Opinion
Civ. No. H-95-2529.
August 1999.
MEMORANDUM AND ORDER
The jury trial in this case is scheduled to commence on Monday, August 23, 1999. Three more motions are still pending:
(1) Plaintiffs' motion for partial summary judgment;
(2) Defendant's motion in limine to exclude the testimony of Jerry Wallingford, and
(3) Defendant's motion in limine to exclude the testimony of Ronald Elwell and for summary judgment.
The principles to be applied by this Court in considering a motion for summary judgment under Rule 56 are well established. A party moving for summary judgment bears the burden of showing the absence of any genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). Where, as here, the nonmoving party will bear the ultimate burden of persuasion at trial, "the burden on the moving party [at the summary judgment stage] may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
The movant's burden of establishing that there is no genuine issue of material fact is met by consideration of affidavits, exhibits, depositions and other discovery materials. Barwick, 736 F.2d at 958. Nevertheless, "[t]he facts, and the inferences to be drawn from the facts, must be viewed in the light most favorable to the party opposing the motion." Ballinger v. North Carolina Agric. Extension Serv., 815 F.2d 1001, 1004-05 (4th Cir. 1987),cert. denied, 484 U.S. 897 (1987) (citing Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985)).
II Plaintiffs' Motion for Partial Summary Judgment
Plaintiffs request that the Court rule as a matter of law that theories of misuse of product and assumption of risk are not available to Ford as defenses to plaintiffs' claim of strict liability in tort. Plaintiffs assert that this is a crashworthiness case. According to plaintiffs, the acts or omissions of plaintiffs' decedent consequently "have no bearing on the claims for injuries and death caused by the defective fuel system." In support of their arguments, plaintiffs have citedReed v. Chrysler Corp., 494 N.W.2d 224, 230 (Iowa 1994), andAndrews v. Harley Davidson, Inc., 796 P.2d 1092, 1096 (Nev. 1990). Plaintiffs further contend that the Fourth Circuit's earlier Opinion in this case, see Binakonsky, 133 F.3d at 288-89, supports this conclusion.
Plaintiffs mistakenly characterize their motion as one asking the Court to rule, as a matter of law, "that the fifth and sixth Wade factors are not applicable to this case." The "Wade factors" are part of a seven factor risk-utility analysis developed by Professor John W. Wade. The Fourth Circuit applied these factors in reversing this Court's prior grant of summary judgment in favor of defendant Ford. Binakonsky v. Ford Motor Co., 133 F.3d 281, 285-89 (4th Cir. 1998). As defendant Ford points out, the Wade test is an all-or-nothing proposition in thatall seven factors necessarily apply. Therefore, plaintiffs' motion will be considered as requesting a ruling that the defenses do not apply (or alternatively, that the fifth and sixth Wade factors favor plaintiffs).
In response, Ford contends that plaintiffs' motion should be denied because it is untimely and because Ford is entitled to present evidence relating to all seven Wade factors. Ford also asserts that the assumption of risk and misuse of product defenses are clearly available in Maryland in strict liability cases, as recognized previously by this Court and the Fourth Circuit.
Plaintiffs' motion for partial summary judgment will be denied both as to the assumption of risk defense and as to the misuse of product defense. Under Maryland law, the defense of assumption of risk may be raised in a strict liability case. See Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 597 (Md. 1985). In its Opinion, the Fourth Circuit noted that a drunk driver, such as Binakonsky, assumes the risk of injury from the initial impact.Binakonsky, 133 F.3d at 289. The Court ruled, however, that for summary judgment purposes, it cannot be inferred as a matter of law that he assumed the risk of an allegedly defective fuel system.
Pursuant to the Fourth Circuit's rulings in this case, defendant Ford is entitled to argue that Binakonsky assumed the risks inherent in the violent collision which resulted when he rammed his vehicle into a tree with such force that the engine compartment was moved rearward two to three feet and numerous engine components were severely damaged. Ford is therefore entitled to rely at the trial on the inference that Binakonsky knew that in a severe collision like this one systems and parts, including fuel lines, would fracture and become inoperable. In view of the conflicting inferences which may be derived from evidence of record, the issue as to the viability of the defense of assumption of risk cannot be decided as a matter of law by way of plaintiffs' motion for partial summary judgment.
Plaintiffs' motion for summary judgment must also be denied as to Ford's misuse of product defense. Plaintiffs failed to prevail as to this issue when the Court denied their motion in limine. See Memorandum and Order of March 29, 1999, slip op. at 9-10. Plaintiffs disregard the clear implications of that ruling and seek to revive the issue here, repeating the same arguments previously advanced. In that prior ruling, this Court observed that "evidence of Binakonsky's intoxication on the day of the accident is also relevant to the defense of misuse of product asserted by defendant Ford in this case. Such a defense is explicitly recognized by Maryland law." Id. at 10. The Fourth Circuit also unequivocally recognized the availability of this defense in its prior Opinion. See Binakonsky, 133 F.3d at 387-88. Those decisions cited compelling authority to support that proposition: Restatement (Second) of Torts § 402A, comment h; Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 595 (1985); Lahocki v. Contee Sand Gravel Co., 41 Md. App. 579, 587 (1979), rev'd on other grounds 286 Md. 714 (1980). Without addressing the applicability of these authorities, defendants merely rely on two contrary cases from other jurisdictions which were discussed extensively in plaintiffs' earlier motion and which did not apply Maryland law. The weight of authority is clearly to the contrary, and plaintiffs' motion for partial summary judgment must therefore also be denied as to defendant's misuse of product defense.
The portion of the Fourth Circuit's opinion that plaintiffs' cite for support is inapposite, as it relates to the unavailability of a contributory negligence defense, not a misuse of product defense.
III Defendant's Motion In limine to Exclude the Testimony of Jerry Wallingford
This Court's Third Revised Scheduling Order set February 26, 1999 as the deadline for the disclosure of supplemental material relating to expert witnesses. On that date, plaintiffs' counsel sent to Ford's counsel a two-sentence letter stating the following: "Plaintiffs are naming Jerry G. Wallingford, P.E., as an additional expert. Enclosed is a copy of his CV for your file." On June 28, 1999, which was the day discovery closed under the provisions of the Third Revised Scheduling Order, plaintiffs' counsel sent Ford's counsel a document titled "Supplement to Plaintiffs' Required Expert Disclosures Pursuant to Federal Rule of Civil Procedure 26(a)(2)." This document explained that Wallingford
is expected to testify that the design and construction of the fuel supply system in the subject vehicle, and in particular the use of plastic lines and connectors in the fuel system, and the absence of an anti-siphoning check valve to preclude siphoning of fuel in the event of a frontal collision which causes failure of the plastic lines and connectors, was defective and unreasonably dangerous.
The document noted that Wallingford's CV had been provided earlier and that his prior testimony had been disclosed in the transcript of the Wasilik case.
Defendant Ford now moves to exclude Wallingford's testimony, contending that these disclosures fail to satisfy the requirements of Rule 26(a)(2), F.R.Civ.P. and that this failure has deprived Ford of adequate notice and an opportunity to pursue discovery relating to Wallingford's proposed testimony. Ford also contends that Wallingford's testimony should be excluded because it unnecessarily duplicates the proposed testimony of plaintiffs' other expert, Ronald Elwell.
In opposition to Ford's motion, plaintiffs simply note that Wallingford was an expert witness in the Wasilik case and that his report was delivered to Ford as a part of that case. Plaintiffs contend that they did not provide any report of Wallingford in this case because they relied on the Court's admonition to counsel that repetitious or duplicative discovery was unnecessary. There is no merit to these contentions.
Rule 26 requires that, in addition to disclosing the identity of any proposed expert witness, a party must provide a "written report prepared and signed by the witness." Rule 26(a)(2)(B). The report must contain, inter alia, the witness's qualifications, a summary of opinions to be expressed and the basis of those opinions and any exhibits that the expert plans to rely on. "A party that without substantial justification fails to disclose [this information] shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed." Rule 37(c)(1), F.R.Civ.P.
Defendant's motion in limine will be granted. At the time of his death, Binakonsky was driving a 1988 Ford E-150 Econoline van. The Wasilik case involved a different vehicle, a 1987 Ford F-150 pickup truck. The circumstances of the collision were also quite different from those involved here. Even if Wallingford merely repeats the same testimony offered in the Wasilik case, plaintiffs' failure to adequately comply with the disclosure requirements of Rule 26 has deprived Ford of the opportunity to depose Wallingford regarding his work in this case and to determine how his opinions relate to the different factual situation presented here. Thus, plaintiffs' belated and cursory disclosure is not "harmless." Moreover, plaintiffs have offered no "substantial justification" for their failure to provide defendant with a full and timely report. It is hardly justification for plaintiffs' failure to comply with Rule 26(a)(2)(B) that the Court instructed counsel to avoid unnecessary or duplicative discovery. Id. In preparing for trial, it was obviously necessary for defendant's attorney to have in hand Wallingford's report in this case in order to be able to depose him before the close of discovery.
IV Defendant's Motion In limine to Exclude the Testimony of Ronald Elwell and its Motion for Summary Judgment
Ford contends that under Rule 702, F.R.E., and under the Supreme Court's holding in Kumho Tire Co. v. Charmichael, 67 U.S.L.W. 4179 (1999), and Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the expert testimony of plaintiffs' expert, Ronald Elwell, is inadmissible and should be excluded. Ford does not dispute Elwell's general qualifications. Rather, it disputes his preparation and conclusions in this particular case. Ford claims that Elwell's opinions are speculative because (1) he did not adequately familiarize himself with the design and operation of the 1988 Ford Econoline fuel system, (2) he cannot define with engineering certainty how the fuel system failed in this crash and (3) he proffers defect theories that are not supported by sound engineering principles. Ford further argues that it is entitled to summary judgment if Elwell's testimony is excluded, since without his testimony plaintiffs would not be able to establish a prima facie case of defective design.
In response, plaintiffs argue that Elwell's report, background and methodology satisfy the requirements of Kumho Tire and Daubert. Plaintiffs also take issue with defendant's characterizations of Elwell's testimony.
Rule 702 provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
In Daubert, the Supreme Court interpreted Rule 702, observing that federal judges must exercise their gatekeeping function and ensure that proffered expert testimony is scientifically valid and that it "will assist the trier of fact to understand or determine a fact in issue." 509 U.S. at 592. The Court suggested several factors that a judge may consider in determining the admissibility of scientific evidence. These include (1) whether the theory or methodology of the expert "can be (and has been) tested," (2) whether it has been subject to peer review and publication, (3) the known or potential rate of error and (4) the degree of acceptance within the scientific community. Id. at 593-94.
In Kumho Tire, the Court reiterated the basic principles ofDaubert and clarified that the general holding of Daubert applies "to the testimony of engineers and other experts who are not scientists." 67 U.S.L.W. at 4180. The Court emphasized, however, that this inquiry is flexible, and that a district court enjoys "the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Id. (citing General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997)). Applying those principles to the facts at issue, the Court concluded that the District Court properly excluded the testimony of an engineer in a design defect case. 67 U.S.L.W. at 4184-85. Although the engineer had considerable expertise in the tire industry generally, the district court concluded, and the Supreme Court agreed, that his methodology in that particular case did not adequately support his conclusions.Id.
Following its review of the materials furnished by the parties in this case, this Court concludes that Ronald Elwell's proffered testimony is sufficiently reliable to satisfy theDaubert/Kumho analysis and Rule 702. As the Court observed in Daubert, "[u]nlike an ordinary witness . . . an expert witness is permitted wide latitude to offer opinions" so long as those opinions are based on sound scientific or technical principles. 509 U.S. at 592. Elwell's basic conclusion is that the use of nylon lines and connectors and the lack of an effective anti-siphoning device in Ford's 1988 Econoline engine constituted design defects. When taken as a whole, Elwell's opinions, as disclosed by pretrial materials, are sufficiently supported by his experience and observations and by engineering principles to be presented to a jury. Most of the arguments that Ford makes in support of its motion are more appropriately related to the weight rather than the admissibility of the proffered expert testimony.
Depending on Elwell's testimony at the trial, counsel for defendant would be entitled to challenge his opinions by way of a motion to strike. The Court would then have had an opportunity to hear both his direct testimony in full and the cross-examination. Specific deficiencies in Elwell's testimony may also be addressed at trial.
Elwell's theory that the lines and connectors were defective is different from the engineering theory rejected by the Court inKumho Tire. The engineer in that case came up with a formula whereby he concluded that in the absence of at least two of four specific, physical symptoms of tire abuse, the tire failure must have been due to a design defect. 67 U.S.L.W. at 4181. His own observations indicated the presence of several of those factors, although he discounted each of them before ultimately concluding that the tire was defective. Id. The district court held, and the Supreme Court agreed, that this wholly unsupported methodology did not provide a sound basis for the expert's conclusions. Id. at 4184-85. Elwell has adopted no such formulaic test, but has instead offered the opinion that Ford made a mistake in incorporating in the van nylon fuel lines and connectors rather than the braided steel lines used in other vehicles.
Ford is entitled to challenge Elwell's conclusions and may argue that they lack a sufficient basis in testing or in fact. Contrary evidence may also be presented. However, Elwell's proffered testimony satisfies the requirements of Rule 702 as a result of his inspection of the vehicle, his extensive experience in automobile design and fire analysis and his reliance on accepted engineering principles. Accordingly, defendant's motion in limine must be denied, and defendant's motion for summary judgment cannot be granted.
V Conclusion
For the foregoing reasons, plaintiffs' motion for partial summary judgment will be denied, defendant's motion in limine to exclude the testimony of Jerry Wallingford will be granted, and defendant's motion in limine to exclude the testimony of Robert Elwell and for summary judgment will be denied. Accordingly, it is this ______ day of August, 1999 by the United States District Court for the District of Maryland,
ORDERED:
1. That plaintiffs' motion for partial summary judgment is hereby denied;
2. That defendant's motion in limine to exclude the testimony of Jerry Wallingford is hereby granted; and
3. That defendant's motion in limine to exclude the testimony of Ronald Elwell and for summary judgment is hereby denied.