By Michael Hoenig - New York Law
Journal - March 9, 2015
This column focuses on two recent rulings in automobile
crashworthiness cases. The Lindemann decision by a Washington
appellate court examines the potential interface of the
so-called "eggshell plaintiff" rule with a
crashworthiness/enhanced injury claim. The Rupert decision by a
federal court in Pennsylvania examines the reliability deficits
in an expert's conclusions about certain crashworthiness
features he claimed would have reduced the injuries.
Lindemann v. Toyota Motor Corp.1 a drunken
driver crossed the center line and caused a collision. Plaintiff
sued the manufacturer of her own Lexus vehicle contending that
defective design at the front end caused the passenger
compartment to collapse resulting in a loss of occupant space.
The lack of crashworthiness, she claimed, caused her to suffer
enhanced injuries, that is, injuries over and above what would
have occurred in a crashworthy car. Under the automobile
crashworthiness doctrine, a manufacturer may be held liable for
unreasonably dangerous defects that increase injuries in a
collision beyond those that would have been sustained absent the
defects. In order to prove or disprove such a claim and the
degree of injury enhancement, the parties usually rely on expert
Toyota defended the design by contradicting plaintiffs' proof
regarding the extent of passenger compartment deformation.
Toyota also challenged plaintiff's proof of causation. It
presented evidence that very high crash forces were imparted to
the Lexus and that the injuries plaintiff sustained would have
been the same even if the passenger compartment had not
deformed. At the time of the collision, plaintiff, age 56, was
obese. She was about 5 feet 8 inches tall and weighed 239
pounds. That factor, according to Toyota's expert, Dr. Elizabeth
Raphael, was significant in explaining causation of the critical
injury to plaintiff's pelvis.
The trial unfolded over three weeks. Plaintiff presented two
experts who asserted that the Lexus front end design should have
had more strength to prevent the dash from crumpling in upon her
legs. Then, another expert, Dr. Joseph Burton, testified that
the force of the accident alone would not have been sufficient
to cause the most severe injuries. Rather, Burton said, the loss
of occupant space when the front-end structure gave way was the
cause. He testified that plaintiff did not get the full benefit
of the air bag cushion which moved to the right as she moved
Dr. Raphael was presented to counter Burton. She is an
emergency room physician and engineer with expertise in the
field of occupant kinematics. She has treated thousands of
patients and analyzed car accidents and biomechanics since the
mid-1990s. Raphael testified that frontal barrier crash tests
show that about 50 percent of a person's body weight goes into
the shoulder belt and 50 percent into the lap belt. To be
conservative, she assumed only 100 pounds of plaintiff's weight
went into the lower lap belt. Using Newton's second law of
motion (force = mass x acceleration), Raphael concluded that the
collision force was 2,500 pounds. It would take some 2,000
pounds of force to cause the pelvic fractures plaintiff
Dr. Raphael consulted a published study showing that
seat-belted obese cadavers had more "forward excursion" (forward
movement) in high-speed, frontal barrier crash tests than
non-obese cadavers. Sometimes, this means that a seat belt would
have almost no restraining properties on an obese person
initially. The obese occupant keeps going forward, as much as
eight inches, until the seat belt, moving through "all of that
soft tissue," restrains the pelvis. For a non-obese body,
however, the pelvis stays almost completely in place. In an
actual car, that obese person's forward excursion would entail
impact of the driver's lower body with the instrument panel,
knee bolster and dash. Since plaintiff was obese (at 239
pounds), the amount of soft tissue allowed her to move into the
structures and the crash forces for her were very "severe."
The jury reached a defense verdict. On appeal, plaintiff
complained that Dr. Raphael's testimony was irrelevant,
amounting to a claim that it was too burdensome to design a car
that would protect some plaintiffs. The Washington Court of
Appeals rejected this argument. Next, plaintiff argued that
Raphael's testimony should have been excluded under the
Frye rule, which asks whether the scientific theory and
methodology or technique is "generally accepted" in the
Plaintiff argued that Raphael's testimony involved a novel
and unreliable application of science. But the appellate court
rejected the claim. Raphael primarily relied on Newton's second
law of motion, hardly a matter of novel science. Further, even
plaintiff's expert, Burton, said that the plaintiff's weight was
a necessary part of the equation to determine the force
experienced by her body. He agreed that the degree of soft fatty
tissue meant "she won't be restrained as easily" and it would be
"more difficult to slow that mass down."3
Perhaps the most serious issue on appeal was whether the
"Eggshell Plaintiff" rule was an influencing factor warranting
reversal. The eggshell plaintiff rule holds that a tortfeasor
takes his victim as he finds him. Thus, a tortfeasor may not
escape or reduce damages by highlighting the injured party's
susceptibility to injury.4 The Washington appellate
court said it was fair to regard the driver as an eggshell
plaintiff because the evidence established that "obesity is a
recognized negative risk factor in car accidents."
Here potential application of the eggshell rule initially
emerged when plaintiff moved in limine to disallow Dr. Raphael's
testimony that obesity was a cause of the critical pelvic
injury. Toyota responded that the eggshell plaintiff rule does
not make the expert's testimony irrelevant. The trial court held
that the eggshell plaintiff rule does not apply to enhanced
injury cases and, so, refused to give an "eggshell" jury
The appellate court held that Dr. Raphael's testimony was
relevant and admissible. The expert's opinion did not suggest
that a passenger's obesity is a defense when a design defect is
found to exist. Nor did it encourage the jury to think that
Toyota had no duty to design cars that would be reasonable for
obese persons. The eggshell plaintiff rule "comes into play"
when the plaintiff proves that defendant is liable for wrongful
conduct and that conduct caused at least some injury to
plaintiff. At that point, the rule "imposes liability for the
full extent of those injuries, not merely those that were
foreseeable to the defendant."5
Dr. Raphael's testimony did not imply, nor did Toyota argue,
that plaintiff's predisposition to injury precluded Toyota's
liability for a defective design. "The references to obesity
were not accusatory." Thus, the trial judge's allowance of
Raphael's testimony was correct. The appellate court then turned
to plaintiff's argument that her request for an eggshell jury
instruction was wrongfully rejected. The court of appeals said
there is no apparent reason why an eggshell plaintiff
instruction should not be given in an enhanced injury case.
Thus, if the Lexus were defective and the defect caused at least
some of plaintiff's injuries by failing to protect her, it would
make sense to instruct the jury to consider all of her enhanced
injuries, even if they were greater than injuries that a person
of normal weight would have incurred in the same circumstances.6
Here, however, an eggshell plaintiff instruction would not
come into play "unless the jury found Toyota liable for
furnishing an unsafe product." The verdict form with its
interrogatories showed the jury did not find the Lexus to be
unsafe. As a result, the jury did not reach the next question,
whether plaintiff's injuries were enhanced because the car was
unsafe. Thus, denial of the eggshell plaintiff instruction, "if
error, was harmless."7 As is evident from the "if
error" language, the Washington Court of Appeals did not
definitively settle the question.
That eggshell plaintiff battle, perhaps, is for another day.
But would it not be somewhat preposterous if, for example, a
lawsuit were filed by representatives of a hemophiliac, who
suffered a cut in a severe crash and bled to death, claiming
that an automobile manufacturer must "take the plaintiff as it
finds him," even though a non-hemophiliac would only have
sustained a cut under similar circumstances? That kind of
eggshell claim, if upheld, would amount to imposing a duty to
make an injury-proof car. The applicable legal duty, however, is
reasonable safety, not absolute safety. So, clearly, the
eggshell plaintiff rule, at least in some of its settings, would
be at odds with the very underpinnings of the vehicle
crashworthiness doctrine itself.
Rupert v. Ford Motor Co.,8
plaintiff Michael Rupert was driving a Ford pick-up truck. A
second vehicle crossed the center line and struck the truck in
the front at high speed. A third vehicle crashed into and
beneath the rear of Rupert's truck. Plaintiff sued the
manufacturer contending the vehicle was "excessively crushed"
entrapping him. Witnesses unsuccessfully tried to extricate
Rupert. A post-collision fire ensued, and Rupert sustained
serious injuries. The complaint asserted strict liability and
negligence theories and sought punitive damages.
Defendant Ford Motor Company moved to exclude the opinions of
plaintiff's proposed expert, Byron Bloch. The court held a "Daubert
hearing," during which Bloch testified, in order to assess the
reliability of his conclusions on design defect and
crashworthiness.9 The U.S. District Court Judge for
the Western District of Pennsylvania, Cathy Bissoon, focused on
Bloch's qualifications, which were challenged, and on the
reliability of his opinions. The court held that "a subset of
Mr. Bloch's conclusions is insufficiently reliable, and his
testimony is partially excluded." Based on that exclusion, Ford
Motor was entitled to summary judgment.
Bloch had over 40 years of automobile safety experience but
was not a licensed engineer. He worked as an independent
consultant in auto safety design and crashworthiness. For three
years he was a research editor for Road Test Magazine,
evaluating the design and safety technology features of
automobiles. He worked with the National Safety Council as a
judge, evaluating accident prevention research. He testified
and/or presented information regarding auto safety issues before
the Department of Transportation and National Highway Traffic
Safety Administration. He lectured at colleges, universities and
professional groups on auto safety issues. He testified in about
30 cases in state and federal courts. He published and/or
presented on automobile/traffic safety approximately 44 times.
He orchestrated, observed and/or analyzed vehicle crash tests on
multiple occasions. He made recommendations "to the automobile
industry" about relocating fuel tanks in front of the rear axle
and about seat anchorage strength.
The court concluded, based on the "liberal policy of
admissibility" under Federal Evidence Rule 702 that prevails in
the Third Circuit, that Bloch had "specialized knowledge"
regarding vehicle design and crashworthiness "far greater than
the average layman." Thus, he was qualified as an expert.10
Prior to issuing his report, Bloch examined the Rupert vehicle,
a "virtually identical" exemplar truck which he sectioned in
order to evaluate its design features, and also examined the
second vehicle that struck Rupert's.
Bloch's report concluded that: (1) a properly designed
vehicle should be designed so that occupants are not needlessly
entrapped and subjected to a fire; (2) a vehicle that doesn't
prevent the foregoing is not crashworthy; (3) the Rupert vehicle
lacked six features the industry recognized as vital to
passenger compartment crashworthiness; (4) the addition of six
specified features to correct the six defects would have
prevented the "excessive crushing" of the passenger compartment;
and (5) had the compartment not been excessively crushed, Rupert
could have been extricated and not have been subjected to the
The court found the first
three conclusions "sufficiently reliable." These opinions
related to "general precepts" about safety design, specific
design features of the Rupert vehicle, the availability of
feasible alternative designs at the time the Rupert vehicle was
manufactured, and the general benefit of those designs. The
opinions naturally flowed from Bloch's past experiences in the
field of auto safety and work he undertook in this particular
case. However, Bloch's fourth and fifth conclusions presented
genuine reliability problems. After "extensive consideration" of
Bloch's methodologies used to arrive at these conclusions, the
court found the last two unreliable and inadmissible at trial.
An expert must testify to scientific, technical or
specialized knowledge. The process or technique used in
formulating his or her opinion must be reliable. Proposed
testimony must be "supported by appropriate validation—i.e.,
'good grounds' based on what is known."12 It was
clear that Bloch did not use a scientific method to arrive at
conclusions (4) and (5). He conducted no testing—no hypothetical
calculations or actual replications—to support the opinion that
his alternative design features would have prevented the
excessive crushing of the Rupert vehicle and plaintiff's
extrication without fire injuries.
During the Daubert hearing, the expert struggled to explain
his methodology, which the court believed to be, largely, an
"analysis internal to Mr. Bloch's brain." While he "may be very
intelligent and possess an impressive wealth of knowledge that
informed his thought-process, the Court is unable to find this
'reliable' within the Daubert framework." Although his
conclusions may be correct, if the methods he utilized to reach
those opinions are not "testable or standardized, such that
another expert can critique his methods, utilize those same
methods to arrive at an independent conclusion, or point to the
rate of error of those methods, they are not 'reliable'."13
To conclude that his six features would have prevented the
subjectively described excessive crushing, Bloch "must first
reliably conclude, quantitatively, the extent to which the
Rupert vehicle would have been crushed if it had included
Bloch's recommended alternative designs." For example, Bloch
posited that, in the absence of side door beams, the driver's
side door was crushed by 10 inches in the impact. He then opined
that adding a side beam would have reduced crush by between six
and 10 inches. When pressed by the court as to how he arrived at
that number, Bloch "was unable to provide a satisfactory
answer." He did not explain any past testing or calculations to
support his opinion. Rather, he stated more generally that door
beams reduced crush in industry crash tests. "This does not
Instead of test results or calculations, "Bloch's background
and intuition inform his particular conclusions." As impressive
as they are, "they fail to provide a testable, reliable
foundation for his conclusion under Daubert and its
progeny."15 Bloch did not employ a testable method to
conclude that crush would have been reduced by any specific
measurable quantity "in this particular accident."16
The industry testing he cited did not establish that it
replicated the forces at play in this case—"speed, angle,
etc.—such that he could state with a reasonable degree of
scientific certainty how the outcome of Mr. Rupert's accident
would have been different with the implementation of alternative
designs." Bloch did not "bridge the gap" between the results in
industry crash tests or other accidents, and Rupert's accident.
Without that bridge, his fourth conclusion was not reliable and
did not assist the trier of fact.
The expert's fifth conclusion, that Rupert could have been
extricated before fire reached the truck's cab, was also
unreliable. Bloch did not satisfactorily explain away the
possibility of the locking of the seat belt, Rupert's loss of
consciousness and/or his severe upper body injuries as factors
slowing Rupert's exit from the vehicle such that burn injuries
would have occurred in any event. Bloch's "method" is "entirely
unique to Mr. Bloch and his depth of knowledge." This "method"
is not testable, has not been subjected to peer review, has no
identifiable rate of error, is not governed by maintained
"standards," is not generally accepted, and has not been
established to be reliable.17 Since plaintiff could
not establish all of the elements of a crashworthiness cause of
action, the court granted summary judgment to defendant.
1. 2014 Wash. App. LEXIS 2871 (Wash. App. Dec.
2. Frye refers to the famous case of
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
3. Lindemann, 2014 Wash. App. LEXIS
2871, at *13.
4. Id., LEXIS at *14 - *17.
5. Id., LEXIS at *16 - *17.
6. Id., LEXIS at *20.
8. 2015 U.S. Dist. LEXIS 21270 (W.D. Pa. Feb. 23,
9. A Daubert hearing is named after the pivotal
decision of Daubert v. Merrell Dow Pharmaceuticals, 509
U.S. 579 (1993), holding that scientific or technical expert
testimony must be relevant and reliable. The Daubert principles
are reflected in Federal Rule of Evidence 702 and its Comments.
10. Rupert, 2015 U.S. Dist. LEXIS 21270,
at *8 - *9.
11. Id., LEXIS at *11 - *12.
12. Id., LEXIS at *15 (quoting from Daubert,
509 U.S. at 590).
13. Id., LEXIS at *15 - *16.
14. Id., LEXIS at *17.
15. Id., LEXIS at *19 (quoting from Oddi v.
Ford Motor Co., 234 F.3d 136, 158 (3d Cir. 2000)).
16. Ibid. (Emphasis by court).
17. Id., LEXIS at *22 - *23.
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