1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0279p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

V ICTORIA A. J ACKSON , individually and as surviving wife of Daniel A. Jackson, Deceased, Plaintiff-Appellant ,

v

.

F ORD M OTOR C OMPANY , Defendant-Appellee

. ┐ │ │ │ │ │ │ │ │ ┘ No. 16-5488

Appeal from the United St ates District Court for the Western District of Tennessee at Jackson. No. 1:15-cv-01180—J. Daniel Br een, Chief District Judge.
Decided and Filed: November 29, 2016
Before: MOORE and CLAY, Circu it Judges; HOOD, District Judge. *

_________________ COUNSEL

ON BRIEF: Joe Bednarz, Jr., BEDNARZ & BEDNARZ, Hendersonville, Tennessee, for Appellant. J. Randolph Bibb, Jr., Ryan N. Clark, LEWIS , THOMASON, KING, KRIEG & WALDROP, P.C., Nashville, Tennessee, Step hanie A. Douglas, Jessica R. Vartanian, BUSH SEYFERTH & PAIGE PLLC, Tr oy, Michigan, for Appellee.

_________________ OPINION

_________________ KAREN NELSON MOORE, Circuit Judge. In this diversity case, Daniel A. Jackson (“Mr. Jackson”), the husband of Plaintiff-Appella nt Victoria A. Jackson (“Mrs. Jackson” or

* The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation. 

### >No. 16-5488 Jackson v. Ford Motor Co. Page 2

“Jackson”), died in a car accident on U.S. Hi ghway 70 after he lost control of his 2012 Ford Focus. Mrs. Jackson, who was a passenger in th e car, was seriously injured. She now alleges that Defendant-Appellee Ford Motor Company (“ Ford”), the manufacturer of their car, was responsible for the accident be cause it equipped the car with a defective “Electronic Power Assisted Steering” (“EPAS”) system that caused the loss of control. Ford filed a motion to dismiss, arguing, inter alia, that Jackson did not adequately plead proximat e cause. The district court granted Ford’s motion, and J ackson has appealed. For the reas ons stated below, the district
court demanded too much of Jackson under the familiar Iqbal and Twombly pleading requirements. Accordingly, we REVERSE the district court’s judgment dismissing the complaint and REMAND the case for further proceedings.

I. BACKGROUND
Because “[w]e . . . accept all plausible we ll-pled factual allegations as true,” see City of Cleveland v. Ameriquest Mortg. Sec., Inc. , 615 F.3d 496, 502 (6th Cir. 2010), the following is a background of the case as described in Mrs. Ja ckson’s amended complaint. Mr. Jackson was driving his 2012 Ford Focus on U.S. Highway 70 when “suddenly and without warning, the Ford Focus darted left across the center line into oncoming traffic. It was struck head on by a wrecker.” R. 36 (Am. Compl. ¶ 13–14) (Page ID #403). “[A]s a result of the collision, Mr. Jackson received serious injuries and died. Mrs. Jackson received serious, permanent and life threatening injuries and was life flighted to Vanderbilt University Medical Center.” Id. ¶ 15 (Page ID #403). Mrs. Jackson cl aims that the EPAS system “was the cause of the Plaintiff[’]s vehicle darting left in to oncoming traffic.” Id. ¶ 16 (Page ID #403); see also id. ¶¶ 104, 107, 110, 118, 121, 124, 129, 135, 139 (Page ID #427–32, 434–35).
“The EPAS system in the 2012 Ford Focus . . . replaces the tradit ional hydraulic-assist power steering pump and [consists] of a power steering control mo tor, electronic control unit, torque sensor and steering wheel position sensor.” Id. ¶ 17 (Page ID #404). Jackson describes the “systemic defect” in this system as follows : “(1) seepage of conformal coating into the EPAS system’s ribbon cable, which leads to the loss of connections within the EPAS system; (2) misalignment of ribbon cable pins utilized in the EPAS system, whic h leads to the breakage of critical wiring and the loss of connections wi thin the EPAS system; (3) manufacturing defectsNo. 16-5488 Jackson v. Ford Motor Co. Page 3

in the contact plating used in the EPAS system , which causes corrosion and an interruption in
electrical connections within the EPAS system; (4) defects in EPAS system’s sensors; and (5) defects in the gear assembly.” Id. ¶ 17 (Page ID #404); see also id. ¶ 47 (Page ID #412–13). Jackson claims that “[t]his defective EPAS sy stem renders the system prone to sudden and premature failure during ordinary and foreseeable driving situati ons” and that “drivers of the Defective Vehicles experience significantly increas ed steering effort and an increased risk of losing control of their vehicles when the EPAS system fails.” Id. ¶¶ 17–18 (Page ID #404).
Jackson defined “Defective Vehicles” as vehicles that “contain the same or similar EPAS as the Plaintiff’s 2012 Ford Focus,” which in clude various other Ford models. Id. ¶ 37 (Page ID #409).
The alleged EPAS defect “can, and has, cause d injuries to occupants of the Defective
Vehicles.” Id. ¶ 47 (Page ID #413). Jackson points to th ree instances where drivers experienced steering failure in their 2012 Ford Focuses, id. ¶¶ 87–89 (Page ID #424), and several other instances where other vehicles equipped with th e same or similar EPAS system suffered from steering failure, id. ¶¶ 69–86, 90–91 (Page ID #419–25). Jackson’s amended complaint alleges that Ford is strictly liable fo r manufacturing and design defects; strictly liable for defective warnings; liable for negligent ma nufacture, design, and warning; engaged in misrepresentations; and breached implied and express warranties. See id. ¶¶ 105–39 (Page ID #428–35).
After Jackson filed her complaint in state court, Ford removed the case to the U.S.
District Court for the Western District of Tenness ee. R. 1 (Notice of Removal at 10) (Page ID #10). The district court then di smissed Defendants Golden Circle Ford, Lincoln, Mercury, Inc. and Steve Marsh Ford, Inc. under the doctrine of fraudul ent joinder. See Jackson v. Ford Motor
Co. , No. 15-1180, 2016 WL 270485, at *1 (W.D. Tenn. Jan. 21, 2016). Ford filed a motion to dismiss or, in the alternative, for a more defini te statement pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(e), arguing that Mrs. Jackson “has not pled facts suggesting that a
defect in the 2012 Ford Focus Mr. Jackson was driving at the time of his crash caused or
contributed to the crash.” R. 15-1 (Def.’s Mem. in Support of It s Mot. Dismiss at 1) (Page ID #280). Following an amended complaint filed by Mr s. Jackson, R. 36 (Am. Compl.) (Page ID #401), and a supplemental motion to dismiss filed by Ford, R. 35 (Def.’s Supp. Mem. in SupportNo. 16-5488 Jackson v. Ford Motor Co. Page 4

of Mot. Dismiss) (Page ID #396), 1 the district court granted Ford’s motion to dismiss. See
Jackson v. Ford Motor Co. , No. 15-1180, 2016 WL 324383 (W.D. Tenn. Jan. 26, 2016).
Jackson then filed a motion to a lter or amend the judgment, whic h the district court denied. See
Jackson v. Ford Motor Co. , No. 15-1180, 2016 WL 4533028 (W .D. Tenn. Mar. 21, 2016). Jackson has appealed the orders on the motion to dismiss and motion to alter or amend the judgment. See R. 59 (Notice of Appeal at 1) (Page ID #526). The district co urt had jurisdiction pursuant to 28 U.S.C. § 1332, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

II. DISCUSSION

A. Standard of Review

“We review de novo a district court’s decision to grant a motion to dismiss for failure to state a claim under Rule 12(b)(6).” In re Darvocet, Darvon, & Propoxyphene Prods. Liab. Litig. , 756 F.3d 917, 926 (6th Cir. 2014). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accep ted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 554, 570 (2007)).
Jackson argues that “complex product lia bility cases are uni que and do not lend themselves to rigid rules of pleading.” Appellan t’s Br. at 24. However, Jackson did not raise this argument in the district court, R. 27 (Opp’ n to Mot. to Dismiss) (Page ID #361–66), so she has forfeited the right to ha ve it addressed on appeal, see Armstrong v. City of Melvindale , 432 F.3d 695, 699–700 (6th Cir. 2006). Neverthele ss, we note that we have followed the
standard set forth in Iqbal and Twombly in other products liability cases. See, e.g. , In re Darvocet, Darvon, & Propoxyphene Prods. Liab. Litig. , 756 F.3d at 926.
B. Applicable Law
“Because this suit is before us pursuant to our diversity jurisdiction, we apply the substantive law of [Tennessee] and federal proce dural law. When applying the substantive law

1 Although Ford filed its supplemental motion to dismi ss one day before Jackson’s amended complaint, it addresses the changes that Jackson made in her amended complaint.No. 16-5488 Jackson v. Ford Motor Co. Page 5

of [Tennessee], we must follow the decisions of the state’s highest court when that court has
addressed the relevant issue. If the issue has not been directly addressed, we must anticipate how the relevant state’s highest court would rule in the case and are bound by controlling decisions of
that court.” City of Cleveland , 615 F.3d at 502 (internal quotation marks omitted).

C. Ford’s Motion to Dismiss
On appeal, Jackson argues that the distri ct court improperly dismissed her amended complaint on the ground that she di d not sufficiently plead causation. See Appellant’s Br. at 8.
The district court held that J ackson’s amended complaint consis ted of “conclusory statements regarding proximate cause.” Jackson , 2016 WL 324383, at *2. Specifi cally, it held, “Although Jackson discussed at length the EPAS system in the Ford Focus and many other vehicles produced by Ford, she failed to explain how any of the alleged defects in the system caused Daniel Jackson’s car to suddenly veer into anot her lane of oncoming traffic. Indeed, while
Plaintiff insisted that numerous deficiencies exist with the Ford Focus in general, nowhere in her complaint or amended complaint does she specify what specific flaw caused the accident in question.” Id. (internal citation omitted). In addition, it held that Mrs. Jacks on’s claim of breach of implied warranty of merchantability and fitn ess failed because Mrs. Jackson “failed to demonstrate that the alleged defect in the vehicl e was the proximate cause of the accident and her
husband’s death.” Id. at *3.
As we explain below, we hold that Jackson has stated a plausibl e claim to relief. Therefore, we reverse and remand.
Under the Tennessee Products Liability Act of 1978 (“TPLA”), “[a] manufacturer or seller of a product shall not be liable for any injury to a person or property caused by the product unless the product is determined to be in a de fective condition or unreas onably dangerous at the
time it left the control of the manufacturer or seller.” Tenn. Code Ann. § 29-28-105(a) (West 2002). A “‘[p]roduct liability action’ includes, but is not limited to, all actions based upon the following theories: strict liability in tort; ne gligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent, or innocent; misrepresentation, concealment, or nondisclosure , whether negligent, or innocent; or under anyNo. 16-5488 Jackson v. Ford Motor Co. Page 6

other substantive legal theory in tort or contract whatsoever.” Id. § 29-28-102(6). “The plaintiff also must trace his or her injury to the defect.” Brown v. Crown Equip. Corp. , 181 S.W.3d 268, 282 (Tenn. 2005) (citing King v. Danek Med., Inc. , 37 S.W.3d 429, 435 (Tenn. Ct. App. 2000)). “[U]nless there is a showing that the particular defect or dangerous condition proximately caused the plaintiff’s injury, the manufacturer is not liable.” King , 37 S.W.3d at 435, cited in Sigler v.
Am. Honda Motor Co. , 532 F.3d 469, 483 (6th Cir. 2008). 2

Because “Ford does not dispute that Plainti ff’s Amended Complaint plausibly pleads a defect in the EPAS system,” Appellee’s Br. at 12, Jackson must plausibly plead the remaining element of a products lia bility action in Tennessee: caus ation. Indeed, she has. Under Tennessee law, “a three-pronged test for proximate cause is applied: (1) the tortfeasor’s conduct
must have been a ‘substantial factor’ in br inging about the harm being complained of; and (2) there is no rule or policy that should reli eve the wrongdoer from liability because of the manner in which the negligence has resulted in th e harm; and (3) the harm giving rise to the action could have reasonably been foreseen or an ticipated by a person of ordinary intelligence and prudence.” Haynes v. Hamilton Cty. , 883 S.W.2d 606, 611–12 (Tenn. 1994) (internal quotation marks omitted). Referencing the proxim ate cause standard set forth by the United States Supreme Court, which bears strong re semblance to the Tennessee Supreme Court’s standard, 3 we have held that “causal weaknesses will more often be fodder for a summary-

2 Jackson argues that King “applied a much different standard than should be applied to the current motion to dismiss” because it addressed a motion for summary judgment. Appellant’s Br. at 24. However, causation is an element of a products-liability action under Tennessee law. See Brown , 181 S.W.3d at 282. At the pleading stage, Jackson need only allege causation. See Iqbal , 556 U.S. at 678. At the summary judgment stage, she must show that there is a genuine material dispute regarding causation. See Fed. R. Civ. P. 56(a). Just as the Supreme Court began Iqbal “by taking note of the elements a plaintiff must plead to state a claim of unconstitutional discrimination against officials entitled to assert the defense of qualified i mmunity,” 556 U.S. at 675, so too do we begin by taking note of the elements a plaintiff must plead to state a products-liability claim under Tennessee law.
3 Similarly to the Tennessee Supreme Court standard described above, the United States Supreme Court has held that proximate cause is established when there is “some direct relation between the injury asserted and the injurious conduct alleged. Thus, a plaintiff who complained of harm flowing merely from the misfortunes visited upon a third person by the defendant’s acts was generally said to stand at too remote a distance to recover.” See Holmes v. Sec. Inv’r Prot. Corp. , 503 U.S. 258, 268–69 (1992). The United States and Tennessee Supreme Courts have also made similar observations about the legal foundation for proximate cause. Compare id. at 268 (“At bottom, the notion of proximate cause re flects ideas of what justice demands, or of what is administratively possible and convenient.” (internal quotation marks omitted)), with Snyder v. LTG Lufttechnische GmbH , 955 S.W.2d 252, 256 n.6 (Tenn. 1992) (“Proximate or legal cause is a policy decision made by the legislature or the courts to deny liability for otherwise actionable conduct based on considera tions of logic, common sense, policy, precedent and our more or less inadequately expressed ideas of what just ice demands or of what is administratively possible andNo. 16-5488 Jackson v. Ford Motor Co. Page 7

judgment motion under Rule 56 than a moti on to dismiss under Rule 12(b)(6).” Trollinger v. Tyson Foods, Inc. , 370 F.3d 602, 615 (6th Cir. 2004); see also Haynes , 883 S.W.2d at 612 (“Proximate cause . . . [is] ordinarily [a] jury question[], unless the uncontroverted facts and
inferences to be drawn from them make it so cl ear that all reasonable persons must agree on the proper outcome.”).
Applying the first prong in Haynes , we conclude that Jackson ha s plausibly alleged that a defect in the 2012 Ford Focus’s EPAS system wa s a substantial factor in bringing about the accident. This is apparent from the litany of other accidents identified by Jackson where the EPAS system allegedly failed, causing the dr iver to lose control of the vehicle. 4 See id. ¶¶ 69– 86, 90–91 (Page ID #419–25). In addition, the loss of control caused by a defective EPAS system is plainly consistent with “the Ford Focus dart[ing] left across the center line into oncoming traffic.” Id. ¶ 14 (Page ID #403). Applying the s econd prong, we conclude that the
TPLA creates a cause of action for the strict liability, neglig ence, breach of warranty, and misrepresentation claims raised in Jackson’s amended complaint, see Tenn. Code Ann. § 29-28- 102(6); there is no rule or policy that should relieve Ford of lia bility if indeed it equipped Jackson’s Focus with a defective EPAS system. Fi nally, that this accident could have reasonably been foreseen by a person of ordinary intelligence and prudence is apparent from the defect in the EPAS system. In her amended complaint, J ackson alleged that “[t]he ‘EPAS’ was the cause of the Plaintiff[’]s vehicle darting left into oncoming traffic.” R. 36 (Am. Compl. ¶ 16) (Page ID #403). She explained how “seepage of conformal coating into th e EPAS system’s ribbon cable,” “misalignment of ribbon cable pins,” “manufacturing defects in the contact plating,” “defects in [the] EPAS system’s sensors,” and “defects in the gear assembly” all result in a system that is

convenient.” (internal quotation marks omitted)). Finally, Tennessee courts have referenced the federal proximatecause standard in their analysis of proximate cause. See, e.g. , Steamfitters Local Union No. 614 v. Philip Morris, Inc. , No. W1999-01061-COA-R9-CV, 2000 WL 1390171, at *4, 6–7 (Tenn. Ct. App. Sept. 26, 2000) (citing and applying Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc. , 191 F.3d 229 (2d Cir. 1999), which cited the statement in Holmes that there must be “some direct relation be tween the injury asserted and the injurious conduct alleged”).
4 Ford argues that the EPAS system failures in other ve hicles “are not ‘substantially similar’ to the incident alleged in Plaintiff’s Amended Complaint.” Appellee’s Br. at 14. However, Croskey v. BMW of North America, Inc. , the case that Ford cites for the proposition that “[t]he plaintiff has the burden of showing the substantial similarity between prior accidents and his own,” addressed th e plaintiff’s burden for the admitting evidence at trial. 532 F.3d 511, 518 (6th Cir. 2008). At this stage, Jackson’s description of other vehicles with the same EPAS system losing control, along with her other allegations, is sufficient to plead causation.No. 16-5488 Jackson v. Ford Motor Co. Page 8

“prone to sudden and premature failure during or dinary and foreseeable driving situations.” Id. ¶ 17 (Page ID #404). This failure, Jackson alleges, causes “drivers of the Defective Vehicles [to] experience significantly increased steering effort a nd an increased risk of losing control of their vehicles,” id. ¶ 18 (Page ID #404), precisely wh at happened in Jackson’s case.
Ford’s hypertechnical argumen ts regarding the allegations in Jackson’s amended complaint rest on an inaccurate understanding of notice pleading. We accept the truth of Jackson’s well-pleaded facts and apply our “judicial experience and common sense.” See Iqbal , 556 U.S. at 678–79. However, Ford makes its own f actual allegations that are not in Jackson’s amended complaint. For instance, nowhere does Mrs. Jackson allege that Mr. Jackson “was driving straight down the highway ,” Appellee’s Br. at 14; she alleges that Mr. Jackson was driving “westbound on US HWY 70 in Benton County, Tennessee,” R. 36 (Am. Compl. ¶ 13) (Page ID #403).
Ford’s plausibility ar guments are likewise without mer it. Even if Mr. Jackson were driving in a straight direction, it is plausible that he could lose control, cross the center line, and
hit a wrecker. See id. ¶ 104. For instance, if Mr. Jackson lo st his ability to steer while driving around a bend, he could have crossed the center line without ever steer ing in a particular direction. Similarly, difficu lty steering while driving around a bend could cause “ sudden steering or darting ,” see Appellee’s Br. at 14, depending on how sharp the bend is. Alternatively, difficulty steering while driving straight could have caused Mr. Jackson to overcompensate, which in turn could cause sudden steering or darting. In sum, these competing inferences may be proven or disproven in discovery or at trial. But fo r the time being, and in light of our admonition that “causal weaknesse s will more often be fodder for a summaryjudgment motion under Rule 56 than a mo tion to dismiss under Rule 12(b)(6),” Trollinger , 370 F.3d at 615, Jackson has made sufficient allega tions to “nudge[] [her] claim[] across the line from conceivable to plausible.” See Twombly , 550 U.S. at 570.

III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s judgment dismissing the complaint and REMAND the case for further proceedings.