Opinion
CIVIL ACTION NO. SA-99-CA-0711 WWJ
September 14, 2001
MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I. Introduction
This is a products liability case brought to federal court on diversity grounds. Pending before me are four motions filed by defendant, Daihatsu America, Inc. ("DAI"): (1) motion for a Daubert hearing and to strike plaintiffs' expert testimony on accident reconstruction and seat design, as proffered by Jahan Eftekhar (Docket Entry 84); (2) motion for a Daubert hearing and to strike plaintiffs' expert testimony on occupant kinematics and biomechanics, as proffered by John J. Smith (Docket entry 85);(3) motion for summary judgment on plaintiffs' negligence and strict liability claims premised on the argument that plaintiffs' expert witnesses, Eftekhar and Smith, should be excluded under Daubert (Docket Entry 89) and (4) motion for sanctions due to spoliation of the vehicle made the basis of this lawsuit (Docket Entry 91).
It should be noted that this is DAI's second request to have Jahan Eftekhar stricken and excluded under Daubert (Docket Entry 58). The first request, however, was premised on plaintiffs' failure to tender him for deposition. Because Eftekhar was eventually deposed, I entered an Order denying DAI's motion as moot. (Docket Entry 116).
Plaintiffs' responses to these motions have been filed as Docket Entries 92, 93, 99, 100. DAI has filed a reply brief as to each one of these responses, Docket Entries 97, 98, 106 107. Plaintiffs have filed two motions for leave to file what appears to be a sur-reply brief to DAI's summary judgment motion (Docket Entry 110) and to file a surreply brief to DAI's motion for sanctions for spoliation of the vehicle (Docket Entry 109). Because plaintiffs' motions for leave to file surreply briefs have remained unopposed by DAI, they are hereby GRANTED.
After having reviewed the arguments made by the parties, the supporting factual evidence and the applicable case law, it is my opinion that DAI's motion for summary judgment should be denied because plaintiffs have provided reliable and relevant expert testimony concerning the alleged design defects of the 1990 Daihatsu Rocky driver's seat system which purportedly caused plaintiff Randall Iwanaga to suffer a burst fracture to his lower back. This expert testimony, however, should be limited to the visual evidence, tests and other research gathered by these expertsprior to the unauthorized removal of the driver's seat system made the basis of this lawsuit. Specifically, any evidence obtained after the removal of the seat on June 16, 2000, and particularly the expert testimony concerning any impact markings, scratches or abrasions discovered underneath the seat and on the cross member which housed the hydraulic jack, should be excluded from the record as unreliable evidence. The reasons for my recommendations are set more fully below.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
Docket Entry 15. This case was reassigned to the docket of District Court Judge Justice on November 3, 2000. Docket Entry 86. Shortly thereafter, Judge Justice redesignated the case to me for disposition of all pre-trial matters. Docket Entry 88.
II. Factual and Procedural Background
This product liability lawsuit stems from a single vehicle accident involving a 1990 Daihatsu Rocky driven by plaintiff Randall Iwanaga. His wife, Kathleen Iwanaga, was the right front passenger. The accident occurred on July 2, 1997. The undisputed record indicates that while attempting to exit interstate highway 10 near Seguin, Texas, at Exit No. 601, Mr. Iwanaga drove the 1990 Rocky off the exit ramp, and landed in a culvert on all four wheels. Plaintiffs filed this lawsuit on July 1, 1999 alleging that DAI is liable, under both negligence and strict liability theories, for having placed in the market a 1990 Daihatsu Rocky ("Daihatsu Rocky"), which was defective in design and/or manufacture.The court's original scheduling order envisioned that the parties would complete discovery by April 14, 2000, would file their dispositive motions by May 12, 2000, and set this case for trial on July 10, 2000. As the early record in this case demonstrates, instead of engaging in productive discovery, the parties throughout most of their discovery period sought recourse in the court for the resolution of their discovery disputes. As a result, the discovery in this case fell behind, prejudicing both parties, but particularly, the plaintiffs, who have the burden of proof at trial. While ruling on the discovery matters, the court extended the discovery cut-off deadline first to May 10, 2000 and then to May 17, 2000. Shortly thereafter, DAI filed its first motion for summary judgment arguing that plaintiffs did not have any evidence to prove their case. Contemporaneous to its summary judgment motion, DAI also filed a motion to strike plaintiffs' two experts Jahan Eftekhar and Arnold Vardiman, for failure to tender them for deposition. In addition, DAI filed a motion to strike and for a Daubert hearing with respect to plaintiff's expert Eftekhar.
Docket Entry 6.
Docket Entries 32 51 74.
Docket Entries 19 32.
Docket Entry 59.
Docket Entry 58.
Docket Entry 60.
Plaintiffs opposed DAI's first summary judgment motion on the basis that it was prematurely brought since the parties still were trying to complete discovery at the time the motion was filed. At the very least, plaintiffs requested a continuance under FED.R.CIV.P. 56(f) pending completion of discovery in the case. On July 20, 2000, the court, however, modified the scheduling order deadlines giving the parties a new cut-off discovery deadline of October 31, 2000, with the date of November 16, 2000 to file any dispositive motions. While these first motions were pending, DAI, on November 16, 2000, moved, again, for summary judgment. DAI also filed a second motion for a Daubert hearing to strike plaintiffs' expert Jahan Eftekhar, as well as a motion for a Daubert hearing to strike plaintiffs' newly designated expert, John J. Smith. At DAI's request, the trial date of this case was reset to November 26, 2001.
Docket Entry 66.
Docket Entry 74.
Docket Entiy 89. Contrary to plaintiffs' assertion, DAI's summary judgment motion was timely in that it was filed on the last day for filing such motion under the case's scheduling order,
Docket Entries 84 85, respectively.
Docket Entry 114.
On March 2, 2001, I recommended that the District Court deny DAI's first motion for summary judgment, filed May 31, 2000 on the basis that it was prematurely brought. On April 5, 2001, the District Court adopted my recommendation. Now that the discovery cut-off deadline as well as the deadline for the filing of dispositive motions have expired, this Memorandum and Recommendation addresses DAI's second motion for summary judgment, DAI's second motion for a Daubert hearing and to strike plaintiffs expert Jahan Eftekhar, DAI's motion for a Daubert hearing and to strike plaintiffs expert John J. Smith, and DAI's motion for sanctions for plaintiffs' alleged spoliation of the evidence.
Docket Entry 115.
Docket Entry 117.
III. Analysis
DAI has moved for summary judgment on the grounds that if one or both of its Daubert motions are granted, plaintiffs will have no evidence of design defect and/or causation to establish their products liability claim against DAI under the theories of negligence and strict liability. DAI argues that since expert testimony is critical in establishing that the 1990 Daihatsu Rocky was defective and that any alleged defect caused plaintiff Randall Iwanaga's injuries, and since plaintiffs have not produced relevant and reliable expert testimony on these issues, DAI's motion for summary judgment on both of plaintiffs' causes of action should be granted as a matter of law. A. Summary Judgment Standard
According to DAI's representations to the court, plaintiffs have dropped their claims relating to alleged defects in the front belt systems. Docket Entry 89 at 2 fn.1 (citing to stipulation of plaintiffs' counsel during deposition of Randall Iwanaga, Exhibit A, at 48-49). Indeed, plaintiffs non-suited the manufacturer of the seat belt system. Docket Entry 26. Additionally, plaintiffs' counsel stipulated that Kathleen Iwanaga dropped her claims for any injuries she sustained in the accident. Id . Thus, the sole physical injuries at issue in this case are those suffered by Randall Iwanaga.
Docket Entry 89, at 3.
The applicable standard in deciding a motion for summary judgment is set forth in FED. R. Civ. P. 56, which provides in pertinent part as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett . 477 U.S. 317, 322 (1986).
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
Anderson v. Liberty Lobby, Inc . 477 U.S. 242, 247 (1986).
Anderson, 477 U.S. at 248; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
Id. See also Wise v. E.I. DuPont De Nemours Co., 58 F.3d 193, 195 (5th Cir. 1995).
Anderson, 477 U.S. at 249.
The movant on a summary judgment motion bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense, or if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. Regardless of whether the movant accompanies its summary judgment motion with affidavits or other evidentiary materials, the motion must be granted if the evidence before the court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied. Once the movant has carried that burden, the burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment.
Celotex Corp., 477 U.S. at 323.
Edwards v. Aguillard, 482 U.S. 578, 595 n. 16 (1987); and Celotex Corp . 477 U.S. at 325.
Id.
Anderson 477 U.S. at 257.
For instance, in the context of a products liability suit, the Fifth Circuit has specifically noted that when a motion for summary judgment identifies an absence of evidence that supports a material fact on which the nonmovant bears the burden of proof at trial, the nonmoving party must set forth specific facts that show there is a genuine issue for trial. The court will look at the record in the light most favorable to the nonmovant drawing all inferences most favorable to that party. Nevertheless, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden." Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to his case on which he bears the burden of proof at trial.
See Ruiz v. Whirlpool, Inc., 12 F.3d 510, 513 (5th Cir. 1994) (affirming summary judgment in favor of defendant where plaintiff failed to create a genuine issue of material fact with respect to causation and design defect) (citing Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993)). See also Celotex Corp., 477 U.S. at 324; Fields v. City of South Houston, Texas, 922 F.2d 1183, 1187 (5th Cir. 1991); Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995), cert. denied, 516 U.S. 1045 (1996).
Id. See also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (holding that a nonmovant cannot discharge her burden with doubt as to the material facts, by conclusory allegations, unsubstantiated assertions, or by only a scintilla of evidence).
See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994)).
Celotex Corp., 477 U.S. at 322 ("In such situation, there can be "no genuine issue as to any material fact, ' since a complete failure of the proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."). Id . at 323.
Accordingly, summary judgment motions permit the court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law. B. Plaintiffs' Prima Facie Burden of Proof Under Texas Law
See Fields , 922 F.2d at 1187.
Plaintiffs' products liability claim is pleaded under the theories of strict liability and negligence. As a threshold matter, according to Texas law, plaintiffs' products liability claim under these theories requires a preliminary two-prong inquiry: (1) is there a defect, and (2) if so, who is responsible for the defect. In this case, plaintiffs allege that the driver's seat system of the 1990 Rocky was defective in that the "C" shaped bar placed over the hydraulic jack underneath the seat proximately caused Mr. Iwanaga's injuries upon impact. Plaintiffs maintain that as the manufacturer and seller of the 1990 Rocky, DAI is responsible for the defective driver's seat system. It is undisputed that under both pleaded theories of recovery, plaintiffs must produce competent evidence of a design defect and in addition establish a causal connection between the alleged defect and plaintiffs' damages.
See Treirino v. Yamaha Motor Corp., 882 F.2d 182, 184 (5th Cir. 1989).
For instance, under a strict liability theory, a plaintiff must establish that: (1) a product is defective; (2) the defect rendered the product unreasonably dangerous; (3) the product reached the consumer without substantial change in its condition from the time of original sale; and (4) the defective product was the producing cause of the injury to the user. A defective product is one "that is unreasonably dangerous, i.e., dangerous to an extent beyond that which would be contemplated by the ordinary user of the product, with the ordinary knowledge common to the community as to the product's characteristics." In assessing whether a product is unreasonably dangerous as designed, the fact finder may take into account the utility of the product and the risk involved in its use, However, "[a] manufacturer is not an insurer of the product he designs, and it is not required that the design adopted be perfect, or render the product accident proof, or incapable of causing injury, nor is it necessary to incorporate the ultimate safety features in the product."
See Syne v. Knoll International, 748 F.2d 304, 306 (5th Cir. 1984) (citing McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex. 1967), where the Texas Supreme Court adopted the rule of strict liability embodied in the Restatement (Second) of Torts, § 402(A) (1965)).
Id . at 306-07 (citations omitted).
Id . at 307 (citing Turner v. General Motors Corp., 584 S.W.2d 844, 847 n. 1 (Tex. 1979)).
Id . (citing Acord v. General Motors Corp., 669 S.W.2d 111, 113 (Tex. 1984)).
A negligence cause of action against a manufacturer as it has been pleaded in this case, in turn, requires a plaintiff to establish the following elements: (1) the manufacturer owed a duty to the plaintiff; (2) the manufacturer breached that duty; (3) the plaintiff was injured; and (4) the breach of duty was a proximate cause of the injury.
Generally, a person who manufactures or supplies a product owes a duty of reasonable care to users of the product and to those in the foreseeable zone of danger. These suppliers must exercise reasonable care to prevent physical harm that can reasonably be foreseen to result from the use of the product for its intended purpose, and they must take reasonable care to discover the dangerous propensities of the product and to warn those who might be endangered by it.
Id . (quoting W. DORSANEO, TEXAS LITIGATION GUIDE § 320.03[1] (1984)).
Texas courts have consistently recognized the need of expert testimony in understanding the complex issues involved in design defect and causation under both of these theories of recovery. See Lulan v. Tempo Manufacturing Co. Inc., 825 S.W.2d 505, 509 (Tex.App.-El Pasol 992, no writ) ("Expert testimony is appropriate whenever scientific, technical or other specialized knowledge will assist the fact finder in understanding the evidence or to determine a fact in issue.") (citing TEX.R.CIV.EVID. 702); Selig v, BMW of North America, 832 S.W.2d 95, 99 (Tex.App. [14th Dist] Houston 1992, no writ) (affirming summary judgment in favor of distributor and seller on the basis that the buyer's lay testimony was insufficient to rebut expert testimony presented by distributor and seller that there was no defect in the automobile); Allen v. Roddis Lumber and Veneer Co., 796 S.W.2d 758, 763 (Tex.App. — Corpus Christi 1990, writ denied) ("lay testimony that furniture contained harmful levels of formaldehyde was insufficient to raise a fact issue, in that matter was one for which expert testimony was required."); Hernandez v. Nissan Motor Corp. in U.S.A., 740 S.W.2d 894, 895 (Tex. App — El Paso 1987, writ denied) (court entered a take nothing judgment against the plaintiff on the grounds that he failed to present expert testimony of any defect that the automobile may have had; his lay testimony was insufficient in establishing an automobile defect under a strict products liability theory); Fitzgerald v. Caterpillar Tractor Co., 683 S.W.2d 162, 164 (Tex.Civ.App.-Fort Worth 1985, writ ref'd n.r.e.) (breach of warranty case where the court, in affirming summary judgment in favor of defendant, held that lay testimony of plaintiff, who was injured when a blade of forklift became disengaged from the carriage and fell on his foot, was insufficient to raise a fact issue as to design, material or manufacture of the forklift); and Carroll v. Ford Motor Co., 462 S.W.2d 57, 61-62 (Tex.Civ.App.-Houston [14th Dist.] 1970, no writ) ("[t]he bare fact that an accident happens to a product, that the brakes failed as in this case, is not sufficient proof that the product was defective.").
The two expert witnesses challenged by DAI are: Jahan Eftekhar, a mechanical engineer designated by plaintiffs to provide expert testimony on the design defects of the driver's seat system made the basis of this lawsuit and to also provide testimony of the circumstances surrounding the scene of the accident; and John J. Smith, a geophysical and electrical engineer, designated by plaintiffs to provide expert testimony on the expected occupant kinematics in the collision, the applied force on Randall Iwanaga, the probable mechanism of injury to Randall Iwanaga, and the role of the vehicle components in injury causation. DAI, in essence, challenges Eftekhar's testimony relating to any seat defects as speculative, unreliable and irrelevant, and further argues that he is unqualified to render expert opinions on the subject. DAI also objects to the testimony of Smith regarding biomechanical and injury causation on the grounds that he is not qualified in the field of biomechanics and has insufficient training, background and experience to render competent expert opinions on the subject. DAI maintains that since these witnesses have only offered inadmissible expert testimony on design defect and causation, it is entitled to summary judgment on all of plaintiffs' causes of action. Before analyzing DAI's arguments, a discussion on the applicable standard for the admissibility of expert testimony is warranted.
C. Applicable Standard To Admissibility of Expert Testimony
FED. R. Civ. EVID. 702, as amended on December 1, 2000, provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact . . . a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, (1) if the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles reliably to the facts of the case.
FED. R. Civ. EVID. 702. The United States Supreme Court's April 17, 2000 Order adopting this amendment to Rule 702 provides that the amended rule "shall take effect on December 1, 2000, and shall govern all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending." Given that the revisions to Rule 702 were intended to simply codify the principles of Daubert and Kumho, see Committee Note to Rule 702, cases which were well known to the parties before this case was filed, it is both "just" and "practicable" to apply the amended rule to this case.
In Daubert v. Merrell Dow Pharmaceuticals. Inc., and Kumho Tire Co. v. Carmichael, the United States Supreme Court articulated the trial court's gate-keeping function regarding expert witness testimony. As a preliminary matter, the trial court is required to determine whether a proposed expert is qualified to give expert testimony. If the trial court determines that the expert is qualified in the relevant field, then the court must exercise its gatekeeper function as provided in Daubert and Kumho . In Daubert, the Court held that Rule 702 imposes a special obligation upon the trial judge to "ensure that any and all scientific testimony . . . is not only relevant but reliable." Under FED. R. EVID.702, trial courts are required to make a "preliminary assessment of whether the reasoning or methodology can be applied to the facts at issue. Daubert sets forth four specific factors that the trial court should ordinarily apply when considering the reliability of scientific evidence: (1) whether the technique can or has been tested; (2) whether it has been subjected to peer review or publication; (3) whether there is a known or potential rate of error; and (4) whether the relevant scientific community generally accepts the technique.
509 U.S. 579 (1993).
526 U.S. 137 (1999).
Id . at 156.
Daubert, 509 U.S. at 589-90.
Id . at 591.
Id . at 592-93.
In Kumho, the Court made it clear that the Daubert gate-keeping obligation-that is, the obligation of the trial court to ensure reliability of expert testimony-applies to all types of expert testimony, not just "scientific" testimony. Ultimately, "the district court's responsibility `is to make certain that an expert, whether basing his testimony upon professional studies or personal experience, employs in the courtroom, the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'" The Kumho Court concluded that a trial court may consider one or more of the specific Daubert factors when doing so will help determine that testimony's reliability. "But, as the Court stated in Daubert, the test of reliability is `flexible,' and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Thus, whether Daubert's suggested indicia of reliability apply to any given testimony depends on the nature of the issue at hand, the witness's particular expertise, and the subject of the testimony.
Skidmore v. Precision Printing and Packaging, Inc., 188 F.3d 606, 618 (5th Cir. 1999) (quoting Kumho, 526 U.S. at 152)
Id .
Id. See also Black v. Food Lion, Inc., 171 F.3d 308, 312 (5th Cir. 1999)("In the vast majority of cases, the district court first should decide whether the factors mentioned in Daubert are appropriate.") (Emphasis added).
The Supreme Court in Kumho reasoned that:
[T]he trial judge must have considerable leeway in deciding in a particular case how to go about determining whether a particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.
The trial court must have the same kind of latitude in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether or not that expert's relevant testimony is reliable. . . . Otherwise, the trial judge would lack the discretionary authority needed to avoid unnecessary "reliability" proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises.
Kumho, 526 U.S. at 152 (Emphasis added).
Thus, under Kumho, trial courts have broad latitude to determine whether or not the proffered testimony requires an application of the Daubert factors.
I have determined that a Daubert oral hearing is not needed in this case, considering the voluminous evidentiary record the parties have supplied in support of their respective positions. The evidentiary record before me includes, but is not limited to: the deposition testimony of Jahan Eftekhar (including his sworn affidavit) and John J. Smith, as well as one of DAI's expert witnesses, Charles P. Hatsell, plaintiffs' deposition transcripts and sworn affidavits, the sworn affidavit of Arnold B. Vardunan, M.D., one of Randall Iwanaga's physicians, and the deposition testimony of State Trooper William R Gilliani, the officer who responded to the accident, was at the scene shortly thereafter, and took the incident report.
As noted, in making a Daubert determination, the trial court must determine that the proposed testimony is both relevant and reliable. In making this reliability determination, the trial court should not require certainty, but the testimony must demonstrate that the opinions offered are more than speculation. In considering this issue, the trial court must consider the validity of the principles applied by the expert, the accuracy of the data relied upon by the expert, and the precision of the application of the principles to the relevant data. The Daubert determination is intended to ensure that expert testimony is "supported by appropriate validation," and "established a standard of evidentiary reliability."
See Marcel v.Placid Oil 11 F.3d 563, 567 (5th Cir. 1994).
Daubert, 509 U.S. at 590.
The burden of proof on a Daubert issue rests on the proponent of the testimony. "The proponent need not prove that the expert's testimony is correct, but she must prove by a preponderance of the evidence that the testimony is reliable."
Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998, en banc).
1. Jahan Eftekhar. Ph.D.
Mr. Eftekhar has been designated by the plaintiffs to provide expert testimony concerning the design defects of the driver's seat system of the 1990 Rocky. DAI objects to Eftekhar's testimony on the following grounds: (1) that he is not qualified to testify about seat system design and his opinions on the subject are speculative and unreliable; (2) his expert testimony on a design defect in an automobile, causation and proper warnings, has already been excluded by another court and this court should do the same; (3) he has not conducted any reliable testing or scientific study or research to confirm his opinions; (4) although he is a mechanical engineer, he has never designed a seat system or component for use in an automobile sold for commercial use, and (5) has not conducted any studies that are relevant to his opinions in this case. The record, however, does not support, DAI's arguments to exclude this witness.
Docket Entry 84, at 3-8.
According to plaintiffs' supplemental designation of witnesses filed March 31, 2000, Mr. Eftekhar's affidavit, deposition testimony and curriculum vitae, Mr. Eftekhar has a Ph.D in mechanical engineering and is a registered professional engineer in the State of Texas. He has extensive experience in mechanical engineering design, accident reconstruction, failure analysis and auto seat design. He also testified in his deposition that he has been involved in the design of a vehicle and a seat system. Based on his educational degree attained, work experience and personal knowledge, Mr. Eftekhar is indeed qualified to testify in this case.
Docket Entry 93, at 6, Eftekhar's deposition, at 100 102.
DAI has alluded that since Mr. Eftekhar's testimony was excluded once by another court that his testimony in this case should be excluded as well. This is not a persuasive argument as the prior case to which DAI refers dealt with issues relating to design defects in an air bag system in relation to burn injuries. Mr. Eftekhar' s testimony in the instant case solely relates to purported design defects in the 1990 Rocky driver's seat system and he has not been asked to render any medical or biomechanical opinion. Both Daubert and Kumho stand for the proposition that an expert opinion rendered in a particular case must be independently analyzed. The trial court's gate-keeping inquiry is tied to the facts of a particular case, and it is within the discretion of the court to accept a witness as an expert. Accordingly, Eftekhar possesses sufficient qualifications to testify in this case.
Docket Entry 84, at 3 Exhibit E.
Docket Entry 93, at 12 Exhibit 7.
Daubert, 509 U.S. at 591 and Kumbo, 526 U.S. at 150.
Id .
The record further shows that Mr. Eftekhar applied his engineering knowledge and experience to the specific facts of the case as elicited from his investigation of those witnesses who were present at the scene of the accident, such as State Trooper Gilliam and plaintiff Randall Iwanaga. He performed seat loading tests and used standard scientific and mathematical formulas to develop his final opinions as to how the accident occurred, the dynamics of the accident and the speed of vehicle. These tests revealed that the vehicle's abrupt speed change and damage were not beyond the structural integrity of the driver's seat and that it was the defective seat design which caused the injuries to Randall Iwanaga. According to his findings, he concluded that the 1990 Daihatsu was defectively designed with respect to the driver's seat system and unreasonably dangerous. The C-shaped metal bar designed underneath the driver's seat to store a hydraulic jack exacerbated Randall Iwanaga's injuries to his lower back, and more specifically to his L2 spinal vertebrae. Mr. Eftekhar further arrived at the conclusion that in all reasonable probability, the absence of the C-shaped metal bar would have prevented the type of injuries suffered by Randall Iwanaga. In examining other comparable vehicles, such as the 1987 Suzuki Samurai, 1990 Isuzu Amigo and a 1992 Jeep Wrangler, Mr. Eftekhar discovered that none of these models contained the C-shaped metal bar underneath the seat or the hydraulic jack utilized by DAI. Instead, they contained a scissors type jack which lies flat when not in use. Accordingly, Mr. Eftekhar formed the opinion that safer alternatives seat designs were available at the time, and these would have included the absence of metal bars or the flat bars as utilized by the other vehicle models. In that regard, Mr. Eftekhar states in his affidavit:
Docket Entry 93, at 7.
Id . at 2 7-10 Eftekhar's deposition testimony, at 19-26.
Docket Entry 89, Exhibit D, Eftekhar's affidavit, ¶¶ 28-31.
Id . at ¶ 31.
Id . at ¶¶ 23-26.
Id . at ¶ 26.
[A]n alternative safe design would include the utilization of the scissors type jack, which lies flat when not in use, instead of the hydraulic jack, which if placed underneath the driver's seat, required a certain c-shape designed bar to accommodate for storing and removing. Additionally, the placement of the jack underneath the seat was unreasonably dangerous, and, as shown by the exemplar vehicles, not necessary.
Docket entry 89, Exhibit D, Eftekhar's Affidavit, dated June 20, 2000, at ¶ 27. See also Docket Entry 93, Eftekhar's Deposition, at 69.
Moreover, the record reflects that he visited the site of the accident on at least three occasions in order to gage the accurate travel path of the vehicle, conducted two visual inspections of the 1990 Rocky involved in the accident, and performed seat loading tests on exemplary seat systems as well as on the actual seat. Plaintiffs, in their response, described in detail the methodology used by Eftekhar in reaching his final expert opinion in this case. Any weaknesses in Eftekhar's opinions can be exposed through a thorough cross-examination, such as performed during his deposition. "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." There is no evidence before me that Eftekhar's methodology in forming what became his "final" opinion as he testified in his deposition (such as it was), is unsound or unreliable. Having said that, I must now address Eftekhar's participation in the unauthorized removal of the driver's seat system made the basis of this lawsuit.
According to Eftekhar's deposition testimony, he visited the site of the accident on June 30, 1999, September 19, 2000 and October 2, 2000. Docket Entry 93, Eftekhar's Deposition conducted on October 10, 2000, at 28 37. The vehicle inspections occurred on October 29, 1997 and sometime in April of 2000. Id . at 37.
Docket Entry 93, at 5-12.
Daubert, 509 U.S. at 596.
a. Unauthorized Removal of the Seat
DAI has moved for sanctions in the form of dismissing this entire lawsuit, on the basis that plaintiffs spoliated critical evidence to the case by removing the driver's seat system without DAI's consent or approval by this court. On June 16, 2000, Mr. Eftekhar, apparently with the approval of plaintiffs' counsel, removed the actual driver's seat system with the assistance of some of his employees, and transported it to his office for further testing. Based on these testings, he prepared an affidavit on June 20, 2000 describing his findings. The removal of the seat was performed in complete disregard of an order I entered on May 15, 2000 in which I specifically denied plaintiffs' request to remove the seat from the vehicle as they had failed to cite any legal authority in support of their request. Further, the removal of the seat took place outside the presence of DAI and/or its counsel or representatives and there is no evidence that plaintiffs' counsel even attempted to notify DAI's counsel of their intent to remove the seat on the date in question. The fact that Eftekhar does not rely on the markings or on the "rough spots" found on C-shaped bar underneath the seat once the seat was removed is of no consequence as the markings are clearly relevant to rebut DAI's expert theory. The removal of the seat occurred under dubious circumstances. Without any objective proof regarding the chain of possession of the seat once it was removed, and the actual process Eftekhar's employees utilized in removing the seat, I am unable to make any determination as to whether there was any spoliation of the seat. Further, the removal occurred outside the presence of DAI and in complete disregard of my previous order.
Docket Entry 90.
Docket Entry 99, Eftekhar's deposition, at 18-20.
Docket Entry 89, Exhibit D, Eftekhar's Affidavit, ¶¶ 15, 17-18.
Docket Entry 90, at 5-6.
Docket Entry 109, at 4 6.
Plaintiffs' counsel has submitted an affidavit stating that because he had a telephone conversation with Gail Johns, District Court Judge Orlando Garcia's deputy court clerk, in which she apparently related to him that the discovery deadline was extended in the case, that somehow that representation gave him the authority to remove the seat. Plaintiffs' counsel knew that DAI strenuously objected to the removal of the seat. Docket Entry 109. Even if such "ex-parte" telephone conversation can be made part of the record, it is insufficient to overturn my previous ruling regarding removal of the seat. Docket Entry 51, at ¶ 3. Plaintiffs' counsel should have re-urged his request to remove the seat with the court, but inexplicably failed to do so.
Accordingly, I hereby recommend that although dismissal of the entire case as DAI requests would be contrary to the rights of the individual plaintiffs in this case, DAI's motion for sanctions for spoliation of the evidence should be granted in part and the court should limit Eftekhar' s trial testimony by excluding as unreliable all evidence (i.e., testing, photographs, charts, videotapes and other related research) gathered after removal of the seat.
See Carroll, 462 S.W.2d at 60, a product liability action based on a defective braking system of a vehicle. Due to the fact that the actual master brake cylinder was removed from the vehicle, the trial court excluded any evidence of the state of the cylinder after its removal.
2. John J. Smith
Plaintiffs have produced John J. Smith as their expert witness concerning the biomechanical issues surrounding Randall Iwanaga's back injuries, including the expected occupant kinematics in the collision, the applied force on Randall Iwanaga upon impact, the probable mechanism of injury to Randall Iwanaga and the role of the 1990 Rocky's components in the injury causation. DAI contests the reliability and relevancy of Smith's testimony on various grounds, to wit: (1) that Smith lacks the education or training to qualify as an expert in biomechanics, in that he has not obtained a degree in the field; (2) that he lacks the experience, knowledge or skill to qualify as an expert in biomechanics, describing Smith as a "litigation biomechanic," with no actual knowledge in the field besides that obtained by testifying in various litigation proceedings; and (3) that his opinions do not meet the Daubert reliability requirements.
Docket Entry 92, at land plaintiffs' second supplemental expert witnesses, filed August 14, 2000, Docket Entry 76.
Docket Entry 85, at 1-12.
Contrary to DAI's position, Smith is qualified to render expert testimony on biomechanics. The record indicates that Mr. Smith has a Masters of Science in electrical engineering, a Bachelor of Science in geophysical engineering and is a registered professional engineer. Besides his engineering training, the record shows that since approximately 1992, well before this case was filed, Mr. Smith received extensive training in accident reconstruction and impact biomechanics, including numerous graduate school courses in biomechanical trauma. Even though he did not have a degree in biomechanics at the time he began working in the case and at the time of his deposition (September 8, 2000), he was nevertheless very close to completing his post-graduate courses in the area. The record indicates that Mr. Smith eventually received his Masters of Science degree in biomechanical trauma in December of 2000. In attempting to show that Smith is not qualified to testify about biomechanics, DAI relies on one case filed in state court in Colorado in which the judge excluded Smith's expert testimony. As Smith testified during his deposition, the judge excluded his testimony for the sole reason that in 1997 or 1998, at the time the order in the Colorado case was entered, Smith did not have a degree in the field. That clearly is not the case now, Thus, it is my opinion that Smith possesses the qualifications necessary, by way of education and professional experience, to testify in this case.
Docket Entry 92, at 4 Exhibits 1 (Smith's curriculum vitae) 2 (Smith's deposition testimony), at 36.
Id . As plaintiffs have noted, DAI's objection to the qualifications of Mr. Smith on the basis that he lacks a degree in biomechanics is diminished by the fact that DAI's own expert, Charles P. Hatsell, does not have a biomechanics degree. Docket Entry 92, at 2.
Docket Entry 92, at 9.
Id . Exhibit 2, at 258.
At his deposition, Mr. Smith testified that he received research materials, photographic evidence, test results and reports prepared by Eftekhar, medical information from Randall Twanaga's physicians on the extent of his lower back injuries, and the accident report prepared by State Trooper Gilliam. He also applied mathematical formulas and Newton's law of motion to assess the speed of the vehicle and the energy transmitted from the C-shaped bar to Randall Iwanaga's spine. On the day prior to his deposition, he visited the site of the accident and conducted a visual inspection of the same. He then examined the 1990 Rocky and inspected its driver's seat system. Based on his examinations, studies and visual inspections, Smith testified that the vehicle left the exit ramp and traveled off the road for approximately 80 to 100 feet onto a steep slope. Once on the steep slope, according to Smith, Randall Iwanaga "unloaded" from the seat upon impact with the ground. Randall Iwanaga then "reloaded" back to the seat at a significantly elevated level. According to Smith, the impact with the seat applied a vertical load to Randall Iwanga's spinal column. Based on his experience and education, and after having applied reliable scientific principles and mathematical formulas, Smith reached his final opinion that the C-shaped metal bar caused the vertical load to be transmitted to Randall Iwanaga's spine. Smith's methodology in reaching his final opinion on causation does not appear unsound or unreliable. Having said that, however, there is one significant problem with Smith's expert testimony.
Id . at Exhibit 2, at 79-84, 92-100, 136-37, 149, 176, 195 235.
Id .
By the time Smith was retained in the case, Eftekhar had already removed the seat from the 1990 Rocky. As a result, he never inspected the driver's seat system when it was still a part of the vehicle. Furthermore, during his deposition, Smith relies, at least in part, on the marks/scratches and/or abrasions on the C-shaped bar which were discovered after the unauthorized removal of the seat. In that regard, Smith testified that these marks are consistent with the impact of the C-shaped bar with the seat loaded with Randall Iwanaga. Accordingly, I recommend that to the extent that Smith's opinion on causation is dependent upon his observation of markings on the C-shaped metal bar, that opinion testimony is inadmissible due to the fact that it is based on evidence discovered or gathered after the seat was removed which is inadmissible for the reasons previously discussed.
Id . at 9 Exhibit 2, at 140-144 227.
See discussion on the unauthorized removal of the seat, supra .
IV. Recommendation
Based on the foregoing, it is my recommendation that DAI's motion for summary judgment (Docket Entry 89) be DENIED on the grounds that through the reliable and relevant expert testimony of Eftekhar and Smith, plaintiffs have established that genuine issues of material fact exist with respect to: the correct travel path of the 1990 Rocky on the site of the accident, the position of Randall Iwanaga on the driver's seat, whether the 1990 Rocky driver's seat system is a defective product and whether said defect proximately caused Randall Iwanaga's injuries. Accordingly, it is my recommendation that DAI's motions for a Daubert hearing and to strike plaintiffs' experts, Jahan Eftekhar and John J. Smith (Docket Entries 84 85) be DENIED . I further recommend that DAI' s motion for sanctions due to plaintiffs' spoliation of the vehicle made the basis of the lawsuit (Docket Entry 90) be GRANTED IN PART and that any evidence obtained or relied upon by plaintiffs' experts Eftekhar and Smith after the unauthorized removal of the driver's seat system be excluded from the record for all purposes, including trial of this cause.V. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n 79 F.3d 1415, 1428-29 (5th Cir. 1996).