BROWN v. BMW OF NORTH AMERICA, LLC et al
ORDER - On September 29, 2012, Plaintiff Marsha R. Brown was driving her 2007 Mini Cooper on a highway when her vehicle went off the road, rolled into a ditch, and landed on its roof. As a result, Ms. Brown sustained a cervical fracture, which lef t her partially quadriplegic. Ms. Brown filed the underlying cause of action for negligence against Defendant BMW of North America, LLC ("BMW NA"). [Filing No. 42 .] On March 30, 2017, the Court issued an Order granting BMW NA's Mo tion to Exclude All Evidence Related to Human Subject Rollover Demonstrations Conducted by Plaintiff's Counsel and Related Paper. [Filing No. 136 .] Presently pending before the Court is Ms. Brown's Motion to Reconsider the Court's Ruling. [Filing No. 147 .] The motion is now ripe of the Court's consideration. For the reasons set forth in this Order, the Court DENIES Ms. Brown's Motion to Reconsider the Court's Ruling. [Filing No. 147 .] (See Order). Signed by Judge Jane Magnus-Stinson on 8/10/2017. (APD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
MARSHA RUDDELL BROWN,
BMW OF NORTH AMERICA, LLC,
On September 29, 2012, Plaintiff Marsha R. Brown was driving her 2007 Mini Cooper on
a highway when her vehicle went off the road, rolled into a ditch, and landed on its roof. As a
result, Ms. Brown sustained a cervical fracture, which left her partially quadriplegic. Ms. Brown
filed the underlying cause of action for negligence against Defendant BMW of North America,
LLC (“BMW NA”). [Filing No. 42.] On March 30, 2017, the Court issued an Order granting
BMW NA’s Motion to Exclude All Evidence Related to Human Subject Rollover Demonstrations
Conducted by Plaintiff’s Counsel and Related Paper. [Filing No. 136.] Presently pending before
the Court is Ms. Brown’s Motion to Reconsider the Court’s Ruling. [Filing No. 147.] The motion
is now ripe of the Court’s consideration.
“Motions to reconsider ‘are not replays of the main event.’” Dominguez v. Lynch, 612 Fed.
Appx. 388, 390 (7th Cir. 2015) (quoting Khan v. Holder, 766 F.3d 689, 696 (7th Cir. 2014)). A
motion to reconsider is only appropriate where the Court has misunderstood a party, where the
Court has made a decision outside the adversarial issues presented to the Court by the parties,
where the Court has made an error of apprehension (not of reasoning), where a significant change
in the law has occurred, or where significant new facts have been discovered. Bank of Waunakee
v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (citation omitted). Because
such problems “rarely arise,” a motion to reconsider “should be equally rare.” Id.
In 2008, Ms. Brown’s counsel, David Scott, was the plaintiff’s counsel for Green v. Ford
Motor Co., No. 1:08-CV-0163-LJM-TAB, 2010 WL 1726620, at *1 (S.D. Ind. 2010), an
automotive products liability case. The plaintiff in Green was rendered quadriplegic after he struck
the end of a guardrail and rolled down an embankment while driving his 1999 Ford Explorer Sport
on the highway. Id. In preparation for that case, Mr. Scott personally participated in rollover
demonstrations using a Ford Explorer with an alternative design in the restraint system to
demonstrate that an alternative design could have avoided the plaintiff’s injuries. Id. The district
court in Green held that the evidence was inadmissible. Id. at *2.
Thereafter, Mr. Scott and several others co-authored a paper entitled “Rollover testing with
volunteer live human subject” (the “Paper”), which was published in the International Journal of
Crash Worthiness. [Filing No. 120-2.] The Paper provides a detailed analysis of the rollover
demonstrations that Mr. Scott performed and includes visuals of those demonstrations. [Filing
No. 120-2.] BMW NA filed a motion asking the Court to exclude evidence that relates to the
demonstrations that Mr. Scott conducted in preparation for Green and the subsequent Paper
detailing those demonstrations. [Filing No. 121 at 1-2.] On March 30, 2017, the Court issued an
Order granting BMW NA’s Motion. [Filing No. 136.] Ms. Brown has now filed a Motion to
Reconsider the Court’s Ruling. [Filing No. 147.]
Ms. Brown asks the Court to reconsider its ruling to exclude evidence regarding the
rollover demonstrations detailed in the Paper, or in the alternative, permission to reference the
Paper and show a modified video from the rollover demonstrations. [Filing No. 136.] According
to Ms. Brown, for the Paper to be admissible, there only needs to be a “‘substantial similarity’
between the test and the circumstances at issue.” [Filing No. 147 at 2.] Ms. Brown argues that a
properly designed belt system would have kept her from making injurious contact with the roof,
and that the Paper discussed two methods utilized during testing that would limit the “slack” in the
seat belt system in a rollover. [Filing No. 147 at 3.] In addition, she claims that the Paper also
fulfills the criteria of “testing conducted to illustrate scientific principles.” [Filing No. 147 at 4.]
Lastly, Ms. Brown argues that “[s]howing [the] high speed video of only the camera viewing the
seat and the seat belt latch is necessary to rebut testing conducted by BMW NA’s experts. . . .”
[Filing No. 147 at 5.]
In response, BMW NA argues that Ms. Brown provides no legal basis in support of her
motion. [Filing No. 155 at 3.] BMW NA argues that Ms. Brown has failed to show any error of
law or fact in the Court’s Order, and has instead, “filed an additional brief rehashing previously
raised and rejected arguments, and setting forth additional arguments that do not change the
outcome and that could have been raised . . . in response to BMW NA’s motion.” [Filing No. 155
at 4.] BMW NA claims that even considering Ms. Brown’s arguments, the Court found that Mr.
Scott, who conducted the rollover demonstrations, is not an engineer or an expert in automotive
safety. [Filing No. 155 at 5.] BMW NA contends that the rollover demonstrations are “unreliable,
not scientifically valid, and were a case-specific attempt to recreate the accident” in Green. [Filing
No. 155 at 5.] Lastly, BMW NA argues that the demonstrations and video do not demonstrate
principles of science or physics since Mr. Scott’s intent was to show “the alleged efficacy of his
alternative seatbelt and seat designs in a vehicle.” [Filing No. 155 at 6.]
Ms. Brown did not file a reply brief.
The Court finds Ms. Brown’s arguments unavailing. First, as BMW NA points out, Ms.
Brown has failed to set forth the legal basis of her Motion to Reconsider the Court’s Ruling.
Second, Ms. Brown raises the same arguments that she raised in her response to BMW NA’s
Motion. She argues that the Paper is admissible because there are substantial similarities between
the rollover demonstrations and her accident, and that the rollover demonstrations are based on
scientific principles. In addition, Ms. Brown argues for the first time that if the Court finds the
Paper to be inadmissible, she should be able to introduce a high speed video demonstrating the
seat and the seat belt latch. A motion to reconsider should not “serve as the occasion to tender
new legal theories for the first time.” Publishers Resource, Inc. v. Walker-Davis Publications,
Inc., 762 F.2d 557, 561 (7th Cir. 1985); see also Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398,
404 (7th Cir. 1986) (“[A] motion for reconsideration is an improper vehicle to introduce evidence
previously available or to tender new legal theories”). “Reconsideration is not an appropriate
forum for rehashing previously rejected arguments or arguing matters that could have been heard
during the pendency of the previous motion.” Caisse Nationale de Credit Agricole v. CBI
Industries, Inc., 90 F.3d 1264, 1270 (7th Cir. 1996). The Court finds that Ms. Brown’s motion is
an improper attempt to take a second bite of the apple.
In any event, even considering Ms. Brown’s arguments, the Court already found in its
March 30, 2017 Order that the Paper detailing the rollover demonstrations is neither reliable nor
relevant. [See Filing No. 136 at 4-10.] The Court found that in accordance with Federal Rule of
Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-95 (1993), Mr. Scott
was not a qualified expert 1 given that he was not an engineer and the Court was not aware of any
knowledge, skill, experience, training, or education that would make him qualified in the field of
automotive safety. Moreover, the Court noted that Mr. Scott’s rollover demonstrations were not
scientifically reliable because they do not fit under any Daubert category. Ms. Brown did not
indicate whether the methodologies and principles from the demonstrations have been tested,
subjected to peer review and publication, or generally accepted in the scientific community.
Second, the Court determined that pursuant Federal Rules of Evidence 401 and 402, the evidence
was not relevant, because the rollover demonstrations differed in many ways from Ms. Brown’s
case, among other things, they involved a different type of vehicle. The Court therefore denies
Ms. Brown’s motion.
For the reasons set forth above, the Court DENIES Ms. Brown’s Motion to Reconsider the
Court’s Ruling. [Filing No. 147.]
Distribution via ECF only to all counsel of record
To be considered an expert, “the witness must be qualified as an expert by knowledge, skill,
experience, training, or education; the expert’s reasoning or methodology underlying the testimony
must be scientifically reliable; and the testimony must assist the trier of fact to understand the
evidence or to determine a fact in issue.” Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904
(7th Cir. 2007) (citing Daubert and Rule 702). In determining reliability, Daubert “sets forth the
following non-exhaustive list of guideposts: (1) whether the scientific theory can be or has been
tested; (2) whether the theory has been subjected to peer review and publication; or (3) whether
the theory has been generally accepted in the scientific community.” Ervin, 492 F.3d at 904 (citing
Daubert, 509 U.S. at 593-94).
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