By Leah S. Poniatowski, J.D.
Driver’s expert’s opinion found to be a "mere hypothesis," falling short of scientific method-based standards for admissibility.
Negligence and failure-to-warn claims filed against Ford Motor Company following a fatal car accident involving a leased 2007 Crown Victoria sedan were dismissed because the expert testifying on behalf of the taxi driver leasing the vehicle did not engage in the "usual scientific method" when deriving his opinion, a federal district court in Illinois ruled. The court concluded that without a reliable expert opinion, the products liability case failed as a matter of law, granting the manufacturer’s motion for summary judgment (Kesse v. Ford Motor Co., February 20, 2020, Alonso, J.).
The taxi driver began leasing a 2007 Crown Victoria in August 2012 from BMX-Chicago and Associates. The vehicle, manufactured by Ford Motor Company, had been sold from the dealership to a private owner in 2007, and the accompanying three-year warranty had expired in 2010.
On the second day the taxi driver had the vehicle, he alleged that it began accelerating uncontrollably and his attempts to use the brakes failed. He stated that he tried to stop the car by striking a pole on the sidewalk, thereafter hitting another pole and a pedestrian, who was killed. No bystanders noticed brake lights on the car during the incident. The driver filed a products liability lawsuit against Ford.
After the accident, the vehicle was examined by a master technician. He observed that there were no problems with the braking system or the electronic throttle control system, which controls the vehicle’s acceleration. Both the driver’s and the manufacturer’s experts relied on the technician’s analysis when forming their opinions.
Driver’s expert. The driver’s expert concluded that electromagnetic interference triggered the sudden acceleration after eliminating other possible causes, including mechanical failure or driver error. His rationale for eliminating driver error was that the driver "had no logical or sane reason to slam the accelerator pedal or the brake pedal for the driving maneuver that he was doing," and that the driver was "experienced and professional … accustomed to the universally, inherently safe design and orientation of the brake and acceleration pedals."
Manufacturer’s expert. Ford’s expert opined that there was no evidence that the electronic throttle control system was defective or unreasonably dangerous or that electromagnetic interference caused a malfunction. The expert stated that interference is considered as part of the design, and his firm undertook testing on a similar vehicle. After intentionally applying several types of electrical system faults, the expert reported that the vehicle reaction was safe each time.
Ford’s expert also relied on investigation reports from the National Highway Transportation Safety Administration (NHTSA) concerning unintended acceleration events, which stated that those incidents "typically involve vehicles that are relatively unfamiliar to the driver and occur much more frequently as driver age increase…." The expert opined that driver error should not have been ruled out as a cause of the accident, especially as other studies supported the conclusion that operating a new vehicle can cause a driver to make a pedal application error.
Driver’s objection. The driver did not file a Daubert motion to exclude the manufacturer’s expert, instead objecting to the portions of the opinion based on documents which were not attached to the opinion, specifically the NHTSA reports. However, the court observed that there was no procedural requirement that an expert attach every publication cited in his opinion because those publications are not exhibits. Further, the NHTSA reports were published in the Federal Register and the driver did not claim that he did not have access to those materials. Therefore, the objection was overruled.
Ford’s Daubert motion. The manufacturer filed a Daubert motion to exclude the driver’s expert’s testimony. The court agreed that the opinion was inadmissible. First, the court noted that the opinion’s exclusion of driver error as a cause was not reliable, especially as the expert was not a human-factors expert, he made no mention of the studies in which pedal misapplication likely caused sudden acceleration, and he did not determine how often the driver operated the vehicle. Second, the expert’s conclusion that electromagnetic interference was a possible cause was unreliable because he had not undertaken any testing or had ever tested a vehicle with electronic throttle control. The expert did not cite to any other evidence supporting his theory, nor had he published his theory in a peer-reviewed journal. The court remarked that the expert admitted that NHTSA had discredited his theory. Thus, in the absence of the expert employing the usual scientific method, his "theory remains a mere hypothesis, and hypotheses alone are not admissible," the court stated. Consequently, the driver’s expert’s testimony was excluded.
Because the driver’s negligence claim required expert testimony in order to establish causation, Ford was entitled to judgment as a matter of law on the negligent design claim. Similarly, the driver’s failure-to-warn claim failed. Moreover, the driver’s breach of express warranty claim failed because he did not proffer evidence that there was privity of contract between him and Ford or fraudulent concealment. Therefore, Ford’s motion for summary judgment was granted.
The case is No. 14-cv-6265.
Attorneys: John O. Noland, Jr. (John O. Noland, Attorney At Law) for John A. Kesse. Bradley Edward Puklin (Donohue Brown Mathewson & Smyth LLC) for Ford Motor Co.
Companies: Ford Motor Co.
MainStory: TopStory ExpertEvidenceNews DesignManufacturingNews WarningsNews CausationNews MotorVehiclesNews MotorEquipmentNews IllinoisNews
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