Opinion
Civ. File No. 03-3218 (PAM/JSM).
December 13, 2004
MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Motion for Summary Judgment. For the reasons that follow, the Motion is granted in part and denied in part.
The Court entertained this Motion on the parties' written submissions. After Defendants filed their reply memorandum in support of their Motion, Plaintiff submitted a letter as a sur-rebuttal to the reply memorandum. Defendants then requested leave to file a reply to the sur-rebuttal. The Court finds that additional briefing is unnecessary and therefore denies Defendants' request.
BACKGROUND
Plaintiff Richard Lord filed this products liability action against Defendants after he was involved in a motor vehicle accident on December 19, 1999. Immediately before the accident occurred, Plaintiff was driving westbound on Highway 36 near Little Canada, Minnesota. Plaintiff apparently lost control of his 1986.5 Nissan King Cap pickup truck on the snowy highway and crossed the center median into eastbound traffic. An eastbound Dodge Grand Caravan struck the pickup truck on its right rear corner, causing the pickup truck to slide off the highway into the south ditch of the eastbound lane.
Plaintiff does not remember the collision, which rendered him unconscious. The police officer who responded to the accident noted a small amount of blood on the back of Plaintiff's jacket and headrest. The officer also noted that Plaintiff's seat was "twisted to the right and to the rear," and that the back window of the truck cab had been broken. (Borkon Aff. Ex. 1.) The officer did not measure or photograph either the accident scene or the vehicles. However, a state patrol re-constructionist examined and photographed both vehicles a few days after the accident. Plaintiff's boss also took photographs of the pickup truck within several days of the accident.
Several months later, Plaintiff contacted Attorney Michael Brose about the accident. After placing several telephone calls, Brose learned that West Cambridge Salvage Yard was storing the Nissan pickup truck. He visited the salvage yard in June 2000, and inspected and photographed the vehicle but did not measure the marks on the vehicle. Brose also removed the driver's seat from the vehicle and requested that the salvage yard operator secure the vehicle. On June 27, 2000, Brose wrote to the salvage yard operator to confirm his request that the yard not destroy the vehicle. However, he did not enter into a formal storage agreement with the operator and did not pay the salvage yard to store the vehicle. Moreover, he did not further communicate with the salvage yard operator, as the salvage yard destroyed the pickup truck in the Spring of 2001.
Neither Plaintiff nor his attorney notified Defendants of a potential claim before the pickup truck was destroyed. Instead, Plaintiff commenced this suit in May 2003 under the theories of products liability and negligence. Specifically, he alleges that the pickup truck was defective because the design of the seat allowed the seat back to collapse rearward from the rear impact, causing him to eject backwards and strike his head on a rear window frame of the pickup. He also alleges that the head restraint insufficiently protected his head. Finally, Plaintiff alleges that the vehicle's rear window frame lacked sufficient padding or other energy absorbing materials around the frame to prevent head injury. (Compl. ¶¶ 3-11.)
Defendants seek dismissal of this action on two grounds. First, Defendants argue that dismissal is an appropriate sanction for spoliation of the pickup truck. Second, Defendants argue that the expert opinion of William Muzzy is inadmissible under Federal Rule of Evidence 702. According to Defendants, without the expert opinion, Plaintiff cannot create a genuine issue of material fact on his prima facie case and summary judgment is therefore appropriate.
DISCUSSION
A. Spoilation of Evidence
The Court has discretion to impose sanctions under its inherent disciplinary power. Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 745 (8th Cir. 2004). Sanctions for spoliation are not limited to bad-faith destruction of evidence, but are appropriate when the party destroying the evidence knew or should have known that the evidence was relevant to potential litigation. Dillon v. Nissan Motor Co., 986 F.2d 263, 267 (8th Cir. 1993). When determining whether sanctions are appropriate, the Court must determine the relevancy of the evidence destroyed and whether the destruction prejudiced the opposing party. Stevenson, 354 F.3d at 748.
Undoubtedly, the pickup truck was relevant evidence that should have been preserved in its entirety. The preservation of an allegedly defective product is highly important in both proving and defending against products liability actions. As one court has reasoned:
This is because the allegedly defective product, maintained in the condition it was in at the time of the occurrence, often aids in determining whether the product is defective and how the defect occurred, and is usually far more instructive to a fact-finder than photographs or oral descriptions.Kambylis v. Ford Motor Co., 788 N.E.2d 1, 5 (Ill.Ct.App. 2003).
Plaintiff admits that the preservation of the vehicle was crucially relevant to the case, and that he had a duty to make reasonable efforts to preserve it. Indeed, in preparation of this litigation, Plaintiff's counsel went to the salvage yard to examine and photograph the vehicle and to remove the allegedly defective seat from the vehicle. He also asked that the salvage yard not destroy the vehicle. These actions clearly indicate that the Nissan pickup truck was relevant to this litigation.
Defendants also have been prejudiced by the destruction of the vehicle. Because Defendants are unable to examine the pickup truck, they must heavily rely upon photographs to prepare their defense. For example, a key dispute in this case is whether Plaintiff struck his head on the rear window frame or some other structure in the vehicle interior. Plaintiff contends that photographs show blood on the rear window frame. However, Defendants are unable to examine whether blood from Plaintiff's head was indeed located on the rear window frame. Moreover, Defendants are unable to inspect the interior of the vehicle to locate head contact marks in other places of the vehicle's interior. Because the photographs do not depict all relevant areas of the passenger compartment where marks and blood may have been found, they are an inadequate substitute for examination of the actual vehicle interior. See Dillon, 986 F.2d at 267-68 (finding that photographs failed to document the condition of the interior of the vehicle after the accident and failed to properly document crucial areas of the vehicle).
Likewise, no one measured the damaged areas of the vehicle exterior, so Defendants' experts are unable to use crush measurements to determine the dynamics of the crash. Although the photographs of the exterior depict that the pickup truck was hit in the right rear, they do not allow for accurate measurements of the crash points. See Dillon, 986 F.2d at 268 (it is "impossible with any degree of certainty to estimate measurements from the photographs"). Thus, the photographs are an insufficient alternate to the actual vehicle.
Plaintiff admits that Defendants have been prejudiced, but contends that he is likewise prejudiced because neither party's experts were able to inspect the vehicle. However, a spoliator cannot rely on such an argument. See Trull v. Volkswagen of America, Inc., 187 F.3d 88, 95-96 (1st Cir. 1999) (rejecting plaintiffs' arguments that defendants were not unfairly disadvantaged because plaintiffs' experts were also unable to examine the vehicle). By failing to ensure that the vehicle was preserved, Plaintiff's counsel essentially dictated what evidence would be available to the experts. He inspected the vehicle, photographed areas he believed to be relevant, and removed the evidence he deemed important. Plaintiff therefore cannot argue that he has been prejudiced by his own dereliction.
Because the Court finds that sanctions should be imposed against Plaintiff for his failure to preserve the vehicle, it must determine what sanctions are appropriate. What sanction is appropriate "is a question peculiarly committed to the district court." Dillon, 986 F.2d at 268. Defendants ask for the most severe sanction available to the Court: dismissal of the action with prejudice.
Dismissal "is an extreme measure, reserved only for the most egregious offenses against an opposing party or a court."Capellupo v. FMC Corp., 126 F.R.D. 545, 552 (D. Minn. 1989) (Rosenbaum, J.). The Court must consider dismissal "as a last resort if no alternative remedy by way of a lesser, but equally efficient, sanction is available." Id. In addition, the Court must consider the strong policy that favors trial on the merits over depriving a party of his day in court. Bass v. Gen. Motors Corp., 150 F.3d 842, 851 (8th Cir. 1998). Because dismissal is such a drastic sanction, a finding of bad faith is necessary.Capellupo, 126 F.R.D. at 552.
Defendants do not contend that Plaintiff or his counsel intentionally destroyed evidence. Moreover, Defendants have not been deprived of an opportunity to present a defense. Their experts examined photographs of both vehicles involved in the collision, inspected the allegedly defective driver's seat, considered eye witness testimony, and reviewed an accident reconstruction report prepared by the state patrol. They have also inspected exemplars of the vehicles involved in the accident. While inspecting the vehicle may have aided Defendants, the failure to have access to the vehicle has not precluded Defendants' experts from reaching conclusions about how Plaintiff was injured and whether the seat back was defective. Thus, dismissal of the action is inappropriate.
However, the Court finds that an alternative sanction is appropriate because Defendants have been prejudiced in their ability to defend this action. See Bass, 150 F.3d at 851 (denying motion to dismiss action with prejudice as a sanction for the failure to preserve relevant evidence, but imposing the sanction of precluding any testimony by experts who had examined the vehicle prior to its destruction and by authorizing an adverse inference instruction that could be drawn from the destruction of the vehicle). Because Defendants were unable to test Plaintiff's theory that his blood was on the rear window frame, Plaintiff is barred from offering any evidence to that effect. Thus, any photographs allegedly depicting blood on the window frame and testimony that Plaintiff's blood was on the window frame are inadmissible. Expert opinion based on the premise that Plaintiff's blood was found on the rear window frame is likewise excluded from evidence. However, eye witnesses testimony as to the position of Plaintiff's body immediately after the accident will not be excluded.
B. Sufficiency of the Evidence
Plaintiff's claims are pleaded under the theories of products liability and negligence. Under Minnesota law, these claims merge into one claim subject to the same legal test. Pitrowski v. Southworth Prods. Corp., 15 F.3d 748, 751 (8th Cir. 1994) (citing Bilotta v. Kelley Co., Inc., 346 N.W.2d 616, 622-23 (Minn. 1984)). To establish liability, Plaintiff must prove that (1) Defendants' product was in a defective condition unreasonably dangerous for its intended use; (2) the defect existed when the product left Defendants' control; and (3) the defect caused Plaintiff's injury. Mozez v. Medtronic, Inc. 14 F. Supp. 2d 1124, 1127 (D. Minn 1998) (Kyle, J.). To establish that the allegedly defective product was unreasonably dangerous, a plaintiff generally must show that a feasible, alternative and safer design exists. Kallio v. Ford Motor Co., 407 N.W.2d 92, 96 (Minn. 1987).
Plaintiff has retained William Muzzy as an expert to testify that the driver's seat in the Nissan King Cab pickup truck was unreasonably dangerous as designed. Specifically, Muzzy has concluded that the driver's seat was defective because the seat back twisted and collapsed rearward in the crash, rather than remaining rigid and upright. (Borkon Aff. Ex. 15 (Muzzy Report) at 7, 12-13.) As an alternative design, Mozzy offers a dual-recliner seat capable of withstanding 33,033 inch pounds of torque. (Muzzy Aff. ¶ 3.) Defendants ask the Court to exclude Muzzy's opinion under the principles espoused in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), andKumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), and codified in Fed.R.Evid. 702. Defendants submit that, without this evidence, Plaintiff cannot create a genuine issue of material fact on his products liability claim.
1. Rule 702
The Court must ensure that all scientific testimony is both reliable and relevant. Daubert, 509 U.S. at 583; Fed.R.Evid. 702. The inquiry as to the reliability and relevance of the testimony is "a flexible one" designed to "make certain that an expert, whether basing 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." Kumho Tire Co., 526 U.S. at 152. Expert testimony is inadmissible if it is speculative, unsupported by sufficient facts, or contrary to the facts of the case. Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1056-57 (8th Cir. 2000).
To satisfy the reliability requirement, Plaintiff must show by a preponderance of the evidence both that William Muzzy is qualified to render the opinion and that the methodology underlying his conclusions is scientifically valid. Daubert, 509 U.S. at 589-90. Daubert identifies nonexclusive factors for courts to consider when determining whether the expert opinion is reliable: (1) whether the theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the theory has been generally accepted. Daubert, 509 U.S. at 593-94.
To show that the expert testimony is relevant, Plaintiff must show that the reasoning or methodology in question is applied properly to the facts in issue. Id. at 593. Courts should resolve doubts regarding the usefulness of an expert's testimony in favor of admissibility. Clark v. Hendrick, 150 F.3d 912, 915 (8th Cir. 1998); see also Arcoren v. United States, 929 F.2d 1235, 1239 (8th Cir. 1991) (noting that Rule 702 clearly "is one of admissibility rather than exclusion"). However, the Court should not admit opinion evidence that "is connected to existing data only by the ipse dixit of the expert." General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997). When the analytical gap between the data and proffered opinion is too great, the opinion must be excluded. Id.
2. Challenges to Muzzy's Opinion
Defendants challenge Muzzy's opinion on two grounds. First, they argue that Muzzy has no scientific basis for claiming that his alternative design seat would not have collapsed rearward in response to the forces of the crash. Second, they maintain that Muzzy baselessly concluded that Plaintiff was seated in a normal position when the crash occurred.
Defendants do not challenge Muzzy's qualifications to render opinions on the subjects of motor vehicle seat back design and safer alternative seat designs. Muzzy is a mechanical engineer with extensive experience in occupant kinematics and restraint systems. In addition, he has performed several studies on occupant seating and restraint systems, and has authored several peer-reviewed articles on automobile seat design.
a. Alternative Design
Muzzy opines that Plaintiff would not have sustained serious injuries with a dual-recliner seat that was rigid and symmetrically reinforced. To support his opinion, Muzzy cites his experience designing and testing seat designs, as well his peer-reviewed publications on seat back design. In addition, Muzzy inspected and measured the allegedly defective seat, examined photographs of the Nissan pickup truck, and reviewed eye witness testimony. Muzzy also relied upon the opinion of a reconstruction expert, who determined that the reasonable range of longitudinal force in the crash was between 14.8 and 18.6 Gs. Finally, Muzzy reviewed Nissan's design drawings of the seat and videos of crash tests performed by Nissan.
Defendants contend that Muzzy's research on the alternative design is inapposite to the facts of this case because his research was performed under circumstances different from Plaintiff's crash. First, Defendants point out that Muzzy's testing of the alternative design involved rear impacts to the center of vehicles. Because the rear impact in this case occurred in the right corner of the pickup truck, Defendants argue that Muzzy's research is irrelevant. Second, Defendants note that Muzzy did not conduct dynamic crash or sled tests on his alternative design. Rather, he conducted quasi-static pull tests, which do not involve test dummies and do not involve a seat mounted in a vehicle that is subjected to a dynamic rear impact.
Although the testing on the alternative design was conducted with scientific rigor and was subjected to peer review and publication, it was conducted in conditions somewhat dissimilar from the conditions in this case. Nevertheless, those differences do not create too great a gap between the underlying research and Muzzy's proffered opinion. Although the Court questions the ultimate persuasiveness of Muzzy's testimony in light of his reliance on research conducted under circumstances different from those of the collision at issue, it is not the province of the Court to weigh the credibility of an expert's testimony. To the extent Muzzy's research failed to account for the unique circumstances of this case, Defendants can expose those weaknesses through a thorough cross-examination. "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." Daubert, 509 U.S. at 596; see also Becerra Hernandez v. Flor, No. 01-183, 2002 WL 31689440 at *12 (D. Minn. Nov. 29, 2002) (Magnuson, J.) (denying a motion to exclude expert opinion even though the expert did not account for all facts of the case).
b. Plaintiff's Position at the Time of the Collision
Design experts for both parties agree that rigid seat backs will not protect vehicle occupants who are out of a normal, seated position when a rear impact occurs. Muzzy believes that Plaintiff was in a normal, upright driving position when the collision occurred, while Defendants contend that the pre-impact movement of the pickup shifted Plaintiff inboard so that his back and head were not fully supported by the seat back and head restraint. Defendants impugns Muzzy's proposed testimony because he has not conducted specific experimentation to validate his opinion. Specifically, Defendants maintain that Muzzy should have tested his theory with a surrogate occupant and exemplar vehicle. Muzzy admits that he did not perform tests of a surrogate in an exemplar vehicle to determine Plaintiff's position at the time of impact. However, Muzzy has previously researched and tested occupant kinematics in response to lateral G forces, and applied that knowledge to the facts of this case.
Muzzy also relied on the finding that Plaintiff's blood was on the rear window frame. As previously stated, Muzzy cannot rely on such a finding because neither he nor Defendants' experts were able to inspect the vehicle interior. However, Muzzy also relied on eye witnesses' account of Plaintiff's position in the vehicle immediately after the collision occurred. Thus, the Court does not believe that excluding evidence of Plaintiff's blood on the rear window frame significantly affects Muzzy's conclusion that Plaintiff was in a normal, upright driving position when the collision occurred.
Defendants also argue that Muzzy ignored the fact that Plaintiff's pickup truck was out of control as it spun into the eastbound lane of Highway 36, thereby changing Plaintiff's body at the time of impact. However, Muzzy averred that he relied on several published articles that discuss how slushy road conditions affect the lateral forces generated on an individual in a vehicle. Based on a review of that literature, Muzzy believes that the lateral forces at the time of impact were insufficient to move Plaintiff out of position.
Finally, Defendants argue that the most reliable bases of any opinions about Plaintiff's position at impact — the pickup's cab and driver's seat belt — were destroyed before the experts could examine them. They assert that the seat belt could have provided evidence as to Plaintiff's location in the seat by means of loading marks. Muzzy contends that loading marks are irrelevant to rear impact collisions, as the force is exerted on the seat back and not the seat belt. Thus, according to Muzzy, because no force would have been exerted on the seat belt, the seat belt would not have provided evidence by way of loading marks.
Essentially, whether Plaintiff was in a normal, upright position boils down to a difference in expert opinion. However, this difference does not render Muzzy's testimony inadmissible. To the contrary, Muzzy's opinion is sufficiently reliable and relevant under Daubert standards, as it is based on sound scientific principles applied to the facts of this case. Again, Defendants are free to cross examine Muzzy to undermine his theories and conclusions. However, it is not the role of the Court to determine which expert is more credible at this time.
In sum, the Court is not persuaded that Muzzy's testimony should be excluded. Defendants' criticisms of Muzzy's analysis go to the weight that should be given his testimony, and not to whether that testimony is admissible under Rule 702. The weight of Muzzy's testimony is a matter for the jury.
CONCLUSION
Because the Court finds that Muzzy's opinions are admissible under Rule 702, a genuine issue of material fact remains as to whether Plaintiff can establish that the Nissan King Cab pickup truck seat was defective and unreasonably dangerous. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Accordingly, Defendants' Motion for Summary Judgment (Clerk Doc. No. 19) is GRANTED in part and DENIED in part.