1 The Honorable Garnett Thomas Eisele, United States District Judge for the Eastern District of Arkansas. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-2192

___________ Joel Douglas Ruminer, *
* Plaintiff - Appellant, * * v. * Appeal from the United States * District Court for the Eastern General Motors Corporation, * District of Arkansas.
* Defendant - Appellee, *
* GMC Truck, a Division of General * Motors Corporation, *
* Defendant. *

__________ Submitted: November 15, 2006 Filed: April 19, 2007

___________ Before GRUENDER, JOHN R. GIBSON, and BOWMAN, Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge. Joel Douglas Ruminer appeals the district court's 1 grant of summary judgment to General Motors Corporation in his pr oduct liability suit. Ruminer alleges that injuries he sustained when he struck a tree while driving his 2001 Chevrolet Suburban-2- were a result of defects in the air bag and s eat belt and that General Motors is strictly liable for his injuries. On appeal, Ruminer argues that the district court erred by (1) requiring Ruminer to offer evidence of a sp ecific design or manufacturing defect and (2) granting summary judgment in the face of circumstantial evidence of a design or manufacturing defect where the burden of proof should have rested with General Motors. We affirm the judgment of the district court.

I.

Since this case is before us on summary judgment, we recite the facts in the light most favorable to Rumine r, the non-moving party. See Reimer v. City of Crookston , 326 F.3d 957, 959 (8th Cir. 2003). Ruminer was involved in a single vehicle accident on March 28, 2002, when he lost control of his 2001 Chevrolet Suburban on Interstate 40 in Tennessee. After leaving the highway, Ruminer's Suburban traveled approximately 150 feet on a grassy shoulder before passing through a drainage ditch. The Suburban then went through a barbed wire fence, hit an earthen embankment, and traveled47 feet up the embankment before striking a tree approximately 267 feet after leaving the ro adway. The accident resulted in severe injuries to Ruminer. Individuals at th e accident scene testif ied that they found Ruminer wearing his seat belt in the car and that the air bag system had not deployed upon impact.

Ruminer filed suit against General Motors alleging negligence, strict liability, and breach of warranty because of failures a ssociated with both the seat belt and the air bag system. Ruminer presented tes timony of a biomechanics expert, Dr. Martha Bidez, who opined that the cause of the s eat belt's failure to restrain Ruminer was either a design or a manufacturing defect. Dr. Bidez based her opinion regarding the presence of a defect on the seat belt's apparent failure to lock and Ruminer's subsequent injuries. She identified twelve possible failure modes as the cause of the lock-up failure, but she was unable to specify which one of the defects caused the seat2 On appeal, Ruminer discusses only his strict liability claim. He does not address the district court's grant of summary judgment as to his claims of negligence and breach of warranty. We therefor e do not review those issues. See Lockley v.
-3- belt to fail. Ruminer provided no evidence to support a finding that the air bag system's failure to deploy resulted from a design or manufacturing defect.

General Motors moved for summary judgmen t. The district court granted the motion in part with regard to Ruminer's cl aim that the air bag system was defective. The district court took under advisement the portion of General Motors' motion that addressed Ruminer's seat belt claim and or dered further submissions by the parties. Following further supplementation of the r ecord, the district court granted summary judgment with regard to Ruminer's remain ing claims and granted General Motors' motion to exclude Dr. Bidez's expert testim ony regarding an alleged defect in the seat belt restraint system. Ruminer moved for reconsideration of the summary judgment orders, which the district court denied. Ru miner appeals the district court's entry of summary judgment.

II.

We review a grant of summary judgment de novo and will affirm if there is no genuine issue of material fact and the m oving party is entitled to judgment as a matter of law. Martin v. E-Z Mart Stores, Inc. , 464 F.3d 827, 829 (8th Cir. 2006). We review the district court's interpretation of Arkansas law de novo. Id. For the purposes of applying Arkansas law in this diversity jurisdiction case, we are bound by the decisions of the Arkansas S upreme Court. David v. Tanksley , 218 F.3d 928, 930 (8th Cir. 2000).

Ruminer argues that the district court erred in concluding that Ruminer needed to demonstrate the specific defect in the Suburban's occupant protection system in order to prevail on his claim of strict liability. 2In order to succeed on a strict liabilityDeere & Co. , 933 F.2d 1378, 1386 (8th Cir. 1991) (issues not raised on appeal are deemed abandoned).
-4- claim against a supplier under Arkansas law, a plaintiff must establish the following:
(a)(1) The supplier is engaged inthe business of manufacturing, assembling, selling, leasing, or otherwise distributing the product; (2) The product was supplied by him or her in a defective condition which rendered it unreasonably dangerous; and (3) The defective condition was a proxi mate cause of the harm to person or to property.
Ark. Code Ann. § 4-86-102. Arkansas la w defines "unreasonably dangerous" to mean dangerous "to an extent beyond that which w ould be contemplated by the ordinary and reasonable buyer, consumer, or user who acquire s or uses the product. . . ." Ark. Code Ann. § 16-116-102(7)(A). Ruminer contends that on the basis of these statutes, all that is required of a plaintiff in a strict liability suit is a demonstration that the product failed to perform "as a reasonable consumer w ould expect." He a sserts that he has no obligation to prove a specific defect in the occupant prot ection system. In his view, because the Suburban's occupant protection system failed to prevent injuries, one can infer that the system was unreasonably dange rous and General Mo tors should be held liable.

Ruminer's articulation of Arkansas law is incomplete. Ruminer omits the requirement of causation, which places on him the burden of proving that the product was unreasonably dangerous because of a de sign or manufacturing defect for which General Motors is responsible. The Arkans as Supreme Court has explained that for strict liability cases, "[w]hile proof of ne gligence is no longer necessary, proof of the specific defect is normally required." Harrell Motors, Inc. v. Flanery , 612 S.W.2d 727, 729 (Ark. 1981). Arkansas law also require s plaintiffs to "prove that the product in question was in a defective condition at the time it left the hands of the particular seller." Campbell Soup Co. v. Gates , 889 S.W.2d 750, 753 (Ark. 1994). A product's-5- failure to perform as expected is not a sufficient condition for holding a manufacturer liable under a theory of strict liability.

In this case, Ruminer offered scant ev idence. Dr. Bidez refused to offer an opinion concerning the exact causeof the seat belt's failure to restrain Ruminer. She also refused to specify what defect may have caused the air bag system's failure to deploy, and she admitted that the air bag was "not required to fire" at the speed Ruminer was traveling. Ruminer offered no evidence regarding the existence of a specific defect in the occupant protection syst em. We are thus left to speculate as to whether the occupant protection system was defective at the time it left the control of General Motors. We therefore conclude that the district court did not err in holding that Ruminer failed to submit proof concerning a specific defect.

III.

Ruminer next argues that the district c ourt erred in failing to recognize that the circumstances surrounding the accident permit the conclusion that General Motors is responsible for the injuries sustained by Rumi ner. While proof of a specific defect is normally required in strict liability cases, Arkansas law provides that "the plaintiff is not required to prove a specific defect wh en common experience tells us that the accident would not have occurred in the ab sence of a defect." Williams v. Smart Chevrolet Co. , 730 S.W.2d 479, 482 (Ark. 1987). "In such a situation, there is an inference the product is defec tive, and it is up to the manufacturer to go forward with the evidence." Flanery , 612 S.W.2d at 729. Ruminer ar gues that the district court erred by placing the burden of eliminating other potential causes of the system failure upon Ruminer instead of General Motors.

The premise of Ruminer's argument is flawed. The Arkansas Supreme Court has stated that in order to demonstrate liability on the basis of circumstantial evidence, the plaintiff must "negate the other possibl e causes of failure of the product for which-6- the defendant would not be responsible in order to raise a reasonable inference that the dangerous condition existed while the product was still in the control of the defendant." Campbell Soup , 889 S.W.2d at 753. This does not mean that the plaintiff must "prove his case beyond a reasonable doubt. . . [I]t is enough that he makes out a preponderance of probability. . . ." Williams , 730 S.W.2d at 482 (internal citations omitted). In order to place the burden of disproving other potential causes of the accident upon General Motors, Ruminer must fi rst establish that this is the type of case where an accident would not have o ccurred absent a defect and that the circumstances support an inference of liability for General Motors.

There are several reasons, however, fo r concluding that Ruminer failed to demonstrate liability on the basis of circumstantia l evidence. First, as the district court noted, the intricacies of occupant prot ection systems and their potential design or manufacturing defects are outside the realm of a juror's everyday experience. In other words, common experience does not dictate that if an individual is injured in a car accident, the injury is most likely a result of a defect in the automobile's occupant protection system. Second, there are other potential explanations for Ruminer's injuries other than a defect for which Gene ral Motors would be responsible. Ruminer could have worn his seat be lt improperly. The seat belt could have failed because of wear and tear or some other condition aris ing after the vehicle left the control of General Motors.

We recognize that "[t]he mere fact of an accident, standing alone, does not make out a case that the product is defectiv e, but the addition of other facts tending to show the defect existed before the accide nt, may be sufficient." Higgins v. General Motors Corp. , 699 S.W.2d 741, 743 (Ark. 1985). Upon review of the record, we are unable to find any evidence offered by Rumine r that would tend to show the existence of a preexisting defect. Dr. Bidez was aske d repeatedly for the basis of her opinion that the occupant protection system suffered from a design or manufacturing defect. She insisted that there was no need for her to point to a specific manufacturing or3 Having concluded that Ruminer's claim must fail as a matter of law on the question of liability, we have no need to a ddress his argument that the district court erred in limiting Dr. Bidez's expert testimony.
-7- design defect, nor could she do so. Ruminer's claim must therefore fail. The fact that Ruminer suffered injuries in an automob ile accident does not "induce the mind to pass beyond conjecture as to liability for a defect ." Yielding v. Chrysler Motor Co. Inc. , 783 S.W.2d 353, 356 (Ark. 1990). The district court therefore did not err in requiring Ruminer to negate other poten tial causes for the injuries sustained in the accident and summary judgment was properly entered. 3

IV.

The grant of summary judgment by the district court is affirmed.

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