Summary
holding that de bene esse depositions are subject to discovery scheduling orders
Summary of this case from Kingsway Financial Serv. v. Pricewaterhouse-CoopersOpinion
03 Civ. 7643 (GEL).
August 16, 2007
Thomas J. Murray, Murray Murray Co., L.P.A., Sandusky, Ohio, and Robert Morici, Morici Morici, Garden City, New York, for Plaintiffs.
Peter J. Fazio, Elliott J. Zucker, Aaronson Rapaport Feinstein Deutsch, New York, New York, for Defendant.
OPINION AND ORDER
In this case, plaintiffs allege that defects in an automobile manufactured by defendant caused an accident in which they were injured and their family members killed. When the case was reassigned to the undersigned judge on May 21, 2007, a number of motions in limine had been pending since June 2005, although a trial date had not yet been set. The Court promptly held a conference on May 25, 2007, and set trial for January 2, 2008. The parties were permitted an opportunity to submit additional briefing to describe the context of the motions and address any additional authority or factual developments since the completion of the initial briefing. The deadline for such submissions having passed, the motions are now ripe for consideration.
Defendant's Motions
1. The most significant of defendant's seven motions is the first, by which defendant seeks to preclude the testimony of plaintiffs' experts: Mr. Samuel Sero, Dr. Anthony Storace, and Dr. William Berg. (Def. Mem. 1.) Plaintiffs seek to rely on the testimony of Samuel Sero, an electrical engineer, to establish that electromagnetic interference with a vehicle's cruise control system can cause sudden acceleration in the vehicle, and that the acceleration of the George vehicle was caused by such interference. (Pls. Opp'n 2.) Defendant argues that Sero's testimony is inadmissible under Fed.R.Evid. 702, as interpreted in Daubert v. Merril Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny. The testimony is apparently central to plaintiffs' contention that defendant is responsible for the accident, as it is the only evidence that directly ties any action of defendant to the accident in question.
Sero's testimony has been proffered in numerous cases, with some courts rejecting his testimony and others receiving it in evidence. (See Pls. Mem. 4; Def. Mem. 2-3, citing Jarvis v. Ford Motor Co., No. 92 Civ. 2900, 1999 WL 461813 (S.D.N.Y. July 6, 1999) and Rodriguez v. Ford Motor Co., 792 N.Y.S.2d 468 (1st Dep't 2005).) Application of these precedents is complicated by the fact that over time Sero has proposed different theories of causation. For example, plaintiffs cite Jarvis, 1999 WL 461813, aff'd in part and vacated in part by Jarvis v. Ford Motor Co., 283 F.3d 33, 41 (2d Cir. 2002), as an instance in which Sero's testimony was accepted. Conversely, defendant argues that Jarvis only permitted Sero to testify to other theories of causation "that have no role in our current litigation and that Mr. Sero has since repudiated" (Def. Mem. 3 n. 1), while precluding Sero from testifying to what defendant calls the "transient signal theory" that Sero plans to offer in this case (id. at 2-3). Neither party presents a comprehensive list of the cases in which Sero's testimony has been accepted or rejected, choosing instead to cite cases (frequently entirely unreported orders) favoring their side, often without clear analysis of the nature of the rules of evidence in the jurisdiction where the trial was held, the procedures followed by the various courts in reaching their conclusions, or the precise nature of the testimony proffered by Sero.
Defendant argues that Sero's theories "are not scientifically reliable and . . . are founded on nothing more than speculation." (Def. Mem. 1.) Specifically, defendant argues that Sero has conceded that he has never successfully conducted a test that supports his theory, that the theory has never been published in a peer-reviewed scientific journal, that he is unable to provide any indication of when or how often a transient electromagnetic signal will cause a cruise control to activate, and that he cannot say that his theory is generally accepted in the engineering community — as defendant claims it is not. (Def. Mem. 3-5.) Defendant thus claims that Sero's testimony "fails every part of the four-part Daubert inquiry." (Id. at 3.) Plaintiffs respond that Sero's testimony is "not based on any novel methodology, but upon well-accepted principles of engineering failure analysis" (Pls. Opp'n 2), and that defendant applies Daubert too rigidly.
Daubert makes clear that it is the responsibility of the trial judge to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." 509 U.S. at 589. Since Rule 702 refers to "scientific, technical, or other specialized knowledge," a trial court must exclude testimony that falls short of "knowledge," a word that "connotes more than subjective belief or unsupported speculation." Id. at 590. "Scientific" knowledge "implies a grounding in the methods and procedures of science." Id. Only evidence that is "supported by appropriate validation," that is, information believed based on "good grounds," meets the requisite "standard of evidentiary reliability." Id.
As plaintiffs point out, however, the Daubert Court emphasized that it was directly addressing only "scientific" knowledge, and that the rule also permits evidence based on "technical, or other specialized" knowledge. 509 U.S. at 590 n. 8. Indeed, in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the Court acknowledged specifically that an expert opinion based on "skill — or experienced-based observation" may satisfy Rule 702's standard of evidentiary reliability (id. at 151). Given "the liberal thrust of the Federal Rules and their general approach of relaxing the traditional barriers to opinion testimony," Daubert, 509 U.S. at 588, citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988) (internal quotation marks omitted), a court should thus be wary of applying a rigid schematization of scientific method to all forms of expert testimony. In particular, courts and commentators have pointed out that "[u]nlike laboratory or medical testing, which employ rigorous and replicable protocols, technical fields such as engineering often involve more idiosyncratic methods of design and testing."Milanowicz v. Raymond Corp., 148 F. Supp. 2d 525, 532 (D.N.J. 2001). (See also Pls. Opp'n 1, citing Federal Judicial Center,Reference Guide on Engineering Practice and Methods, in Reference Manual on Scientific Evidence (2d ed. 2000).)
But if the defendant applies Daubert's framework too rigidly, plaintiffs are wrong to disregard the guideposts set out inDaubert as applied to this case. Sero's hypotheses are not, and do not purport to be, matters of engineering practice or experience. Sero does not suggest that his knowledge is based on practical skill in a relevant field or is the product of experience shared by members of a guild, craft, or profession. Rather, he attempts to derive evidence of causation based on the application of accepted scientific principles. If the principles are not valid, or if Sero's application of them violates scientific standards of reasoning, his testimony does not amount to "knowledge" and will not "assist the trier of fact to understand the evidence or to determine a fact in issue" as required by Rule 702.
Thus, as in Daubert, it is appropriate for the Court to make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." 509 U.S. at 592-93. Even within the zone of scientific methodology proper, however, defendant's suggestion that Daubert established a "four-part inquiry" is misplaced. To the contrary, the Supreme Court made quite clear that it was not setting out "a definitive checklist or test," but merely indicating some guidance for trial courts making the required assessment. Id. at 593.
Sero's proposed testimony does not measure up well against the guideposts suggested in Daubert. On three of the four considerations suggested by the Daubert Court, the record does not support the admissibility of Sero's testimony. Sero concedes that his theory has not been successfully experimentally tested, and that in thirty to forty attempts he could not succeed in inducing the effect that he contends occurred in this case. (Def. Mem. Ex. B, at 211-12.) He has never published his theory in a peer-reviewed journal or even submitted an article defending the theory to such a journal. (Id. at 192-95.) Nor is there any evidence that his theory is generally accepted in the engineering community. (Id. at 209-10, 214-15.) The fourth factor is not directly applicable to this case; it is not clear how the concept of "error rates" applies to Sero's theory. At a minimum, however, as defendant points out, Sero acknowledges that he has no way of estimating under what circumstances or how frequently his theory would predict that transient electromagnetic interference would cause a cruise control system to induce sudden acceleration. (Id. at 173-74, 211-12.)
Plaintiffs offer little in the way of persuasive response to these points. As noted above, their contention that Sero's theory should not be considered "scientific," but rather as based on practical skill and experience, is without merit. Nor can he Court take comfort in plaintiffs' claim that "[w]hether the jury accepts [Sero's testimony] does not depend upon the reliability of the methodology, but upon the credibility of the expert." (Pls. Opp'n 2.) To the contrary, this assertion tends to suggest that the testimony should be taken on faith rather than on the strength of its underlying scientific logic.
Nevertheless, this Court is cautious about excluding testimony solely on a paper record. Sero's testimony is a critical portion of the plaintiffs' case; in other cases its exclusion apparently has led to summary judgment for defendant. See, e.g., Turker v. Ford Motor Co., No. 87890, 2007 WL 701046 at *6 (Ohio Ct.App. March 8, 2007). Other courts have admitted his testimony, and in one sudden acceleration case in this district where Sero testified (albeit perhaps on a different theory) a plaintiff's verdict was sustained on appeal. See Jarvis v. Ford Motor Co., 283 F.3d 33, 43 (2d Cir. 2002) (plaintiff "presented evidence which the jury could credit that her Aoerostar suddenly accelerated without her depressing the accelerator and that she was not able to stop the Aerostar by pumping the brakes"). The paper record submitted by the parties is voluminous, and the briefing meager, perhaps due to rigorous page limits imposed by the judge previously assigned to the case. Further, the failure of Sero's testimony to meet the specific standards suggested inDaubert is not necessarily definitive: as noted, these standards are merely suggestive, and are not rigid prerequisites to admissibility.
Under the circumstances, it appears prudent to conduct a hearing at which the Court can hear the outline of the proposed testimony first-hand and form a clearer idea of its scientific basis. Accordingly, the Court will hold a hearing on Friday, October 19, 2007, at 9:30 a.m., at which the admissibility of Sero's testimony will be addressed. The Court contemplates an evidentiary hearing at which Sero will testify and be cross-examined. The parties will be permitted to offer other appropriate evidence as well; however, the hearing will be limited to one day.
The parties are each directed to provide to the Court, in advance of the hearing, a chart listing all sudden acceleration cases in which Sero has been proffered as an expert witness, indicating with respect to each case (a) whether an objection to Sero's qualifications or conclusions was lodged; (b) how the court ruled on such objection; (c) whether Sero testified regarding the specific theory of causation proffered in this case; and (d) the outcome of the litigation.
Defendant also seeks the exclusion of Drs. Storace and Berg, calling their testimony "a house of cards . . . premised on the assumption that Mr. Sero's transient signal theory is valid." (Def. Mem. 5.) However, defendant does not seriously criticize their qualifications, analyses, or methodologies in their designated fields of expertise. The exclusion of Sero's testimony may render the opinions of Drs. Storace and Berg irrelevant at trial, not because Drs. Storace and Berg lack expertise, but because Sero's expertise and testimony are critical to plaintiffs' overall case. Defendant presents no reason for excluding the testimony of Drs. Storace and Berg in their professed fields of expertise, and their motion to exclude the testimony of Drs. Storace and Berg, at this point, is denied.
2. Defendant next seeks dismissal of plaintiffs' claim for punitive damages. New York permits punitive damages "only for exceptional conduct . . . as when the wrongdoer has acted maliciously, wantonly, or with a recklessness that betokens an improper motive or vindictiveness, . . . or has engaged in outrageous or oppressive intentional misconduct or with reckless or wanton disregard of safety or rights." Camillo v. Geer, 587 N.Y.S.2d 306, 309 (1st Dep't 1992) (internal quotation marks omitted). Defendant argues that the evidence in this case will not meet this standard. The motion will be denied.
Defendant's motion is not a proper motion in limine, but is a covert motion for partial summary judgment, which does not comply with the procedural requirements for such a motion set by Local Civil Rule 56.1. However unlikely it may appear that plaintiffs will ultimately be able to justify an award of punitive damages, the issue is an intensely factual one, and the legal sufficiency of plaintiffs' evidence to support any such award will be better addressed at or after trial, once plaintiffs have had the opportunity to present that evidence in full.
3. Defendant moves for dismissal of the complaint for alleged spoliation of evidence. The motion will be denied. Defendant provides no adequate justification for such radical relief.
It appears undisputed that parts of the vehicle in question, which upon inspection might have yielded evidence inconsistent with plaintiffs' theory of the accident, went missing while the vehicle was in plaintiffs' custody and control. (Pls. Opp'n 11.) Moreover, plaintiffs do not provide any explanation, much less a plausible one, of how the parts could have disappeared.
Nevertheless, the missing evidence is not sufficiently central to the case to warrant dismissal, at least absent stronger evidence of deliberate tampering, particularly given that it appears defendant was less than diligent in inspecting the vehicle, as it was invited to do, at a time when the parts apparently were still present. (Id.) Defendant will be permitted to elicit evidence regarding the missing material, and the jury will be instructed that it is entitled to draw an adverse inference against plaintiffs if it finds that plaintiffs willfully allowed relevant evidence to be destroyed. It will be up to the jury to resolve the factual questions relating to what occurred, and what inferences should be drawn from any misconduct by plaintiffs.
4. Defendant seeks leave to offer certain governmental reports stating the conclusions of investigations of alleged cases of "sudden acceleration." Four reports are at issue.
(a) Plaintiffs interpose no objection to the admission of the 1989 report of the National Highway Traffic Safety Administration ("NHTSA"), "An Examination of Sudden Acceleration." (Def. Mem. Ex. L.) Defendant's motion is thus granted as to this report. See Jarvis, 1999 WL 695826, at *1 (denying plaintiff's motion to exclude portions of the NHTSA report).
(b) Plaintiffs do object to the introduction of a second NHTSA report issued in 2000, referred to by the parties as "the McMath Denial," denying a request by a lawyer representing plaintiffs in similar litigation that the Agency reopen the investigation that resulted in the 1989 report. (Def. Mem. Ex. H.) The objection will be overruled and the report received in evidence.
The McMath Denial on its face is a remarkably thorough study of the issues presented by theories of electronic malfunction in cruise control systems allegedly causing sudden acceleration incidents, admissible in a civil case pursuant to Fed.R.Evid. 803(8)(C) as a "report . . . of [a] public office or agenc[y], setting forth . . . factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness."
Plaintiffs first object that the McMath Denial does not contain "factual findings resulting from an investigation," because it is based on data that "preexisted [the author's] analysis and thus [was] not within his personal knowledge." (Pls. Opp'n 12-13). The objection is without merit. Nothing in Rule 803(8) provides that the "findings" of a governmental "investigation" must be based on original research or cannot be based on preexisting information; most such reports are based precisely on the collection and evaluation of already-extant data. In any event, the report includes not only a thorough review and evaluation of the existing literature (including testimony by plaintiffs' principal expert given in other litigations), but also a specific study, based on the Agency's own investigation, into the particular incident that the attorney-petitioner brought to the Agency's attention. (Def. Mem. Ex. H, at 4-9, 12-14, 29-31.)
Nor do the "sources of information or other circumstances indicate lack of trustworthiness." Fed.R.Evid. 803(8)(C). The report is an objective government analysis conducted by the agency entrusted with responsibility for investigating this sort of safety issue. Plaintiffs argue that the inquiry primarily concerned sudden acceleration "from a stationary position or a very low initial speed" (Def. Mem. Ex. H, at 7), while in the instant case the car was already traveling at a high speed. (Pls. Opp'n 12.) But plaintiffs point to nothing in their expert's theory that suggests a distinction in its operation between sudden acceleration in slow-and fast-moving vehicles. Plaintiffs are of course free to argue to the jury that it should give little or no weight to the report insofar as it does not address "unintended events which begin after vehicles have reached intended roadway speeds." (Def. Mem. Ex. H, at 7.)
Finally, plaintiffs argue that the McMath Denial should be excluded pursuant to Fed.R.Evid. 403, because it expressly rejects the credibility of plaintiffs' expert, and is thus unfairly prejudicial. That the report addresses the specific theory advanced by the plaintiffs, and expressly considers Sero's proposed theory, makes the report more, not less, probative. The "prejudice" in question is not unfair, but simply results from the probative force of an impartial government study that a jury could find rejects plaintiffs' theory. The objections are therefore overruled and the McMath Denial will be received into evidence.
(c) Plaintiffs raise two objections to the introduction of a Japanese government report reaching similar conclusions to the NHTSA studies discussed above. (Def. Mem. Ex. N.) The first appears to be moot. Plaintiffs attack the reliability of the translation appended to the motion, pointing out that it was prepared by a lawyer affiliated with a law firm that has represented defendant. (Pls. Opp'n 12.) Defendant represents, however, that it intends to offer only an official Japanese government translation. (Def. Reply 6.)
However, defendant presents almost no substantive information about the Japanese report. As plaintiffs point out, the report almost exclusively involves testing of Japanese-made vehicles (plus a few German models) (see Def. Mem. Ex. N, at 83), and is expressly labeled an "interim" report that specifically contemplates further study, including additional research on "the reliability of electronic devices" (id. at i, 59). Defendant makes no attempt to inform the Court as to whether such further studies were ever conducted and with what result, to identify portions of the report that might bear on the particular issues in the case, or to explain any relevant similarities or differences between the Japanese cars at issue in the study and the defendant's model at issue in this case. Accordingly, the report will be excluded until and unless a proper foundation is laid at trial.
(d) Plaintiffs also object to the admission of a Canadian study (Def. Mem. Ex. M), correctly pointing out that the report contains little original investigation, and purports only to discuss and summarize the results of other governments' investigations, including the NHTSA report and the Japanese report discussed above (id. at 1). To the extent the report refers to "vehicle tests," moreover, it provides no explanation of the nature of the tests of the specific data produced. (Id. at 30.) Defendant does not even attempt to rebut these objections, and thus appears to abandon its request. The Canadian Report will therefore be excluded.
5. Defendant seeks to preclude evidence of Ford's alleged withholding of information from federal agencies, arguing that any effort to prove such withholding constitutes the assertion of a "fraud on the government" cause of action of the sort found preempted by federal law in Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341 (2001). (Def. Mem. 14.) The motion will be denied.
In Buckman, the Supreme Court held that a plaintiff may not base a state law cause of action on a claim that a defendant defrauded a federal regulatory agency because federal law gives federal agencies, and not the states or individual plaintiffs, the authority and the legal tools to police their own processes.Id. at 348. But the plaintiffs in Buckman expressly urged that they were injured by a medical device approved by the Food and Drug Administration ("FDA"), which, according to plaintiffs, would not have been approved but for the defendants' fraudulent submissions. Id. at 343. Plaintiffs here specifically disavow bringing any such claim that they were injured as a result of any alleged misrepresentations by defendant to the government. (Pls. Opp'n 16.) Instead, they seek to introduce such evidence for two purposes: (1) as bearing on defendant's allegedly wanton state of mind, and thus as relevant to punitive damages, and (2) as relevant to the probative value of the government reports discussed above. (Id. at 17-18.)
These theories of relevance are entirely distinguishable from the claims rejected in Buckman. The Supreme Court manifestly did not lay down a rule of evidence, precluding admission of evidence of alleged misrepresentations to federal agencies in any state-law tort case. Rather, it simply held that such misrepresentations could not in themselves provide a basis for a state-law cause of action, because any such claim would be preempted by the federal regulatory scheme. The Court specifically distinguished cases in which a plaintiff's claim is "not based on any sort of fraud-on-the-agency theory, but on traditional state tort law principles of the duty of care" owed by one citizen to another. Id. at 352 (distinguishing Silkwood v. Kerr-MeGee Corp., 464 U.S. 238 (1984)). Similarly, the Court distinguished earlier cases that upheld against preemption defenses claims of common-law negligence against product manufacturers, noting that the latter sorts of claims arise "from the manufacturer's alleged failure to use reasonable care in the production of the product," and "not solely from the violation of [federal] requirements." Id. (distinguishing Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)).
The Second Circuit has reinforced that distinction, in a case closer to Buckman than the present matter. In Desiano v. Warner-Lambert Co., 467 F.3d 85 (2d Cir. 2006), the Court rejected "preemption of traditional common law claims where fraud is not even a required element" (id. at 96). The Court noted that "[b]ecause of its important role in state regulation of matters of health and safety, common law liability cannot be easily displaced in our federal system." Id. at 98.
In Desiano, the Court confronted state legislation that, while not creating a state cause of action for fraud on the FDA, made such fraud a basis for lifting an immunity that would otherwise apply under state law for the sale of a drug approved by the FDA.Id. at 87. Here, plaintiffs do not seek in any way to create liability for misstatements to a federal agency. They seek solely to make evidentiary use of such alleged misstatements, to establish elements of traditional state tort claims, or to refute evidence relied upon by defendant.
Furthermore, punitive damages are available only for willful misconduct, and plaintiffs may attempt to show a wanton state of mind by showing that defendant was aware of, and suppressed, information showing that its products were unsafe. None of this is comparable to bringing a state claim for federal fraud, as was held improper in Buckman.
The evidence is also relevant to the probative value of the government reports. Defendant may not insist simultaneously upon the admission of federal reports and studies, and upon the exclusion of evidence, if such exists, that the defendant prejudiced the outcome of such studies by withholding information critical to their success.
The Court emphasizes that this ruling addresses only defendant's broad objection that Buckman precludes plaintiffs from making any "reference . . . to any contention that Ford failed to provide information to the [NHTSA] or in any way misled the NHTSA in the course of the Agency's investigation of the phenomenon of sudden acceleration." (Def. Mem. 14.) Since neither side provides the Court with the slightest indication of what evidence plaintiffs might offer to support such a contention, the ruling is necessarily abstract at this stage. The Court thus does not purport to rule on the admissibility of any particular evidence, or to address any other objection to such evidence. On that understanding, the defendant's broad preclusion motion based on Buckman is denied.
6. Defendant seeks to preclude admission of evidence of other incidents of allegedly similar sudden acceleration. (Def. Mem. 16.) Plaintiffs apparently seek to offer several types of evidence in this regard. (Pls. Opp'n 18-24.)
(a) Plaintiffs miss the point of defendant's objection to testimony from other drivers who purportedly experienced similar episodes. Defendant's principal objection is based on discovery abuse, noting that plaintiffs have "not disclosed any [such] witnesses that they intend on calling at the time of trial," and pointing out that if such witnesses had been disclosed, defendant undoubtedly "would have performed discovery as to each alleged witness, including taking depositions." (Def. Mem. 17.) While plaintiffs extensively brief the theoretical relevance of such testimony (Pls. Opp'n 18-21), they completely fail to respond to defendant's objection, and indeed, even now do not identify a single witness who would be expected to testify on this subject.
This omission is no mere technical or procedural default. Defendant is unquestionably entitled, upon demand, to disclosure of witnesses who will testify for plaintiffs. (Plaintiffs do not suggest that defendant failed to demand a list of witnesses.) By failing to disclose the identity of such witnesses during the discovery period, which closed over two years ago, plaintiffs have precluded defendant from properly being able to prepare to meet the testimony of such witnesses. Indeed, the failure of disclosure prevents defendant even from properly arguing, or the Court from intelligently ruling on, the substantive admissibility of the proposed testimony. As defendant points out, had discovery been properly made, "Ford's motion would have prompted a debate as to whether the particular [similar incident] evidence or witness in question truly met the test of `substantial similarity' that is a prerequisite for admission," but the failure to disclose "prevents such debate." (Def. Reply 7-8.)
Deciding the admissibility of similar act evidence presents particularly acute problems for a trial court. The principal issue in this case will apparently be whether the sudden acceleration of the car causing the accident was the result of any defect in the vehicle manufactured by defendant or of plaintiffs' error. To determine whether another accident on some other occasion was truly similar would, under the best of circumstances, call for compounding the trial of this incident with what would be essentially parallel trials of the factors that did or did not lead to the acceleration of cars in other circumstances. Even if substantial similarity of circumstances could be established, it is questionable whether the probative value of a claim that some other accident was caused by a product defect could outweigh the confusion and waste of time caused by testimony about other episodes that are likely to be at least as controversial as the present case.
Weighing the admissibility of such evidence would require detailed information about the extent to which the circumstances of the purported other accidents were or were not similar, and a careful assessment of the probative value of each episode. Yet, as the case approaches trial, plaintiffs have not even identified, much less provided details about, the allegedly similar incidents about which they seek to offer proof, or the witnesses who would attest to them. It is far too late for plaintiffs to produce a witness list now, so that the parties could spend months in further discovery about an unspecified number of incidents, to be followed by a new round of briefing on the similarity vel non of the incidents.
Plaintiffs have utterly failed to deny or excuse their failure to make appropriate disclosure, or even to present the Court with a coherent picture of the specific evidence they seek to offer. Neither have they responded to defendant's perfectly reasonable claim of prejudice, nor sought to supplement their briefing or to make fuller disclosure now than they made during the discovery period or in the briefing they submitted after the close of discovery. Plaintiffs thus have failed to demonstrate that the unspecified evidence they seek to offer would be admissible under Rule 404 or under any other rule of evidence. The defendant's motion is therefore granted with respect to testimony by drivers or witnesses to other alleged incidents of sudden acceleration.
(b) Plaintiffs also seek to introduce evidence of documents compiled by defendant and studies made by defendant relating to consumer complaints of sudden acceleration, including what the parties refer to as the Updegrove and Richardson studies. (Pls. Opp'n 21-24.) For the most part, the parties' respective arguments about such documents are generalized and unhelpful.
Certain principles, however, are clear. Studies and reports written by Ford engineers in an effort to compile a database of problematic cases and reach conclusions about causation are admissible, if offered by plaintiffs, as admissions. Fed.R.Evid. 801(d)(2). That is a far different thing, however, than admitting the underlying reports from drivers or investigators for the truth of the matter asserted. Such statements are purely hearsay.
Expert testimony to be expected in this case from both sides, as well as the NHTSA reports discussed above, will necessarily take into account, and try to explain, the kind of data plaintiffs proffer. The underlying phenomenon — that drivers often claim sudden and, to them, inexplicable behavior of their cars — is neither disputed nor unsurprising. Such claims do not amount to proof of any particular cause of any particular accident.
Defendant offers no persuasive rationale for excluding the Updegrove and Richardson studies; plaintiffs offer neither a concrete description of any other evidence they seek to offer, nor any discussion of why such evidence would not be cumulative if the Updegrove and Richardson studies are admitted. Accordingly, defendant's motion is denied with respect to the Updegrove and Richardson materials, and granted in all other respects.
7. Defendant seeks to preclude plaintiffs from introducing hearsay evidence in the form of newspaper and other media reports. (Def. Mem. 20.) Plaintiffs disavow any intention of offering any such evidence, unless defendant somehow "opens the door" to such testimony at trial. (Pls. Opp'n 24-25.) Accordingly, defendant's motion is granted on consent. Needless to say, the Court cannot and does not rule on what evidence might become relevant and admissible during the course of the trial.
Plaintiffs' Motions
1. Plaintiffs seek an order "directing the De Bene Esse deposition of Mr. James Auiler." (Pls. Mem. 1.) Auiler is a former Ford engineer who has apparently been deposed in other similar litigation. Plaintiffs argue that a more legible copy of a document authored by Auiler was belatedly produced by defendant, and that it is therefore necessary to call him as a witness in this proceeding. (Id. at 3.) Auiler, however, is no longer employed by defendant, and lives in Michigan. Plaintiffs seek authorization to take his deposition for use at trial. The motion will be denied.
Defendant argues that the request for a deposition should be denied, because discovery has long since closed in the case, and note that plaintiffs cite no authority for their request. (Def. Opp'n 1-4.) Plaintiffs argue that by this motion they do not seek to reopen discovery, but rather to take a trial deposition, and argue that "they hardly need to cite precedent before issuing a subpoena directing an out-of-state fact witness to sit for a de bene esse deposition any more than they would need special leave of court to subpoena Mr. Auiler to appear for trial in the Southern District were he residing in Manhattan." (Pls. Reply 1.)
Plaintiffs' assumption that they need not, as opposed to cannot, cite authority for their request is misplaced. The Federal Rules of Civil Procedure are quite specific about the authority to issue and serve subpoenas. Under Rule 45(a)(2), "[a] subpoena must issue as follows: (A) for attendance at a trial or hearing, from the court for the district where the trial or hearing is to be held; [and] (B) for attendance at a deposition, from the court for the district where the deposition is to be taken. . . ." (Emphasis added.) Rule 45 goes on to provide that a subpoena may only be served (absent qualifications not relevant here) "at any place within the district of the court by which it is issued, or at any place without the district that is within 100 miles of the place of the deposition, hearing, [or] trial . . . specified in the subpoena." Fed.R.Civ.P. 45(b)(2). Thus, Auiler is quite literally beyond the subpoena power of this Court, which cannot compel him to attend the trial, because he resides more than 100 miles from this judicial district, nor to appear at a deposition, since such a subpoena must issue from the district where the deposition is to be taken.
Characterizing the deposition as one de bene esse does not change this rule. "The Federal Rules of Civil Procedure make no distinction for use of a deposition at trial between one taken for discovery purposes and one taken for use at trial ( de bene esse)." Tatman v. Collins, 938 F.2d 509, 510 (4th Cir. 1991). See also United States v. IBM Corp., 90 F.R.D. 377, 381 n. 7 (S.D.N.Y. 1981). Depositions of either type may be used at trial if the witness is unavailable. See Fed.R.Civ.P. 32(a)(3). Since Auiler is located more than 100 miles from the place of trial, his deposition (had plaintiffs timely taken it) could be used at trial. Fed.R.Civ.P. 32(a)(3)(B).
What is at issue here, however, is not plaintiffs' right to use a deposition, but their right to compel Auiler to sit for one. Where a witness is willing to provide testimony, or can be compelled to testify because he is within the subpoena power of the trial court, the risk that the witness may become unavailable may warrant the Court's exercising its power to direct that the witness's testimony be preserved by a trial deposition, which can then be used if the witness becomes unavailable for trial. See Manley v. AmBase Corp., 337 F.3d 237, 246-48 (2d Cir. 2003). Such a deposition, generally characterized as one de bene esse, is a substitute for live testimony at trial, and would be conducted under trial rules of evidence rather than as a discovery deposition. But the Federal Rules do not authorize a trial court to issue a subpoena compelling an unwilling witness to appear for a deposition in some other district, when the witness cannot be compelled to appear to testify at trial.
Moreover, as courts in this district have held, both discovery and de bene esse depositions "are governed by the scheduling order" set by the Court, and may not be conducted after the close of discovery absent good cause to modify that order.Sanofi-Synthelabo v. Apotex Inc., No. 02 Civ. 2255, 2005 WL 469594, at *1 (S.D.N.Y. Feb. 18, 2005) (adhered to on rehearing 2005 WL 816267 at *1-2 (March 25, 2005)); see also Donk v. Miller, No. 99 Civ. 3775, 2000 WL 218400, at *4-5 (S.D.N.Y. Feb. 24, 2000).
No such good cause has been shown here. This is not a case in which the need to depose the witness results from the need to preserve testimony that the witness would otherwise have given at trial, based on unforeseen events arising after the close of discovery. Plaintiffs had every opportunity to seek the deposition of Auiler by seeking enforcement of a subpoena in the appropriate district under Rule 45(a)(2)(B) during the discovery period. Such a deposition would then have been available for use at trial. Plaintiffs instead made a strategic decision not to do so, but instead to seek to depose Auiler in a similar litigation in New Jersey, and then to offer that deposition into evidence in this case. That plan came undone when the United States District Court for the District of New Jersey rejected the application for a deposition as untimely and unnecessary in that case. (Pls. Mem. Ex. B. (Undated Unsigned Order, Estate of Knoster v. Ford Motor Co., Civ. No. 01-3168 (MLC).)
Plaintiffs argue that the need to depose Auiler specifically for this trial did not arise until they obtained a legible copy of the so-called "Ishikawa Diagram" in March 2005. That argument evidently was either not made or was not persuasive in the New Jersey litigation, where the issue was apparently decided after April 22, 2005.
In any event, plaintiffs' argument that the Ishikawa Diagram shows that Auiler accepted plaintiffs' theory of electromagnetic interference is specious. The Diagram shows at most that the theory was considered by Auiler at some point as a possible cause. This is not news, nor is it evidence that Auiler accepted the theory. (Cf. Pls. Reply 3.) As defendant points out, Auiler was expressly asked about the inclusion of plaintiffs' theory on the Ishikawa Diagram in similar litigation as early as November 21, 2002, and replied that the Diagram simply reflected "categories of physical phenomena that needed to be thoroughly checked out and validated and what we found was that there was no way an electrical transient could cause a sudden acceleration." (Def. Opp'n Ex. F, at 241.)
This of course does not mean that Auiler and his team were necessarily correct, or even honest, in reaching this conclusion. It makes clear, however, that Auiler's position on plaintiffs' theory and its apparent appearance on the Ishikawa Diagram has already been elicited. There is thus no basis for reopening discovery to ask him yet again about the same matters.
2. Plaintiffs next seek a ruling in limine precluding defense expert Victor Declercq from conducting a demonstration of the normal operation of Ford's cruise control system, which purportedly supports defendant's claim that various safety features would prevent the sudden acceleration effect hypothesized by plaintiffs' expert. (Pls. Mem. 8.) Notably, plaintiffs indicate that Declercq has conducted this demonstration "in several earlier jury trials where he appeared as a Ford expert witness" (id.), but cite no case in which any trial judge found the demonstration misleading or prejudicial.
Plaintiffs here rely entirely on the contention of their own expert, Sero, that the demonstration does not reflect how the system would operate under the conditions he maintains explain the accident. But this is to say no more than that the parties' experts dispute what happened here. There is no indication that Declercq's proposed demonstration is misleading with respect to the intended operation of the system. To the extent that Sero's testimony casting doubt on whether transient electric signals could cause a malfunction of the system is admitted in evidence, it would become a jury question whether Sero or Declercq is correct, but defendant is entitled to demonstrate its position regarding the proper working of the system. The motion will therefore be denied.
CONCLUSION
For the reasons stated above, it is hereby ORDERED that:
1. A Daubert hearing will be held on October 19, 2007, at 9:30 a.m., regarding the admissibility of the proposed testimony of plaintiffs' expert Sero. Defendant's motion to preclude the testimony of Drs. Storace and Berg is denied, without prejudice to renewal or relevance grounds if Sero's testimony is excluded.
2. Defendant's motion to strike plaintiffs' demand for punitive damages is denied.
3. Defendant's motion to dismiss the complaint for spoliation of evidence is denied.
4. Plaintiffs' objections to the admissibility of the 1989 NHTSA Report and the 1999 denial of the application to reconsider that report are overruled; plaintiffs' objections to the admissibility of the Japanese and Canadian reports are sustained.
5. Defendant's motion to exclude evidence of it's alleged withholding of information from the federal agencies is denied.
6. Defendant's motion to exclude evidence of alleged similar incidents of sudden acceleration is granted with respect to the testimony of other drivers or witnesses relating to such incidents, but denied as to the Updegrove and Richardson compilations.
7. Defendant's motion to exclude evidence of media reports is granted.
8. Plaintiffs' motion for an additional deposition of James Auiler is denied.
9. Plaintiffs' motion to preclude a demonstration of the cruise control system by defendant's expert witness is denied.
10. This order disposes of the various motions included in document numbers 23 and 26. The Clerk is respectfully directed to mark those motions closed for all internal statistical purposes.
SO ORDERED.