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.
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
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."
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.
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
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
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
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.
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.
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.
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
Michael Hoenig is a
member of Herzfeld & Rubin.
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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