Eveler, et al v. Ford Motor Company
ORDER AND REASONS granting 97 Motion for Summary Judgment. Plaintiff's design defect claim against Ford is DISMISSED WITH PREJUDICE. Signed by Judge Lance M Africk on 8/7/2017. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KAYLEE EVELER ET AL.
FORD MOTOR CO.
ORDER AND REASONS
Two years ago, Luis and Kaylee Eveler were driving on I-10 with two of their
children. Luis was at the wheel of the family’s Ford Explorer. A vehicle allegedly
encroached on the Evelers’ lane. Luis swerved to avoid it, and then turned again.
The Explorer rolled over. All four Evelers were ejected from the vehicle. Their lives
would never be the same.
Luis and Kaylee ended up homeless. The children went into foster care. And
Kaylee may never fully recover from her debilitating injuries.
It took nine months after the accident for Luis to obtain stable employment as
a plumber. Luis’s job provided the Evelers with the means to get off the streets. With
a roof over their heads, Luis and Kaylee were able to regain custody of their children
Such a tragedy is inevitably accompanied by the apportionment of blame. The
Evelers believe that the design of their Ford Explorer was at least partly to blame for
the crash. So they sued Ford, alleging that the design of the Explorer made it
unreasonably prone to rolling over.
Ford disagrees and moves for summary judgment, arguing that the Evelers
cannot demonstrate a viable alternative design for the Explorer that would have
prevented the Evelers’ injuries. See R. Doc. No. 97. Because the Court agrees, the
Court grants Ford’s motion for summary judgment.
Summary judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any affidavits, the court determines
that there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. “[A] party
seeking summary judgment always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record]
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the party seeking summary judgment carries its burden pursuant to Rule
56, the nonmoving party must come forward with specific facts showing that there is
a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied
by creating “‘some metaphysical doubt as to the material facts,’ by ‘conclusory
allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, 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). The party responding to the motion for summary judgment
may not rest upon the pleadings, but must identify specific facts that establish a
genuine issue. Id. The nonmoving party’s evidence, however, “is to be believed, and
all justifiable inferences are to be drawn in [the nonmoving party’s] favor.” Id. at 255;
see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert
witness testimony. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588
(1993); United States v. Hitt, 473 F.3d 146, 148 (5th Cir. 2006). Rule 702 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
(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
(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.
“To qualify as an expert, ‘the witness must have such knowledge or experience
in [his] field or calling as to make it appear that his opinion or inference will probably
aid the trier in his search for truth.’” United States v. Hicks, 389 F.3d 514, 524 (5th
Cir. 2004) (quoting United States v. Bourgeois, 950 F.2d 980, 987 (5th Cir. 1992)).
Additionally, Rule 702 states that an expert may be qualified based on “knowledge,
skill, experience, training, or education.” Hicks, 389 F.3d at 524; see also Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (discussing witnesses whose
expertise is based purely on experience). “A district court should refuse to allow an
expert witness to testify if it finds that the witness is not qualified to testify in a
particular field or on a given subject.” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir.
2009) (quoting Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999)). However, “Rule
702 does not mandate that an expert be highly qualified in order to testify about a
given issue. Differences in expertise bear chiefly on the weight to be assigned to the
testimony by the trier of fact, not its admissibility.” Id.; see Daubert, 509 U.S. at 596.
Daubert “provides the analytical framework for determining whether expert
testimony is admissible under Rule 702.” Pipitone v. Biomatrix, Inc., 288 F.3d 239,
243 (5th Cir. 2002). Both scientific and nonscientific expert testimony is subject to
the Daubert framework, which requires a trial court to conduct a preliminary
assessment to “determine whether the expert testimony is both reliable and
relevant.” Burleson v. Tex. Dep’t of Criminal Justice, 393 F.3d 577, 584 (5th Cir.
2004); see Kumho Tire, 526 U.S. at 147.
A number of nonexclusive factors may be relevant to the reliability inquiry,
including: (1) whether the technique has been tested, (2) whether the technique has
been subjected to peer review and publication, (3) the techinque’s potential error rate,
(4) the existence and maintenance of standards controlling the technique’s operation,
and (5) whether the technique is generally accepted in the relevant scientific
community. Burleson, 393 F.3d at 584. The reliability inquiry must remain flexible,
however, as “not every Daubert factor will be applicable in every situation; and a court
has discretion to consider other factors it deems relevant.” Guy v. Crown Equip.
Corp., 394 F.3d 320, 325 (5th Cir. 2004); see Runnels v. Tex. Children’s Hosp. Select
Plan, 167 F. App’x 377, 381 (5th Cir. 2006) (“[A] trial judge has ‘considerable leeway’
in determining ‘how to test an expert’s reliability.’”). “Both the determination of
reliability itself and the factors taken into account are left to the discretion of the
district court consistent with its gatekeeping function under [Rule] 702.” Munoz v.
Orr, 200 F.3d 291, 301 (5th Cir. 2000).
With respect to determining the relevancy of an expert’s testimony pursuant
to Rule 702 and Daubert, the proposed testimony must be relevant “not simply in the
way all testimony must be relevant [pursuant to Rule 402], but also in the sense that
the expert’s proposed opinion would assist the trier of fact to understand or determine
a fact in issue.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).
“There is no more certain test for determining when experts may be used than the
common sense inquiry whether the untrained layman would be qualified to determine
intelligently and to the best degree the particular issue without enlightenment from
those having a specialized understanding of the subject involved in the dispute.”
Vogler v. Blackmore, 352 F.3d 150, 156 n.5 (5th Cir. 2003) (quoting Fed. R. Evid. 702
advisory committee’s note).
The Court applies a preponderance of the evidence standard when performing
its gatekeeping function under Daubert. See Daubert, 509 U.S. at 592 n.10. The
Court is not bound by the rules of evidence—except for those with respect to
privileges—when doing so. See id.
All that remains in this case is a single design defect claim under the Louisiana
Products Liability Act. See R. Doc. No. 35. To establish that a product is defective in
design under the Louisiana Products Liability Act, a plaintiff must show—among
other things—that “[t]here existed an alternative design for the product that was
capable of preventing the claimant’s damage.” La. R.S. 9:2800.56.
The Evelers argue that their Ford Explorer was defectively designed because
its track width is too narrow for its center of gravity. They rely on the Explorer’s
“static stability factor” to quantify that defect.
The static stability factor of a vehicle is a ratio that compares a vehicle’s track
width to the height of its center of gravity. (For the technically inclined, the equation
is static stability factor = track width / (2 x center of gravity height).) All things
considered, a higher static stability factor will result in an automobile having a lower
propensity to roll over on the road because the car will be less top heavy.
That basic relationship—a higher static stability factor is correlated with a
lower propensity to roll over on the road—is widely accepted. See, e.g., Consumer
Information Regulations; Federal Motor Vehicle Safety Standards; Rollover
Prevention, 68 Fed. Reg. 34998-03, at 35019 (request for comments June 1, 2000);
Montgomery v. Mitsubishi Motors Corp., No. 04-3234, 2006 WL 1967361, at *2 (E.D.
Pa. 2006). That is why, for example, NHTSA considers a vehicle’s static stability
factor when awarding its rollover star ratings. See Consumer Information; New Car
Assessment Program; Rollover Resistance, 68 Fed. Reg. 59250-01, 59263 (final policy
statement Oct. 14, 2003). Even Ford concedes as much: a vehicle’s center of gravity
and track width “are very important factors in rollover stability.” Daubert Hr. Tr.
111:22-23 (testimony of Donald Tandy).
The Evelers argue that the Ford Explorer had a design defect insofar as it had
a static stability factor below 1.2. The Evelers rely on their forensic engineering
expert, Paul Semones, to arrive at that figure. Semones arrived at 1.2 as the relevant
number by analyzing NHTSA data suggesting that a static stability factor above 1.2
results in a significantly reduced rollover risk. See R. Doc. No. 32-2, at 14; see also R.
Doc. No. 32-2, at 24.
Unsurprisingly, then, the Evelers’ proposed alternative design is a Ford
Explorer modified to have a static stability factor above 1.2. Achieving such a design
is not all that hard—all it requires is lowering the Explorer body a bit and using a
combination of spacers and rims to widen the track width. Semones offers the opinion
that such a modified Explorer would not have similarly rolled over if put in the same
position as the Evelers’ Ford Explorer.
And that is where the Evelers’ problems in this lawsuit begin.
Before diving into the Daubert analysis, it is helpful to briefly discuss the
physics of rollover accidents. At the risk of overgeneralization, there are two main
types of rollovers: tripped and untripped rollovers. See, e.g., 68 Fed. Reg. at 35009.
A tripped rollover occurs when a vehicle’s tires hit an external object and the
vehicle trips over that object. The principle here is familiar to anyone that has ever
tripped on an uneven New Orleans sidewalk: the crack stops your foot’s forward
progress, your center of gravity goes out beyond your base of support, and you topple
over. The same phenomenon can happen to vehicles when they hit a curb, a pothole,
or a guardrail. Tripped rollovers—while certainly hazardous to the occupants of a
car—are somewhat less of a concern from a product design perspective simply
because the trip can exert forces such that any vehicle—from a Porsche to a cement
mixer—will inevitably roll over no matter how well designed. See Daubert Hr. Tr.
77:25-78:2 (testimony of Paul Semones).
One of the most common tripped rollovers is what is called a “furrow trip”. A
furrow trip begins when a vehicle slides off the road. The weight of the vehicle presses
the tires into the ground and the vehicle essentially plows a trench through the dirt.
That sets off a chain reaction that overwhelms the vehicle’s inherent stability. As
Ford’s expert explained:
When you’ve got thousands of pounds down on those tires, they dig
trenches. When they do that they are expelling dirt.
There has been studies to show that the lateral forces spike much higher
than you get on pavement. That’s because you're trying to push dirt out of the
way. It’s like being in a boat and trying to put your hand down in the water.
The water moves pretty easy, but it doesn't move very easy at 55 miles an
So you have to give that mass energy to expel it, and that puts a force
back in the vehicle and acts as a tripping mechanism. I’ve investigated crashes
of passenger cars, sports cars, Ferraris that slid off a test track, dug in a couple
inches and flipped over because the forces are very high.
Daubert Hr. Tr. 116:18-117:6 (testimony of Donald Tandy).
Untripped rollovers, by contrast, are maneuver-induced rollovers where a
vehicle rolls over on the road without striking an object. Untripped rollovers are more
concerning from a product design standpoint—though the parties dispute how
much—because they are more directly attributable to a vehicle’s design and handling
Paul Semones, the Evelers’ expert, has consistently offered the opinion that
the Evelers’ Explorer suffered from an untripped rollover. His theory of how that
rollover occurred, however, has changed.
Semones’s first theory of the crash was that the Explorer suffered “an
untripped, passenger-side leading rollover due to tire/pavement friction forces alone
as a result of an emergency steering maneuver.” R. Doc. No. 87-1, at 13. And
Semones can hardly be blamed for reaching that conclusion: the police report issued
after the crash depicted an untripped, on-road rollover:
R. Doc. No. 94-1, at 6.
Both sides now admit that the police report—and by extension Mr. Semones—
was wrong in concluding that this was a passenger-side rollover. See Daubert Hr. Tr.
Shortly after Mr. Semones issued his reports, the parties
obtained body camera footage from the officer that responded to the crash. That body
camera footage makes clear that not only did the Ford Explorer suffer a driver’s side
rollover, but also that the Explorer slid for a number of feet through I-10’s median
before rolling over.
A little extra digging revealed that the Evelers’ tire tracks
through the median showed up on the Google Earth photos of the crash site:
R. Doc. No. 94-1, at 9 (diagram of Ford’s accident reconstructionist).
The agreed-upon track through the median is problematic for Semomes’s
opinion that the rollover occurred because of a defect in the Ford Explorer.
particular, the Explorer’s traverse of the median creates the significant possibility
that the Explorer suffered from a furrow trip (rather than an untripped rollover on I10’s surface).
As a result, Semones had to alter his theory of how the crash occurred so that
the Explorer’s rollover would still be untripped (and therefore Ford still to blame).
Semones’s new, post-body-cam theory of the crash was that the Evelers’ Explorer was
committed to rolling over before it left the pavement.
Semones bases that opinion
on his belief that the Explorer had achieved “two-wheel lift” before leaving the
pavement. He further opines that the Explorer will inevitably roll when it achieves
two-wheel lift. See Daubert Hr. Tr. 72:5-12; 75:18-76:4; 80:1-81:14; 85:3-16.
Color the Court skeptical. Both sides agree that the visible yaw marks extend
over thirty feet into the median. See Daubert Hr. Tr. 70:22-71:1. So under Semones’s
theory of the crash, the Explorer manages to slide off the road, onto the shoulder, and
then thirty feet into the median—all the while going sidewise on only two wheels—
before rolling over. That seems more than unlikely.
The Court’s skepticism is further heightened by the fact that Semones’s
evidentiary support for that theory is threadbare. He relies on a video he watched of
a Ford Explorer rolling over, Daubert Hr. Tr. 75:18-76:4, but then concedes that the
video was of a prior generation Ford Explorer with a different suspension, Daubert
Hr. Tr. 78:3-7, and that he was unaware of the tire conditions on that vehicle, Daubert
Hr. Tr. 79:12-25. He relies on testing data, Daubert Hr. Tr. 85:7-8, but then concedes
that the very testing data on which he relies suggests that vehicles can achieve twowheel lift without rolling over, Daubert Hr. Tr. 85:13-16. He relies on other Ford
Explorer rollover incidents he investigated, but in at least one of the handful of cases
to which he points the Court, the cause of the accident appears to be partially
traceable to the driver falling asleep, see R. Doc. No. 63-11, at 15—a cause hardly
attributable to the design of the Explorer. And even if each of those handpicked cases
involved two-wheel lift that transitioned to full rollover, those handful of crashes
hardly establish Semones’s ultimate conclusion—two-wheel lift inevitably leads to
rollover—particularly given the sheer number of Ford Explorers on the road.
Nonetheless, despite this Court’s significant concerns regarding Semones’s
opinion that this was an untripped, on-road rollover, the Court need not formally
resolve that issue. Even if Semones’s opinion that the Evelers’ Ford Explorer suffered
an untripped on-road rollover survives Daubert, his opinions regarding the modified
Ford Explorer do not.
Both sides agree that the Evelers’ Explorer was traveling roughly 70 mph when
Luis Eveler initially swerved to allegedly avoid the encroaching vehicle. See, e.g.,
Daubert Hr. Tr. 20:15-16. That, in turn, meant the Evelers’ Explorer was hurtling
sideways at somewhere between 48-59 mph when it went into I-10’s grassy median.
See, e.g., Daubert Hr. Tr. 118:23 (Ford’s calculation); Daubert Hr. Tr. 102:24-103:2
(Semones testifying that plaintiffs did not independently calculate the speed of the
vehicle when it went off-road). Semones opines that a modified Explorer with a static
stability factor above 1.2 would not have rolled over if put in the same situation.
The primary basis for Semones’s opinion is a series of somewhat standardized
maneuvers performed by test driver Robert Hooker. In essence, Hooker performed
roughly the same maneuvers in a stock Ford Explorer and a modified Ford Explorer,
and found that the modified Ford Explorer would not roll over when the stock Ford
Explorer did roll over.
In response to Ford’s first Daubert motion, R. Doc. No. 32, this Court initially
found Semones’s opinions based on the Hooker tests to be reliable, R. Doc. No. 54.
But Ford’s pretrial submissions made clear that Ford’s Daubert motion “did not
actually raise Ford’s most relevant arguments against Semones.” R. Doc. No. 85, at
6. When an unrelated continuance gave this Court the opportunity to hold a Daubert
hearing to consider Ford’s new arguments suggesting that Hooker’s testing did not
comply with the standardized methodology that Hooker purported to follow, this
Court took the opportunity to reconsider its prior opinion in light of Ford’s new
evidence and arguments. See Fed. R. Civ. P. 54(b).
There is nothing inherently wrong about one expert relying on another expert’s
opinions and/or data. Not only does Rule 703 explicitly contemplate such reliance,
but also, as a practical matter, it happens in nearly every case. After all, an expert
need not re-prove Newtonian physics to be able to testify regarding the causes of an
Nonetheless, it can be problematic in certain situations. For example, as a
practical matter, the testifying expert may not know the testing procedures used to
gather the data. And given that the party advancing expert testimony has the burden
of demonstrating its reliability, see Sims v. Kia Motors of Am., Inc., 839 F.3d 393, 400
(5th Cir. 2016), unanswered questions regarding those methods by which data was
obtained may render opinions regarding that data unreliable. This, unfortunately
for the Evelers, is one of those situations.
Both weight and tire conditions are important variables when running rollover
tests. Daubert Hr. Tr. 54:1-4, 56:8-14 (weight); Daubert Hr. Tr. 57:12-19, 104:1-109:5
(tire condition). Yet Semones knows neither the weights, see Daubert Hr. Tr. 48:1618, 53:11-53, 55:13-56:7, nor the tire conditions of the vehicles tested by Hooker,
Daubert Hr. Tr. 57:20-25. And even more problematic is the fact that Semones cannot
answer important questions about Hooker’s testing methodology.
For example, the main Hooker test that Semones relies on is Hooker’s variant
of the Fishhook test. See Daubert Hr. Tr. 9:6-7. Semones claims that Hooker was
largely patterning his Fishhook testing on Toyota’s Fishhook test. See Daubert Hr.
Tr. 10:17-11:24. Under Toyota’s methodology, a test driver drives the vehicle in a
fishhook-shaped course in order to find out the “threshold of speed and steering
inputs at which the vehicle will roll over through steering inputs alone.” Daubert Hr.
But Hooker did not follow that methodology when testing the modified Ford
Explorer. Instead, he simply—with no explanation at all—stopped the test at 45
miles per hour without figuring out the speed at which the modified Explorer would
roll over. See Daubert Hr. Tr. 30:4-25. When asked by the Court about Hooker’s
seeming failure to follow the testing methodology Hooker claimed to be following—
despite the suggestion on Hooker’s forms that the tests should be run at 50 and 55
mph as well, Daubert Hr. Tr. 50:8-51:14-—Semones simply responded “that’s a fair
question.” Daubert Hr. Tr. 51:13; see also Daubert Hr. Tr. 30:8 (same).
It is more than a fair question—it is a fatal one. Semones is basing his opinion
that a modified Ford Explorer would not have rolled over while performing accident
avoidance maneuvers with an entrance speed of 70 mph on tests that were conducted
at an entrance speed of 45 mph. 1 Accordingly, the mere fact that the vehicle did not
tip at lower speeds does not necessarily mean that it would not tip at higher speeds
and more severe slip angles—particularly given that a vehicle’s energy increases
exponentially with increases in speed. Daubert Hr. Tr. 96:16-18 (Ford’s expert); see
also 12:24-13:12 (Semones explaining “the amount of steering required to achieve a
given lateral acceleration varies with the square of the speed that you’re going”). And
NHTSA testing establishes that even vehicles with a static stability factor above 1.2
can roll over. See Daubert Hr. Tr. 81:22-82:3; see also Daubert Hr. Tr. 112:5-114:1
(Ford’s expert testifying as to vehicles with a static stability factor above 1.2 tipping
over in NHTSA testing); 114:24-115:23 (Ford’s expert testifying regarding the Mickey
Gilbert tip-up of a vehicle with a static stability factor over 1.2).
So the key question here is not whether the modified vehicle is capable of
rolling over, but rather the speed at which it will do so. Yet, Semones simply does
not know the speed at which the modified Explorer would roll over, and he apparently
had not even made an attempt to find out at the time of the Daubert hearing:
THE COURT: But you don’t know what speed that would be because the
testing would only be at 45?
It is important not to confuse the entrance speed of the Hooker tests with the speed
of the vehicle during the entire test—the vehicle slows down throughout the Hooker
test. See Daubert Hr. Tr. 38:9-12.
THE WITNESS: I would have to look through the test data to see if I've got
any others that are at a higher speed.
Daubert Hr. Tr. 32:10:10-13. Needless to say, Semones’s testimony that he might
have seen a test somewhere, but he’s not quite sure if he has something on point, does
not qualify as a reliable methodology under Daubert. See Bell v. Foster Wheeler
Energy Corp., No. 15-6394, 2017 WL 876983, at *3 (E.D. La. 2017) (excluding expert
testimony when it “represent[s] little more than a guess”).
Semones tries to defend his reliance on such tests by suggesting that tests
conducted at lower speeds can predict vehicle behavior at higher speeds provided that
the steering angles in the lower speed tests were sufficiently severe. See Daubert Hr.
But, as noted, higher speeds generate—all else being equal—
significantly higher lateral forces on a vehicle’s tires when that vehicle is turning.
See Daubert Hr. Tr. 12:24-13:12.
Thus, Semones’s suggestion that the lower speed tests can mimic higher speeds
depends on having—at the very least—some idea of the forces acting on the vehicle
at the time of the rollover. Otherwise, Semones has no idea whether the lower speed
tests are predictive of the forces generated by higher speed maneuvers, and his
opinion that the tests are predictive is simply an impermissible backdoor method of
guessing the forces on the vehicle at the time of the crash. Cf. Bell v. Foster Wheeler
Corp., No. 15-6394, 2016 WL 5916304, at *3 (E.D. La. 2016) (impermissible to use
expert testimony “as a subterfuge” to smuggle unreliable speculation before the jury).
Semones admits he does not know any of the steering angles of the Explorer at
the time of the accident. See Daubert Hr. Tr. 12:20-22. Semones further admits he
does not know the speed, slip angle, yaw rate, or the lateral acceleration of the
Explorer at the time of the accident. See Daubert Hr. Tr. 73:6-11.
Semones admits he made no effort to find any of that information out:
EXAMINATION BY [FORD’S COUNSEL]:
Q. By the way, you can’t tell His Honor whether that vehicle is literally
swinging around broadside; you can’t tell him whether it’s a slight angle or
90-degree angle. That’s the slip angle and you don't have any opinion about
what that is, true?
A. No, I didn’t – that’s true. I did not calculate my own.
Q. Isn’t it true, sir, that if we know the weight of a vehicle, and we know its
speed, and we know its yaw rate, and we know its slip angle, we can make
judgments about the forces that are acting on a vehicle, the lateral G’s?
Q. So when you know the lateral G’s, you know how much force is being
exerted on that vehicle to try to get it to roll over?
THE COURT: Okay. So why didn’t do you it? So what if it’s after your
deposition? Why didn't you do it to be able to make this calculation that
counsel is speaking about?
THE WITNESS: It’s not typically then the kind of thing that I’ve . . . seen done
to assess whether or not the vehicle was defective by design. It’s a fair
THE COURT: Well, I hope it’s a fair question. I’m not saying it to be unfair,
but it seems to me the force involved is significant in determining exactly the
position of the vehicle and what happened; is that a fair statement? Doesn’t
that help you recreate exactly what happened at the time of the accident?
THE WITNESS: Well, it wasn’t my role to recreate what happened at the time
Daubert Hr. Tr. 72:13-73:2, 74:13-75:1 (emphasis added). Because Semones has no
idea of the forces acting on the vehicle at the time of rollover accident—or what those
forces would have been on the modified vehicle—his methodology of relying on tests
conducted at a significantly lower speed to predict the behavior of the modified
Explorer at 70 mph is unreliable given that (1) it is based on little more than
speculation and (2) simple physics suggests that the forces on the vehicle may well
have been significantly in excess of the forces generated in the lower-speed Hooker
tests. See, e.g., 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. A court
may conclude that there is simply too great an analytical gap between the data and
the opinion proffered.”).
Further, Semones’s inability to explain why Hooker made certain testing
decisions when testing the modified Explorer provides an additional basis for
determining that Semones’s opinion is unreliable.
Hooker’s justification for not
continuing to test beyond 45 mph is vital to judging whether Hooker’s test results
support Semones’s opinion.
If, for example, Hooker stopped testing because he
thought the modified Explorer was going to roll over at 50 mph—whether for driver
safety reasons or whether because he wanted the data to support the hypothesis that
the modified Explorer would never roll over—both results would be devastating to
Semones’s the-modified-Explorer-would-not-have-rolled-over-at-70-mph theory. Cf.
Daubert Hr. Tr. 30:12-17 (Semones testifying that he would not have been satisfied
if the tests had demonstrated that the modified Explorer would have rolled over at
Nonetheless, despite the importance of answering why Hooker stopped testing,
Semones appears to have made no inquiry at all into why Hooker made certain
testing choices. 2 That unblinking reliance on another expert’s testing also renders
Semones’s methodology unreliable. See, e.g., In re TMI Litig., 193 F.3d 613, 716 (3d
Cir. 1999) (expert’s “unblinking” reliance on other experts is an unreliable
methodology under Daubert). This Court will not permit Semones to be used as a
device for getting unreliable test results by a non-testifying expert into Court. See
Dura Automotive Sys. of Ind., 285 F.3d 609, 612-13 (7th Cir. 2002) (experts should
not simply “parrot” and serve as a “mouthpiece” for non-testifying expert).
Semones attempted two hail marys at the Daubert hearing in order to save his
Semones points to other non-standardized Hooker tests—essentially Hooker
driving around in a parking lot, maybe or maybe not trying to trip the modified
vehicle up—that are performed by Hooker at speeds above 45 mph, Daubert Hr. Tr.
24:25-25:5, to suggest that the modified Explorer would not have rolled over.
Robert Hooker is, to the best of Semones’s knowledge, still alive. See Daubert Hr.
Earlier in this case, Semones himself recognized the importance of
standardized testing procedures when determining whether a vehicle was defective:
The way I’ve always looked at it is I want to see how the vehicle performs
in standardized test maneuvers.
. . . . And — and I recognize there will be quibbling about steering rates and
steering magnitudes and some of — some of the details of that. But if he can
go out and take that vehicle in a test maneuver that I recognize as a legitimate
standardized kind of event, that fits within a protocol, and make it roll over,
then I’m going to evaluate it for the purposes of whether or not it’s defectively
R. Doc. No. 87-3, at 25 (Semones Dep. 95:6-18). Thus, before the Daubert hearing,
Semones had been of the view that he was “not affirmatively seeking to offer [the nonstandardized Hooker tests], I don’t think,” because he would need to “analyze the
details of those a little bit more if that was to be my only basis for - for something.”
R. Doc. No. 87-3, at 25 (Semones Dep. 97:10-12). At the Daubert hearing, Semones
gave no indication that he had performed that analysis. Cf. Daubert Hr. Tr. 25:8-14
(noting that the tests were only part of his “background” and Semones would have to
The Court concludes that Semones’s new opinions regarding the nonstandardized Hooker tests are too unreliable to be admitted. In the first place, the
Court has serious doubts as to whether Semones has ever performed the
methodological inquiry that he himself suggested was necessary before he could base
any opinions on them.
But even if that hurdle could be overcome, the non-
standardized Hooker tests would still be too unreliable here insofar as they appear to
be based on no scientific or standardized methodology whatsoever. See, e.g., In re
Mirena IUD Prods. Liability Litig., 169 F. Supp. 3d 396, 443 (S.D.N.Y. 2016) (ad hoc
testing weighs against admissibility under Daubert)). Finally, even if those prior two
hurdles could somehow be overcome, Semones would still have the fundamental
problem that he is relying on tests showing how a vehicle responds on pavement to
predict the behavior of a vehicle sliding across dirt and grass:
THE COURT: But my question was if that vehicle was put in the same scenario
as in this case -- speed, weight, all of the different things we have been talking
about, force, which I understand you didn’t calculate -- how can you state with
any degree of certainty that the modified Ford Explorer would not have rolled
over if faced with the same situation as existed at the time of the accident or
placed in the same situation as existed at the time of the accident?
THE WITNESS: I think as a matter of steering inputs alone on pavement, the
testing that I’ve seen is convincing to me and that's what I rely upon. In terms
of, and -- I'm sorry –
THE COURT: Go ahead. I'm saying the testing wasn't done under the same
scenario. We’ve already talked about that, right?
THE WITNESS: Yes, Your Honor. . . .
Daubert Hr. Tr. 86:9-24 (emphasis added); see also Daubert Hr. Tr. 13:16-17 (all
Hooker tests were performed on pavement).
Having reviewed the entirety of the parties’ submissions as well as hearing the
oral testimony, the Court concludes that high speed, on-road testing is not a
scientifically reliable method for predicting the behavior of cars traveling at high
speed off-road because of the substantially different forces exerted on vehicles offroad. See, e.g., Daubert Hr. Tr. 124:5-125:24. That, in turn, precludes Semones from
being able to rely on those tests to buttress his otherwise unreliable opinion—based
on the too-slow Hooker standardized testing—that the modified Ford Explorer would
not have rolled over had it been put in the same position. 3
Finally, Semones also suggests that certain stability characteristics in the
modified Ford Explorer would also permit it to avoid suffering from a similar
[A]s you increase the track width and overall stability of a vehicle you provide
a greater level of control to the driver. In this case you had a couple of steers
starting from several lanes over, a lowered and widened vehicle, which
provides -- a more stable responding vehicle is going to put the vehicle at a
slightly different position by the time -- if, indeed, it reaches the median -- by
the time that it does. There will be a less severe position and, in all likelihood,
would not have been as high of a slip angle, whatever that slip angle was. So
it’s entering the median in a more benign attitude.
So even if there does come a point where it digs in significantly in furrow
trips, it has bled off a lot of speed, it has gotten into that position where there
is much more opportunities for the driver to be able to recover.
Daubert Hr. Tr. 87:2-22. The Court concludes that Semones’s opinion regarding the
driver’s potentially greater car control over the modified Explorer is too unreliable to
First, it is unclear where exactly Semones is getting his opinion from or what
methodology Semones used to generate his opinion that the driver of the modified
vehicle would have materially different car control. After all, even the unreliable,
high speed, non-standardized Hooker tests suggest that the modified Ford Explorer
would—at the very least—have been spinning out on the surface of I-10 before
The same problem equally blocks any attempt by Semones to rely on any on-road
testing of modified vehicles by Ford’s experts. See Daubert Hr. Tr. 37:7-12 (Semones
careening off-road. Daubert Hr. Tr. 25:4 (suggesting the modified Explorer would
spin out “rather than rolling over”). A vehicle that is spinning out can hardly be said
to be under the control of the driver. And, in any case, once the modified vehicle hits
the grass, spinning, at high speed, Semones has really no basis at all to suggest that
it would not roll over. See Daubert Hr. Tr. 77:25-78:2 (Semones explaining that any
vehicle can roll over if furrow tripped). So the Court has little-to-no idea of what
evidence Semones is basing his opinion on (or whether Semones is basing his opinion
on any evidence whatsoever).
Second, even if Semones’s opinion that a modified Ford Explorer would have
been easier for Luis Eveler to control is reliable, that would not provide a sufficient
basis for Semones’s opinion that the modified Explorer would have somehow been
able to avoid the exact same scenario. Again, Semones does not have any opinion
regarding the forces that would be acting on the modified Ford Explorer:
Q. One more thing, Mr. Semones. As you’ve described for the Court, you’ve
even shown a side-by-side video of a modified Ford Explorer. You believe that
vehicle was at 1.2 static stability factor?
Q. Okay. If we took your suggestion of a 1.2 static stability factor Ford Explorer
and all other things stayed the same, we just stuck it into this accident
scenario, you still wouldn't know the forces that were acting on it at the edge
of the pavement before it went into the median, would you?
Daubert Hr. Tr. 75:3-13. Without a basis for judging what the forces might have been
on the modified Explorer, Semones has no reliable basis for suggesting that the
supposedly, yet unspecified, improvement in yaw control would have resulted in a
different outcome (let alone materially different outcome).
This Court finds that Semones’s opinion that a modified Ford Explorer would
have prevented or materially altered the accident is simply ipse dixit masquerading
as science. The opinion will therefore be excluded under Daubert and Rule 702.
Ford moves for summary judgment on the grounds that the Evelers cannot
demonstrate a genuine dispute of material fact that—given how the Evelers’ accident
occurred—there is an alternative design for the Explorer that was capable of
preventing the Evelers’ injuries. As Ford’s expert noted,
So in one maneuver at one speed at 45 miles an hour you have one tipup and one doesn’t. What does it do at 70? What does it do across an Interstate?
If we’re coming into court and saying, if these modifications were put on
this Explorer, this crash does not happen, that’s how it's being used.
Not only did we have a vehicle going across a roadway at 70, we have it
going sideways when it leaves the road at 30 to 35 degrees of side slip into the
median, and when you do that, you roll over everything.
Daubert Hr. Tr. 100:8-17 (emphasis added).
To establish the existence of “an alternative design for the product that was
capable of preventing the claimant’s damage,” La. R.S. 9:2800.56, the Evelers must
show “that the alternative design would have been significantly less likely than the
chosen design to cause the damage for which the claimant has filed suit or that the
alternative design would have significantly reduced such damage,” John Kennedy, A
Primer on the Louisiana Products Liability Act, 49 La. L. Rev. 565, 597 (1989). As
such, to prevail against Ford’s summary judgment, the Evelers must establish a
genuine dispute of material fact as to whether the modified Explorer would have
made it significantly less likely that the Evelers would have been injured or, at the
very least, that the Evelers’ injuries would be significantly reduced.
As explained, Semones’s opinions that the modified Explorer would not have
rolled over or that the modified Explorer would have rolled less severely are not
admissible under Rule 702.
Therefore, the plaintiffs cannot rely on Semones’s
opinions to establish a genuine dispute of material fact. See Lee v. Offshore Logistical
& Transport, 859 F.3d 353, 355 (5th Cir. 2017) (explaining that the substance and/or
content of summary judgment evidence must be admissible at trial, but noting that
it need not be presented in a form that would be admissible for trial). And without
Semones’s testimony regarding the modified Explorer, the Evelers really have no
evidence at all—and their brief in opposition to the motion for summary judgment
does not appear to point to any 4—that the modified Explorer would not have behaved
in exactly the same manner as the Evelers’ Explorer did off-road. At best, the Evelers
can point to studies that something with a lower center of gravity would be more
The Court notes that the Evelers’ summary judgment brief attempts to incorporate
multiple other pleadings. R. Doc. No. 100, at 1, 6. But, as this Court warned the
parties earlier in this case, “this Court looks with extreme disfavor on motions that
incorporate other motions.” R. Doc. No. 34, at 1. After all, “[j]udges are not like pigs,
hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th
Cir. 1991). Therefore the Court deems any argument not raised in the body of the
Evelers’ summary judgment opposition to be waived. See Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993) (explaining that unbriefed and insufficiently briefed
arguments are waived). Notwithstanding that waiver, however, the Court has
endeavored to respond to all the arguments that the Evelers have raised throughout
resistant to rolling over on-road, but, again, those studies of on-road behavior do not
establish a genuine dispute of material fact that the modified vehicle would have
performed any differently off-road.
Therefore, summary judgment is properly
granted for Ford.
IT IS ORDERED that Ford’s motion for summary judgment is GRANTED.
Plaintiff’s design defect claim against Ford is DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, August 7, 2017.
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
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