Bensenberg v. FCA US LLC
Filing
60
ORDER entered by Chief Judge Sara Darrow on November 30, 2020. Defendant FCA US LLC's 41 Daubert Motion to Bar the Testimony of Plaintiff Bradley Bensenberg's Liability Expert, Bahram Ravani, Ph.D. and Request for Oral Argument is GRANTE D IN PART and MOOT IN PART. Defendant's 54 Motion to Strike Declarations of Plaintiff's Liability Expert, Bahram Ravani, Ph.D is DENIED. Defendant's 43 Motion for Summary Judgment Pursuant to Rule 56 and Local Rule 7.1(D) is GRANTED, and 53 Motion to Strike Brad Bensenberg's Declaration is GRANTED IN PART and DENIED IN PART. The Clerk is directed to enter judgment and close the case. (HR, ilcd)
4:17-cv-04213-SLD-JEH # 60
Page 1 of 21
E-FILED
Monday, 30 November, 2020 12:50:06 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
BRADLEY A. BENSENBERG, Executor of
the Estate of DONNA J. BENSENBERG,
Plaintiff,
v.
FCA US LLC,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. 4:17-cv-04213-SLD-JEH
ORDER
This cause is before the Court on Defendant FCA US LLC’s Daubert Motion to Bar the
Testimony of Plaintiff Bradley Bensenberg’s Liability Expert, Bahram Ravani, Ph.D. and
Request for Oral Argument, ECF No. 41, Motion to Strike Declarations of Plaintiff’s Liability
Expert, Bahram Ravani, Ph.D, ECF No. 54, Motion for Summary Judgment Pursuant to Rule 56
and Local Rule 7.1(D), ECF No. 43, and Motion to Strike Brad Bensenberg’s Declaration in
Opposition to Defendant’s Motion for Summary Judgment, ECF No. 53. For the reasons that
follow, the motion to bar is GRANTED IN PART and MOOT IN PART, the motion to strike
declarations of Dr. Ravani is DENIED, the motion for summary judgment is GRANTED, and
the motion to strike Bensenberg’s declaration is GRANTED IN PART and DENIED IN PART.
BACKGROUND 1
On September 20, 2015, Donna Bensenberg was driving a 2008 Chrysler Aspen
(“Aspen” or “truck”) when she experienced a medical episode that caused her to lose
1
At summary judgment, a court “constru[es] the record in the light most favorable to the nonmovant and avoid[s]
the temptation to decide which party’s version of the facts is more likely true.” Payne v. Pauley, 337 F.3d 767, 770
(7th Cir. 2003). The facts related here are taken, unless otherwise noted, from Defendant’s undisputed material
facts, Mot. Summ. J. 2−5; Plaintiff’s undisputed material facts, disputed material facts, undisputed immaterial facts,
and additional material facts, Resp. Mot. Summ. J. 3−10, ECF No. 49; Defendant’s reply to Plaintiff’s additional
facts, Reply 1−5, ECF No. 56; and from the exhibits to the filings.
1
4:17-cv-04213-SLD-JEH # 60
Page 2 of 21
consciousness. The vehicle left the road and launched into the air before coming to rest in a
ditch. The vehicle was equipped with front and side airbags but the front airbag did not deploy.
Bensenberg was wearing her seat belt during the crash.
Plaintiff alleges the airbag and seat belt systems failed to protect Bensenberg during the
accident and she suffered injuries as a result. Plaintiff brings five product liability counts against
Defendant FCA US LLC, the entity formerly known as Chrysler Group LLC. Fourth Am.
Comp. ¶ 7, ECF No 27. Counts I–III allege the Chrysler Aspen’s airbag and seatbelt systems
were unreasonably dangerous because Defendant defectively designed and manufactured them
and failed to warn of the defects, id. ¶¶ 33–49; Counts IV–V allege Defendant negligently
designed and manufactured the airbag and seat belt systems and negligently failed to warn of the
defects, id. ¶¶ 50–61. 2
Defendant filed several motions: a motion to bar the testimony of Dr. Ravani, a motion to
strike Dr. Ravani’s declarations, a motion for summary judgment, and a motion to strike
Bensenberg’s declaration.
DISCUSSION
I.
Motions to Strike
a. Motion to Strike Dr. Ravani’s Declarations
Dr. Ravani provided three declarations in support of Plaintiff’s response to the motion to
bar his testimony and for summary judgment. Ravani Decl. I, Resp. Mot. Bar Expert Test., ECF
No. 48-2; Ravani Decl. II, Resp. Mot. Summ. J., ECF No. 49-2; Ravani Decl. III, Resp. Mot.
Summ. J., ECF No. 49-3. Defendant moves to strike these declarations because they reveal new
analyses and opinions and are untimely. See Def.’s Mot. Strike Ravani ¶ 6. Specifically,
2
The Court interprets the Fourth Amended Complaint to allege strict liability, negligence, and failure to warn claims
about both the airbag and seat belt systems. See Fourth Am. Compl. ¶¶ 33–61.
2
4:17-cv-04213-SLD-JEH # 60
Page 3 of 21
Defendant objects that Dr. Ravani’s analysis concerning the Defendant’s crash testing and its
comparison to the subject Aspen’s damage is a violation of the court scheduling order and argues
it is prejudicial to Defendant’s case. Id. (referring to Ravani’s Decl. II ¶ 11). Plaintiff points out
that Defendant mentions only one allegedly new opinion—the crash comparison—and argues
that this was not actually a new opinion but additional evidence to support one of Dr. Ravani’s
previously disclosed opinions. Resp. Mot. Strike Ravani 4–6, ECF No. 59.
Federal Rule of Civil Procedure 26(a)(2)(B)(i) requires the proponent of expert testimony
to disclose a witness’s written report that contains, among other things, a “complete statement of
all opinions the witness will express and the basis and reasons for them.” A party must
supplement both the information included in the report and provided during the expert’s
deposition “in a timely manner if the party learns that in some material respect the disclosure or
response is incomplete or incorrect, and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in writing.” Id.
26(e)(1)(A), (2). “Any additions or changes to this information must be disclosed by the time the
party’s pretrial disclosures under Rule 26(a)(3) are due,” id. 26(e)(2); in other words, at least 30
days before trial, id. 26(a)(3). “[I]f the evidence is intended solely to contradict or rebut
evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C),
[the disclosure must be made] within 30 days after the other party’s disclosure.” Id.
26(a)(2)(D)(ii). A violation of Rule 26(a) or (e) requires exclusion of that “evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Id.
37(c)(1).
In Dr. Ravani’s second declaration, he asserted that “the report and deposition
testimonies of defendant’s accident reconstruction and biomechanical experts were not available
3
4:17-cv-04213-SLD-JEH # 60
Page 4 of 21
. . . to evaluate their analyses and opinions.” Ravani Decl. II ¶ 3. Defendant disputes the
accuracy of this statement because “Defendant produced the expert reports of Dan Toomey and
Matt Weber on January 13, 2020.” Def.’s Mot. Strike Ravani ¶¶ 3–4. Having reviewed
Defendant’s crash test data on the Aspen, Dr. Ravani concluded that the crash test at the mustfire speed of approximately 16 miles per hour (“mph”) to a non-deformable barrier caused less
front-end damage (depicted in photos attached to the declaration) than the accident here caused
to the subject Aspen. Id. ¶ 11. As Plaintiff rightly points out, Dr. Ravani consistently opined, in
his report and deposition testimony, that the Aspen was traveling closer to 53 mph than 10 mph
prior to impact. Therefore, Dr. Ravani’s opinion of the crash test data is not a new opinion; he is
simply using this new evidence to support his original speed-of-impact opinion. Ravani Dep.
97:19–25, 98:6–10; Ravani Report 13–17. Even if it should have been disclosed earlier, any
failure to do so was harmless. The Court DENIES Defendant’s motion to strike Dr. Ravani’s
declarations.
b. Motion to Strike Brad Bensenberg’s Declaration
Defendant moves to strike Bensenberg’s declaration because it contains various opinions
that are more appropriate for expert testimony and because the declaration prejudices Defendant
as it was offered after the close of discovery. Def.’s Mot. Strike Bensenberg 1–3. Bensenberg’s
estimates of the speed and force at which the crash occurred are excluded as Plaintiff did not
timely disclose Bensenberg as an expert. See Fed. R. Civ. P. 26(a)(2)(B)(i); id. 37(c)(1).
Additionally, the list of other accidents, Bensenberg Decl. ¶ 40, Bonner Decl. Ex. 4, Def.’s Mot.
Summ. J. Ex. 3, ECF No. 49-13, are insufficiently supported and are irrelevant. The Court
rejects Bensenberg’s testimony that his mother “would have obeyed . . . a warning” to place “her
seat in a safe position,” id. at ¶ 35, as speculation. The rest of the declaration is admissible
4
4:17-cv-04213-SLD-JEH # 60
Page 5 of 21
because it is based on either his personal knowledge, Fed. R. Evid. 602, or lay opinion, Fed. R.
Evid. 701. Defendant’s motion to strike Bensenberg’s declaration is GRANTED IN PART and
DENIED IN PART.
II.
Motion to Exclude Expert Testimony
In Dr. Ravani’s twenty-page report, he concluded the Aspen’s airbag and seat belt system
did not “protect[] the driver from contact forces to her body that [we]re the proximal cause of her
diagnosed injuries.” Ravani Report 18, Mem. Supp. Mot. Bar Expert Test. Ex. C, ECF No. 42-4.
He also concluded that if the airbag algorithm inhibited deployment when a driver, like
Bensenberg, sat close to the steering wheel in the “front zone” or the seat belt system was unable
to protect a driver sitting in the “front zone,” Defendant had a duty to warn of this danger and did
not do so. Id. Moreover, he decided that if the severity of the accident “was below the threshold
for airbag deployment, then the seatbelt did not provide the needed protection either due to
defective design of the seatbelt system or because [Bensenberg’s] seat was in the front zone.” Id.
at 19. And if the accident was sufficiently severe to reach “the airbag deployment threshold (for
the front airbag) . . . , then the airbag system was defective in not deploying the airbag in such a
high-energy impact.” Id. 3
a.
Legal Standard
Federal Rule of Evidence 702, which governs the admissibility of expert testimony,
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) 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; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable principles
3
The Court assumes Dr. Ravani’s opinion is limited to a design defect because he does not refer to a manufacturing
defect in his either his report or deposition.
5
4:17-cv-04213-SLD-JEH # 60
Page 6 of 21
and methods; and (d) the expert has reliably applied the principles and methods to
the facts of the case.
District courts act as gatekeepers “to ensure that all admitted expert testimony satisfies the Rule’s
reliability and relevance requirements.” Stollings v. Ryobi Techs., Inc., 725 F.3d 753, 765 (7th
Cir. 2013) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592–93 (1993)). The
district court’s role is to evaluate experts based “solely on principles and methodology, not on
the conclusions that they generate.” Daubert, 509 U.S. at 595. “As a general rule, questions
relating to the bases and sources of an expert’s opinion affect only the weight to be assigned that
opinion rather than its admissibility.” Loeffel Steel Prods., Inc. v. Delta Brands, Inc., 372 F.
Supp. 2d 1104, 1119 (N.D. Ill. 2005). The factfinder remains “the arbiter of the weight and
credibility of expert testimony.” Stollings, 725 F.3d at 765.
Rule 702 and Daubert outline a three-part analysis for the admissibility of expert
testimony. The court must (1) “determine whether the witness is qualified”; (2) “whether the
expert’s methodology is scientifically reliable”; and (3) “whether the testimony will assist the
trier of fact to understand the evidence or to determine a fact in issue.” Myers v. Ill. Cent. R.R.
Co., 629 F.3d 639, 644 (7th Cir. 2010) (quotation marks omitted). “The goal of Daubert is to
assure that experts employ the same intellectual rigor in their courtroom testimony as would be
employed by an expert in the relevant field.” Jenkins v. Bartlett, 487 F.3d 482, 489 (7th Cir.
2007) (quotation marks omitted). Further, “[i]t is critical under Rule 702 that there be a link
between the facts or data the expert has worked with and the conclusion the expert’s testimony is
intended to support.” United States v. Mamah, 332 F.3d 475, 478 (7th Cir. 2003) (citing 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.” Gen. Elec., 522 U.S. at 146. “A court may conclude
6
4:17-cv-04213-SLD-JEH # 60
Page 7 of 21
that there is simply too great an analytical gap between the data and the opinion proffered.” Id.
The testimony’s proponent bears the burden of establishing the admissibility requirements by a
preponderance of the evidence. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir.
2009).
b.
Analysis
i.
Testimony Concerning Defects in Airbag System
Defendant argues that Dr. Ravani should be barred from testifying as to any alleged
design or manufacturing defect in the airbag system because he is not qualified to render this
opinion and his methodology is unreliable. Mem. Supp. Mot. Bar Expert Test. 6–10, ECF No.
42. Plaintiff disputes that Dr. Ravani is insufficiently qualified to offer an opinion, Resp. Mot.
Bar Expert Test. 2–8, ECF No. 48, and argues that he has utilized a scientifically reliable
methodology in crafting his defect opinions, id. at 8–15. Because the Court finds that Dr. Ravani
has not utilized a methodology that supports his opinion that the airbag system was defective, the
Court need not consider whether he is qualified to render an opinion on the alleged design or
manufacturing defect in the airbag system.
“[T]he court’s gatekeeping function focuses on an examination of the expert’s
methodology.” Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). Daubert provides a
nonexclusive list of factors for a court to consider in determining whether an expert’s
methodology is reliable: “(1) whether the theory can be and has been verified by the scientific
method through testing; (2) whether the theory has been subjected to peer review; (3) the known
or potential rate of error; and (4) the general acceptance of the theory in the scientific
community.” Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir. 2002). But the Daubert
inquiry is flexible and the listed factors “neither necessarily nor exclusively appl[y] to all experts
7
4:17-cv-04213-SLD-JEH # 60
Page 8 of 21
or in every case.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). Courts have
“latitude in determining not only how to measure the reliability of the proposed expert testimony
but also whether the testimony is, in fact, reliable.” Gayton v. McCoy, 593 F.3d 610, 616 (7th
Cir. 2010).
For this case, Dr. Ravani was asked to evaluate the “functional design and performance
of the restraint system” in the Aspen and to provide “an accident reconstruction and
biomechanical evaluation of the injury producing forces” from an engineering viewpoint that
“involve[s] principles of engineering design, dynamics, kinematics and biomechanical
engineering.” Id. at 1. Dr. Ravani’s analysis began with reconstructing the accident. 4 He
inspected the accident site and the truck’s damage and reviewed witness depositions,
Bensenberg’s video-taped interview, the truck’s event data recorder (“EDR”) data, 5 the sheriff’s
office incident report, photographs of physical evidence at the site, and fundamental principles of
vehicle kinematics to determine that when Bensenberg blacked out, the truck gradually crossed
the yellow line and left the roadway without brake application or significant changes in its speed.
Id. at 5. The EDR revealed that the truck’s initial speed was around 58 mph and then reduced to
53 mph when it left the roadway and became airborne and the sensors were no longer able to
record its speed. Ravani Dep. 62:5–9, 85:15–19, Mem Supp. Mot. Bar. Expert Test. Ex. B, ECF
No. 42-3. The curtain airbags deployed due to some partial roll motion prior to the truck
reaching its final resting spot. Ravani Report 6. The seat belt pretensioners were activated when
the curtain airbags deployed. Id. at 10. The truck traveled over uneven terrain in the ditch,
sustaining damage to the underbody components, the front end, the roof, and some fenders. Id.
4
Defendant does not dispute Dr. Ravani was qualified to engage in accident reconstruction.
EDR is “a device installed in a motor vehicle [used] to record technical vehicle and occupant information for a
brief period of time (seconds, not minutes) before, during and after a crash.” Event Data Recorder, NHTSA,
https://www.nhtsa.gov/research-data/event-data-recorder (last visited November 30, 2020).
5
8
4:17-cv-04213-SLD-JEH # 60
Page 9 of 21
at 5, 8, 13–17. Dr. Ravani could not use crush analysis to help determine the car’s speed and the
severity of the impact because the impact was distributed throughout the underbody and front
end. Ravani Dep. 61:12–62:4, 88:5–22. Dr. Ravani calculated, considering the g-forces and the
deceleration of the truck, that it was traveling closer to 53 mph than 10 mph at impact, but could
not give a more specific answer because of the damage distribution and lack of physical
evidence. Id. at 96:13–98:2, 98:6–10; Ravani Report 13–17 (Dynamic Analysis). Defendant has
not argued that these methods were unlikely to produce a reliable estimate of the Aspen’s speed
at final impact.
During his deposition, Dr. Ravani explained that the airbag deployment threshold was
typically “about a delta-v of 10 miles an hour.” 6 Ravani Dep. 98:11–16. He did not know the
Aspen’s deployment threshold but concluded that it was more likely than not that the front airbag
threshold had been met. Id. at 122:16–123:11 (“I cannot say, you know, 80 or 90 percent, but
more than 50 percent.”). In his report, Dr. Ravani stated: “[i]f the accident had[] a higher
severity reaching the airbag deployment threshold (for the front airbag) as it could . . . then the
airbag system was defective in not deploying the airbag in such a high-energy impact.” Ravani
Report 19 (emphasis added). The airbag manufacturer’s diagnostic tool found no faults or
problems with the system, Ravani Dep. 124:6–15, so he draws a possibility of a design defect, id.
at 127:7, from the fact the airbag did not deploy and from other reports that airbags in similar
vehicles also failed to deploy, see id. at 125:2–12.
Either everything was fine, so the air bag threshold was not reached. That
contradicts the testimony of the witnesses and the reading from EDR at the
beginning, or that it could be that the entire design of the system, including
location of the sensors, or the types of sensors that was used, was not properly –
did not foresee a situation like this. And this situation is foreseeable. Many cars
go off the record and hit facedown to an embankment.
6
Delta-v is a measurement used to calculate a change in velocity.
9
4:17-cv-04213-SLD-JEH # 60
Page 10 of 21
Id. at 128:5–13.
The Court does not take issue with Dr. Ravani’s opinion that the crash was so severe that
it likely met the industry standard deployment threshold, but rather with his jump from this
premise to the conclusion that the airbag system was thus defective. Dr. Ravani offers no
evidence to establish how the airbag system’s design was defective, id. at 128:17–129:13
(testifying he did not know how it was designed), or why the system or the component failed, id.
at 16:25–17:11 (testifying that the system failed to execute its function, but that he did know if
any of the component pieces of the airbag system failed). He concludes the cause from the
effect.
Dr. Ravani’s opinion is not reliable because he has not “adhere[d] to the same standards
of intellectual rigor that are demanded in [his] professional work.” Cummins v. Lyle Indus., 93
F.3d 362, 369 (7th Cir. 1996). His opinion works backward from the non-deployment of the
front airbag in a high-energy impact to his hypothesis that a nebulous defect in the airbag system
caused the non-deployment. Plaintiff acknowledges this deficit: “Dr. Ravani was unable
however to determine the underlying cause for the failing airbag and/or the seatbelt but reasoned
that the combination of the components of the restraint system that failed to provide Plaintiff
with sufficient survivable occupant space for her to be protected by the restraint system.” Resp.
Mot. Bar Expert Test. 17 (quotation marks omitted).
In Clark v. Takata Corp., 192 F.3d 750, 752–53 (7th Cir. 1999), the plaintiff sued his car
manufacturer alleging that his seat belt was defective because it unlatched during a rollover
accident. During the plaintiff’s expert’s deposition, the expert revealed that he had simply
assumed that the seat belt had unbuckled and that “a properly functioning lap belt would have
prevented the plaintiff from . . . striking the roof.” Id. at 757–58. The court found that because
10
4:17-cv-04213-SLD-JEH # 60
Page 11 of 21
he assumed “the very fact that he ha[d] been hired to prove, his testimony [wa]s not helpful to
the trier of fact in determining that same fact in issue.” Id. The expert’s “second opinion, that a
properly functioning lap belt would have prevented [the plaintiff] from moving upward four
inches and striking the roof of the vehicle, lacked reliance on any stated methodology or the
scientific method.” Id. at 759 (quotation marks omitted). Here, Dr. Ravani’s opinion assumes
the airbag was defectively designed because it failed to deploy. “An expert must substantiate his
opinion; providing only an ultimate conclusion with no analysis is meaningless.” Id. at 757
(quotation marks omitted). It may be permissible to conclude that an overall design was
defective, as opposed to a mechanical failure of its many (and here, unknown) parts, but doing so
must be based on facts, tests, analyses, etc. Dr. Ravani has not articulated a theory as to how the
airbag system was defectively designed and thus his hypothesis cannot be tested and alternative
hypotheses cannot be ruled out. See Fed. R. Evid. 702 advisory committee’s notes to 2000
amendments (listing testing of a theory and accounting for alternative explanations as two
components of the reliability analysis); Zenith Elec. Corp. v. WH–TV Broad. Corp., 395 F.3d
416, 419 (7th Cir. 2005) (noting that “conclusions that are not falsifiable aren’t worth much to
either science or the judiciary”). “[T]here is simply too great an analytical gap between the data
and the opinion proffered.” Gen. Elec. Co., 522 U.S. at 146; see Fed. R. Evid. 702 advisory
committee’s notes to 2000 amendments (listing as a reliability factor “whether the expert has
unjustifiably extrapolated from an accepted premise to an unfounded conclusion”). Dr. Ravini
may testify about his opinions on the truck’s speed, the severity of the impact, the industry
standard deployment threshold—none of which Defendant sought to exclude—but he may not
testify that the airbag failed to deploy because it was defectively designed.
ii.
Testimony Concerning Defects in Seat Belt System
11
4:17-cv-04213-SLD-JEH # 60
Page 12 of 21
Defendant argues Dr. Ravani should be barred from testifying as to any alleged design or
manufacturing defect in the seat belt system because he did not utilize reliable methodology.
Mem. Supp. Mot. Bar Expert Test. 10–12. Plaintiff responds that Dr. Ravani properly relied on
his reconstruction analysis and its impact on Bensenberg’s kinematics to conclude that the seat
belt failed to protect her from making contact with the steering wheel. Resp. Mot. Bar Expert
Test. 15–17.
Dr. Ravani concluded that “assum[ing] that the accident was of severity that was below
the threshold for airbag deployment, then the seatbelt did not provide the needed protection
either due to defective design of the seatbelt system or because her seat was in the front zone.”
Ravani Report 19. Essentially, Dr. Ravani concluded, based on his inspection of the vehicle and
the location of Bensenberg’s bruises, that she hit the steering wheel with her face and chest and,
therefore, the seat belt system was defective. See id. at 11–12, 18–19. However, Dr. Ravani did
not explain how he reached this conclusion. He admitted he did not find a defect in any of the
seat belt system components. Ravini Dep. 132:1–134:14 (identifying the properly functioning
components—lap and shoulder belts, pretensioner, D-ring, latch plate, buckle, webbing). He
measured the seat position, id. at 132:22, but there is no indication that he measured the seat belt
length that was locked into position by the pretensioner, see id. at 136:10–137:5. He also failed
to measure whether the seat belt in its locked position would allow contact with the steering
wheel when the seat was in the front zone, id. at 138:21 (indicating that Bensenberg was five feet
tall); id. at 139:23–140:5, 140:25–141:4, or “determine if and how a surrogate of Ms.
Bensenberg’s height and stature could reach the steering wheel while properly belted,” Mem.
Supp. Mot. Bar Expert Test. 11 (citing Ravini Dep. 139:4–22). Lastly, Dr. Ravini acknowledged
that Bensenberg’s accident was caused when she blacked out while driving and that she may
12
4:17-cv-04213-SLD-JEH # 60
Page 13 of 21
have slumped forward as a result. Ravini Report 10; Ravini Dep. 143:21–24. Even so, he did
not measure or calculate the potential consequence of that conclusion, such as the distance
between the likely slump and the steering wheel while the seat was in the front zone. Mem.
Supp. Mot. Bar Expert Test. 12; Ravani Dep. at 145:11–21. Even if making contact with the
steering wheel could demonstrate a defective seat belt under certain circumstances, Dr. Ravani
has not gathered data to support his conclusion.
Again, Plaintiff acknowledges this deficit: “Dr. Ravani was unable . . . to determine the
underlying cause for the failing airbag and/or the seatbelt . . . .” Resp. Mot. Bar Expert Test. 17.
Dr. Ravini’s conclusion that the seat belt was defective because it did not prevent Bensenberg
from sustaining injury is not supported by rigorous, objective, and verifiable methodology and
must be excluded. Like his airbag system conclusion, “there is simply too great an analytical gap
between the data and the opinion proffered.” Gen. Elec. Co., 522 U.S. at 146.
iii.
Testimony Concerning Warning
Finally, Defendant argues that Dr. Ravani should be barred from testifying as to any
alleged failure to warn because he is not qualified to render a warnings opinion, Mem. Supp.
Mot. Bar Expert Test. 17–18, and his opinion is unreliable, id. at 15–17. Plaintiff counters that
since the truck’s seat sensor recorded the seat’s position, it could easily have “triggered a
warning that the positioning” of the seat in the front zone “could inhibit the restraint system from
protecting the driver upon impact” but otherwise does not respond to any of Defendant’s
arguments. Resp. Mot. Bar Expert Test. 17. Plaintiff’s failure to respond to the motion in limine
seeking to exclude Dr. Ravani’s testimony regarding Defendant’s failure to warn demonstrates
the point is conceded. See Bogathy v. Union Pac. R.R., No. 17-CV-4290, 2020 WL 419406, at
13
4:17-cv-04213-SLD-JEH # 60
Page 14 of 21
*7 & n.4 (N.D. Ill. Jan. 24, 2020) (recognizing that failing to respond to motion to exclude is
waiver).
Even if the Court overlooks Plaintiff’s waiver and considers whether Dr. Ravani is
qualified, it would agree with Defendant that Plaintiff has failed to demonstrate Dr. Ravani is an
expert on warnings. An expert may be qualified “by knowledge, skill, experience, training, or
education.” Fed. R. Evid. 702. “Whether a witness is qualified as an expert can only be
determined by comparing the area in which the witness has superior knowledge, skill,
experience, or education with the subject matter of the witness’s testimony.” Carroll v. Otis
Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990). “[C]ourts impose no requirement that an expert
be a specialist in a given field.” Gayton, 593 F.3d at 617 (quoting Doe v. Cutter Biological, Inc.,
971 F.2d 375, 385 (9th Cir. 1992)).
Ravani has a Ph.D. in mechanical engineering from Stanford University and has been
practicing in the fields of biomechanics and accident reconstruction and evaluating crash
protection systems for over 35 years. Ravani Report ¶¶ 3, 5, 6; Ravani Dep. 12:22–13:1. Dr.
Ravani performs research and consulting work in accident reconstruction, kinematics, and
biomechanical analysis for personal injury accidents. Ravani Report ¶ 5. He has been a
professor of mechanical engineering and biomedical engineering at the University of CaliforniaDavis since 1987. Ravani CV 2, Ravani Decl. I Ex. A., ECF No. 48-3. He teaches a class
focused on applying stress, strain, and force analysis “to deformable bodies[] and how to design
to avoid failure.” Ravani Dep. 48:16–49:2. He has also taught a class on biomechanics and the
dynamics and kinematics involved and how forces get transmitted in an automobile accident. Id.
at 51:13–25. The class also considered how “crash protection devices have been developed,
including the restraint system, and . . . collapsing the steering column . . . [to] attenuat[e] the
14
4:17-cv-04213-SLD-JEH # 60
Page 15 of 21
forces of impact or chang[e] the kinematics of the occupant so that potential for forces that could
be applied on the body of the occupants could be reduced.” Id. at 52:2–8. The course did not
“evaluat[e] the components of the seat belt, or evaluat[e] the specific components or
instrumentation related to these things [because he was] not an instrumentation engineer or a
technician.” Id. at 52:24–53:2. The Court finds no reference here to “knowledge, skill,
experience, training, or education,” Fed. R. Evid. 702, on the topic of warnings to demonstrate
that Dr. Ravani is qualified to opine on a manufacturer’s failure to warn regarding airbags or seat
belts and Plaintiff has not otherwise established any of Dr. Ravani’s education or training would
be helpful to this analysis. See Moore v. P & G-Clairol, Inc., 781 F. Supp. 2d 694, 704 (N.D. Ill.
2011) (concluding that a scientist familiar with mixing chemicals was not qualified to opine
about the efficacy of a warning label because he had not established that he had “any particular
insight into how an average, non-scientist consumer would interpret the instructions at issue”).
Defendant’s motion to bar is GRANTED.
III.
Motion for Summary Judgment
a. Legal Standard on Motion for Summary Judgment
Summary judgment is appropriate “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). A genuine issue of material fact exists when the evidence “is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). “In deciding a motion for summary judgment, the court can only consider evidence
that would be admissible at trial under the Federal Rules of Evidence.” Show v. Ford Motor Co.,
697 F. Supp. 2d 975, 979 (N.D. Ill. 2010) (citing Stinnett v. Iron Works Gym/Exec. Health Spa,
Inc., 310 F.3d 610, 613 (7th Cir. 2002)). The court must view the admissible evidence “in the
15
4:17-cv-04213-SLD-JEH # 60
Page 16 of 21
light most favorable to the non-moving party[] and draw[] all reasonable inferences in that
party’s favor.” McCann v. Iroquois Mem’l Hosp., 622 F.3d 745, 752 (7th Cir. 2010) (citing
Anderson, 477 U.S. at 255).
b. Analysis
Defendant argues that without expert testimony, Plaintiff’s claims fail. Def.’s Mot.
Summ. J. 6, 10–11, 15.
i. Strict Liability Design and Manufacturing Defect
In Illinois, a “strict products liability claim may proceed under three different theories of
liability: a manufacturing defect, a design defect, or a failure to warn.” Salerno v. Innovative
Surveillance Tech., Inc., 932 N.E.2d 101, 108 (Ill. App. Ct. 2010). To prove a design defect, a
plaintiff must show:
(1) a condition of the product as a result of manufacturing or design, (2) that made
the product unreasonably dangerous, (3) and that existed at the time the product left
the defendant's control, and (4) an injury to the plaintiff, (5) that was proximately
caused by the condition. The plaintiff has the burden of proof on each element.
Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329, 345 (Ill. 2008). “When proceeding under a
manufacturing defect theory, [the plaintiff may use] the consumer-expectation test to determine
whether the product is unreasonably dangerous.” Salerno, 932 N.E.2d at 109. In other words,
whether it is “dangerous to an extent beyond that which would be contemplated by the ordinary
consumer who purchases it, with the ordinary knowledge common to the community as to its
characteristics.” Id. at 109 (quotation marks omitted). For an alleged design defect, the parties
may use either the consumer-expectation test, Suarez v. W.M. Barr & Co., 842 F.3d 513, 520
(7th Cir. 2016) (defining the test slightly differently as a product that “failed to perform as safely
as an ordinary consumer would expect when used in an intended or reasonably foreseeable
manner” (quotation marks omitted)), or “[t]he risk-utility test[, which] asks if ‘on balance the
16
4:17-cv-04213-SLD-JEH # 60
Page 17 of 21
benefits of the challenged design outweigh the risk of danger inherent in such designs,’” id.
(quoting Lamkin v. Towner, 563 N.E.2d 449, 457 (Ill. 1990)). But if the evidence implicates the
risk-utility test, courts should use it because the “[consumer-expectations test] is incorporated
into the former and is but one factor among many for the jury to consider.” Clark v. River
Metals Recycling, LLC, 929 F.3d 434, 439 (7th Cir. 2019) (quoting Mikolajczyk, 901 N.E.2d at
352); see also Ferraro v. Hewlett–Packard Co., 721 F.3d 842, 848 (7th Cir. 2013) (“Where the
two tests yield conflicting results, . . . the risk-utility test trumps, and the product is deemed not
unreasonably dangerous (notwithstanding consumers’ expectations that the product would be
safer).” (quotation marks omitted)). The risk-utility test includes a non-exclusive and nondispositive factors such as:
(1) The usefulness and desirability of the product to the user and to the public at
large;
(2) The likelihood that the product will cause injury, and if so, how serious that
injury might be;
(3) The availability of substitutes that would meet the same need in a safer way;
(4) The feasibility for the manufacturer to eliminate the unsafe characteristics
without either impairing utility or driving cost up too high;
(5) The user’s ability to avoid danger by the exercise of care;
(6) The user’s probable awareness of dangers inherent in the product, either
through general public knowledge or suitable warnings or instructions;
(7) The manufacturer’s ability to obtain liability insurance.
Clark, 929 F.3d at 439 (citing Calles v. Scripto-Tokai Corp., 864 N.E.2d 249, 264–65 (Ill.
2007)).
“‘[P]roducts liability actions . . . often involve specialized knowledge or expertise outside
the layman’s knowledge’ and so may require expert testimony.” Id. at 440 (second alteration in
original) (quoting Baltus v. Weaver Div. of Kidde & Co., 557 N.E.2d 580, 588 (Ill. App. Ct.
1990)); see also Baltus, at 589–90 (distinguishing between simple products that do not require
expert testimony, like a chair, and those that do, like a transmission jack)); Klootwyk v.
17
4:17-cv-04213-SLD-JEH # 60
Page 18 of 21
DaimlerChrysler Corp., No. 01 C 6127, 2003 WL 21038417, at *3 (N.D. Ill. May 7, 2003)
(rejecting as speculation plaintiff’s lay opinion that “her husband would not have sustained fatal
injuries without a defect in design or manufacture being present” and holding that it was
insufficient to establish the driver-side airbag was unreasonably dangerous because the case
“involve[d] technical matters beyond the common knowledge and experience of jurors”).
In Show v. Ford Motor Co., 659 F.3d 584 (7th Cir. 2011), the plaintiff, who had been
driving a Ford Explorer that rolled during an accident, sued the manufacturer under a defective
design theory. Id. at 584–85. The court reviewed Illinois’s product liability tests and rejected
the plaintiff’s contention that jurors need consider only their own experience to find “liability
under the consumer-expectation approach.” Id. at 585 (“Several intermediate appellate decisions
in Illinois say that expert testimony is vital in design-defect suits when aspects of a product’s
design or operation are outside the scope of lay knowledge.”). “Because consumer expectations
are just one factor in the inquiry whether a product is unreasonably dangerous, a jury unassisted
by expert testimony would have to rely on speculation.” Id. at 588. Thus, where a plaintiff lacks
admissible expert testimony to prove that a design or manufacturing defect in a specialized piece
of equipment renders it unreasonably dangerous under either theory, the court must grant
summary judgment to the defendant. See Clark, 929 F.3d at 440 (affirming district court’s entry
of summary judgment after the plaintiff’s expert was excluded because the defective car
crusher’s safe alternative design was within province of an expert and outside scope of lay
knowledge).
Defendant argues that Dr. Ravani provides no evidence that the airbag and seat belt
systems were defective and therefore, Plaintiff cannot establish his claims. Reply 6–7, ECF No.
56. Plaintiff argues that that he “is proceeding under the consumer-expectation test to prove that
18
4:17-cv-04213-SLD-JEH # 60
Page 19 of 21
the 2008 Chrysler Aspen contained an unreasonably dangerous defect, and/or the failure of the
manufacturer to adequately warn consumers of a product’s dangerous propensities.” Resp. Mot.
Summ. J. 13, ECF No. 49 (citing Lamkin, 563 N.E.2d at 457).
The seat belt system and the airbag are not simple products. Although most layman are
familiar with them, how they work in a general sense, and what they aim to prevent, most
laymen do not know how they are designed. It is not obvious what seat belt or airbag
components are hidden from view, how each of the systems draw information and measure it,
how they are affected by other systems in the car, the type of events/forces that trigger them to
react, etc. Expert testimony is required to help the trier of fact determine that an airbag or seat
belt system, which are complex products, was unreasonably dangerous under the consumer
expectations test or the risk-utility test due to a defective design or manufacturing process. See
Clark, 929 F.3d at 440. Dr. Ravani’s testimony on these points was excluded. Without such
evidence Plaintiff cannot prove his strict liability claims.
ii.
Negligent Design & Manufacturing Defect
Claims of negligent design or manufacture in product liabilities actions require proof of
duty, breach, proximate cause, and damages. Jablonski v. Ford Motor Co., 955 N.E.2d 1138,
1153–54 (Ill. 2011). “Like strict liability, negligence focuses on the allegedly unreasonably
dangerous condition of a product.” Baugh v. Cuprum S.A. de C.V., 845 F.3d 838, 849 (7th Cir.
2017) (citing Calles, 864 N.E.2d at 263–64). The risk-utility test is applicable to negligence
claims as well. Jablonski, 955 N.E.2d at 1155 (concluding that the test “is essentially identical to
the test applied in determining whether a defendant’s conduct in designing a product is
unreasonable”).
19
4:17-cv-04213-SLD-JEH # 60
Page 20 of 21
Defendant argues Plaintiff has not provided any evidence that Defendant breached a duty
in the design or manufacture of the Aspen and Dr. Ravani cannot testify that the airbag or seat
belt systems were unreasonably dangerous. Def.’s Mot. Summ. J. 10–11. Negligence claims
regarding complex products require expert testimony. Salerno, 932 N.E.2d at 112 (holding that
the plaintiff must provide expert testimony to establish that the manufacturer deviated from the
standard of care “[b]ecause products liability actions involve specialized knowledge or expertise
outside of a layman’s knowledge”). Dr. Ravani’s conclusory defective design opinions
regarding the airbag and seat belt systems have been excluded. Defendant is entitled to summary
judgment on these claims.
iii.
Strict Liability & Negligent Failure to Warn
There are two duties underlying failure to warn cases: a duty to warn of a foreseeable
danger and a duty to provide adequate instructions for safe use. “[T]o establish a strict liability
failure to warn claim under Illinois law, a plaintiff must prove that the manufacturer did not
disclose an unreasonably dangerous condition or instruct on the proper use of the product as to
which the average consumer would not be aware,” Norabuena v. Medtronic, Inc., 86 N.E.3d
1198, 1207 (Ill. App. Ct. 2017), and that this failure to disclose proximately caused the plaintiff’s
injuries, Solis v. BASF Corp., 979 N.E.2d 419, 439 (Ill. App. Ct. 2012). “Similarly, in order to
prove a negligent failure to warn claim, a plaintiff must show that the manufacturer negligently
failed to instruct or warn of a danger of the product and that failure proximately caused the
plaintiff’s injuries.” Norabuena, 86 N.E.3d at 1207.
Defendant argues that with Dr. Ravani’s opinions excluded, Plaintiff cannot provide any
admissible evidence to support his failure to warn claims. See Def.’s Mot. Summ. J. 12–15.
Plaintiff asserts Dr. Ravani’s remaining opinions indicate that the airbag did not deploy and the
20
4:17-cv-04213-SLD-JEH # 60
Page 21 of 21
seatbelt did not prevent Bensenberg from impacting the steering wheel while seated in the front
zone, therefore, it seems to Plaintiff, the systems were defective and Defendant was obligated to
warn that sitting in the front zone was dangerous. Resp. Mot. Summ. J. 22–24. The airbag’s
failure to deploy and the seat belt’s failure to protect Bensenberg from impacting the steering
wheel is not evidence that either system was unreasonably dangerous requiring a disclosure or a
warning. Plaintiff has not established that Defendant is liable under strict liability or negligence
theories for an airbag or seat belt system design defect, a manufacturing defect, or for failing to
warn that these systems were unreasonably dangerous.
CONCLUSION
Defendant FCA US LLC’s Daubert Motion to Bar the Testimony of Plaintiff Bradley
Bensenberg’s Liability Expert, Bahram Ravani, Ph.D. and Request for Oral Argument, ECF No.
41, is GRANTED IN PART and MOOT IN PART. 7 Defendant’s Motion to Strike Declarations
of Plaintiff’s Liability Expert, Bahram Ravani, Ph.D, ECF No. 54, is DENIED. Defendant’s
Motion for Summary Judgment Pursuant to Rule 56 and Local Rule 7.1(D), ECF No. 43, is
GRANTED, and Motion to Strike Brad Bensenberg’s Declaration, ECF No. 53, is GRANTED
IN PART and DENIED IN PART. The Clerk is directed to enter judgment and close the case.
Entered this 30th day of November, 2020.
s/ Sara Darrow
SARA DARROW
CHIEF UNITED STATES DISTRICT JUDGE
7
Since the Court grants summary judgment in Defendant’s favor on liability, it did not reach Defendant’s Motion to
Bar testimony regarding Bensenberg’s neck fracture and it is MOOT.
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?