Kramer et al v. Ford Motor Company et al

Filing 182

ORDER granting in part and denying in part #136 Motion to Appoint Expert Pursuant to Federal Evidence Rule 706 and to Amend the Scheduling Order, as set forth in the Order. The deadlines in the scheduling order are amended as follows: (a). If Plaintiffs decide to amend the expert report of Neil Hannemann as allowed herein, full disclosure of the substance of his amended testimony shall be made by Plaintiffs on or before March 31, 2015. If Defendant decides to amend the report of any of its expert witnesses in response, full disclosure of the substance of the testimony to be offered by those witnesses shall be made by Defendant on or before June 1, 2015. (b). If Defendant decides to re-depose Mr. Hannemann, it shall do so on or before June 1, 2015. If Defendant submits an amended report of any of its experts, Plaintiffs may re-depose those witnesses on or before July 31, 2015. (c). All motions for summary judgment and motions to exclude expert testimony shall be filed and served on or before September 15, 2015. (d). This case shall be ready for trial on and after January 15, 2016, at which time it will be placed on the Court's jury trial calendar. (Written Opinion). Signed by Judge Susan Richard Nelson on 1/29/15. (SMD)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Kari Sue Kramer and Paul Kramer,

Case No. 12-cv-1149 (SRN/FLN)

Plaintiffs,
v.

MEMORANDUM OPINION
AND ORDER

Ford Motor Company,
Defendant.

Thomas J. Murray and Mary S. O’Neill, Thomas J. Murray & Associates, 111 East
Shoreline Drive, Sandusky, Ohio 44870; Gregory N. McEwen and Peter J. Kestner,
McEwen Law Firm, 5850 Blackshire Path, Inver Grove Heights, Minnesota 55076; and
James L. Murray, Murray & Murray Co., L.P.A., 111 East Shoreline Drive, Sandusky,
Ohio 44870, for Plaintiffs.
David R. Kelly, Jennifer K. Huelskoetter, and Michael R. Carey, Bowman and Brooke
LLP, 150 South Fifth Street, Suite 3000, Minneapolis, Minnesota 55402; Elizabeth B.
Wright, Thompson Hine LLP, 3900 Key Center, 127 Public Square, Cleveland, Ohio
44114; and Jennifer M. Mountcastle, Thompson Hine LLP, 41 South High Street, Suite
1700, Columbus, Ohio 43215, for Defendant.

SUSAN RICHARD NELSON, United States District Judge
I.

INTRODUCTION
This matter is before the Court on Plaintiffs’ Motion to Appoint Professor Todd H.

Hubing as an Expert Pursuant to Federal Evidence Rule 706 and to Amend the Scheduling
Order [Doc. No. 136]. For the reasons set forth below, the Court denies Plaintiffs’ Motion
to the extent that it seeks appointment of Professor Hubing as an expert under Rule 706 and
grants Plaintiffs’ Motion to the extent that it seeks to amend the Scheduling Order.

II.

FACTUAL AND PROCEDURAL BACKGROUND
This lawsuit arises from a single-vehicle accident involving Plaintiff Kari Sue

Kramer on May 9, 2008. (Am. Compl. [Doc. No. 61] ¶¶ 1, 10.) Plaintiffs allege that the
accident was the result of a sudden and unintended acceleration of the vehicle that
occurred—or was not prevented—because of several defects in the vehicle. (See id. ¶¶ 10,
14–21.) These alleged defects include an electronic throttle control system (“ETCS”) that
opened the throttle without input from the driver, failure to include a failsafe mechanism,
failure to include a brake override system, and failure to provide vacuum to the brake
booster when the throttle is maintained in an open condition. (See id. ¶¶ 15–17, 20.) The
Amended Complaint in this matter asserts eight causes of action against Defendant: strict
liability for defective design (Count I), strict liability for failure to warn (Count II),
negligent design (Count III), negligent failure to warn (Count IV), breach of warranty
(Count V), negligence per se (Count VI), consumer fraud (Count VII), and loss of
consortium (Count VIII). (Id. ¶¶ 1, 13–49.)
Defendant moved for summary judgment on these claims on the grounds that there
is no evidence of a defect in the subject vehicle or any Ford vehicle that did or could
cause the alleged unintended acceleration, Plaintiff Kari Sue Kramer never read the
warnings that accompanied the vehicle, and Plaintiffs have not identified any fraud or
misrepresentation that caused their damages. (See Mem. in Supp. of Def.’s Mot. for
Summ. J. [Doc. No. 66] (filed under seal), at 1–2.) In support of its motion, Defendant
argued that Plaintiffs’ liability experts—Neil Hannemann, David Bilek, and William
Berg—admit that they are unaware of a defect in the subject vehicle or any other Ford
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vehicle that did or could cause an unintended acceleration. (Id. at 1, 3.) At the same
time, Defendant also brought three motions in limine to exclude those experts’ testimony
and opinions [Doc. Nos. 69, 75, 81].
While those motions were pending, Plaintiffs brought their motion seeking to have
Professor Todd Hubing appointed by the Court as an expert witness and to amend the
Scheduling Order. (See Mot. to Appoint Prof. Hubing as an Expert [Doc. No. 136]
(“Pls.’ Mot.”) at 1–2.) Professor Hubing was the director of certain research conducted
by Clemson University’s International Center for Automotive Research regarding ETCSs
and unintended acceleration. (See id. at 1; Transcript of Sept. 12, 2014 Mot. Hr’g [Doc.
No. 173] (“Tr.”) 29–34.) Plaintiffs’ Motion was heard on September 12, at which time
the Court heard testimony from Professor Hubing. While Professor Hubing had not yet
completed his final report resulting from Phase IV of that research (which was the portion
of the research in which a Ford vehicle was analyzed) at the time of the hearing, he did
file a copy of his final report with the Court on October 16. (See Tr. 29–34, 46–52.) The
purpose of the report, titled “Comparison of the AP-to-ECM Interfaces on Vehicles with
Low and High Reported Rates of Unintended Acceleration” (the “Report”), is
summarized as follows:
[The Report] examines the [accelerator pedal]-to-[engine control module]
interfaces of five vehicles equipped with electronic throttle control
systems. . . . The purpose of the study is to identify any differences in the
[accelerator pedal]-to-[engine control module] interfaces of vehicles with
high reported rates of unintended acceleration compared to vehicles with
low reported rates of unintended acceleration. The study does not attempt
to identify the root causes of unintended acceleration; however it points out
important design issues that suggest a set of best practices for electronic
throttle control design.
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(Technical Report [Doc. No. 174] at 3.) The parties subsequently filed limited
supplemental briefing regarding the relevance of the Report to this lawsuit. In light of the
subject matter of the Motion, the Court denied Defendant’s motion for summary
judgment and motions in limine without prejudice and without reaching the merits.
(Order dated Aug. 20, 2014 [Doc. No. 166] at 3.)
III.

DISCUSSION
A.

Motion for Court-Appointed Expert

Plaintiffs request that the Court appoint Professor Hubing as an expert witness in
this case pursuant to Rule 706 of the Federal Rules of Evidence. (Pls.’ Mot. at 1.)
Defendant, on the other hand, argues that Professor Hubing is not a proper courtappointed expert because he is not impartial. (Def.’s Mem. in Opp. to Appointment of
Todd H. Hubing as Rule 706 Expert and to Amending the Scheduling Order [Doc. No.
157] (“Def.’s Opp.”) at 1.) Defendant also argues that his testimony will be unhelpful
because he has no knowledge with respect to Defendant’s engineering design process or
risk assessment process. (Id.)
The decision to appoint an expert is within the Court’s discretion, see, e.g., Fallon
v. Coulson, No. 93-1629, 1993 WL 349355, at *2 (8th Cir. Sept. 9, 1993), and in its
discretion, this Court finds that it is not appropriate for Professor Hubing to serve as a
court-appointed expert in this case. First, according to Professor Hubing’s testimony, he
knows very little about this lawsuit or the subject vehicle. (See Tr. 95:24–96:15.) In
addition, he has never tested Ford’s Lincoln Town Car, which is the type of vehicle at
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issue in this lawsuit, and he does not know whether the test results from his research
regarding the Ford Mustang would necessarily be the same as the results obtained if he
were to test the Town Car. (Id. 69:2-12.) Therefore, it is not apparent that his testimony
would assist the Court.
Second, while there is little case law on this issue, it is clear that a court-appointed
expert must be “neutral.” See In re High Fructose Corn Syrup Antitrust Litig., 295 F.3d
651, 665 (7th Cir. 2002). In other words, the expert must be able to “respond to the
technical or scientific issue in a manner consistent with generally accepted knowledge in
that area, without regard to the interests advanced by either party.” Joe S. Cecil &
Thomas E. Willging, Reference Manual on Scientific Evidence 544 n.48 (1st ed. 1994).
Accordingly, individuals with “significant ideological, financial, or professional interests
in debatable normative issues related to the issue in dispute” may not serve as courtappointed experts. Id. In this case, Professor Hubing’s research at Clemson University
has been funded by a consortium of plaintiffs’ lawyers, and counsel for Plaintiffs in this
case, Thomas Murray, is a part of that consortium. (See, e.g., Tr. 17:24–18:24.)
Although Mr. Murray apparently did not contribute to the funding for Phase IV of the
research, the contract governing the research is between Clemson University and Mr.
Murray’s law firm as the “sponsor” of the research. (See id. 18:13-24, 47:13-19.)
Because of these connections between Plaintiffs’ counsel and Professor Hubing’s
research, the Court finds that Professor Hubing is not sufficiently “neutral” for purposes
of serving as a court-appointed expert witness. Accordingly, Plaintiffs’ Motion is denied
in that regard.
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B.

Motion to Amend the Scheduling Order

In the event the Court declined to appoint Professor Hubing as an expert, Plaintiffs
requested permission to supplement the report of their expert, Neil Hannemann, to
address Professor Hubing’s findings. (Pls.’ Supplemental Mem. [Doc. No. 177] at 7.) In
opposition, Defendant argues that: (1) it would be futile to allow Plaintiffs to supplement
Mr. Hanneman’s report because Professor Hubing’s report contains no information that
would allow Mr. Hannemann to conclude that there was a defect in the subject vehicle,
(2) any new opinion from Mr. Hannemann would be inadmissible because it would not
survive Daubert scrutiny and would constitute impermissible bootstrapping, and
(3) Plaintiffs’ belated attempt to rely on Professor Hubing is neither substantially justified
nor harmless because Plaintiffs could have obtained Professor Hubing’s opinion years
ago and Defendant has already briefed and argued its motion for summary judgment.
(See Def.’s Mem. in Resp. to Pls.’ Supplemental Mem. [Doc. No. 181] at 7–9.)
Although Professor Hubing is not a proper court-appointed expert witness, his
testimony and Report demonstrate that he has an opinion that could be important to this
case, if properly introduced. First, in concluding that the ETCS in the subject vehicle was
“defective and unreasonably dangerous,” Mr. Hannemann stated:
One or several integral electrical or mechanical components intermittently
failed. Incorrect signals are being sent to the throttle body during the
[sudden unintended acceleration] events experienced by Mrs. Kramer and
others. These failures allowed the vehicle to accelerate without driver
input.
(Pls.’ Supplemental Mem. at 7 & Ex. 8 at 17.) Plaintiffs argue that Professor Hubing’s
findings supplement Mr. Hannemann’s opinion in part because Professor Hubing has
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demonstrated “empirical evidence of electronic failures that can open the throttle.” (Pls.’
Supplemental Mem. at 8.) Because it appears that Professor Hubing’s findings may be
relevant to Mr. Hannemann’s report, it is not clear to the Court that it would be futile to
allow Mr. Hannemann to incorporate those findings. Second, and similarly, it is
premature to decide that a new opinion from Mr. Hannemann would not survive Daubert
scrutiny or would constitute impermissible bootstrapping. However, Defendant certainly
may challenge Mr. Hannemann’s opinion on those grounds if and when Plaintiffs choose
to supplement his report.
Finally, although there is no question that the expert discovery deadlines have
passed, expert evidence should not be excluded if the failure to timely disclose the
evidence “was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Here,
neither Professor Hubing’s preliminary nor final report on the Phase IV research was
completed by the time that Mr. Hannemann had completed his report on May 1, 2013 and
the expert deadlines had passed. (See Pls.’ Supplemental Mem., Exs., 2, 3, 8.) In fact,
Plaintiffs argue that “the testing of Ford’s electronics didn’t begin until after the
discovery deadline,” and that Plaintiffs’ counsel informed Defendant’s counsel of the
relevance of the testing as soon as they were made aware that it had been completed.
(Pls.’ Reply at 4 (emphasis omitted); see Murray Decl. [Doc. No. 162], Ex. 4.)
Therefore, the Court finds that Plaintiffs’ failure to timely supplement Mr. Hannemann’s
report with Professor Hubing’s findings is substantially justified. The Court also finds
that these circumstances constitute “good cause” for modification of the Scheduling
Order under Rule 16. See Fed. R. Civ. P. 16(b)(4) (stating that a pre-trial scheduling
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order may be modified “for good cause and with the judge’s consent”); Sherman v.
Winco Fireworks, Inc., 532 F.3d 709, 716–17 (8th Cir. 2008) (citation and internal
quotations omitted) (“The primary measure of good cause is the movant’s diligence in
attempting to meet the [scheduling] order’s requirements.”).
Thus, Plaintiffs may allow Mr. Hannemann to review Professor Hubing’s report
and—should they so choose—submit an amended report from Mr. Hannemann based on
that new information. Defendant will then be permitted a full opportunity to amend its
expert testimony in response, depose Mr. Hannemann, and re-brief its summary judgment
motion and motions in limine. The Scheduling Order will be amended accordingly, as set
forth below.
V.

ORDER
Based on the foregoing and all the files, records, and proceedings herein, IT IS

HEREBY ORDERED THAT:
1. Plaintiffs’ Motion to Appoint Professor Todd H. Hubing as an Expert Pursuant to
Federal Evidence Rule 706 and to Amend the Scheduling Order [Doc. No. 136]
is GRANTED IN PART AND DENIED IN PART, as set forth herein.
2. The deadlines set forth in the Scheduling Orders in this case [Doc. Nos. 16, 107]
are amended as follows:
a. If Plaintiffs decide to amend the expert report of Neil Hannemann as
allowed herein, full disclosure of the substance of his amended
testimony shall be made by Plaintiffs on or before March 31, 2015. If
Defendant decides to amend the report of any of its expert witnesses in
response, full disclosure of the substance of the testimony to be offered
by those witnesses shall be made by Defendant on or before June 1,
2015.
b. If Defendant decides to re-depose Mr. Hannemann, it shall do so on or
before June 1, 2015. If Defendant submits an amended report of any
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of its experts, Plaintiffs may re-depose those witnesses on or before
July 31, 2015.
c. All motions for summary judgment and motions to exclude expert
testimony shall be filed and served on or before September 15, 2015.
d. This case shall be ready for trial on and after January 15, 2016, at
which time it will be placed on the Court’s jury trial calendar.

Dated: January 29, 2015

s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

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