Cartwright v. American Honda Motor Co., Inc. et al

Filing 82

MEMORANDUM OPINION AND ORDER. Defendant's Motion to Exclude Opinions and Testimony of Stephen Batzer 42 , Defendants Motion to Exclude Opinions and Testimony of Paul Lewis 43 , Plaintiff's Motion to Exclude Opinions and Testimony of DPS Corporal Jimmy Faulkner 44 , Plaintiff's Motion to Exclude Proposed Expert Opinion Testimony from Michael E. Klima to the Extent it is Based on Accident Statistics 45 , Defendant's Motion to Exclude Opinions and Testimony of Allan J. Kam 46 , Plaintiff's Motion to Exclude Certain Testimony from Dr. Michael Carhart 47 , Plaintiff's Motion to Exclude Proposed Expert Opinion Testimony from Lee C. Carr 48 and Plaintiff's Motion to Exclude Certain Expert Opinions of Dr. Thomas McNish 49 are denied. Signed by Magistrate Judge Judith K. Guthrie on 8/13/11. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION

ASHLEY CARTWRIGHT

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Vs.

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AMERICAN HONDA MOTOR CO., INC.

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CIVIL ACTION NO. 9:09CV205

MEMORANDUM OPINION AND ORDER
On July 19, 2011, the undersigned conducted a hearing to consider the following motions:
Defendant’s Motion for Summary Judgment (document #41), Defendant’s Motion to Exclude
Opinions and Testimony of Stephen Batzer (document #42), Defendant’s Motion to Exclude
Opinions and Testimony of Paul Lewis (document #43), Plaintiff’s Motion to Exclude Opinions and
Testimony of DPS Corporal Jimmy Faulkner (document #44), Plaintiff’s Motion to Exclude
Proposed Expert Opinion Testimony from Michael E. Klima to the Extent it is Based on Accident
Statistics (document #45), Defendant’s Motion to Exclude Opinions and Testimony of Allan J. Kam
(document #46), Plaintiff’s Motion to Exclude Certain Testimony from Dr. Michael Carhart
(document #47), Plaintiff’s Motion to Exclude Proposed Expert Opinion Testimony from Lee C.
Carr (document #48) and Plaintiff’s Motion to Exclude Certain Expert Opinions of Dr. Thomas
McNish (document #49). At the hearing, the undersigned heard arguments from counsel and denied
the motions for the reasons set forth below.

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Background
This is a products liability case concerning a one-vehicle roll over automobile accident that
occurred on March 3, 2009 involving a 1997 Honda Accord. Plaintiff asserts that she swerved to
avoid a pot-hole and lost control of her car while driving on Forest Service Road 107 in Shelby
County. The car left the road and rolled. Plaintiff was ejected from the vehicle. There is a dispute
between the parties as to whether Plaintiff was wearing her seatbelt at the time of the accident.
Plaintiff suffered severe injuries rendering her a quadriplegic.
This lawsuit was filed on December 9, 2009. Plaintiff asserts a defective design products
liability claim against American Honda Motor Co., Inc. Plaintiff asserts that her injuries resulted
from defects in the vehicle’s roof and driver’s side window. More specifically, Plaintiff alleges that
the side windows, including the use of tempered glass in the side windows, and the roof structure
were defective such that together these defects rendered the vehicle uncrashworthy, defective and
unreasonably dangerous. The parties filed eight motions seeking to exclude some or all of each
other’s expert witness opinions.
Applicable Law
Pursuant to FRE 702, an expert may testify as an expert by knowledge, skill, experience,
training, or education if scientific, technical, or other specialized knowledge will assist the trier-offact to understand the evidence or to determine a fact in issue. FRE 702 requires:
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the testimony must be based upon sufficient facts or data;
the testimony must be the product of reliable principles and methods; and
the expert must apply those principles and methods reliably to the facts of the case.

Rule 702 is broadly interpreted, and helpfulness to the trier of fact is its “touchstone.” Kopf v. Skyrm,
993 F.2d 374, 377 (4th Cir.1993) (citing Friendship Heights Associates v. Koubek, 785 F.2d 1154,

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1159 (4th Cir.1986)). Testimony from an expert is presumed to be helpful unless it concerns matters
within the everyday knowledge and experience of a lay juror. Id. (citing Persinger v. Norfolk &
Western Railway Co., 920 F.2d 1185, 1188 (4th Cir.1990)).
In Daubert,1 the Supreme Court recognized that the trial judge has a gate-keeping role to
ensure that expert testimony is relevant and reliable. The Court espoused five non-exclusive,
flexible factors that may be considered in deciding whether a proposed expert’s methodology is
scientifically valid or reliable:
(1) whether the expert’s theory can be or has been tested,
(2) whether the theory has been subject to peer review and publication,
(3) the known or potential rate of error of the technique or theory when applied,
(4) the existence and maintenance of standards and controls, and
(5) the degree to which technique or theory has been generally accepted in the scientific
community.
Daubert, 509 U.S. at 593-95. The Court must make a “preliminary assessment of whether the
reasoning or methodology underlying the testimony is scientifically valid and of whether that
reasoning or methodology properly can be applied to the facts in issue.” Id. at 592-93. The Daubert
factors are not mandatory or exclusive; a court must decide whether the Daubert factors are
appropriate, use them as a starting point and then ascertain if other factors should be considered.
Hathaway v. Bazany, 507 F.3d 312, 318 (5th Cir.2007). To be admissible, an expert’s opinion must
be based on sufficient facts and a reliable methodology. Id.
In Kumho Tire,2 the Supreme Court applied the Daubert principles to technical or specialized
expert testimony. The Court explained that the overarching goal of Daubert’s gate-keeping

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Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).

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Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999).
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requirement is to “ensure the reliability and relevancy of expert testimony. It is to make certain an
expert, whether basing testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert in the
relevant field.” Kumho Tire, 119 S.Ct. at 1176. A trial court has the discretion to exclude expert
testimony if there is an “analytical gap” between the expert’s reasoning and the conclusion. General
Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512 (1997).
After a court considers the Daubert factors, a court may then consider whether other factors,
not mentioned in Daubert, are relevant to the case at hand. Black v. Food Lion, Inc., 171 F.3d 308,
312 (5th Cir.1999). “The proponent [of the expert testimony] 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.” Moore v. Ashland Chemical, Inc., 151 F.3d 269, 276 (5th Cir.1998).
Stephen Batzer
On March 18, 2011, Stephen Batzer, an expert in the field of automotive design analysis
engineering retained by Plaintiff, submitted a Fed.R.Civ.P. 26(a)(2)(B) report with his analysis of
the subject collision. Defendant complains that Batzer’s opinion is unreliable because he has not
offered or tested a specific alternative design. Defendant characterizes Batzer’s alternative design
as a concept and not an actual alternative design. Plaintiff, on the other hand, submits that Batzer’s
opinion is reliable and is supported by rollover tests conducted in accordance with industry practices
and procedures. Further, Plaintiff asserts that Batzer has produced sufficient alternative designs
supported by valid engineering principles and by testable methods or calculations.
Batzer’s opinions were thoroughly fleshed out at the hearing. Having carefully considered
the pleadings and arguments of counsel, I conclude that Stephen Batzer’s testimony will assist the

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trier-of-fact as required by Fed.R.Evid. 702. Defendant’s challenges to Mr. Batzer’s opinion go to
the weight of his opinion and may be developed through cross-examination, leaving the
determination of his credibility to the trier-of-fact. I further conclude that Stephen Batzer is qualified
to testify as an expert in this case and that Plaintiff has shown his testimony to be sufficiently reliable
as required by Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) and F.R.E.
702. I find that his opinion is based upon sufficient facts or data, is the product of reliable principles
and methods and is the result of applying those principles and methods reliably to the facts of the
case.
Paul Lewis
Paul Lewis is a biomechanical engineer retained by Plaintiff as an expert witness on occupant
kinematics and biomedical engineering. Defendant seeks to exclude Lewis’ opinions because he
presents an alternate causation opinion, he is not qualified to offer an opinion about injuries that
Plaintiff might have received in an alternate accident scenario, and he identifies his methodology as
the “scientific method,” but does not specify what specific methodology he used. In addition to
concluding that Plaintiff’s neck injury was caused when she hit the ground after ejection, Lewis
opines that she would have suffered the same type of injury had she not been ejected from the vehicle
because of roof crush. Plaintiff asserts that the alternative opinion concerning whether Plaintiff was
or would have been injured while in the vehicle with or without ejection is in direct response to
Defendant’s expert witness who opines that Plaintiff’s injury occurred prior to ejection. Further,
Plaintiff submits that Lewis is well qualified to testify concerning injury causation and his reliance
on the scientific method, a fundamental principle, is proper.
Lewis’ opinions were thoroughly reviewed at the hearing. Having carefully considered the

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pleadings and arguments of counsel, I conclude that the testimony of Paul Lewis will assist the trier
of fact. I further conclude that Paul Lewis is qualified to testify as an expert in this case and that
Plaintiff has shown his testimony to be sufficiently reliable as required by Daubert v. Merrell Dow
Pharm. Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) and F.R.E. 702. Defendant’s challenges to Lewis’
opinion go to the weight of his opinion and may be developed through cross-examination, leaving
the determination of his credibility to the trier-of-fact. I find that Paul Lewis’ opinion is based upon
sufficient facts or data, is the product of reliable principles and methods and is the result of applying
those principles and methods reliably to the facts of the case.
Corporal Jimmy Faulkner
Corporal Jimmy Faulkner is offered as a non-retained expert by Defendant. Plaintiff seeks
to exclude Corporal Faulkner’s opinion as to the cause of the accident. Corporal Faulkner
investigated the accident and prepared an accident report in his capacity as the state trooper on the
scene. On the accident report, Corporal Faulkner concludes that the cause of the accident was
Plaintiff’s faulty evasive action and unsafe speed under the limit. Plaintiff asserts that Corporal
Faulkner is unqualified to offer an opinion as to the cause of the accident because he does not have
specialized training in accident reconstruction. Defendant counters that Corporal Faulkner is being
offered to provide his opinion as the law enforcement officer who conducted the official
investigation supported by 15 years of experience investigating accidents, not as an accident
reconstructionist.
Having carefully considered the pleadings and arguments of counsel, I conclude that the
testimony of Corporal Faulkner will assist the trier of fact. I further conclude that Corporal Faulkner
is qualified to testify as an expert in this case and that Defendant has shown his testimony to be

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sufficiently reliable as required by Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 113 S.Ct.
2786 (1993) and F.R.E. 702. Plaintiff’s challenges to Corporal Faulkner’s opinions go to the weight
of his opinions and may be developed through cross-examination, leaving the determination of his
credibility to the trier-of-fact. I find that Corporal Faulkner’s opinion is based upon sufficient facts
or data, is the product of reliable principles and methods and is the result of applying those principles
and methods reliably to the facts of the case. Corporal Faulkner’s experiment, however, where he
attempted to re-create the path of Plaintiff’s car with his patrol car and test Plaintiff’s assertion that
she lost control of her vehicle after hitting a pothole, is excluded as unreliable. Unlike his opinions
flowing from his accident investigation, Corporal Faulkner’s experiment lacks the reliability required
by Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) and F.R.E. 702.
While Corporal Faulkner has the experience and training to investigate accidents, there has been no
showing that he is qualified to re-create an accident and make findings from that re-creation.
Michael Klima
Michael Klima is offered by Defendant as an expert witness on seat belts and seat belt usage.
Plaintiff challenges only one opinion offered by Michael Klima – that proper seatbelt usage reduces
the likelihood of ejection and injury in rollover collisions. Plaintiff asserts that Klima improperly
relies upon statistical data for accidents that are not substantially similar to the one at issue in this
case. Defendant contends that Klima’s reliance on statistical evidence is proper and his opinion is
buttressed by his experience working as a design engineer and analyst for GM, Ford and Toyota.
Klima’s opinion was thoroughly discussed at the hearing. Having carefully considered the
pleadings and arguments of counsel, I conclude that the testimony of Michael Klima will assist the
trier of fact. I further conclude that Michael Klima is qualified to testify as an expert in this case and

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that Defendant has shown his testimony to be sufficiently reliable as required by Daubert v. Merrell
Dow Pharm. Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) and F.R.E. 702. Plaintiff’s challenge to
Klima’s opinion concerning the reduced likelihood of ejection and injury in rollover accidents with
proper seatbelt usage goes to the weight of his opinion and may be developed through crossexamination, leaving the determination of his credibility to the trier-of-fact. I find that Michael
Klima’s opinion is based upon sufficient facts or data, is the product of reliable principles and
methods and is the result of applying those principles and methods reliably to the facts of the case.
Allan J. Kam
Allan J. Kam, an attorney, is offered by Plaintiff as an expert on the National Highway
Traffic Safety Administration (“NHTSA”). Defendant submits that Kam’s testimony should be
excluded because a federal regulation prohibits former employees from testifying, his report
contains legal conclusions that are inadmissible, the report is filled with opinion testimony that he
is not qualified to offer and includes inadmissible hearsay, and his findings are irrelevant and
unhelpful, as well as highly prejudicial. Plaintiff asserts that Kam’s testimony is relevant and
necessary to rebut Defendant’s assertion that it is entitled to a presumption of no liability because
it complied with government safety standards.
Kam’s opinions were thoroughly explored at the hearing. His opinions relate to his personal
knowledge of NHTSA’s general practices and procedures and Defendant has not shown that 49
C.F.R. § 9 prohibits the proffered testimony. Having carefully considered the pleadings and
arguments of counsel, I conclude that Kam’s testimony will assist the trier of fact. I further
conclude that Kam is qualified to testify as an expert in this case and that Plaintiff has shown his
testimony to be sufficiently reliable as required by Daubert v. Merrell Dow Pharm. Inc., 509 U.S.

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579, 113 S.Ct. 2786 (1993) and F.R.E. 702. Defendant’s challenges to Kam’s opinions go to the
weight of his opinions and may be developed through cross-examination, leaving the determination
of his credibility to the trier-of-fact. In addition, the challenge asserted seeking to limit Kam from
offering legal conclusions may be raised in a motion in limine. I find that Kam’s opinion is based
upon sufficient facts or data, is the product of reliable principles and methods and is the result of
applying those principles and methods reliably to the facts of the case.
Dr. Michael Carhart
Dr. Michael Carhart is offered by Defendant as an expert on window glazing. In his report,
Dr. Carhart opines that use of laminated safety glass in place of tempered glass would not have
prevented Plaintiff’s ejection from the vehicle. Plaintiff argues that Dr. Carhart’s analysis is flawed
because his window centrifugal force analysis is unreliable, in that it misrepresents the accident
forces, and relies upon tests that were not substantially similar to the subject accident. Defendant
submits that Dr. Carhart’s methodology is pure mathematical calculation based upon accepted
principles of physics.
Dr. Carhart’s opinions were thoroughly explored at the hearing. Having carefully considered
the pleadings and arguments of counsel, I conclude that the testimony of Dr. Carhart will assist the
trier of fact. I further conclude that Dr. Carhart is qualified to testify as an expert in this case and
that Defendant has shown his testimony to be sufficiently reliable as required by Daubert v. Merrell
Dow Pharm. Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) and F.R.E. 702. Plaintiff’s challenges to
Carhart’s opinion go to the weight of his opinion and may be developed through cross-examination,
leaving the determination of his credibility to the trier-of-fact. I find that Dr. Carhart’s opinion is
based upon sufficient facts or data, is the product of reliable principles and methods and is the result

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of applying those principles and methods reliably to the facts of the case.
Lee Carr
Lee Carr is an accident reconstructionist expert witness offered by Defendant. Plaintiff seeks
to exclude Carr’s opinions concerning roof issues, seatbelt use and injury potential that rely upon
NHTSA statistics. These opinions are found in paragraphs 18, 19 and 20 of Carr’s report. Plaintiff
contends that Carr is not qualified to offer an opinion concerning accident statistics and the statistics
he relies upon do not concern similar accidents. Defendant asserts that Carr’s opinions concern
injury risks, as opposed to causation, and the accident statistics are not being offered to prove or
disprove a defect.
Carr’s opinions were thoroughly discussed at the hearing. Having carefully considered the
pleadings and arguments of counsel, I conclude that the testimony of Lee Carr will assist the trier
of fact. I further conclude that Carr is qualified to testify as an expert in this case and that Defendant
has shown his testimony to be sufficiently reliable as required by Daubert v. Merrell Dow Pharm.
Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) and F.R.E. 702. Plaintiff’s challenges to Carr’s opinion
go to the weight of his opinion and may be developed through cross-examination, leaving the
determination of his credibility to the trier-of-fact. I find that Lee Carr’s opinion is based upon
sufficient facts or data, is the product of reliable principles and methods and is the result of applying
those principles and methods reliably to the facts of the case.
Dr. Thomas McNish
Dr. Thomas McNish, a medical doctor and engineer, is offered by Defendant as a
biomechanical expert witness designated to testify on injury causation and occupant kinematics.
Plaintiff seeks to exclude four of Dr. McNish’s opinions: (1) at the one-quarter roll position, the

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vertex of Plaintiff’s head was against the roof and remained in that position as the vehicle continued
to roll over past the one-half roll position when she sustained a significant axial load to her cervical
spine causing her severe cervical spine injuries resulting in tetraplegia prior to her ejection through
the driver’s side window; (2) that had Plaintiff been wearing her seatbelt, she would not have been
seriously injured in this rollover accident; (3) that Plaintiff struck the ground at an excess of 25 mph
with her upper right posterior thorax; and (4) any opinions concerning the speed at which Plaintiff’s
body was traveling as she was ejected from the vehicle, her trajectory, her height above the ground,
or the angle of dissent and speed at which she landed.
Dr. McNish opines, among other things, that “witness marks,” markings inside the vehicle
showing where Plaintiff’s body struck the inside of the vehicle, compared with the injuries viewed
on Plaintiff’s CT scans show that Plaintiff’s devastating injury occurred prior to ejection. Dr.
McNish ruled out other causes in his report and deposition testimony and performed a surrogate
study with an exemplar vehicle and comparable body to show Plaintiff’s position prior to roof crush.
Dr. McNish’s opinions were thoroughly explored at the hearing. Having carefully considered
the pleadings and arguments of counsel, I conclude that the testimony of Dr. McNish will assist the
trier of fact. I further conclude that Dr. McNish is qualified to testify as an expert in this case and
that Defendant has shown his testimony to be sufficiently reliable as required by Daubert v. Merrell
Dow Pharm. Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) and F.R.E. 702. Plaintiff’s challenges to
Carr’s opinion go to the weight of his opinion and may be developed through cross-examination,
leaving the determination of his credibility to the trier-of-fact. I find that Dr. McNish’s opinion is
based upon sufficient facts or data, is the product of reliable principles and methods and is the result
of applying those principles and methods reliably to the facts of the case.

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Based on the foregoing, it is hereby
ORDERED that Defendant’s Motion to Exclude Opinions and Testimony of Stephen Batzer
(document #42), Defendant’s Motion to Exclude Opinions and Testimony of Paul Lewis (document
#43), Plaintiff’s Motion to Exclude Opinions and Testimony of DPS Corporal Jimmy Faulkner
(document #44), Plaintiff’s Motion to Exclude Proposed Expert Opinion Testimony from Michael
E. Klima to the Extent it is Based on Accident Statistics (document #45), Defendant’s Motion to
Exclude Opinions and Testimony of Allan J. Kam (document #46), Plaintiff’s Motion to Exclude
Certain Testimony from Dr. Michael Carhart (document #47), Plaintiff’s Motion to Exclude
Proposed Expert Opinion Testimony from Lee C. Carr (document #48) and Plaintiff’s Motion to
Exclude Certain Expert Opinions of Dr. Thomas McNish (document #49) are DENIED. The only
exception to the above is that Corporal Faulkner may not testify concerning his “experiment” in
attempting to re-create the path taken by Plaintiff’s vehicle with his patrol car to see if he would lose
control of the vehicle.

So ORDERED and SIGNED this 13 day of August, 2011.

____________________________
JUDITH K. GUTHRIE
UNITED STATES MAGISTRATE JUDGE

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