Bavlsik v. General Motors LLC

Filing 87

MEMORANDUM AND ORDER :IT IS HEREBY ORDERED that plaintiffs' motion (Doc. 65 ) to exclude the testimony of defendant's expert Jeya Padmanaban is sustained in part and denied in part. IT IS FURTHER ORDERED that defendant's motion (Do c. 71 ) to exclude the testimony of plaintiffs' expert Joseph Burton, M.D., is denied.IT IS FURTHER ORDERED that defendant's motion (Doc. 72 ) to exclude the testimony of plaintiffs' expert Larry Sicher is denied.. Signed by Magistrate Judge David D. Noce on 8/18/15. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MICHAEL BAVLSIK, M.D., and
KATHLEEN SKELLY,
Plaintiffs,
v.
GENERAL MOTORS LLC,
Defendant.

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No. 4:13 CV 509 DDN

MEMORANDUM AND ORDER
This action is before the court on the motion of plaintiffs to exclude the expert
testimony of Jeya Padmanaban (Doc. 65) and the motions of defendant to exclude the
expert testimony of Joseph Burton, M.D., (Doc. 71) and Larry Sicher (Doc. 72).

BACKGROUND
On March 18, 2013, plaintiffs Michael Bavlsik, M.D., and Kathleen Skelly,
citizens of Missouri, filed this action against defendant General Motors, LLC, a Delaware
limited liability company with its primary office in Detroit, following a motor vehicle
accident on July 7, 2012 outside Detroit Lakes, Minnesota. (Doc. 1.) Plaintiffs allege the
following. Plaintiff Bavlsik was driving a 2003 GMC Savana when it struck a 2004
Chevy Silverado towing a boat. (Id. ¶¶ at 8–9.) Plaintiff Bavlsik’s vehicle rolled over
causing the interior compartment to buckle and the roof to cave into the passenger
compartment. (Id. at ¶¶ 9–10.) Plaintiff alleges that the roof’s collapse caused Dr.
Bavlsik’s serious and permanent injuries. (Id. at ¶¶ 20–11.)
Plaintiffs allege that the vehicle was defective in its design and manufacture of
both the roof and the seat belt. Therefore, the vehicle was unfit, unsafe, and unreasonably

dangerous when used as intended.

(Id. at ¶ 15.)

Plaintiffs allege that there were

alternative feasible designs available at the time of manufacture that would have
prevented this type of roof collapse as well as excessive driver movement and, thus, the
resulting injuries. (Id. at ¶¶ 19–20.)
Plaintiff Bavlsik alleges claims for strict product liability (Count 1) and negligence
(Count 2). (Id. at ¶¶ 22–49.) Plaintiff Skelly alleges a claim for loss of consortium with
her spouse, plaintiff Bavlsik (Count 3). (Id. at ¶¶ 50–52.)

II. ADMITTING EXPERT TESTIMONY
In diversity cases, federal law governs the admissibility of expert testimony.
Unrein v. Timesavers, Inc., 394 F.3d 1008, 1011 (8th Cir. 2005). To be admissible, the
proponent of the evidence must prove that the expert testimony is both reliable and
helpful, and that the expert is qualified to be a witness. Fed. R. Evid. 104(a); Fed. R.
Evid. 702 advisory committee’s note. This showing must be made by a preponderance of
the evidence. Bourjaily v. United States, 483 U.S. 171, 176 (1987); Lauzon v. Senco
Products, Inc., 270 F.3d 681, 686 (8th Cir. 2001). Rule 702 of the Federal Rules of
Evidence guides the court in determining the admissibility of expert testimony.
Under Rule 702, the court must first find that scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue. Fed. R. Evid. 702. If the court makes this finding, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may testify
in the form of an opinion, provided (1) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of the case. Id.;
United States v. White Horse, 316 F.3d 769, 775 (8th Cir. 2003). An expert must explain
how he or she arrived at his or her conclusions; the trial court may not simply take the
expert’s word for it. Fed. R. Evid. 702 advisory committee’s note; Thomas v. City of
Chattanooga, 398 F.3d 426, 432 (6th Cir. 2005).
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Rule 702 incorporates the rulings of the Supreme Court’s decisions in Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), and Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579 (1993). Fed. R. Evid. 702 advisory committee’s note. In those cases, the
Supreme Court charged trial judges with the responsibility of acting as gatekeepers to
exclude unreliable expert testimony. Kumho Tire, 523 U.S. at 141; Daubert, 509 U.S. at
597.

In exercising this gatekeeping responsibility, the trial judge must follow the

standards of Rule 702, but can also consider the four factors found in Daubert.1 Fed. R.
Evid. 702 advisory committee’s note; Kumho Tire, 526 U.S. at 140–41 (“[T]he test of
reliability is ‘flexible,’ and Daubert’s list of specific factors neither necessarily nor
exclusively applies to all experts or in every case.”) Rule 702 reflects an attempt to
liberalize the rules governing the admission of expert testimony, and the rule remains one
of admissibility rather than exclusion. Shuck v. CNH Am., LLC, 498 F.3d 868, 874 (8th
Cir. 2007). If there is doubt “whether an expert’s testimony will be useful should
generally be resolved in favor of admissibility.” Clark v. Heidrick, 150 F.3d 912, 915
(8th Cir. 1998). Finally, as with all evidence, an expert’s testimony’s probative value
must not be substantially outweighed by a danger of unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence. Fed. R. Evid. 403.

III. MOTION TO EXCLUDE THE OPINIONS OF JEYA PADMANABAN
Plaintiffs move to exclude all sixteen of Ms. Padmanaban’s expert opinions.2
(Doc. 66 at 5–6.)
1

In Daubert, the Supreme Court listed four non-exclusive factors for assessing the reliability of
scientific expert testimony: (1) whether the expert’s theory or technique can be or has been
tested; (2) whether the theory has been subjected to peer review and publication; (3) whether the
technique has a known rate of error or standards controlling its operation; and, (4) whether the
theory enjoys general acceptance within the relevant scientific community. Daubert, 509 U.S. at
592–94.
2
The opinions listed are summaries of Ms. Padmanaban’s opinions. (See Doc. 66-5, 66-6.)
Defendant summarizes Ms. Padmanaban’s opinions as covering four distinct areas:

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1.

Safety belts are the most effective crashworthiness countermeasure
to reduce fatalities in rollovers. (Doc. 66-5 at 5.)

2.

NASS/CDS data show that for belted drivers in vans, fewer than 1%
sustain serious head/face/neck injuries in rollover crashes. These
rates are lower than the serious head/face/neck rates for belted
drivers in passenger car rollovers. (Id.)

3.

Police-Reported State Accident data from 14 states [AL, FL, GA,
ID, IL, MD, MO, NE, NC, NY, OK, PA, TN, and WI] were
examined to compare the serious injury rates (using the “KABCO
police-reported scale) in rollover crashes for the subject GMC
Savana Group and other vans. The data showed that the serious
injury rate for belted drivers in the GMC Savana Group is low and is
comparable to the serious injury rates for other vans. (Id.)

4.

The serious injury rate and severe injury rate in rollover crashes for
belted drivers in the GMC Savana group is comparable to the rates
for belted drivers in the Volvo XC-90s and Subaru Foresters. (Id. at
6.)

5.

The data show that, for the subject GMC Savana group, 1.6% of all
crashes result in rollovers. (Id.)

6.

Field data from NASS/CDS show that a belted occupant in a nonarrested rollover with an impact with another vehicle is about three

1. Ms. Padmanaban will offer opinions on the relationship between vehicle roof
strength and likelihood of injury to belted occupants using field data;
2. Ms. Padmanaban will address the injury risk associated with conventional
belts versus All Belts to Seats (ABTS) systems using field data on rollover
crashes;
3. Ms. Padmanaban will address the safety record of the subject GMC Savana
group vehicles involved in rollover crashes using field data;
4. And finally, Ms. Padmanaban will address key statistical studies heavily relied
upon by Plaintiffs’ engineering experts Burton and Batzer to address rollover
injuries using field data.
(Doc. 76 at 5.)

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times more likely to sustain serious head/face/neck injury than in a
non-arrested rollover with a ground-only impact. (Id.)
7.

NASS/CDS data also show that the serious injury rates from belted
drivers in rollover crashes are comparable for vehicles with a roof
strength to weight ratio than or equal to 4.0 for vehicles with a roof
strength to weight ratio less than 4.0 (Id.)

8.

Several factors, including crash severity factors, influence injury out
come in rollovers. This demonstrates that rollovers are complex
events and that a single parameter (such as roof strength) cannot
explain the injury potential for occupants. (Id.)

9.

There is no relationship between roof SWR and likelihood of fatality
or serious injury for belted or unbelted occupants in rollovers. (Id. at
7.)

10.

When important confounding factors are accounted for (belt use,
ejection, alcohol, rural/urban, driver age), roof strength to weight
ratio is not a statistically significant predictor of likelihood of fatality
or serious injury in single-vehicle rollovers. (Id. at 8.)

11.

NASS/CDS data show that there is no relationship between roof
strength to weight ratio and roof deformation at position. (Id.)

12.

Five percent of seriously injured occupants in rollovers are belted
front seat occupants with serious head, face, and neck injury
resulting from roof contact where roof deformation is coded at the
seating position. Even for these, testing shows that the roof contact
occurs before there is any significant roof deformation. (Id.)

13.

Rollovers are complex events and that a single parameter (such as
roof performance or pretensioners) cannot explain the injury
potential for occupants. (Id.)

14.

Frontal impacts followed by a rollover are extremely rare. For light
vehicles, fewer than, 0.5% of all multiple vehicle tow-away crashes
are frontal impacts followed by a rollover. (Doc. 66-6 at 3.)

15.

There is no statistically significant difference between fatality or
serious injury rates for belted drivers in vehicles with seat integrated
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belts versus conventional belts. Both seat integrated belts and
conventional belts reduce fatalities and injuries in rollovers. (Id. at
4.)
16.

The presence of Seat Integrated Restraint Systems is not a
statistically significant predictor influencing the odds of fatality or
serious injury to belted rivers in rollover crashes. (Id.)

Plaintiffs argue that Ms. Padmanaban’s opinions are irrelevant and unreliable.
They assert that Ms. Padmanaban’s opinions, and therefore her testimony, are based on
accidents dissimilar to the one at hand. Also, plaintiffs argue that Ms. Padmanaban’s
sample size is too small to be meaningful and what little data she has was manipulated
and cherry-picked in order to come to preconceived conclusions. Finally, plaintiffs argue
Ms. Padmanaban’s testimony will mislead and confuse the jury, as well as unduly delay
the trial. (Doc. 66 at 5–6.)
Defendant counters that the data used by Ms. Padmanaban is the same type used
by plaintiffs’ own experts. Her testimony will be used to directly rebut the evidence and
opinions to be offered by plaintiffs’ experts. Finally, her opinions are premised on wellaccepted and reliable principles, processes, data, and that the sample size is adequate.
(Doc. 76.)

A.

Assistance to the Jury & Ms. Padmanaban’s Qualifications

First, in order for a court to allow scientific or technical testimony the court must
find that the jury needs this specialized testimony to determine an ultimate issue of the
case. Lauzon v. Senco Products, Inc., 270 F.3d 681, 686 (8th Cir. 2001). Experts in the
field of statistics are often used in product liability cases in order to compare and contrast
the safety of the product in question with similar products on the market. Jaramillo v.
Ford Motor, Co., 116 F. App’x 76, 78–79 (9th Cir. 2004) (rollover statistics); Glastetter
v. Novartis Pharm. Corp., 252 F.3d 986 (8th Cir. 2001) (per curiam) (statistics linking
stroke and medication); Morales v. Am. Honda Motor Co., Inc. 151 F.3d 500 (6th Cir.
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1998) (motorcycle-related accident statistics). Therefore, the court finds that an expert in
statistics could be helpful to the jury in the present case.
If the court determines that a topic would be aided by an expert, it must ensure the
expert is qualified to testify. Fed. R. Evid. 702. Qualification can be done through
knowledge, skill, experience, training, or education.

Id.

There appears to be no

challenge to Ms. Padmanaban’s qualifications as a statistician. She has a Bachelor’s
degree in Science from India and a Master’s degree in Science in Operations Research
and Statistics from the George Washington University. She is currently the president of
her research company, JP Research, Inc. Prior to this she was a Managing Scientist, a
Senior Operation Research Analyst, and a Statistical Consultant at various companies as
well as Princeton University. (Doc. 76-1 at 3.) She is a member of several professional
organizations for statisticians and automotive safety. (Id. at 4.) Ms. Padmanaban has
also been extensively published regarding the subject of motor vehicle safety. (Id. at 4–
11.)

B.

Reliable and Trustworthy Evidence

The evidence to be presented by a qualified expert must be found reliable and
trustworthy by the court. Fed. R. Evid. 702; Kumho Tire, 523 U.S. at 141; White Horse,
316 F.3d at 775. This reliability is based on the application of sufficient facts and data,
which were gathered using reliable principles and methods, to the case at bar. Fed. R.
Evid. 702.

1. Reliable Principles and Methods
The data used must be gathered using reliable principles and methods. Id. A court
may assess the reliability of the expert’s methodology using four nonexclusive factors:
“(1) whether the theory or technique ‘can be (and has been) tested;’ (2) ‘whether the
theory or technique has been subjected to the peer review and publication’’ (3) ‘the
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known or potential rate of error’; (4) whether the theory has been generally accepted.”
Shuck, 498 F.3d at 874 (quoting Daubert, 509 U.S. at 593–94).
Ms. Padmanaban has used two different databases to gather her statistics: the
National Automotive Sampling System Crashworthiness Data System (NASS/CDS) and
the police reported state accident database (“state database”). (Doc. 76-1 at ¶¶ 11, 14.)
The NASS/CDS is a database of crash descriptions and factors collected by the National
Highway Transportation Safety Administration (NHTSA) from 24 different geographic
sites nationwide. (Id. at ¶ 11.) The investigators include engineers, biomechanical
experts, medical personnel, and statisticians from selected crashes around the country.
(Id.) This database collects information on over 600 variables. (Doc. 76-10 at 9–10.)
Each crash is weighted to represent all police reported crashes that were towed due to
damage during each year. (Doc. 76-1 at ¶ 11.) The state database provides basic crash
information from 29 participating states’ law enforcement agencies. However, it does not
have as many variables as the NASS/CDS as it is dependent on what state law
enforcement agencies put into their databases. (Padmanaban Dep. 81:9–88:23, 91:24–
100:9, 103:12–17, 115:23–117:6.) These two databases are used by NHTSA to conduct
studies involving unsafe drivers, impact fire, pedestrians, and tire pressure, just to name a
few.

(Doc. 76-10 at 10.)

The databases also assist NHTSA in conducting defect

investigations, research rollover propensity, and the effectiveness of measures taken for
occupant protection. (Id. at 10, 17.)
The databases have been tested and are in wide use by not only government
agencies but also academic entities. The possibility of errors and small sample sizes are
known and can be accounted for. This court finds the data and methods used by Ms.
Padmanaban are reliable.

2. Sufficient Facts and Data
An expert must start her analysis with sufficient facts and data to make the
subsequent conclusions reliable predictions regarding the case at hand. Tyler v. Univ. of
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Ark. Bd. of Trs., 628 F.3d 980, 990 (8th Cir. 2011) (a sample of only six applicants too
small to infer discrimination). There can be a flaw in the straight percentage comparisons
when the sample size is too small. Mayor of City of Philadelphia v. Educ. Equality
League, 415 U.S. 605, 621 (1974).
Plaintiff challenges Ms. Padmanaban’s seventh opinion on the size of the data set,
25 accidents which she extrapolated out to 4,243. (Doc. 66 at 12.) Defendants argue that
this size is adequate and is in the range of the industry standard. (Doc. 76 at 12.) This
was explained in Ms. Padmanaban’s deposition:
Q.
And 25 is good enough sample size for you?
A.
Twenty-five is adequate. As a matter of fact, NHTSA’s final
rulemaking is based on 31 cases of which only 12 of them they used, out of
which only four of them are coded for 90 percent of the sampling weight.
So their whole rulemaking benefit model was based on four data points. So
if you ask me, 25 is good enough? Twenty-five is good enough for me,
yes. To make this kind of comparison.
(Padmanaban Dep. 132:6–15.)
Although the data sample appears small, that is why NHTSA and Ms.
Padmanaban places a weight on the crashes based on how prevalent they are across the
country. Additionally, the small data size could be addressed by plaintiffs during crossexamination.

3.

Application to this Case

In order to introduce comparative statistics in a strict liability claim the evidence’s
proponent must show that the other accidents “occurred under circumstances
substantially similar to those surrounding the accident in the instant case.” Lockley v.
Deere & Co., 933 F.3d 1378, 1386 (8th Cir. 1991). This is because dissimilar accidents
may “raise extraneous controversial issues, confuse the issues, and be more prejudicial
that probative.” Katzenmeier v. Blackpowder Prods., Inc., 682 F.3d 948 (8th Cir. 2010).

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Plaintiffs have framed their argument as a crashworthiness case. Plaintiff Bavlsik,
during a low-speed rollover of only ¾ of a revolution, was permanently injured by the
roof of the GMC Savana. These injuries were caused assertedly because either (1) the
GMC Savana’s roof crushed into plaintiff Bavlsik’s head because it was too weak to
withstand an otherwise survivable accident; or, (2) the seat belt did not properly restrain
Dr. Bavlsik, allowing his head to touch the roof during the rollover and caused a “diving
injury”. (Doc. 66 at 3.) Ms. Padmanaban’s opinions can be grouped into two categories:
those involving the roof strength and the subject vehicle’s roof’s propensity to crush
causing head injury and those involving the seat belt system.

a. Seat belt system opinions
Generally, Ms. Padmanaban’s opinions on the seat belt system are not
problematic. Although she has used the same databases for this analysis as her more
troublesome opinions regarding roof strength, her analysis only examines whether a
different seat belt design in the subject vehicle would have properly restrained Dr.
Bavlsik during a rollover accident. (Doc. 66-6 at 1.) Therefore, the varying factors at
issue in Ms. Padmanaban’s roof-strength opinion (number of turns, trip speed, arrested
rollover, multi-vehicle rollover, etc.) are not at issue. The court finds that all of Ms.
Padmanaban’s opinions contained in her report dated March 13, 2015, Doc. 66-6,3
regarding the restraint systems are admissible.

b. Roof Strength opinions
Ms. Padmanban’s opinions on the roof strength of the subject vehicle as compared
to other vehicles in its peer group are not admissible. She admits in her deposition that
she has not controlled for several variables, which seem to indicate she is comparing
3

Defense describes these opinions as ones where, “Ms. Padmanaban will address the injury risk
associated with conventional belts versus All Belts to Seats (ABTS) systems using field data on
rollover crashes.” (Doc. 76 at 5.)

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wholly dissimilar accidents.

Whether these variables can be controlled for by the

database is irrelevant to the court’s analysis. For example she did not separate crashes
based on the number of turns completed during the rollover. Therefore, while Mr.
Bavlsik’s vehicle is alleged to have turned only ¾ of a full roll, Ms. Padmanaban
considered accidents with multiple rolls. She also has not excluded based on trip speed,
the speed of the vehicle when the rollover began. Thus, while evidence indicates that the
subject vehicle was travelling 11 mph when the rollover began, Ms. Padmanaban
compares it to vehicles traveling at other speeds. The court concludes that her opinions
regarding the roof strength of the subject vehicle4 are not admissible.

4

The opinions to be excluded are:
2. NASS/CDS data show that for belted drivers in vans, fewer than 1% sustain
serious head/face/neck injuries in rollover crashes. These rates are lower than the
serious head/face/neck rates for belted drivers in passenger car rollovers. (Doc.
66-5 at 5.)
3. Police-Reported State Accident data from 14 states [AL, FL, GA, ID, IL, MD,
MO, NE, NC, NY, OK, PA, TN, and WI] were examined to compare the serious
injury rates (using the “KABCO police-reported scale) in rollover crashes for the
subject GMC Savana Group and other vans. The data showed that the serious
injury rate for belted drivers in the GMC Savana Group is low and is comparable
to the serious injury rates for other vans. (Id.)
4. The serious injury rate and severe injury rate in rollover crashes for belted drivers
in the GMC Savana group is comparable to the rates for belted drivers in the
Volvo XC-90s and Subaru Foresters. (Id. at 6.)
6. Field data from NASS/CDS show that a belted occupant in a non-arrested rollover
with an impact with another vehicle is about three times more likely to sustain
serious head/face/neck injury than in a non-arrested rollover with a ground-only
impact. (Id.)
7. NASS/CDS data also show that the serious injury rates from belted drivers in
rollover crashes are comparable for vehicles with a roof strength to weight ratio
than or equal to 4.0 for vehicles with a roof strength to weight ratio less than 4.0
(Id.)

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c. Irrelevant General Opinion
Ms. Padmanaban’s first opinion that, “safety belts are the most effective
crashworthiness countermeasure to reduce fatalities in rollovers” (Doc. 66-5 at 5), has no
relationship to the facts of this case. Both sides admit that Dr. Bavlsik was wearing a seat
belt. This opinion implies that a seat belt was not worn by plaintiff and therefore he was
not using the best form of protection against crash injuries, which is simply not true. The
court concludes this opinion is irrelevant and, therefore, not admissible.

8. Several factors, including crash severity factors, influence injury out come in
rollovers. This demonstrates that rollovers are complex events and that a single
parameter (such as roof strength) cannot explain the injury potential for
occupants. (Id.)
9. There is no relationship between roof SWR and likelihood of fatality or serious
injury for belted or unbelted occupants in rollovers. (Id. at 7.)
10. When important confounding factors are accounted for (belt use, ejection,
alcohol, rural/urban, driver age), roof strength to weight ratio is not a statistically
significant predictor of likelihood of fatality or serious injury in single-vehicle
rollovers. (Id. at 8.)
11. NASS/CDS data show that there is no relationship between roof strength to
weight ratio and roof deformation at position. (Id.)
12. Five percent of seriously injured occupants in rollovers are belted front seat
occupants with serious head, face, and neck injury resulting from roof contact
where roof deformation is coded at the seating position. Even for these, testing
shows that the roof contact occurs before there is any significant roof
deformation. (Id.)
13. Rollovers are complex events and that a single parameter (such as roof
performance or pretensioners) cannot explain the injury potential for occupants.
(Id.)

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IV. MOTION TO EXCLUDE THE OPINIONS OF JOSEPH BURTON, M.D.
Dr. Burton asserts the following opinions.5
1.

2.

Plaintiff Bavlsik was utilizing his available restraint and there is no
evidence to indicate that he was utilizing it inappropriately. (Id. at
7.)

3.

Plaintiff Bavlsik’s cervical spine injuries were sustained as a result
of the subject vehicle entering an intersection and striking a boat and
trailer towed by a 2004 Chevrolet Silverado at a speed between 11
and 15 miles per hour. After striking the other vehicle the subject
vehicle rotated counterclockwise and began rolling down an
embankment, passenger-side first. The subject vehicle rolled ¾
times and came to a rest on the driver’s side. (Id. at 8–9.)

4.

During the frontal impact plaintiff would have remained seated, but
as the vehicle rotated toward the passenger side, he would tend to
move forward and to the right. During the first ¼ roll plaintiff would
have tended to move right, but likely stayed seated. (Id. at 9.)

5.

As the vehicle inverted, plaintiff Bavlsik’s seat belt would have
locked up, but, as a body-mounted system, it would not have prevent
his head from contacting the roof. (Id.)

6.

During the rollover the driver’s side roof rails and structures
deformed inward and downward, intruding into the driver’s side
approximately 4 1/3 inches in the Z-axis and 3 ½ inches in the Yaxis. This intrusion would put an axial and lateral bending load on
plaintiff Bavlsik’s head resulting in his cervical spine injuries. (Id.)

7.

5

Plaintiff Bavlsik sustained in the subject accident a C6-C7
fracture/dislocation and transaction of the cord resulting in
quadriplegia. (Doc. 82-14 at 5.)

Plaintiff Bavlsik would come to rest in the position dictated by
gravity and the vehicle’s position. He would have to be extricated
from the vehicle. (Id.)

Opinions 3–6 are summaries of Dr. Burton’s statements. (Doc. 82-14 at 8–9.)

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8.

Roof crush, which occurred to the subject vehicle, is proximally
related to the occurrence of plaintiff Bavlsik’s cervical spine injuries
resulting in quadriplegia. (Id. at 12.)

9.

If plaintiff Bavlsik’s occupant space had been adequately preserved
his injuries would have been significantly mitigated. (Id. at 15.)

(Id. at 5–15.)
Defendant moves to exclude any testimony or evidence regarding Dr. Burton’s
opinion regarding the mechanism by which plaintiff Bavlsik’s cervical spinal column
injury occurred. This would appear to include opinions 5, 6, 8, and 9. Defendant argues
that Dr. Burton’s opinion is not based on reliable test results, data, objective
methodology, or scientific protocol. (Doc. 71-1 at 11.)
Plaintiffs counter that Dr. Burton is qualified to opine on the mechanism of Dr.
Bavlsik’s spine injury. Plaintiffs also argue Dr. Burton’s opinions are supported by peer
reviewed literature, as well as his own experience. Finally, plaintiffs argue that his
opinions are widely accepted by the independent scientific community. (Doc. 82)

A.

Dr. Burton’s Qualifications & the Assistance to the Jury

Dr. Burton’s qualifications as an expert in the field of biomechanics has not been
substantially questioned by defendant.

(See generally Doc 71-1.)

Dr. Burton is a

forensic pathologist and a licensed medical doctor in the state of Georgia. (Doc. 82-9 at
1.) He has been a State Medical Examiner in Atlanta, Georgia since 1974. (Id.) Dr.
Burton has also consulted on over 1,270 rollover cases. (Id.) He has also been a
consultant for the National Transportation Safety Board and NHTSA. (Id. at 2.) Dr.
Burton is qualified to testify as an expert in biomechanics.
The court also holds that testimony explaining plaintiffs’ theory on how Dr.
Bavlsik’s cervical spine would assist the jury in determining an ultimate issue.

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B.

Reliable and Trustworthy Evidence

Finally, the evidence to be presented by a qualified expert must be found reliable
and trustworthy by the court. Fed. R. Evid. 702; Kumho Tire, 523 U.S. at 141; White
Horse, 316 F.3d at 775. This reliability is based off of the expert applying sufficient facts
and data, which were gathered using reliable principles and methods, to the case at bar.
Fed. R. Evid. 702.

1. Reliable Principles and Methods
The data used must be gathered using reliable principles and methods. Id. A court
may assess the reliability of the expert’s methodology using four nonexclusive factors:
“(1) whether the theory or technique ‘can be (and has been) tested;’ (2) ‘whether the
theory or technique has been subjected to the peer review and publication’’ (3) ‘the
known or potential rate of error’; (4) whether the theory has been generally accepted.”
Shuck, 498 F.3d at 874 (quoting Daubert, 509 U.S. at 593–94).
Dr. Burton conducted his own inspection of the subject vehicle and then received
the measurements from the defendant’s experts. (Doc. 82-14 at App’x A.) He used the
state of Minnesota’s reconstruction data in his analysis of the accident’s effect on Dr.
Bavlsik. (See generally Doc. 82-14.) He used Dr. Bavlsik’s medical records as well. (Id.
at 5-6.) Furthermore, he has used both his own knowledge as well as peer-reviewed
scholarly literature. Dr. Burton has used reliable principles and methods in formulating
his opinions.

2. Application to this Case
Dr. Burton took the evidence and applied it to the accident at hand: a ¾ rollover
of Dr. Burton which involved roof crush and a restraint system that allowed his head to
come into contact with the roof of the subject vehicle. (Doc. 82-14 at 8.) Dr. Burton has
used the charts created by both GM and Ford which illustrated the pressure increase on a
head during both the roof’s initial ground contact and the subsequent crushing of the roof.
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(Doc. 82-14 at 14; Doc. 82-15 at 257.) Dr. Burton uses this data to hypothesize that the
crush on Dr. Bavlsik’s spinal column was caused by his body being pinned between the
crushing roof and the seat. This hypothesis is not novel as defendant suggests and
plaintiffs have provided several studies that support Dr. Burton’s theory. (Doc. 82 at 2
n.1) (citing sources).

The matters raised by defendant can be addressed by the

defendant’s expert witness as well as cross examination of Dr. Burton by defendant.
The court finds that plaintiffs have shown that Dr. Burton’s will be able to assist
the jury as a qualified expert. His opinions are supported by reliable opinions based on
sufficient data which has been applied to this case.

V. MOTION TO EXCLUDE THE OPINONS OF LARRY SICHER
Mr. Sicher asserts the following opinions:
1.

On July 7, 2012, Dr. Michael Bavlsik was the properly restrained
driver of the subject 2003 GMC van. (Doc. 81-3 at 17.)

2.

Dr. Bavlsik was driving his 2003 GMC van on SAH 37 at the
intersection with MNTH 113 in Lake Township. (Id.)

3.

The GMC van initially frontally impacted a boat/trailer combination,
resulting in a frontal airbag deployment and then yawed counterclockwise before rolling ¾ of a revolution. At the end of the ¾ roll,
the van came to rest on its driver’s side. There were ten passengers
in the van. (Id.)

4.

Had the vehicle been equipped with a typical pretensioner device, it
would have deployed when the frontal airbags deployed. (Id.)

5.

Defense experts all opine that the subject restraint system allowed
Dr. Bavlsik’s head to be in contact with the roof structures initially
above him before the roof of the van impacted the ground despite his
initial 4 inches of clearance. This is known to put an occupant at
significant risk of a head and/or neck injury. But, restraint systems
exist that would not have allowed for this initial excursion. The
Subject GMC van is defective and unreasonably dangerous, because
the left front occupant restraint system does not adequately control
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driver excursions during foreseeable and survivable rollover events.
(Id.)
6.

Dr. Bavlsik sustained his paralyzing injuries because of the defective
driver’s occupant protection system. This seat belt system failed to
prevent excessive excursions of Dr. Bavlsik during the July 7, 2012
rollover event. (Id.)

7.

Technological and economical alternative designs existed at the time
that the subject 2003 GMC van was manufactured. Many of the
alternatives were implemented in other vehicles, including some
GMC models. These design features included seat belt anchors
mounted to the seat (ABTS), a pretensioner and/or a cinching type of
latchplate. This alternative restraint system would have protected
Dr. Bavlsik during the July 7, 2012 rollover event. (Id.)

8.

By 2003, multiple vehicles incorporated ABTS designs,
pretensioners, and/or cinching latchplates. It was technologically
and economically feasible for GMC to have included such a design
in the left front position of the 2003 GMC van. (Id.)

9.

GMC’s failure to optimize the rollover crash protection provided in
the 2003 GMC van, which has a very high propensity for rollover,
was grossly negligent. (Id.)

10.

Defense experts conducted drop tests at a drop height that was
significantly higher than that typically used within the industry and
at a height that greatly exaggerated the subject event. This testing
oriented the vehicle in a manner that resulted in a ground impact
substantially different that the ground impact during the subject
crash. As a result, the defense’s tests provide no insight into the
issues of this case and will mislead the jury. (Id.)

(Doc. 81-3.)
Defendant moves to exclude the testimony and evidence regarding three opinions
of plaintiffs’ expert Larry Sicher.
1.

Alternative seat belt design theories as applied to this crash;

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2.

Inversion and drop testing upon which [Mr. Sicher] relies to support
his opinions concerning alternative seat belt designs and/or the
performance of the driver’s seat belt in the subject vehicle;

3.

Any opinions concerning the efficacy or availability of a rollover
sensor for the subject vehicle.

(Doc. 84 at 1.)6

Defendant makes several arguments as to why Mr. Sicher’s opinions should be
excluded. First, defendant argues that Mr. Sicher is not qualified to testify about these
subjects. (Doc. 72-1 at 3–4.) Next, defendant purports that the testing Mr. Sicher
performed is inapplicable to the facts in the case before the court. (Id. at 6–10.) Finally,
defendant argues the tests regarding his alternative designs are not supported with valid
data, test results, scientific protocol, or objective methodology. (Id. at 11–12.)
Plaintiffs counter that Mr. Sicher is qualified both through his education and
experience. (Doc. 81 at 4.) Mr. Sicher’s opinions are grounded in peer review literature
and testing other than his own and have been applied to the facts and circumstances of
this case. (Id. at 5–10.) Finally, Mr. Sicher’s own tests are reliable, repeatable and
universally accepted. (Id. at 10–15.)

A.

Assistance to the Jury

The court finds that an expert’s testimony on the safety of the restraint system in
the subject vehicle, as well as the possibility of alternative designs are topics that would
assist the jury in determining an ultimate issue.

B.

Mr. Sicher’s Qualifications

General Motors challenges Mr. Sicher’s qualifications by saying he has only
completed “some graduate course in math computations, only two of which he could
6

These appear to be 5–10 of Mr. Sicher’s opinions.

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remember.” (Doc. 72-1 at 3.) Defendant also says Mr. Sicher has “some involvement in
government contract work” but “none of his government work has ever resulted in
improvements to motor vehicles driven by the motoring public.” (Id. at 4.) Finally,
defendant states that all Mr. Sicher has done is “litigation cases on the plaintiffs’ side of
cases.” ( Id.)
Mr. Sicher has an engineering degree from Pennsylvania State University and
began working in the engineering field designing ejection seats for fighter pilots at the
Naval Air Development Center (now known as the Naval Air Warfare Center). (Doc. 811 at 1.)

His design for the Army’s High Mobility Multipurpose Wheeled Vehicle

(HMMWV) was published in three separate scholarly articles. (Id. at 2.) This design
was patented by Mr. Sicher and installed in the Army’s Mine Resistant Ambush
Protected (MRAP) vehicles. (Id.) He also authored over twenty publications related to
occupant crash protection, including seat belt pretensioners, vertical occupant excursion,
and occupant protection during rollover events. (Id. at 3.) The court finds that Mr.
Sicher is qualified to testify as an expert on the use and benefit of different restraint
designs in passenger cars.

C.

Reliable and Trustworthy Evidence

The evidence to be presented by a qualified expert must be found reliable and
trustworthy by the court. Fed. R. Evid. 702; Kumho Tire, 523 U.S. at 141; White Horse,
316 F.3d at 775. This reliability depends on the expert applying sufficient facts and data,
which were gathered using reliable principles and methods, to the case at bar. Fed. R.
Evid. 702.

1. Sufficient Facts and Data & Reliable Principles and Methods
Defendant has not challenged Mr. Sicher’s opinions as unreliable because the facts
or data used were insufficient; rather, defendant states that Mr. Sicher has not supported
his opinions with reliable testing. Mr. Sicher has used a significant amount of peer-19-

reviewed literature and testing, his own and others, to support the opinions asserted here.
In his report he has cited to the literature and multiple studies he used to come to his
opinions. The court finds it meets the at least three of the four Daubert factors for
reliability: 1) it has been tested; 2) it has been peer reviewed and published; 3) general
acceptance within the relevant scientific community. See Daubert, 509 U.S. at 592–94.7
Additionally, his company has conducted testing of its own regarding restraint systems
different from the one in the subject vehicle under rollover circumstances. (Doc. 81 at 11
n. 24, 28, 29, 30, 31.)
2. Application to this Case
Defense contends that Mr. Sicher did not apply his research to the facts of this
case. On the contrary, Mr. Sicher testified in his deposition that he used the defense’s
determinations regarding the subject vehicle’s orientation when Dr. Bavlsik was injured.
(Sicher Dep. at 184:15–25.)

Mr. Sicher also used the defense’s theory of the

biomechanics of Dr. Bavlsik as the roll occurred. (Sicher Dep. at 38:23–24, 40:5–6,
42:12–13.) He then used this data and applied it to the known capabilities of various
restraint systems, including the one in the subject vehicle. (Doc. 81 at 11–13.)
The court finds that plaintiffs have shown that Mr. Sicher’s opinions will be able
to assist the jury as a qualified expert. His opinions are supported by reliable opinions
based on sufficient data which has been applied to this case.

Therefore,

7

In Mr. Sicher’s analysis of a better restraint system than the one found in the subject vehicle he
used: Benda, B.J., et al. (2006). Performance of Automotive Seat Belts During Inverted (-Gz)
Rollover Drop Tests. Icrash 2006—International Crashworthiness Conference, Athens, Greece,
University of Bolton; Bahling, G., et al. (1990). Rollover and Drop Tests – The Influence of
Roof Strength on Injury Mechanics Using Belted Dummies (SAE 902314). Warrendale, PA:
Society of Automotive Engineers (“Malibu 2” test); Pywell, J., et. al. (1997). “Characterization
of Belt Restraint Systems in Quasistatic Vehicle Rollover Tests”, (SAE 973334). Warrendale,
PA: Society of Automotive Engineers. These are only three of the twenty-three papers and
presentations Mr. Sicher uses in his report.

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IT IS HEREBY ORDERED that plaintiffs’ motion (Doc. 65) to exclude the
testimony of defendant’s expert Jeya Padmanaban is sustained in part and denied in part.
IT IS FURTHER ORDERED that defendant’s motion (Doc. 71) to exclude the
testimony of plaintiffs’ expert Joseph Burton, M.D., is denied.
IT IS FURTHER ORDERED that defendant’s motion (Doc. 72) to exclude the
testimony of plaintiffs’ expert Larry Sicher is denied.

/S/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on August 18, 2015.

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