Opinion
CIVIL ACTION NO. 99-3716 SECTION "N".
January 16, 2001.
ORDER AND REASONS
Before the Court are four motions: (1) defendants' Motion for Summary Judgment Regarding Warnings Claims, (2) defendants' Motion in Limine to Exclude the Testimony of Robert R. Wright, (3) plaintiff's Motion in Limine to Strike Barney C. Hegwood, and (4) plaintiff's Motion in Limine to Strike Darlyne G. Nemeth, Ph.D. For the following reasons, defendants' Motion for Summary Judgment is DENIED, defendants' Motion to Exclude Robert R. Wright is GRANTED IN PART and DENIED IN PART, plaintiff's Motion to Strike Barney Hegwood is GRANTED IN PART and DENIED IN PART, and plaintiff's Motion to Strike Darlyne Nemeth is DENIED.
BACKGROUND
This case arises out of plaintiff James T. Vienne's ("Vienne") accident on December 23, 1998 on a 1984 Honda ATC 200S three-wheeler ("three-wheeler"). Vienne claims that he sustained severe head injuries when the three-wheeler "suddenly and without warning went into a pitch roll" as he was applying the brakes. Complaint at ¶ 12. Alleging that the vehicle is unreasonably dangerous, Vienne has filed suit against defendants American Honda Motor Company, Inc., Honda Motor Co., Ltd., and Honda RD Co., Ltd. (collectively, "Honda") under the Louisiana Products Liability Act. La. Rev. Stat. § 9:2800.51 ("LPLA").
I. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The LPLA holds manufacturers liable for damages caused by unreasonably dangerous products. LA. REV. STAT. ANN. § 9:2800.54(A) (West, 1997). Vienne claims that Honda's three-wheeler is unreasonably dangerous because the defendants failed to provide an adequate warning about the vehicle. Id. at § 9:2800.54(B)(3). Honda now moves for summary judgment on the grounds that Vienne cannot show that his accident was causally related to the allegedly inadequate warning.
A. STANDARD OF REVIEW
Summary judgment is proper 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). A genuine issue of fact exists where the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the burden of demonstrating an absence of evidence to support the non-movant's case. See Celotex Corp. v. Catrert, 477 U.S. 317, 323 (1986). If the opposing party bears the burden of proof at trial, the moving party need not submit evidentiary documents to properly support its motion, but need only point out the absence of evidence supporting the essential elements of the opposing party's case. See Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991). To oppose a motion for summary judgment, the non-movant must set forth specific facts to establish a genuine issue of material fact and cannot merely rest on allegations and denials. See Celotex, 477 U.S. at 324. Factual controversies are to be resolved in favor of the non-moving party. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
B. LAW AND ANALYSIS
In order for a plaintiff to prevail on an inadequate warning claim, he must have actually looked at the warnings on the product. In Lopez v. Crown Mark, Inc., 2000 WL 1010257 (E.D. La. July 19, 2000)(Sear, J.), the plaintiff was injured when he tripped over abox and claimed that his accident was caused by the manufacturer's failure to warn. In granting summary judgment for the manufacturer, the court held that:
The proximate cause of Lopez tripping was not the lack of a warning because plaintiff admits that he did not see the box before he tripped. When no causation is present because the plaintiff never looked at the product in question, the question of adequacy of the warning need not even be reached.Id. at *4. Similarly, Honda argues that Vienne's injuries could not have been caused by an alleged failure to warn because Vienne admitted at his deposition that (1) he did not read the owner's manual, (2) he did not receive instructions on how to operate a three-wheeler, and (3) he failed to read the warnings labels placed on the vehicle.
However, Vienne claims that he was confused at his deposition and that his testimony is unreliable due to the severe head injuries he sustained in his accident. Vienne's treating physician at Touro Infirmary, Dr. Mark K. Rosenbloom, found that Vienne sustained a serious brain injury with severe cognitive impairments" including confusion, lack of problem solving abilities, organizational problems, and disorientation. Rosenbloom Dep. at 7. In addition, Vienne's treating psychiatrist, Dr. Adrian B. Blotner, stated that Vienne "did not comprehend the . . . questions regarding his having read the [warning] labels on the vehicle" because of the nature of his brain injury. Blotner Aff. at ¶ 5. Blotner further stated that Vienne may have repeatedly answered that he did not read any warnings on the three wheeler due to his injury-induced "tendency towards perseveration (that is, continued repeating of the same response once the pattern has been established)." Id.
The physicians' testimony seems to raise a genuine issue of material fact as to whether Vienne actually read the warning labels. Accordingly, Honda's motion for summary judgment on the grounds that Vienne failed to read the warnings is DENIED.
II. DEFENDANT'S MOTION TO EXCLUDE ROBERT R. WRIGHT
Vienne has designated Dr. Robert R. Wright ("Wright") as an expert witness to offer his opinions on (1) the three-wheeler's design, (2) the adequacy of Honda's warnings, (3) Honda's advertising practices, and (4) accident reconstruction. Honda submits that Wright does not have the requisite knowledge, skill, or education to testify as an expert in any of these areas.
To testify as an expert, a witness must have "scientific, technical or other specialized knowledge, and a witness may be qualified as an expert by reason of knowledge, skill, experience, training or education." FED. R. EVID. 702; Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1110 (5th Cir. 1991). The question of whether the witness is sufficiently qualified as an expert is a matter to be decided by the court pursuant to Rule 104(a). See Moore v. Ashland Chemical Inc., 151 F.3d 269, 274 (5th Cir. 1998). In making this determination, the trial court has wide discretion. See Hamling v. United States, 418 U.S. 87, 108 (1974); Robert v. Conti Carriers Terminals. Inc., 692 F.2d 22 (5th Cir. 1982).
A. TESTIMONY ON DESIGN DEFECTS
Honda first argues that Wright is not qualified to offer an opinion on the three-wheeler's alleged design defects because he is not an engineer and has never designed a three-wheeler. However, Federal Rule of Evidence 702 provides that a witness "can qualify as an expert even though he lacks practical experience, provided that he has received suitable training or education or has otherwise gained the requisite knowledge or skill. Thus, although the absence of hands-on experience is certainly relevant to the determination whether to accept a witness as an expert, it is not determinative." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 176-77 (5th Cir. 1990). Although Wright has not taken courses in Mechanical Engineering, he has taught various engineering courses and has taken numerous courses in mathematics. Wright has also authored two papers on the subject of ATV design: "Stability and Maneuverability Problems of ATV's" and "A Safer ATV." Both papers were selected for presentation to the Society of Automotive Engineers in 1991. Finally, Wright has evaluated alleged design defects in more than 500 three-wheeler accidents and has worked closely with the United States Consumer Product Safety Commission in its efforts to enhance the safety and stability of three-wheelers. In light of his practical experiences with three-wheelers and his academic background, the Court finds that Dr. Wright is qualified to offer an expert opinion on the three-wheeler's design.
B. TESTIMONY ON WARNINGS AND ADVERTISING
Vienne also seeks to introduce Wright's testimony on whether Honda's warnings are adequate and whether its advertising practices are responsible. Honda disputes Wright's qualifications in both of these areas and claims that his knowledge of three-wheeler design does not "provide the expertise on questions of display, syntax, and emphasis that the jury would expect from a bona fide warning expert." Robertson v. Norton Co., 148 F.3d 905, 907 (8th Cir. 1998). In addition, Honda asserts that Wright has absolutely no background or education in the field of marketing or advertising. The Court agrees. Accordingly, the Court holds that Wright is prohibited from offering expert testimony on the adequacy of Honda's warnings or on Honda's advertising practices.
D. TESTIMONY ON ACCIDENT RECONSTRUCTION
Finally, Honda contends that Wright is not qualified to offer an expert opinion on accident reconstruction. However, Wright has authored papers entitled "Accident Reconstruction Dynamics of ATV Accidents" and "Accident Reconstruction and Reconstructive Analysis," both of which were presented at the European Joint Conference on Engineering Systems and Design. In addition, Wright is professionally affihated with the National Association of Professional Accident Reconstructionists and has performed accident reconstructions in hundreds of cases. Accordingly, the Court finds that Wright is qualified as an expert in the field of accident reconstruction.
Honda further submits that Wright's accident reconstruction theory fails to meet the requirements for admissibility set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Specifically, Honda argues that the methodology underlying Wright's testimony is not scientifically valid. The Court disagrees.
In determining whether an expert's opinion is supported by the proper methodology, the Court may consider (1) whether the theory or technique underlying the opinion 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; (4) the existence and maintenance of standards controlling the technique's operation; and (5) whether the theory or technique has been generally accepted in the relevant scientific community.Id. at 593-94.
Honda argues that Wright's reconstruction opinions fail to meet the Daubert standard because he performed no testing, riding, or filming in generating his conclusions. However, Wright photographed the accident scene, studied the three-wheeler's condition, tested its throttle, reviewed the accident report prepared by the sheriffs department, measured the accident site, examined the dynamics of the vehicle, and analyzed the accident scenario. The Court finds that the Wright's opinions are based on the laws of physics and on routine calculations which have been tested, peer reviewed, and regularly relied on by engineers in accident reconstruction.
Accordingly, the Court finds that Honda's Motion to Exclude Dr. Robert Wright is GRANTED with respect to his testimony on warnings and advertising and DENIED with respect to his testimony on three-wheeler design and accident reconstruction.
III. PLAINTIFF'S MOTION TO STRIKE BARNEY C. HEGWOOD
Plaintiff Vienne has filed a motion in mine to exclude the testimony of Honda's vocational rehabilitation expert Barney Hegwood ("Hegwood"), who has been retained to testify about the life care plan recommended by Vienne's doctors. First, Vienne asserts that Hegwood is not a qualified expert on life care plans. Second, Vienne alleges that Hegwood has violated Louisiana's Collateral Source Rule in forming his opinions.
A. HEGWOOD'S QUALIFICATIONS
Vienne first claims that Hegwood has no specialized training, knowledge, or expertise regarding life care planning and that Hegwood will rely on his general knowledge as a vocational rehabilitation counselor to render an opinion on this subject. As stated above, this Court has broad discretion in determining whether a witness may be qualified as an expert, and Rule 702 permits expert testimony by "so-called skilled witnesses, whose experiences permit them to testify with authority on a given topic." Moore, 151 F.3d at 274.
The Court finds that Hegwood is qualified to offer opinion testimony on life care by virtue of his extensive experience as a certified vocational rehabilitation counselor. Particularly relevant to the area of life care planning, a certified counselor is required to be familiar with coordinating treatment plans, reviewing plans for continuing care, and planning for life care needs and the associated cost. Moreover, Hegwood has assisted in the development of approximately fifteen life care plans throughout his career. Accordingly, Vienne's motion to exclude Hegwood's testimony is DENIED.
B. Collateral Source Rule
Vienne also argues that Hegwood should be prohibited from giving any testimony referring to collateral sources of benefits. Specifically, Vienne objects to any testimony that would point out alternate life care programs available in the local area. "The law is clear that the jury is not to be told about any collateral benefits a personal injury plaintiff may be receiving." Simmons v. Hoegh Lines, 784 F.2d 1234, 1236 (5th Cir. 1986). Accordingly, Vienne's motion to prohibit Hegwood from testifying about collateral sources of benefits available to Vienne is GRANTED.
IV. PLAINTIFF'S MOTION TO STRIKE DARLYNE G. NEMETH
Honda has retained Dr. Darlyne G. Nemeth, Ph.D. ("Nemeth"), to address the neuropsychological issues presented in Vienne's claim. Vienne now moves the Court to strike Nemeth's testimony on the ground that her expert report was untimely submitted.
On June 23, 2000, this Court entered a scheduling order which required the defendants to furnish Vienne with written reports of all their expert witnesses no later than November 19, 2000. By agreement of the parties, this deadline was extended to December 5, 2000. In the instant motion, Vienne argues that Nemeth should be excluded from testifying because he did not receive her expert report until December 6, 2000.
It is clear that the Court may exclude Nemeth's testimony to "preserve the integrity and purpose" of the scheduling order.Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990). In detennining whether to exclude testimony, the Fifth Circuit has directed district courts to consider: (1) the explanation, if any, for the party's failure to comply with the discovery order; (2) the prejudice to the opposing party of allowing the witnesses to testify; (3) the possibility of curing such prejudice by granting a continuance; and (4) the importance of the witness' testimony. See Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996, 1000 (5th Cir. 1998).
Based on the evaluation of these factors, the Court finds that exclusion is not warranted. Honda asserts that Nemeth's report was delayed because she was unable to obtain the results of Vienne's neuropsychological evaluations from plaintiffs counsel, despite repeated requests for this information. In light of this fact and because Nemeth's report was only one day late, the Court finds that Vienne will not be prejudiced if Nemeth is allowed to testify at trial. Accordingly, Vienne's motion to exclude the expert testimony of Darlyne G. Nemeth, Ph.D., is DENIED.
CONCLUSION
IT IS ORDERED that Honda's Motion for Summary Judgment Regarding Warnings Claims is DENIED.
IT IS FURTHER ORDERED that Honda's Motion to Exclude Dr. Robert R. Wright is GRANTED IN PART and DENIED IN PART. Dr. Wright shall be allowed to offer expert testimony on the subjects of vehicle design and accident reconstruction, but he shall not testify as to the adequacy of Honda's warning or to Honda's advertising practices.
IT IS FURTHER ORDERED that Vienne's Motion to Strike Barney C. Hegwood is GRANTED IN PART and DENIED IN PART. Hegwood shall be allowed to offer expert testimony on life care planning, but he shall not testify as to any collateral benefits available to the plaintiff.
IT IS FURTHER ORDERED that Vienne's Motion in Limine to Strike Darlene G. Nemeth, Ph.D., is DENIED.