BULLOCK et al v. Volkswagen Group of America Inc et al

Filing 192

ORDER denying 177 Motion for Judgment as a Matter of Law; denying 179 Motion to Alter Judgment; denying 180 Motion for Judgment as a Matter of Law; denying 182 Motion for New Trial. Ordered by US DISTRICT JUDGE CLAY D LAND on 02/02/2016. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
CHERYL BULLOCK and KEVIN
BULLOCK,

*
*

Plaintiffs,
*
vs.
*
VOLKSWAGEN GROUP OF AMERICA,
INC., VOLKSWAGEN AG, and
HONEYWELL INTERNATIONAL, INC.,

CASE NO. 4:13-CV-37 (CDL)

*
*

Defendants.
*
O R D E R
A jury consisting of a teacher, a businesswoman, an IT
manager, a retired Army veteran, a fast food crew chief, a sales
manager,

a

technician,

social
a

worker,

retail

a

web

customer

developer

service

and

computer

representative,

a

microbiology supervisor, and a home health care aide, returned a
verdict

awarding

Plaintiff

Cheryl

Bullock

$7,000,000

for

personal injuries she suffered in a wreck that they found was
caused by a design defect in a Honeywell turbocharger in Mrs.
Bullock’s Volkswagen Passat vehicle.

This jury of six women and

five men, three blacks and eight whites, also awarded Cheryl
Bullock’s husband, Kevin, $1,000,000 for loss of consortium.1
Defendants ask this Court to negate the collective wisdom of

1

One juror
emergency.

was

excused

during

deliberations

due

to

a

personal

these

representatives

of

the

community.

Because

Defendants

failed to point to any error of law and because the verdict was
not

against

the

great

weight

of

the

evidence,

Defendants’

motions for judgment as a matter of law and for a new trial (ECF
Nos. 177, 180, 182) are denied.
After

the

jury

returned

its

verdict,

the

Court

reduced

Plaintiffs’ damages based on Georgia’s comparative fault statute
because the jury found that Mrs. Bullock was forty percent at
fault in causing the wreck.

See generally Bullock v. Volkswagen

Grp. of Am., Inc., No. 4:13-CV-37 (CDL), 2015 WL 5319791 (M.D.
Ga.

Sept.

11,

2015)

(hereinafter

“Bullock

II”).

The

Court

reduced Mrs. Bullock’s damages of $7 million to $4.2 million and
reduced Mr. Bullock’s damages of $1 million to $600,000.
*3.

Id. at

Plaintiffs ask the Court to reconsider that decision and

alter the judgment to award the entire amount of the jury’s
verdict.

As discussed below, that motion (ECF No. 179) is also

denied.
DISCUSSION
I.

Defendants’ Motions
A.

Legal Standards

The Court may only grant Defendants’ renewed motions for
judgment as a matter of law if the jury did “not have a legally
sufficient evidentiary basis to find for” the Bullocks.
Civ. P. 50(a)(1).

Fed. R.

In ruling on a motion for judgment as a

2

matter of law, the Court must “examine the evidence in a light
most favorable to” the Bullocks.

Cook ex rel. Estate of Tessier

v. Sheriff of Monroe Cty., 402 F.3d 1092, 1114 (11th Cir. 2005).
The Court may grant Defendants’ motions for judgment as a matter
of law only if “the facts and inferences point overwhelmingly in
favor of” Defendants, “such that reasonable people could not
arrive at a contrary verdict.”

Id. (quoting Mendoza v. Borden,

Inc., 195 F.3d 1238, 1244 (11th Cir. 1999)).
The Court may grant Defendants’ motions for a new trial if
(1) the verdict was against the great weight of the evidence,
Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 131213 (11th Cir. 2013), or (2) the Court committed “substantial
errors in admission or rejection of evidence or instructions to
the jury,” Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251,
(1940).
B.

The Trial Record

Mrs. Bullock testified that while she was driving her 2004
Volkswagen

Passat

in

a

normal

manner,

it

accelerated

unexpectedly from seventy miles per hour to ninety miles per
hour, and she was unable to bring it under control by removing
her foot from the accelerator while also applying the brakes.
As she attempted to bring the Passat under control, she struck
another vehicle that was parked in the emergency lane.

Her

Passat then flipped down an embankment and came to rest on its

3

roof.

Mrs. Bullock suffered serious injuries from the crash,

including fractured vertebrae in her neck, a head injury, broken
bones, and multiple soft tissue injuries.

Her past medical

expenses were stipulated to be $679,000.

She also presented a

life

economic

care

plan

and

other

testimony

of

damages

in

support of a future damages claim exceeding $1 million.
In addition to Mrs. Bullock’s testimony that her Passat
accelerated
presented

unintentionally
expert

testimony

and

uncontrollably,

and

Honeywell’s

Plaintiffs

own

internal

documents to prove that the vehicle accelerated uncontrollably
because

of

turbocharger

a

design
in

her

defect

in

Passat.

the

Honeywell

Plaintiffs’

model

theory

GT1749V
is

that

excessive oil leaked through a seal in the turbocharger into the
engine and caused a surge of unintended acceleration.

Although

Defendants obligatorily list every theoretically possible basis
for judgment as a matter of law or a new trial, their primary
complaint is that the Court should not have allowed testimony
from Plaintiffs’ two experts (Lee Hurley and Mark Hood) and that
the Court should not have admitted certain Honeywell internal
documents.
1.

Hurley’s Trial Testimony

Before trial, the Court denied Defendants’ Daubert motion
that sought to exclude Lee Hurley’s expert testimony.

Bullock

v. Volkswagen Grp. of Am., Inc., 107 F. Supp. 3d 1305, 1313

4

(M.D. Ga. 2015) (hereinafter “Bullock I”).

As the Court noted

in that Order, expertise gained by experience can be a powerful
thing.2
on

an

Id. at 1308 (distinguishing between legitimate reliance
expert

based

upon

his

vast

experience

and

ipse

dixit

(“believe it solely because I said it”), a ubiquitous phrase in
modern day Daubert motions to attack the opinions of an expert).
Hurley’s vast experience in automobile mechanics provides him
with special expertise to testify about the issues related to
the

engine

and

turbocharger

in

Mrs.

Bullock’s

Passat.

His

description of that experience to the jury at trial confirmed
the

Court’s

hearing.

evaluation
That

of

his

experience

qualifications

provided

at

Hurley

the

with

Daubert
reliable

principles and methods that he used to support his opinions in
this case.

Accordingly, to help the jury understand some of the

technical issues presented, the Court permitted the jury to hear
Hurley’s testimony under Federal Rule of Evidence 702.
Hurley, who has

more than

forty

years

of

experience in

motor vehicle engine mechanics, owns a specialty machine shop
and

full

Before

service

starting

automobile
his

own

business

business

in
in

Birmingham,
1971,

Hurley

Alabama.
was

a

maintenance instructor in the United States Army, where he did
2

To illustrate the point, the Court made what is likely the first ever
comparison of an auto mechanic to Diomede from Virgil’s ancient epic
poem The Aeneid. Bullock I, 107 F. Supp. 3d at 1308. As explained in
that Order, Virgil understood that the Latians should accept Diomede’s
advice to avoid war because Diomede had extensive personal experience
with war—experto credite (“believe the expert”). Id.

5

mechanical work on Army helicopters.

After being discharged

from the Army, Hurley did mechanical work for several legendary
NASCAR drivers, including Buddy Baker, Bobby Allison, and Neil
Bonnett.
garage,

Neil Bonnett actually worked for Hurley, sweeping the
when

Bonnett

was

fifteen

years

old.

Bonnett

later

became a NASCAR driver, and Hurley did mechanical work for him.
Hurley was also a NASCAR driver and drove a factory race car in
the mid-1960s until he was involved in a serious accident in
1969.

After that accident, Hurley decided he would rather work

on race cars than drive them.

Trial Tr. vol. II, 236:1-237:11

(ECF No. 165)
Hurley worked as Bobby Allison’s crew chief doing chassis
and engine work on his race car.

He built engines for several

different Chrysler group race cars.
builder, fabricator, and crew chief.
built included turbochargers.

He was a NASCAR mechanic,
Some of the engines he

When Hurley first established his

business in 1971, he built a lot of diesel turbocharged engines.
While they were primarily commercial vehicles, Hurley continued
his

experience

with

diesel

turbocharged

engines

when

his

traditional automobile customers brought their vehicles to his
shop for repairs.

He has also developed vehicle components for

some of the largest motor vehicle manufacturers.
239:12.

Id. at 237:12-

One of Hurley’s specialties through the years has been

to inspect vehicle parts and diagnose problems with those parts.

6

Hurley

has

done

turbochargers.

such

inspections

on

diesel

engines

with

Id. at 239:24-240:1.

In addition to his hands-on experience, Hurley has taken
many

automotive

technicians

at

training
his

shop,

classes.
including

And
NAPA

he

trains

Autocare

other

employees.

This training includes identifying problems with diesel engines
and

turbochargers.

technician.

He

is

also

a

certified

Rolls

Royce

Id. at 240:16-20.

Hurley spends little time testifying as an expert witness—
maybe one to ten percent of his time.

He spends the rest of his

time in his garage. Id. at 241:14-23.

He clearly has expertise

in motor vehicle engines, including the building of them, the
rebuilding of them, the diagnosing of problems with them, and
the fixing of them.

This expertise covers engine components

including diesel turbochargers.
Hurley inspected Mrs. Bullock’s Passat and its components.
He observed that the MAP sensor was “dripping with oil. And this
is a component that should not have any oil on it. It could have
some wetting on it, but it wouldn’t be dripping.”
11, 19-24.

Id. at 249:8-

The fact that the sensor was dripping with oil “told

[Hurley] that there was excessive oil in the intake system.”
Id. at 253:8-10.

Hurley also observed wet oil on the hoses that

connect to the intercooler.

Id. 253:17-20.

7

On

his

second

inspection,

Hurley

saw

that

the

plastic

crossover pipe that comes from the turbocharger intercooler was
“dripping oil” even though it should not have been.
261:23-262:9.

And

on

his

third

inspection,

Id. at

when

the

turbocharger was disassembled, Hurley observed that neither the
catalytic converter nor the tailpipe had “oil soaking on it.”
Id. at 265:1-4.

Based on that observation, Hurley concluded

“that whatever created the enhanced power on the engine was at a
balance

point

that

was

enough

to

create

power,

but

not

necessarily create excessive oil that would have gone out the
tailpipe.”

Id.

at

265:5-8.

And

when

Hurley

reviewed

photographs of the Passat’s component parts, he observed wet oil
that was pooled “in the bottom” of the turbo inlet—where it is
not normal to have “dripping oil.”

Id. at 280:5-18.

In addition to his inspection of Mrs. Bullock’s Passat,
Hurley purchased a

2004

Volkswagen Passat that had the same

engine and turbocharger as Mrs. Bullock’s Passat, as well as
similar mileage, tires, and automatic transmission.

When Hurley

drove the exemplar vehicle, he felt the engine surge.

Hurley

acknowledges that he tried to create a run-on event or surge by
running the car at full throttle at different gears, which is
not something a normal driver would do.

After this test, when

Hurley took the vehicle back to his shop to inspect it, he “took
a

turbo

hose

off

of

the

intercooler

8

and

. . .

oil

actually

flowed out of it.”

Id. at 268:11-24.

Based on his inspection,

Hurley determined that the oil had collected over a long period
of time.
the

He also concluded that the only source of the oil was

turbocharger

and

ventilation system.

could

not

have

been

Id. at 270:3-9, 17-24.

the

crankcase

Hurley cleaned all

of the hoses and inspected the rest of the car; then he road
tested it and did not experience any further problems.
Hurley ran a series of tests on the exemplar Passat using a
dynamometer to determine if oil in the turbocharger’s intake
system would enhance the power to the diesel engine.

In one of

his runs, Hurley “injected engine oil into the inlet side of the
pipes that feed the engine,” and that test resulted in increased
horsepower and increased torque.
test,

Hurley

concluded

“that

Id. at 274:4-9.

any

type

of

oil

Based on that
in

the

intake

system would enhance the power that the diesel engine would
make.”

Id. at 275:16-18.

He was unable to complete further

tests because his testing ultimately broke the exemplar’s motor.
Hurley

also

conducted

inversion

testing

to

determine

whether inverting the car would cause oil to accumulate in areas
where he found it “dripping” on Mrs. Bullock’s Passat.
“rotisserie,”

Hurley

inverted

the

exemplar

vehicle

Using a
for

“30

minutes to several hours,” and he “did not experience any oil
that ran out of the inlet side of the engine.”

9

Id. at 282:4-12.

Finally, Hurley reviewed Defendants’ testing on an exemplar
vehicle.

He testified that this testing confirmed that added

oil enhanced the performance of the engine and that the amount
of

oil

Defendants

used

in

their

testing

destroyed

the

turbocharger and thus emitted a plume of smoke through the tail
pipe.

Id. at 284:14-286:2.
Based on all of his inspections and testing, Hurley opined

that the amount of oil that he saw on the crossover pipes and in
the

intake

Bullock’s

system

accelerate.

enough

produce

Passat

was

more

to

make

power,

Id. at 286:13-20.

the

causing

engine
the

of

Mrs.

vehicle

He also observed that the brakes

were “burned-up” and that the rotor was “blue from heat.”
at 248:15-20.
Passat

had

suggest

not

failed,
at

that

Id.

And he noted that if the brakes on Mrs. Bullock’s

Id.

occurred.

to

the

the

wreck

286:21-23.
brakes

were

probably

Although
defective,

would

Plaintiffs
they

did

not

have

did

not

present

evidence that Mrs. Bullock applied prolonged pressure to the
brakes while the engine continued to accelerate, which arguably
is consistent with the condition of the brakes described

by

Hurley.
2.

Hood’s Trial Testimony and the Honeywell Reports

From Hurley’s testimony, a reasonable jury could conclude
that any unintended acceleration of the Passat was likely due to
excess oil migrating from the turbocharger to the engine.

10

But

Hurley gave no expert testimony as to whether that happened
because

of

Plaintiffs

a

design

relied

on

defect
Mark

in

the

Hood,

a

Honeywell
materials

turbocharger.
engineer

experience in failure analysis, to make that connection.

with
Hood

is a professional engineer, and he has specialized in materials
engineering

and

materials

failure

analysis

for

thirty

years.

Hood conducts forensic analyses to determine whether a product’s
design contributed to its failure to perform its function.

In

this case, Hood reviewed the turbocharger removal and teardown
photos, examined the turbocharger components of Mrs. Bullock’s
Passat, reviewed documents produced by Honeywell, reviewed other
literature, and examined exemplar turbocharger components.

He

also reviewed Mrs. Bullock’s testimony describing the wreck and
relied on Hurley’s expert opinion that there was excessive oil
in the turbocharger and that excessive oil in the turbocharger
could cause unintended acceleration.

Based on what he reviewed

and examined, Hood opined that the Passat’s turbocharger was
defective because it allowed oil to leak past the compressor end
seal.

He

also

opined

that

a

feasible

alternative

design

existed.
In reaching his conclusions, Hood relied extensively on two
Honeywell internal reports.
Phillippe

Noelle

entitled

Analysis and Improvement.

First, Hood relied on a report by
GT15

Platform

Compressor

Oil

Seal

Daubert Hearing Ex. List Attach. 6,

11

Noelle Report (Nov. 10, 2000), ECF No. 84-6.

The purpose of the

Noelle Report was “to document the GT15 compressor oil seal
analysis

and

turbocharger
platform.
“simple

improvement.”
on

Mrs.

Id.

Bullock’s

at

2

Passat

¶

was

2.
part

The
of

GT1749V
the

GT15

The Noelle report noted that the GT15 platform used a

design

of

compressor

spacer and a piston ring.”

seal”

consisting

Id. at 2 ¶ 4.

“of

a

thrust

Several different

designs, including a single-piston ring design, were tested in
several applications and at different pressures.

See Trial Tr.

vol. III 110:2-5, ECF No. 166 (noting that design 1.1 in the
Noelle report is a single-piston ring design like the design of
the

compressor

seal
tested

in

Mrs.

in

a

Bullock’s

Passat).

three-cylinder

John

First,
Deere

the

designs

were

diesel

engine.

Based on those tests, which revealed leaks at all three

pressure levels tested, Noelle concluded that the “current seal
design used in production for all GT15 platform turbocharger
leaks prematurely.”
“oil

deflector”

Noelle Report 5.

improved

“the

sealing

In contrast, adding an
capability,”

and

there

were no leaks with the design that included a deflector plate
and an enhanced slinger design.
Next,

the

designs

Id.

were

tested

in

a

three-cylinder

Volkswagen diesel engine of 1.2-liter displacement and using a
GT1441 turbocharger.
as did design # 2.1.

Design # 1.1 leaked in five of five tests,
Id. at 6.

12

The report noted: “The oil

leaks are due to the fact that the turbocharger is not correctly
matched for the engine even if the engine is motoring.”

Id.

The report also noted that the turbocharger normally used with
the Volkswagen diesel engine was a VNT1541 and that when the
test was run with the VNT unit, there was no leak with design #
1.1.

Id.

The Noelle report concluded, “It is possible to

improve the current GT15 platform compressor oil seal design by
adding an oil deflector between the back-plate and the thrust
bearing with or without a slinger”—though the back-plate and
thrust spacer would need to be modified.
Hood

also

Compressor
Guidelines.

End

relied
Seal

on

a

report

by

Design

Review

and

with

“to

Diaa

Hosny

entitled

Preliminary

Design

Daubert Hearing Ex. List Attach. 5, Hosny Report

(Jan. 9, 2001), ECF No. 84-5.
was

Id. at 2 ¶ 3.

summarize

compressor

Garrett

end

design guidelines.”

seal

The purpose of the Hosny report

Engine
leakage

Id. at 1.

Boosting
and

to

Systems
provide

experience
preliminary

The report describes the basic

concept of a piston ring end seal and the tests for qualifying
compressor end seals.

The report notes that the GT15 platform

standard design “will be vulnerable when applied to applications
that run extensively at idle such as agricultural applications.”
Id. at 4.

The Hosny report also references the Noelle report

and notes that adding a deflector plate and slinger led to an
improvement in seal performance.

13

Id.

And the report recommends

that a “deflector plate design may be needed . . . to improve
seal capability.”

Id. at 7.

other alternative designs.

The Hosny report also discusses

Id.

Based on these two reports, Hood opined that Honeywell knew
that

seal

leakage

turbochargers,

was

that

it

a

problem

sought

in

GT15

platform

identify

to

its

ways

to

test

compressor seals, and that it looked for alternative designs to
correct seal leakage issues.

Hood concluded that even though

some of the testing in the Noelle report was on a John Deere
diesel engine and not a car engine, the tests showed potential
leakage issues that could occur in turbochargers in general.
Trial Tr. vol. III 109:6-16.
tests

in

the

qualification

Noelle
tests

He also determined that all of the

report,

on

car

including

engine

the

compressor

turbochargers,

showed

seal
that

“the seal design on all of the GT15 will leak prematurely in
these -- under the test conditions.”
concluded

that

the

Hosny

report

Id. at 113:2-8.
established

And Hood

guidelines

for

improving the performance of the compressor seal.
After

Hood

determined

that

the

two

Honeywell

reports

established that there were issues with compressor seal leaks in
the GT15 platform and that Honeywell had recommended guidelines
for fixing the problem, Hood examined a turbocharger like the
one in Mrs. Bullock’s Passat.

He found that there was room for

a deflector plate and an enhancement of the slinger, and he

14

opined that it would have been a relatively simple change.
at

106:15-107:14.

Honeywell’s

representative,

Gavin

Id.

Donkin,

confirmed that a deflector plate could have been put on the
GT1749V turbocharger but was not because Honeywell determined
that it was not needed in that application.

Trial Tr. vol. VI

234:6-235:15, ECF No. 169.
3.

What Else the Jury Heard

Defendants
replica

engine

called

their

brought

own

experts.

They

into

the

courtroom,

also

and

their

had

a

trial

representative walked the jury through how that engine worked.
Members of the jury were able to see and touch it.

They also

heard an explanation of how this particular turbocharger was
developed and how it was supposed to work.

Defendants were able

to explain what the Honeywell documents meant, why they were
prepared and why they did not apply to passenger cars.

And

Defendants put up evidence to support their theory of the case,
which was that Mrs. Bullock had an epileptic seizure that caused
her to lose control of the Passat.
C.

Testimony of Plaintiffs’ Experts

Defendants’ central contention is that the Court erred in
allowing

Hurley

methodology

was

and

Hood

to

give

not

sufficiently

opinions

reliable.

because

their

As

Court

the

previously observed, the Court’s gatekeeping role under Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 579 (1993)

15

requires the Court to determine whether an expert’s testimony is
sufficiently reliable to be presented to a jury.

Bullock I, 107

F. Supp. 3d at 1309-10 (citing United States v. Frazier, 387
F.3d 1244, 1260 (11th Cir. 2004) (en banc)).

The Court must

ensure that an expert “employs in the courtroom the same level
of

intellectual

expert

in

(quoting

the

the

that

relevant

Kumho

(1999)).

rigor

Tire

characterizes

field.”

Co.

v.

the

Frazier,

Carmichael,

practice

387
526

F.3d
U.S.

of

at

an

1260

137,

152

To allow the testimony to be considered by the jury,

Court

must

find

that

“it

is

properly

grounded,

well-

reasoned, and not speculative.” Id. at 1262 (quoting Fed. R.
Evid. 702 advisory committee notes (2000 amends)).
the

Court

will

again

consider

whether

the

Therefore,

testimony

of

Plaintiffs’ experts was sufficiently reliable.
1.

Mark Hood

As discussed above, Hood concluded that the turbocharger in
Plaintiffs’ Passat was defective based on his examination of the
components and the seal, his review of the reports, and Hurley’s
expert opinion that there was excessive oil in the turbocharger.
He also opined that Honeywell should have added a deflector
plate and modified the slinger in its design.
Defendants’ main argument is that Hood did not use reliable
engineering
complaint

is

principles
that

to

Hood,

form
without

16

his

opinion.

conducting

Their
any

chief

independent

testing of turbochargers like the one in Mrs. Bullock’s Passat,
relied on the Hosny and Noelle reports to explain why Hurley
found excessive oil in the turbocharger.

Hood testified that he

relied on the two reports and that experts in the engineering
field rely on these types of reports in conducting materials
failure analyses.

But Defendants contend that no reasonable

engineer could rely on the Hosny and Noelle reports to reach the
conclusions

Hood

did—that

the

seal

design

used

in

the

GT15

platform had certain vulnerabilities and needed modification—
mainly because the Hosny and Noelle reports did not test the
precise turbocharger model at issue in this case in a passenger
car

application.

Defendants

point

out

now,

as

they

did

at

trial, that the Noelle report tested turbochargers in tractor
engines and on cars where the turbocharger was not correctly
matched for the engine.
repeated

with

a

They emphasize that when the tests were

turbocharger

equipped

with

variable

nozzle

technology—like Mrs. Bullock’s turbocharger had—the tests did
not reveal leaks.

And they argue that the alternative designs

were intended for different turbocharger designs in different
applications.
Hood explained why these distinctions did not alter his
opinion that the turbocharger seal in the Passat was defectively
designed.

While the applications in the reports may have been

different,

the

seals

there

were

17

the

same.

And

in

Hood’s

opinion, the same deficiencies that allowed the leaks documented
in

the

Noelle

and

Hosny

Honeywell turbocharger.

reports

existed

in

the

Passat’s

Defendants were able to cross-examine

Hood thoroughly on his opinions and to point out all of the
perceived flaws in his rationale to the jury.

The Court finds

that Defendants’ criticisms of Hood’s opinions go to the weight
of Hood’s testimony, not its admissibility.
Defendants also criticize Hood because he did not test any
alternative designs to see (a) how much less oil would get into
the air intake system with the alternative design and (b) if the
alternative design would work in a 2004 Passat.

Rather, as

discussed

on

above,

Hood’s

design

testimony

relied

design

features that were tested as documented in the Noelle report and
were recommended in the Hosny report.

Based on the testing

documented in the Noelle report, the addition of a deflector
plate and enhancement of the slinger eliminated leaks through
the

compressor

seal.

And

when

Hood

examined

a

GT1749v

turbocharger, he found that there was room for a deflector plate
and an enhancement of the slinger.
would

have

Honeywell’s

been

a

relatively

representative

Thus, he opined that it

simple

confirmed

change

that

a

to

add

them.

deflector

plate

could have been put on the GT1749V turbocharger.
own

research

deflector

and

plate

testing

would

essentially

prevent

oil

18

Honeywell’s

established

seepage

through

that
the

the
seal

better

than

the

turbocharger.
testing

was

current

design

of

the

Honeywell

Passat

Hood’s reliance on Honeywell’s own research and
reasonable,

and

his

failure

to

conduct

his

own

testing does not render his methodology unreliable.
Finally, Defendants contend that Hood did not conduct a
risk-utility

analysis

to

determine

whether

the

in

the

turbocharger’s design outweigh the utility derived from it.

The

jury was properly instructed on the risk-utility factors.

See

Trial Tr. vol. VII 94:18-96:20, ECF No. 170.

risks

The jury heard

evidence to support a conclusion that the risk of an oil leak
such

as

that

catastrophic
evidence

described

by

consequences.

from

which

they

Hurley

Members
could

and
of

Hood

the

could

have

also

heard

conclude

that

jury

reasonably

Honeywell knew of a simple alternative design that its testing
showed would have eliminated the oil leak.

The Court finds that

Hood’s testimony should not be disregarded simply because he may
not have expressly stated that he performed a “risk utility
analysis.”
In

summary,

the

Court

finds

that

it

did

not

err

in

admitting Hood’s testimony.
2.
Defendants

Lee Hurley
attack

Hurley’s

opinion

that

excessive

oil

existed in the intake system of the turbocharger and that such
excessive oil can cause an unintended increase in power to the

19

engine.

They

argue

that

Hurley

did

not

employ

reliable

methodology because he did not measure the exact amount of oil
in the intake system of Mrs. Bullock’s Passat or do a precise
comparison of the amount of oil found in Mrs. Bullock’s Passat
to the amount of oil normally found in that part of similar
vehicles.

Hurley found that the amount of oil was so excessive

that there was no need to do a precise measurement.

The issue

was not whether an extra drop of liquid from a pipette catalyzed
a

chemical

reaction.

Rather,

Hurley’s

observation

that

the

amount of oil he saw was excessive was based on the fact that he
saw enough oil to coat the components and drip off of them even
though, based on his many years of experience as a mechanic who
worked on turbochargers, there should not have been dripping oil
in that area of the engine.
Defendants also argue that Hurley’s testing on the exemplar
Passat was unreliable.

Defendants point out that while Hurley

testified that he had conducted between thirty and forty runs on
the dynamometer, he preserved the data for only two of those
runs, including the run during which he injected oil into the
inlet side of the pipes that feed the engine.

The Court finds

that Hurley’s failure to preserve the data for the remainder of
the runs does not render his methodology unreliable; it simply
suggests

that

those

runs

did

not

result

in

a

run-on

event.

Defendants also highlight that Hurley did not videotape any of

20

the tests and did not record how much oil he injected into the
engine during the run that resulted in enhanced power to the
engine.

Hurley explained his methodology in a way that enabled

Defendants to understand what he did so that Defendants’ experts
could try to replicate his tests if they wished to do so.
Defendants

further

assert

that

Hurley

improperly

extrapolated causation from his tests on the exemplar.

First,

Defendants contend that Hurley’s road test should be ignored
altogether because Hurley admitted that he tried to create a
run-on event by running the car at full throttle in different
gears to put some heat in the intake system and pull oil out of
the

intercooler—something

a

normal

driver

would

never

do.

According to Hurley, the test was simply to determine if he
could create a run-on event during the road test.

After the

test, Hurley observed that that oil flowed out of one of the
hoses off the intercooler.

Second, Defendants point out that

Hurley did not explain how much oil was needed to accelerate
from seventy miles per hour to ninety miles per hour for sixty
seconds.

Hurley

testified

that

based

on

his

dynamometer

testing, oil injected into the inlet side of the pipes that feed
the engine could enhance power to the engine.

He also explained

that the intercooler in Mrs. Bullock’s Passat was dripping with
oil.
the

And he testified that the only source of that oil was from
turbocharger.

Thus,

according

21

to

Hurley,

if

the

jury

believed Mrs. Bullock’s testimony that her car ran away from her
on the day of the wreck, the most likely cause of the unintended
acceleration was an oil leak from the turbocharger.
Defendants also contend that Hurley did not express his
opinions

to

probability.

a

reasonable

degree

of

scientific

certainty

or

Hurley stated that based on his inspection, his

testing, and his experience as a mechanic, Mrs. Bullock’s car
had oil on the crossover pipes in the intake system, that it
came from a source other than the crankcase ventilation system,
and that “it was enough oil to gather up in the intercooler and
under the conditions that this particular car experienced that
day, was enough to enhance the fuel flow into the engine to make
the engine produce more power.”
The

Court

is

satisfied

that

Trial Tr. vol. II 286:13-20.

although

Hurley,

who

the

Court

observes is not a professional witness, did not use the magic
words

“to

a

reasonable

degree

of

scientific

certainty,”

his

testimony as a whole establishes that he held his opinions to
the requisite degree of certainty required under the law.
one in that courtroom was confused.

No

He clearly opined that,

based on his extensive expertise and his inspection, the most
likely cause of the unintended acceleration that Mrs. Bullock
says she experienced was an oil leak from the turbocharger.
Defendants also criticize Hurley because he testified that
he drained the exemplar car’s oil before he ran the inversion

22

test.

Hurley testified that he drained the oil, cleaned the

hoses, serviced the car, and then road tested it to make sure it
ran properly before he put it on the rotisserie.

While neither

side nailed down this issue at trial, Hurley presumably refilled
the engine oil before he drove the car.
Defendants

argue

that

even

if

Hurley’s

methodology

was

sufficiently reliable, it was prejudicial to admit his testing
on the exemplar vehicle because the test conditions were not
substantially similar to the conditions Mrs. Bullock experienced
on the day of the wreck.

Thus, they contend that the evidence

should have been excluded under Rule 403 of the Federal Rules of
Evidence.

Defendants’ argument suggests that Hurley’s testing

was a misleading attempt to re-enact Mrs. Bullock’s wreck under
different

conditions.

reenactment.

Hurley’s

But

it

tests

on

was
the

not

intended

exemplar

to

were

be

for

a
the

purpose of determining whether oil in the turbocharger’s intake
system would enhance the power to the diesel engine.

It was

never a secret that the conditions of the exemplar tests were
under

different

conditions

than

Mrs.

Bullock’s

wreck,

Defendants were able to highlight that fact to the jury.

and
The

probative value of Hurley’s exemplar testing is not outweighed
by a danger of unfair prejudice, confusion of the issues, or
misleading the jury.

23

In

summary,

the

Court

finds

that

it

did

not

err

in

admitting Hurley’s testimony.
D.

Defendants’ Other Objections

Defendants also contend that they should be granted a new
trial because (1) the Court erred in admitting the Hosny and
Noelle reports, (2) the verdict was against the great weight of
the evidence, and (3) Plaintiffs’ counsel made improper comments
during his closing argument.
1.

Hosny and Noelle Reports

Defendants contend that the Hosny and Noelle reports are
irrelevant to the issues in this case and that the Court should
have excluded them.

Essentially, Defendants maintain that these

reports related to turbochargers that were different than the
one in Mrs. Bullock’s Passat and described operating conditions
different than those experienced by Mrs. Bullock.

The Court

found the type of turbocharger referenced in the reports to be
sufficiently similar given that it was from the same platform as
the turbocharger in Mrs. Bullock’s Passat.

The Court further

found that while the operating conditions may not have been the
same,

the

fact

their

operation,

sufficiently

that
the

probative

the

turbochargers

risk
for

of
an

which
expert

showed
could
witness

leakage

be
to

during

reduced,
be

able

was
to

testify about the contents of the reports and for the reports to
be admitted, particularly when the expert witness testified that

24

these types of reports are generally relied on by experts in the
field.

The

proper

way

to

distinguish

the

situation

in

the

reports from the present case was not by hiding it from the jury
but

through

witnesses

cross

who

examination

could

explain

and
what

testimony
the

from

reports

Defendants’

really

meant.

Defendants had this opportunity.
Specifically,

the

Noelle

report

recorded

instances

of

compressor seal leakage in Honeywell turbochargers in the GT15
platform.

And

the

Hosny

report

fixing the leakage problem.
trial,

that

the

Hosny

and

recommended

guidelines

for

Defendants argue, as they did at
Noelle

reports

show

that

GT15

turbochargers may leak when tested on agricultural engines or
mismatched automobile engines but do not show that they may leak
on automobile engines like the one in Mrs. Bullock’s Passat.
Defendants

also

argue

that

the

Noelle

reports

prove

that

turbochargers equipped with variable nozzle technology do not
leak because the tests on the Volkswagen engine did not reveal a
leak

when

the

single-piston

ring

design

was

tested

with

a

variable nozzle technology turbocharger.
The Court finds, as it did at trial, that the two reports
are relevant to the issue of defective design.

They relate to

the GT15 platform of turbochargers, and the turbocharger in Mrs.
Bullock’s

Passat

was

part

of

that

platform.

Defendants

emphasize that the Noelle report tested GT15 turbochargers on

25

tractor engines or on mismatched car engines.

And Defendants

stress that while the Hosny report states general conclusions
about

the

GT15

platform’s

design

vulnerabilities,

the

only

specific mention of leaks involving a Honeywell turbocharger on
a Volkswagen engine relates to the GT12 turbocharger, which is
not

part

of

the

GT15

platform.

These

distinctions—which

Defendants had an opportunity to highlight to the jury—do not
mean that the reports are irrelevant to the issues in this case.
The reports are relevant to Defendants’ knowledge of the risk of
leakage, the ability to avoid that risk with another design, and
the feasibility of an alternative design.
cross-examined Plaintiffs’

Defendants vigorously

witnesses on the distinctions, and

they explained to the jury why the documents should be given
little weight.
The Court also finds that the probative value of the two
reports was not substantially outweighed by the danger of unfair
prejudice,

confusion

of

the

issues,

or

misleading

the

jury.

Defendants argue that Plaintiffs’ experts read portions of the
reports in a way that was misleading.

Defendants had a chance

to cross-examine those experts and to call their own experts to
explain the documents.

And the members of the jury had an

opportunity to read the documents for themselves.

For all of

these reasons, the Court finds that the Hosny and Noelle reports
were properly admitted.

26

2.

The Weight of the Evidence

The last refuge for any good lawyer seeking protection from
the mighty hand of a jury is the plea for a “re-do” because the
verdict

was

against

the

great

weight

of

the

evidence.

But

sometimes good lawyers lose, and when the evidence supports the
jury verdict, the Court can’t step in to provide shelter.
The Court rejects Defendants’ argument that the jury did
not have enough evidence to determine whether the risk presented
by the alleged defect in the turbocharger outweighed the utility
of that particular design.

The jury was properly instructed on

the risk-utility factors.

See Ct.’s Instrs. to the Jury, Trial

Tr. vol. VII 94:18-96:16.

And, as discussed above, the jury had

enough

evidence

to

conclude

that

the

risks

outweighed

the

benefits of the design given the relatively simple alternative
design Honeywell knew about.
The Court also rejects Defendants’ argument that there was
a lack of evidence on causation.

First, Mrs. Bullock testified

that her car accelerated uncontrollably and that she could not
slow it down.
testing

by

Hurley testified, based on his testing (and the

Defendants’

experts),

that

excessive

oil

in

the

intake system could enhance power to the engine and create an
unintended

acceleration

event.

He

also

testified

that

he

observed excessive, “dripping” oil in the intake system of Mrs.
Bullock’s Passat, which was enough to enhance fuel flow into the

27

engine and make the engine produce more power.

And he noted

that the brakes on Mrs. Bullock’s Passat had failed.

Thus, if

the jury believed Mrs. Bullock’s testimony that her car ran away
from her on the day of the wreck even though she was pressing
the

brake

pedal,

establish

that

then
the

Hurley’s

most

testimony

likely

cause

was
of

sufficient
the

to

unintended

acceleration was an oil leak from the turbocharger.
Defendants

contend

that

their

experts’

testing

revealed

that the injection of diesel oil into a vehicle’s intake system
would not result in increased power but would result in plumes
of dark smoke.
Defendants’

Hurley addressed this point and testified that

testing

confirmed

that

added

oil

enhanced

the

performance of the engine but that the amount of oil Defendants
used

in

their

testing

destroyed

the

turbocharger

and

thus

emitted a plume of smoke through the tail pipe.
Defendants

next

argue

that

the

evidence

conclusively

established that Mrs. Bullock did not apply the brakes and that
Mrs. Bullock’s testimony regarding the events leading up to the
wreck was thus implausible.

While there was evidence, including

eyewitness testimony from the Stewarts, that Mrs. Bullock did
not use the brakes, there was also evidence from which a jury
could conclude that she did: Mrs. Bullock testified that she
applied the brakes, the driver of the truck whose brake lights
the Stewarts claimed to see did not have his foot on the brakes,

28

and Mrs. Bullock’s orthopedist testified that her injuries were
consistent with Mrs. Bullock having her foot on the brake pedal
at the time of the wreck.
Finally,

Defendants

overwhelmingly

contend

established

that

that

Mrs.

the

Bullock

evidence

suffered

from

a

complex partial seizure at the time of the wreck and that is
what caused the wreck.

Defendants vigorously fought to prove

this theory of the case.

But there was also evidence from which

the

conclude

that

Mrs.

time

the

wreck,

jury

seizure

could
at

the

of

Bullock

did

including

not
Mrs.

suffer

a

Bullock’s

testimony that she did not have a seizure and the testimony of
the medical personnel who did not diagnose Mrs. Bullock with a
seizure or treat her for one.

And there was evidence from which

the jury could find that Mrs. Bullock only suffered from tonicclonic seizures—not complex partial seizures—before the wreck.
In summary, the jury’s verdict was not against the great
weight of the evidence.
3.

Plaintiffs’ Allegedly Improper References

Defendants

contend

that

Plaintiffs’

counsel

elicited

improper testimony from Hood regarding an issue with GM ignition
switches.
ignition

Hood did testify about his work on the GM Cobalt
switch

qualifications.

litigation

as

part

of

his

Trial Tr. vol. III 64:11-17.

background

and

When Defendants

objected to further discussion of the issue based on relevance,

29

the Court sustained the objection.

Id. at 137:16-23.

The Court

finds that Hood’s limited reference to the GM ignition switch
issue did not impair the jury’s consideration of the case.
BankAtlantic
1467,

1474

whether

a

v.

Blythe

(11th
jury

Eastman

Cir.

1992)

verdict

Paine
(“The

should

be

Webber,

Inc.,

standard

set

aside

for
as

955

See
F.2d

determining
a

result

of

misconduct of counsel is whether the conduct was ‘such as to
impair gravely the calm and dispassionate consideration of the
case by the jury.’”) (quoting Allstate Ins. Co. v. James, 845
F.2d 315, 318 (11th Cir. 1988)).
Defendants

also

argue

that

Plaintiffs’

improper statements in his closing argument.
referenced the GM ignition switch issue.
73:12-16.
counsel

When

to

stick

Defendants
to

the

objected,

evidence.

counsel

made

First, counsel

Trial Tr. vol. VII
the

Id.

Court

at

admonished

73:21-22.

This

reference did not impair the jury’s consideration of the case.
Defendants

also

note

that

Plaintiffs’

counsel

asked

the

jury to tell Defendants that their conduct was unacceptable and
that he hoped the jury would tell Defendants “that that’s not
right.”

Id. at 86:21-87:8.

Defendants’ counsel immediately

objected, and the Court stated, “there’s not a punitive damage
claim in this case. What the jury has got to determine is if
they find there was a defect and it caused the wreck what the
amount

of

compensatory

damages

30

should

be

under

the

law

to

compensate the plaintiffs.”

Id. at 87:11-15.

The Court further

noted that nothing in the jury’s verdict “should send a message
with

regard

to

this

product

damages claim in the case.”

because

there’s

Id. at 87:18-20.

not

a

punitive

Then, the Court

instructed the jury:
Your decision in this case must be based only on the
evidence that was presented here in the courtroom. You
must not be influenced in any way by either sympathy
or prejudice in this case. You cannot base your
decision on sympathy for or prejudice against anyone.
You must follow the law as I explain it, even if you
do not agree with that law, and you must follow all of
my instructions as a whole. You cannot single out or
disregard any of my instructions on the law.
Id. at 88:14-21.

The Court further instructed:

In considering the issue of damages, you’re instructed
that you should assess the amount that you find to be
justified by a preponderance of the evidence as full,
just, and reasonable compensation for all of the
plaintiffs’ damages, no more and no less. Compensatory
damages are not allowed as a punishment and must not
be imposed or increased to penalize the defendants.
That’s what I want to make sure that you understand
there’s no claim here for punitive damages that exist
in some cases where you award damages to punish a
defendant, to send a message to a defendant. That is
not this case. This case is a claim for compensatory
damages to compensate the plaintiff for their injuries
if
you
find
that
the
defendants
are
legally
responsible.
Id. at 98:10-22 (emphasis added).
its

instructions

cured

any

The Court is satisfied that

problem

statement.

31

created

by

counsel’s

E.

Summary

In summary, the Court finds that it did not err by allowing
the testimony of Hurley and Hood and by admitting the Hosny and
Noelle reports.

The Court further finds that the verdict was

not

great

against

the

weight

of

the

evidence

and

that

the

Court’s instructions to the jury cured any problem created by
Plaintiffs’

counsel’s

remarks

during

closing

argument.

For

these reasons, Defendants are not entitled to judgment as a
matter of law or a new trial.3
II.

Plaintiffs’ Motion to Amend the Judgment
Plaintiffs

reduce

their

ask

the

damages

Court

based

to

on

reconsider

the

jury’s

its

decision

finding

to

that

Mrs.

Bullock was forty percent at fault in causing the wreck.

The

Court previously found that Georgia’s comparative fault statute,
O.C.G.A. § 51-12-33, applies to all actions “brought against one
or more persons for injury to person or property” and “provides
no exception for actions based on a theory of strict liability.”

3

In their motions, Defendants also listed two other reasons for
granting a new trial:
(1) Plaintiffs’ alleged failure to prove that
their Passat was in the same or substantially the same condition at
the time of the wreck as it was when it left Defendants’ possession
and control; and (2) the evidence was insufficient to support the
damages awarded.
The Court notes that Defendants did not argue in
support of these positions in their briefs, and therefore, have likely
waived them.
But even if Defendants did not waive these arguments,
the Court finds that Plaintiffs presented sufficient evidence to
uphold the jury verdict. Given the limited discussion of these issues
in Defendants’ briefs, the Court finds little reason to expand this
Order to address thoroughly issues that Defendants deemed worthy of so
little attention.

32

Bullock II, 2015 WL 5319791, at *2.

To reach that conclusion,

the Court relied on the plain language of the statute and the
Georgia Supreme Court’s analysis in

Couch v. Red Roof Inns,

Inc., 291 Ga. 359, 364-65, 729 S.E.2d 378, 383 (2012).

In

support of their present motion to amend, Plaintiffs cite dicta
from Patterson v. Long, 321 Ga. App. 157, 741 S.E.2d 242 (2013)
and the non-binding case of Hernandez v. Crown Equipment Corp.,
Civil Action No. 7:13-CV-91 (HL), 2015 WL 4067695 (M.D. Ga. July
2, 2015).

The Court considered those cases in deciding its

previous

Order

and

rejected

Plaintiffs’

argument

that

they

should bind the Court here.
After
damages,

the

the

Court

issued

Georgia

Supreme

its

Order

Court

reducing

decided

Plaintiffs’

Walker

v.

Tensor

Machinery Ltd., 779 S.E.2d 651, 652 (Ga. 2015), which further
supports the Court’s conclusion.

In that case, the Georgia

Supreme Court reaffirmed its holding in Zaldivar v. Prickett,
297 Ga. 589, 603, 774 S.E.2d 688, 699 (2015) and concluded that
O.C.G.A. § 51-12-33(c) allows a “jury to assess a percentage of
fault

to

the

non-party

employer

of

a

plaintiff

who

sues

a

product manufacturer and seller for negligence in failing to
warn about a product danger, even though the non-party employer
has

immunity

under”

Georgia’s

Walker, 779 S.E.2d at 652.
“a

meritorious

affirmative

Workplace

Compensation

Act.

The Georgia Supreme Court noted that
‘defense

33

or

immunity

may

cut

off

liability, [but] a tortfeasor is still a tortfeasor, and nothing
about his defense or immunity’ means that he was not at fault by
his commission of a tort that was the proximate cause of the
plaintiff’s injury.”

Id. at 653-54 (alteration in original)

(quoting Zaldivar, 297 Ga. at 597, 774 S.E.2d at 695).

Walker

bolsters the Court’s finding that the comparative fault statute
applies

to

product

defect

actions

asserted

under

a

strict

liability theory and “that the Georgia courts are likely to hold
that Georgia’s comparative fault statute requires a reduction in
Mr. Bullock’s loss of consortium claim based on the percentage
of Mrs. Bullock’s fault.”
For

all

of

these

Bullock II, 2015 WL 5319791, at *3.

reasons,

Plaintiffs’

Motion

to

Amend

the

Judgment is denied.
CONCLUSION
This case is not as complicated as counsel or this Court’s
much too lengthy Order would suggest.

Mrs. Bullock says that as

she operated her Passat vehicle on an open road, it accelerated
although she made no driver input to cause the acceleration.
She

further

says

that

as

she

removed

accelerator, the car did not slow down.

her

foot

from

the

A distinguished and

experienced mechanic examined the Passat after the wreck and
found

excessive

oil

dripping

in

areas

of

turbocharger from which oil should not drip.

the

engine

and

The amount and

location of that oil was consistent with it leaking from the

34

turbocharger

area

in

a

manner

turbocharger should prevent.
can

cause

described

an
by

acceleration
Mrs.

Bullock

that

the

design

of

the

Allowing oil to leak as it did
event

consistent

because

extra

unintentionally provided to the engine.

with
fuel

the
is

one
being

The likely reason that

the oil leaked where it did, according to an expert on design
failure, is that the seal was not properly designed.

The cover

to the opening was not adequate to prevent oil from seeping
through

it.

According

to

their

own

internal

documents,

Honeywell knew how to design a seal that would likely prevent
the seepage of oil through the opening.

Had Honeywell simply

used the type of turbocharger seal design that it uses on other
turbochargers it manufactures, the leak likely would not have
occurred.

And had the leak not occurred, there would not have

been an acceleration event.

Without the acceleration event,

Mrs. Bullock would not have lost control of her vehicle.

The

evidence in this case does not demand that a jury make these
findings, but it certainly supports their decision to do so.
When considering motions accompanied by scholarly briefs
with exhaustive citations to the transcript and legal authority,
it is sometimes easy, amidst that mound of paperwork and in the
cloistered environment of a judge’s chambers, to lose sight of
what happened here.

Citizens from varied walks of life were

summonsed to a courtroom.

They took an oath to listen to the

35

evidence, follow the law, and render a verdict that spoke the
truth.

They heard witnesses, they saw witnesses, and they sized

up witnesses.

They touched evidence including an engine and

component parts with oil still left from the day of the wreck.
They were instructed that certain witnesses could give their
opinions, but as with any other witness, they did not have to
accept those opinions as true or accurate.
sides of the technical issues.

They heard both

They witnessed thorough and

sifting cross examinations, the best tool for ferreting out the
credible from the incredible.

They were instructed on the law.

And they made a unanimous decision, a decision that this Court
finds was supported by ample evidence and a decision that should
not be disturbed.
are denied.

Defendants’ motions (ECF Nos. 177, 180, 182)

Plaintiffs’ motion to alter the judgment (ECF No.

179) is likewise denied.

IT IS SO ORDERED, this 2nd day of February, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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