Ruark v. BMW of North America, LLC et al

Filing 131

MEMORANDUM. Signed by Judge Ellen L. Hollander on 1/30/2014. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DARIN RUARK,
Plaintiff,
v.

Civil Action No. ELH-09-2738

BMW OF NORTH AMERICA, LLC,
et al.
Defendants.
MEMORANDUM
This suit arises out of a single-vehicle accident that occurred on July 30, 2006. Plaintiff
Darin Ruark, then a 17-year-old rising high school senior, suffered a catastrophic neck injury on
that date, when the 1995 BMW 325is coupe (the “subject vehicle”) in which he was riding as a
front-seat passenger experienced a rollover, either two or three times.

Plaintiff, who was

wearing his seat belt, was in the trailing position in the rollover sequence and, during the first
rollover, his head came in contact with the roof of the BMW. As a result of the accident,
plaintiff’s cervical spine was fractured at C5/6, rendering him a quadriplegic.1
Following the accident, plaintiff filed suit against BMW of North America, LLC, the
distributor of the subject vehicle, and BMW AG, the manufacturer of the subject vehicle
(collectively, “BMW”), alleging, inter alia, that the subject vehicle was defective and
unreasonably dangerous. ECF 2.2 In sum, plaintiff claims that he was injured as a result of the

1

The defense asserts that plaintiff is a tetraplegic. However, there is no dispute that the
injuries were catastrophic. Nor is the discrepancy material to the resolution of the pending
motions.

failure of the occupant restraint to keep him firmly in his seat, and because the strength-to-weight
ratio (“SWR”) of the roof was deficient, causing the roof to intrude into the passenger
compartment during the rollover, where it came into contact with plaintiff. BMW disputes those
contentions. With regard to the roof crush, BMW maintains, inter alia, that the SWR met federal
standards and that the roof intrusion occurred after plaintiff had already sustained his
catastrophic spinal injuries. In its view, a stronger roof would not have prevented plaintiff’s
injury.
At the trial, scheduled to begin in May, the parties intend to rely heavily on expert
testimony, and each side has filed a motion seeking to exclude certain expert opinions proffered
by the opposing party. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); Fed.
R. Civ. P. 702. In particular, defendant filed a motion to exclude certain of the expert opinions
of Gerald Rosenbluth and Stephen Batzer, Ph.D, P.E. (“BMW Motion,” ECF 113), supported by
a Memorandum (“BMW Memo,” ECF 113-1) and voluminous exhibits. Plaintiff opposes that
motion (“Ruark Opp.,” ECF 120), and BMW has replied (“BMW Reply,” ECF 122).

In

addition, plaintiff filed a motion to exclude three aspects of the causation testimony of Robert
Banks, M.D. (“Ruark Memo,” ECF 114), supported by exhibits. BMW opposes that motion
(“BMW Opp.,” ECF 119).
2

Suit was originally filed in the Circuit Court for Baltimore City and was removed to this
Court on the basis of diversity jurisdiction, pursuant to 28 U.S.C. § 1441 and 28 U.S.C. § 1332.
ECF 1. The case was originally assigned to Judge Legg but was subsequently reassigned to me.
The driver of the subject vehicle, James Bradford, and the owner of the vehicle, George Bradford
are third party defendants. See ECF 44.
-2-

The Court held an evidentiary hearing on January 16, 2014,3 at which three witnesses
testified: Dr. Batzer, Dr. Banks, and Jeffrey Croteau, a mechanical engineer and expert for the
defense. During the hearing, counsel for plaintiff withdrew several of his Daubert challenges.4
As a result, the issues at the hearing were substantially narrowed.
Remaining for resolution are: (1) BMW’s objection to Dr. Batzer’s testimony regarding a
reasonable alternative design of the vehicle’s A-pillars which, according to plaintiff, would have
strengthened the roof; and (2) plaintiff’s objection to Dr. Banks’s testimony about conclusions he
drew from the presence of two marks on the interior of the vehicle, allegedly imprinted from a
hat found in the vehicle, and which may have been worn by plaintiff at the time of the crash.5
After setting forth the governing standards, I will describe each expert’s methodology
and conclusions and then determine the admissibility of the challenged opinions.
Standard of Review

3

No transcript is available at this time. Therefore, in writing this Opinion, I have relied
on my notes from the hearing. Unless otherwise noted, each expert witness’s testimony at the
hearing was consistent with his affidavit and/or report, and so I have quoted primarily from those
exhibits.
4

In particular, plaintiff’s counsel abandoned his Daubert challenge to the “diving theory”
of causation and to Mr. Croteau’s use of Hybrid III instrumented dummies during his testing.
Additionally, counsel for plaintiff advised that Mr. Rosenbluth would not offer at trial the
opinion that was the subject of BMW’s challenge, concerning a proposed alternative design for
the subject vehicle’s restraint system, involving a roll sensor and a pyrotechnic pretensioner.
This concession mooted another Daubert issue.
5

At the hearing, counsel agreed that Mr. Ruark does not recall whether he was wearing
the hat at the time of the accident.
-3-

Under Federal Rule of Evidence 104(a), the court is responsible for determining
“preliminary questions concerning the qualification of a person to be a witness” and “the
admissibility of evidence,” including the admissibility of expert testimony under Federal Rule of
Evidence 702. “The party seeking admission of the expert testimony bears the burden of
establishing admissibility by a preponderance of the evidence.” Fireman’s Fund Ins. Co. v.
Tecumseh Prods. Co., 767 F. Supp. 2d 549, 553 (D. Md. 2011); see Daubert, 509 U.S. at 590;
Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001); Maryland Casualty Co. v.
Therm-O-Disc., Inc., 137 F.3d 780, 783 (4th Cir. 1998); Casey v. Geek Squad ® Subsidiary Best
Buy Stores, L.P., 823 F. Supp. 2d 334, 340 (D. Md. 2011) (Grimm, J.).
Fed. R. Evid. 702 provides that a properly qualified expert witness may testify regarding
technical, scientific, or other specialized knowledge in a given field if it would assist the trier of
fact in understanding the evidence or to determine a fact in issue. The rule “was intended to
liberalize the introduction of relevant expert evidence.” Westberry v. Gislaved Gummi AB, 178
F. 3d 257, 261 (4th Cir. 1999). Federal Rule of Evidence 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 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.

-4-

In Daubert, 509 U.S. at 597, the Supreme Court held that scientific evidence is
admissible under Rule 702 if “it rests on a reliable foundation and is relevant.” The Supreme
Court explained that expert scientific testimony must be grounded “in the methods and
procedures of science,” and it must be something more than subjective belief or unsupported
assumptions. Id. at 589–90. Moreover, the evidence or testimony must be relevant to the extent
that it will “assist the trier of fact to understand the evidence or to determine a fact in issue.” Id.
at 591; see also United States v. Forrest, 429 F.3d 73, 80–81 (4th Cir. 2005). In Kumho Tire Co.
v. Carmichael, 526 U.S. 137, 141 (1999), the Supreme Court extended the principles pertaining
to scientific expert testimony to other expert testimony requiring technical or specialized
knowledge.
Under Daubert, the trial court serves as the gatekeeper, making a pretrial determination
“of whether the reasoning or methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the facts in issue.” 509 U.S. at
592–93. This gatekeeper role helps ensure that the jury hears reliable and relevant evidence that
will assist the jury in factual determinations, clarify issues, and has probative value. Id. at 596.
As to reliability, Daubert articulated five factors that the trial court should consider in evaluating
the reliability of an expert’s reasoning or methodology: (1) whether the particular scientific
theory has been or can be tested; (2) whether the theory has been subjected to peer review and
publication; (3) the known or potential rate of error; (4) whether there are standards controlling
the method; and (5) whether the technique has gained general acceptance in the relevant
-5-

scientific community. Daubert, 509 U.S. at 593–94; see United States v. Crisp, 324 F.3d 261,
265–66 (4th Cir. 2003).
As a whole, the factors are meant to ensure that “an expert, whether basing his testimony
upon professional studies or personal experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire,
526 U.S. at 152. The factors are meant to be “helpful, not definitive,” and not all factors
necessarily apply in a given case. Id. at 151. Indeed, the Supreme Court has said that the factors
are not a “checklist.” Id. at 150. Regardless, the court “should meticulously focus on the
expert’s principles and methodology, and not on the conclusions that they generate.” McDowell
v. Brown, 392 F.3d 1283, 1298 (11th Cir. 2004).
As indicated, to satisfy the admissibility requirements of Rule 702, an expert’s opinion
must be “based upon sufficient facts or data.” Fed. R. Evid. 702. An expert must also opine
based on reliable principles and methods, applied reliably to the facts. With regard to an expert’s
qualifications, the Advisory Committee’s notes to Rule 702 provide that experience alone, or in
conjunction with “other knowledge, skill, training or education,” can provide sufficient
foundation for expert testimony. See Kumho Tire, 526 U.S. at 156 (stating that “no one denies
that an expert might draw a conclusion from a set of observations based on extensive and
specialized experience.”). On the other hand, an expert witness may not offer an opinion where
the subject matter goes beyond the witness’s area of expertise. See Berry v. City of Detroit, 25
F.3d 1342, 1351 (6th Cir. 1994); see also Smith v. Central Admixture Pharm. Servs., Inc., 2010
-6-

WL 1137507, at *3 (D. Md. Mar. 19, 2010) (“It is well established that ‘general expertise is not
sufficient to qualify [an expert] to testify on a matter that requires particularized knowledge,
training, education, or experience.’” (quoting Fitzgerald v. Smith & Nephew Richards, Inc., 1999
WL 1489199 (D. Md. Dec. 30, 1999))).
Moreover, proposed testimony that concerns matters within the common knowledge and
experience of a lay juror does not pass muster. United States v. Dorsey, 45 F.3d 809, 814 (4th
Cir. 1995); Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993). “While the fit between an expert’s
specialized knowledge and experience and the issues before the court need not be exact . . . an
expert’s opinion is helpful to the trier of fact, and therefore relevant under Rule 702, ‘only to the
extent the expert draws on some special skill, knowledge or experience to formulate that
opinion.’” Shreve v. Sears, Roebuck & Co., 166 F. Supp. 2d 378, 392–393 (D. Md. 2001)
(quoting Ancho v. Pentek Corp., 157 F.3d 512, 518 (7th Cir. 1998)).
Notably, “evidence that has a greater potential to mislead than to enlighten should be
excluded.” Westberry, 178 F.3d at 261. However, to be admissible, the expert testimony need
not be “‘irrefutable or certainly correct.’” United States v. Moreland, 437 F. 3d 424, 431 (4th
Cir. 2006) (citation omitted); see Daubert, 509 U.S. at 596; Westberry, 178 F.3d at 261. Rather,
the proponent must show that it is reliable. Oddi v. Ford Motor Co., 234 F. 3d 136, 145 (3rd Cir.
2000). In other words, the Supreme Court did not intend the gatekeeper role to “supplant the
adversary system or the role of the jury: ‘[v]igorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and appropriate means
-7-

of attacking shaky but admissible evidence.’” Allison v. McGhan Medical Corp., 184 F.3d 1300,
1311–12 (11th Cir. 1999) (quoting Daubert, 509 U.S. at 596); see Moreland, 437 F. 3d at 431
(recognizing that “expert testimony is subject to testing by vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof.”).
However, a court will exclude testimony based on “belief or speculation,” Oglesby v.
Gen. Motors Corp., 190 F.3d 244, 250 (4th Cir. 1999), or when not supported by the record.
Bryte ex rel. Bryte v. Am. Household, Inc., 429 F.3d 469, 477 (4th Cir. 2005); Tyger Const. Co.
v. Pensacola Const. Co., 29 F.3d 137, 142 (4th Cir. 1994); Casey, 823 F. Supp. 2d at 340.
Moreover, “nothing 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. Co. v. Joiner, 522 U.S. 136, 146 (1997). In Benedi v. McNeil-P.P.C., Inc., 66 F.3d
1378, 1384 (4th Cir. 1995), the Fourth Circuit recognized that “epidemiological studies are not
necessarily required to prove causation,” but a proposed expert must show that “the methodology
employed . . . in reaching his or her conclusion is sound.” McEwen v. Baltimore Washington
Medical Center Inc., 404 F. App’x 789, 791–92 (4th Cir. 2010) (per curiam), although
unpublished, is also instructive. In that case, the Fourth Circuit affirmed Judge Motz’s exclusion
of expert medical testimony that was deemed to be conclusory. There, the doctor’s testimony on
causation failed to identify any support in the medical literature, rendering it effectively “ipse
dixit.” Id. Similarly, a court may exercise its “discretion to find that there is ‘simply too great an

-8-

analytical gap between the data and the opinion proffered.’” Pugh v. Louisville Ladder, Inc., 361
F. App’x 448, 454 n.4 (4th Cir. 2010) (quoting Joiner, 522 U.S. at 146).
Finally, it is worth noting that Rule 702 does not relieve the party seeking admission of
meeting the requirements of other applicable rules. This includes Rule 403’s instruction that
evidence may be excluded for undue prejudice, confusion of the issues, or a potential to mislead
the jury. Casey, 823 F. Supp. 2d at 341.
Stephen Batzer, Ph.D., P.E.
Plaintiff retained Dr. Batzer to provide an opinion on whether the roof of the subject
vehicle was defective or unreasonably dangerous.6

Dr. Batzer has a master’s degree in

manufacturing systems engineering and a Ph.D. in mechanical engineering. See Curriculum
Vitae of Stephen A. Batzer (“Batzer C.V.,” ECF 120-11). He has worked as an engineer for 25
years, specializing as a forensic engineer and failure analyst for over 10 years. See Preliminary
Forensic Report of Stephen A. Batzer (“Batzer Report,” ECF 120-10). Dr. Batzer is a member of
various professional organizations, has taught engineering coursework at four universities, and
has authored over 60 peer reviewed publications, at least 30 of which relate to automotive roof
design or rollover crashes. Affidavit of Dr. Stephen Batzer (“Batzer Aff.,” ECF 120-8) at ¶ 7i;
see Batzer C.V. In addition, he has investigated hundreds of accidents and product failures, and
he has testified over 150 times as an expert forensic engineer and design analyst, including as to
automotive roof structures. Batzer Aff. ¶ 7n.
6

Defendants have not raised a Daubert challenge to Dr. Batzer’s qualifications.
Nonetheless, I have briefly summarized them to provide background for his testimony.
-9-

As part of his work in this case, Dr. Batzer reviewed or examined, inter alia, the police
report from the accident, the subject vehicle, an exemplar 1995 BMW 325is coupe, an exemplar
1995 BMW 3 series convertible, engineering drawings and specifications for 1995 BMW
vehicles, data and reports related to roof strength testing of 1995 BMW vehicles, and numerous
documents produced during discovery by both plaintiff and BMW. Batzer Aff. ¶ 8a. From his
review, Dr. Batzer opined that at the time BMW designed the subject vehicle, “there were a
number of reasonable alternative roof support structure designs that had already been
incorporated into various production vehicles.” Id. ¶ 8e.
BMW’s Daubert challenge concerns one of Dr. Batzer’s proposed alternative designs.
Batzer observed that the A-pillars7 used by BMW in the subject vehicle and other 1995 BMW
325is coupes were “substantially less robust and weaker than the A-pillars it incorporated into its
1995 3 Series convertibles.” Id. ¶ 8b. In particular, Dr. Batzer observed that the A-pillars in the
convertibles, unlike those in the coupes, were reinforced with a nested steel tube design. Id. Dr.
Batzer hypothesized that “reinforcing the A-pillars in a 1995 BMW 325is coupe with two steel
nesting tubes . . . would have substantially strengthened them and would have prevented any
appreciable roof crush” in the subject accident. Id. ¶ 8g.

7

The A-pillar of a vehicle is the first pillar of the passenger compartment, typically
running alongside the windshield and up to the roof of the vehicle. At the time, the BMW 325is
coupe also had B-pillars and C-pillars, located toward the middle and back of the passenger
compartment, respectively. BMW’s convertibles, however, did not have B-pillars or C-pillars,
because of their soft roof design.
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To test his hypothesis, Dr. Batzer directed SAFE Laboratories (“SAFE”), located in
Goleta, California, to conduct comparison tests with a production model 325is coupe and a 325is
coupe that Batzer modified by reinforcing the vehicle’s A-pillars with nested steel tubes akin to
those used by BMW in its 1995 3 Series convertibles. Id. ¶ 8h. The test he proposed was an
“inverted drop test,” which the parties agree is a generally accepted method of evaluating the
strength of a vehicle’s roof. In this inverted drop test, the vehicle is lifted off the ground,
inverted, and tilted in such a way that the passenger-side A-pillar bore the brunt of the force
when the vehicle was dropped. Id. ¶ 8j. In the drop test with the production model, Batzer
instructed that the vehicle be lifted 12 inches off the ground, that the pitch angle (i.e. the tilt
forward) be set at 5 degrees, and that the roll angle (i.e. the tilt sideways toward the passenger
side) at 25 degrees. Id. Dr. Batzer did not ask SAFE to place a crash test dummy in the
passenger seat of the car, and SAFE did not do so. Id. ¶ 8m. With several cameras recording
from several angles, the vehicle was dropped onto a plywood plate. Id. ¶ 8j.
Dr. Batzer then instructed SAFE to repeat the process, under the same parameters, with a
vehicle in which he had reinforced the A-pillars with nested steel tubes. Dr. Batzer originally
planned to remove the steel nesting tubes from a 1995 BMW convertible’s A-pillar and attach
them in the A-pillar of the coupe. Id. ¶ 8k. However, because of the “the way the nesting tubes
were incorporated into the A-pillar during manufacture, they could not be removed intact.” Id.
After consulting with the engineers at SAFE, Dr. Batzer decided to create steel nesting tubes
with the same properties and dimensions as those in the convertible and insert them into the A- 11 -

pillar of the coupe.

Id.

In Dr. Batzer’s opinion, this design “provided a reasonable

approximation of a reinforced production A-pillar” that, if anything, was weaker than an A-pillar
that had been originally produced with steel nesting tubes. Id.
After both vehicles were dropped, Dr. Batzer compared the amount of roof crush
sustained by each vehicle. The production vehicle sustained 10.2 inches of static roof crush at
the passenger side A-pillar, while the modified vehicle sustained only 4.4 inches of static roof
crush at the same point.8 Id. ¶¶ 8j–8k. According to Dr. Batzer, these results demonstrated that
“if the subject vehicle had reinforced A-pillars there would have been little, if any, roof crush
(intrusion) in the subject crash.” Id. ¶ 8l.
BMW raises multiple objections to Dr. Batzer’s proffered testimony. As discussed, a
Daubert inquiry focuses on whether an expert is qualified, whether he or she proceeds from
reliable principles and sufficient facts or data, and whether the expert applied accepted
methodologies. It is not a tool to challenge the persuasive value of an expert’s conclusions. Nor
is it intended to take the place of vigorous cross-examination or intrude on the province of the
jury.

See, e.g., Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002) (“[W]hile

8

As Dr. Batzer explained at the Daubert hearing, “static” roof crush refers to the residual
amount of roof intrusion after the vehicle has reached a solid state. In contrast, “dynamic” roof
crush refers to the peak amount of intrusion that occurs during the accident itself. The amount of
static and dynamic crush may differ in a given case because the crushed portion of the roof
typically “bounces” back toward its original state milliseconds after the peak dynamic intrusion.
Batzer likened the effect to a baseball being struck with a bat: for milliseconds, the ball actually
changes shape because of the force of the collision, but it soon reverts back to its usual shape.
The static change in the baseball is essentially zero but the dynamic change is a measurable,
positive amount.
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exercising its role as a gate-keeper, a trial court must take care not to transform a Daubert
hearing into a trial on the merits.”).
The case of Campbell v. Fawber, ___ F. Supp. 2d ___, 2013 WL 1330153 (M.D. Pa.
Mar. 29, 2013), is remarkably similar to the case at bar. It provides guidance in analyzing the
Daubert challenges presented here.9
Campbell, an 18-year-old front seat passenger, was rendered a quadriplegic in 2004,
when the vehicle in which she was riding, a 1996 Jimmy (a sport utility vehicle) was involved in
a rollover accident. As in the instant case, the passenger had been wearing her seat belt, and the
sport utility vehicle (“SUV”) rolled with the driver-side leading into the roll.
As in this case, the plaintiff in Campbell maintained that her catastrophic cervical spine
injuries were caused by intrusion of the SUV’s roof into the passenger cabin as the vehicle rolled
and a deficient restraint system. She argued that if the roof had been designed with a higher
strength-to-weight ratio, she would not have suffered such injuries. Id. at *16. Campbell’s
experts performed various tests and studies and concluded that the roof was unacceptably weak
and that the dynamic roof collapse could have been limited with a feasible, alternative design.
For example, one of plaintiff’s experts, Dr. James Pugh, a biomedical engineer, opined
that “it was economical and feasible to design the [SUV] so that dynamic roof collapse could be
limited to five to seven inches, which would allow an occupant to resist injury due to a

9

At least one expert in Campbell, Jeffrey Croteau, is an expert in this case. In this case as
in Campbell, Mr. Croteau’s opinion relies, in part, on the diving theory of causation, discussed
infra.
- 13 -

collapsing roof . . . .” 2013 WL 1330153, at *11. In addition, he maintained that the seatbelt in
the SUV “should have been equipped with a locking latch plate and a rollover sensor that ‘fully
locks the seatbelt for the duration of the rollover, by means of a pretensioner. . . .’” Id. In his
view, the seatbelt “likely unlocked and unspooled throughout the rollover, providing too much
slack and failing to keep [Campbell] properly secured.” Id.
The defense retained experts with views to the contrary. According to General Motors
Corporation (“GMC”), the manufacturer of the SUV, “Campbell’s injuries were caused not by
roof collapse, but instead by [her] body colliding with the roof during the roll,” i.e., the “‘diving’
theory of causation . . . .” Id. at *16.
GMC challenged the admissibility of the proffered expert testimony of plaintiff’s
multiple experts, claiming that the expert opinions were inadmissible under Rule 702.10 It
advanced arguments similar to those advanced here by BMW. For example, GMC argued that
Campbell’s “experts failed to conduct a roll test of a 1996 Jimmy with their proposed design
improvements using instrumented crash-test dummies,” so as “to measure neck load or other
indicia of injury. . . .” Id. at *15, *17. Rejecting the defense’s arguments, the Campbell Court
noted that “Rule 702 does not impose such a demanding standard.” Id. at *15. The court
reasoned, id. *16:
Campbell’s experts engaged in significant research and data-driven
statistical analysis. Their reports are neither conjecture nor speculation, and rely
upon generally accepted methodologies of systems and statistical analysis. To the
10

GMC advanced its argument in the context of a summary judgment motion.
- 14 -

extent that GM challenges the accuracy of their conclusions, such a challenge
simply goes to the weight of the evidence rather than its admissibility.
Campbell raised a Daubert challenge of her own, moving to exclude GMC’s expert
testimony and moving for partial summary judgment on the issue of causation. Campbell
challenged GMC’s experts’ reliance on torso augmentation, also referred to as the “diving
theory.” This refers to an effect similar to that which causes spinal injuries in individuals who
dive into shallow bodies of water, when the head collides with a solid, stationary surface. It is a
theory on which BMW relies here.
Campbell characterized the diving theory as one that has been “‘debunked.’” Id. at *19.
Notably, the Campbell Court rejected the plaintiff’s arguments, with well-stated reasons. It
concluded that plaintiff’s motion “amounts simply to arguing the weight of the evidence, an
issue which is inappropriate for resolution” by way of summary judgment. Id. at *16, 19. As the
court said, “It is the province of the jury to determine the merits of the parties’ competing
theories.” Id. at *17.
Just as in Campbell, most of BMW’s objections essentially ask the Court to decide merits
issues or weigh the persuasiveness of certain evidence. For example, BMW argued at the
hearing that Dr. Batzer’s proposed testimony is entirely irrelevant because, in BMW’s view, Mr.
Ruark’s injuries occurred before the vehicle’s roof intruded into the passenger compartment. In
support of this argument, BMW called Mr. Croteau, who opined that Mr. Ruark’s injuries
resulted from torso augmentation.

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According to Mr. Croteau, during the first rollover, the inverted automobile began to fall
toward the ground, and Mr. Ruark’s head was in contact with the headrail at that time. The
downward motion of the vehicle stopped when the roof hit the ground. However, under Mr.
Croteau’s theory, Mr. Ruark’s torso continued to move toward the ground, creating immense
pressure on Mr. Ruark’s neck. It was this immense pressure, which occurred upon impact, that
caused the fracture of Mr. Ruark’s cervical spine, according to BMW. See generally Campbell,
supra, 2013 WL 1330153, at *13 (describing torso augmentation theory in detail in context of a
similar accident). Milliseconds later, according to Mr. Croteau, the roof of the subject vehicle
caved in. Thus, Mr. Croteau concludes, the alleged defect in the roof of the subject vehicle was
not the cause of Mr. Ruark’s spinal injuries.
This is the quintessential jury argument. The timing and cause of Mr. Ruark’s injury are
very much in dispute, and each party has its own theories about the mechanics of the accident
and the cause of the resulting injury. BMW’s argument is essentially that under its theory of the
case, the drop tests do not reveal any pertinent information. The jury need not accept BMW’s
theory of the case, however. To be sure, the jury may accept BMW’s description of the cause of
injury and reject Dr. Batzer’s testimony about roof crush. But, the possibility that a jury might
find an expert’s testimony to be unpersuasive does not render that testimony deficient under
Daubert.

Put differently, BMW has not adequately challenged Dr. Batzer’s methods or

conclusions about the roof strength of the 1995 BMW 325is coupe. Rather, it has questioned
whether those conclusions are persuasive evidence that the allegedly defective roof contributed
- 16 -

to Mr. Ruark’s injuries. That is a question for the jury. See Coffey v. Dowley Mfg., Inc., 187 F.
Supp. 2d 958, 963 (M.D. Tenn. 2002) (“A Daubert hearing is not a battle of the experts, but an
opportunity for the parties to debate the expertise of a proffered witness.”), aff’d, 89 F. App’x
927 (6th Cir. 2003).
Similarly flawed is BMW’s argument that Dr. Batzer’s measurements of static crush at
the A-pillar are inadmissible because Mr. Ruark’s head was closer to the B-pillar than to the
A-pillar. As an initial matter (and as counsel for plaintiff made clear at the Daubert hearing), the
exact location of Mr. Ruark’s head at time of the accident is in dispute. BMW is not entitled to
rely on its own disputed version of the facts to discredit plaintiff’s expert’s testimony.
Moreover, even if the location of Mr. Ruark’s head were not in dispute, BMW’s
argument would be improper at the Daubert stage. BMW does not contend that inverted drop
tests are inherently flawed or otherwise unreliable, see BMW Reply at 18, and it does not claim
that plaintiff’s experts failed to conduct the inverted drop tests in compliance with accepted
procedures for conducting such tests. Instead, BMW argues that Dr. Batzer’s data concerning
crush at the A-pillar lacks persuasive value because Mr. Ruark’s head was not at the A-pillar.
Although this argument may win the day at trial, the relevant question under Daubert is whether
Dr. Batzer reliably collected his data with a proper methodology, not whether the conclusions he
drew from the data are correct. See Daubert, 590 U.S. at 595 (“The focus, of course, must be
solely on principles and methodology, not on the conclusions they generate.”).

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BMW also argues that the inverted drop tests were invalid because a crash test dummy
was not used, and therefore the test did not capture whether the reinforced roof design would
have reduced the force exerted on plaintiff’s neck. As BMW puts it, the inverted drop tests
should be excluded because they “did not serve to evaluate the forces imposed upon the human
body during a rollover event.” BMW Memo at 33. This argument does not render Dr. Batzer’s
testimony inadmissible under Daubert. See Campbell, supra, 2013 WL 1331053.
At the hearing, Dr. Batzer repeatedly stressed that he had no medical opinion about the
impact that a stronger roof would have had on Mr. Ruark’s injuries. Indeed, at the hearing,
plaintiff’s counsel indicated that such medical opinions would be provided by a medical expert to
whom BMW had not objected. Dr. Batzer’s opinion is simply that the roof structure of the
vehicle did not have enough strength to withstand the forces of a reasonably foreseeable rollover
crash and was not consistent with existing state-of-the art. His failure to measure the reduction
in force placed on a dummy’s neck in the second drop test does not impact the admissibility of
his testimony that a reinforced A-pillar would have reduced the amount of roof crush. See
Batzer Aff. ¶ 8m (“I was evaluating and analyzing the design and strength of a production
vehicle and a modified vehicle with an alternative design. The presence of an instrumented
dummy was simply not relevant to what I was doing.”).
BMW also contends that Dr. Batzer’s tests failed to account for the ways in which the
addition of the nested steel tubes to the A-pillar might affect other aspects of the vehicle.
However, Dr. Batzer did consider how the addition of the steel tubes would affect the vehicle. In
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his Affidavit, Batzer explained that the reinforced pillars would have added only 26.8 pounds to
the vehicle and would not have affected the vehicle’s performance in any way. Batzer Aff. ¶ 8m.
Further, he pointed out that BMW’s subsequent models had reinforced roofs and did not suffer
from performance or safety problems. Id. And, Dr. Batzer stated in his report that he had
“investigated whether there are collateral risks associated with increasing a vehicle’s roof
strength. There are none.” Batzer Report at 21.11
The only argument put forth by BMW that is properly within the province of Daubert is
its claim that “[t]here simply is no support for use of the inverted drop testing to extrapolate to
the subject accident, for elimination of roof intrusion, and elimination of severe injury.” BMW
Reply at 21. In other words, BMW argues that the inverted drop tests do not have a “logical
nexus” to the issues in the case because the tests bore no resemblance to the dynamic, multiple
rollover accident in which Mr. Ruark suffered his injuries.
BMW’s argument, although procedurally proper under Daubert, is without merit. The
record demonstrates that inverted drop tests are a scientifically valid method for analyzing roof
performance in rollover crashes, even though they do not replicate the precise circumstances of a
rollover crash.

Indeed, BMW does “not question that inverted drop testing is an accepted

method for conducting analysis of certain aspects of motor vehicle accident damage,” BMW

11

To the extent that BMW suggested at the hearing that the video of the inverted drop
test should be excluded from evidence because it will be unfairly prejudicial under Rule 403,
such an argument is not properly raised in a Daubert motion.
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Reply at 18, and it is difficult to fathom any real-world scenario other than a rollover crash in
which the roof strength of a vehicle would be relevant.
In any event, as Dr. Batzer stated in both his affidavit and in a paper he submitted to the
19th International Safety Conference on the Enhanced Safety of Vehicles, “[i]nverted drop
testing of vehicles is . . . used by industry, government organizations and independent engineers
to determine vehicle safety with respect to rollover collision.” Batzer Aff. ¶ 8i; see ECF 120-12.
In his report, Dr. Batzer relied on numerous published articles that utilized drop tests to simulate
rollover accidents. See ECF 120-9 at 45–48. Further, Dr. Batzer testified that he has published
numerous peer-reviewed articles discussing the use of inverted drop tests to evaluate vehicle
performance in rollover crashes. On a similar note, Dr. Batzer testified at the Daubert hearing
that BMW itself, in testing its production vehicles, conducts inverted drop tests to simulate
rollover accidents. Indeed, BMW’s experts in this case conducted inverted drop tests to gather
data about the forces that were present on Mr. Ruark’s neck during the rollover crash. See BMW
Opp. at 32–34. Moreover, several other courts have permitted experts to offer opinions about
rollover accidents based on data derived from drop tests. See, e.g., Whitten v. Michelin Americas
Research & Dev. Corp., Civ. No. 05-2761, 2008 WL 2943391 (W.D. Tenn. July 25, 2008);
Moody v. Ford Motor Co., Civ. No. 03-0784, 2006 WL 3354472 (N.D. Okla. Nov. 16, 2006); cf.
Campbell, 2013 WL 1330153, at *13 (permitting expert to opine about rollover accident based
on data taken from platen test). In light of the foregoing, it appears beyond cavil that inverted

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drop testing is a scientifically valid method of simulating the impact of a rollover crash on a
vehicle’s roof.
In sum, Dr. Batzer engaged in significant research, field testing, and statistical analysis of
the BMW 325is coupe. His conclusions about the vehicle’s susceptibility to roof crush and
about available alternative designs for its A-pillars were not based in conjecture or speculation,
but rather were based on scientifically accepted methodologies.

To the extent that BMW

challenges the accuracy of Batzer’s conclusions or their application to Mr. Ruark’s injuries,
“such a challenge simply goes to the weight of the evidence rather than its admissibility.”
Campbell, 2013 WL 1330153, at *13. Accordingly, the BMW Motion will be denied.
Robert Banks, M.D.
BMW retained Dr. Banks to provide an expert opinion on the cause of Mr. Ruark’s
injuries. Dr. Banks received a bachelor’s degree in civil engineering from the Royal Military
College in Kingston, Ontario and an M.D. from the University of Toronto. Curriculum Vitae of
Robert D. Banks (“Banks C.V.,” ECF 126-2).12 Dr. Banks is also an owner and employee of
Biodynamic Research Corporation, a company that provides “consulting services . . . in the area
of injury causation analysis or injury analysis, normally or most commonly in the context of
litigation.” Deposition of Dr. Robert Banks, (“Banks Dep.,” ECF 114-1) at 25–26. Over the
course of his career, Dr. Banks has “conducted detailed assessment of 1500 to 2000 [motor
vehicle accidents] to date, including hundreds of rollover crashes.” Affidavit of Robert D. Banks
12

Plaintiff has not raised a Daubert challenge to Dr. Banks’s qualifications, except with
regard to his expertise in forensic science, as discussed, infra.
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(“Banks Aff.,” ECF 119-2) ¶ 53. However, Dr. Banks testified at the hearing that he has no
formal training in forensic science.
As part of his work in this case, Dr. Banks reviewed, inter alia, the police report from the
accident that caused plaintiff’s injuries, various medical records, the subject vehicle, photographs
of the accident scene, other expert reports, and various pleadings and discovery materials in this
case. Initial Report of Robert D. Banks (“Banks Report,” ECF 119-3) at 1–2. Dr. Banks also
conducted an “exemplar-surrogate test,”13 a rollover spit inversion test,14 and an inverted drop
test. Banks Aff. ¶¶ 15–18. From his review of the documents and the results of his tests, Dr.
Banks concluded that “Mr. Ruark’s head was in direct contact with right roof rail very shortly
after the beginning of the rollover and by the time ground contact was made during the first roll.”
Id. at 4. As a result of this contact, “axial compressive loads developed in the neck that resulted
in the injury” to Mr. Ruark. Id. In other words, Dr. Banks agreed with Mr. Croteau’s opinion,
discussed supra, that Mr. Ruark’s injuries occurred as a result of “torso augmentation” and not
because of any defect in the strength of the roof of the subject vehicle.

13

According to Dr. Banks, an exemplar-surrogate test is conducted “using a matched
vehicle and human surrogate closely matched for stature and weight.” Banks Aff. ¶ 15. Once
the surrogate is positioned in the passenger seat, the distance from the surrogate’s head to the
roof of the vehicle is measured. Supplemental Report of Robert D. Banks, ECF 119-4 at 2. In
other words, an exemplar-surrogate test involves placing a passenger in the seat of the car and
measuring the space between his head and the roof of the car.
14

In a rollover-spit inversion test, a vehicle is placed on a spit so that it can be rotated
360 degrees. A seatbelted surrogate is placed in the passenger seat, and the vehicle is inverted.
The distance between the passenger’s head and the roof of the vehicle is then measured.
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Plaintiff objects to one of the pieces of information on which Dr. Banks based his
conclusion. At the hearing, Dr. Banks explained that, upon examination of the subject vehicle,
he observed two notable scuff marks on the passenger-side headrail of the car. While examining
the subject vehicle, Dr. Banks also found a hat in the front-seat passenger floor area of the car.
In addition, he noted that a pattern or logo on the front of the hat appeared to match the pattern of
one scuff mark, and that the button on the top of the hat appeared to match the other scuff mark.
Moreover, when he compared the hat to the scuff marks, by holding the hat to the marks, he
noted that the pattern on the hat and the button on the top of the hat lined up with the position of
the two scuff marks. Dr. Banks did not conduct any trace analysis or other scientific testing on
the scuff marks, however. Instead, he simply made the visual observation that the scuff marks
appeared to match aspects of the hat. Dr. Banks reported that the scuff marks confirmed his
opinion that Mr. Ruark’s head was in contact with the headrail at the time of the first rollover.
See Banks Aff. ¶¶ 20–21.
Plaintiff argues that Dr. Banks’s opinion about the scuff marks “is not based upon an
adequate scientific or technical methodology” and that “the gaps in his reasoning are so
significant that his opinion should be excluded.” Ruark Memo at 13. In particular, plaintiff
contends that Banks failed to conduct actual measurements of the scuff marks, did not conduct
any forensic testing or trace analysis to confirm that the hat was responsible for the scuff marks,
failed to rule out alternate causes of the scuff marks (e.g., first responders or police officers at the
scene of the crash), and that, even if the scuff marks did come from the hat, Dr. Banks could not
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rule out the possibility that the scuff marks were made subsequent to the first rollover. See id. at
13–15.
In response, BMW contends that the marks in issue merely “serve as an element of
confirmation of the otherwise established opinions regarding the location of the plaintiff’s head
at the time of injury and nothing more.” BMW Opp., ECF 119, at 2. In its view, measurements
and trace analysis were unnecessary because, from the “alignment of marks on the headliner to
the actual features of the hat, Dr. Banks was able to conclude that the distance between each of
the marks and the distance between the logo and button were both near perfect matches.” BMW
Opp. at 6. And, according to BMW, “the unique pattern of the embroidered logo could be
identified in the witness mark on the headliner and that was sufficient confirmation of the origin
of that mark.” Id. at 6–7.
As I see it, BMW’s argument boils down to its belief that the match between the scuff
marks and the hat was apparent from simple observation. BMW does not contend that Dr. Banks
possessed any particular expertise that would help him in drawing the conclusion that the marks
were made by the hat. Rather, it seems to argue that no expertise was needed to reach that
conclusion.
As noted, “an expert’s opinion is helpful to the trier of fact, and therefore relevant under
Rule 702, only to the extent the expert draws on some special skill, knowledge or experience to
formulate that opinion.” Shreve, supra, 166 F. Supp. 2d at 392–393 (internal quotation marks
omitted). This rule recognizes that expert testimony, simply by being designated as such, may
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“assume a posture of mystic infallibility in the eyes of a jury of laymen.” United States v.
Addison, 498 F.2d 741, 744 (D.C. Cir. 1974). Accordingly, experts are not permitted to express
opinions on matters outside of their areas of expertise.
Dr. Banks’s ultimate opinion that the hat was responsible for the scuff marks—which
BMW acknowledges is not based on any special skill or knowledge that Dr. Banks possesses—is
not admissible under Rule 702 or Daubert. Nonetheless, Dr. Banks may testify as to when and
where he found the hat; when and where he observed the scuff marks; that he lined up the hat
with the scuff marks; and that features of the hat appeared to be the same distance apart as the
scuff marks. BMW may also offer into evidence photographs of the scuff marks and the hat.
But, the jury can form its own opinion about whether the hat was responsible for the marks.
However, Dr. Banks may render an opinion, based on his expertise and scientific tests, as to
where plaintiff’s head was situated during the rollover sequence.
Conclusion
For the foregoing reasons, BMW’s Motion (ECF 113) will be denied and plaintiff’s
Motion (ECF 114) will be granted, in part, and denied, in part. An Order follows.

Date: January 30, 2014

/s/
Ellen Lipton Hollander
United States District Judge

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