Timoschuk v. Daimler Trucks North America et al
ORDER DENYING 80 Motion Limit Expert TestimonyLimit Expert Testimony; GRANTING 84 Motion Limit Expert TestimonyLimit Expert Testimony; DENYING 85 Motion to exclude Expert Testimony Signed by Judge Xavier Rodriguez. (wg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ENDANG WIDURI TIMOSCHUK,
Individually, and as the Surviving Spouse
and Representative of THE ESTATE OF
JEFFORY ALAN TIMOSCHUK, Deceased,
and on Behalf of Infant A.R.T.
DAIMLER TRUCKS NORTH AMERICA,
LLC d/b/a FREIGHTLINER LLC,
SCHNEIDER NATIONAL LEASING,
INC., VOGES DRILLING CO., and
ANDREW MORGAN WEATHERS,
Civil Action No. SA-12-CV-816-XR
On this date, the Court considered Defendant Daimler Trucks North America LLC’s
(“Daimler”) motions to exclude or limit Plaintiffs’ expert testimony.
Daimler has filed a
Daubert motion to exclude the testimony of Gerald Rosenbluth, Plaintiffs’ proffered expert on
truck cab design. Doc. No. 85. After careful consideration, that motion is DENIED. In
addition, Daimler seeks to limit the testimony of David Smith, Plaintiffs’ fire causation and
spread expert, and Dr. Mary Case, Plaintiffs’ medical expert. Doc. No. 80 & Doc. No. 84.
These motions are also DENIED.
This case arises out of a tractor trailer accident that killed Jeffory Timoschuk.
Plaintiff Endang Widuri Timoschuk, individually, as the surviving spouse and representative
of the estate of Jeffory Alan Timoschuk, and on behalf of Infant A.R.T., (collectively
“Plaintiffs”) sued Daimler and three other defendants. Doc. No. 20. Plaintiffs have settled
with all Defendants except Daimler. Doc. No. 58 at 2.
Plaintiffs allege that on October 15, 2010, Jeffory Alan Timoschuk was a passenger in
a 2007 Daimler tractor with his co-driver, James W. Meyer. Timoschuk’s and Meyer’s tractor
struck a drill rig truck and caught fire. Both Timoschuk and Meyer perished in the fire.
Timoschuk was allegedly alive in the moments immediately following collision. However,
Timoschuk was apparently trapped in the burning tractor, which was not equipped with an
emergency exit. On August 31, 2012, Plaintiffs filed the present wrongful death and survival
lawsuit, asserting causes of action against Daimler for negligence, defective design, failure to
warn, and breach of warranty. On May 7, 2014, Daimler filed these Daubert motions to
exclude Plaintiffs’ expert testimony. Docs. Nos. 80, 84, & 85.
Rule 702 of the Federal Rules of Evidence provides for the admissibility of expert
testimony if it will “assist the trier of fact to understand the evidence or to determine a fact in
issue.” FED. R. EVID. 702.
As a preliminary matter, the Court must determine whether the
proffered witness qualifies as an expert. “Before a district court may allow a witness to testify
as an expert, it must be assured that the proffered witness is qualified to testify by virtue of his
‘knowledge, skill, experience, training, or education.’” United States v. Cooks, 589 F.3d 173,
179 (5th Cir. 2009) (quoting FED. R. EVID. 702).
If the expert is qualified, then the Supreme Court’s decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993) provides the analytical framework for determining
the admissibility of expert testimony.
Daubert requires the district courts to act as
“gatekeepers” to ensure expert testimony meets Rule 702’s standards. Id. at 589. This entails
ensuring “that an expert's testimony both rests on a reliable foundation and is relevant to the
task at hand.” Id. at 597; Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002) (“In
short, expert testimony is admissible only if it is both relevant and reliable”).
The reliability inquiry entails a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and can be properly applied to the
facts in issue. Id. at 592-593. In Daubert, the Supreme Court enumerated five nonexclusive
factors to consider when assessing whether the methodology upon which an expert rests his
opinion is reliable. These factors are: (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 a technique or theory when applied, (4) the existence and
maintenance of standards and controls, and (5) the degree to which the technique or theory has
been generally accepted in the scientific community. Id. at 593–94; Burleson v. Tex. Dep’t of
Criminal Justice, 393 F.3d 577, 584 (5th Cir. 2004).
The test for determining reliability is flexible and can adapt to the particular
circumstances underlying the testimony at issue. Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137 (1999). The point of this inquiry “is to make certain that 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.
Id. “[I]n determining the admissibility of expert testimony, the district court should approach
its task ‘with proper deference to the jury's role as the arbiter of disputes between conflicting
opinions.” United States v. 14.38 Acres of Land, More or Less Sit. in Leflore County, Miss., 80
F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chemical Co., 826 F.2d 420, 422
(5th Cir. 1987)).
1. Motion to Exclude Expert Testimony from Gerald Rosenbluth
Daimler seeks to exclude all testimony from Gerald Rosenbluth, Plaintiffs’ expert on
alleged design defects in the subject trailer. Doc. No. 85. Daimler first argues that Mr.
Rosenbluth is not qualified to testify as an expert on truck design. Id. Second, Daimler asserts
that, even if Rosenbluth is qualified, his opinion in this case rests on an unreliable foundation
and should be excluded. Id.
To begin, the Court finds that Rosenbluth is qualified as an expert to testify on truck
design and safety.
Based upon his curriculum vitae, Rosenbluth has over 50 years of
experience in the automotive design and safety field. Doc. No. 94, Ex. B. He is the President
of Automotive Consulting Services Inc., and has served as a consultant to numerous
government agencies, including the National Highway Traffic Safety Administration.
Rosenbluth has B.A. and M.A. degrees from Arizona State University with a specific focus on
Industrial Design and Technology and Automotive Design. Id. He is a member of the Society
of Automotive Engineers, among other professional affiliations pertaining to the automobile
industry. 1 Id.
In addition to painting Rosenbluth as a professional expert witness, the main thrust of
Daimler’s argument is that any experience in the automotive industry that Rosenbluth
Daimler is correct that, just because Rosenbluth has been found qualified as an expert witness in other courts
does not mean that this Court can automatically assume that he is qualified. However, the fact that Rosenbluth
routinely testifies on auto safety matters at least suggests that he is indeed a sought-after expert in this field.
have does not qualify him to testify about the subject of this litigation: heavy truck design.
Doc. No. 85. To the extent that Daimler seeks to have Rosenbluth excluded because his
expertise is not solely focused on truck design, but automotive safety more generally, it is
worth noting as an initial matter that courts routinely reject efforts to artificially narrow the
scope of a witnesses’ expertise in order to disqualify him or her. See, e.g., Johnson v. BAE
Sys. Land & Armaments, L.P., 3:12-CV-1790-D, 2014 WL 1714487 (N.D. Tex. Apr. 30,
2014) (rejecting attempt to disqualify clinical psychologist who specialized in hate crimes
from testifying on emotional impact in a Title VII case).
More specifically, Daimler contends that Rosenbluth is not qualified to testify because
he has never designed “sleeper doors, pop-out windows or any other form of egress from a
heavy truck.” Doc. No. 85 at 9. Daimler’s argument here is that to be qualified as an expert on
this issue, a witness must have designed emergency exits for heavy trucks. Not only does this
understanding narrow the scope of potential experts, it also mischaracterizes the relevant
inquiry. Plaintiffs are not claiming that any emergency exits were defectively designed;
instead, they assert that the truck design itself was defective because it lacked sufficient
emergency exits. This is an important distinction. As Daimler correctly notes in its motion
for summary judgment, “[t]he defect question hinges on whether the ‘condition of the tractor’
rendered it unreasonably dangerous as designed as a whole.” Doc. No. 82 (citing Goodner v.
Hyundai Motor Co., Ltd., 650 F.3d 1034, 1045 (5th Cir. 2011) (emphasis in original).
Because the inquiry is focused on the design of the tractor trailer, and not on the exits
themselves, there is no merit in the argument that Rosenbluth’s lack of particularized
experience with emergency exits renders him unqualified.
In this case, the Court finds, based on his education and professional experience,
Rosenbluth is qualified to testify as to automobile design and safety, both relevant issues in a
design defect case. The fact that Rosenbluth’s experience may not be solely focused on heavy
trucks or sleeper cabs does not alter his qualification to testify as to auto safety more generally.
See Huss v. Gayden, 571 F.3d 442, 452 (5th Cir. 2009) (“Differences in expertise bear chiefly
on the weight to be assigned to the testimony by the trier of fact, not its admissibility.”).
Next, Daimler contends that Rosenbluth’s proposed testimony in this case is based on
an unreliable foundation and should therefore be excluded.
Doc. No. 85.
Rosenbluth’s affidavit and expert report establishes that he relied on various studies and
physical testing to arrive at his conclusions, Rule 702 requires courts to assess the reliability of
the underlying data used to formulate the opinion. See Allen v. Pennsylvania Engineering
Corp., 102. F.3d 194, 199 (5th Cir. 1996) (“[I]f the foundational data underlying opinion
testimony are unreliable, an expert will not be permitted to base an opinion on that data
because any opinion from that data is likewise unreliable.”). Rosenbluth relies on, inter alia,
studies from NHTSA and from the University of Michigan Transportation Research Institute
regarding incidences of fatalities among operators and passengers of heavy trucks. Doc. No.
94, Ex. D.
These reports also specifically detail the prevalence of fire incidents in heavy
truck accidents. Id. In addition, Rosenbluth basis his opinions of data on fatalities specific to
Freightliner (Daimler) trucks. Id. at Ex. H.
Other than noting in a footnote that these studies are a bit dated, Daimler does not
directly challenge these studies, both from reputable institutions. Consequently, the Court
finds that they form an adequate basis from which Rosenbluth could arrive at his conclusion
that the risk of fire makes sleeper cabs without emergency exits unreasonably dangerous.
Daimler contends that these studies are immaterial to the question of whether the design was
defective because they only “demonstrate a known fact – that heavy trucks experience fires on
rare occasions.” Doc. No. 100 at 5. This argument lacks merit. To recover for defective
design under Texas law, a Plaintiff must show: “(1) the product was defectively designed so as
to render it unreasonably dangerous; (2) a safer alternative design existed; and (3) the defect
was a producing cause of the injury for which the plaintiff seeks recovery.” Timpte Indus., Inc.
v. Gish, 286 S.W.3d 306, 311 (Tex. 2009). The studies relied upon by Rosenbluth provide the
underlying data from which Rosenbluth could formulate his opinion on the “unreasonably
dangerous” element of a defective design claim.2 Stated differently, the ultimate conclusion
that a design is defective necessarily requires a series of intermediate conclusions involving
the whether the product is dangerous as currently designed.
With respect to his opinion on the causation element that Timoschuk would have been
able to escape from an additional exit, Rosenbluth conducted surrogate testing on a mock-up
truck using an individual of similar age and build to Timoschuk in order to simulate whether
an additional exit would have enabled Timoschuk to escape. Doc. No. 94, Ex. C. Although
the reliability of this form of testing might be questioned on the grounds that the subject
individual was not just involved in a large crash (as was Timoschuk), and thus may not have
had the same physiological and/or psychological impairments, Rosenbluth also relies on eyewitness testimony indicating that Timoschuk was alive and trying to escape before he
perished. Id. at Ex. A. All factors considered, Rosenbluth has a sufficient foundation on
Consider that if Plaintiffs did not produce evidence that the sleeper cab was unreasonably dangerous – an
opinion which requires analyzing the risk of fire – Daimler would be entitled to summary judgment on the
defective design claim. Thus, in this motion, Daimler is essentially criticizing Plaintiffs’ expert for relying on
evidence necessary to establish an element of Plaintiff’s cause of action.
which to base his opinion that the design was defective because it lacked an additional sleepercab emergency exit.
Daimler further asserts that Rosenbluth’s testimony is unreliable because he did not
conduct an appropriate risk-utility analysis. Doc. No. 85. Under Texas law, whether a design
is unreasonable dangerous involves a consideration of the following five factors:
1) the utility of the product to the user and to the public as a whole
weighed against the gravity and likelihood of injury from its use;
(2) the availability of a substitute product which would meet the
same need and not be unsafe or unreasonably expensive; (3) the
manufacturer's ability to eliminate the unsafe character of the
product without seriously impairing its usefulness or significantly
increasing its costs; (4) the user's anticipated awareness of the
dangers inherent in the product and their avoidability because of
the general public knowledge of the obvious condition of the
product, or of the existence of suitable warnings or instructions; (5)
the expectations of the ordinary consumer
Goodner, 650 F.3d at 1045 (citing Hernandez v. Tokai Corp., 2 S.W.3d 251, 256 (Tex.
1999)). Daimler takes Rosenbluth’s report to task, outlining in great detail the flaws it sees in
his analysis. See Doc. No. 85 at 7-22. But in so doing, Daimler has implicitly undermined its
central argument that Rosenbluth has not even conducted the analysis to begin with. Daimler
argues that Rosenbluth is overstating the risks because he admits that truck fires are rare. Doc.
No. 85. Daimler further contends that Rosenbluth underestimates the costs associated with his
proposal and ignores potential drawbacks from adding a new exit including additional weight,
security concerns, and leakage issues. Id. Finally, Daimler argues that Rosenbluth’s alternate
solution of requiring carriers to “opt-out” of an additional emergency exit is illogical,
unworkable, and betrays Rosenbluth’s lack of understanding of how the industry operates. Id.
All of these criticisms get to the quality of Rosenbluth’s risk-utility analysis, not
whether he has conducted such an analysis in the first place. Thus, the flaws that Daimler has
identified are more appropriately the subject of vigorous cross-examination as opposed to the
grounds for a Daubert motion. See Pipitone, 288 F.3d 239 at 250 (Finding that, under
Daubert, “vigorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking shaky
but admissible evidence.”). The Court has reviewed Rosenbluth’s export report and finds that,
without taking a position on his conclusions, he has sufficiently considered the risks and
benefits of his proposed solution such that his testimony should not be excluded. See Moore v.
Ashland Chem., Inc., 151 F.3d 269, 276 (5th Cir. 1998) (proponent of expert testimony need
not prove that opinions are correct).
This does not end the inquiry because the Court is not required “to admit opinion
evidence that is connected to existing data only by the ipse dixit of the expert.” Gen. Elec. Co.
v. Joiner, 522 U.S. 136 (1997). Rosenbluth’s testimony may properly be excluded if there is
“too great an analytical gap between the data and the opinion proffered.” Id.; Moore, 151 F.3d
at 276. The undisputed fact that some sleeper cabs come with emergency exits indicates that
installing such is not an insurmountable burden on the manufacturer that changes the nature of
the product. If Daimler and other manufacturers are offering these kinds of emergency exits
as optional equipment, then it is difficult to argue that the opinion that they should be standard
equipment is an entirely baseless conclusion that must be kept from the jury. Accordingly,
Rosenbluth will be permitted to testify at trial, and the motion to exclude is DENIED. Doc.
2. Motion to Limit Expert Testimony from David Smith
Daimler seeks to limit the testimony of David Smith, Plaintiff’s expert on fire
causation and spread. Doc. No. 80. As an initial matter, Daimler does not challenge that
Smith is qualified as an expert to testify on fire cause and spread. Instead, Daimler argues that
Smith should not be permitted to offer his opinion that Timoschuk could have or would have
escaped through an additional emergency exit. Id. at 3. Specifically, Daimler contends that
Smith is neither a medical doctor nor a behavioral expert and is therefore not qualified to offer
his opinion on what Timoschuk is likely to have done in response to the fire. Id. at 4.
Although there is some merit to the contention that Smith, as a fire causation and
spread expert, is not qualified to testify as to Timoschuk’s physical capabilities, the precise
delineations of what opinions Smith can offer are more appropriately the subject of a motion
in limine and/or an objection at trial.
By conceding that Smith is qualified as a fire spread
expert, Daimler also necessarily concedes that Smith may offer his opinion as to what impact
fire and/or smoke would have had on Timoschuk’s ability to exit the cab, either through the
existing exits or through a hypothetical additional emergency exit.
At the same time,
testimony opining that Timoschuk would have necessarily done so is not reliable given
Smith’s expertise. Stated differently, while Smith’s opinion that Timoschuk would have
exited through an additional emergency exit may raise concerns, his opinion that Timoschuk
could have so exited the truck based upon his understanding of how the fire spread is entirely
within his realm of expertise.3
As long as Smith’s testimony is tethered to his analysis of the
Because the appropriateness of Smith’s opinion testimony relies, in large measure, on how the questions and
answers are phrased, the Court reiterates that it will take up these objections at trial.
spread of the fire in the cab, his testimony is reliable such that a Daubert motion would be
improvident. As a result, the motion is DENIED. Doc. No. 80.
3. Motion to Limit Expert Testimony from Mary Case, M.D.
Daimler also seeks to exclude certain testimony from Mary Case, M.D., a pathologist
and Plaintiffs’ medical expert.
Doc. No. 84.
Daimler does not argue that Dr. Case is
unqualified to testify as an expert regarding Timoschuk’s “cause of death, medical condition
or physical abilities during the relevant time period.” Id. at 4. Instead, Daimler contends that
any testimony offered by Dr. Case “regarding Timoschuk’s thought processes or the choices
he might have made,” should be excluded because it lacks reliable support. Id. at 6 (emphasis
Daimler’s Daubert motion is extremely narrow. As with Smith, the precise boundaries
of what Dr. Case can opine on are more appropriately determined through a motion in limine
or an objection at trial.
Daimler seeks to prevent Dr. Case from testifying that Timoschuk
would have exited the cab through an additional emergency exit in the sleeper cab. However,
based upon its own concessions regarding Dr. Case’s expertise, Daimler has offered no basis
to exclude any opinion testimony regarding what Timoschuk could have been physically
capable of under the circumstances. In fact, Daimler concedes that such testimony from Dr.
Case would be appropriate. Doc. No. 84. Thus, the admissibility of Dr. Case’s testimony
depends on how the questions and answers are phrased. Accordingly, the Daubert motion is
DENIED. Doc. No. 84.
In light of the foregoing analysis, all of Daimler’s Daubert motions are DENIED.
Docs. Nos. 80, 84, & 85.
SIGNED this 4th day of June, 2014.
UNITED STATES DISTRICT JUDGE
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