Jones et al v. Harley-Davidson, Inc.

Filing 145

MEMORANDUM ORDER. Signed by Magistrate Judge Roy S. Payne on 9/22/2016. (nkl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
MARK JONES & PAMELA JONES,
Plaintiffs,
v.
HARLEY-DAVIDSON, INC. HARLEYDAVIDSON MOTOR COMPANY
GROUP, LLC,
Defendants.

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§ Case No. 2:14-cv-694-RWS-RSP
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MEMORANDUM ORDER
Pending before the Court is Plaintiffs Mark Jones and Pamela Jones’ (“the Joneses”)
Motion to Strike the Testimony of Defendants Harley-Davidson, Inc. and Harley-Davidson
Motor Company Group, LLC’s (“Harley-Davidson”) Expert, Lars H. Reinhart. (Dkt. No. 63.)
Mr. Reinhart issued three opinions: (1) that helmet usage would have lowered the
Joneses’ Abbreviated Injury Scale, (2) that the Joneses did not suffer diffuse axonal injuries and
(3) that helmet usage would have mitigated and largely eliminated the Joneses’ injuries. (Dkt.
No. 63 at 4.) The Joneses assert that those three opinions were based upon flawed testing,
improper standards and rampant speculation and therefore lack reliability and relevance. (Dkt.
No. 63 at 4.) Harley-Davidson counters by arguing that Mr. Reinhart’s opinions are reliable and
are also based upon sound scientific methodology and generally accepted principles. (Dkt. No.
72 at 1.) Harley-Davidson also contends that Mr. Reinhart is qualified based upon his
knowledge, training, and experience to offer his opinions regarding the effect helmets would
have had upon reducing the Joneses’ head injuries. (Dkt. No. 72 at 5.)

In their Reply, the Joneses reiterate that the three opinions from Mr. Reinhart are
unreliable and inadmissible. (Dkt. No. 87 at 1.) In their Sur-Reply, Harley-Davidson adds that
the Joneses’ challenges to Reinhart’s testimony relate to the weight of the testimony rather than
its admissibility and therefore, there is not a proper basis for striking any of Reinhart’s opinions.
(Dkt. No. 93 at 1.)
APPLICABLE LAW
Rule 702 provides that an expert witness may offer opinion testimony if (a) the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c)
the testimony is the product of reliable principles and methods; and (d) the expert has reliably
applied the principles and methods to the facts of the case. Fed. R. Evid. 702.
“The inquiry envisioned by Rule 702 is . . . a flexible one,” but in Daubert, the Supreme
Court held the Rules also “assign to the trial judge the task of ensuring that an expert’s testimony
both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow
Pharms. Inc., 509 U.S. 579, 594, 597 (1993). “The relevance prong [of Daubert] requires the
proponent [of the expert testimony] to demonstrate that the expert’s ‘reasoning or methodology
can be properly applied to the facts in issue.’” Johnson v. Arkema, Inc., 685 F.3d 452, 459 (5th
Cir. 2012) (quoting Curtis v. M & S Petroleum, Inc., 174 F.3d 661, 668 (5th Cir. 1999)). “The
reliability prong [of Daubert] mandates that expert opinion ‘be grounded in the methods and
procedures of science and . . . be more than unsupported speculation or subjective belief.’”
Johnson, 685 F.3d at 459 (quoting Curtis, 174 F.3d at 668). In assessing the “reliability” of an
expert’s opinion, the trial court may consider a list of factors including: “whether a theory or
technique . . . can be (and has been) tested,” “whether the theory or technique has been subjected

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to peer review and publication,” “the known or potential rate of error,” “the existence and
maintenance of standards,” and “general acceptance” of a theory in the “relevant scientific
community.” Daubert, 509 U.S. at 593–94; see also Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 150 (1999) (“Daubert makes clear that the factors it mentions do not constitute a
‘definitive checklist or test.’”); U.S. v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010). “The
proponent need not prove to the judge that the expert’s testimony is correct, but she must prove
by a preponderance of the evidence that the testimony is reliable.” Johnson, 685 F.3d at 459
(quoting Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc)).
ANALYSIS
A.

Mr. Reinhart’s First Opinion on the Mitigating Effects of Helmet Usage
The Joneses state that in his first opinion, Mr. Reinhart declares that without a helmet,

Mr. and Mrs. Jones had an 85% and 70% chance, respectively, of sustaining an Abbreviated
Injury Scale (“AIS”) of 3 or greater in the accident but that, with a helmet, the chance of AIS of
3 or greater was closer to 20% for each. (Dkt. No. 63 at 5.) To reach this conclusion, Mr.
Reinhart relied on the testing and opinions of another one of Harley-Davidson’s experts, David
R. Thom (“Mr. Thom”), who the Joneses contend used flawed methodologies to calibrate and
calculate AIS scores and head injury criterion (“HIC”) values. (Dkt. No. 63 at 5-6.)
In response, Harley-Davidson points out that methodologies inherent in generally
accepted literature about HIC were used to assess the Joneses’ expected “helmeted” AIS scores
in Mr. Thom’s tests, and because the AIS is a verified scoring system introduced in 1969 by the
Association for the Advancement of Automotive Medicine (AAAM) and “is accepted on a
global basis” as well as “generally relied upon for assessing injury severity,” Reinhart’s opinions
are based upon sound methodology and are thus admissible. (Dkt. No. 72 at 6-7.)

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The Court finds that Mr. Reinhart’s first opinion on the mitigating effects of helmet usage
is admissible, primarily because the Court has previously ruled that Mr. Thom’s opinion is
admissible as well. (See Dkt. No. 125). The Court further finds that the Joneses’ challenges to the
reliability and relevance of Mr. Thom’s testimony (which they contend is the flawed foundation
which Mr. Reinhart relies on) is directed at the weight of the evidence, not its admissibility. See
Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 354 (5th Cir. 2007) (objections to the lack of a
textual support, where an expert otherwise utilizes scientific methods to reach a conclusion, “go
to the weight not the admissibility of the expert’s testimony.”). An expert may also rely upon the
opinion of another expert, as long as the other expert opinion “upon which [the] expert bases an
opinion or inference…[are] of a type reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject.” Fed. R. Evid 703.1
B.

Mr. Reinhart’s Second Opinion That The Joneses Did Not Suffer Axonal Injuries
The Joneses next argue that the opinion espoused by Reinhart that neither Mr. nor Mrs.

Jones suffered a diffuse axonal injury (DAI) is unreliable because first, Reinhart states that “DAI
injuries score as an AIS 4 or 5” but both Joneses exhibited an AIS of 3 and second, Reinhart
relies on the fact that neither Mr. nor Mrs. Jones exhibited a sufficient loss of consciousness.
(Dkt. No. 63 at 7.) The Joneses also contend that Reinhart’s conclusions are problematic because
they are based on the “flawed testing” methodology of Mr. Thom. (Dkt. No. 63 at 7-8.) As a
counter, Harley-Davidson asserts the Joneses fail to distinguish between the literature’s
definition of DAIs from a clinical injury standpoint, and the broadened definition of DAI used
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“The Advisory Committee Notes [for Federal Rule of Evidence 703] recognize that experts may rely upon the
opinions of other experts: ‘Thus a physician in his own practice bases his diagnosis on information from numerous
sources and of considerable variety, including ... reports and opinions from nurses, technicians and other doctors....’
Advisory Committee's Notes on Fed. R. Evid. 703; see also 4 WEINSTEIN & BERGER, WEINSTEIN'S FEDERAL
EVIDENCE § 703.04[3] (‘The number of sources on which experts in various fields of expertise might reasonably
rely to obtain information for the formation of opinions and inferences is virtually infinite. A few of those that the
courts have considered with regularity are the following[:] ... opinions of other experts[.]’)” Eaves v. United States,
No. 4:07CV-118-M, 2009 WL 3754176, at *9 (W.D. Ky. Nov. 5, 2009).

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for research purposes. (Dkt. No. 72 at 7.) Because the Court previously ruled Mr. Thom’s
testimony is admissible, it accordingly finds that Mr. Reinhart’s second opinion is also
admissible.
C.

Mr. Reinhart’s Third Opinion
The Joneses finally argue that Reinhart’s third opinion that “both riders sustained AIS 3

(non-DAI) head injuries due to their unhelmeted condition during the subject event” and “[h]ad
both riders been wearing helmets, their head injuries would have been substantially mitigated
and, more likely than not, would have sustained either a mild [traumatic brain injury (‘TBI’)] or
no head injury at all” is unreliable as well as irrelevant. (Dkt. No. 63 at 13.) Again, the Joneses
contend the testimony of Mr. Reinhart is inadmissible because it is based on the allegedly flawed
testing testimony of Mr. Thom. Again, because the Court previously found Mr. Thom’s opinion
admissible, this argument is unpersuasive. Harley-Davidson also adds that based upon his
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analysis of the accident reconstruction, review of the Joneses’ medical records and other
materials, Reinhart is able to conclude within a reasonable degree of medical and engineering
certainty that had Mr. and Mrs. Jones been wearing helmets, they would have sustained, at most,
a mild TBI in the crash. (Dkt. No. 72 at 10-11.)
CONCLUSION
For the reasons above, the Court finds that Harley-Davidson has shown that Mr.
Reinhart’s opinion testimony is admissible under Rule 702 and Daubert. Thus, the Joneses’
Motion to Strike (Dkt. No. 63) Mr. Reinhart’s testimony is DENIED.
SIGNED this 3rd day of January, 2012.
SIGNED this 22nd day of September, 2016.

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ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE
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