Schall v. Suzuki Motor of America, Inc. et al

Filing 305

MEMORANDUM OPINION AND ORDER signed by Senior Judge Joseph H. McKinley, Jr. on 3/27/20 denying 187 Motion to Exclude cc: Counsel(DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO: 4:14-CV-00074-JHM
DEREK SCHALL

PLAINTIFF

V.
SUZUKI MOTOR OF AMERICA, INC.,
SUZUKI MOTOR CORP., and
NISSIN KOGYO CO., LTD.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants Suzuki Motor of America, Inc. (“SMAI”) and
Suzuki Motor Corporation’s (“SMC”) Motion to Exclude Plaintiff Derek Schall’s expert witness,
Jeffrey Hyatt. [DN 187]. Fully briefed, this matter is ripe for decision.
I.

BACKGROUND

Schall was injured in a motorcycle accident on July 19, 2013, in Daviess County, Kentucky.
[DN 5 ¶ 39]. He alleges that the accident was caused by defects in the front brake master cylinder on
the motorcycle, a 2007 Suzuki GSX-R600. [Id.]. He sued SMC, the manufacturer of the motorcycle;
SMAI, the importer of the motorcycle; and Nissin Kogyo Co., Ltd., the manufacturer of the brake
master cylinder, alleging strict products liability and negligence. [Id. ¶¶ 41–52].
II.

STANDARD OF REVIEW

Federal Rule of Evidence 702 provides that “[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 and methods; and (d) the expert has
reliably applied the principles and methods to the facts of the case.” Under Rule 702, the trial judge

acts as a gatekeeper to ensure that expert evidence is both reliable and relevant. Mike’s Train House,
Inc. v. Lionel, LLC, 472 F.3d 398, 407 (6th Cir. 2006) (citing Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137 (1999)).
Parsing the language of the Rule, it is evident that a proposed expert’s opinion is
admissible, at the discretion of the trial court, if the opinion satisfies three
requirements. First, the witness must be qualified by “knowledge, skill, experience,
training, or education.” FED. R. EVID. 702. Second, the testimony must be relevant,
meaning that it “will assist the trier of fact to understand the evidence or to determine
a fact in issue.” Id. Third, the testimony must be reliable. Id.
In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528–29 (6th Cir. 2008). “Rule 702 guides the trial
court by providing general standards to assess reliability.” Id.
In determining whether testimony is reliable, the Court’s focus “must be solely on principles
and methodology, not on the conclusions that they generate.” Daubert v. Merrell Dow Pharm. Inc.,
509 U.S. 579, 595 (1993). The Supreme Court identified a non-exhaustive list of factors that may
help the Court in assessing the reliability of a proposed expert’s opinion. These factors include:
(1) whether a theory or technique can be or has been tested; (2) whether the theory has been subjected
to peer review and publication; (3) whether the technique has a known or potential rate of error; and
(4) whether the theory or technique enjoys “general acceptance” within a “relevant scientific
community.” Id. at 592–94. This gatekeeping role is not limited to expert testimony based on
scientific knowledge, but instead extends to “all ‘scientific,’ ‘technical,’ or ‘other specialized’
matters” within the scope of Rule 702. Kumho Tire, 526 U.S. at 147. Whether the Court applies
these factors to assess the reliability of an expert’s testimony “depend[s] on the nature of the issue,
the expert’s particular expertise, and the subject of his testimony.” Id. at 150 (quotation omitted).
Any weakness in the underlying factual basis bears on the weight, as opposed to admissibility, of the
evidence. In re Scrap Metal Antitrust Litig., 527 F.3d at 530 (citation omitted). See also Brooks v.
Caterpillar Glob. Mining Am., LLC, No. 4:14CV-00022-JHM, 2017 WL 5633216, at *1–2 (W.D. Ky.
Nov. 22, 2017).
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III.

DISCUSSION

Schall retained Hyatt as a forensic engineer to examine Schall’s brake master cylinder. [DN
240 at 4]. Defendants now request that the Court exclude Hyatt’s testimony based on his opinions in
four areas: “(1) corrosion, (2) design defect, (3) testing conducted in Winckler v. Suzuki Motor
Corporation et al., and (4) Suzuki’s corporate knowledge or awareness.” [DN 240 at 8]. The Court
will address each challenge in turn.
A. Corrosion
1. Qualifications
Defendants argue that “Hyatt is not qualified to offer corrosion opinions.” [DN 187 at 4].
They say that Hyatt “admittedly does not have expertise in chemistry, metallurgy, materials science
or materials engineering.” [Id.]. They also say that Hyatt “has never authored any papers on
corrosion.” [Id.]. In essence, Defendants assert that Hyatt’s “expertise in testing products and
materials, combined with his ‘general understanding’ of galvanic corrosion does not qualify him as
an expert in corrosion.” [Id. at 5].
To offer his expert opinions on corrosion, Hyatt must be qualified based on his “knowledge,
skill, experience, training, or education.” FED. R. EVID. 702. “[T]o be qualified as an expert witness
under Rule 702, an expert need not be a blue-ribbon practitioner with optimal qualifications or have
an intimate level of familiarity with every component of a product as a prerequisite to offering expert
testimony.” Jackson v. E-Z-GO Div. of Textron, Inc., 326 F. Supp. 3d 375, 387–88 (W.D. Ky 2018)
(citation and internal quotation marks omitted). “In other words, experts need not even have direct
experience with the precise subject matter or product at issue.” Id. at 388 (citation and internal
quotation marks omitted). Furthermore, “an expert is permitted wide latitude to offer opinions,
including those that are not based on firsthand knowledge or observation” as long as “the expert’s

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opinion will have a reliable basis in the knowledge and experience of his discipline.” Daubert, 509
U.S. at 592.
Hyatt is qualified to offer expert opinions in this matter. Hyatt has been employed at Applied
Technical Services, Inc. (“ATS”) since 1996. [DN 240-7 at 1]. His experience at ATS includes
“[i]nvestigation and analysis of failures involving all major systems of automobiles, light trucks and
heavy trucks, including seatbelts, airbags, hydraulic brakes, air brakes, engines, transmissions, vehicle
computer systems, anti-lock brakes, tire failures, axle and wheel separations, door latch and hinge
integrity, locks and security systems.” [Id.]. Hyatt obtained a Bachelor of Science in Mechanical
Engineering Technology. [Id.]. Hyatt does not have his engineering license nor is he a metallurgist,
materials scientist, or materials engineer. [DN 240-9 Hyatt Dep. 9:3–6, 123:13–19]. He also has not
published any papers on corrosion. [Id. at 123:10–12]. However, his over 30 years of vehicle
hydraulic brake experience coupled with his reliance on a metallurgist at ATS to identify that there
was zinc corrosion on the brake master cylinder is sufficient to qualify him as an expert to give limited
opinions about corrosion. [DN 240-8 at 9, DN 240-9 Hyatt Dep. 13:14–17]. Hyatt has described his
work in determining how contaminants get into the brake system as having to rely on others to tell
him what the contaminant is, and then he relies on his testing or their knowledge to determine what
the effect might be. [DN 187-9 Soulliere Hearing 57:13–24]. His corrosion opinions are based on
his observations of the material, analysis of the material, and his experience with other pistons that
he has examined in other cases. [DN 240-9 Hyatt Dep. 64:24–65:5]. Given Hyatt’s education and
experience, he is qualified to offer his opinions about corrosion. See FED. R. EVID. 702(a) (an expert
may be qualified by “knowledge, skill, experience, training, or education.”). In his reports, Hyatt did
not testify regarding how galvanic corrosion occurs or the science behind corrosion. Thus, in as much
as Schall might attempt to elicit such testimony at trial from Hyatt, such testimony will not be
permitted.
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2.

Reliable Basis
Defendants also argue that Hyatt’s corrosion opinion is unreliable because “he examined the

piston more than three years after the accident when the piston’s condition had clearly changed.” [DN
187 at 7]. Defendants assert that “[b]etween the initial inspection of the spring and piston in April
2014 and the time those components were received by Mr. Hyatt in January 2016, they were in the
possession and control of agents of [Schall]—i.e., [Schall’s] experts and/or attorneys—and the
conditions of their storage are unknown to Suzuki.” [Id.]. Defendants additionally note that “[w]hat
Mr. Hyatt ignores is the fact that the white crust like substance that he observed on the piston in
November 2016 was not present on the piston when it was disassembled at the joint inspection on
April 14, 2014.” [Id. at 8].
“[M]ere weaknesses in the factual basis of an expert witness’ opinion . . . bear on the weight
of the evidence rather than on its admissibility.” McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 801
(6th Cir. 2000). The weaknesses identified by Defendants bear on the weight of Hyatt’s opinions and
not on their admissibility. Hyatt’s corrosion opinions are reliable because Hyatt inspected the
component parts that were delivered to his lab. [DN 240-8 at 3]. He had the corrosive material tested
by a metallurgist at his lab. [DN 240-9 Hyatt Dep. 13:14–21]. His corrosion opinions are based on
his observations, analysis, and his experience with other pistons that he has examined in other cases.
[Id. at 64:24–65:5]. Therefore, Hyatt’s corrosion opinions are reliable.
B. Defect Design
1. Qualifications
Defendants argue that Hyatt is not qualified to opine regarding the design of the brake master
cylinder because he “is not a metallurgist, materials science expert, chemist or automotive design
engineer.” [DN 187 at 11]. They also assert that Hyatt “has never designed a motorcycle, a
motorcycle brake system, a brake system master cylinder or any part of a brake system for any
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vehicle.” [Id.]. Defendants say that Hyatt’s “only experience as an expert with motorcycle brake
issues has been his work on Suzuki front brake master cylinder cases.” [Id. at 11–12].
As discussed previously, an expert need not have direct experience with the product at issue.
Jackson, 326 F. Supp. 3d at 387–88. So, the Court does not find Defendants’ argument about Hyatt’s
lack of experience with designing motorcycles or motorcycle brake systems persuasive. “The federal
courts in a number of product liability cases involving engineering experts have permitted an expert
witness with general knowledge to give expert testimony where the subject of that testimony related
to such general knowledge but the expert had no specialized knowledge of the particular
product.” Burke ex rel. Burke v. U-Haul Int’l, Inc., No. 3:03CV-32-H, 2006 WL 3043421, at *4
(W.D. Ky. Oct. 20, 2006) (permitting an expert qualified in vehicle dynamics to opine how a tow
dolly reacted to an accident, even though the expert had no particular experience with tow dollies);
Palatka v. Savage Arms, Inc., 535 F. App’x 448, 455 (6th Cir. 2013) (“[W]e will not require [an
expert] to have a specialized knowledge of firearms to offer opinions” in a firearm design and
manufacturing defect case where the expert had “skill, education, and training in mechanical
engineering.”). The Court considers a proposed expert’s “full range of practical experience as well
as academic or technical training when determining whether that expert is qualified to render an
opinion in a given area.” Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000); see also
Brooks, LLC, 2016 WL 276126, at *3 (same).
As discussed previously, Hyatt has over thirty years of hydraulic brake experience. [DN 240-8
at 9]. He does not need experience directly with the brake master cylinder at issue to opine about its
design. Even so, he has worked as an expert with motorcycle brake issues on other Suzuki brake
master cylinder cases. [Id. at 11]. In his time at ATS, he has conducted investigations and analysis
of failures such as hydraulic brakes. [DN 240-7 at 1]. Hyatt’s experience is coupled with his degree

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in Mechanical Engineering Technology. [Id.]. Thus, Hyatt’s education and experience qualifies him
to offer opinions about the design of the brake master cylinder.
2. Relevance
Defendants argue that Hyatt’s design defect opinions are not relevant to the facts of the case.
[DN 187 at 15]. Defendants say, “[w]hile Mr. Hyatt himself does not offer any opinion about the
cause of [Schall’s] crash, [Schall] presumably seeks to offer his design defect opinions to support the
theory that [Schall’s] degraded brake fluid caused the piston to corrode, which in turn generated
hydrogen gas, which in turn caused a loss of brake pressure.” [Id.]. Defendants conclude that
“[w]ithout any evidence linking his abstract design defect opinion to the facts of this case, his opinion
is irrelevant . . . .” [Id. at 17].
In a products liability case, “[n]egligence and strict liability theories of recovery overlap to
the degree that, in either instance, the plaintiff must prove the product was defective and the legal
cause of the injury.” Shea v. Bombardier Recreational Prods., Inc., No. 2011-CA-000999-MR, 2012
WL 4839527, at *4 (Ky. Ct. App. 2012) (citing Tipton v. Michelin Tire Co., 101 F.3d 1145, 1150
(6th Cir. 1996)). See also Hinken v. Sears Roebuck & Co., No. 13CV-283-HRW, 2015 WL 165027,
at *3 (E.D. Ky. Jan. 13, 2015); Yonts v. Easton Tech. Prods., Inc., No. 3:11-CV-535-DJH, 2015 WL
3408937, at *5 (W.D. Ky. May 27, 2015). “The ultimate question is whether the product creates
‘such a risk’ of an accident of the general nature of the one in question ‘that an ordinarily prudent
company engaged in the manufacture’ of such a product ‘would not have put it on the
market.’” Yonts, 2015 WL 3408937, at *5 (quoting Montgomery Elevator Co. v. McCullough by
McCullough, 676 S.W.2d 776, 780, 782 (Ky. 1984)).
Hyatt testified that the design defect is the use of two dissimilar metals, in direct contact with
each other, in the brake master cylinder. [DN 240-9 Hyatt Dep. 51:1–18]. He opined that the brake
master cylinder “was defective due to its inability to self-bleed and the fact that use of the zinc piston
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in this manner caused it to be unusually sensitive to corrosion attack.”

[DN 240-8 at 11].

Furthermore, he said, “in my 30 plus years of vehicle hydraulic brake experience I had [sic] never
encountered zinc as a material used internally on hydraulic brake systems.” [Id. at 9]. The Court
finds that Hyatt’s opinion is relevant to determining whether the brake master cylinder was
defectively designed or had a manufacturing defect.
3. Reliability
For similar reasons discussed above, Defendants argue that Hyatt’s design defect opinions are
not reliably applied to the facts of this case. [DN 187 at 15]. Defendants say, “[t]here is no evidence
that there was hydrogen gas in [Schall’s] front brake master cylinder at the time of the crash or nine
months later when the master cylinder was disassembled at the April 14, 2014 inspection.” [Id.].
They contend that “[t]he sudden, complete loss of all brake pressure at the time of the crash that
[Schall] described in his deposition is inconsistent with the gradual loss of brake pressure that can
occur under the recall condition, namely that gas slowly builds up over time due to corrosion.” [Id.].
There is evidence linking Hyatt’s opinion to the facts. Hyatt’s opinion concerning the
corrosion of the zinc piston was based on his testing and observations as discussed previously. He
tested top feed master cylinders and discovered that they do not trap gas, unlike his testing of the
brake master cylinder at issue here which is not a top feed brake master cylinder. [DN 240-8 at 11].
He reviewed Suzuki documents that led him to the opinion that Suzuki was aware of the defect and
replaced the brake master cylinder with a design that included a top feed master cylinder when the
recall occurred. [Id.]. He also noted that in his experience he had never seen zinc used as a material
internally on a hydraulic brake system. [DN 240-8 at 9]. Additionally, in his supplemental report,
Hyatt offers the opinion that “[t]he Suzuki test data and the evaluation of the [Brembo] products
demonstrated that the aluminum piston would have been more corrosion resistant, and was an
effective and feasible alternative design that pre-dated the manufacture of the subject master cylinder
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in this case.” [DN 240-10 at 5]. This opinion was based on Hyatt’s reading of a Suzuki report and
purchasing and examining a piston manufactured by the Brembo company. [Id. at 2–4]. Again, in
addition to reviewing Suzuki documents, he examined the Brembo product considering his training
and experience. [DN 240-10 at 5]. As such, Hyatt’s opinions are reliable. To the extent that Schall
uses Hyatt’s opinion to support Schall’s theory of causation, Defendants will have the opportunity at
trial to challenge Hyatt’s opinion in relation to the circumstances of Schall’s accident and their own
theory of causation.
C. Testing Conducted in Winckler v. Suzuki Motor Corp. et al.
1. Gas Entrainment and Self-Bleeding Test
Defendants assert that Hyatt’s “‘Gas Entrainment and Self-Bleeding Test’ did not use a
scientifically valid methodology.” [DN 187 at 18]. They further argue that Hyatt’s testing is not
reliable under any of the non-exclusive factors listed in Daubert. [Id. at 19]. The “Gas Entrainment
and Self-Bleeding Test” took place in Winckler v. Suzuki Motor Corp. et al. The testing involved
equipment with identical performance specifications to Schall’s motorcycle. [DN 240-9 Hyatt Dep.
45:14–46:9]. The purpose of the test was to evaluate the pre-recall brake master cylinder and the
post-recall brake master cylinder’s ability to purge air from the system. [Id. at 46:11–47:1]. To
conduct the test, Hyatt installed an exemplar 2006 brake master cylinder on an exemplar GSX-R1000.
[DN 240-8 at 6]. “The brake system was bled of all entrained gases.” [Id.]. The 2006 brake master
cylinder exemplar had a side fluid entry port, which was the type that Suzuki recalled. [Id.]. Hyatt
measured the brake lever forces. [Id. at 7]. Hyatt then forced air back through the bleeder screw until
air freely bubbled into the master cylinder reservoir. [Id.]. “The bleeder screw was resealed and the
brake lever cycled back and forth operating the master cylinder until bubbles were no longer observed
by way of the reservoir.” [Id.]. Hyatt then measured the brake lever force again. [Id.]. Hyatt also
obtained from Suzuki the replacement brake master cylinder used in the recall. [Id.]. The fluid entry
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port on the replacement brake master cylinder was on the top. [Id. at 8]. Hyatt concluded that “these
top feed entry master cylinders were not susceptible to gas entrainment brake loss like the subject
2006 side entry master cylinder was.” [Id. at 11].
Defendants maintain that “[t]here is no proof that his methodology can or has been tested, has
been subject to peer review or publication, or has been accepted by any relevant scientific or technical
community.” [DN 187 at 19]. They also say, “[t]he test cannot be accurately replicated because he
did not measure the amount of gas pumped into the brake line—he merely eyeballed ‘aggressive
bubbling’ in the reservoir.” [Id.]. Defendants also argue that the test “was devised solely for purposes
of litigation, and the purported results are inconsistent with the results of the dynamic brake function
testing he conducted in Stubblefield [v. Suzuki Motor Corp.].” [Id. at 21].
While there is no evidence that Hyatt’s methodology has been tested in the past, Hyatt was
thorough in his description so that the methodology can be tested and replicated. [DN 240-8 at 6–8].
There is also no evidence that the methodology has been subject to peer review or publication or has
been accepted by the scientific community. But as Defendants aptly point out, the Daubert factors
are non-exclusive. [DN 187 at 19]. Contrary to Defendants’ assertion that Hyatt’s testing was
litigation driven, he describes in his report that the methodology he followed “is of the kind that is
usually and customarily followed by reconstructionist and vehicle investigators,” is “the same kind
[he] would follow for any client who asks for a forensic analysis,” and is “the same analytical
procedure [he has] used in [the] industry, and that [he] would use to evaluate a product’s design . . . .”
[DN 240-8 at 3]. Additionally, the nature of Hyatt’s work is “specialized testing . . . for clients”
because it is an “independent test facility.” [DN 240-8 at 2].
In Stubblefield, Hyatt conducted testing on a 2006 Suzuki GSX-R1000 with a side port. [DN
187-16 at 2–3]. In that testing, a professional motorcyclist rode the motorcycle and aggressively
stopped it while traveling at designated speeds. [Id. at 8]. The speed and stopping distances were
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recorded. [Id.]. In his report, Hyatt said, “during the testing above, it was observed that with each
additional application of the brakes there was an improvement of the brakes [sic] performance.” [Id.
at 9]. Defendants conclude that in contrast to the “Gas Entrainment and Self-Bleeding” test in
Winckler, the Stubblefield test shows a brake master cylinder with “significantly improved braking
function after only a few brake applications.” [DN 187 at 20]. As a result, Defendants argue that
Hyatt’s “own testing demonstrates that his static brake testing method is unreliable in determining
whether a side port is effective in purging gas while being ridden.” [Id.]. The results of the
Stubblefield test do not show that the Winckler test is unreliable. The Stubblefield testing focused on
“testing and evaluation of the motorcycle under operational conditions.” [DN 187-16 at 3]. Hyatt
described the Stubblefield test as “functional testing of exhibit motorcycle brakes,” whereas the
Winckler test was used to “determine the ability of the original master cylinder design to self-bleed
when gases become trapped in the master cylinder bore.” [DN 240-8 at 6, DN 187-16 at 5]. These
tests appear to have different purposes, but any inconsistency goes to the weight of Hyatt’s opinion
and not its admissibility.
2. Ride Testing of Front Brakes
In another test conducted in the Winckler case, the purpose was to calculate certain stopping
distances relevant in Winckler. [DN 187-17 at 2]. In this test, Hyatt had a professional motorcycle
rider perform test runs on an exemplar 2008 Suzuki GSX-R1000 motorcycle. [DN 240-9 Hyatt Dep.
95:10–15, DN 187-17 at 2]. In a letter to Schall’s attorney, Hyatt says, “a secondary effect of this
testing was that it demonstrated that a rider could easily have only 50% of their brakes [sic] capacity
and the motorcycle would not exhibit any apparent deficiency in a low speed (less than 5 mph) brake
test, but at higher speeds (greater than 25 mph) this same condition would result in nearly double the
stopping distance when compared to a normal functioning brake system.” [DN 187-17 at 2]. Hyatt
says that this testing supports that Schall had gas in his master cylinder:
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The gas resulted perhaps in reduced braking. It might explain how you might not
understand that you have reduced braking if you did a stop check or a quick check, it
would explain that it might not be detectable to a rider unless they had a good
understanding of the difference in the feel of the brake lever.
[DN 240-9 Hyatt Dep. 92:21–93:7].
Defendants argue that Hyatt’s testimony about the test should be excluded for three reasons:
“(1) the ostensible conclusions are immaterial to any issue in this case, (2) the test protocol allows
undetected and undocumented variability in the process and results, and (3) he is not an expert in
human factors or motorcycle riding and is not qualified to give opinions regarding how a rider might
perceive the effectiveness of his brakes’ performance.” [DN 187 at 21].
First, the Court disagrees with Defendants that the testimony is immaterial. [Id. at 23]. As
discussed previously, in a products liability case, “[n]egligence and strict liability theories of recovery
overlap to the degree that, in either instance, the plaintiff must prove the product was defective and
the legal cause of the injury.” Shea, 2012 WL 4839527, at *4. Whether a rider’s brakes would exhibit
any apparent deficiency at certain speeds is relevant for the jury to determine causation here.
Furthermore, Hyatt did not admit that “the notion that Plaintiff experienced a loss of brake
pressure due to gas in the brake system is merely a theory” as Defendants assert. [DN 187 at 23].
Hyatt’s opinion is not speculative because it is supported by the record. Hyatt explained that “ATS
testing has demonstrated that a Suzuki GSX-R with approximately 50% gas inside the recalled master
cylinder can stop abruptly enough at speeds less than 5 mph to be able to cause the rear wheel to come
off the ground. However, that same motorcycle at speeds of 25–28 mph will only develop about half
its braking capacity due to the presence of gas and cannot lock its brake at high speed.” [DN 187-17
at 2].
Second, Defendants’ assertion that Hyatt’s testing “protocol allows undetected and
undocumented variability in the process and results” does not make Hyatt’s testing unreliable. [DN
187 at 21]. The only record of how firmly the rider squeezed the brake lever in any of the test runs is
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what was captured on video. [DN 240-9 Hyatt Dep. 99:24–100:3]. Hyatt documented the speeds and
the stopping distances and calculated the deceleration rate from his testing. [Id. at 102:4–7].
However, Defendants complain that “there was no mechanism to document or measure the amount
of brake force applied” during the testing. [DN 187 at 26]. Even with this weakness in the
documented testing conditions, Hyatt did adequately document his testing conditions when he
recorded the test on video, and documented the speeds and stopping distances, which makes his
testing reliable. See Smelser v. Norfolk Southern Ry. Co., 105 F.3d 299, 304 (6th Cir. 1997),
abrogated on other grounds by Morales v. Am. Honda Motor Co., Inc., 151 F.3d 500 (6th Cir. 1998)
(finding that expert’s opinion could not be based on good science when, among other things, the
expert “failed to adequately document testing conditions and the rate of error so the test could be
repeated and its results verified and critiqued”).
Third, Defendants assert that Hyatt is not an expert in human factors, so he is not qualified to
give his opinion. [DN 187 at 26]. While Hyatt is not a human factors expert or a motorcycle riding
expert, his opinion merely explains whether diminished braking capacity is noticeable at certain
speeds. [DN 187-17 at 2]. His testimony is based on testing that shows stopping distances of a
motorcycle at various speeds, which is not a human factors or motorcycle riding expert opinion.
D. Corporate Knowledge or Awareness
Finally, Defendants argue that Hyatt’s opinion regarding Suzuki’s knowledge or awareness
should be excluded. [DN 187 at 27]. They contend that Hyatt’s conclusions about what Suzuki was
aware of and its state of mind are “based simply on his review of documents produced by Suzuki
rather than on any expert analysis of evidence.” [Id.].
“Courts have typically barred expert opinions or testimony concerning a corporation’s state
of mind, subjective motivation, or intent. In general, courts have found that this type of ‘testimony
is improper . . . because it describes ‘lay matters which a jury is capable of understanding and deciding
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without the expert’s help.’” In re E.I. du Pont Nemours & Co. C-8 Pers. Injury Litig., 348 F. Supp.
3d 698, 718 (S.D. Ohio 2016) (citations omitted); see In re Heparin Prod. Liab. Litig., MDL No.
1953, 2011 WL 1059660, at *6, *8 (N.D. Ohio Mar. 21, 2011) (finding that an expert could not testify
about the “knowledge, motivations, intent or purposes of Defendants or their employees” nor could
an expert “testify concerning the state of mind, intent, knowledge, purposes, or motivations of
Defendants, its employees, or the FDA”).
Hyatt opines that “Suzuki was aware of the self[-bleeding] defect with the 2007 master
cylinder as early as June 2012 but waited until October 2013 to issue a recall of this design and offer
a replacement upgrade to the top feed master cylinder.” [DN 240-8 at 11]. Hyatt also opines that
“[e]vidence indicated that Suzuki was aware of the susceptibility of the subject GSX-R master
cylinder to corrosion attack as early as April 2013.” 1 [Id.]. He further states that a top feed master
cylinder “would have allowed any corrosion gases produced in the master cylinder to escape and not
cause reduced braking.” [Id.]. He relies on a report that indicated that Suzuki and Nissin were “aware
that the zinc piston inside the subject type master cylinder [was] suffering the buildup of solid zinc
residues . . . .” [Id.].
Hyatt based his opinions on ATS research data, testing on the subject motorcycle components,
previous testing of GSX-R front brakes in four other investigations, corporate reports, and historical
documents regarding the brake system design and materials. [Id. at 3]. Based on his engineering
background and his review of the data and evidence, Hyatt can opine about what Defendants were
aware of and when they were aware of it, which will assist a jury in understanding whether
Defendants’ actions were reasonable. In re Yamaha Motor Corp. Rhino ATV Prods. Litig., 816
F. Supp. 2d 442, 459 (W.D. Ky. 2011) (permitting expert testimony regarding “what Yamaha knew

1

Hyatt later says in the report that “[r]eview of the Suzuki and Nissin Kogyo documents have led me to conclude that
Suzuki and Nissin Kogyo were aware of the susceptibility of the subject GSX-R master cylinder to corrosion attack as
early as April 2009.” [DN 240-8 at 11–12].

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and when”); see also Tillman v. C.R. Bard, Inc., 96 F. Supp. 3d 1307, 1333 (M.D. Fla. 2015) (“[T]o
the extent [an expert] merely discusses what information was available and possessed by [the
defendant] prior to [the] procedure, this testimony is helpful and relevant to determining whether [the
defendant] acted reasonably and does not improperly comment on [the defendant’s] ‘state of mind.’”).
IV. CONCLUSION
For the reasons set forth above, Defendants’ Motion to Exclude the testimony of Hyatt [DN
187] is DENIED.

March 27, 2020

cc: counsel of record

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