United States District Court, E.D. Louisiana
KAYLEE EVELER ET AL.
FORD MOTOR CO.
ORDER AND REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE.
years ago, Luis and Kaylee Eveler were driving on I-10 with
two of their children. Luis was at the wheel of the
family's Ford Explorer. A vehicle allegedly encroached on
the Evelers' lane. Luis swerved to avoid it, and then
turned again. The Explorer rolled over. All four Evelers were
ejected from the vehicle. Their lives would never be the
and Kaylee ended up homeless. The children went into foster
care. And Kaylee may never fully recover from her
nine months after the accident for Luis to obtain stable
employment as a plumber. Luis's job provided the Evelers
with the means to get off the streets. With a roof over their
heads, Luis and Kaylee were able to regain custody of their
children last Christmas.
tragedy is inevitably accompanied by the apportionment of
blame. The Evelers believe that the design of their Ford
Explorer was at least partly to blame for the crash. So they
sued Ford, alleging that the design of the Explorer made it
unreasonably prone to rolling over.
disagrees and moves for summary judgment, arguing that the
Evelers cannot demonstrate a viable alternative design for
the Explorer that would have prevented the Evelers'
injuries. See R. Doc. No. 97. Because the Court
agrees, the Court grants Ford's motion for summary
judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any
affidavits, the court determines that there is no genuine
dispute of material fact. See Fed. R. Civ. P. 56.
“[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
the party seeking summary judgment carries its burden
pursuant to Rule 56, the nonmoving party must come forward
with specific facts showing that there is a genuine dispute
of material fact for trial. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The
showing of a genuine issue is not satisfied by creating
“‘some metaphysical doubt as to the material
facts, ' by ‘conclusory allegations, ' by
‘unsubstantiated assertions, ' or by only a
‘scintilla' of evidence.” Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(citations omitted). Instead, a genuine issue of material
fact exists when the “evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The party responding to the motion for
summary judgment may not rest upon the pleadings, but must
identify specific facts that establish a genuine issue.
Id. The nonmoving party's evidence, however,
“is to be believed, and all justifiable inferences are
to be drawn in [the nonmoving party's] favor.”
Id. at 255; see also Hunt v. Cromartie, 526
U.S. 541, 552 (1999).
702 of the Federal Rules of Evidence governs the
admissibility of expert witness testimony. See Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 588 (1993);
United States v. Hitt, 473 F.3d 146, 148 (5th Cir.
2006). Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise 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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
qualify as an expert, ‘the witness must have such
knowledge or experience in [his] field or calling as to make
it appear that his opinion or inference will probably aid the
trier in his search for truth.'” United States
v. Hicks, 389 F.3d 514, 524 (5th Cir. 2004) (quoting
United States v. Bourgeois, 950 F.2d 980, 987 (5th
Cir. 1992)). Additionally, Rule 702 states that an expert may
be qualified based on “knowledge, skill, experience,
training, or education.” Hicks, 389 F.3d at
524; see also Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 147 (1999) (discussing
witnesses whose expertise is based purely on experience).
“A district court should refuse to allow an expert
witness to testify if it finds that the witness is not
qualified to testify in a particular field or on a given
subject.” Huss v. Gayden, 571 F.3d 442, 452
(5th Cir. 2009) (quoting Wilson v. Woods, 163 F.3d
935, 937 (5th Cir. 1999)). However, “Rule 702 does not
mandate that an expert be highly qualified in order to
testify about a given issue. Differences in expertise bear
chiefly on the weight to be assigned to the testimony by the
trier of fact, not its admissibility.” Id.;
see Daubert, 509 U.S. at 596.
“provides the analytical framework for determining
whether expert testimony is admissible under Rule 702.”
Pipitone v. Biomatrix, Inc., 288 F.3d 239, 243 (5th
Cir. 2002). Both scientific and nonscientific expert
testimony is subject to the Daubert framework, which
requires a trial court to conduct a preliminary assessment to
“determine whether the expert testimony is both
reliable and relevant.” Burleson v. Tex. Dep't
of Criminal Justice, 393 F.3d 577, 584 (5th Cir. 2004);
see Kumho Tire, 526 U.S. at 147.
number of nonexclusive factors may be relevant to the
reliability inquiry, including: (1) whether the technique has
been tested, (2) whether the technique has been subjected to
peer review and publication, (3) the techinque's
potential error rate, (4) the existence and maintenance of
standards controlling the technique's operation, and (5)
whether the technique is generally accepted in the relevant
scientific community. Burleson, 393 F.3d at 584. The
reliability inquiry must remain flexible, however, as
“not every Daubert factor will be applicable
in every situation; and a court has discretion to consider
other factors it deems relevant.” Guy v. Crown
Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004); see
Runnels v. Tex. Children's Hosp. Select
Plan, 167 F. App'x 377, 381 (5th Cir. 2006)
(“[A] trial judge has ‘considerable leeway'
in determining ‘how to test an expert's
reliability.'”). “Both the determination of
reliability itself and the factors taken into account are
left to the discretion of the district court consistent with
its gatekeeping function under [Rule] 702.” Munoz
v. Orr, 200 F.3d 291, 301 (5th Cir. 2000).
respect to determining the relevancy of an expert's
testimony pursuant to Rule 702 and Daubert, the
proposed testimony must be relevant “not simply in the
way all testimony must be relevant [pursuant to Rule 402],
but also in the sense that the expert's proposed opinion
would assist the trier of fact to understand or determine a
fact in issue.” Bocanegra v. Vicmar Servs.,
Inc., 320 F.3d 581, 584 (5th Cir. 2003). “There is
no more certain test for determining when experts may be used
than the common sense inquiry whether the untrained layman
would be qualified to determine intelligently and to the best
degree the particular issue without enlightenment from those
having a specialized understanding of the subject involved in
the dispute.” Vogler v. Blackmore, 352 F.3d
150, 156 n.5 (5th Cir. 2003) (quoting Fed.R.Evid. 702
advisory committee's note).
Court applies a preponderance of the evidence standard when
performing its gatekeeping function under Daubert.
See Daubert, 509 U.S. at 592 n.10. The Court is not
bound by the rules of evidence-except for those with respect
to privileges-when doing so. See id.
that remains in this case is a single design defect claim
under the Louisiana Products Liability Act. See R.
Doc. No. 35. To establish that a product is defective in
design under the Louisiana Products Liability Act, a
plaintiff must show-among other things-that “[t]here
existed an alternative design for the product that was
capable of preventing the claimant's damage.” La.
Evelers argue that their Ford Explorer was defectively
designed because its track width is too narrow for its center
of gravity. They rely on the Explorer's “static
stability factor” to quantify that defect.
static stability factor of a vehicle is a ratio that compares
a vehicle's track width to the height of its center of
gravity. (For the technically inclined, the equation is
static stability factor = track width / (2 x center of
gravity height).) All things considered, a higher static
stability factor will result in an automobile having a lower
propensity to roll over on the road because the car will be
less top heavy.
basic relationship-a higher static stability factor is
correlated with a lower propensity to roll over on the
road-is widely accepted. See, e.g., Consumer
Information Regulations; Federal Motor Vehicle Safety
Standards; Rollover Prevention, 68 Fed. Reg. 34998-03, at
35019 (request for comments June 1, 2000); Montgomery v.
Mitsubishi Motors Corp., No. 04-3234, 2006 WL 1967361,
at *2 (E.D. Pa. 2006). That is why, for example, NHTSA
considers a vehicle's static stability factor when
awarding its rollover star ratings. See Consumer
Information; New Car Assessment Program; Rollover Resistance,
68 Fed. Reg. 59250-01, 59263 (final policy statement Oct. 14,
2003). Even Ford concedes as much: a vehicle's center of
gravity and track width “are very important factors in
rollover stability.” Daubert Hr. Tr. 111:22-23
(testimony of Donald Tandy).
Evelers argue that the Ford Explorer had a design defect
insofar as it had a static stability factor below 1.2. The
Evelers rely on their forensic engineering expert, Paul
Semones, to arrive at that figure. Semones arrived at 1.2 as
the relevant number by analyzing NHTSA data suggesting that a
static stability factor above 1.2 results in a significantly
reduced rollover risk. See R. Doc. No. 32-2, at 14;
see also R. Doc. No. 32-2, at 24.
then, the Evelers' proposed alternative design is a Ford
Explorer modified to have a static stability factor above
1.2. Achieving such a design is not all that hard-all it
requires is lowering the Explorer body a bit and using a
combination of spacers and rims to widen the track width.
Semones offers the opinion that such a modified Explorer
would not have similarly rolled over if put in the same
position as the Evelers' Ford Explorer.
that is where the Evelers' problems in this lawsuit
diving into the Daubert analysis, it is helpful to
briefly discuss the physics of rollover accidents. At the
risk of overgeneralization, there are two main types of
rollovers: tripped and untripped rollovers. See,
e.g., 68 Fed. Reg. at 35009.
tripped rollover occurs when a vehicle's tires hit an
external object and the vehicle trips over that object. The
principle here is familiar to anyone that has ever tripped on
an uneven New Orleans sidewalk: the crack stops your
foot's forward progress, your center of gravity goes out
beyond your base of support, and you topple over. The same
phenomenon can happen to vehicles when they hit a curb, a
pothole, or a guardrail. Tripped rollovers-while certainly
hazardous to the occupants of a car-are somewhat less of a
concern from a product design perspective simply because the
trip can exert forces such that any vehicle-from a Porsche to
a cement mixer-will inevitably roll over no matter how well
designed. See Daubert Hr. Tr. 77:25-78:2 (testimony
of Paul Semones).
the most common tripped rollovers is what is called a
“furrow trip”. A furrow trip begins when a
vehicle slides off the road. The weight of the vehicle
presses the tires into the ground and the vehicle essentially
plows a trench through the dirt. That sets off a chain
reaction that overwhelms the vehicle's inherent
stability. As Ford's expert explained:
When you've got thousands of pounds down on those tires,
they dig trenches. When they do that they are expelling dirt.
There has been studies to show that the lateral forces spike
much higher than you get on pavement. That's because
you're trying to push dirt out of the way. It's like
being in a boat and trying to put your hand down in the
water. The water moves pretty easy, but it doesn't move
very easy at 55 miles an hour.
So you have to give that mass energy to expel it, and that
puts a force back in the vehicle and acts as a tripping
mechanism. I've investigated crashes of passenger cars,
sports cars, Ferraris that slid off a test track, dug in a