Graves et al v. Toyota Motor Corporation et al

Filing 291

ORDER denying Defendants' 277 Motion for Judgment as a Matter of Law, or Alternatively, for New Trial, or, Alternatively, to Alter or Amend the Judgment. Signed by District Judge Keith Starrett on May 4, 2012 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION

WAYNE AND MARY GRAVES, FOR AND ON
BEHALF OF W.A.G., A MINOR
VERSUS

PLAINTIFFS
CIVIL ACTION NO. 2:09cv169KS-MTP

TOYOTA MOTOR CORPORATION AND
TOYOTA MOTOR SALES, USA, INC.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the court on a Motion for Judgment as a Matter of Law, or,
Alternatively, for New Trial, or, Alternatively, to Alter or Amend the Judgment [#277]
filed on behalf of the Defendants, Toyota Motor Corporation and Toyota Motor Sales,
USA, Inc. (“Toyota”). The court, having reviewed the motion, the response, the briefs of
counsel, the pleadings and exhibits on file and having conducted a three week trial in
this matter, finds that the motion is not well taken and should be denied. The court
specifically finds as follows:
The court has exhaustively stated the primary facts of this case in numerous
pretrial rulings and the record of the trial will speak for itself. However, the main factual
basis for this action, stated briefly, is that this is a product liability action encompassing
the commonly referred to rollover and roof crush claims. On August 26, 2009, the
Plaintiffs, Wayne and Mary Graves, for and on Behalf of W.A.G., a Minor, (“Graves”)
filed their Complaint against the Defendants, alleging, in part, that Toyota negligently
failed to design and/or manufacture the 1995 Toyota 4Runner which W.A.G. was
driving, specifically, the roof system and its supports, to eliminate an unreasonable risk

of injury to the vehicle’s occupants from roof crush injury during a rollover. The Graves
also alleged that the 4Runner lacked sufficient handling and stability characteristics that
might have prevented the rollover. As a result of claimed roof crush during the rollover
sequence, the Graves alleged that W.A.G. “sustained permanent and debilitating spinal
cord injuries which have rendered him permanently paralyzed from the sternum to the
lower extremities.”
At trial, the Graves sought actual damages for: (a) medical, therapeutical and
related expenses, past, present and future; (b) permanent loss of wage earning
capacity; (c) physical pain and emotional suffering, past, present and future; (d)
permanent disability and the resulting anguish, hardship and expense of W.A.G.’s
paralysis and confinement to a wheelchair; (e) life care expenses; and, (f) other
damages as permitted by law. The Graves also claimed entitlement to punitive
damages.
After proceeding through discovery, trial commenced in this case on February 6,
2012. A verdict was returned in favor of the Graves on February 24, 2012, after three
weeks of trial. A final judgment on the jury verdict was entered by the Court on March
2, 2012, in the amount of $6,850,707.05 plus costs and interest. Toyota has filed the
present motion seeking the relief set forth therein and discussed in detail below.

JUDGMENT AS A MATTER OF LAW, RULE 50(B)
Toyota first renews its motion made at trial for judgment as a matter of law under
Federal Rule of Civil Procedure 50(b), which provides as follows:
(b) Renewing the Motion After Trial; Alternative Motion for a New
Trial. If the court does not grant a motion for judgment as a matter of law
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made under Rule 50(a), the court is considered to have submitted the
action to the jury subject to the court’s later deciding the legal questions
raised by the motion. No later than 28 days after the entry of judgment– or
if the motion addresses a jury issue not decided by a verdict, no later than
28 days after the jury was discharged--the movant may file a renewed
motion for judgment as a matter of law and may include an alternative or
joint request for a new trial under Rule 59. In ruling on the renewed
motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
Fed. R. Civ. P. 50(b).
“A motion for judgment as a matter of law in an action tried by jury is a challenge
to the legal sufficiency of the evidence supporting the jury’s verdict.” Ford v. Cimarron
Ins. Co., 230 F. 3d 828, 830 (5th Cir. 2000). Judgment as a matter of law under Fed. R.
Civ. P. 50(b) is proper “after a party has been fully heard by the jury on a given issue,
and there is no legally sufficient evidentiary basis for a reasonable jury to have found for
that party with respect to that issue.” Ford, at 830 (quoting Foreman v. Babcock &
Wilcox Co.,117 F. 3d 800, 804 (5th Cir. 1997)). A court should grant a motion under
Rule 50 if, when considering all of the evidence in a light most favorable to the
non-moving party, the facts and inferences point “so strongly and overwhelmingly in the
movant’s favor that reasonable jurors could not reach a contrary conclusion.” Evans v.
Ford Motor Co., 484 F. 3d 329, 334 (5th Cir. 2007); Omnitech International, Inc. v.
Clorox Co., 11 F. 3d 1316, 1323 (5th Cir. 1994).
Stated another way, a motion for judgment as a matter of law should not be
granted unless “a reasonable jury would not have a legally sufficient evidentiary basis to
find for the party on that issue.” Fed.R.Civ.P. 50(a). This will only occur if “the facts and
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inferences point so strongly and overwhelmingly in the movant’s favor” that jurors could
not reasonably have reached a contrary verdict. Brennan’s, Inc. v. Dickie Brennan &
Co., 376 F.3d 356, 362 (5th Cir. 2004). In considering a motion for judgment as a matter
of law, this Court must credit the non-moving party’s evidence and “disregard all
evidence favorable to [Toyota] that the jury is not required to believe.” Coffel v. Stryker
Corp., 284 F.3d 625, 631 (5th Cir. 2002) (quotation marks and citation omitted). After a
jury trial, the Fifth Circuit’s standard of review is “especially deferential.” Brown v. Bryan
Cnty., Okla., 219 F.3d 450, 456 (5th Cir. 2000).
A. Specific Claims for Judgment as a Matter of Law
1. Handling and Stability
Toyota first contends that the Plaintiffs did not offer legally sufficient proof of any
of the elements of their handling and stability and roof defect claims as required under
the Mississippi Products Liability Act. To establish a claim under the Mississippi
Products Liability Act, Miss. Code Ann. § 11-1-63 (“MPLA”), the Plaintiffs were required
to prove that the 1995 Toyota 4Runner was defective, that the defective condition
rendered the 4Runner unreasonably dangerous, and that the defective and
unreasonably dangerous condition of the 4Runner proximately caused Plaintiffs’
damages. With respect to a design defect claim, the MPLA further requires proof that,
at the time the subject product left the Defendants’ control:
(i) the manufacturer or seller knew, or in light of reasonably available
knowledge or in the exercise of reasonable care should have known about
the danger that caused the damage for which recovery is sought; and
(ii) the product failed to function as expected and there existed a feasible
design alternative that would have to a reasonable probability prevented
the harm. A feasible design alternative is a design that would have to a
reasonable probability prevented the harm without impairing the utility,
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usefulness, practicality or desirability of the product to users or consumers.
Miss. Code Ann. §11-1-63(f) (Supp. 2011).
In this case, Toyota asserts that the Plaintiffs did not present legally sufficient
evidence on any of the elements of the design defect claims related to the handling and
stability characteristics of the 4Runner or the roof. Specifically, Toyota argues that the
Plaintiffs incorrectly attempted to establish that the subject vehicle was defective based
on its “static stability factor,” a calculation based upon the center of gravity height and
track width of the vehicle, and claimed that this number should have been higher.
Toyota further contends that the subject vehicle was driven by five individuals for a
period of 13 years in excess of 190,000 miles without incident, also supporting a finding
of no defect. Finally, Toyota argues that the 1995 4Runner met Toyota’s 0.7g standard
for rollover resistance.
At trial, there was substantial testimony about the static stability factor from the
Plaintiffs’ expert, David Bilek as well as from Toyota’s 30(b)(6) designee, Takashi
Yonekawa. Yonekawa, testified that the track width-center of gravity ratio is a factor in
the rollover resistance assessment. Bilek testified to the same effect and further that in
order to evaluate a vehicle’s rollover resistance, the vehicle must be subjected to “limit
testing.” When the vehicle is exposed to its “limits,” it will respond in one of three ways
due to tire friction forces alone: (1) rollover; (2) “slide out”; or, (3) “plow out.” In this
case, the subject vehicle rolled over.
There was also substantial testimony about Toyota’s unwritten rollover standard
of 0.7g, which was not officially adopted by Toyota until 1996. The evidence developed
during the Plaintiffs’ case in chief and the cross examination of Toyota’s expert, Lee
Carr, presented a classic jury issue as to the validity and underlying purpose of the 0.7g
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standard.
With regard to Toyota’s second argument on handling and stability, while the
subject vehicle had in excess of 190,000 miles at the time of the accident and was over
13 years old, none of the previous owners and operators recalled experiencing a
situation that necessitated an emergency steering maneuver of the same or similar
nature that W.A.G. experienced in this case. However, both David Bilek and Micky
Gilbert testified that the steering maneuver W.A.G. performed in this accident was a
“foreseeable” steering maneuver and that the 1995 4Runner should have been
designed to withstand such a maneuver.
Plaintiffs effectively demonstrated a jury issue that the handling and stability
characteristics of the 1995 4Runner rendered the vehicle defective and unreasonably
dangerous. Based on the foregoing, the jury had a legally sufficient evidentiary basis to
find for the Plaintiffs on this issue. Therefore, Toyota’s motion for judgment as a matter
of law should be denied as to this issue.
2. Roof Defect
Toyota next argues that the Plaintiffs also failed to prove that the roof of the 1995
4Runner was defective and unreasonably dangerous. Toyota contends that the subject
vehicle complied with all applicable standards for roof strength, specifically, Federal
Motor Vehicle Safety Standard 216 (“FMVSS 216”). Toyota further argues that because
the rollover event was in the “highest category of severity,” the fact that there was
roof/pillar deformation merely shows the severity of the crash, not the weakness of the
roof.
All of the parties agree that FMVSS 216 is a minimum requirement and that
compliance with FMVSS 216 does not provide “immunity” to a designer or manufacturer
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such as Toyota. At trial, Plaintiffs’ experts, Stephen Forrest and Dr. Martha Bidez, both
opined that FMVSS 216 was an inadequate test limited to one side of the vehicle and is
not intended to assess occupant injury exposure. As established by the testimony of
Mr. Forrest and Dr. Bidez, FMVSS 216 is a “static” compactor test that does not
replicate rollover roof crush. Moreover, Toyota did not dispute that it could have
designed and constructed a stronger, more crush resistant roof for the subject vehicle.
Further, Plaintiffs offered evidence that Toyota did not test the 1995 4Runner in
accord with FMVSS 216 before manufacturing, distributing and selling the vehicle to the
public, contrary to the sticker placed on vehicle indicating that on the date of
manufacture (October 1995) the Graves vehicle complied with applicable FMVSS’s.
According to testimony before the jury, they (the jury) could have concluded that Toyota
did not know if its roof complied with FMVSS 216 prior to production.
Stephen Forrest testified about the areas and natures of the failures in the roof of
the subject vehicle. Mr. Forrest explained in great detail with the aid of photographs
and an exemplar roof that failures occurred in the driver’s side A-pillar, the driver’s side
B- pillar – where pillar and post join, and the corner junction of the front transverse
header. Mr. Forrest further testified that the roof structure was defectively designed
such that it lacked sufficient resistance to the roof intruding into the occupant’s survival
space during a rollover event. Therefore, Plaintiffs offered sufficient proof for the jury to
consider that the roof of the 1995 4Runner was defective and unreasonably dangerous,
thus, the jury had a legally sufficient evidentiary basis to find for the Plaintiffs on this
issue. Therefore, Toyota’s motion for judgment as a matter of law should be denied as
to this issue.
3. Alternative Design
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As set forth above, to establish a design defect claim under the MPLA, Plaintiffs
must also offer proof that “there existed a feasible design alternative that would have to
a reasonable probability prevented the harm … without impairing the utility, usefulness,
practicality, or desirability of the product to users or consumers.” See Miss. Code Ann.
§ 11-1-63(f)(ii) (Supp. 2011). Proof of a specific alternative design, not merely a
conceptual one, is a threshold requirement under this element. See, Williams v.
Bennett, 921 So. 2d 1269, 1275 (Miss. 2006) (noting that “mere mention of a design
alternative by an expert comes well short of lending evidentiary guidance to a court”);
Guy v. Crown Equipment Corp., 394 F. 3d 320, 327 (5th Cir. 2004) (explaining, “the
proper methodology for proposing alternative designs includes more than just
conceptualizing possibilities”); Watkins v. Telesmith, Inc., 121 F. 3d 984, 991 (5th Cir.
1997) (“[a]lternative designs by definition include elements of science, technology, and
methodology”). Furthermore, the testimony of an expert regarding a design alternative
that is not specific is unreliable, incompetent evidence, and should be disregarded.
According to Toyota, each of the Plaintiffs’ proposed alternatives failed under the MPLA
and controlling case law.
Plaintiffs’ design expert, David Bilek presented an alternative design of a 1994
4Runner, same generation as the subject vehicle, with smaller tires and wider track
width. Mr. Bilek also provided test results and video of actual test runs showing the
1994 vehicle would not rollover in limit testing at 50 mph. Mr. Bilek opined that this
alternative design would not have rolled over in this accident as it was more stable.
This opinion was supported by Mr. Bilek’s testing of this alternative design, as well as,
the higher static stability factor and LAR of the modified 1994 4Runner. Mr. Bilek
demonstrated for the jury that both the static stability factor and the LAR with this
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alternative design was higher. Both of these values indicated the vehicle was more
stable.
Mr. Bilek also presented the “unidentified” 1996 model 4Runner as an alternative
design. This vehicle had a higher static stability factor than the subject vehicle,
indicating more resistance to rollover, as well as a higher LAR. The track width was
wider and center of gravity was lower on the 1996 model 4Runner. Mr. Bilek also tested
this design. There was further extensive testimony from Mr. Bilek about alternative
designs and their feasability.
In Standard Fire Ins. Co. v. Broan Nutone, LLC, Civil Action No.
2007-cv-44-KSMTP, 2008 WL 5560882 (S.D. Miss. July 1, 2008), this Court was
presented with a similar argument to that which Toyota asserts here. In Standard Fire,
this Court held that Broan Nutone’s contention that an expert’s failure to test his design
alternative for a ventilation fan by physically recreating the suspected conditions that
sparked a fire, overstated the applicable law on this point. This Court held that “[w]hile it
might be the best practice for an expert to actually test the proposed design alternative,
omitting this step does not render the expert’s conclusions automatically invalid under
the Daubert standard.” Id. at *6 (citing Watkins v. Telesmith, Inc., 121 F.3d 984, 992 (5th
Cir. 1997) (rejecting claim that a plaintiff’s expert must always test an alternative product
design before testifying.). See also, Riley v. Ford Motor Co., Civil Action No.
2:09-cv-148- KS-MTP, 2011 WL 2728266 at *6 (S.D. Miss. July 12, 2011) (“Ford makes
much of the fact that Meyer did not conduct any tests of the alternative [seat belt buckle]
design, but Meyer’s failure to test the alternative design is not, by itself, sufficient to bar
his testimony.”) (citing Standard Fire).
The MPLA only requires the Plaintiffs to put forth an alternative design that would
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have, more likely than not, prevented the harm at issue. Clearly, Plaintiffs’ experts are
not required to conduct “real world testing” of the alternative design; however, Plaintiffs’
experts did so in this case. Moreover, Toyota tested the 1996 4Runner for handling and
stability and Mr. Bilek relied upon this testing as well.
Toyota further contends that the Plaintiffs offered no feasible alternative design
as to their roof strength claims. This ignores the extensive testimony of Stephen Forrest
on the subject. While Toyota certainly disagreed with Forrest’s testimony and
presented contradictory evidence on the subject, such does not negate the fact that the
jury had a legally sufficient evidentiary basis to find for the Plaintiffs on this issue.
Toyota’s motion for judgment as a matter of law should be denied as to this issue.
4. Proximate Cause
Toyota’s last argument on its motion for judgment as a matter of law is that the
Plaintiffs did not offer legally sufficient proof that the alleged defective and unreasonably
dangerous condition of the 1995 4Runner proximately caused W.A.G.’s injuries. Toyota
contends that W.A.G.’s injuries occurred as a result of his head being against the roof at
the time that portion of the roof struck the ground, such that the impact with the ground
rather than the deformation of the roof/pillars caused W.A.G.’s paralyzing injury.
There was ample testimony on this issue from experts from both parties, the
quintessential “battle of the experts.” The Plaintiffs convinced the jury with the proof
they offered from Dr. Bidez and Stephen Forrest. There was ample credible evidence
for the jury to conclude that W.A.G.’s injuries were proximately caused by the allegedly
defective Toyota 4Runner. Toyota’s motion for judgment as a matter of law should be
denied as to this issue.

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MOTION FOR NEW TRIAL
Rule 59(a) authorizes the Court to grant a new trial after a jury trial “for any
reason for which a new trial has heretofore been granted in an action at law in federal
court.” Rule 59 “confirms the trial court’s historic power to grant a new trial based on its
appraisal of the fairness of the trial and the reliability of the jury’s verdict.” Smith v.
Transworld Drilling Co., 773 F. 2d 610, 612-13 (5th Cir. 1985). A new trial may be
granted on numerous grounds, including: “the verdict is against the weight of the
evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error
was committed in its course.” Id. at 613.
On a motion for new trial—unlike a motion for a judgment as a matter of law—the
judge may set aside the verdict even though there is substantial evidence to support it.
See, Wright & Miller, Federal Practice and Procedure § 2806; U.S. ex rel. Weyerhauser
Co. v. Bucon Construction Co., 430 F. 2d 420, 423 (5th Cir. 1970) (“A trial judge, on a
motion for new trial, may set aside a verdict to grant a new trial, if in his opinion ‘the
verdict is against the great weight of the evidence or will result in a miscarriage of
justice, even though there may be substantial evidence which would prevent the
direction of a verdict.’”).
Additionally, there are a number of Fifth Circuit cases which discuss in detail the
standard of review on motions for a new trial:
A trial judge can grant a motion for a new trial if he believes the verdict is
contrary to the weight of the evidence. He is free to weigh the evidence in
considering this motion.
Robin v. Wilson Bros. Drilling, 719 F.2d 96, 98 (5th Cir.1983).
The trial court in passing on a motion for new trial need not take the view
of the evidence most favorable to the verdict winner, but may weigh the
evidence. Bazile v. Bisso Marine Co., Inc., 5 Cir. 1979, 606 F.2d 101,
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105,; cert. denied, 1980, 449 U.S. 829, 101 S.Ct. 94, 66 L.Ed.2d 33; 11 C.
Wright & A. Miller, Federal Practice and Procedure: Civil §2806 at 44-45
(1973).
Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir.1982).
In making this determination [on a motion for new trial], the district court
weighs all the evidence, but need not view it in the light most favorable to
the nonmoving party.
Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir.1985).
When a new trial is requested on such evidentiary grounds [against the
weight of the evidence] the motion should not be granted unless the
verdict is against the great, not merely the preponderance, of the
evidence. Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360,
362-63 (5th Cir. 1980); Herrmann v. Nicor Marine Co., Inc., 664 F.Supp.
241, 245 (E.D. La. 1985).
Jones v. Wal-Mart Stores, Inc., 870 F.2d 982, 986, (5th Cir. 1989). The Jones court
went on to state:
[T]he verdict must be affirmed unless the evidence points "so strongly and
overwhelmingly in favor of one party that the court believes that
reasonable men could not arrive at a contrary [conclusion]. Whatley v.
Armstrong World Industries, Inc., 861 F.2d 837, 839 (5th Cir. 1988),
quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969).
Id. at 987.
The verdict under attack must be against the "great weight" of the evidence as
opposed to merely the "greater weight" of the evidence;
In a further effort to prevent the trial judge from simply substituting
his judgment for that of the jury, we require that new trials should not be
granted on evidentiary grounds "unless, at a minimum, the verdict is
against the great -- not merely the greater -- weight of the evidence".
Conway 610 F.2d at 363 (citing Spurlin v. General Motors Corp., 528 F.2d
612, 620 (5th Cir. 1976).
Shows v. Jamison Bedding, Inc., 671 F.2d at 930.
When reviewed under this standard, the trial court has broad discretion to grant
or deny a motion for new trial:
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The decision to grant or deny a motion for a new trial is generally
within the sound discretion of the trial court, and reversible only for an
abuse of that discretion. 6A Moore's Federal Practice ¶ 59.08[5] at 59-156
to 163; 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil
§2812 at 118-19 (1973).
Id. at 930. However, the grant of a new trial, as opposed to a denial, is subject to a
heightened scrutiny in this circuit:
. . . we apply a broader review to orders granting new trials than to orders
denying them. Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d
360, 362 ( 5th Cir. 1980)(per curiam), reh. denied, 614 F.2d 1298. And
where a new trial is granted on the ground that the verdict is against the
weight of the evidence, we exercise particularly close scrutiny, to protect
the litigants' right to a jury trial. Massey, 508 F.2d at 95.
Id. at 930.
A. Exclusion of Testimony of Lance Taylor and David Smith
Toyota first argues that the exclusion of the testimony of Trooper Lance Taylor
and Trooper David Smith regarding the finding of tire tracks in the gravel; and the
subsequent striking of the trial testimony of Trooper Lance Taylor was clear legal error
which highly prejudiced defendants, warranting a new trial.
In a ruling on pretrial in limine motions this Court excluded opinions of Trooper
Lance Taylor and Trooper David Smith as to what caused disturbed gravel off the edge
of the roadway some distance before the scene of W.A.G.’s accident. Neither took
pictures of the disturbed gravel and in fact there was testimony that the disturbed gravel
was so far back, that it would have been speculation as to its origins. Nevertheless,
their accident report included their opinion that the Graves vehicle departed the
roadway and disturbed the gravel before wrecking. The Court ruled that such opinions
from the Troopers, neither of whom were accident reconstructionists, was too unreliable
and speculative to warrant admission. Nevertheless, after being admonished by the

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Court prior to his testimony about the Court’s ruling, Trooper Taylor gave his opinion on
the cause of the disturbed gravel in response to an open-ended question on direct
examination. The Court ruled this was a clear violation of its pretrial ruling and excluded
all of Taylor’s testimony. Trooper Smith then testified as to the existence of disturbed
gravel in conformity with the Court’s pretrial ruling.
By this motion, Toyota is first rearguing the same issues ruled upon in the Court’s
pretrial order regarding Taylor’s and Smith’s testimonies. Clearly such opinion
testimony is not admissible. Secondly, Taylor’s open and intentional violation of the
Court’s ruling limiting his testimony made it necessary to exclude his entire testimony.
Toyota was able to solicit the allowed portion of Taylor’s testimony regarding the
presence of disturbed gravel through Trooper Smith. Such testimony by Taylor was,
thus, merely cumulative. There was no error in the Court’s rulings on this issue and
Toyota has presented no reason to reconsider those rulings.
B. Exclusion of Expert Testimony of Human Factors Expert Nathan Dorris
Toyota next argues that the exclusion of expert testimony of human factors
expert Nathan Dorris was legal error which highly prejudiced it at trial. Toyota
designated human factors and warnings expert Nathan Dorris to offer testimony at trial
regarding driver inattention (and specifically texting and driving) as well as testimony
regarding the warnings provided with the subject vehicle. Prior to trial, the Court
excluded Dr. Dorris’ opinions regarding driver inattention pursuant to a Daubert motion
filed by Plaintiffs. At trial, Toyota did not call Dr. Dorris to testify on warnings, but did
make a proffer of his report, supporting research, and testimony to preserve all
objections to the Court’s pretrial ruling.
The argument presented by Toyota on this issue is nothing more than a
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rehashing of its arguments in opposition to Plaintiffs’ motion to exclude Dr. Dorris’
testimony. The Court held, in its Order excluding Dorris’ testimony, that:
While Dr. Dorris’ report is indeed detailed and laced with scientific
research and conclusions relative to driver inattention, at the end of the
day, this court concludes that it is too speculative to pass either the
reliability threshold of Rule 702 or to be helpful to the trier of fact. As
Graves points out, there is nothing reliable about time extrapolated
opinions [since W.A.G. sent a text message at 8:14:35 a.m. he must have
been focused on or interacting with his cell phone 5 or 6 minutes later] and
supported only by speculative theories that W.A.G was either (1)
searching for his cell phone, (2) looking at his cell phone or (3) trying to
verify that his cell phone was still in the same place he left it. An expert’s
opinions are inadmissible when the expert piles speculation upon
speculation.
Indeed, the entire foundation that driver inattention contributed to
this accident is built on sand. Dorris relies on the unsubstantiated and
speculative conclusions of the investigating officers, Taylor and Smith that
W.A.G. left the roadway prior to the accident, to start the engine of
inattentiveness down the tracks from the station. “If the foundational data
underlying opinion testimony are unreliable, an expert will not be permitted
to base an opinion on that data because any opinion drawn from that data
is unreliable.” See Guillory v. Domtar Indus.,95 F.3d 1320, 1331 (5th Cir.
1996) (court property excluded expert’s opinion because it was based
upon incorrect, altered facts and speculation designed to bolster the
defendant’s position); Torch Energy Mktg., No. Civ.A. H-01- 3402, 2003
U.S. Dist. LEXIS 20941, at *31 (S.D. Tex. Mar. 31, 2003); In re Air Crash
Disaster, 795 F.2d 1230, 1235 (5th Cir. 1986).
Toyota was permitted to introduce W.A.G.’s cell phone records and to cross
examine W.A.G and Mary Graves about the records and W.A.G.’s use of his cell phone.
Toyota, through this evidence and other, advanced its theory of driver inattention
repeatedly through the course of the trial. Ultimately, the jury assessed 40%
comparative fault to W.A.G.
Toyota is merely rehashing the arguments originally presented in regard to Dr.
Dorris’ testimony. The Court went into great detail and analysis in its decision to
exclude that portion of Dr. Dorris’ testimony dealing with driver inattention. Toyota is not

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entitled to a “second bite at the apple” by way of this post-trial motion.
C. Admission of the 1996 Toyota 4Runner as an Alternative Design
Toyota next argues that the Court erred in allowing Plaintiffs to offer the 1996
Toyota 4Runner as an alternative design with respect to their handling and stability
claims. In a footnote to Toyota’s brief, Toyota acknowledges that Plaintiffs were not
permitted to identify the alternative design as a 1996 4Runner due to the Court’s ruling
on Toyota’s motion to exclude evidence of subsequent design changes. Instead,
Plaintiffs referred to the design as their “feasible alternative design.” Notwithstanding,
Toyota contends that this constituted legal error, as the 1996 Toyota 4Runner is not a
substantially similar vehicle but for the change in center of gravity height and track
width.
At trial, the Court was presented with substantial testimony and argument
regarding its initial decision to exclude any evidence of subsequent design changes to
the 1995 Toyota 4Runner. The Court revisited its pretrial ruling on the issue and
ultimately held that the Plaintiffs would be permitted to offer evidence of an alternative
feasible design relative to the 1996 Toyota 4Runner without identifying it as such. This
decision was reached after Toyota refused to stipulate that the 1996 4Runner was safer
and a feasible alternative design to the 1995 4Runner. Further, the Court considered
the Plaintiffs’ expert David Bilek’s extensive testimony as to his testing and analysis of
the 1996 4Runner as an alternative feasible design before admitting it to the jury.
Additionally, by Mr. Yonekawa’s own admission during his deposition, the 1996 4Runner
had better rollover resistance than the 1995 model.
The Court finds that the Plaintiffs offered sufficient evidence of an additional
alternative design, the 1996 model, while adhering to this Court’s instruction not to
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identify their feasible alternative design as the 1996 4Runner. The testimony clearly
revealed this design was available and feasible to Toyota prior to October 1995.
D. Admission of Evidence Regarding NHTSA and the New FMVSS 216
Through a motion in limine filed prior to trial, Toyota sought the exclusion of
evidence or testimony pertaining to changes in federal safety regulations and ratings
after 1995. Specifically, Toyota sought to exclude all information regarding changes to
Federal Motor Vehicle Safety Standard (FMVSS) 216 after the subject vehicle was
manufactured in 1995. The Court excluded such evidence at trial, ruling:
[T]he question of whether the subject 1995 4Runner was defectively
designed must therefore be judged against the technological context
existing at the time of manufacture. The evidence is undisputed that
Plaintiffs’ 4Runner was manufactured in October of 1995 and
subsequently sold. It met all applicable Federal Motor Vehicle Safety
Standards. Evidence of what NHTSA may require for future model year
vehicles has no relevance whatsoever to this 1995 model year vehicle,
and such evidence shall be excluded for lack of probative value. The court
shall exclude any testimony regarding the new FMVSS 216. This new
standard—enacted fourteen years after the subject vehicle was
manufactured and which does not apply to any vehicles currently on the
road today—will not assist the jury in determining whether or not the
subject vehicle was defective when it left the hands of Toyota.
At trial, during the testimony of Toyota’s roof design expert, Kenneth Orlowski,
Plaintiffs argued that Toyota had “opened the door” during his direct examination when
he was questioned about CRIS testing he performed on vehicles with production roofs
and reinforced roofs. The CRIS testing involved the use of a fixture (known as the
CRIS—Controlled Rollover Impact System) on which a vehicle was mounted so it rolls
around the center of gravity at a desired roll rate and horizontal speed until it is dropped.
Hybrid III test dummies were instrumented and seated in the vehicle so that neck
loading could be measured at the point of impact. Because production vehicles and
vehicles with reinforced roofs were used, the data could be compared in these tests to
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determine whether increased roof strength would reduce the severity of head injury in a
rollover event. To determine how strong the reinforced roof was, Mr. Orlowski
explained they performed a FMVSS 216 test.
Plaintiffs argued that the discussion of the CRIS testing (which post-dated the
manufacture of the subject vehicle) and this reference to the FMVSS 216 test performed
to compare the strength to weight ratio of the production vs. reinforced roofs “opened
the door” to the introduction of evidence regarding the new FMVSS 216 and/or
NHTSA’s later determination that a higher standard was necessary.
After hearing argument, the Court held that the door had in fact been opened to
questioning about the new FMVSS 216 standard and permitted Plaintiffs’ counsel to
question Mr. Orlowski about FMVSS 216 without specifically mentioning the standard.
In subsequent cross examination, Plaintiffs’ Counsel did not mentioned the 2009 version
of FMVSS 216, which requires a 3 to 1 strength to weight ratio, while the then
applicable version required a 1.5 to 1 strength to weight ratio.
On direct examination, Mr. Orlowski testified that a stronger roof would not have
changed the results of the CRIS test with reference to neck loading. The question
about FMVSS 216 ultimately posed to Mr. Orlowski, of which Toyota complains, was
drafted by Plaintiffs’ Counsel in camera in the presence of the Court and Toyota’s
counsel and reviewed and approved by all parties. In fact, one of Toyota’s Counsel
took the question to Mr. Orlowski and returned with Mr. Orlowski’s response. The
question Plaintiffs’ Counsel asked Mr. Orlowski was, “isn’t it a fact that NHTSA
disagrees with his opinions that a stronger roof is important for protection of the
occupant?” Significantly, Toyota did not object to the question when it was asked of Mr.
Orlowski in the presence of the jury. Mr Orlowski responded “that is NHTSA’s opinion.”
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A trial is never a black and white exercise in precise detail. Instead, trials are
most often gelatinous coagulations of complicated and convoluted facts and issues.
Courts and lawyers attempt to mold these elements into coherent patterns to be distilled
by willing jurors into a just verdict. No evidentiary ruling by the Court during the course
of a trial is ever made in a vacuum. This ruling, as all others, was reached after
listening to the evidence, extensive argument of Counsel and the considered judgment
of the Court. After considering this ruling in hindsight, the Court finds that it was proper
based on the evidence elicited by Toyota on direct examination and nothing Toyota has
presented calls it into question, in the mind of the Court.

MOTION TO ALTER OR AMEND JUDGMENT UNDER RULE 59(e)
In the alternative, pursuant to Rule 59(e), Toyota has moved the Court to alter or
amend its Judgment (entered on March 2, 2012) to reduce the non-economic damages
award from $1 million to $600,000.00.
“A motion to alter or amend the judgment under Rule 59(e) ‘must clearly
establish either a manifest error of law or fact or must present newly discovered
evidence’ and ‘cannot be used to raise arguments which could, and should, have been
made before the judgment issued.’” Rosenzweig v. Azurix Corp., 332 F.3d 854, 863-64
(5th Cir. 2003)(quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990)).
Relief under Rule 59(e) is also appropriate when there has been an intervening change
in the controlling law. In re Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir.2002).
“Rule 59(e) ‘serves the narrow purpose of allowing a party to correct manifest
errors of law or fact or to present newly discovered evidence and is not the proper
vehicle for rehashing evidence, legal theories, or arguments that could have been
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offered or raised before the entry of judgment.” King v. Freedom Life Ins. Co. of
America, Civil Action No. 2:10–CV–14–KS–MTP, 2011 WL 5835125 at *2 (S.D. Miss.
Nov. 21, 2011) (quoting Knight v. Kellogg Brown & Root Inc., 333 F.App’x 1, 8 (5th Cir.
2009); Templet v. Hydrochem Inc., 367 F.3d 473, 478–79 (5th Cir. 2004)). “Granting a
Rule 59(e) motion is ‘an extraordinary remedy,’ and it ‘should be used sparingly.’” Id.
(quoting In re Pequeno, 240 F. App’x 634, 636 (5th Cir. 2007).
As this Court observed in its March 2, 2012 Order, the jury was instructed in
Instruction C-30, “you will not reduce the amount of the award to Will Graves, if any, by
the amount of negligence you attribute to him, if any – the Court will use the percentage
of negligence you attribute to him, if any, and make the necessary calculations.” The
jury was clearly informed if they found for Will Graves that they were to find the total
amount of damages that would compensate him for past, present and future pain,
suffering and emotional anguish, including loss of enjoyment of life. The total amount
the jury found for non-economic damages was $2,500,000. Under Miss. Code Ann. §
11-1-60 (Supp. 2011), the trier of fact “shall not award the plaintiff more than One Million
Dollars for noneconomic damages,” and under Miss. Code Ann. § 11-7-15 (Supp.
2011), “damages shall be diminished by the jury in proportion to the amount of
negligence attributable to the person injured.”

The jury was told that the Court would apply the percentage of contributory
negligence to the amount that they found as to all elements of damage (future lost
earnings, past medical, future medical, and non-economic damages). After application,
the final jury verdict for Will Graves was 1] future lost earnings $342,000; 2] past
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medical expenses $408,707.05; 3] future medical expenses $5,100,000; 4]
non-economic damages $1,500,000.00, for a total of $ 7,350,707.05.
The amount of damages awarded for non-economic damages exceeded the cap
established by §11-1-60(2)(b), and following the application of the statute, the amount of
non-economic damages was reduced to $1 Million. This Court simply took the Jury
Instructions and the Jury Verdict and did exactly what the Court told the jury it would do.
As the Court held in the final judgment, there is no need to argue which statute should
be applied first or to get bogged down in different scenarios, what ifs, or strained
interpretations of inapplicable case law. Toyota has failed to meet its burden under
Rule 59(e) to secure an alteration or an amendment to the final judgment entered
herein.

CONCLUSION
This was a classic jury case. There was substantial conflict between the parties
as to the facts. It was a proper case to submit all the relevant evidence to the jury and
let the jury make its determinations of credibility and fact. It is apparent to the court, as
evidenced by the special verdict, that certain critical issues of credibility and fact were
determined by the jury against Toyota. However, this is the sole province of the jury. In
the opinion of the court, there was substantial credible evidence to support the verdict of
the jury. The verdict was not the result of bias, prejudice or any other influence outside
the evidence and was not contrary to the law as given by the court's instructions. After
a careful review of this matter, this court is not left with the firm conviction that the
verdict is against the great weight of the evidence. Indeed, the court finds that the
verdict is supported by substantial evidence and that the motion should be denied.
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IT IS THEREFORE ORDERED AND ADJUDGED that the Motion for Judgment
as a Matter of Law, or, Alternatively, for New Trial, or, Alternatively, to Alter or Amend
the Judgment [#277] filed on behalf of the Defendants is denied.
SO ORDERED AND ADJUDGED, this the 4th day of May, 2012.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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