BULLOCK et al v. Volkswagen Group of America Inc et al
Filing
86
ORDER denying 49 Motion to Exclude Witness; denying 50 Motion in Limine; denying 51 Motion in Limine; denying 52 Amended Motion; granting in part and denying in part 53 Motion for Summary Judgment; denying 54 Motion to Strike ; granting in part and denying in part 56 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 05/11/2015. (CGC)
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
In Virgil’s ancient epic poem The Aeneid, Diomede advises
the
Latians
to
avoid
war
based
on
his
personal
experience.
Virgil uses the phrase experto credite (“believe the expert”) in
the original version to explain why Diomede should be believed.1
Like many product liability actions, liability in this case
depends on which parties’ experts are believed.
Since the days
of Virgil, particularly in the federal courts, some have grown
skeptical
of
those
personal experience.
who
base
their
expertise
on
their
own
Many modern day lawyers and judges would
scoff at Diomede’s suggestion of experto credite.
They would
likely label his attempt to support his opinion that war should
1
Virgil, Aeneid, bk. XI, l. 283. See The Works of Virgil: Translated
into
English
Prose
vol.
II
at
381
(1821),
available
at
https://books.google.com/books?id=JBA-AQAAMAAJ&pg=PP1
(last
visited
May 7, 2015).
be avoided based on his first-hand experiences in war with the
oft-quoted Daubert motion favorite—expert opinion evidence must
be rejected when the foundation of the opinion is the ipse dixit
of the expert (“believe it solely because I said it”).2
This
skepticism
have
multiple
arises
advanced
especially
degrees
when
or
an
expert
maintain
an
does
not
up-to-the-minute
curriculum vitae on his web site; but instead bases his opinion
primarily
Plaintiff’s
on
personal
experts,
experience.
Lee
Hurley,
In
is
mechanic with over 40 years experience.
this
a
case,
veteran
one
of
automobile
He may be no Diomede,
but he confirms the wisdom of Virgil’s observation that oldfashioned first-hand experience can be a powerful thing.
Before reaching the merits of the pending motions, a few
additional
observations
about
the
pervasive
use
motions in modern day litigation are appropriate.
of
Daubert
Much of the
Daubert-related skepticism of expert testimony arises in part
from an apparent concern that ordinary citizens are incapable of
evaluating the credibility of some types of opinion evidence.
Thus, we have anointed the omniscient judge as the gatekeeper to
determine what opinions a jury should and should not hear.
2
The
See Black’s Law Dictionary, ipse dixit (10th ed. 2014) (translating
ipse dixit as “he himself said it” and defining the phrase as
“Something asserted but not proved”); Gen. Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997) (“[N]othing 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.”).
2
gatekeeper role originated over concerns about “junk science,”
but some have expanded it to decide cases on the merits based on
an
assessment
that
the
expert’s
opinion
is
not
credible.
Allowing such credibility assessments to lock the gate to the
jury box removes decisions traditionally best left to the common
sense and varied life experiences of a properly instructed jury.
Although
the
gatekeeping
Court
function,
certainly
it
has
must
be
a
duty
careful
to
to
perform
its
recognize
the
distinction between excluding evidence based on skepticism as to
its believability (an assessment to be made by the jury) and
excluding evidence because it is not reasonably reliable (a job
for the judge).
In some cases, this distinction becomes blurred
and is difficult to ascertain.
Plaintiffs
Kevin
and
This is not such a case.
Cheryl
Bullock
filed
this
product
liability action against Defendants Volkswagen Group of America,
Inc., Volkswagen AG, and Honeywell International, Inc., alleging
that the Honeywell turbocharger in their 2004 Volkswagen Passat
was defective.
They contend that as a result of the defective
turbocharger, the vehicle suddenly and unintendedly accelerated,
causing Mrs. Bullock to lose control of it.
The car left the
roadway and flipped, and Mrs. Bullock suffered injuries from the
crash.
She seeks to recover damages for her personal injuries;
her husband seeks damages for loss of consortium.
To prove that
the turbocharger was defective and contributed to the crash,
3
Plaintiffs
rely
on
two
expert
witnesses:
Lee
Hurley,
an
automotive mechanic with over 40 years of experience; and Mark
Hood, a materials engineer.
The Court finds that Plaintiffs’ experts are sufficiently
qualified
and
their
opinions
are
adequately
reliable
and
adjusted to the facts of this case such that a jury should hear
their opinions and decide whether to believe them.
Accordingly,
for
this
the
reasons
Defendants’
explained
motions
to
in
the
exclude
remainder
the
of
testimony
of
experts (ECF Nos. 49, 50, 51, & 52) are denied.
testimony,
along
with
other
evidence
in
the
Order,
Plaintiffs’
Because that
record,
creates
genuine factual disputes as to Defendants’ liability in this
case, Defendants’ summary judgment motions (ECF Nos. 53 & 56)
are also denied in large part.
Plaintiffs’ motion to exclude
one of Defendants’ experts (ECF No. 54) is also denied.
DISCUSSION
I.
Defendants’ Daubert Motions
A.
Standard for the Admissibility of Expert Opinions
Under Federal Rule of Civil Procedure 702, the Court must
serve as the gatekeeper “to keep out irrelevant or unreliable
expert testimony.”
United States v. Ala. Power Co., 730 F.3d
1278,
Cir.
1282
(11th
2013)
(citing
Kumho
Tire
Co.
v.
Carmichael, 526 U.S. 137, 145 (1999) and Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 596
4
(1993)).
“This gatekeeping
role, however, is not intended to supplant the adversary system
or
the
role
of
the
jury:
vigorous
cross-examination,
presentation of contrary evidence, and careful instruction on
the burden of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.” Id. at 1282 (internal
quotation marks omitted).
In evaluating the admissibility of expert testimony under
Rule 702, the Court must consider 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 . . .; and (3)
the testimony assists the trier of fact . . . to understand the
evidence or to determine a fact in issue.”
United States v.
Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc).
Many
cases,
that
particularly
those
involving
opinion
testimony
relies on the scientific method, cite the traditional factors
that courts should consider when determining whether an expert’s
methodology is sufficiently reliable: “(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
error
rate
of
the
technique;
and
(4)
whether
the
technique is generally accepted in the scientific community.”
Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1327 (11th Cir. 2014)
(per
curiam).
These
factors,
5
of
course,
represent
a
non-
exhaustive list and “‘do not constitute a definitive checklist
or test.’” Id. (quoting Kumho Tire, 526 U.S. at 150).
those
factors
may
help
in
assessing
the
“While
reliability
of
scientific or experience-based expert testimony, the district
court's ‘gatekeeping inquiry must be tied to the facts of a
particular case.’”
Id. (quoting Kumho Tire, 526 U.S. at 150).
In
role,
its
gatekeeping
the
Court’s
focus
must
be
on
the
reliability of the testimony, not simply whether it fits within
the narrow confines of lawyer-urged litmus tests.
While “‘each
stage of the expert’s testimony [must] be reliable, . . . each
stage must [also] be evaluated practically and flexibly without
bright-line exclusionary (or inclusionary) rules.’”
Frazier,
387 F.3d at 1262 (quoting Heller v. Shaw Indus., Inc., 167 F.3d
146, 155 (3d Cir. 1999)).
Although it is certainly appropriate
in some cases to scrutinize “‘how often an engineering expert’s
experience-based methodology has produced erroneous results, or
whether such a
engineering
method is generally accepted in the relevant
community. . .,
it
will
[likewise]
at
times
be
useful to ask even of a witness whose expertise is based purely
on experience . . . whether his preparation is of a kind that
others in the field would recognize as acceptable.’”
1262 (quoting Kumho Tire, 526 U.S. at 151).
Id. at
The Court’s goal is
to ensure that an expert “‘employs in the courtroom the same
level of intellectual rigor that characterizes the practice of
6
an expert in the relevant field.’” Id. at 1260 (quoting Kumho
Tire, 526 U.S. at 152).
“Sometimes the specific [traditional]
Daubert factors will aid in determining reliability; sometimes
other questions may be more useful.”
Id. at 1262.
To allow the
testimony to be considered by the jury, the Court must find that
“‘it is properly grounded, well-reasoned, and not speculative.’”
Id.
(quoting
Fed.
R.
Evid.
702
advisory
comm.
note
(2000
amends)).
B.
Lee Hurley
Lee Hurley is a motor vehicle mechanic.
mechanic for more than forty years.
He has been a
Hurley has worked with all
kinds of engines, including turbocharged diesel engines like the
one
in
Mrs.
diagnosed
designed
Bullock’s
unintended
a
solution
Passat.
Hurley
acceleration
to
fix
a
has
events
problem
in
investigated
cars,
with
and
and
he
unintended
acceleration in prior model Volkswagen turbocharged engines.
In this case, Hurley intends to explain how a turbocharged
engine works and how oil migrates through the engine.
He also
intends to explain the basis for his opinion that oil seeped
through the turbocharger’s compressor seal and ultimately into
the Passat’s engine, creating an unintended acceleration event.
To reach his conclusions, Hurley relied on his experience as a
mechanic, his inspections of the Passat and its components, and
7
his testing of an exemplar Volkswagen Passat that had the same
turbocharged diesel engine as Mrs. Bullock’s Passat.
Based on Hurley’s affidavits, expert report, and Daubert
hearing testimony, Hurley has extensive experience inspecting,
evaluating, testing, and diagnosing engine problems, as well as
building,
servicing,
repairing,
designing,
and
modifying
automotive engines—including turbocharged diesel engines.
Based
on Hurley’s experience, the Court finds that he is qualified to
testify about the matters he intends to address.
Defendants contend that even if Hurley is qualified to give
an expert opinion in this case, his opinion is not based on
reliable
methodology
and
should
therefore
be
excluded.
Defendants argue that Hurley’s opinion is nothing more than an
ipse dixit assessment, i.e., my opinion is reliable because I am
an expert and I say that it is.
mischaracterize
the
nature
and
Defendants misunderstand and
basis
of
Hurley’s
opinions.
Hurley formed his opinions by observing the physical evidence,
testing
an
exemplar
vehicle,
experience in the field.
and
drawing
on
his
extensive
That is not an ipse dixit assessment.
Hurley personally reviewed the available physical evidence—
Mrs.
Bullock’s
Passat—and
observed
excessive
indicating a leak from the turbocharger seal.
amounts
of
oil
Hurley explained
that while he did not conduct a precise measurement of the oil,
he knew based on his skill and experience that the amount of oil
8
he saw where he saw it was excessive.
Moreover, evidence of the
excess oil remains on the component parts of the vehicle and can
be shown to the jury as the jury evaluates Hurley’s opinions.
He explained why the failure to measure the excessive oil down
to
the
closest
reliability
gram
of
his
or
milliliter
conclusion.
does
Hurley
not
diminish
the
also
stated
that
reasonable mechanics of similar experience and knowledge would
reach the same conclusion based on generally accepted principles
of
automotive
mechanics
and
on
Volkswagen’s
representations
regarding how much oil should be in the turbocharger and the
intake hoses.
A
multi-page,
Latin-titled
listing
of
every
degree
ever
received and every seminar ever attended does not always qualify
someone as an expert witness.
Nor does an opinion necessarily
have to be unduly complicated to be reliable.
Hurley has spent
his entire life since age seven in a garage.
automobiles—listening
to
owners’
complaints,
He has studied
examining
their
vehicles, diagnosing what is wrong with them, and then devising
a
plan
to
fix
turbochargers.
them.
Hurley
has
torn
He has seen how they work.
down
engines
and
He has personally
encountered the very problems that allegedly existed in Mrs.
Bullock’s Passat.
He has observed how excessive oil escaping
from a turbocharger can create an accelerant for the engine,
producing unintended acceleration.
9
He did not learn this by
doing a Google search or by being in front of a blackboard (or
smartboard).
He experienced it.
His classroom was the garage.
He explained how his examination of the vehicle after the crash
supports his opinions.
Essentially, he opines that no more than
a de minimis amount of oil should escape from the turbocharger
because
excess
oil
can
create
unintended acceleration.
an
accelerant
that
can
cause
And he found substantially more than
de minimis oil in an area where it could only have been found if
there
was
a
substantial
leak
from
the
turbocharger.
He
eliminated the other possible sources of the oil and concluded
the most likely source was the
turbocharger’s
seal.
Hurley
adequately explained how his own personal experience led him to
his
conclusions
and
why
those
opinions
are
reliable.
Cf.
Frazier, 387 F.3d at 1261 (noting that a “witness must explain
how [his] experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and how that
experience is reliably applied to the facts”).
Quite frankly,
only a zealous advocate (or perhaps an arrogant judge) could
maintain with a straight face that the person who they would
likely
first
visit
if
they
had
a
problem
with
a
vehicle
accelerating unintentionally and who they would likely depend on
to diagnose and correct the problem would nevertheless not fall
within the class of persons who could testify before a jury on
that same subject matter.
10
Although Hurley’s opinions are not entirely dependent on
some of his testing in this case, the Court finds it appropriate
to address that testing to facilitate the admissibility of that
evidence at trial.
Hurley
conducted testing on an exemplar
Volkswagen Passat with the same turbocharged diesel engine as
Mrs. Bullock’s.
He inverted the exemplar vehicle to determine
whether the oil may have spilled from the crankcase ventilation
tube while Mrs. Bullock’s Passat was inverted, contributing to
the excessive oil he found.
Hurley concluded that this test
supported his opinion that the crankcase ventilation tube was
not the source of the excessive oil.
And while he acknowledged
that the crankcase ventilation tube could be the source of a
very small amount of oil, he explained why it was unlikely that
the
excessive
oil
he
observed
came
from
the
crankcase
ventilation tube.
In addition to his inversion test, Hurley also ran tests on
the exemplar vehicle to corroborate his experience-based opinion
that an unintended acceleration event could occur if engine oil
leaked into the intake.
the
use
of
an
Based on those tests, which involved
instrument
called
a
dynamometer,
Hurley
demonstrated that the engine could continue to run on engine oil
added directly into the intake while the engine was running but
while
the
engine
operator input.
was
not
mechanically
accelerated
through
Defendants’ chief complaint about this testing
11
is that Hurley did not provide sufficient data so that his tests
could be recreated.
Hurley, however, provided Defendants with
“turbo boosts, the RPM, accelerometer data, the load cell, the
speeds, the torque, and the engine horsepower.”
2, ECF No. 67-12.
factors.
Hurley Aff. 1-
And he used standard dynamometer correction
The Court is satisfied that Hurley has established
that his dynamometer methodology is sufficiently reliable to be
presented to a jury.
Finally,
Defendants
boldly
proclaim
that
conclusions are contrary to the laws of physics.
Hurley’s
But Hurley
reasonably explained how the oil moved as he says it did.
e.g.,
Hurley
thorough
and
Aff.
2.
Defendants
sifting
may
cross-examination
certainly
of
engage
Hurley,
but
See,
in
a
their
hyperbole does not support the wholesale exclusion of Hurley’s
testimony.
the
See Ala. Power Co., 730 F.3d at 1282 (distinguishing
Court’s
role
as
gatekeeper
from
the
jury’s
role
as
factfinder).
In
addition
to
their
reliability
objections,
Defendants
argue that Hurley’s testimony does not “fit” the case and would
not be helpful to the jury.
requires
inquiry.”
a
valid
“Rule 702’s ‘helpfulness’ standard
scientific
connection
Daubert, 509 U.S. at 591-92.
to
the
pertinent
Defendants contend that
Hurley’s opinions are irrelevant because he testified during his
12
deposition that he did not think there was a design defect in
the Passat:
Q: Did you in your work in this case see what you
considered to be a design defect in the Bullock
Passat?
A: I wouldn’t cite it as the design defect, but there
were all other alternatives to methods of turbocharger
that would have decreased the potential of this
runaway.
Hurley Dep. 59:16-23, ECF No. 52-1.
Taken in the context of his
entire testimony, it is clear that Hurley is of the opinion that
the turbocharger’s compressor seal failed and allowed oil to
migrate
into
acceleration
the
Passat’s
event.
That,
engine
and
along
create
with
an
evidence
unintended
of
a
safer
feasible alternative design (which is discussed in more detail
below), is enough to let a jury decide whether a design defect
caused Mrs. Bullock’s wreck.
In sum, the Court finds that Lee Hurley should be permitted
to offer his expert opinions in this case.
Defendants’ motions
to exclude him (ECF Nos. 49, 50, & 52) are therefore denied.
C.
Mark Hood
Mark Hood is a materials engineer.
He is a professional
engineer, and he has specialized in materials engineering and
materials failure analysis for thirty years.
conducts
design
forensic
contributed
Defendants
assert
analyses
to
that
its
Hood
to
determine
failure
is
13
not
to
In that role, Hood
whether
perform
qualified
a
product’s
its
function.
to
render
any
opinions
regarding
the
alleged
failure
of
the
turbocharger
compressor seal in this case because he is not a turbocharger
designer and has not previously examined the precise type of
turbocharger at issue in this case.
But Hood presents evidence
that he is experienced in automotive component analysis and has
significant experience with aviation turbochargers, which have
the same basic design as automotive turbochargers.
Based on
Hood’s expert report and Daubert hearing testimony, the Court
finds that he is qualified to testify regarding the matters he
intends to address.
Hood
intends
to
explain
that
the
purpose
of
the
turbocharger compressor seal is to prevent oil from leaking past
it.
He
intends
to
explain
that
his
inspection
of
the
turbocharger components revealed two reasons why oil leaked past
the compressor seal: a single piston ring design and service
wear on the compressor seal.
He ultimately concludes that the
turbocharger in Mrs. Bullock’s Passat was defective because it
failed and allowed oil to leak past the compressor seal.
Hood
also intends to explain that Honeywell was aware of problems
with
compressor
economically
end
feasible
seal
leaks
and
alternative
that
designs
there
that
were
safer,
would
have
reduced the likelihood of a compressor end seal leak in Mrs.
Bullock’s Passat.
experience
as
a
To reach his conclusions, Hood relied on his
materials
engineer,
14
his
inspections
of
the
Passat and its components, and Honeywell’s documentation about
the family of turbochargers that included the one at issue here.
Defendants assert that Hood’s testimony should be excluded
because it merely parrots the opinions of Hurley.
Based on
Hood’s expert report and Daubert hearing testimony, the Court
finds that Hood’s opinions are based on his independent failure
analysis
articulate
of
the
why
turbocharger.
his
Defendants
methodology—inspecting
do
the
not
Passat
clearly
and
its
components and reviewing the available documentation—is flawed.
Rather, Defendants focus on the conclusions Hood reached in his
failure analysis and argue that his opinion must be rejected
because they say he (1) mistakenly identified an assembly mark
on the compressor end seal as evidence of service wear and (2)
misinterpreted the Honeywell documents he relied on in reaching
his conclusions.
Hood’s
service
The Court finds that the disputes about one of
wear
findings
and
his
interpretation
of
the
Honeywell documents go to the weight of the evidence, not its
admissibility.
Defendants may certainly address these arguments
on cross-examination.
In sum, the Court finds that Mark Hood should be permitted
to offer his expert opinions in this case.
Defendants’ motion
to exclude him (ECF No. 51) is therefore denied.
15
II.
Defendants’ Summary Judgment Motions
A.
Summary Judgment Standard
Summary judgment may be granted only “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.”
Civ. P. 56(a).
In determining whether a
genuine
Fed. R.
dispute of
material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant
or necessary to the outcome of the suit.
Id. at 248.
A factual
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
B.
Id.
Factual Background
Viewed
in
the
light
most
favorable
to
Plaintiffs,
the
record reveals the following.
On September 5, 2011, Mrs. Bullock was driving her Passat
on Georgia Highway 1 in Stewart County, Georgia.
According to
Mrs. Bullock, she was driving normally when, all of a sudden and
without warning, her Passat accelerated uncontrollably.
Mrs.
Bullock took her foot off the accelerator and pressed the brakes
all the way to the floor, but the car continued to accelerate.
In sixty seconds, the car accelerated from 70 miles per hour to
16
90 miles per hour and then collided with a truck that was parked
in the emergency lane.
The car rolled over at least two-and-a-
half times and came to rest on its roof.
Mrs. Bullock was
injured as a result of the collision.
C.
Analysis
Defendants argue that all of Plaintiffs’ claims fail as a
matter of law.
As discussed in more detail below, the Court
finds that genuine factual disputes exist and preclude summary
judgment
on
Plaintiffs’
design
defect
and
failure
to
warn
claims.
Plaintiffs concede that their claim for wantonness fails,
so Defendants are entitled to summary judgment on that claim.
And Plaintiffs did not respond to Defendants’ summary judgment
motion on their failure to recall/retrofit claim; therefore, the
Court finds that Plaintiffs abandoned that claim, and Defendants
are entitled to summary judgment on it.
Cf. Ford Motor Co. v.
Reese, 300 Ga. App. 82, 85, 87, 684 S.E.2d 279, 283-85 (2009)
(noting that “Georgia common law does not impose a continuing
duty
upon
manufacturers
to
recall
their
products”
unless
“special circumstances” exist).
1.
Design Defect Claims
Under Georgia law, a product design is defective if “the
risks inherent in a product design [outweigh] the utility or
benefit derived from the product.”
17
Banks v. ICI Ams., Inc., 264
Ga. 732, 734, 450 S.E.2d 671, 673 (1994).
The trier of fact
generally decides whether the risk of harm outweighs the utility
of a design.
In making that determination, the factfinder may
consider: (1) “the usefulness of the product;”, (2) “the gravity
and
severity
likelihood
of
of
the
that
danger
posed
danger;”
by
(4)
the
“the
design;”
(3)
avoidability
of
“the
the
danger;” (5) “the manufacturer’s ability to eliminate the danger
without
impairing
the
product’s
usefulness
or
making
it
too
expensive;” and (6) “the feasibility of spreading the loss in
the price or by purchasing insurance.” Dean v. Toyota Indus.
Equip. Mfg., Inc., 246 Ga. App. 255, 259, 540 S.E.2d 233, 237
(2000).
Defendants contend that Plaintiffs’ design defect claims
fail because (1) Hurley never opined that the turbocharger is
defective, (2) Plaintiffs did not present sufficient evidence of
a
feasible
runaway
alternative
event,
incidents
that
(3)
design
Plaintiffs
involved
a
that
did
car
would
not
with
have
prevented
establish
the
same
any
the
similar
engine
and
turbocharger as Plaintiffs’, and (4) Plaintiffs cannot exclude
the
reasonable
possibility
that
the
wreck
was
caused
by
something other than a defect in the turbocharger compressor end
seal.
First, Defendants pounce on Hurley’s reluctance to describe
the problem he witnessed as a design “defect.”
18
See Hurley Dep.
59:16-23, ECF No. 52-1.
on
whether
there
is
Whether a design defect exists depends
sufficient
evidence
for
a
reasonable
factfinder to conclude that the risk of the design outweighed
its benefit.
The essence of Hurley’s testimony is that the
turbocharger’s compressor seal failed and allowed oil to migrate
into the Passat’s engine and create an unintended acceleration
event.
happen.
He clearly stated that this should not be allowed to
Engineer Hood opines that a safer alternative feasible
design existed.
The jury can consider Hurley’s opinions, along
with Hood’s engineering opinions and the other evidence, and
decide whether a design defect exists without Hurley expressly
labeling his findings as a design defect.
Second, Defendants contend that Plaintiffs did not present
sufficient, admissible evidence of a feasible alternative design
that
would
have
prevented
the
alleged
runaway
event.
This
argument ignores Hood’s testimony, which the Court has refused
to exclude.
alternative
Hood opines that a safer, economically feasible
design
existed
before
Mrs.
Bullock’s
Passat
was
manufactured and that the alternative design would have reduced
the
likelihood
of
an
unintended
acceleration
event.
That
opinion is based on Hood’s inspection of the Passat and its
components, as well as his review of Honeywell’s documentation
regarding problems with the turbocharger compressor end seal in
the family of turbochargers that included the one at issue here.
19
The Court is satisfied that sufficient evidence exists on this
issue to be considered by a jury.
Third, Defendants argue that Plaintiffs did not establish
any similar incidents that involved a car with the exact same
engine and turbocharger as Plaintiffs’.
They appear to contend
that without any reported similar incidents, Plaintiffs cannot
establish that there was a significant likelihood of danger, so
the risk of injury cannot outweigh the utility of the design as
a matter of law.
Again, the risk-utility factors are generally
to be weighed by the trier of fact.
540 S.E.2d at 237.
Dean, 246 Ga. App. at 259,
There is sufficient evidence for the jury to
conclude that Defendants were aware of compressor seal leakage
in Honeywell turbochargers like the one in Mrs. Bullock’s Passat
but did not employ a safer, economically feasible alternative
design.
Fourth, Defendants assert that Plaintiffs cannot exclude
the reasonable possibility that something other than a defect in
the turbocharger compressor end seal caused the wreck, such as
oil
that
leaked
from
the
crankcase
ventilation
tube.
But
Hurley’s testimony, if believed, supports a finding that the
excessive oil Hurley observed in the turbocharger and intake
hoses came not from the crankcase ventilation tube but from a
leak in the turbocharger compressor end seal.
20
In sum, if a jury believes Plaintiffs’ experts, the jury
would be authorized to conclude that a design defect in the
Passat’s turbocharger compressor end seal caused the wreck that
injured Mrs. Bullock.
2.
Failure to Warn Claim
Defendants argue that Plaintiffs’ failure to warn claims
are not supported by the evidence because Plaintiffs did not
present
an
expert
inadequate.
to
testify
that
Defendants’
warnings
were
The crux of Plaintiffs’ failure to warn claim is
that Defendants knew about compressor seal leakage in Honeywell
turbochargers like the one in Mrs. Bullock’s Passat but did not
either
(1)
design
or
employ
(2)
a
warn
safer,
economically
consumers
compressor seal leakage.
of
the
feasible
risks
alternative
associated
with
In general, a manufacturer breaches
its duty to warn by “(1) failing to adequately communicate the
warning
to
the
ultimate
user
or
(2)
failing
to
adequate warning of the product’s potential risks.”
provide
an
Camden Oil
Co. v. Jackson, 270 Ga. App. 837, 840, 609 S.E.2d 356, 359
(2004).
The issue here is not whether an existing warning was
adequately
worded
or
placed,
which
could
under
circumstances require expert testimony to resolve.
whether a warning should have been given at all.
contend
that
Defendants
provided no warning.
knew
of
risks
with
the
certain
The issue is
Plaintiffs
design
but
A jury can understand this issue without a
21
warnings expert.
The Court declines to grant summary judgment
on Plaintiffs’ failure to warn claim.
III. Plaintiffs’ Daubert Motion
Plaintiffs
Radtke,
a
seek
to
exclude
board-certified
the
testimony
neurologist
who
of
opines
Dr.
Rodney
that
Mrs.
Bullock suffered an epileptic seizure that caused her to drive
erratically
just
prior
to
the
wreck.
Radtke
reviewed
the
following:
Mrs. Bullock’s medical history; the police report
about the accident; and the sworn deposition testimony of Mrs.
Bullock,
the
eyewitnesses
who
saw
the
wreck
and
the
events
leading up to it, and the emergency responders.
Plaintiffs
do
not
seriously
contend
that
Radtke
qualified to render an expert opinion in this case.
board-certified
neurologist
specialist in epilepsy.
who
is
also
a
is
not
Radtke is a
board-certified
He has specialized in the treatment of
epilepsy for thirty years, and he currently treats more than 800
patients
with
epilepsy.
Radtke
is
qualified
to
testify
regarding the matters he intends to address.
Plaintiffs argue that Radtke’s methodology is not reliable,
that his testimony is not based on sufficient facts, and that
his testimony will not assist the trier of fact.
Plaintiffs
emphasize that no diagnostic test was performed to determine
whether Mrs. Bullock suffered a seizure immediately prior to the
wreck.
Plaintiffs also point out that Radtke never treated Mrs.
22
Bullock; nor did he speak to Mrs. Bullock or her family members
and treating physicians.3
Radtke explained that the methodology he used in this case
is the same methodology he would use if one of his patients
consulted him about an event that may or may not be related to a
seizure so that he can make adjustments to their care.
Radtke
is often asked by his patients to determine whether an epileptic
seizure
may
have
contributed
to
a
car
accident.
Radtke
explained that contemporaneous medical testing is generally not
available to determine whether a spontaneous epileptic seizure
occurred—and
such
testing
was
not
done
in
this
case.
In
reaching his medical opinions in his medical practice, Radtke
generally
relies
on
a
history
of
the
patient’s
event
as
described by eyewitness observers of the patient’s behavior and
not on the memory of his patients because people who suffer from
seizures are generally considered unreliable historians due to
amnesia
and
post-seizure
scientific literature
certain
types
of
confusion.
documenting
seizures
can
Radtke
also
relies
on
that drivers who experience
continue
to
operate
a
motor
vehicle, albeit erratically.
3
Plaintiffs also criticize Radtke for not reviewing the data
underlying several tests that were performed by Mrs. Bullock’s
treating physicians well after the wreck.
But, according to
Defendants, Radtke reviewed all of the medical records he received
from Plaintiffs.
He did not review the underlying data because
Plaintiffs did not produce it.
23
As previously explained, the Court’s goal in exercising its
gatekeeping role “is to ensure that an expert ‘employs in the
courtroom
the
same
level
of
intellectual
rigor
that
characterizes the practice of an expert in the relevant field.’”
Adams, 760 F.3d at 1327 (quoting Kumho Tire, 526 U.S. at 152).
Based on Radtke’s expert report and deposition testimony, the
Court
is
satisfied
that
Radtke,
an
epilepsy
specialist,
evaluated Mrs. Bullock’s behavior using the same methodology he
would have used if she were one of his patients.
not
point
reliable
to
any
evidence
diagnostic
that
approach
this
Plaintiffs did
methodology
employed
by
is
not
a
board-certified
neurologists in diagnosing seizure events.
Plaintiffs
argue
that
the
Court
should
exclude
Radtke’s
opinions because they contend his opinions are inconsistent with
the assessment of the emergency medical personnel who responded
to the scene fifteen to twenty minutes after Mrs. Bullock’s
wreck.
Both EMTs testified that there was no way for them to
know whether Mrs. Bullock had a seizure before the wreck unless
they were on the scene when it happened.
Radtke’s proffered
testimony is not inconsistent with the testimony of the EMTs,
who could not say one way or the other if Mrs. Bullock suffered
a seizure before the wreck.
Even if it were, the inconsistency
would go to the weight of his opinion, not its admissibility.
24
Plaintiffs also argue that Radkte’s opinion does not “fit”
this case because it will not help the jury understand whether
the
Passat
Radkte’s
and
opinion
its
component
does
not
parts
address
were
defective.
whether
the
While
Passat
was
defective, his opinion is directly relevant and would be helpful
to the jury on the issue of
causation—whether
driver error,
instead of design defect, caused the wreck.
For all of these reasons, Plaintiffs’ motion to exclude
Radtke’s testimony (ECF No. 54) is denied.
CONCLUSIONS
For the reasons set forth above, Defendants’ motions to
exclude the testimony of Lee Hurley and Mark Hood (ECF Nos. 49,
50, 51, & 52) are denied.
Defendants’ summary judgment motions
(ECF Nos. 53 & 56) are granted as to Plaintiffs’ claims for
failure to recall/retrofit and for wantonness but denied as to
the
remainder
of
Plaintiffs’
claims.
Plaintiffs’
motion
to
exclude Rodney Radtke (ECF No. 54) is also denied.
IT IS SO ORDERED, this 11th day of May, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
25
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