Summary
In Battistella, the district court excluded the expert report of Dr. A. L. Baxley, who opined as to how the plaintiff's injuries were caused and how deployment of the airbag would have prevented or lessened the plaintiff's injuries.
Summary of this case from Baloney v. Toyota Motor Sales, USA, Inc.Opinion
Civil Action No: 03-2286, SECTION: "D" (1).
June 14, 2004
Before the court is the "Motion to Disqualify and Exclude the Opinion Testimony of A.L. Baxley, Ph.D. and Motion for Summary Judgment Dismissing Plaintiff's Claims" (Doc. No. 12) filed by Defendant, DaimlerChrysler Motors Company LLC (DCMC). Plaintiff, Rodney L. Battistella, IV, filed a memorandum in opposition. The motions, set for hearing on Wednesday, June 9, 2004, are before the court on briefs, without oral argument. Having reviewed the memoranda of counsel, the record and the applicable law, the court finds that the motions should be granted.
This is a diversity action in which the Louisiana Products Liability Act (LPLA), LSA-R.S. 9:2800.51 et seq. applies to Plaintiff's claims. Plaintiff claims that he was injured because the driver's side air bag in his 2001 Dodge Ram truck did not deploy, when his truck rear-ended another vehicle. Because Plaintiff does not claim that the failure to deploy caused the accident, his claim against Defendant can be characterized as a crashworthiness or "second collision" case. Armstrong v. Lorino, 580 So.2d 528, 530 (La.App. 4th Cir. 1991).
To survive summary judgment, Plaintiff must demonstrate or provide sufficient evidence to create a genuine issue of material fact regarding the following: (1) the driver's side air bag in his truck was defective or "unreasonably dangerous" because it did not deploy; and (2) his injuries were enhanced or made worse by the defect. Id.; see also, Batiste v. General Motors Corp., 802 So.2d 686, 87 (La.App. 4th Cir. 2001); Caboni v. General Motors Corp., 278 F.3d 448, 544 (5th Cir. 2002).
Under the LPLA, a product may be unreasonably dangerous in one of four ways: (1) construction or composition; (2) design; (3) inadequate warning; (4) and nonconformity to an express warranty. LSA-R.S. 9:2800.54(B). In this case, Plaintiff alleges that the driver's side air bag was unreasonably dangerous in all four ways.
Under any theory of defect, a plaintiff must establish, as an essential element of his case, that his damage was "proximately caused by a characteristic of the product that renders it unreasonably dangerous." LSA-R.S. 9:2800.54(A). In this case, Plaintiff must establish that he sustained more severe injuries than he would have received if his driver's side air bag had deployed. Caboni, 278 F.3d at 455 (an express warranty case involving a driver's side air bag that did not deploy after impact).
In its "Motion to Disqualify and Exclude the Opinion Testimony of A.L. Baxley, Ph.D. and Motion for Summary Judgment Dismissing Plaintiff's Claims," Defendant does not seek to disqualify Plaintiff's expert, Dr. A.L. Baxley, based on his expected testimony concerning the design of the air bag system, the sensing and deployment mechanisms, and the performance of the air bag system in the subject accident. (Defendant's Memo. at p. 2, n. 1). Rather, Defendant seeks a ruling to exclude Dr. Baxley's opinion testimony as to how the Plaintiff's injuries were caused and how deployment of the airbag would have prevented or lessened those injuries.
Based on Dr. Baxley's report (Defendant's Exhibit A attached to Defendant's original Memo.) and his deposition testimony (Defendant's Exhibit A attached to Defendant's Reply Memo.), the court finds that Dr. Baxley has a Ph.D. in chemical engineering, but he does not have a background in medicine or biomechanics. (Baxley Dep. at 14-17).
While Dr. Baxley's November 11, 2003 report is entitled a "preliminary" report, Dr. Baxley testified in his deposition that this is the only report he issued in this case. (Baxley Dep. at 26).
Dr. Baxley wrote a paper entitled "Air Bag Deployment Noise and Otologic Injuries, a Review of the Scientific Literature," and recently submitted it to the Society of Automotive Engineers. Dr. Baxley explained that in writing this paper, he reviewed literature and summarized it, but he did not actually perform scientific research on the impact of air bag deployment noise on the hearing system. (Baxley Dep. at 17-18). Such a paper would have no applicability in this case, as there was no air bag deployment, and thus no "noise" from air bag deployment, and there are no allegations of otologic injuries.
Dr. Baxley used consumer complaints and similar information about other accidents to form his opinions about Plaintiff's accident and injuries. ( See National Highway Transportation and Safety Administration (NHTSA) consumer complaints involving 2001, 1999, 1998, 1995 and 1994 Dodge Ram trucks and the failure of air bags to deploy during a frontal collision, Attachments A2, B1, C1, C2 and C3 to Dr. Baxley's preliminary report, Defendant's Exhibit A; and Crash Research and Engineering (CIREN) presentation data, Defendant's Exhibit B). However, while evidence of other incidents may have some probative value if substantial similarity to the subject accident is established, Dr. Baxley lacks sufficient information concerning any of the incidents upon which he relies to satisfy this requirement. (Baxley Dep. at 34-36, 75, 80, 83-84, 87). And although Dr. Baxley claims to have based his opinion on other cases in which air bags failed to deploy and the driver sustained injuries more serious than Plaintiff, he did not explain the relevancy of these cases. ( Id. at 38-41).
Dr. Baxley testified concerning these NHTSA and CIREN documented injuries in his deposition. (Baxley Dep. at 29-41, 75-80, 83-86).
Most importantly, Dr. Baxley does not explain how Plaintiff's head, shoulders, upper body, knee, thumb, and possibly his spine, were injured in the accident, and how air bag deployment would have prevented or lessened the injuries. Dr. Baxley cannot answer these questions because he does not possess any medical expertise or particularly specialized knowledge in biomechanics, occupant kinematics or any other relevant field, to offer a reliable opinion on the enhanced causation issue presented by this case. Thus, the court concludes that Dr. Baxley's opinion that Plaintiff's injuries were enhanced because the driver's side airbag did not deploy, lacks reliability and is not based on any scientific methodology. And, the court must exclude Dr. Baxley's opinion testimony in this regard. Fed.R.Evid. 702 703; Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999); Daubert v. Merrell-Dow Pharmaceuticals, 509 U.S. 579 (1993).
In his deposition, Dr. Baxley explained that in preparing his report, he used information about Plaintiff's injuries taken from Plaintiff's interrogatory responses. (Baxley Dep. at 28).
Defendant's expert, Richard Kent, Ph.D., who has a background in biomechanics, issued a report in which Dr. Kent opines in part that "[a]n air bag would not have mitigated the injury risk to the plaintiff" and "[t]he plaintiff's injuries were minor-to-moderate in severity and an air bag deployment, if anything, would have increased the risk of these types of injuries." ( See Kent Report, attached as Defendant's Exhibit F, pp. 4-8). Plaintiff has not challenged the expertise of Dr. Kent.
In opposition to Defendant's motion, Plaintiff also attaches a one-page affidavit of Dr. Brian Fong, who treated Plaintiff after the accident. In his Affidavit (dated May 28, 2004), Dr. Fong states that "it is more probable than not that the injuries sustained by Mr. Battistella to the top of his head (scalp), bridge of his nose, and his forehead would not have been sustained by him had the air bag properly inflated." (Fong Affidavit attached as Plaintiff's Exhibit H). However, Dr. Fong previously issued a report (dated March 8, 2004), which simply discusses Dr. Fong's treatment of Plaintiff's broken thumb; it does not discuss any of the other possible injuries Plaintiff sustained, and most, importantly, it does not discuss injury causation and the air bag not deploying. ( See Dr. Fong's Report, attached as Defendant's Exhibit D). The court concludes that not only is Dr. Fong's affidavit "report" untimely, there is also no indicia of Dr. Fong's qualification to offer an opinion related to air bags. Thus, the court strikes Dr. Fong's Affidavit as untimely and unreliable.
Plaintiff's expert reports were due by February 26, 2004. (Doc. No. 15). Thus, Dr. Fong's affidavit "report" dated May 28, 2004, is months late.
Finally, Plaintiff argues that he does not need a qualified expert witness to prove injury causation. However, whether or not the failure of the driver's side airbag to deploy "enhanced" Plaintiff's injuries is not a part of the everyday experience of the consuming public. Thus, jurors would need expert testimony to evaluate this issue. Accord, Batiste, 802 So.2d at 690 (plaintiff did not discharge his burden to prove causation in an air bag failure to deploy case when he failed to present expert opinion); Page v. Gilbert, 598 So.2d 1110, 1116-17 (La.App. 4th Cir. 1992) (jury had sufficient evidence to support conclusion that plaintiff's automobile was uncrashworthy given the testimony of Plaintiff's crashworthy and biomechanical engineering expert that the subject design defect enhanced plaintiff's injuries); and Caboni 278 F.3d at 455 (finding that Plaintiff, in an air bag failure to deploy case brought under the Louisiana Products Liability Act, adduced sufficient evidence, i.e., the opinions of three experts, to create a genuine issue of material fact regarding whether the fact that the express warranty was untrue proximately caused his additional injuries).
While "there may be cases in which the judge or the jury, while relying on background knowledge and 'common sense,' can 'fill in the gaps, this is not such a case.' Morgan v. Gaylord Container Corp., 30 F.3d 586, 590-91 (5th Cir.), quoting Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 184 (5th Cir. 1990).
However, even if expert testimony would not be needed to determine injury causation in this case, Plaintiff has failed to offer any other competent evidence to establish that he sustained more severe injuries than he would have received if the driver's side air bag had deployed.
Thus, because Plaintiff has not offered legally sufficient evidence to create a genuine issue of material fact on an essential element of his case (i.e., that he sustained more severe injuries than he would have received if his driver's side air bag had deployed), Defendant is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (Rule 56(c) mandates entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial). Accordingly;
IT IS ORDERED that the "Motion to Disqualify and Exclude the Opinion Testimony of A.L. Baxley, Ph.D. and Motion for Summary Judgment Dismissing Plaintiff's Claims" be and are hereby GRANTED, dismissing Plaintiff's claims against Defendant.