United States District Court, M.D. Louisiana
CURTIS RAY WEAMS, JR.
FCA U.S. L.L.C.
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
the Court are Defendant's Motion for Summary Judgment (R.
Doc. 40) and Plaintiff's Motion for Partial Summary
Judgment (R. Doc. 41). The foregoing motions are opposed. (R.
Doc. 57; R. Doc. 62). The parties have filed replies. (R.
Doc. 80; R. Doc. 76).
before the Court are five motions seeking exclusion of expert
testimony: Defendant's Motion to Exclude the Opinion
Testimony of Robert J. Berriman, Jr. (R. Doc. 28);
Defendant's Motion to Exclude the Opinion Testimony of
Neil E. Hannemann (R. Doc. 29); Defendant's Motion to
Exclude the Opinion Testimony of Richard Allen Hille as
Untimely and Unreliable (R. Doc. 30); Defendant's Motion
to Exclude the Opinion Testimony of Dr. William J. Vigilante,
Jr. as Untimely and Unreliable (R. Doc. 31); and
Plaintiff's Motion to Exclude Testimony of Defense Expert
Elizabeth H. Raphael, M.D. (R. Doc. 33). The foregoing
motions are opposed. (R. Doc. 47; R. Doc. 44; R. Doc. 45; R.
Doc. 46; R. Doc. 49). The parties have filed replies. (R.
Doc. 72; R. Doc. 73; R. Doc. 74; R. Doc. 82; R. Doc. 60).
Court held oral argument on the foregoing motions on October
9, 2018. (R. Doc. 87). The Court will first address the
parties' motions seeking to exclude expert testimony, and
will then turn to the parties' motions for summary
Ray Weams, Jr. (“Plaintiff” or “Mr.
Weams”) commenced this product liability action against
FCA U.S. L.L.C. (“Defendant” or
“FCA”) on January 4, 2017. (R. Doc. 1,
“Compl.”). Plaintiff alleges that on or about
January 16, 2016, he suffered certain personal injuries when
the air bag on the driver's side of his 2004 Jeep Liberty
spontaneously deployed as he reached inside of the vehicle
and started it. (Compl. ¶¶ 1, 19). Plaintiff
alleges that the air bag struck him in the face, head, neck,
chest, shoulders, and arms, and that he lost consciousness as
a result of the impact. (Compl. ¶¶ 23-24).
following facts are undisputed. The vehicle was designed and
manufactured by Fiat Chrysler America, LLC, a predecessor of
Defendant. At the time of the incident, the vehicle had
approximately 115, 000 miles and was 14 years old. There is
no evidence that the air bag system was not properly
maintained. Plaintiff was not misusing the vehicle at the
time of the airbag deployment. Plaintiff's feet were
outside of the driver's door when he reached in to start
the vehicle. The vehicle's transmission was in
“park” and the vehicle was stationary at the time
of the airbag deployment. The vehicle was not involved in any
accident, collision, crash or other event that would have
caused deployment of the airbag. The vehicle was equipped
with a supplemental restraint system (“SRS”)
malfunction indicator lamp that was not illuminated at the
time of the incident. The parties agree that the airbag at
issue should not have deployed under the circumstances.
testified at his deposition that the airbag contacted the
right side of his face, that he had resulting bleeding from
two cuts on his chin and from his nose, that he did not
immediately seek emergency treatment after the incident, that
he sought medical treatment four days following the incident
for headaches, and that he was subsequently treated for pain
in his neck, back, and shoulders. (R. Doc. 33-14 at 33-55).
Plaintiff describes his post-incident medical symptoms,
treatment, and diagnoses as follows:
Mr. Weams immediately began to suffer a debilitating headache
and when it did not resolve he went to St. Elizabeth Hospital
and was diagnosed with a concussion and headache. When his
symptoms did not resolve, Mr. Weams visited a family medicine
physician, Dr. Perkins, complaining of migraines, neck pain,
and low back pain. Dr. Perkins referred him to a specialist
in neurology, Dr. Callerame of Our Lady of the Lake
Physicians Group. Dr. Callerame diagnosed Mr. Weams with
post-concussion syndrome and intractable chronic
post-traumatic headache. Dr. Callerame referred Mr. Weams to
an Orthopedic Spine Surgeon, Dr. McCarthy, to evaluate Mr.
Weams' cervical and lumbar spine complaints. Within five
months of the incident at issue, Mr. Weams underwent a left
L5-S1 microdiscectomy. Plaintiff's treating neurologist,
Dr. Callerame, opines that the post-concussion syndrome and
post-traumatic headaches were caused by the incident at
issue. Dr. McCarthy, Plaintiff's treating orthopedic
spine surgeon, opines that the incident at issue caused Mr.
Weams' neck and back complaints.
(R. Doc. 33-1 at 3). Dr. McCarthy also diagnosed Plaintiff
with a medial meniscus tear. (See R. Doc. 33-2 at
seeks recovery under the Louisiana Products Liability Act,
La. R.S. 9:2800.51 et seq. (Compl.
¶¶ 3, 54). Plaintiff asserts that Defendant is
liable for failing to warn users that the air bag was
susceptible to spontaneous deployment, failing to design the
vehicle in a manner that would prevent spontaneous
deployment, failing to inspect the vehicle prior to placing
it in the stream of commerce, failing to ensure that the
vehicle conformed to manufacturing specifications, failing to
design and manufacture the vehicle to preclude spontaneous
deployment during its anticipated use, failing to adhere to
its express and implied warranties of fitness and use, and
failing to include the vehicle in prior recall campaigns.
(Compl. ¶ 54). Plaintiff further asserts that he
“is entitled to the presumption that the principles of
res ipsa loquitor apply under the circumstances of
this specific and unique Incident.” (Compl. ¶ 48).
Law and Analysis
Motions to Exclude Expert Testimony
702 of the Federal Rules of Evidence governs the
admissibility of expert testimony. Rule 702 states that a
witness “qualified as an expert by knowledge, skill,
experience, training, or education” is permitted to
(a) the expert's scientific, technical, or other
specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based upon 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.
Fed. R. Evid. 702. Rule 702 is effectively a codification of
the United States Supreme Court's opinion in
Daubert, in which the Supreme Court held that trial
courts should serve as gatekeepers for expert testimony and
should not admit such testimony without first determining
that it is both “reliable” and
“relevant.” Daubert v. Merrell Dowell Pharm.,
Inc., 509 U.S. 579, 589 (1993). This gatekeeping role
extends to non-scientific expert testimony. Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).
objective of the gatekeeping function “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. at 152. The Daubert court
provided an illustrative list of factors that courts may use
when evaluating the reliability of expert testimony. See
Daubert, 509 U.S. 579, 592-594. These factors include
whether the expert's theory or technique can be or has
been tested, whether it has been subjected to peer review,
whether it has a known or potential rate of error or
standards controlling its operation, and whether it is
generally accepted in the relevant scientific community.
See Id. at 593-94.
party offering the expert witness bears the burden of proving
that his proposed expert testimony is admissible. Sims v.
Kia Motors of Am., Inc., 839 F.3d 393, 400 (5th Cir.
2016). The use of expert testimony is only proper if it will
assist the trier of fact. Peters v. Five Star Marine
Serv., 898 F.2d 448, 449 (5th Cir. 1990). Under Rule
702, expert testimony should be excluded if the court finds
that the trier of fact “could adeptly assess [the]
situation using only their common experience and
knowledge.” Id. at 450. The Daubert
factors should be applied with flexibility and the question
of whether an expert's testimony is reliable is
ultimately a fact- specific inquiry. See Kumho Tire,
526 U.S. at 138, 119; Burleson v. Tex. Dep't of
Criminal Justice, 393 F.3d 577, 584 (5th Cir.
Defendant's Motion to Exclude the Opinion Testimony of
Richard Allen Hille as Untimely and
Unreliable (R. Doc. 30)
retained Mr. Richard Allen Hille to conduct “an
inspection of the vehicle at issue and downloading
information from the EDR.” (R. Doc. 45 at 2). Mr. Hille
does not have a post-secondary degree but has over
thirty-five years of experience in automotive accident
investigation and reconstruction, including experience with
Event Data Recorder (“EDR”) download. (R. Doc.
45-2). Mr. Hille co-authored his report with Neil E.
Hannemann, the owner of Forensic Automotive Consulting Team
Hille conducted an inspection of the vehicle at issue on
December 19, 2017, which resulted in the following findings:
A. There was no indication of impact damage to the front
structures of the vehicle that would have resulted in an air
B. The Jeep appeared not to be modified in any way that could
contribute to an inadvertent air bag deployment.
C. The #1 driver's air bag “squib” or ignitor
D. The safety belt pretensioners had not deployed.
E. No other air bags had deployed[.]
(R. Doc. 45-1 at 5). These findings are not in dispute. Also
not in dispute are Mr. Hille's qualifications or opinions
with respect to the EDR download process and analysis, or his
opinion that the vehicle did not experience a sufficient
change in velocity to warrant deployment of the airbag.
Defendants challenge two opinions offered by Mr. Hille at his
deposition, namely (1) that the airbag deployed “due to
some defect in the system” caused by “either a
spurious signal from the ORC [Occupant Restraint
Controller] or wiring cross-talk of some sort”
and (2) that the ORC should have been subject to recall. (R.
Doc. 30-3 at 5-7). Defendant argues that Mr. Hille is not
qualified to offer the foregoing opinions, and that his
“recall” opinion is untimely as provided after
the expert report deadline. (R. Doc. 30-1 at 6-9). In
opposition, Plaintiff argues that Mr. Hille is qualified to
offer the foregoing opinions, focusing primarily on Mr.
Hille's qualifications regarding the EDR downloading
process and related analysis. (R. Doc. 45).
Hille testified that he is not qualified as an expert in
electronics, automotive airbag system sensors, or recalls.
(R. Doc. 30-3 at 11, 16, 22). He further testified that he
would “defer to Mr. Hannemann” when asked to
identify the “type of engineering analysis . . . that
FCA should have undertaken to identify [the] issue” of
the inadvertent airbag deployment. (R. Doc. 30-3 at 20).
Finally, Mr. Hille testified that he had not
“identified a specific defect in the system” and
that other than a spurious signal or “wiring
cross-talk, ” he could not understand any other
possible causes for the inadvertent airbag deployment. (R.
Doc. 30-3 at 19-20).
argument, Plaintiff essentially withdrew his opposition to
the instant motion with respect to Mr. Hille's opinions
regarding a proposed recall. Plaintiff has not met his burden
of establishing that Mr. Hille is qualified as an expert on
recalls, and Mr. Hille will be precluded from offering any
testimony on potential recalls. The Court also finds that Mr.
Hille is not qualified to offer any expert testimony other
than that related to his inspection of the subject vehicle,
the EDR download process, and the results from the EDR
download process. Mr. Hille is admittedly not qualified to
testify on electronics or automotive airbag system sensors.
Accordingly, the Court will also exclude his testimony
regarding the alleged spurious signal or “wiring
cross-talk” as the cause of the inadvertent airbag
IS ORDERED that Defendant's Motion to Exclude
the Opinion Testimony of Richard Allen Hille as Untimely and
Unreliable (R. Doc. 30) is GRANTED. Mr.
Hille is precluded from providing opinion testimony regarding
defects in the airbag system or whether the airbag system
should be subject to a recall.
Defendant's Motion to Exclude the Opinion Testimony of
Neil E. Hannemann (R. Doc. 29)
Hannemann is a mechanical engineer and owner of FACT. (R.
Doc. 44-2; see R. Doc. 44 at 3). Mr. Hannemann has a
B.S. in mechanical engineering and over thirty years of
experience working in the automotive industry on vehicle
design, testing, research, and development related to, among
other things, engine systems, brake systems, and vehicle
dynamics. (R. Doc. 44-2). Plaintiff retained Mr. Hannemann to
provide “an opinion on the subject airbag system of the
2004 Jeep Liberty . . . and specifically why the supplemental
restraint system (SRS) allowed the driver's steering
wheel mounted air bag to deploy while the subject vehicle was
parked.” (R. Doc. 44 at 1).
seeks to exclude the opinion testimony of Mr. Hannemann
because he is not an electrical engineer and has no
experience in airbag design, he has not identified the cause
of the deployment, and he has not offered any alternative
design. (R. Doc. 29). In opposition, Plaintiff argues, among
other things, that Mr. Hannemann's methodology is sound
and that his opinions should be left for the jury's
consideration. (R. Doc. 44).
Hannemann premised his opinions on the vehicle inspection
conducted by Mr. Hille on December 19, 2017. Mr. Hannemann
testified that the opinions presented in the
“Conclusions” section of the FACT report
co-authored with Mr. Hille are his own. (R. Doc. 29-4 at
2-3). These opinions are as follows:
A. The driver's, steering wheel mounted air bag deployed
without any collision occurring.
B. The air bag Occupant Restraint Controller (ORC) did not
record any kind of collision even that would have prompted an
air bag deployment. No. deployment of any type was commanded
C. Whatever caused the air bag to deploy in this incident,
Mr. Weams did not cause the deployment by any action or
misuse of the vehicle.
D. The airbag deployment was an inadvertent deployment due to
a defect in the vehicle. The subject vehicle is defective and
unreasonably dangerous due to inadvertent airbag deployment.
E. FCA was negligent for not conducting proper engineering
analysis, target setting and testing to ensure there would be
no inadvertent deployment. This negligence caused the subject
vehicle to injure Mr. Weams.
F. The driver or owner of a vehicle does not expect that an
airbag will deploy on a vehicle that is sitting stationary
and is not involved in any impact of any sort.
(R. Doc. 45-1 at 9-10).
not appear that Defendant challenges Opinions A, B, C, and F,
which are premised on, or reiterations of, undisputed facts.
These opinions are supported by Mr. Hille's investigation
of the vehicle and EDR analysis as detailed in the FACT
challenges Mr. Hannemann's ultimate conclusions that the
airbag deployment was the result of a “defect”
and that Defendant was “negligent” for failing to
prevent the inadvertent airbag deployment (i.e., Opinions D
and E). The Court finds that these opinions must be excluded
on the basis that they are a product of unreliable principles
and methods. Mr. Hannemann provides no theory regarding the
cause of the airbag deployment that can or has been tested.
Indeed, Mr. Hannemann performed no testing on the vehicle or
the airbag system at all. While Mr. Hanneman provides the
conclusory opinion that the vehicle is defective, he was
unable to provide any specific opinion pertaining to the
alleged defect, much less whether the defect was one of
design or manufacture. (R. Doc. 29-4 at 8).
Mr. Hannemann fails to provide any specific theory for the
inadvertent airbag deployment, his conclusory statements
regarding the existence of a defect or negligent act
attributable to Defendant amounts to pure speculation, and
must be excluded. See Brown v. Parker-Hannifin
Corp., 919 F.2d 308, 312 (5th Cir. 1990) (“Without
some basis to establish that one of his theories is the most
likely cause of the failure on this occasion, his testimony
amounts to speculation and is of no assistance to the
jury.”); Sittig v. Louisville Ladder Grp. LLC,
136 F.Supp.2d 610, 617 (W.D. La. 2001) (“Without some
scientific basis to establish that ladder separation was the
most likely cause of [the plaintiff's] fall, the
proffered expert testimony amounts to speculation and will be
of no assistance to the jury.”); see also Crappell
v. Boh Bros. Constr. Co., LLC, No. 06-1315, 2011 WL
13213835, at *3-4 (E.D. La. Jan. 10, 2011) (excluding
testimony by civil and structural engineering regarding
failure of pre-cast concrete piles pile based solely on a
visual inspection of the failed pile that was not supported
by any measurements or calculations). The Court finds too
great an analytical gap between the existing data and Mr.
Hannemann's conclusory opinions. See Gen. Elec. Co.
v. Joiner, 522 U.S. 136, 146 (1997) (“Trained
experts commonly extrapolate from existing data. But nothing
in either Daubert or the Federal Rules of Evidence
requires a district court to admit opinion evidence that is
connected to existing data only by the ipse dixit of
the expert. A court may conclude that there is simply too
great an analytical gap between the data and the opinion
IS ORDERED that Defendant's Motion to Exclude
the Opinion Testimony of Neil E. Hannemann (R. Doc. 29) is
GRANTED. Mr. Hannemann is precluded from
providing opinion testimony regarding defects in the airbag
system or Defendant's negligence.
Defendant's Motion to Exclude the Opinion Testimony of
Robert J. Berriman, Jr. (R. Doc. 28)
J. Berriman, Jr. obtained a Bachelor of Applied Science
Electronic Engineering Technology from the ITT Technical
Institute in 1996, and, while not a licensed professional
engineer, has been employed with the title of electrical
engineer for over 10 years. (R. Doc. 47-2). Plaintiff
retained Mr. Berriman, who is also employed by FACT, to
provide an opinion as to the cause of the electrical failure
of the ORC.
argues that Mr. Berriman should be excluded as an expert, in
part, because he is not a professional electrical engineer
and, accordingly, lacks the scientific, technical, or other
specialized knowledge necessary to assist the jury regarding
the cause of the ORC's failure. (R. Doc. 28-1 at 8-9).
Defendant also seeks to exclude the opinion testimony of Mr.
Berriman on the basis that he has not identified the cause of
the airbag deployment, he has not identified an alternative
design, he failed to use a reliable methodology to form his
opinions, and his alternative causation theories are
presented without any evidence. (R. Docs. 28-1 at 9-17; R.
Doc. 72). In opposition, Plaintiff argues that while nobody
can ascertain why the airbag malfunctioned, there is no
material disagreement that there were certain physical
anomalies on the ORC, and it should be left to the jury to
determine whether Mr. Berriman's opinions are viable. (R.
Berriman premised his opinions on the vehicle inspection
conducted by Mr. Hille on December 19, 2017. (R. Doc. 28-3 at
4). Mr. Berriman opined that a photograph of the ORC circuit
board “shows what appear to be tin whiskers, ”
noting that the “ORC had never been opened up to expose
this circuit board since it was manufactured in November
2003.” (R. Doc. 28-3 at 7). In pertinent part, Mr.
Berriman proffered the following opinion in his report:
Other potential causes of an inadvertent air [bag]
deployment include voltage spikes in the system, spurious
electronic signals, electronic cross-talk between wires or pc
traces, [and] even static discharge (think wool
carpeting and a metal door knob). These types of causes
rarely leave evidence that they existed. Occasionally you
will see some indication of electrical short in a wire
harness or printed circuit board. If lead solder had been
used we would not be discussing tin whiskers as a root cause
mostly likely present in the subject ORC. The EPA is
trying to eliminate lead solder from electronic
manufacturing, but had granted an exemption to the automotive
and aerospace industries at least until 2013. Therefore use
of tin solder in the 2004 Jeep Liberty was apparently a
voluntary choice on the part of FCA.
For many years tin whiskers have plagued the electronics
industry. Solutions of using lead solder or metal solder
in place of [lead]-free solder are common. Other
solutions including designing in physical distance to
protective circuits from a tin whisker shorting two important
signals together. Barriers are also used in some designs to
deter whiskers from crossing signals. Potting has been used
to contain whisker growth.
(R. Doc. 28-3 at 8) (emphasis added). Mr. Berriman concludes
that the “ORC circuit board appears to have numerous
‘tin whiskers' through the circuitry [, which] are
known to cause all types of electronic failures in printed
circuit boards, such as the type used in the subject
ORC.” (R. Doc. 28-3 at 9). Mr. Berriman offers no
definitive opinion that the ORC actually contains tin
whiskers or how they caused the incident at issue.
Court need not determine whether Mr. Berriman has the
requisite training or knowledge to provide expert opinions on
the cause of the ORC's failure because his testimony
fails the reliability requirement. Mr. Berriman's primary
opinion that the ORC malfunctioned in light of the presence
of “tin whiskers” is unsupported by testing of
the solder used in the ORC circuit board. Mr. Berriman
conceded at his deposition that the introduction of lead
mitigates tin whisker formation. (R. Doc. 47-4 at 39-40). Mr.
Berriman accepted as valid the materials testing undertaken
by Defendant's expert, Dr. Thomas G. Livernois, which
confirmed the presence of lead in the solder. (R. Doc. 47-4
at 46-47). When Mr. Berriman testified that Dr. Livernois
only tested some of the solder, he suggested that tin
whiskers remained possible because he had no information
suggesting that the untested solder lacked sufficient lead.
(R. Doc. 47-4 at 46-47). In other words, Mr. Berriman
suggests that his own lack of testing supports his finding
that the ORC circuit board “appears” to have tin
whiskers. The Court finds this testimony to be unreliable.
Mr. Berriman also suggests that tin whiskers may have
developed if tin was introduced through the
“tin-plating process, ” he conceded at his
deposition that he had no specific evidence to support a
finding that tin whiskers actually developed during the
“tin-plating process” other than speculation that
an “industry problem” manifested in this
Q. But you don't have any information as we sit here
today concerning the tin-plating process or anything at all
related to the manufacturing process for the ORC that was
located in the Weams vehicle?
A. I do not have those documents.
Q. Would that information be relevant to you as you're
trying to assess whether there were indeed tin whiskers on
Q. Have you requested those documents?
A. Me specifically, no.
Q. So with no information, why are we discussing tin