By Pamela C. Maloney, J.D.
Overturning a $3 million jury verdict in favor of a driver injured in a pick-up truck accident, the U.S. Court of Appeals for the Fourth Circuit ruled that design defect and alternative design testimony proffered by an electrical engineer on behalf of the driver should have been excluded as unreliable. After chastising the district court for abdicating its gatekeeping role by failing to apply the admissibility factors outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., the appellate court found that without the engineer’s testimony, the driver could not prove that the design of the truck’s speed control assembly was defective (Nease v. Ford Motor Co., February 1, 2017, Traxler, D.).
The driver of a 2001 Ford Ranger was injured when he crashed into a brick wall after being unable to slow down his vehicle by releasing the accelerator pedal and applying the brakes. The driver and his wife filed a products liability action against Ford Motor Company, alleging that the truck’s accelerator pedal-to-throttle assembly had been defectively designed. In support of their claim, the driver offered testimony by an electrical engineer that the truck was defectively designed because the speed control cable was susceptible to getting stuck or "bound" while the throttle to which it was linked was in the open position, thus preventing the driver from slowing down the vehicle. Following a trial, a West Virginia jury awarded the couple about $3 million. After the district court denied Ford’s renewed pre-trial motion that the expert’s testimony was inadmissible under Daubert, Ford appealed.
Daubert’s applicability. Before addressing the manufacturer’s challenge to the admissibility of the engineering expert’s testimony,the court considered the driver’s argument that the district court was not obliged to perform its Daubert gatekeeping function because test developed in that case applied only to novel scientific testimony and not to the expert field of engineering. The Daubert opinionitself as well as the U.S. Supreme Court decision in Kumho Tire issued six years later made it clear that the guideposts it offered to help a district court determine if expert testimony was sufficiently reliable was not limited to novel scientific theories, nor was there a distinction made between "scientific" knowledge or "technical" or "other specialized knowledge."
Gatekeeping role. Having determined that Daubert applied to the engineer’s testimony, the court went on to determine that instead of conducting a Daubert analysis, the district court simply dismissed the manufacturer’s arguments as going to the weight rather than the admissibility of the expert’s testimony. In doing so, the district court abandoned its gatekeeping function, effectively allowing the jury to make a reliability determination after the manufacturer conducted a thorough and extensive cross-examination of the expert.
Reliability of testimony. After applying the Daubert guideposts to the expert’s testimony, the Fourth Circuit concluded that it was unreliable and inadmissible because the expert had failed to test his hypothesis on the cause of the accident and because his conclusions were not based on sufficient facts or data and were not the product of reliable principles and methods that had been applied reliably to the facts of the case. Testing was of critical importance in this case in light of the expert’s concession that the speed control cable in the truck was not bound or wedged and that the cable moved freely when the expert performed a post-accident inspection of the truck. The expert also admitted that he had never seen any vehicle with post-crash binding. However, the expert had never tested a 2001 Ford Ranger to determine whether it was actually possible for enough debris to accumulate in the casing cap during normal operations. Although the expert’s theory was plausible and could have been right, his failure to test the theory left it no more than a hypothesis that was not based on sufficient data and was not the product of reliable principles and methods.
Furthermore, the expert had not published or otherwise subjected his theory to peer review, which would not have been possible given that he had not conducted any tests nor had he used any methodology for reaching his conclusions.
The driver’s argument that a Failure Mode and Effects Analysis (FMEA) conducted by the manufacturer proved that the speed cable was susceptible to binding, thus indicating that the expert’s theory was widely accepted in the relevant engineering community, was misplaced for several reasons. First, the 1987 FMEA relied on by the expert did not apply to the 2001 Ford Ranger; instead, the 2004 FMEA, which originated in 1997, applied to the truck at issue. Thus, the expert based his theory on an FMEA produced for different designs and, as such, it lacked a valid scientific connection to the issues in this case.
Second, to the extent the driver claimed that the FMEA performed by the manufacturer proved that the speed cable was susceptible to binding, he misconstrued the nature of the FMEA process. A FMEA was part of the design process during which design engineers attempt to identify potential design failure modes and rate the severity of their effects, thereby helping the engineers to focus on preventing problems before they occur. As such, the FMEA relied on by the driver’s expert could not be viewed as support for his theory that binding of the speed control valve was a recurring design problem in the truck. It also could not serve as a proxy for the testing the expert failed to conduct on his own.
Safer alternative designs. The manufacturer had argued that in order to establish strict liability under West Virginia law, the driver was required to prove that a reasonably prudent manufacturer would have adopted a safety design during the relevant time period. The driver disagreed, citing a line of district court opinions that suggest the West Virginia Supreme Court has not stated one way or another whether a design defect claim required proof of a safer alternative design for the allegedly defective product. Acknowledging that West Virginia law on this matter was not crystal clear, the Fourth Circuit essentially agreed with the manufacturer that a plaintiff in a design defect case must identify an alternative design in order to establish the state of the art, as outlined by the West Virginia courts.
Although the driver’s expert had testified that safer, proven designs that would have prevented the accident existed during the relevant time period, he performed no tests or studies to determine whether, in fact, the older, long-standing designs he had referred to involved few binding incidents. Similarly, he offered no data from any other studies or accident reports to prove that those older designs were less likely to bind than the design incorporated into the truck in this case. The fact that these design alternatives had been in general use for decades, without any supporting test data or relevant literature, was insufficient to prove that the designs were safer with respect to the alleged defect and that reasonably prudent manufacturers would have adopted them. Therefore, the expert’s testimony with respect to the availability of safer alternative designs should have been excluded.
The case is No. 15-1950.
Attorneys: Larry Lee Javins, II (Bailey, Javins & Carter, LC) for Howard E. Nease. Andrew Boxley Cooke (Flaherty, Sensabaugh & Bonasso, PLLC) and Bradley Nelson Garcia (O'Melveny & Myers, LLP) for Ford Motor Co.
Companies: Ford Motor Co.
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