Easterling v. Ford Motor Company

Filing 103

MEMORANDUM OPINION Signed by Magistrate Judge John E Ott on 3/29/18. (SAC )

FILED
2018 Mar-29 PM 03:37
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JERRY W. EASTERLING,
Plaintiff,
v.
FORD MOTOR COMPANY,
Defendant.

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Case No. 2:14-cv-02353-JEO

MEMORANDUM OPINION
This is a product liability case arising out of a motor vehicle accident.
Plaintiff Jerry Easterling has sued defendant Ford Motor Company for injuries he
sustained when he lost control of his 2003 Ford F-250 pickup truck and crashed.
He alleges that he was wearing his seat belt at the time of the accident and that the
seat belt buckle unlatched during the crash sequence due to a defect in its design
and manufacture.
The case is now before the court on three related motions filed by Ford: (1)
Ford’s motion for summary judgment (doc. 38); (2) Ford’s motion to exclude the
opinions that have been offered by Easterling’s designated expert witness on
product defect, Donald R. Phillips, P.E. 1 (doc. 40); and (3) Ford’s motion to strike
Phillips’s “newly disclosed” expert opinion and any related testing performed in
1

Easterling also retained Phillips to reconstruct the accident. Ford has not moved to exclude
Phillips’s accident reconstruction opinions.

support of the opinion (doc. 89). The court held a hearing on the motion to
exclude Phillips’s opinions on January 30, 2018. Phillips testified at the hearing,
as did Easterling’s other expert witness, Eric Van Iderstine. Following the hearing,
Ford filed its motion to exclude Phillips’s “newly disclosed” opinion and any
testing performed in support thereof.
All three of the pending motions have been fully briefed by the parties and
are ripe for decision. Because the court’s rulings on Ford’s motion to exclude
Phillips’s opinions and motion to strike his “newly disclosed” opinion and related
testing will impact the court’s decision on Ford’s motion for summary judgment,
the court will consider the motion to exclude and motion to strike first, and will
then address the motion for summary judgment. For the reasons discussed below,
the court concludes that all three motions are due to be granted.
FACTS
A.

The Accident
On the morning of December 30, 2012, Easterling was driving his 2003 Ford

F-250 pickup truck on a two-lane road in Bessemer, Alabama. He hit a patch of
ice and lost control of the vehicle. His truck veered off the right shoulder of the
road, struck an embankment, crossed back over the road, and struck a ditch. The
truck then rotated and turned over on the driver’s side, where it came to rest. (Ala.

2

Uniform Traffic Accident Report). 2 Easterling sustained multiple serious injuries
in the accident.
According to Easterling, he is a habitual seat belt user and was wearing his
seat belt at the time of the accident. 3 However, at some point during the crash the
seat belt buckle unlatched. (Deposition of Jerry Easterling at 94, 106-07).4
Easterling contends that his injuries would not have been as serious if the seat belt
buckle had remained latched throughout the entire crash sequence.
B.

The Seat Belt Buckle
The driver’s seat belt buckle in Easterling’s 2003 Ford F-250 pickup truck

was part of a three-point restraint system manufactured by TRW Vehicle Safety
Systems, Inc. 5 The buckle is identified as the TRW “RNS4G” buckle. Eric Van
Iderstine, a professional engineer who performed CT scans of the buckle, provided
a detailed description of the buckle assembly:
The design of the seat belt buckle assembly in the 2003 Ford F-250
utilizes a metal frame with a plastic cover …. The buckle cover has an
opening that allows the latch plate to be inserted. When inserted, the
2

The traffic accident report is located at Doc. 42-1.

3

Ford disputes that Easterling was wearing his seat belt, but this disputed issue of fact is not
material to the present motions.
4

The Deposition of Jerry Easterling is located at Doc. 84-1.

5

The restraint system includes a retractor, an adjustable guide loop, a single-slot sliding latch
plate on the webbing, and a buckle and stalk assembly. The guide loop and retractor are
mounted to the truck’s B-pillar and the buckle and stalk assembly are mounted to the seat.
(Report of Eddie R. Cooper dated Oct. 10, 2016 at 2). Cooper’s report is located at Doc. 84-23.
3

latch plate slides in between surfaces of the metal frame. The latch
plate depresses a spring loaded ejector that is intended to eject an
improperly seated latch plate to prevent a “false latch” condition.
Once the latch plate is inserted, a spring loaded lock bar passes
through a cutout in the latch plate and in each side of the buckle
frame. The lock bar is held in place by the metal latch spring …. The
latch spring is affixed to the buckle button and is deflected away from
the lock bar when the button is depressed. The metal latch spring is
deflected away from the lock bar by a slide surface on a white plastic
assembly riveted to the buckle frame. The white plastic assembly
incorporates two cantilevered springs that return the buckle button to
its fully returned, initial position. The buckle button has angled ramptype features molded into the buckle button. The angled ramp-type
features are used to move the lock bar out of position as the buckle
button is depressed. The buckle button also has backing tab features
that move behind a fully seated lock bar when the button is fully
returned to prevent the lock bar from moving out of position.
(Report of Eric L. Van Iderstine dated Aug. 9, 2016 at 2-3). 6
Van Iderstine’s initial CT scan of the subject buckle revealed that the two
plastic (polymer) return springs for the buckle button were fractured and “failed to
contact the buckle button, precluding the spring operation and button return.” (Id.
at 3). A subsequent scan of the buckle with the latch plate inserted also revealed
that the fractured springs were “not in contact with their mating features on the
buckle button … and not capable of fully returning the buckle button.”
(Supplemental Report of Eric L. Van Iderstine dated Sept. 27, 2016 at 2).7

6

Van Iderstine’s report is located at Doc. 42-7.

7

Van Iderstine’s supplemental report is located at Doc. 42-8.
4

Van Iderstine also conducted a series of tests to determine whether a seat
belt buckle can unlatch if the release button is in a partially depressed position.
Van Iderstine initially evaluated two “exemplar buckles” using a fixture that
allowed the button to be depressed in a repeatable manner. The evaluations
revealed that “the condition of a partially depressed buckle button can result in the
unintended unlatching and release of the latch plate.” (Van Iderstine Report at 6).
Van Iderstine subsequently tested the subject buckle with the release button
depressed 2.9 mm below the buckle cover. The testing “demonstrated that the
buckle functionality is compromised due to the buckle not fully returning. …
Pulling by hand on the latch plate and seat belt webbing resulted in the release of
the latch plate from the buckle[.]” (Van Iderstine Supp. Report at 3).
C.

Donald Phillips’s Opinions
Easterling’s claims against Ford are based on the contention that his seat belt

buckle unintentionally unlatched during the crash of his vehicle due to a defect in
the buckle’s design and manufacture. He has designated Donald Phillips, P.E., as
his expert witness on product defect. Phillips, a mechanical engineer, has opined
that “due to the cracked defective seat belt buckle release button plastic return
springs the seat belt became inadvertently released and resulted in serious personal
injury to Mr. Easterling.” (Report of Donald R. Phillips dated Aug. 10, 2016 at

5

14).8 More specifically, Phillips has opined that because the cracked return springs
were “no longer providing adequate return force to the release button,” the release
button “fail[ed] to return to a full ‘up’ position,” which in turn “result[ed] in the
release ramp of the button design to come in close contact with the lock bar of the
buckle frame resulting in less than full engagement of the lock bar and … allowing
for [the] buckle to inadvertently release the latch plate causing the driver to be
ejected from a fully belted position.” (Id. at 8-9).
Phillips has also expressed the opinion that “steel coil” release button return
springs are more “robust” and resistant to “cyclical fatigue” and “aging” than
plastic return springs. (Phillips Report at 6-7). He asserts that Ford knew or should
have known that steel coil return springs have been used in other manufacturers’
buckle designs and that Ford placed Easterling “at risk for increased injuries in
crashes” by failing to utilize such an alternative design. (Id. at 7, 14).
Lastly, Phillips has opined that Ford “should have warned or recalled the
2003 Ford F-250 Super Duty pickup trucks due to failed or failing seat belt buckle
release button plastic return springs.” (Id. at 14). At his deposition, Phillips
clarified that he is not offering an opinion “on how to design a warning to tell
consumers that they have cracked return springs.” (Deposition of Donald R.

8

Phillips’s report is located at Doc. 42-4.
6

Phillips at 253).9 Rather, it is his opinion that Ford should have “alert[ed] the
public through either a disclosure [(a technical service bulletin)] or a recall saying,
‘We have discovered this issue with our seat belt buckles. We need to have them
brought in and checked for cracked return springs.’” (Id. at 253-54).
MOTION TO EXCLUDE PHILLIPS’S OPINIONS
Ford has moved to exclude Phillips’s defect, causation, and failure-to-warn
opinions under FED. R. EVID. 702 and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993).10 (Doc. 40). Rule 702 controls the admission of expert
testimony in the federal courts. It provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a)

(b)

the testimony is based on sufficient facts or data;

(c)

the testimony is the product of reliable principles and
methods; and

(d)

9

the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;

the expert has reliably applied the principles and methods
to the facts of the case.

The Deposition of Donald R. Phillips is located at Doc. 84-10.

10

Ford also argues, separately, that Phillips’s opinions would likely confuse the jury and should
be excluded under FED. R. EVID. 403. For the reasons discussed below, the court has determined
that Phillips’s opinions are inadmissible and due to be excluded under Rule 702 and Daubert.
Therefore, the court will pretermit any consideration of Ford’s separate argument under Rule
403.
7

In Daubert, the Supreme Court held that Rule 702 imposes a “gatekeeping”
obligation upon a trial judge to “ensure that any and all scientific testimony ... is
not only relevant, but reliable.” 509 U.S. at 589 & n.7. The Court later clarified
that this function applies to all expert testimony under Rule 702, not just
“scientific” testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).
“[T]he objective of that requirement is to ensure the reliability and relevancy of
expert testimony. It is 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.” United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en
banc) (quoting Kumho Tire, 526 U.S. at 152).
In determining the admissibility of expert testimony, the court is to “engage
in a rigorous three-part inquiry,” considering
whether: (1) the expert is qualified to testify competently regarding
the matters he intends to address; (2) the methodology by which the
expert reaches his conclusions is sufficiently reliable as determined by
the sort of inquiry mandated in Daubert; and (3) the testimony assists
the trier of fact, through the application of scientific, technical, or
specialized expertise, to understand the evidence or to determine a
fact in issue.
Frazier, 387 F.3d at 1260 (quoting City of Tuscaloosa v. Harcros Chems., Inc.,
158 F.3d 548, 562 (11th Cir. 1998)). While there is “some overlap” among these
requirements, “they remain distinct concepts and the courts must take care not to
8

conflate them.” Id. The proponent of expert testimony bears the burden at trial to
establish these elements of admissibility. Id. However, a party moving under
Daubert to preclude testimony by its opponent’s expert must first make a threshold
showing sufficient to indicate that its adversary will be unable to meet its burden at
trial with regard to the testimony. See Gottstein v. Flying J, Inc., 2001 WL
36102297, at *1 (N.D. Ala. Aug. 22, 2001); cf. Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991) (recognizing that, even where a party has the
burden of proof at trial, that party need not produce proof supporting his claim in
response to a motion for summary judgment unless the movant has first presented
evidence that would negate an element of the non-movant’s claim or indicates that
the non-movant will be unable to meet his burden at trial; “it is never enough
simply to state that the non-moving party cannot meet its burden at trial”).
As to the first element, the Eleventh Circuit has recognized that “experts
may be qualified in various ways. While scientific training or education may
provide possible means to qualify, experience in a field may offer another path to
expert status.” Frazier, 387 F.3d at 1260-61. “Of course, the unremarkable
observation that an expert may be qualified by experience does not mean that
experience, standing alone, is a sufficient foundation rendering reliable any
conceivable opinion the expert may express.” Id. at 1261. Rather, “while an
expert’s overwhelming qualifications may bear on the reliability of his proffered
9

testimony, they are by no means a guarantor of reliability.... [O]ur caselaw plainly
establishes that one may be considered an expert but still offer unreliable
testimony.” Id. (quoting Quiet Technology DC–8, Inc. v. Hurel–Dubois UK Ltd.,
326 F.3d 1333, 1341-42 (11th Cir. 2003)).
Turning to the second requirement, the trial judge must evaluate the
reliability of expert opinion by assessing “whether the reasoning or methodology
underlying the testimony is scientifically valid and ... whether that reasoning or
methodology properly can be applied to the facts in issue.” Frazier, 387 F.3d at
1262 (quoting Daubert, 509 U.S. at 592-93). In this inquiry, courts generally
consider: “(1) whether the expert’s theory can be and has been tested; (2) whether
the theory has been subjected to peer review and publication; (3) the known or
potential rate of error of the particular scientific technique; and (4) whether the
technique is generally accepted in the scientific community.” Id. (quoting Quiet
Tech., 326 F.3d at 1341). However, “these factors are illustrative, not exhaustive;
not all of them will apply in every case, and in some cases other factors will be
equally important in evaluating the reliability of proffered expert opinion.” Id.
“Exactly how reliability is evaluated may vary from case to case, but what remains
constant is the requirement that the trial judge evaluate the reliability of the
testimony before allowing its admission at trial.” Id. (emphasis in original).

10

As to the third requirement, the Eleventh Circuit has stated that expert
testimony must “assist the trier of fact” by shedding light on matters “that are
beyond the understanding of the average lay person.” Frazier, 387 F.3d at 1262
(citing United States v. Ruoco, 765 F.2d 983, 985 (11th Cir. 1985)). “Proffered
expert testimony generally will not help the trier of fact when it offers nothing
more than what lawyers for the parties can argue in closing arguments.” Id. at
1262-63.
While undertaking these analyses, however, it must be kept in mind that “[a]
district court’s gatekeeper role under Daubert ‘is not intended to supplant the
adversary system or the role of the jury.’ ” Quiet Tech., 326 F.3d at 1341 (quoting
Maiz v. Virani, 253 F.3d 641, 666 (11th Cir. 2001), quoting Allison v. McGhan,
184 F.3d 1300, 1311 (11th Cir. 1999)); see also Adams v. Laboratory Corp. of
Amer., 760 F.3d 1322, 1334 (11th Cir. 2014); United States v. 14.38 Acres of Land,
More or Less Situated in Leflore Cnty., State of Miss., 80 F.3d 1074, 1078 (5th Cir.
1996). Instead, “[v]igorous 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 United States v. 0.161 Acres of Land, more or less, situated in City of
Birmingham, Jefferson Cnty., Ala., 837 F.2d 1036, 1042 (11th Cir. 1988).
Accordingly, while the court must determine that expert testimony is sufficiently
11

reliable to be admissible, once it has done so “it is not the role of the district court
to make ultimate conclusions as to the persuasiveness of the proffered evidence.”
Quiet Technology, 326 F.3d at 1341; see also 0.161 Acres of Land, 837 F.2d at
1040-41 (“Importantly, the jury is instructed that it is completely free to accept or
reject an expert’s testimony, and to evaluate the weight given such testimony in
light of the reasons the expert supplies for his opinion.”).
Here, Ford argues that Phillips’s opinions are inadmissible under Rule 702
and Daubert because (1) he is not qualified to offer the opinions, (2) his opinions
are not reliable, and (3) his opinions do not “fit” the facts of the case. Easterling
responds that Phillips is qualified to offer his opinions and that his opinions are
both reliable and relevant.
A.

Qualifications
Phillips’s product defect theory is that the subject seat belt buckle unlatched

during the crash of Easterling’s vehicle because the buckle’s “cracked defective”
plastic release button return springs did not produce adequate force to return the
button to its full “up” position, which allowed for the inadvertent release of the
latch plate during the crash. He has proposed steel coil return springs as a
reasonably safe alternative design, proclaiming steel coil springs to be more
“robust.”

12

Ford argues that Phillips is not qualified to offer any of his opinions because
he has never designed a seat belt for production, is not a materials engineer or
chemist, and has no specialized experience in plastics or polymers. (Doc. 41 at 1718). Indeed, Phillips admitted the following at his Daubert hearing:
Q.

… [F]or the latch assist return springs that we have in this case,
you have never designed one of those?

A.

No, sir, I haven’t.

Q.

You’ve never, as part of your professional career, had to
determine what the specifications would be for those return
springs?

Q.

That’s correct.

Q.

You’ve never had, as part of your career, an issue about
analyzing what the material composition is for those return
springs.

A.

That’s correct.

(Doc. 102 at 26-27). Phillips also admitted that he has never designed “any
part” of a seat belt, including the buckle, latch plate, webbing, retractor, or
pretensioner. (Id. at 58).
Easterling counters that Phillips is a licensed professional engineer in seven
states and worked for several years at Breed Automotive, a manufacturer of seat
belts and air bags. (Doc. 84 at 17). Phillips testified at the hearing that although his
focus at Breed was on airbags, his work included the interaction of airbags with
seat belt systems. (Doc. 102 at 9, 124). Phillips also testified that he looked at and
13

addressed the use of various types of springs in airbag systems, including metal
springs and polymer springs, when he worked at Breed. (Id. at 124-25). He further
testified that he has analyzed about a thousand automotive accidents in his capacity
as a consulting engineer and has testified as an expert in approximately 27 trials
specifically involving claims of seat belt defects and/or seat belt performance. (Id.
at 23, 122). In none of those 27 trials was his testimony excluded or limited. (Id. at
122-23).
Whether Phillips is qualified to offer his opinions in this case is a close
question. On the one hand he is not a materials engineer and has no experience in
the design of seat belt buckles or release button return springs. On the other hand
he does have extensive experience analyzing automotive accidents and how seat
belts work as part of an integrated vehicle safety system. While the court might
lean towards finding Phillips not qualified, ultimately the court need not make such
a finding, because the court is otherwise convinced that Phillips’s opinions are not
reliable. For the reasons discussed below, Phillips’s opinions are due to be
excluded as unreliable, even assuming that he is qualified to offer the opinions.
B.

Reliability
Ford argues that Phillips’s opinions are unreliable because he has summarily

declared the buckle’s fractured plastic return springs to be defective, and
summarily declared steel coil springs to be a more robust design, without providing
14

any testing or other data to support his assertions. Ford argues that without such
supporting data, Phillips’s opinions are unreliable. The court agrees with Ford.
At his Daubert hearing, Phillips confirmed that he is critical of the use of
polymer (plastic) return springs in the subject buckle. (Doc. 102 at 28). He
conceded, however, that he has made no attempt to study the polymer composition
or properties of the return springs, cannot tell what caused the springs to break, and
does not know why they failed. (Id. at 27, 41-43). He maintained that he “[didn’t]
need to know what [the springs were] made of once he recognize[d] the fact that
they broke—they fractured and they failed.” (Id. at 28).
Similarly, Phillips confirmed that his “design issue” is that the buckle design
should have utilized “a metal coil [return] spring instead of a plastic cantilever
spring.” (Id. at 40). He admitted, however, that he has not done the work that
would be necessary for him to identify a reasonably safe alternative design
incorporating a metal coil return spring:
Q.

… You can’t point to a buckle that you can tell this Court and
say, in Don Phillips’s opinion, this would be a reasonably safe
alternative design in all aspects?

A.

That would be true … I would have to go out and do a survey,
find [a buckle] that was used with a pretensioner that had a
metal coil return spring, and then say, here you go, this is it.

Q.

And you haven’t done that in this case—that work in this case?

A.

Not yet.
15

(Id. at 57-58). Likewise, although Phillips testified that his alternative design
would utilize metal coil return springs made of “the same type of metal that was
used for the [buckle’s] latch plate ejector spring,” he does not know what type of
metal was used for the ejector spring and has not done the “studies” to determine
what the size of the metal coil return springs should be or what their spring rate
should be. (Id. at 68-70, 149). He testified that “the concept is there” but that he
could not provide the “specifics” regarding spring rate and size “without extensive
further work.” (Id. at 149).
Phillips also testified that “there’s a possibility that a manufacturing defect
exists” because the return springs in the subject buckle failed without meeting
TRW’s requirement that return springs last for 75,000 cycles. (Id. at 34, 40-41).
Again, however, he admitted that he does not know why the springs did not meet
the 75,000 cycle requirement and does not know why the springs failed. (Id. at 4142).
The court also notes that the only “testing” that was performed by
Easterling’s experts was the series of tests performed by Van Iderstine to
determine whether a seat belt buckle can unlatch if the release button is in a
partially depressed position. Neither Phillips nor Van Iderstine performed any
testing, or presented any data or analysis, relating to the life span or failure rate of
release button return springs, whether made of plastic or metal.
16

In light of the above gaps in Phillips’s testing and methodology, his opinions
are not sufficiently reliable to be admissible. The underlying premise of all of his
opinions is that the release button return springs in the subject buckle were
defective, but he has done little more than note that the springs were made of
plastic, they fractured at some unidentified point in time and failed, and other
buckle designs utilize metal springs. He cannot say, and has done no testing to
determine, what caused the springs to fracture or why they failed. He has not
analyzed the material properties of the springs or performed any testing to
determine their durability. He has performed no testing and provided no data or
studies comparing the performance or relative strengths of plastic springs versus
metal springs. He has not identified a reasonably safe alternative design utilizing
metal return springs, although he claims that he could if he did further work. He
has simply declared the plastic return springs to be defective because they
fractured and failed. That is not enough to satisfy the reliability requirement of
Rule 702 and Daubert. See Daubert, 509 U.S. at 590 (noting that an expert’s
opinion must rest on “appropriate validation” and must be more than “belief or
unsupported speculation”); General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)
(“nothing in either Daubert or the Federal Rules of Evidence requires a district
court to admit opinion evidence that is connected to existing data only by the ipse
dixit of the expert”); see also Zaremba v. General Motors Co., 360 F.3d 355, 359
17

(2d Cir. 2004) (excluding Phillips’s defect and alternative design opinions as
unreliable where he offered “no test results, models, calculations, or drawings” to
demonstrate that his alternative design would have “resulted in greater safety in the
rollover accident at issue”); In re Ford Tailgate Litigation, Case No. 11-cv-02953RS, Order Granting Motions to Exclude Expert Testimony at 15 (N.D. Ca. Nov.
25, 2015)11 (excluding Phillips’s opinions in litigation involving allegedly
defective tailgate latch systems, where Phillips “[did] not back up his opinions with
reference to any meaningful testing, literature, or comparisons”).
Easterling’s opposition to Ford’s motion to exclude Phillips’s opinions
largely ignores Phillips’s failure to provide any test results or other data to support
his contention that the buckle’s plastic return springs were defective. Instead,
Easterling focuses on the methodology Phillips employed in reaching his opinion
that “the fractured return springs could result in an unintentional and inadvertent
unlatching of the belt thus confirming the unreasonably dangerous condition of the
subject buckle.” (Doc. 84 at 23). Easterling argues that “[f]or purposes of being
able to address whether this buckle was fit for its intended purpose, it is not
necessary [that Phillips] be able to address how strong the springs are and when
and why they broke.” (Id. at 16). Easterling asserts that the relevant issue is

11

A copy of the Exclusion Order is located at Doc. 41-1.
18

“whether this seat belt was unreasonabl[y] dangerous with broken button return
springs.” (Id. at 23).
Easterling’s argument ignores settled Alabama law. In this product liability
case against Ford, Easterling’s burden as plaintiff is not to prove that his seat belt
was unreasonably dangerous with a broken component part, but rather to prove that
the seat belt was defective and unreasonably dangerous when it left Ford’s
possession, without substantial change in the product’s condition. See Casrell v.
Altec Indus., Inc., 335 So. 2d 128, 132-33 (Ala. 1976); Atkins v. General Motors
Corp., 642 So. 2d 134, 141 (Ala. 1994); Sears, Roebuck & Co., Inc. v. Haven Hills
Farm, Inc., 395 So. 2d 991, 995 (Ala. 1981). “[T]he failure of a product does not
presuppose the existence of a defect. … [A] defect in the product must be
affirmatively shown.” Townsend v. General Motors Corp., 642 So. 2d 411, 415
(Ala. 1994). As Easterling’s expert on product defect, Phillips must do more than
simply declare the seat belt to be “defective” because the buckle’s plastic return
springs fractured and failed at some point in time post-sale.
Easterling also dismisses Ford’s argument that Phillips has not adequately
supported his opinion that metal return springs are a superior alternative design to
plastic return springs, calling Ford’s argument “curious” given that Ford’s own
expert, Eddie Cooper, testified that the TRW RNS4G buckle was the only buckle
utilizing plastic return springs during the 2000 to 2010 timeframe. (Doc. 84 at 25).
19

Easterling contends that “the state of the art in the 2000s was to use metal return
springs as Phillips has opined.” (Id.) That may be the case, but the mere fact that
all other buckles utilized metal return springs does not, in and of itself, establish
that a design utilizing plastic return springs was inferior or defective. Again,
Phillips has not provided any test results, studies, or other data comparing the
durability, relative strengths, and failure rates of plastic springs versus metal
springs.
Easterling also points to an internal TRW Design Failure Mode and Effects
Analysis (“DFMEA”) document indicating that “a push button not returning to
home can be caused by broken return springs, with the potential effect[s] being
‘occupant not restrained’, ‘no latch’ or ‘partial latch’.” (Doc. 84 at 24). Easterling
asserts that the DFMEA document “confirm[s]” Van Iderstine’s findings—on
which Phillips relies—that the subject buckle’s broken return springs could result
in an inadvertent unlatching of the buckle. (Id. at 24-25). Easterling overstates the
significance of the DFMEA document. The DFMEA document may establish
TRW’s recognition that broken return springs could result in an inadvertent
unlatching of the buckle, but it sheds no light on the underlying issue of why the
plastic return springs in the subject buckle broke in the first place. Even with the
DFMEA document, Phillips still has provided no test results or other data
regarding the strength of the plastic return springs or why they broke. The
20

DFMEA document is consistent with Van Iderstine’s findings, but it does not plug
the hole in Phillips’s opinions.
The court recognizes that it may be Easterling’s position that it is not
necessary for Phillips to address the strength of the plastic return springs or why
they broke because the design defect he has identified is not the propensity for
plastic return springs to break. Rather, as Phillips testified at the hearing, “it’s
unreasonably dangerous to use a plastic spring that can fail in a concealed manner
to render the seat belt ineffective in a crash, which is backed by TRW’s own
documents.” (Doc. 102 at 54). In other words, it does not matter why the return
springs fractured and failed; what matters, and what renders the buckle defective,
is the concealed nature of the failure and the resulting hidden danger of a buckle
that may unlatch during a crash.
Even construing Phillips’s defect opinion in this way, his opinion is still
unreliable, and perhaps even more so. If it is Phillips’s opinion that the subject
buckle was defective because it utilized a plastic return spring that could fail in a
concealed manner and render the buckle ineffective in a crash, Phillips has not
identified an alternative design that remedies this alleged defect. He has not
identified an alternative buckle design that (1) alerts the seat belt user if the button
return springs—whether made of plastic or metal—fail, (2) ensures the button will
return to its full “up” position even if the return springs fail, or (3) prevents the
21

buckle from operating at all if the return springs fail. Likewise, he has done no
testing and provided no studies showing that if metal coil springs had been used
instead of plastic springs, they would have failed in an open and obvious way such
that the user would be on notice of the buckle’s compromised condition. And if it
is Phillips’s contention that metal springs would not have failed, then he is back at
square one—he has provided no test results, studies, or data comparing the relative
strengths and failure rates of plastic springs versus metal springs.
Finally, to the extent Phillips has offered a separate “warning” opinion, the
opinion fares no better than his defect opinion. Indeed, Phillips’s warning opinion
is premised on his defect theory. As previously noted, Phillips’s warning opinion
is that Ford should have alerted the public about the “failed or failing seat belt
buckle release button plastic return springs” in 2003 F-250 pickup trucks through
either a technical service bulletin or a vehicle recall. Although Easterling argues
that the “essence” of Phillips’s warning opinion is that Ford “should have made all
owners of vehicle[s] with this RNS4G buckle [aware] that if the button was not
returning to its full home position, [they] need[ed] to have [the] buckle replaced or
at the least inspected by a dealer” (doc. 84 at 29), the opinion still emanates from
Phillips’s baseline defect theory—namely, that the “cracked defective” plastic
return springs did not provide adequate force to return the button to its home
position. Whether expressed as a defect opinion or a warning opinion, the true
22

“essence” of Phillips’s opinions is that the buckle was defective because it utilized
plastic return springs that cracked and failed. As discussed above, Phillips simply
has not done the testing or provided the research to support such an opinion.
Without such supporting evidence, all of his opinions are unreliable and
inadmissible.
C.

Fit and Relevance
Ford argues that Phillips’s “causation-related” opinion—his opinion that

Easterling’s seat belt buckle unlatched during the crash sequence because the
release button had not returned to its full “up” position due to the inadequate return
force supplied by the cracked return springs—should be excluded for the additional
reason that it does not “fit” the facts of the case. Ford argues that Phillips’s
opinion “rises and falls upon tests conducted by Van Iderstine that are divorced
from the facts and physical evidence.” (Doc. 41 at 23). Specifically, Ford argues
that when Van Iderstine performed his tests to determine if a seat belt buckle can
unlatch if the release button is in a partially depressed position, he never tested the
subject buckle with the latch plate engaged and the button depressed to a level 1.72
mm below the buckle cover, the measured level when the buckle was latched and
CT scanned. (Doc. 88 at 10). Instead, Van Iderstine tested the buckle with the
button depressed 2.9 mm below the buckle cover, “well below the documented
button position when the buckle and latch plate are engaged.” (Id.) Ford argues
23

that because Phillips relied upon Van Iderstine’s “contrived” testing to support his
causation opinion, his opinion is irrelevant and inadmissible. (Id. at 11).
Easterling responds that Van Iderstine’s testing was “not an exhaustive study
to find the threshold” where a partially depressed button would result in unlatching
of the buckle, but rather was “to show that a button that did not return to its home
position could result in unlatching of the buckle.” (Doc. 84 at 27-28). Easterling
also notes that “all the experts agree … that the position of the button and the
measurement taken the one time the subject buckle was latched and a CT done (the
1.72 mm measurement) is not indicative of the position the button will return to
each time it is latched. … It could be more, it could be less.” (Id. at 28) (emphasis
omitted).
Because the court has determined above that all of Phillips’s opinions,
including his causation opinion, are unreliable and inadmissible, the court need not
decide whether Phillips’s causation opinion is also irrelevant. Regardless of
whether Phillips’s causation opinion does or does not fit the facts of the case, the
opinion is due to be excluded as unreliable. The court does note, parenthetically,
that it would likely find Van Iderstine’s testing to be relevant to show that a buckle
with a partially depressed button could result in the unlatching of the buckle, but
not to show that the subject button was depressed to a level that would allow

24

unlatching at the time of Easterling’s crash. However, the court does not make
such a finding here.
MOTION TO STRIKE PHILLIPS’S “NEWLY DISCLOSED” OPINION
AND RELATED TESTING
In response to Ford’s motion for summary judgment, Easterling submitted
affidavits executed by Phillips and Van Iderstine. (Docs. 86-1 & 86-2). Phillips
executed his affidavit on January 4, 2018, and Van Iderstine executed his affidavit
on January 8, 2018.
In Phillips’s affidavit, he expressed the following opinion:
When the push button is depressed to a depth where the primary locks
are no longer in contact with the lock bar, the amount of force to push
the lock bar out of the latch plate is between 9.4 to 20 ounces of force
(2.6N to 5.6N). The 9.4 ounce lower limit was determined with the
latch plate slightly depressed, and the 20 ounce upper limit was
determined with the latch plate in normal contact with the lock bar
while the push button was depressed to bypass the primary lock
molded into the push button simulating a cracked return spring.
(Doc. 86-1 at ¶ 8(11)). This opinion was not expressed in either of his prior expert
reports. At the Daubert hearing on January 30, 2018, Phillips revealed that his
new opinion was based on measurements performed by Van Iderstine earlier that
month. (Doc. 102 at 72-73).
Ford has moved to strike Phillips’s new opinion, and any related testing on
which the opinion is based, as untimely. (Doc. 89). Ford notes that Easterling
submitted Phillips’s original expert report on August 10, 2016, and his
25

supplemental report on September 28, 2016. Ford deposed Phillips the following
week. Then, on January 31, 2017, after discovery had closed and in compliance
with the court’s Scheduling Order (as amended), Ford filed its motion for summary
and related motion to exclude Phillips’s opinions. Nearly one year later, following
an extended dispute between Easterling and TRW regarding a non-party subpoena
that Easterling had served on TRW, Easterling submitted Phillips’s affidavit setting
forth his new opinion on the force required to push the buckle’s lock bar out of the
latch plate, based on the recent measurements performed by Van Iderstine. Ford
notes that it has not received “any records, photographs, or other documentation
relating to such testing,” which it “had no idea” had been performed prior to the
Daubert hearing. (Id. at ¶ 5).
The court agrees with Ford that Phillips’s new opinion, and the underlying
measurements/testing performed by Van Iderstine, should be stricken as untimely.
It would be unduly prejudicial to Ford to permit Easterling to offer and rely on a
new expert opinion long after both parties’ experts have been deposed, discovery
has closed, and Daubert challenges have been raised. To the extent Easterling
argues that the “evaluation” conducted by Van Iderstine “could not be performed
until the necessary specifications and drawings were produced by TRW to
determine the specifications for the latch spring so there would be documented
information from the manufacturer of the buckle to compare the results to confirm
26

the correctness of the results,” the court is not impressed. (Doc. 92 at ¶ 2). TRW’s
lock bar spring specifications were not necessary for either Van Iderstine or
Phillips to measure the force required to overcome the latch spring. Indeed, Van
Iderstine admitted at the Daubert hearing that he could have measured the force at
any time prior to receiving the TRW documents. (Doc. 102 at 187). The court is
similarly unimpressed with Easterling’s observation that there was “no inquiry” by
either Ford or the court “as to whether new, additional or supportive opinions had
been developed by [his] experts because of TRW’s production.” (Doc. 92 at ¶ 5).
It was neither Ford’s nor this court’s obligation to make such an inquiry.
Accordingly, Ford’s motion to strike Phillips’s new opinion (as expressed in
paragraph 8(11) of his affidavit) and any related testing will be granted.
MOTION FOR SUMMARY JUDGMENT
Having determined that Phillips’s opinions are inadmissible, the court turns
to Ford’s motion for summary judgment. (Doc. 38). Easterling’s complaint against
Ford contains four clams: a claim under the Alabama Extended Manufacturer’s
Liability Doctrine (“AEMLD”); a claim for negligent “design, manufacture,
testing, warnings, inspection, distribution and/or sale” of Easterling’s truck; a
claim for wanton “design, manufacture, testing, warnings, inspection, distribution
and/or sale” of the truck; and a claim for breach of implied warranty. (Doc. 1).

27

Ford has moved for summary judgment on all four claims. For the reasons
discussed below, Ford’s motion is due to be granted in its entirety.
A.

Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall

grant summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a). The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion,” relying on
submissions “which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Clark
v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Adickes v. S.H. Kress
& Co., 398 U.S. 144 (1970). Once the moving party has met its burden, the
nonmoving party must “go beyond the pleadings” and show that there is a genuine
issue for trial. Celotex Corp., 477 U.S. at 324.
At summary judgment, a court views the evidence in the light most
favorable to the non-movant. Stewart v. Booker T. Washington Ins., 232 F.3d 844,
848 (11th Cir. 2000). The court must credit the evidence of the non-movant and
draw all justifiable inferences in the non-movant’s favor. Id. Inferences in favor of
the non-movant are not unqualified, however. “[A]n inference is not reasonable if
it is only a guess or a possibility, for such an inference is not based on the
28

evidence, but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing
Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). At summary
judgment, “the judge’s function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
B.

Product Defect Claims
1.

Tort Claims

Ford argues that Easterling’s AEMLD claim and his “other tort claims”
based on product defect all fail because Easterling has not met his burden of
showing that the subject product—the seat belt buckle in Easterling’s F-250 pickup
truck—was defective through admissible expert testimony. (Doc. 39 at 10-14).
The court agrees with Ford.
A “defect” in a product has long been defined in Alabama as “that which
renders a product ‘unreasonably dangerous,’ i.e. not fit for its intended purpose,”
and a “defective” product is one that “does not meet the reasonable expectations of
a consumer as to its safety.” Casrell, 395 So. 2d at 133. “[D]efective condition
applies when, at the time the product leaves the seller’s hands, it is in a condition
not contemplated by the ultimate consumer.” Id. “The plaintiff bears the burden of
proving that the product was in a defective condition when it left the defendant’s
control. Without evidence to support the conclusion that the product was defective
29

and/or unreasonably dangerous when it left the hands of the seller, the burden is
not sustained.” Jordan v. General Motors Corp., 581 So. 2d 835, 837 (Ala. 1991).
As Easterling concedes, “expert testimony is required to establish substantial
evidence of a defect in a complex product liability case” such as the case at bar.
(Doc. 85 at 22). See Haven Hills, 395 So. 2d at 995 (“[O]rdinarily, expert
testimony is required [to prove an alleged defect] because of the complex and
technical nature of the commodity.”); see also Brooks v. Colonial Chevrolet-Buick,
Inc., 579 So. 2d 1328, 1333 (Ala. 1991) (stating that an automobile brake system is
“precisely the type of complex and technical commodity that would require expert
testimony to prove an alleged defect”). To meet his burden, Easterling has offered
the testimony and opinions of Donald Phillips, his designated expert on product
defect. The court, however, has determined that Phillips’s opinions are unreliable
and inadmissible and has granted Ford’s motion to exclude the opinions. That
ruling is fatal to Easterling’s product defect claims. Without Phillips’s expert
testimony, Easterling cannot present substantial evidence to support his defect
claims, whether asserted under the AEMLD, negligence, or wantonness.
In his opposition to Ford’s motion for summary judgment, Easterling asserts
that Phillips is not the only expert who has opined that the subject buckle was
defective, and argues that the “unchallenged testimony and opinions” of Eric Van

30

Iderstine “established the existence of a defect with specificity ….” (Doc. 85 at
19). The court disagrees, for two reasons.
First, Van Iderstine was asked at his deposition whether he intended to offer
“definitive opinions of defect in this case” or was “deferring to Mr. Phillips on
ultimate opinions as they relate to an alleged defective condition of the buckle[.]”
(Deposition of Eric Van Iderstine at 84).12 Van Iderstine responded that he had
been retained “to conduct the CTs [of the buckle] and to perform testing” and that
Phillips would be addressing “the defective – the condition, the – how that relates
to the incident and alternative designs.” (Id.) He also confirmed that he did not
hold any opinions on whether the plastic button return springs should have been
made of a different material and had not done any work to determine the “root
cause” of the fracture of the springs. (Id. at 108, 133). Based on this testimony, the
court finds that Van Iderstine was not retained to offer, and did not intend to offer,
any product defect opinions in this case. It would be prejudicial to Ford to allow
Easterling to recharacterize Van Iderstine’s opinions as “defect” opinions after
Ford has moved for summary judgment.

12

The Deposition of Eric Van Iderstine is located at Doc. 84-5.
31

Second, Van Iderstine’s opinions would be inadmissible if construed and
offered as opinions on the defective nature of the subject buckle. 13 Consistent with
his deposition testimony, Van Iderstine’s expert reports addressed his CT scans of
the buckle and the tests he performed to assess the impact of a partially depressed
release button on the buckle’s performance, but did not address how the buckle’s
condition related to the underlying incident. Although Van Iderstine determined
that the buckle’s release button return springs were fractured, that the fractured
springs were not capable of fully returning the button to its home position, and that
a partially depressed release button can result in the unintended release of the latch
plate, he did not analyze what caused the return springs to fracture in the first
place. He testified that the “cracked, broken” return springs rendered the buckle in
a “compromised condition,” but he offered no testimony or opinion that the buckle
was in a “compromised condition” when it left Ford’s control. (Van Iderstine Dep.
at 82). And unlike Phillips, he expressed no opinion on whether the button return
springs should have been made of a material other than plastic. Accordingly, to
the extent Easterling has offered Van Iderstine’s opinions as evidence that the
subject buckle was defective, the opinions are unreliable and inadmissible just like

13

In its motion to exclude Phillips’s opinions, Ford expressly argued that “[t]o the extent … Van
Iderstine attempts to offer opinions regarding product defect or why the subject buckle allegedly
unlatched during the crash sequence, any such opinions should be excluded for the same reasons
as Phillips.’ ” (Doc. 41 at n.6).
32

Phillips’s opinions, and are insufficient to satisfy Easterling’s burden of
establishing product defect.
2.

Breach of Implied Warranty

Easterling’s breach of implied warranty claim fails for the same reason as
his tort claims. To recover for breach of implied warranty under Alabama law,
Easterling must prove “the existence of an implied warranty, breach of that
warranty, and damages proximately resulting from that breach.” Bagley v. Mazda
Motor Corp., 864 So. 2d 301, 315 (Ala. 2003) (quoting Barrington Corp. v.
Patrick Lumber Co., 447 So. 2d 785, 787 (Ala. Civ. App. 1984)). In addition, as
with his tort claims, Easterling must prove that a defect in his seat belt buckle
caused his injuries. See Haven Hills, 395 So. 2d at 996 (quoting Shramek v.
General Motors Corp., 216 N.E. 2d 244, 247 (Ill. App. Ct. 1966)) (“Whether the
charge is breach of implied warranty, negligence, or the strict tort liability … the
cornerstone of plaintiff’s cause of action is the existence of a defect in the
[product] at the time it left the control of the manufacturer or seller. Without this
proof his case must fail.”). Even Easterling tacitly admits that he must establish
product defect in order for his warranty claim to survive summary judgment; he
argues that his warranty claim is due to survive “if the Court finds that [he] has
established a defect and proven causation by substantial evidence[.]” (Doc. 85 at
33) (emphasis added). As discussed above, the court has determined that
33

Easterling has not presented substantial evidence of product defect, because the
court has excluded Phillips’ expert opinions. Without Phillips’ expert testimony to
establish product defect, Easterling’s breach of implied warranty claim fails just
like his tort claims.
C.

Failure to Warn
Easterling’s complaint does not contain an express claim for failure to warn.

However, both parties have construed the complaint as containing such a claim,
although it is not clear to the court whether the claim is predicated on the AEMLD
or on Easterling’s negligence and wantonness allegations. (See Doc. 39 at 20-22;
Doc. 85 at 33-35; Doc. 87 at 8-10). Regardless, the parties appear to be in
agreement on the elements Easterling must establish in order to prevail on a
failure-to-warn claim. They disagree on whether Easterling can establish those
elements.
To prevail on a failure-to-warn claim under Alabama law, a plaintiff must
establish “(1) that the defendant had a duty; (2) that the defendant failed to provide
adequate warnings of the hazards of a particular product, thereby breaching that
duty; (3) that the breach was the proximate cause of the plaintiff’s harm; [and] (4)
that the plaintiff suffered harm as a result.” Bodie v. Purdue Pharma Co., 236 F.
App’x 511, 518 (11th Cir. 2007) (discussing negligent failure to warn). To
establish the defendant’s duty to warn, the plaintiff must prove that “(1) the
34

defendant placed the product in question on the market, (2) the product was
substantially unaltered when the plaintiff used it, (3) the product was imminently
dangerous when put to its intended or customary purpose, and (4) the defendant
knew or should have known that the product could create a danger when used in its
intended or customary manner.” Campbell v. Robert Bosch Power Tool Corp., 795
F. Supp. 1093, 1097 (M.D. Ala. 1992) (discussing failure to warn under the
AEMLD); see Bean v. BIC Corp., 597 So. 2d 1350, 1353 (Ala. 1992) (“The
manufacturer of a product which may be reasonably anticipated to be dangerous if
used in a way which [it] should reasonably foresee it would be used is under a duty
to exercise reasonable care to give reasonable and adequate warnings of any
dangers known to [it], or which in the exercise of reasonable care [it] should have
known and which the user of the product obviously could not discover.”).
Here, the crux of Easterling’s failure-to warn claim is that Ford “had a
reason to know that the [RNS4G] buckle creates a danger when a consumer inserts
the latch as intended” but “issued no warnings of any kind[.]” (Doc. 85 at 34).
Easterling argues that Ford should have issued a recall or warning regarding the
“pushbutton-related faults” that allegedly continued after Ford recalled a
predecessor design of the RNS4G buckle in 2001. (Id.) Ford contends that it is
entitled to summary judgment on this claim because Easterling has not provided
substantial evidence that Ford had a duty to warn about the alleged hazard or that
35

Ford knew or should have known of problems with false latches of the RNS4G
buckle due to fractured button return springs. (Doc. 87 at 8-10). Again, the court
agrees with Ford.
As the court has noted throughout this opinion, Easterling’s core allegation
in this case is that his seat belt buckle unlatched during the crash of his vehicle
because the buckle’s plastic button return springs fractured at some point during
the ten-year period after the vehicle was sold and failed to provide adequate force
to return the button to its home position, which allowed for the inadvertent release
of the latch plate when he crashed the vehicle. In other words, the buckle was not
“substantially unaltered” when Easterling used it on the day of the crash; rather, it
had a fractured component part. Because the buckle’s “imminently dangerous”
condition resulted from an alteration of the product, Easterling cannot establish
that Ford had a duty to warn him about the danger. See Campbell, 795 F. Supp. at
1097.
As concerns Easterling’s reliance on Ford’s 2001 recall of a predecessor
design of the RNS4G buckle and Ford’s knowledge of “pushbutton-related faults”
that continued after the recall, Easterling concedes that (1) his buckle was not part
of the 2001 recall, (2) the 2001 recall did not involve fractured button return
springs, and (3) the post-recall “faults” involved contamination within the buckle.
(See Doc. 84 at 7-8 (“[T]here is no clear indication that this [recall] problem was
36

occurring due to fractured button return springs … and it is agreed that the buckle
at issue was not one subject to the recall.”); Doc. 85 at 17 (“There is clearly
evidence … that the problem of a non-returning button and unintended unlatching
continued into the design period past the Ford RNS4G recall, and that Ford
continued to investigate those problems, which [it] eventually attributed to
‘contamination’ and ‘sticky, gooey’ substances. … [T]here is substantial evidence
that the button return fault [in Easterling’s buckle] is attributed directly to the
defective, broken springs—and there is certainly no evidence of ‘sticky, gooey’
contamination in the subject buckle.”)). None of the evidence related to the 2001
recall and any post-recall issues would have put Ford on notice of problems
associated with fractured button return springs so as to trigger a duty to warn.
Accordingly, Easterling’s failure-to-warn claim fails as a matter of law, whether
the claim is predicated on the AEMLD, negligence, or wantonness.14
CONCLUSION
Based on the above, Ford’s motion to exclude the opinions of Donald R.
Phillips (doc. 40) is due to be GRANTED; Ford’s motion to strike Phillips’s
“newly disclosed” expert opinion and related testing (doc. 89) is due to be
14

Easterling’s wantonness claim also fails for the additional reason that Easterling has not
presented any substantial evidence that Ford, “with reckless indifference to the consequences,
consciously did some wrongful act or omitted some known duty with knowledge of the existing
conditions, and that this act or omission” caused his injury. Joseph v. Staggs, 519 So. 2d 952,
954 (Ala. 1988); ALA. CODE § 12-21-12(a). Wantonness demands proof of “some degree of
conscious culpability,” and Easterling has not met this standard. George v. Champion Ins. Co.,
591 So. 2d 852, 854 (Ala. 1991) (citation omitted).
37

GRANTED; and Ford’s motion for summary judgment (doc. 38) is due to be
GRANTED in its entirety. A separate order consistent with this opinion will be
entered.
DATED, this 29th day of March, 2018.

_________________________________
JOHN E. OTT
Chief United States Magistrate Judge

38