Complex Litigation

Screening Experts on Sudden Acceleration and Other Issues

By Michael Hoenig - New York Law Journal - May 10, 2010

In this article, we examine a number of court rulings precluding or curtailing experts from testifying in automobile products liability cases. The courts examined the experts' opinions and the foundations for them and held either that the methodologies were unreliable or the opinions were untrustworthy because of too large an analytical gap between the conclusion and the underlying foundation. Two appellate rulings, one recent, deal with expert reliability issues in so-called sudden acceleration cases, a hot litigation topic now afflicting Toyota. Though these decisions involve Ford Motor Company, they nevertheless seem to be informative on how good science may be lacking in the Toyota syndrome. Following some comments on the acceleration storm, we survey these and other rulings on experts in automotive cases.

The legal tsunami that struck Toyota in recent months is largely lawyer-driven. The class actions, individual lawsuits, congressional hearings, agency inquiries, and media reporting of these episodes were instigated by a number of first-person accounts, some sensational, that vehicles in motion suddenly accelerated beyond the driver's ability to control the surge. But it is lawyers' strident characterizations of the phenomenon as a fraudulent defect that punctuate the lawyers' race to the courthouse. What kind of science underlies these accusations?

The fact that no one has been able to reproduce such an event during extensive testing or to even announce a theory that has weathered the rigors of the scientific process, including repeatability and falsifiability, is ignored. Lawyers ferociously on the attack are undeterred that science does not lead the assault. Science is an inconvenience. The tactical imperative is for a lawyer to rush to the courthouse, file a lawsuit and go for the discovery jugular hoping that a "smoking gun" document or some "guilty" terminology will give truth to the claim. The absence of supportive science is not considered an impediment.

Past experiences show that science lagging lawsuits is not new. Some hope that perhaps science can be dragged along at some point to dignify the claims. In the meantime, to justify a claim, maybe some form of pseudo-science will suffice. Perhaps a credentialed expert will give lawyers on the offensive enough of a theory, not proven of course, but enough scientific mumbo jumbo so as to pacify courts at the outset. The lawsuit purports to be a scientific claim but it is a claim that is unscientific.

The courts' tolerance for the filing of lawsuits claiming defects based on no science or on a science that has yet to catch up to the rush of allegations is more understandable in the case of a lawsuit by a real person who experienced a real accident and sustained real injuries. Such individual lawsuits, even many of them, based on real accidents, will sift good science from bad, real from pseudo. In such a case, the plaintiff, claiming to be a victim of a defect, has a story to tell within the framework of a provable event, a mishap with a roadway one can view, an accident vehicle one can inspect, police-taken physical measurements, and eyewitnesses who can be interviewed or deposed.

In short, the lawsuit based on a real accident typically presents objective facts against which the claim of a defect can be advocated, assessed, analyzed and adjudicated. The plaintiff's attorney can do his investigation, his due diligence so to speak, and then file the lawsuit within the usually ample statute of limitations. In such a case, for a small filing fee, the claimant gets access to generous discovery and gets to develop the claim. The existence or absence of reliable science to back up the defect allegations will, in due time, be revealed. Courts are equipped to handle such individual, real accident controversies. The end result, whether a settlement, a plaintiff's or defense verdict or a dismissal, usually does not create tsunami-like conditions that can shatter going concerns.

Electromagnetic Interference

For example, in Turker v. Ford Motor Co.,1 plaintiff claimed that a 2001 Ford Taurus suddenly accelerated and ultimately crashed. Following discovery Ford moved for summary judgment. The defendant challenged the admissibility of plaintiff's experts, Samuel J. Sero, an electronics expert, and Dr. William Berg, a human factors expert. The Ohio trial court initially denied the motion but then set a hearing to ascertain admissibility of the experts' testimony.

Mr. Sero testified that he graduated from Carnegie Institute of Technology with a degree in electrical engineering. He called himself a forensic engineer. Mr. Sero opined that there are only two ways for a car to suddenly accelerate: either by the driver putting his foot on the accelerator or by a malfunction in the cruise control. His theory was that sudden acceleration can be caused by an electromagnetic interference (EMI) with the car's cruise control. Mr. Sero conceded that reports by the government safety agencies of the United States, Canada and Japan concluded that EMI did not cause unintended acceleration events, and that sudden acceleration was the result of driver error. Testing done for the Japanese study did not result in even one actuation of a cruise control device by EMI.

Mr. Sero himself had conducted tests to activate a cruise control through EMI but none were successful. He testified in other cases and sometimes his testimony has been excluded while in other instances it has been allowed. Mr. Sero was not able to identify any evidence of a malfunction in the accident vehicle. He admitted he had not inspected the accident scene or investigated the nature of the accident. Mr. Sero indicated that he has held his EMI theory for 15 years. At the conclusion of the hearing, the trial court determined that Mr. Sero's testimony would not meet the reliability criteria required by Evidence Rule 702. Summary judgment was granted.

The Ohio Court of Appeals affirmed. Its focus was not on the expert's conclusion itself but the "journey to the conclusion," i.e., how the expert arrived at his conclusion. Nevertheless, just because an expert's opinion is based upon valid principles and methods from within his field of study, this does not per se establish the legal reliability of the opinion. The underlying resources must support the opinion. Trial courts "must ensure that any such extrapolation accords with scientific principles and methods."

The court looked to the reliability factors declared by the U.S. Supreme Court in Daubert and Joiner.2 The record supported the trial court's exclusionary ruling that Mr. Sero's EMI theory was not based on a reliable scientific foundation. "Simply put, the principles and methodology utilized by Sero did not establish the legal reliability of his opinion. The journey to his conclusion was flawed."

In Watson v. Ford Motor Co.,3 a decision issued by the South Carolina Supreme Court in March 2010, a 1995 Ford Explorer allegedly experienced sudden acceleration shortly after the driver set her cruise control. She tried to grab the gas pedal but was stopped by her seat belt and then pumped her brakes to no avail before crashing. The driver and another occupant were ejected, resulting, respectively, in quadriplegia and death. The driver's father testified he had experienced sudden acceleration on two earlier occasions. He took the vehicle to the dealer where technicians determined that the new floor mats were upside-down and needed to be turned over.

Plaintiffs' theory was that the Explorer's cruise control system was defective because it allowed EMI to affect the system. To support this theory, plaintiff presented Dr. Antony Anderson, an electrical engineer from Britain. Dr. Anderson concluded that EMI caused the sudden acceleration and crash. He further opined that Ford could have employed a feasible alternative design to prevent EMI, specifically, a "twisted pair wiring" which prevents the EMI from passing between the wires.

Plaintiffs also presented testimony from Bill Williams, as an expert on "cruise control diagnosis." Defendant's cruise control expert, Karl Passeger, testified that EMI signals have no effect on a cruise control system and that the system contains a watchdog feature that automatically checks for improper signals and resets the cruise control computer if it is not operating correctly. Additionally, Ford suggested that floor mats could have caused the sudden acceleration, as they had on previous occasions.

Verdict Reversed

The jury found Ford liable on the cruise control claim and awarded $18 million in favor of the two occupants. On appeal, Ford challenged the trial court's acceptance of Bill Williams as a cruise control system expert and Dr. Anderson's expert testimony regarding EMI and alternative feasible design. Also appealed was the trial court's ruling allowing evidence of other incidents of sudden acceleration in Explorer vehicles. The state Supreme Court agreed that Bill Williams should not have been qualified as an expert. He had no professional experience working on cruise control systems prior to this litigation. He merely studied the vehicle's system just before trial. However, this admissibility error was not deemed to have prejudiced defendant.

Admission of Dr. Anderson's expert testimony was prejudicial error because his theory that EMI caused the sudden acceleration in this case was unreliable. Dr. Anderson's background involved working with massive generators which have entirely different electrical wiring systems and different voltage levels. He had no experience in the automobile industry, never studied a cruise control system and never designed any component of one. Further, his testimony regarding "twisted pair wiring" as a cure for the EMI defect was not shown to be reliable. He did not explain how the alternative could be incorporated into the system and offered no model comparison. The EMI testimony, too, was suspect because of his lack of qualifications.

But, even assuming he were qualified, his EMI testimony was not reliable. His theory had never been peer reviewed, never published in authoritative papers and never tested. He also admitted that he would not be able to determine exactly where the EMI which he opined had caused the malfunction originated or what part of the system it affected. He further admitted it would not be possible to replicate the EMI malfunction in a testing environment.

In 1989, the U.S. safety agency, National Highway Traffic Safety Administration (NHTSA), specifically rejected the EMI theory. His testimony did not contain any indicia of reliability and it was error for the trial court to receive it. The evidence of other incidents was also erroneously admitted since the models had dissimilarities and there was no showing of a similarity of causation between the malfunction in this case and in the other incidents. Accordingly, the verdict was reversed.

Careful Screening by Courts

A trio of recent "gatekeeping" rulings signify that courts are carefully screening experts for the reliability of their methodologies, foundations and opinions. In Minnis v. Ford Motor Co.,4 plaintiff's vehicle went out of control when a "phantom" car cut her off. The Ford Explorer struck a barrier and rolled over. Plaintiff, who claimed she wore her seat belt, was ejected. Her theory was that the defective belt unlatched inertially and the defective door opened during the accident. To support these allegations, plaintiff retained Dr. Charles Benedict. Ford challenged the expert opinions under Frye's "general acceptance" test used when opinions are based upon novel science.

At his deposition, Dr. Benedict was asked what particular defect in the door led to its failing. He responded, "I haven't been able to do any testing on the door handle relative to why it came open. I know it just came open, and it shouldn't have." He opined that there had to be a defect or it would not have opened. At the hearing on the motion, plaintiff offered an affidavit by Dr. Benedict which sought to identify a "specific defect" in the door. The court observed that the expert still had not tested the vehicle but now sought to contradict his deposition testimony. Dr. Benedict's opinion on the door was deemed unreliable and inadmissible. As for the seat belt inertial unlatching theory, Ford presented an NHTSA report denying a petition for rulemaking which concluded there was no evidence of a safety-related defect trend associated with inertial unlatching. Further, the trial court carefully evaluated Dr. Benedict's methodology in reaching his conclusion and found it not generally accepted within the scientific community.

In Brown v. Kia Motors Corp.,5 the U.S. District Court for the Western District of Pennsylvania had to consider defense motions at the close of plaintiff's case to strike the testimony of plaintiff's several experts. At issue was the design of a Kia Sportage seat belt restraint which Dr. David Renfroe opined was "defective and unreasonably dangerous." The problem was that Dr. Renfroe "has not reasonably substantiated that conclusion." Expert opinion testimony must rest upon "a bedrock of fact." Mere inferences founded upon inferences "possess no evidential value." Dr. Renfroe did not prove specific causation.

Unreliable Testimony

He opined that the seat belt was severed by the sharp metal seat belt recliner lever. But at his deposition he conceded he had no idea how the webbing got under the recliner lever. He speculated that during the rollover the webbing got caught. But he conducted no tests and could not replicate the load and forces on the webbing. In fact, he never looked at or actually examined the vehicle. He opined the lever was sharp but he never physically touched or examined the lever. In the words of the court: "So, what does the testimony and evidence elicited in this case show? Only that the plaintiff has a theory and Dr. Renfroe says the theory is correct—not based on scientific testing or experimentation, but rather based on his own expert speculation and conclusory statements." Accordingly, the court granted defendant's motion for a directed verdict.

In Weatherspoon v. Nissan North America Inc.,6 a wrongful death action filed in a Mississippi federal court, plaintiff claimed that a 2006 Murano rolled over and ejected the right front seat passenger who died at the scene. Plaintiffs claimed that the decedent passenger was partially (but not fully) reclined pre-crash. During the rollover the compression of the roof's B-pillar created slack in the seat belt and allowed the ejection. Defective design was claimed as to the rear door latch, the front passenger seat, the seat belt and the roof/B-pillar. Defendant Nissan countered that decedent was fully reclined—a position against which they warned. Thus, it was the passenger's position and not the design that introduced slack in the belt.

Two of plaintiffs' expert witnesses were Stephen Syson and Dr. Martha Bidez. The district court declined to strike the Syson and Bidez opinions in their entirety, but the court found that certain opinions fell short of Rule 702's reliability requirements. Regarding the door opening allegation, Mr. Syson's assumption regarding automatic door locks in the vehicle was incorrect. Moreover, "it is not enough to say the right rear door opened because the lock failed." Mr. Syson did not test or otherwise address whether the door was even locked. If locked, then why did it fail? Mr. Syson generically claims the lock was defectively designed "but he fails to explain how." He speculates that perhaps the solenoid somehow failed but neglects to explain why that might be the case. No methodology is apparent. Mr. Syson's conclusions were mere ipse dixit. Dr. Bidez, too, offered her opinion that the door was defective because it should not have opened. Such opinions are speculative, incomplete and not helpful for the jury. Defendant was granted summary judgment on the door claims.

Mr. Syson's opinions in certain other particulars also were stricken or found to be "not well developed or supported and appear speculative and conceptual in nature." However, some of his opinions as to design alternatives were held admissible and sufficient to withstand summary judgment. Dr. Bidez was found unqualified to talk about the timing of the roof deformation during the crash sequence. Mr. Syson, having agreed in his deposition that there was no quantitative analysis showing B-pillar deformation before ejection, offered no reliable basis for opining that B-pillar collapse created slack in the belt and caused the ejection. The roof claim was therefore dismissed. Further, as to the warnings claims, Dr. Bidez was not a qualified warnings expert and Mr. Syson "offers similarly unhelpful and unreliable testimony." However, the court did not dismiss the warnings claim entirely because the factual issue of how the decedent was seated pre-crash bore upon the efficacy of the warning.

Conclusion

In the foregoing cases, we see courts devoting time, effort and energy to discharge their gatekeeping task and admit only reliable expert testimony. When experts testify in individual, real accidents, there is a factual framework against which to measure the reliability of the particular experts' theory or opinion. Where, however, class actions claiming a general defect in an amorphous mass of many thousands of vehicles never involved in an acceleration accident are filed in the proverbial race to the courthouse and in a rush to judgment, without a showing of good science early on, the factual framework that is vital for gauging true reliability is weak. Speculative pseudo-science is drafted to fill the vacuum. Harsh consequences can ensue.

Michael Hoenig is a member of Herzfeld & Rubin.

Endnotes

1. 2007 Ohio App. LEXIS 920 (Ohio Ct. App. March 8, 2007).
2. Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 593-94 (1993); General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
3. 2010 WL 916109 (S.C. Sup. Ct. March 15, 2010).
4. No. 06-452-CA, Judge Metzger (Fla. Cir. Ct. Marin Co., March 24, 2010).
5. No. 02:06-cv-0804 (W.D. Pa., Jan. 19, 2010).
6. Civ. Action No. 3:07cv24-DPJ-LRA (S.D. Miss. Feb. 17, 2010).

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