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Weams v. FCA U.S. L.L.C.

United States District Court, M.D. Louisiana

February 27, 2019

CURTIS RAY WEAMS, JR.
v.
FCA U.S. L.L.C.

          ORDER

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

         Before 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).

         Also 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).

         The 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 judgment.

         I. Background

         Curtis 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).

         The following facts are undisputed.[1] 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.

         Plaintiff 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 4).

         Plaintiff 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).

         II. Law and Analysis

         A. Motions to Exclude Expert Testimony

         i. Legal Standards

         Rule 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 testify if:

(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 methods; 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).

         The 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.

         The 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. 2004).

         ii. Defendant's Motion to Exclude the Opinion Testimony of Richard Allen Hille as Untimely and Unreliable (R. Doc. 30)

         Plaintiff 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 (“FACT”).

         Mr. 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 bag deployment.
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 had fired.
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.

         Instead, 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][2] 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).

         Mr. 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).

         At oral 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 deployment.

         IT 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.

         iii. Defendant's Motion to Exclude the Opinion Testimony of Neil E. Hannemann (R. Doc. 29)

         Neil E. 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).

         Defendant 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).

         Mr. 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 or recorded.
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).

         It does 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 report.

         Defendant 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).

         Because 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 proffered.”).

         IT 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.

         iv. Defendant's Motion to Exclude the Opinion Testimony of Robert J. Berriman, Jr. (R. Doc. 28)

         Robert 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.

         Defendant 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. Doc. 47).

         Mr. 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.

         The 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.

         While 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 particular instance:

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 this ORC?
A. Yes.
Q. Have you requested those documents?
A. Me specifically, no.
***
Q. So with no information, why are we discussing tin ...

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