery, the

Piltches never served any expert reports, despite obtaining an

extension of the expert-disclosure deadline. 

Ford moved for summary judgment in November 2011,

arguing that the Piltches could not prove a prima facie case of

design or manufacturing defect without expert testimony, nor

could they prove their injuries were more severe than they

would have been without the alleged defect. In response, the

Piltches argued they did not need an expert. They asserted that

their circumstantial evidence, namely the Mountaineer’s

owner’s manual and Mr. Piltch’s testimony, created genuine

issues of fact as to defect and proximate cause. The Piltches

also argued that the jury could infer a defect under the doctrine

of res ipsa loquitur.

The district court granted Ford’s motion for summary

judgment on all claims. Specifically, the court held that the
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Piltches’ circumstantial evidence was insufficient to go beyond

speculation and create a legal inference as to proximate cause.

As to res ipsa loquitur, the court held that the Piltches’ circumstantial evidence was not enough to negate all possible causes

other than defect for the air bags’ failure to inflate. This appeal

followed.

II. DISCUSSION

We review a district court’s grant of summary judgment

de novo in the light most favorable to the non-moving party.

Ellis v. DHL Express Inc., 633 F.3d 522, 525 (7th Cir. 2011).

Summary judgment is only appropriate if there is no genuine

issue of material fact. Id. 

The Piltches present four issues on appeal; the first three

can be addressed in a single discussion as to whether the

circumstantial evidence, without support from expert testimony, creates a genuine issue of material fact for their claims

under the IPLA. We will separately address the fourth issue of

res ipsa loquitur.

A. Expert Testimony 

Because we are sitting in diversity, Indiana law applies. See

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (holding a federal

court sitting in diversity must apply the substantive law of the

state in which it sits). The IPLA governs all actions brought by

a user or consumer against a manufacturer for physical harm

caused by a product, regardless of the legal theory upon which

the action is brought. See Ind. Code § 34-20-1-1.

Under the IPLA, the plaintiff must establish that “(1) he or

she was harmed by a product; (2) the product was sold ‘in a
No. 14-1965 5

defective condition unreasonably dangerous to any user or

consumer’; (3) the plaintiff was a foreseeable user or consumer;

(4) the defendant was in the business of selling the product;

and (5) the product reached the consumer or user in the

condition it was sold.” Bourne v. Marty Gilman, Inc., 452 F.3d

632, 635 (7th Cir. 2006) (referencing Ind. Code § 34-20-2-1). A

plaintiff can satisfy the second element by showing a design

defect, a manufacturing defect, or a failure to warn. Hathaway

v. Cintas Corp. Serv., Inc., 903 F. Supp. 2d 669, 673 (N.D. Ind.

2012). See also Natural Gas Odorizing, Inc. v. Downs, 685 N.E.2d

155, 161 (Ind. Ct. App. 1997). A plaintiff is also required to

prove that his injuries were proximately caused by the defect

(in the cases of manufacturing defect and failure to warn) or

breach of duty (in the case of design defect). See Ford Motor Co.

v. Rushford, 868 N.E.2d 806, 810 (Ind. 2007). Finally, and

particularly pertinent to the issues raised on appeal, expert

testimony on an issue is required when the issue is not within

the understanding of a lay person. Daub v. Daub, 629 N.E.2d

873, 878 (Ind. Ct. App. 1994) (requiring expert testimony on

issue of cause outside understanding of lay person); Owens v.

Ford Motor Co., 297 F. Supp. 2d 1099, 1103–04 (S.D. Ind. 2003)

(requiring expert testimony where existence of a defect

depends on matters beyond understanding of lay person).

The Piltches invoke both design defect and manufacturing

defect theories in their suit. Cook v. Ford Motor Co., 913 N.E.2d

311, 319 (Ind. Ct. App. 2009) (“A product may be defective

within the meaning of the [Indiana Product Liability] Act

because of a manufacturing flaw, a design defect, or a failure

to warn of dangers in the product’s use.”). To demonstrate a

design defect under Indiana law, “the plaintiff must compare
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the costs and benefits of alternative designs” and “show that

another design not only could have prevented the injury but

also was cost-effective under general negligence principles.”

Pries v. Honda Motor Co., 31 F.3d 543, 545–46 (7th Cir. 1994).

Here, not only did the Piltches fail to produce alternative air

bag designs, but they also failed to introduce expert testimony

on the question of design defect. Without expert testimony, a

lay jury would be unable to compare the costs and benefits of

supposed alternative air bag designs with the Mountaineer’s

actual air bag design. See Whitted v. General Motors Corp., 58

F.3d 1200, 1206 (7th Cir. 1995) (affirming summary judgment

where plaintiffs failed to present evidence of design defect and

that an alternative design was cost effective). See also Hathaway,

903 F. Supp. 2d at 675 (granting summary judgment against

plaintiff’s design defect claim where plaintiff submitted no

evidence indicating cost effectiveness of alternative design).

Similarly, a lay jury would be unable to discern from circumstantial evidence whether another air bag design could have

prevented the injury. Thus, without expert testimony, the

Piltches’ design defect claim cannot survive summary judgment. 

The Piltches’ manufacturing defect claim fares no better. To

demonstrate a manufacturing defect, the plaintiff must show

that “the product ... deviates from its intended design.” Id. at

673 (applying Indiana law and citing Restatement (Third) of

Torts: Products Liability § 2(a) (1988)). The Piltches contend that

the Mountaineer’s owner’s manual establishes the intended

design of the air bags, and that the state of the air bags during

and after the 2007 collision indicates a departure from that

intended design.
No. 14-1965 7

Citing Cansler v. Mills, 765 N.E.2d 698 (Ind. Ct. App. 2002),

the Piltches argue that this evidence, taken together, raises a

genuine issue of material fact as to defect even in the absence

of expert testimony. In Cansler, the court found that the

plaintiff designated sufficient circumstantial evidence on the

issue of whether the air bags in question were defective,

rendering expert testimony unnecessary to create a triable

issue of fact. Id. at 706–07. The circumstantial evidence included the plaintiff’s testimony about the speed of the car just

before the collision and a mechanic’s testimony about the

damage to the vehicle after the collision. Id. at 706. Though not

an expert, the mechanic was deemed a “skilled witness” who

could testify to opinions orinferences based on facts within his

personal knowledge, in addition to his observations. Id. at

703–04 (defining a “skilled witness” as “a person with ‘a

degree of knowledge short of that sufficient to be declared an

expert ... but somewhat beyondthat possessed by the ordinary

jurors.’” Mariscal v. State, 687 N.E.2d 378, 380 (Ind. Ct. App.

1997)). The mechanic testified that he had almost two decades

of experience examining automobile wrecks with deployed air

bags. Cansler, 765 N.E.2d at 702. After examining the plaintiff’s

car three to four days after the accident, he opined that “based

on his observations of other vehicles that had been in accidents

severe enough to cause front frame damage [like the plaintiff’s], the air bag in [the plaintiff’s] Corvette should have

deployed.” Id. The plaintiff also presented the car’s owner’s

manual, which detailed the conditions that would warrant air

bag deployment, including the threshold velocity of impact

that would trigger deployment. 
8 No. 14-1965

The Piltches’ circumstantial evidence is not analogous to

that in Cansler. Most notably, the Piltches do not provide

testimony about the accident other than their own. We also do

not have testimony on the state of the car following the

collision. This is especially problematic considering the Piltches

preserved neither the Mountaineer nor, critically, the Mountaineer’s blackbox, which could have contained details about

the crash. Without this information, and without an accident

reconstruction expert or otherwise “skilled witness” to fill in

some of these blanks, a lay person would be unable to discern

whether the circumstances of the crash should have triggered

air bag deployment or not. Furthermore, the presentation of

the Mountaineer’s owner’s manualdoes nothing to elevate this

evidence out of the realm of speculation. Unlike the manual in

Cansler, the conditions for air bag deployment in the Mountaineer’s manual are written in broad generalities. The manual

merely states that the air bags are designed to activate when

the vehicle sustains sufficient longitudinal deceleration.

However, it neither defines “sufficient,” nor specifies the

precise impact speeds at which the air bags are expected to

deploy.

Finally, in addition to showing a defect, both theories of

liability require a showing that the defect proximately caused

the Piltches’ injuries to survive summary judgment. The

Piltches allege a “crashworthinesss” case. The crashworthiness

doctrine expands the proximate cause element, see Barnard v.

Saturn Corp., 790 N.E.2d 1023, 1032 (Ind. Ct. App. 2003), and

imposes liability for design defects that enhance injuries from

a collision, but did not cause the collision in the first place. See

Whitted, 58 F.3d at 1205; Montgomery Ward & Co. v. Gregg, 554
No. 14-1965 9

N.E.2d 1145, 1154 (Ind. Ct. App. 1990). The plaintiff’s burden

of proof for an enhancement injury claim is as follows: 

First, the plaintiff must prove that the manufacturer

placed into the stream of commerce a defectively designed, unreasonably dangerous product. Second, the

plaintiff must prove that a feasible safer alternative

product design existed. Third, the plaintiff must prove

that after the original impact or collision the defectively

designed product proximately caused (i.e. enhanced) the

injuries that resulted.

Barnard, 790 N.E.2d at 1032 (citation omitted).

As discussed above, the Piltches cannot establish the

existence of a defect without expert testimony. Because they

cannot establish a defect, they cannot meet their burden of

proof for an enhanced injury claim and we need not discuss

whether they are able to establish proximate cause through

their presented circumstantial evidence. However, even if the

Piltches established a design defect, under the facts of this case,

without expert testimony, a lay juror could not distinguish

between the injuries caused by the collision and the enhanced

injuries caused by the air bags’ failure to deploy without

engaging in pure speculation. The same would be true even if

the Piltches had offered evidence of a manufacturing defect.

See U-Haul Int’l, Inc. v. Nulls Mach. & Mfg. Shop, 736 N.E.2d 271,

285 (Ind. Ct. App. 2000) (affirming summary judgment in

manufacturing defect case where plaintiff provided no expert

opinion sufficient to present a question of fact with respect to

proximate cause). 
10 No. 14-1965

In sum, the Piltches ask the court to find their own testimony combined with the manual’s instruction sufficient to

permit an inference of defect and of proximate cause. But it is

not—without expert testimony, a jury would only be able to

speculate as to the viability of the Piltches’ IPLA claims.

B. Res ipsa loquitur

To bring a claim under the doctrine of res ipsa loquitur, a

plaintiff must show that the occurrence is “one which in the

ordinary course of business does not happen if those who

control the circumstances use proper care.” Gary Cmty. Sch.

Corp. v. Lardydell, 8 N.E.3d 241, 247 (Ind. Ct. App. 2014). A

plaintiff must also show that the injuring instrumentality was

in the exclusive control of the defendant at the time of injury.

Whitted, 58 F.3d at 1207. The doctrine of res ipsa loquitur may

be applied in the “rare instances” in which “circumstantial

evidence may produce reasonable inferences upon which a

jury may reasonably find that a defendant manufactured a

product containing a defect.” Id. at 1208.

In Whitted, we held that the plaintiff, suing over an allegedly defective seat belt, “did not present enough evidence to

establish that Defendants retained control or dominion over

the seat belt—that is, that six years of invariable use did not

disturb Defendants’ influence or authority over the product.”

Id. Although the plaintiff presented evidence that the seat belt

appeared to be in good condition and had not demonstrated

problems before, we held that this was not enough to “nullify

enough of the probable explanations of the seat belt break.” Id.

The Piltches have done even less to nullify other explanations

for the air bags’ failure to inflate. Given that the Piltches did
No. 14-1965 11

not, or perhaps could not, confirm that the air bag mechanism

was not reset after their 2006 accident, it remains a reasonable

possibility that the air bag failed to deploy due to not being

reset. What’s more, on this record a jury could only speculate

as to whether the circumstances of this accident should have

triggered deployment of the air bags in the first place, as

previously discussed. Thus, the Piltches’ presentation of

circumstantial evidence is not, as the district court put it, “one

of the ‘rare instances’ where it is enough to negate all possible

causes other than a product defect.” Piltch v. Ford Motor Co., 11

F. Supp. 3d 884, 892 (N.D. Ind. 2014) (quoting Whitted, 58 F.3d

at 1208).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment in favor of Ford.