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Eveler v. Ford Motor Co.

United States District Court, E.D. Louisiana

August 7, 2017


         SECTION I



         Two 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 same.

         Luis and Kaylee ended up homeless. The children went into foster care. And Kaylee may never fully recover from her debilitating injuries.

         It took 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.

         Such a 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.

         Ford 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.



         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).

         Once 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).


         Rule 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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

         “To 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.

         Daubert “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.

         A 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).

         With 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).

         The 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.


         All 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. R.S. 9:2800.56.

         The 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.

         The 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.

         That 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).

         The 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.

         Unsurprisingly, 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.

         And that is where the Evelers' problems in this lawsuit begin.



         Before 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.

         A 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).

         One of 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 couple ...

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