Court: District Court, W.D. Kentucky; July 23, 2018; Federal District Court
Four motions by Plaintiffs and three motions by Defendant E-Z-GO to exclude witness testimony under Federal Rule of Evidence 702 and Daubert have been filed and are fully briefed. The court has ruled on these motions as follows: Defendant's motion to exclude Andrew Lawyer II's opinion testimony is partially granted, as is the motion regarding William Kitzes and Kristopher Seluga. Plaintiffs' motion to exclude Richard L. Stern's testimony is denied, while their motion to exclude David J. Bizzak, H. Frank Entwisle, and Graeme F. Fowler is partially granted. The motion to exclude testimony about the law from fact witnesses is granted, and the motion regarding Nathan T. Dorris is partially granted.
The case stems from a rollover accident involving a 1993 E-Z-GO PC-4X vehicle on July 25, 2010, resulting in the death of 15-year-old Jordan Kori Jackson in Grayson County, Kentucky. In addition to the deceased, other teenage passengers included the driver, Molly Kyle, and two others, Andrew O'Neill and Samantha Compton. Plaintiffs, Lora Madonna Jackson and Carmine T. Jackson, allege that the vehicle was defectively designed, lacked adequate safety warnings, and that E-Z-GO breached express and implied warranties. Additionally, they assert negligence and gross negligence claims against Andrew O'Neill's parents for permitting their underage son to operate the vehicle.
A jury trial is set to commence on August 1, 2018, with both parties seeking to exclude witness testimony. The Court will assume a gatekeeping role, ensuring the relevance and reliability of expert testimony in accordance with Daubert v. Merrell Dow Pharm. Inc. and Kumho Tire Co. v. Carmichael. Under Federal Rule of Evidence 702, an expert must be qualified based on their knowledge, skill, experience, training, or education. The qualifications are evaluated in relation to specific questions posed in the case. An expert's testimony is admissible if it aids the factfinder and is based on sufficient data and reliable methods. Factors considered for reliability include testability, peer review, error rates, and general acceptance in the scientific community. The trial judge must assess if the testimony has a reliable basis in the expert's discipline. Although a Daubert hearing is not necessary, the Court must ensure the testimony is relevant and reliable, with considerable discretion in this assessment. The proponent of the expert testimony bears the burden of proving its admissibility by a preponderance of the evidence. Currently, there are seven Daubert motions pending, and the Court will address them sequentially. The case has seen delays due to contentious discovery issues, but counsel has maintained professionalism throughout.
Defendant seeks to exclude the expert testimony of Andrew Lawyer II, a consulting engineer with expertise in accident reconstruction and electrical safety. Lawyer is a registered professional engineer in Florida and Alabama, and he has extensive qualifications, including certifications as a fire and explosion investigator and accident reconstructionist. He has operated his own reconstruction services company since 1999 and has previous experience with the Florida Department of Transportation and Benedict Engineering Company.
In preparation for his testimony, Lawyer reviewed various materials, including police reports, patents, accident scene photographs, operational manuals, and expert disclosures. His Supplemental Expert Report presents six key opinions:
1. E-Z-GO Textron had access to electronic technologies that could have limited the maximum speed of their 1993-94 electric personnel carrier to under 15 mph.
2. E-Z-GO should have known about and implemented these technologies as a necessary safety measure.
3. The company was aware of the risks associated with excessive speeds in electric personnel carriers and failed to act on this knowledge.
4. Proper speed limiting mechanisms would have prevented the vehicle from attaining speeds that led to its rollover.
5. If the vehicle had been equipped with such mechanisms, the accident and the resulting death of Jordan Jackson could have been avoided.
6. The vehicle's defective design significantly contributed to the accident and subsequent injuries and death.
Overall, Lawyer asserts that the lack of safety measures rendered the vehicle unreasonably dangerous.
Defendant's motion to exclude Lawyer's report and testimony argues two main points: that Lawyer lacks the qualifications to provide his opinions and that he employed unreliable methods in forming those opinions. Specifically, Defendant claims Lawyer has no relevant education, training, or experience in regenerative braking, which is the focus of his testimony regarding a design alternative for the 1993 PC-4X personnel carrier. Defendant emphasizes that Lawyer has not conducted studies related to the design or testing of electronic controllers or electric motors for electric-powered vehicles, asserting that his expertise lies primarily in accident reconstruction and fire investigation, areas not relevant to the case.
However, the Court notes that lacking specific experience in regenerative braking or electronic controllers does not disqualify Lawyer from being an expert witness under Rule 702. Previous rulings have established that an expert need not possess exhaustive qualifications or direct experience with the exact subject matter to provide testimony. Cases cited, such as Ashland Hosp. Corp. v. Affiliated FM Ins. Co. and Burke ex rel. Burke v. U-Haul International, Inc., illustrate that courts have allowed experts with broad knowledge in related fields to testify, even if they lack specialized knowledge of a specific product. The Court acknowledges that general expertise can be applicable to the specific issues at hand, as demonstrated in DaSilva v. American Brands, Inc., where a mechanical engineer was permitted to testify about the safety of a design despite lacking experience with that particular machine.
Anderson's qualifications are deemed suitable for the case at hand, paralleling the precedent set in Brooks v. Caterpillar Global Mining America LLC, where the court ruled that an expert's lack of direct design experience does not disqualify them from offering opinions based on their engineering knowledge and experience. Specifically, the court determined that Boutaugh's engineering background and practical experience in mining enabled him to opine on the safety of a piece of equipment, despite not having designed similar machinery himself.
Similarly, Lawyer, while lacking extensive experience specifically in regenerative braking, possesses significant experience in electrical engineering. His forensic consulting work includes a variety of relevant fields such as automobile accidents and product failures, and he has conducted evaluations related to electrical motors, including concepts pertinent to regenerative braking. Lawyer's responsibilities have also involved accident reconstruction and analysis of electronic products, adhering to national safety standards. Consequently, the court concludes that Lawyer's overall expertise qualifies him to provide opinions on regenerative braking in this case, notwithstanding his limited direct experience with that technology.
Defendant contests the admissibility of Lawyer's testimony regarding his analysis of CPSC NEISS data on golf car and personnel carrier incidents, claiming it lacks relevance to the specific accident at issue. Lawyer argues that E-Z-GO Textron was aware of the dangers associated with electric personnel carriers exceeding speed limits and should have implemented safety technologies to mitigate risks, asserting that the vehicle in question was defectively designed and unreasonably dangerous. He supports his opinion with three key points: 1) NEISS data indicates an average of 6,000 injuries related to personnel carrier vehicles requiring emergency treatment annually from 1991 to 1993, 2) 8.9% of these injuries were attributed to rollovers, and 3) E-Z-GO, as a major market player, likely participated in many of these rollover incidents. However, Defendant points out that Lawyer did not investigate the specifics of the underlying accident reports related to the NEISS data, nor did he analyze how the rollovers occurred, limiting his conclusions to market presence rather than actual involvement in specific accidents.
Plaintiffs contend that Lawyer possesses a comprehensive understanding of the National Electronic Injury Surveillance System (NEISS) data and its collection methods by the Consumer Product Safety Commission (CPSC), arguing that the NEISS information on golf cart and personnel carrier incidents is central to their strict liability claim. They assert that manufacturers can be held liable for risks that emerge post-manufacture. However, the Sixth Circuit mandates that only prior incidents that are "substantially similar" to the current case can be admitted as evidence to demonstrate that the Defendant was on notice of potential risks. "Substantial similarity" requires that prior accidents share similar circumstances or causes.
The burden of proving substantial similarity lies with the plaintiff. In this case, the Court finds insufficient evidence to establish that the 8.9% of injuries related to rollovers between 1991 and 1993 are substantially similar to the incident at hand, noting a lack of critical details such as accident locations, vehicle manufacturers, models, weather conditions, and driving speeds. Furthermore, Lawyer's claim that E-Z-GO must have been involved in many of these accidents lacks analytical support. The Court deems Lawyer's methods and conclusions unreliable, particularly regarding the assertion that E-Z-GO knew or should have known about dangers associated with their vehicles. Consequently, the portion of the Defendant's motion to exclude Lawyer's testimony is granted.
Defendant contests Lawyer’s ability to testify on the feasibility of regenerative braking as an alternative design in a defective design claim under Kentucky law. A plaintiff may pursue a claim based on strict liability or negligence, contingent on proving the product is "unreasonably dangerous." Manufacturers have a legal duty to exercise reasonable care against foreseeable dangers, assessed through a risk-utility analysis that considers what the manufacturer knew or should have known at the time of sale. For design defect claims, proof of a feasible alternative design is essential. Merely showing that an alternative design was theoretically possible is insufficient; plaintiffs must provide competent evidence of a practicable design that could have prevented the injury. Lawyer asserts that E-Z-GO Textron had access to electronic technologies, such as dynamic braking and regenerative braking, that could have limited the maximum speed of their 1993-94 electric personnel carrier vehicle to under 15 mph. His reasoning includes: (a) E-Z-GO had implemented speed governing mechanisms for gas vehicles, (b) the concept of speed limiting and related technologies has been known since at least 1980, and (c) a former E-Z-GO engineer indicated that the company was aware of such technologies in the early 1990s but refrained from using them due to cost considerations.
Lawyer's deposition indicates that the first E-Z-GO vehicle with regenerative braking was the 1995 Medalist. E-Z-GO confirmed this in its testimony, stating that the 1995 Medalist/TXT DCS golf car was the first to utilize a regenerative braking controller. Lawyer opined that E-Z-G-O could have developed this technology sooner, arguing that existing patents and knowledge of electronic speed control devices made a commercially feasible design possible. However, he could not identify any manufacturer with a separately excited motor available in 1993, when the vehicle was produced.
Defendant challenges Lawyer's assertion that regenerative braking was feasible in 1993, arguing that no technical analysis or prototype supporting this claim has been presented. They assert that the introduction of regenerative braking in 1995 was contingent upon the availability of separately excited field motors, which were not available until then. Former E-Z-G-O engineer Craig Journey testified that he was unaware of any engineering capability for regenerative braking before the availability of these motors, and he expressed skepticism about E-Z-G-O's knowledge of the technology prior to the late '80s or early '90s. Journey also confirmed that no other manufacturer had developed a similar vehicle with regenerative braking before E-Z-G-O's 1995 introduction. When asked about the potential for using separately excited systems in earlier models, Journey stated that E-Z-G-O did not possess them until they were developed, which took a couple of years. Additionally, a 2002 interview with Journey highlighted his role in developing Electronic Speed Controllers for separately excited field DC motors, noting that while these controllers had been used in industrial trucks, their application in golf cars faced cost barriers.
E-Z-GO's decision to adopt electronic speed controllers (ESCs) was influenced by increased production volumes, specifically after committing to the 1204 model, which lowered costs. Journey indicated that while there was an estimated cost increase of $100 to $150, this was offset by reduced reliance on resistor packs and improved reliability, despite initial challenges with electronic system failures. He highlighted the significance of addressing safety concerns related to free wheeling speed and overspeed incidents in their DCS Controller. Lawyer's report referenced Journey's assertion that E-Z-GO was aware of ESC technology in the early 1990s but opted not to implement it due to associated costs. The Defendant contested the validity of Lawyer's reliance on Journey's statements, arguing the article lacked peer review and thus did not meet the standards of Rule 702. However, Journey confirmed the accuracy of his statements in the article during his deposition, and the Court deemed the absence of peer review irrelevant. Additionally, the Defendant argued that Lawyer misinterpreted the term "electronic speed controllers," given that the 1993 PC-4X model included such technology. Journey clarified that "electronic speed control" is a broad term and noted that E-Z-GO had been using different types of electronic speed controllers, which did not provide speed regulation on inclines. Lawyer acknowledged understanding that the PC-4X had some form of electronic speed control.
Defendant challenges Lawyer's reliance on pre-1993 patents (U.S. Patents 4,242,617 and 4,730,151) to support his assertion that regenerative braking technology was available when the Vehicle was manufactured. Patent No. 4,242,617, issued in 1980, relates to an "electric vehicle having dynamic braking and regeneration," while Patent No. 4,730,151, issued in 1988, covers "continuous field control of series wound motors." Lawyer claims these patents demonstrate that the concepts of speed limiting and regenerative braking were known in the electric vehicle industry since 1980. Defendant argues that Lawyer's testimony does not evaluate or demonstrate that these patents were applicable to E-Z-GO's vehicles in 1993 or that they included feasible components for use at that time.
Plaintiffs counter that Textron's ongoing production of vehicles utilizing regenerative braking technology negates the need for testing to substantiate Lawyer's opinions on safer design alternatives. They assert that under Kentucky products liability law, plaintiffs only need to show that a safer alternative design was feasible at the incident's time, not commercially available. However, expert testimony must establish that regenerative braking could have been practically adopted when the vehicle was sold. The Court finds that Lawyer's use of the 1980 and 1988 patents is insufficient, as he did not apply his engineering expertise to interpret these patents or demonstrate their feasible incorporation into the Vehicle in 1993. Additionally, no evidence shows that Lawyer has tested or evaluated the patents for feasibility or safety. Thus, the Court deems the patents inadmissible, as they do not meet the standards of relevance and reliability under Rules 702 and 403.
The Court finds Lawyer's reliance on E-Z-GO's 1995 introduction of alternative braking for a personnel carrier vehicle insufficient, as the alternative design must have been feasible at the time of the vehicle's sale in 1993. While Lawyer suggests that E-Z-G-O could have implemented the design sooner, he fails to provide expert analysis or testing to substantiate this claim. Conversely, the Court permits Lawyer's reliance on an article by Journey, which indicates that E-Z-G-O was aware of speed control issues as early as 1990, suggesting a potential need for regenerative braking technology prior to the vehicle's manufacture. Discrepancies in interpreting Journey's terminology are deemed appropriate for cross-examination rather than grounds for excluding the opinion's admissibility, leaving the ultimate credibility of Lawyer's opinion for the jury to decide.
Regarding Lawyer's references to the findings of the Plaintiffs' expert, Kristopher Seluga, the Court disagrees with the Defendant's assertion that Lawyer merely reiterates Seluga's conclusions without providing independent expert opinion. Although Lawyer did not conduct his own accident reconstruction, he utilized facts from Seluga's analysis, including speed ranges and conclusions about rollover prevention. The Court affirms that an expert can formulate testimony based on facts, data, and conclusions from other experts under Rule 703, rejecting the notion that merely repeating another's findings constitutes improper testimony.
Seluga's reliance on his conclusions about the vehicle's speed to support his opinions is considered permissible, leading the Court to partially grant and partially deny the Defendant's motion to exclude Lawyer's testimony related to Seluga's testing. Additionally, the Defendant seeks to exclude the expert testimony of William Kitzes, who holds a B.A. from the University of Wisconsin and a J.D. from Washington College of Law. Kitzes is a Board Certified Product Safety Manager and Hazard Control Manager, with extensive qualifications, including an Executive Certificate in Safety Management and a Certificate in Risk Communication from Harvard. He has 30 years of experience in risk assessment and product safety management, previously working at the U.S. Consumer Product Safety Commission (CPSC) where he managed product defect identification and safety standards. His background includes supervising teams to evaluate injury statistics and developing safety standards, including the Federal Safety Standard for Walk-Behind Power Lawn Mowers. Kitzes has consulted for various companies on product safety and has lectured on safety issues. In preparation for his testimony, he reviewed numerous materials, including accident reports and safety standards, and provided a report summarizing product safety management procedures.
Kitzes asserts in his report that E-Z-GO failed to adequately warn operators about the dangers associated with the intended use of the PC4X personnel carrier, as outlined in ASME B56.8. Notably, E-Z-G-O's materials do not address operator age, and the standard recognizes the vehicle's intended use on public roads. Kitzes identifies several critical points:
1. E-Z-GO's documentation lacks any warnings regarding age limitations for operating the vehicle.
2. The owner's manual and ASME standard endorse the vehicle's use on public roads.
3. The warnings on the product are insufficient, failing to communicate hazards and risks adequately, and do not comply with ANSI Z535.4 for product safety signs.
Kitzes concludes that due to these inadequacies, the PC4X was defective and unreasonably dangerous, contributing significantly to the incident causing injuries and the death of Jordan Jackson.
In response to a motion to exclude Kitzes's report and testimony, the Defendant raises three main arguments. One key point discussed is Kitzes's reliance on CPSC NEISS data, which estimates that approximately 12,000 golf cart-related injuries occur annually. Although the data indicates that younger individuals may be involved in a higher proportion of injuries, Kitzes admits he did not review the NEISS reports personally and cannot determine the specifics of rollover incidents or causation, as NEISS data focuses on factual reporting rather than causation.
Defendant contends that Mr. Kitzes has not analyzed the NEISS data, the circumstances of the underlying accidents, or connected them to the alleged defects cited by the Plaintiffs, thus requesting the exclusion of his report and testimony. Plaintiffs counter that the NEISS data, which the government has compiled regarding incidents involving golf cars and personal transport vehicles, is relevant to their case, especially under Kentucky's strict liability law, which holds manufacturers accountable for defects discovered after manufacture. However, the Court emphasizes that prior incidents must be "substantially similar" to the current case to be admissible, meaning they should share similar circumstances or causes. The plaintiff bears the burden of proving this similarity. Kitzes admits that the NEISS data does not establish causation, merely presenting factual data, making it impossible to determine if the prior accidents are comparable to the current case. Consequently, the Court agrees to exclude Kitzes's testimony regarding the NEISS data. Additionally, the Defendant critiques that Kitzes's reliance on Seluga's conclusions lacks specificity, as the Court finds no mention of Seluga in Kitzes's reports or testimony.
Plaintiffs contend that Defendant has not provided factual support for the claim that Kitzes merely mirrored Seluga's opinions, leading the Court to deny this part of Defendant's motion but allowing for its reassertion at trial. Defendant challenges the admissibility of Kitzes's testimony regarding the adequacy of the Vehicle's warnings and its condition, citing previous cases where Kitzes's opinions on warnings were excluded due to insufficient methodology. The Court finds that Kitzes's conclusions about warning placement lack reliable methodology as defined by Rule 702, noting he did not conduct tests, take measurements, or examine the PWC, rendering his conclusions speculative.
Defendant also argues that Kitzes has not analyzed what warnings could have prevented the accident. However, the Court references prior rulings indicating that formulating alternative warnings is not strictly necessary for admissibility. Kitzes compared the actual warnings of the Rhino to ANSI guidelines, arguing the warnings were deficient based on industry standards and research, which the Court accepts as a valid basis for his testimony.
Additionally, Defendant claims Kitzes's opinion regarding the inadequacy of warnings and the dangerous condition of the PC4X constitutes a legal conclusion beyond the scope of Federal Rule of Evidence 704. Under Kentucky law, a manufacturer must inform users of inherent dangers in a product’s design, and the duty to warn includes dangers from foreseeable misuse. The Court acknowledges these legal standards as relevant to the case.
Under Kentucky law, causation in tort claims is determined by the substantial factor test, which assesses if the defendant's actions significantly contributed to the plaintiff's injury. Expert testimony can address ultimate factual issues but must avoid legal conclusions. In this context, an expert may testify about the lax discipline within the Detroit Police Department and its perceived consequences but cannot assert that this indicated deliberate indifference by the city. The court evaluated whether expert Kitzes's opinions about the inadequacy of the defendant's product warnings constituted ultimate legal issues. The court concluded they did not. While the Sixth Circuit noted that Kentucky courts have not mandated expert testimony on a product's unreasonably dangerous nature, it acknowledged the permissibility of such testimony in product liability cases. Several cases indicate that expert opinion is critical in establishing product defects and proximate causation. Kitzes, qualified through his engineering expertise, is allowed to opine on the dangerous condition of the vehicle and proximate cause. His analysis of the adequacy of warnings was also deemed reliable and admissible, as he referenced relevant safety standards and guidelines, concluding that the warnings provided were insufficient according to established criteria. Previous rulings in similar cases have supported the admissibility of Kitzes's testimony.
Kitzes' testimony regarding the adequacy of the Product's warning is deemed reliable due to his extensive experience with established product safety management theories and FDA labeling compliance. This testimony is relevant under Rule 702, as it assists the jury in determining foreseeable use and the sufficiency of the Product's warnings. Consequently, the court will permit Kitzes to testify about the Product's packaging, labeling, and warnings, aligning with the rationale from Miller v. Coty, Inc.
Conversely, the Defendant seeks to exclude the testimony of expert Kristopher Seluga, a licensed engineer and accredited traffic accident reconstructionist. Seluga analyzed the incident by reviewing accident files, scene photographs, and conducting on-site inspections and dynamic vehicle testing. His findings include: the vehicle's speed was approximately 30 mph during the incident; aggressive braking led to yaw instability and rollover; the vehicle's design included only rear axle brakes, which were inadequate and contributed to the instability; and that a more effective braking system could have prevented the incident. Seluga concluded that the vehicle’s design was defective and unreasonably dangerous, significantly contributing to the accident.
An ordinarily prudent company should not have marketed a rear-only brake vehicle, fully aware of the associated risks. E-Z-Go did not provide sufficient warnings regarding dangers related to the vehicle's use and foreseeable misuse, knowledge that E-Z-Go possessed but users did not. The Defendant largely accepts the qualifications of Seluga under Daubert and Rule 702 but disputes the reliability of his proposed opinions.
The Defendant argues that Seluga's conclusions about the speed during the accident lack reliability. Seluga estimated the vehicle's speed by relying on deposition testimonies and conducting tests with an exemplar E-Z-Go PC4X, achieving maximum speeds of approximately 30 mph when the accelerator was fully depressed. He also recorded similar speeds while coasting. Seluga concluded that the vehicle was traveling at around 30 mph when brakes were applied.
Additionally, Seluga estimated the vehicle's speed by analyzing skid distances and other evidence, concluding a minimum speed of 26 mph at the start of the tire marks, which aligns with his earlier findings. The Defendant criticizes Seluga for not documenting exact GPS readings during his tests that indicated a maximum speed of 30 mph.
Seluga conducted seventeen brake tests, recording maximum speeds with high precision, with the highest being 28.9 mph. In contrast, he approximated the speed during an accident test as "approximately 30 mph," which Defendant claims undermines the reliability of his testimony under FRE 702. Plaintiffs counter that Seluga's handwritten notes document a top speed of 30 mph for the exemplar vehicle and argue that the lack of decimal specificity does not affect reliability. They further support Seluga's estimation with results from his braking tests, which showed speeds of 28.9, 27.2, 26, and 25 mph. Plaintiffs also noted that vehicle speed can be calculated based on skid distance, estimating a minimum of 26 mph at the point of the tire marks. The Court agrees with Plaintiffs, finding that the differences in speed recording do not warrant exclusion of Seluga's findings. Additionally, Defendant's experts provided speed estimates of 24 to 27 mph and 19-20 mph, which align with Seluga's findings and do not critique his methodology. The Court concludes that Seluga's analysis is based on reliable principles and methods, and any concerns raised by Defendant pertain to the weight of the evidence rather than its admissibility.
The Court will not exclude Seluga's opinions on the speed at the time of the accident. The Defendant challenges Seluga's "exemplar testing," claiming it does not meet the repeatability standards of FRE 702. Seluga conducted tests using a 1991 E-Z-Go PC4X vehicle, similar to the 1993 model involved in the incident, which had identical tires. The testing included dynamic vehicle testing and brake testing at the accident scene. The Defendant argues that Seluga's tests were not under identical conditions to the accident and should be excluded. However, the Plaintiffs counter that, due to the lack of video evidence and recording devices in the subject vehicle, replicating the accident exactly is impossible. They assert that tests conducted under "similar to" conditions are acceptable. Citing legal precedents, they argue that neither Rule 702 nor Daubert requires identical conditions for exemplar tests, but rather substantial similarity. Courts have established that accident reconstructions need not be perfectly identical, and the proponent must demonstrate substantial similarity in circumstances. Therefore, the Court concludes that the validity of Seluga's testing hinges on whether it was conducted under conditions substantially similar to the actual accident, not on strict identicality.
Defendant argues for the exclusion of Seluga's exemplar testing based on differences between the subject vehicle and the exemplar vehicle, claiming that the absence of certain components (like the roof assembly and rear handhold) and the inclusion of safety outriggers, which were not part of Seluga's design, affect the reliability of the testing. Furthermore, Defendant highlights discrepancies in weight distribution between the two vehicles, particularly in the front passenger seat.
In contrast, Plaintiffs assert that these differences are minimal and do not impact the vehicle's operation or the validity of the testing. They argue that the safety outriggers were essential for conducting the tests without risk. The Court agrees with Plaintiffs, concluding that the differences cited by Defendant do not violate the "substantially similar" standard since Defendant failed to demonstrate how these differences undermine Seluga's methods. Additionally, Seluga indicated that he considered these differences in his testing process, such as accounting for the roof's weight during measurements and separately measuring the outriggers.
Defendant provided a chart summarizing weight comparisons between the subject vehicle and the exemplar, revealing only slight differences in total weight (1,091 pounds for the subject vehicle and 1,093 pounds for the exemplar). Seluga noted he adjusted the exemplar's weight to align with that of the subject vehicle at the time of the incident by adding ballast.
Seluga attempted to replicate the weight distribution in his testing by adding varying weights to the back of the vehicle to match the weight of back passengers, while balancing the weight at the front to equal that of the two front seat passengers. Despite this effort, Seluga acknowledged discrepancies between the weight distributions of the Exemplar and the subject Vehicle, as highlighted in a chart. Plaintiffs noted that the Defendant did not explain the significance of these discrepancies on the reliability of Seluga's methods, and Defendant's experts failed to address weight distribution in their reports. According to Daubert and Rule 702, expert testimony must be based on scientific methods and relevant facts, not necessarily on answering all questions definitively. Without compelling arguments from the Defendant regarding the significance of the weight distribution differences, the Court found them insufficient to exclude Seluga's testimony, allowing for these issues to be brought up during cross-examination at trial.
Regarding road conditions, the Defendant argued that significant changes occurred between the accident (July 25, 2010) and Seluga's testing, particularly after the resurfacing of Panther Creek Road. Seluga noted the road was repaved, changing its surface characteristics, yet he claimed that the friction coefficient of the repaved road was comparable to earlier tests. Seluga's testing indicated a tire sliding friction coefficient between 0.6 and 0.8, a figure that Defendant's experts did not dispute. One expert, Graeme Fowler, reported using a friction coefficient of 0.7, which he deemed representative based on his experience with automotive tire analyses.
Fowler's testimony indicates a reasonable representation of the coefficient of friction, estimated between 0.6 and 0.8, with a belief closer to 0.7. Similarly, Defendant's expert, David Bizzak, supports this range, stating that values of 0.7 to 0.85 are reasonable for a dry asphalt surface. The Plaintiff contends that photographs from 2010 and 2013 show the road's surface was similar, despite Textron's claims of a resurfacing with gravel, which had become a solid pavement. Seluga accounted for road debris and loose gravel in his measurements of the dynamic coefficient of friction, asserting that testing conditions in 2010 and 2013 were comparable. The Court agrees, noting that Seluga's measurements were not challenged by the Defendant. While the Defendant argues that the road was "significantly changed," the Court finds that both sets of photographs display gravel and debris, supporting the reliability of Seluga's testing methods. The Court emphasizes that differences identified by the Defendant are relevant to weight rather than admissibility. The First Circuit's standard indicates that when relevant elements are sufficiently similar, any differences should be highlighted by the Defendant for the jury's consideration. In this case, Seluga's exemplar testing is deemed reliable as it involved the same vehicle model, tires, total weight, location, and comparable coefficient of friction, despite the Defendant pointing out some differences.
The Court finds that Seluga's exemplar testing is sufficiently similar to the accident conditions, allowing it to be admissible despite some differences. The Defendant is permitted to conduct thorough cross-examination at trial regarding the testing. The Court refers to the Daubert standard, which emphasizes that admissible evidence should be tested through adversarial processes rather than excluded due to complexity.
The Defendant challenges the reliability of Seluga's recordings of test parameters, arguing that his notes were imprecise and lacked specialized equipment to document steering inputs accurately. Seluga used video cameras for documentation but acknowledged that not all tests were captured from every angle due to equipment limitations. The Defendant claims that the visibility of critical measurements, such as speed and steering inputs, was compromised by obstructions in the videos, including a dummy in the passenger seat and Seluga's clipboard. Additionally, the Defendant contests the reliability of Seluga's brake application records, stating they reflect intent rather than verified results since no camera was positioned to confirm brake application at the documented distance.
The Court reviewed the video footage from Seluga's tests and generally disagrees with the Defendant's assertions regarding visibility of steering inputs. The initial five tests were documented in a manner that clearly shows Seluga's steering actions, while subsequent tests provided less clarity due to the camera angles.
Defendant's argument about the visibility of Seluga’s steering inputs in tests 6 through 8 is acknowledged; viewers cannot see his actions due to his position. However, for tests 9 through 17, clearer "Free" videos provide a direct view of Seluga's hands on the steering wheel, and the Court finds that the presence of a weighted dummy or clipboard does not obstruct this view. Seluga’s rough notes, although not precise in detailing the degree of wheel turns, combined with his testimony and video evidence, are sufficient documentation for tests 1 through 5 and 9 through 17. The Court will permit cross-examination of Seluga if Defendant questions his results.
Regarding the speed of the vehicle during braking, Plaintiffs assert that the maximum speed before braking, recorded by a GPS device, is equivalent to the speed at the time of braking. Defendant fails to counter this effectively, only reiterating the lack of specific measurements. Although Defendant's experts have not critiqued Seluga's methodology concerning speed, the Court will allow cross-examination on this issue rather than excluding Seluga's results. Additionally, while Defendant points out that Seluga lacked a camera at the 53-foot mark during certain tests, Seluga did mark this location with chalk, which is visible in the videos, thus establishing the context for brake application. The Court concurs with Plaintiffs on this matter.
Seluga's brake application during test runs can be pinpointed by comparing video footage with chalk marks made on the road. Although he did not always brake exactly on the chalk line, he testified that he aimed to do so, and the timing of his brake application is ascertainable from the video. The legal standards established by Daubert and Rule 702 do not necessitate perfection in expert testimony; rather, they require that the testimony be based on scientific methods and factual inferences relevant to the case. The court finds that Seluga employed a reliable scientific method and derived valid inferences from it.
Defendant contends that Seluga's simulations lacked identical conditions to the actual accident and could not be replicated precisely. However, the court points out that there is no legal precedent mandating exact replication for expert simulations; substantial similarity suffices. The court is satisfied that Seluga's testing met this standard and thus denies the motion to exclude his findings.
Regarding computer simulations, the Defendant claims that Seluga's model does not fulfill the repeatability standards of FRE 702. Seluga utilized Matlab software to verify that the computer simulations aligned with his physical testing results. He concluded that the vehicle's speed, tire friction, steering, and brake application were adequate to cause the car to yaw and rollover. Seluga described his modeling code, which is based on vehicle dynamics and physics, and noted that his colleagues have utilized it in their work, as documented in his peer-reviewed publications.
Seluga stated he has not actively distributed his computer simulations and has not had anyone validate his modeling code. The Defendant's motion to exclude these simulations argues that they are unreliable due to lack of validation, peer review, and an indeterminate error rate. The Defendant references the case Valente v. Textron, Inc., where Seluga's simulations in a golf cart accident case were excluded for similar reasons. The Valente court found Seluga's reliance on equations for automobiles instead of golf carts, undisclosed confidential data from an unknown manufacturer, and data that did not reflect similar circumstances to the accident problematic. Additionally, Seluga failed to compare simulation results with real-world outcomes or conduct real-world testing for validation. The court noted the absence of peer-reviewed literature supporting Seluga's model and determined that the unknown error rate, attributed to a random noise component affecting simulations, undermined reliability. Furthermore, an unreasonably low coefficient of friction used in the simulations was deemed speculative and unrealistic, contributing to the decision to exclude Seluga's testing. The Second Circuit upheld this exclusion, emphasizing the critical role of the coefficient of friction in Seluga's conclusions regarding yaw instability in the Valente accident.
The 0.53 coefficient of friction used by Seluga was significantly lower—by approximately 40%—than both the coefficient measured on the actual path and the one referenced in his 2006 peer-reviewed article. The district court determined that Seluga's coefficient was derived from non-comparable testing and acted within its discretion by excluding his opinion testimony, which lacked support from relevant simulation results. Seluga acknowledged that he chose the low coefficient to explore if the accident could occur under those conditions, despite recognizing that the lower range was actually 0.54. He further admitted that his simulation predicted a rollover due to yaw instability only 25% to 50% of the time, which did not align with the requirement to establish that the design defect caused the accident "to a reasonable degree of engineering certainty." The court cited Daubert and Rule 702, indicating that inadequate data necessitates the exclusion of unreliable testimony. The district court's conclusion that Seluga's opinions were unreliable was upheld, with no abuse of discretion identified. While the defendant argued that the decisions in the Valente case applied similarly here, the court distinguished Seluga's methodology in this case from that in Valente, noting that there were no flawed automobile-based assumptions in this instance. Unlike in Valente, where Seluga had to modify certain assumptions, the defendant's experts, including Graeme Fowler, also relied on automobile-based assumptions without challenge. Fowler stated that he selected a coefficient of 0.7 based on typical values for automotive tires on road surfaces without conducting specific testing for golf carts.
Seluga's use of automobile-based assumptions in his analysis does not warrant exclusion, as the foundational physical equations remain consistent despite variations in tire and other parameters. Unlike the situation in Valente, Seluga validated his model with real-world testing data specifically conducted for this case, utilizing an Exemplar vehicle on Panther Creek Road where the accident occurred in 2010. He ensured that the input parameters for his computer simulations were aligned with the conditions of his real-world tests, which he did not do in Valente. Additionally, Seluga calculated the yaw inertia of the vehicle externally and used it as a direct input, contrasting with his previous approach in Valente. He verified his results by comparing the simulated outcomes with actual test results, which closely matched. In Valente, the district court criticized Seluga for not adequately validating his model and failed to conduct real-world testing for yaw instability. Seluga also addressed criticisms from Valente by not incorporating random noise into his simulations, which previously hindered verification by other experts. The Defendant contends that Seluga's testing lacks verifiability due to an alleged absence of records for input values. However, Seluga stated he brought documentation of the parameters used, which were available on a DVD. The Court finds the Defendant's argument unpersuasive, noting no substantial explanation was provided to dispute the adequacy of the DVD data. Any further inquiries regarding the DVD's contents can be pursued during the trial.
Seluga's use of coefficients of friction in his simulations, ranging from 0.6 to 0.8, is not contested, with two of the Defendant's experts, Fowler (0.7) and Bizzak (0.7 to 0.85), using similar values. This differs from the Valente case, where a coefficient of 0.53 was deemed unreasonable. Seluga acknowledged that he has not widely distributed his simulation code but has published two peer-reviewed articles related to his work, which he claims provide some evidence of peer review. The Defendant challenges the reliability of one article due to alleged erroneous assumptions, arguing this affects the weight of Seluga's testimony rather than its admissibility. The Court notes that lack of peer review or empirical confirmation does not automatically disqualify an expert's opinion according to established case law. Additionally, principles from the In re Yamaha case are referenced, where expert testimony based on computer simulations was scrutinized but ultimately upheld despite challenges.
Expert testimony regarding computer programs or simulations that meet Daubert standards is generally not excluded based solely on objections to the inputs used. Courts have upheld this principle in various cases. In *Shadow Lake Management Co. Inc. v. Landmark American Ins. Co.*, the court found the expert's computer program was both "commonly used" and "sufficiently reliable," stating that concerns about the factual basis of the expert's opinions should be addressed through cross-examination rather than exclusion. Similarly, in *Phillips v. The Raymond Corp.*, the court concluded that alleged miscalculations impacted the weight of the evidence instead of its admissibility. In *Turner v. Williams*, the court affirmed the acceptance of widely used accident-reconstruction software, asserting that challenges to the expert's data inputs could be explored during cross-examination.
The *Montgomery v. Mitsubishi Motors Corp.* case supported these positions by clarifying that a court's role is to act as a gatekeeper rather than to judge the expert's data selection. In *In re Yamaha Motor*, the court noted that critiques of an expert's testimony, like claims of incorrect tire data, pertain to accuracy rather than reliability, emphasizing that questions about input accuracy should be reserved for cross-examination.
The court determined that Seluga's methodology addressed previous deficiencies by conducting real-world testing and utilizing reliable inputs without random noise. Seluga's deposition further confirmed the reliability of the simulation, indicating that the program performs calculations correctly based on its inputs. Ultimately, the court found Seluga's testimony to be persuasive and upheld the reliability of his simulation model.
Defendant challenges the reliability of Seluga's program code and inputs used for simulations, arguing they may lead to incorrect calculations. However, the court determines that these concerns pertain to the weight of Seluga's testimony rather than its admissibility, allowing for thorough cross-examination during trial. Consequently, the motion to exclude Seluga's computer simulations is denied.
Regarding Seluga's opinions on alternative braking configurations, Defendant claims these are unreliable due to lack of testing or validation relevant to the case. Under Kentucky law, a plaintiff can assert a defective design claim based on strict liability or negligence, which requires proof that the product is "unreasonably dangerous." Courts utilize a risk-utility analysis to evaluate manufacturers' design decisions, focusing on what they knew or should have known at the time of sale. To establish design defect liability, a plaintiff must demonstrate a feasible alternative design that could have prevented the injury, supported by competent evidence.
Seluga contends that equipping the vehicle with either front wheel brakes or properly balanced four-wheel brakes would have prevented the incident. He cites testimony from James Fisher, a representative of E-Z-Go, confirming that the company previously manufactured personnel carrier vehicles with all-wheel braking, although these models are no longer in production.
The document discusses the testimony of Fisher regarding E-Z-GO's manufacturing capabilities, specifically concerning four-wheel brake systems. Fisher confirmed that E-Z-GO had produced vehicles with four-wheel brakes since 1990 and had the capability to manufacture such systems when the PC4X was made, but stated that they were not used because they were deemed unnecessary for the vehicle's speed and mass. Seluga argues that Fisher's testimony indicates that safer alternative designs, including four-wheel brakes, were technically and economically feasible at the time of the PC4X's manufacture. Seluga noted that four-wheel brakes have been available for over a century and highlighted that aftermarket kits for front-wheel brakes are currently sold for around $320, suggesting that integrating such technology during manufacturing would have been cheaper. He estimated that the cost of a similar braking system in 1994 would have been about $190. The Defendant contends that Seluga's reliance on a 1996 article and unrelated patents undermines his claims of feasibility, asserting that he failed to provide concrete proof that an alternative design would have prevented the accident. The Court, however, disagrees with the Defendant's interpretation of Seluga's basis for his opinion on the technological feasibility of alternative braking designs.
Defendant does not address Seluga's reliance on Fisher's testimony, which asserts that E-Z-GO had the capability to produce vehicles with four-wheel brakes during the manufacturing of the PC4X and that it has consistently manufactured some personnel carrier vehicles with this feature. The Court has previously established that testing is generally required for complex alternative designs or when their interactions with other components are unpredictable. However, the need for testing is lessened if the alternative design is simple or already in use in the industry. In support, Mrs. Clark presented evidence of feasible alternative designs to the Chrysler K latch system that could have prevented an injury. Testimony indicated that several simple modifications could have avoided bypass failure, and alternative latch systems had been utilized by manufacturers prior to the Dodge Ram's production. Additionally, components suggested by Dr. Storace exist in the market, negating the need for testing to prove their feasibility. The Court finds that Fisher's testimony substantiates Seluga's opinion that alternative braking designs, including four-wheel brakes, were technologically feasible at the time of manufacturing.
E-Z-GO contends that Seluga lacks a basis for asserting that an alternative brake design would have prevented the accident. While it is true that Seluga did not test vehicles with alternative brake configurations, he did conduct a computer simulation, which indicated that a vehicle with four-wheel brakes would not have rolled over under similar conditions to the incident in question. E-Z-GO argues that Seluga has not documented the reliability of his simulation results for different brake configurations and claims that the simulation, originally designed for rear-wheel brakes, is unreliable under the standards set by Daubert and FRE 702. Consequently, Seluga and the Plaintiffs must meet a higher burden to establish the reliability of the simulation results for alternative braking systems.
The Court has chosen not to apply the Valente standard to exclude Seluga's computer simulations, focusing instead on the lack of documentation verifying the results across different brake configurations. The Court finds that this unsupported claim is insufficient for exclusion; the Defendant can challenge Seluga's methods during cross-examination but has not convinced the Court to exclude his opinions. The Court also notes that while Webster did not conduct physical tests, he created a 3-D model to simulate the failure conditions, which the Court deems adequate, allowing for the admissibility of his testimony despite the absence of physical testing.
Regarding warnings, the Defendant contends that Seluga lacks the necessary training and experience to assert that the warnings on the PC-4X were inadequate. Under Kentucky law, a plaintiff must show that the defendant had a duty to warn, that the warnings were inadequate, and that this inadequacy caused the injury. A warning is deemed adequate if it effectively communicates the product's risks to a reasonable consumer, with an assessment of the warning's sufficiency based on the risk's likelihood and seriousness. Additionally, Kentucky law typically requires proof that different or additional warnings would have altered the outcome of the injury. In this case, Seluga claims that E-Z-Go did not provide adequate warnings regarding the vehicle's dangers, particularly concerning risks known to E-Z-Go but not to potential users. He cites specific warnings present in the PC4X’s manual regarding its use and associated risks, arguing they were insufficient to prevent misuse.
The E-Z-Go manual advises users to avoid steep slopes but fails to define what constitutes a steep slope. Subsequent manuals specify a maximum slope of 14 degrees. It is noted that not all users may access the owner's manual, and although there is a warning on the vehicle's instrument panel to drive slowly on slopes, it is foreseeable that some drivers may not follow this guidance, particularly when descending. The warnings do not adequately address the risks associated with the rear-wheel braking system, failing to instruct users on avoiding loss of control or the risk of rollover due to yaw instability.
Engineering principles suggest that once hazards are identified, they should be mitigated following a safety hierarchy: eliminate the hazard, safeguard against it, then provide warnings. E-Z-Go opted to issue warnings rather than improve the braking design, neglecting the first two priorities. The document argues that E-Z-Go should have designed a braking system capable of safely stopping the vehicle while traveling downhill or implemented a speed governor to limit speed.
Defendant's motion to exclude testimony from Seluga, an expert, claims he does not assess the adequacy of the warnings but suggests a better warning could have been formulated. The defense contends Seluga lacks qualifications in warning design, has no relevant experience or training, and does not provide evidence that the warnings were inadequate or that they caused the injuries in the incident.
Defendant argues for the exclusion of Seluga's testimony regarding safety warnings, claiming it lacks a basis in scientific or specialized knowledge necessary to assist the trier of fact. Plaintiffs counter that Defendant misinterprets Seluga's views, asserting that he does not claim that no warning could be adequate. Instead, Seluga explains a safety hierarchy for manufacturers that prioritizes hazard elimination, followed by safeguarding, and finally, adequate warnings if the first two options are not feasible. Plaintiffs highlight Seluga’s experience, including coursework at M.I.T. in mechanical engineering and contributions to the 2012 ANSI safety standards for golf cars. Despite this, the Court finds Seluga's opinions on the safety hierarchy and warning adequacy are not founded on reliable principles. Unlike another expert, Kitzes, Seluga fails to identify or apply relevant standards to substantiate his claims about the Vehicle's warning deficiencies. He merely references ANSI standards without applying them to his analysis. Consequently, the Court grants Defendant's motion to exclude Seluga's testimony concerning the adequacy of the Vehicle's warnings.
Defendant contends that Seluga's analysis of reports from the CPSC NEISS database lacks relevance and fails to demonstrate a connection to the specific accident at hand. The Court agrees, highlighting that Seluga's report includes a section on prior incidents, noting an average of 6,000 golf car-related injuries annually from 1991 to 1993, with rollovers constituting about 10% of these incidents. However, Seluga acknowledges the absence of specific prior incident records for E-Z-Go vehicles, which may be reviewed later. During his deposition, Seluga did not provide a specific opinion on the NEISS data, admitting it does not distinguish between types of vehicles or accident circumstances. Defendant argues that Seluga's understanding of the NEISS data is superficial, as he cannot effectively relate it to the claimed defects in the case. The Defendant cites a precedent from Newell Rubbermaid, where an expert's methodology was deemed scientifically unsound. In response, Plaintiffs assert that the NEISS data is relevant to their case and argue that Seluga was able to discuss its collection and compilation in detail. Nevertheless, Seluga confirmed that the NEISS data does not differentiate between accidents involving golf cars and other types of vehicles, undermining the relevance of his analysis to the current litigation.
Data presented summarized incidents coded as golf-car related by hospital staff but lacked specific details about individual injuries. The court noted that to admit testimony about prior incidents, there must be "substantial similarity," which was not established for the NEISS data by the witnesses, Lawyer and Kitzes, nor by Seluga. Consequently, Seluga's testimony was excluded for the same reasons.
The plaintiffs filed a motion to exclude the testimony of E-Z-GO's expert, Richard L. Stern, who conducted research on the company's safety management system for the Model PC4X Electric Powered Personnel Carrier. Stern's background includes significant experience in product safety and regulatory compliance roles, including a position at the CPSC. He reviewed various documents, including deposition transcripts and safety manuals, to form his opinions, which asserted that E-Z-GO adhered to regulatory requirements and best practices in both the design and post-sale actions concerning the vehicle. Furthermore, he noted that the vehicle was operated contrary to provided warnings and local laws. The plaintiffs argued for exclusion of Stern's testimony, highlighting that he did not conduct independent testing of E-Z-GO's safety system and relied solely on documents provided by the company for his conclusions.
Plaintiffs assert that Stern's opinions regarding Textron's safety system lack an objective basis because he did not conduct an independent assessment or evaluation. They argue that without such an evaluation, Stern's conclusions are not grounded in scientific analysis. In contrast, Defendant argues that an independent assessment was unnecessary, as the alleged defects in the PC-4X Personnel Carrier do not pertain to unique characteristics of the electric vehicle but are common design traits across various manufacturers. Stern's report indicates that he based his opinions on publicly available information concerning vehicle safety risks and described typical pre-sale and post-sale actions that manufacturers undertake to ensure product safety. Pre-sale actions include compliance with regulations, identifying industry standards, and ensuring product safety, while post-sale actions involve user reporting of safety issues and proactive safety management. Although Stern did not study E-Z-GO's safety management system in detail due to time constraints, he identified key elements necessary for effective safety management. He concluded that E-Z-GO's pre-sale actions aligned with regulatory requirements and industry best practices. Notably, Stern found no recalls related to rear braking design issues for similar vehicles, which he interpreted as evidence of compliance with safety standards. He acknowledged two unrelated recalls by E-Z-GO, viewing them as evidence of the company's awareness of regulatory responsibilities. Additionally, the absence of civil penalties from the CPSC for non-compliance further led Stern to believe that E-Z-GO met its safety obligations.
Stern concluded that E-Z-GO identified relevant voluntary industry standards for the Vehicle, notably the ANSI/ASME B56.8 safety standard, supported by test reports confirming compliance. James Fisher, an E-Z-GO engineer, corroborated compliance with the ASME standard during his deposition. Stern referenced a label on the Vehicle indicating conformity to ASME/ANSI B56, requiring ANSI approval for such a claim. He examined public information from before the Vehicle's 1993 manufacture, finding no CPSC recalls related to brake-induced rollover issues or incidents reported by E-Z-GO prior to 1992. While NEISS data indicated a national injury estimate of 6,985 in 1992, Stern deemed this unreliable as it did not differentiate between golf carts and utility vehicles.
Stern based his opinions on Fisher's testimony regarding E-Z-GO's design considerations, indicating awareness of potential safety issues. He noted E-Z-GO's processes for addressing safety-related complaints and their proactive approach to gathering safety information, which included two voluntary recalls in cooperation with the CPSC. From 1993 to the incident in July 2010, 31 recalls were announced for Utility, Off-Road Vehicles/Golf Carts, with none linked to rear brake-induced rollover hazards. Stern's opinions on E-Z-GO’s actions were based on regulatory requirements and industry safety practices. Although he did not conduct an independent assessment of Textron’s safety system, he stated that such an evaluation would have been a lengthy process. Instead, he reviewed litigation documents, public safety information, and deposition testimonies.
Stern will testify that evidence indicates E-Z-GO had an effective safety system, and he does not question this based on incident data. He clarified he will not assess whether Textron's safety system was adequate. The court deems Stern's proposed opinions reliable, as they are based on publicly available information, including federal regulations, industry standards, and incident reports. Stern asserts that there is no indication of E-Z-GO's non-compliance with these standards and intends to support his views with this information. However, the accuracy of his opinions will be subject to cross-examination during trial. The court emphasizes its role is not to evaluate the correctness of Stern's opinions but to ensure they have a reliable foundation. The court finds the plaintiffs' reliance on *Newell Rubbermaid, Inc. v. Raymond Corp.* unconvincing, as that case involved an expert whose methodology lacked scientific rigor, failing to properly analyze data or empirically test alternative designs. The court distinguishes this from the current case, where Stern's testimony does not focus on product defectiveness or alternative designs, but rather on compliance with safety standards.
In alternative design cases, the necessity of testing alternative designs is emphasized. In this instance, Stern plans to testify based on evidence from the case and public safety data, asserting that E-Z-GO had an effective safety system. The Court permits Stern's testimony, despite Plaintiffs' objections regarding his opinions on the vehicle's safety and warning adequacy, which Stern will not address; he will focus instead on E-Z-GO's awareness of regulatory standards, safety evaluations prior to manufacture, and findings from statistical records and CPSC data indicating no latent defects.
Stern's qualifications lead the Court to find that his methodology is reliable, thus denying Plaintiffs' motion to exclude his testimony. The Court references a previous case, noting that expert testimony can aid in understanding complex information from corporate practices.
Additionally, Plaintiffs seek to exclude the testimony of experts Bizzak, Entwisle, and Fowler, arguing they did not conduct scientific testing to support their opinions. Bizzak, holding a Ph.D. in mechanical engineering and registered as a professional engineer in several states, has extensive experience in analyzing product design defects and conducting investigations related to various accidents and failures, including those involving golf carts and other vehicles. His qualifications include expertise in machine design, automotive defects, and safety evaluations, which support his role as an expert in this litigation.
Bizzak has testified in approximately forty civil cases over the past four years, reviewing depositions, discovery materials, and reports from other expert witnesses to form his opinions regarding the accident in question. On June 26, 2012, he examined the involved vehicle and conducted a total station survey at the accident site. His report concludes that Molly Kyle's reckless driving was the proximate cause of the accident that resulted in Jordan Jackson's death. Key findings include:
1. Kyle's high-speed descent and erratic steering led to the vehicle's loss of control and rollover.
2. There is no evidence that the brakes were applied prior to the loss of control, and her use of the rear brakes was appropriate given the vehicle's design.
3. The vehicle was manufactured according to ANSI/ASME B56.8 standards, and the braking system was not defective.
4. Instructions on the vehicle advised slow travel on inclines, which Kyle ignored.
5. At the time of manufacture, a speed-limiting regenerative motor controller was not feasible; even if available, Kyle's actions could have caused loss of control at regulated speeds.
Bizzak also addressed and refuted the opinions of the plaintiffs' experts, Andrew Lawyer and Kristopher Seluga. H. Frank Entwisle, a retired professional engineer hired by the defendant, evaluated the accident's design aspects and concluded that the personnel carrier's design was safe and non-defective, asserting that proposed changes to the braking system would not have altered the incident's outcome.
No evidence suggests the braking system of the E-Z GO personnel carrier was inadequate for controlling the machine on the approximately 12% grade prior to its loss of control. The argument that front wheel braking alone would be stable and safe is challenged. The loss of control is attributed to an unlicensed, untrained, and inexperienced operator, Molly Kyle, who operated the vehicle recklessly on a roadway not intended for its use, despite warnings from passengers to stop. This operation contradicts safety instructions provided by Mr. and Mrs. O'Neil. The overturn resulted from a combination of excessive speed and rapid steering maneuvers.
Graeme Fowler, a licensed professional mechanical engineer with a Ph.D. in applied mechanics, has expertise in vehicle dynamics, accident reconstruction, and safety assessments for various vehicles, including ATVs and golf carts. He reviewed relevant materials—including photographs, depositions, and expert reports—before concluding that the accident stemmed from Kyle's failure to exercise ordinary care while driving. Her aggressive steering and use of the road's slope to increase speed led to a loss of control, characterized by a significant right steer to avoid leaving the road. Additionally, photographic evidence indicates she did not brake before or during the incident, with the vehicle's estimated speed at the time of overturning being 19-20 mph, likely reaching mid-20s when the final yaw marks began.
The driver of the personnel carrier failed to control the vehicle's speed while descending a hill, resulting in excessive speed exceeding the maximum of 12 mph on level ground at the time of the crash. Despite passengers' concerns regarding unsafe speeds, Molly Kyle did not respond. The carrier rolled over completely, ejecting passenger Jordan Jackson, who was fatally injured when struck by the vehicle during the rollover. The incident occurred on a straight, mildly sloped road where safe operation was possible with proper steering. The personnel carrier was illegally operated on a public road contrary to vehicle warnings. The crash was not attributed to rear brake instability.
Plaintiffs do not contest the qualifications of expert witnesses Bizzak, Entwisle, or Fowler, but argue their opinions lack reliable scientific basis, relying instead on incomplete photographs and personal experience. They assert these photographs do not provide sufficient evidence that the vehicle's brakes were not applied before the rollover. In response, the Defendant challenges the claim that the photographs are of poor quality, noting that the same images were used by the Plaintiffs' own consultant. The Court finds the photographs satisfactory and the arguments regarding the untrained status of the photographers unpersuasive, noting no legal precedent supports their exclusion based on that criterion. The Defendant highlights that most accident reconstruction experts use photographs taken by police and other witnesses.
The court finds that the plaintiffs lack sufficient legal authority to support their argument for excluding the opinions of experts Bizzak, Entwisle, and Fowler, who relied on photographs taken by Deputy Hammons and Kristen Whittington, despite their lack of training in accident reconstruction. The plaintiffs contend that these experts' conclusion of "no physical evidence of braking" contradicts eyewitness testimony from Molly Kyle and Andrew O'Neil, who both stated that the vehicle did not go out of control until after the brakes were applied. Additionally, the plaintiffs argue that the photographs do not provide a clear view of the road due to obstruction from other vehicles, making it unreasonable to conclude a lack of braking evidence. While the plaintiffs acknowledge the authenticity and partial usefulness of the photographs, they assert that the experts' reliance on them to prove the absence of braking evidence is flawed. The court, however, determines that the issues raised about photo obstruction and eyewitness testimony pertain to the weight of the evidence rather than its admissibility, affirming that photographic evidence can be a reliable basis for expert opinions. The plaintiffs are permitted to challenge the experts' conclusions through cross-examination, but this does not necessitate exclusion of the evidence. Regarding the photogrammetry analysis, the plaintiffs argue that the experts failed to demonstrate the reliability of their photogrammetry methods, noting that Bizzak could not identify the software used or its scientific validation.
Plaintiffs contend that Fowler's reliance on a 2014 inspection by former colleague Matthew Schwall, rather than conducting a personal inspection of the rollover scene, undermines the reliability of his photogrammetry calculations. They similarly argue that Entwisle's reliance on the analyses of Bizzak and Fowler, both of whom did not personally inspect the scene, renders his conclusions unreliable. However, Plaintiffs fail to cite any supporting case law for these assertions. The Defendant counters that Dr. Bizzak adequately explained his methods and involvement with the graphics firm, and that his inability to recall the specific software used does not justify excluding his analysis. The Court agrees, stating that Plaintiffs can address this issue during cross-examination.
Regarding Fowler, he asserted in his deposition that while he utilized Schwall's preliminary measurements, he conducted further analysis using various sources including photographs and surveys. The Court finds that Fowler's lack of direct scene inspection does not warrant exclusion of his testimony, as photogrammetry relies on photographic measurements rather than physical site inspection. Furthermore, the Court deems Fowler's use of Schwall's initial work as acceptable, noting that his continued analysis does not indicate unreliability.
For Entwisle, the Court concludes that his reliance on Bizzak and Fowler's analyses does not necessitate exclusion. Although Plaintiffs argue that Entwisle should not depend on inspections he did not conduct, the Court cites that, under Rule 703, an expert can incorporate the facts and conclusions of other experts into their testimony. Consequently, Entwisle's use of Bizzak and Fowler's photogrammetry analyses to inform his own work is permissible.
Entwisle testified that he relied on photographs and photogrammetry work done by Mr. Fowler and Mr. Bizzak, along with vehicle dimensions and Andrew O'Neill's testimony, to analyze the positioning of the vehicle before it overturned. The Court determined that Entwisle did not merely adopt the opinions of Bizzak or Fowler; instead, he conducted his own testing and formed independent opinions, which made his testimony admissible despite not personally inspecting the scene.
Regarding accident reconstruction, Plaintiffs argued that Entwisle should be barred from testifying as he did not perform any analysis of tire marks or vehicle damage. However, the Defendant countered that Entwisle utilized his experience in vehicle dynamics to explain the vehicle's center of gravity and steering inputs. Despite this, Entwisle explicitly stated in his deposition that he did not perform an accident reconstruction and deferred to Bizzak and Fowler for that analysis. The Court concurred, agreeing to exclude Entwisle's testimony on accident reconstruction while allowing him to provide opinions on the vehicle's instantaneous velocity and braking effects, based on his expertise and O'Neill's testimony.
Lastly, Plaintiffs criticized Bizzak for not conducting simulation testing on Panther Creek Road, contrasting this with their expert Kristopher Seluga's approach.
Bizzak's deposition revealed he did not feel compelled to conduct testing related to the accident, citing that the vehicle could not be tested and that his measurements and photographs provided sufficient understanding of the incident. The Court determined that the absence of simulation testing by Bizzak does not justify excluding his testimony, allowing Sunbeam to challenge his conclusions during cross-examination. The Plaintiffs' motion to exclude Bizzak, Entwisle, and Fowler's testimonies is partially granted and partially denied, emphasizing that the issues raised pertain to the weight of the testimony rather than its admissibility.
The Plaintiffs also seek to exclude testimonies regarding legal issues from fact and expert witnesses, specifically targeting Deputy Colston and Entwisle. Colston testified on the illegality of operating golf carts on county roads, highlighting safety concerns. Entwisle attributed the accident to illegal operation by an untrained individual based on Colston's deposition and relevant Kentucky statutes. The Plaintiffs argue neither Colston nor Entwisle should comment on legal matters as they are not attorneys, and they assert Entwisle's views on the road's status as irrelevant. E-Z-GO counters that the operation of the golf cart on a public road is simply a factual aspect of the case and does not necessitate their classification as legal experts. Colston’s deposition indicates he has previously enforced laws against golf carts on county roads, supporting his testimony's relevance.
E-Z-GO contends that Deputy Colston's testimony reflects his observations as a Grayson County law enforcement officer regarding the appropriate and inappropriate use of golf vehicles on golf courses and public roadways. E-Z-GO further argues that Entwisle's testimony relates specifically to the proper use of the PC-4X, aligning with his engineering expertise, and that the factors he identifies as contributing to the golf cart's loss of control are not legal opinions. The company asserts the legality of the golf cart's operation on Panther Creek Road by an unlicensed, underage driver is not a critical issue for the jury. However, the court finds that the legality of operating the golf cart on a public road is irrelevant to the cause of the loss of control. The court emphasizes that under Rule 702, expert testimony must aid the jury in understanding evidence or determining relevant facts. Entwisle's deposition indicates that whether the road is public or private does not affect the determination of loss of control, and that an unlicensed driver could still operate a vehicle safely. Thus, the court concludes that the legality of Kyle's operation of the golf cart is extraneous to the accident's cause, deeming Entwisle's statements about her being "unlicensed" improper. Nonetheless, Entwisle may testify about the design limitations of golf carts on public roadways and any contributing factors to the loss of control. Deputy Colston's testimony regarding the lack of lights or turn signals on golf carts and their illegality on roadways is also deemed irrelevant to the accident's cause.
No party claims that the lack of lights or a turn signal contributed to the rollover accident, nor were any third parties involved. Testimony regarding these factors is deemed irrelevant and will be excluded. However, Deputy Colston may testify about his observations as a responding officer at the scene. The Court agrees to exclude testimony from Entwisle and Deputy Colston concerning the legality of operating a golf cart on public roadways under Kentucky law, granting the Plaintiff's motion to exclude this testimony.
The Plaintiffs also seek to exclude the testimony and report of Nathan T. Dorris, an expert witness for the Defendant, who specializes in product safety and human factors engineering. Dorris's report concludes that:
1. Users can recognize factors that may lead to losing control of a vehicle and the risks associated with tip-over incidents. Passengers Andrew O'Neill and Samantha Compton acknowledged concerns about the vehicle overturning due to the driver’s actions.
2. E-Z-GO's safety messages are appropriate and effectively communicated, and the vehicle is not defective or unreasonably dangerous concerning warnings.
3. E-Z-GO provided adequate information that, if followed, could have prevented the incident. Additional warnings would not have altered the behavior of the O'Neill family or Molly Kyle in operating the vehicle during the incident.
4. There is no definitive age when a child is ready to operate the vehicle; maturity and judgment, in addition to physical capabilities, are crucial factors.
Vehicle owners and adult caregivers must assess both the physical capability and maturity of a child operating an E-Z-Go vehicle to ensure responsible judgment and adherence to warnings. The safety messages provided by E-Z-Go are deemed reasonable. Plaintiffs do not dispute Dr. Dorris's qualifications as an expert but challenge the reliability of his opinions, claiming they are based on anecdotal evidence rather than scientific principles. Specifically, they argue that Dorris's assertion regarding the intuitiveness of potential loss of control or tip-over lacks scientific backing and relies on everyday experiences. They also contend that he improperly claims that alternative warnings would not have influenced the behavior of the vehicle operator, Molly Kyle, citing a literature review rather than a scientific study as support. The court agrees that Dorris's opinion about the intuitiveness of control loss or tip-over should be excluded. Dorris argues that various factors affect control loss and that the potential for tip-over is common knowledge to users, reinforced by sensory feedback and existing warnings. Witnesses from the incident acknowledged their concerns about the vehicle flipping due to Molly Kyle's driving, indicating awareness of the associated risks.
Dr. Dorris lacks academic support for his claim that the risk of rollover is "intuitively obvious" and "readily apparent," relying instead on factors such as vehicle speed, steering input, and personal experiences. Although witnesses Andrew O'Neill and Samantha Compton expressed fear of the golf cart flipping, this does not equate to the risk being obvious to users. The Sixth Circuit has highlighted concerns regarding expert testimony that relies on anecdotal evidence, improper extrapolation, lack of testing, and subjectivity. Despite Dr. Dorris's extensive experience in product safety, he fails to adequately link this experience to his assertion about the rollover risk being obvious. Consequently, the Court will exclude his opinion on this matter. In relation to Dr. Dorris's assertion that additional warnings would not have influenced Molly Kyle's behavior, E-Z-GO contends that he did not use anecdotal evidence, but rather relied on testimonies from Kyle and other passengers. Testimony reveals that Kyle did not see warnings and was not given specific instructions, while Compton and O'Neill noted that Kyle ignored their attempts to stop her from driving dangerously. Although Kyle disputes the claims of being told to stop, she admits to driving the vehicle rapidly. Dr. Dorris's report concludes that personal characteristics and situational factors affect a user's likelihood of noticing, reading, and adhering to warnings.
Receivers who are not actively seeking safety information about a product are unlikely to notice or heed warnings. Molly Kyle did not read the available warnings, and testimonies from Andrew O'Neill and Samantha Compton indicate that she was driving aggressively, aware that certain maneuvers could lead to a vehicle overturn. Research indicates that even those who read safety messages may disregard them due to various factors, including individual risk-taking styles. Dr. Dorris cited two articles to support his opinion: Dejoy (1989) found that user perceptions might overshadow warning effectiveness, while Rogers et al. (2000) concluded that even well-designed warnings might not be complied with due to personal variables affecting compliance.
Dr. Dorris referenced a total of sixteen articles in his expert report, including those by Dejoy and Rogers, which the Plaintiffs did not contest, despite arguing that Dr. Dorris lacked factual support for his additional warnings opinion. The Plaintiffs criticized one article referenced by Dr. Dorris, claiming it was merely a literature review, not a scientific study, and involved studies of different products than the E-Z-GO vehicle. However, the Court found that Dr. Dorris based his opinion on more than just this literature review, citing three additional studies that contributed to his analysis of warning effectiveness and compliance related to the operation of the E-Z-GO vehicle.
Plaintiffs did not contest the reliability of the articles referenced in Dr. Dorris's report. The Court upheld the reliability of a literature review article cited by Dr. Dorris, despite it featuring products dissimilar to golf carts and personnel carrier vehicles. Previous rulings within the Sixth Circuit indicate that any factual weaknesses in an expert’s opinion affect the evidence's weight rather than its admissibility. Dr. Dershwitz, with extensive qualifications in pharmacology, supported his opinions on intramuscular injection protocols through a thorough literature review and professional experience. Consequently, while the Plaintiffs can rigorously cross-examine Dr. Dorris, his reliance on the literature does not warrant excluding his testimony. The Court partially granted and denied various motions to exclude testimony from multiple experts, including E-Z-GO's motions regarding Andrew Lawyer II, William Kitzes, and Kristopher Seluga. The Plaintiffs' motions to exclude Richard L. Stern's testimony were denied, while the motions concerning Nathan T. Dorris and others were granted in part and denied in part. The Court will refer to the 1993 E-Z-GO PC-4X vehicle simply as "the Vehicle." Additionally, the definition of "separately excited systems" was clarified, distinguishing it from other motor types used historically.
Journey testified that the use of regenerative braking was made possible by separately excited systems. The Defendant contends that the 'green line' chalk mark, which Seluga aimed for during brake application, is not visible in the provided videos. However, this line is faintly visible in the recordings. The full titles of relevant articles include a 2009 publication on braking stability in golf cars and personal transport vehicles and a 2006 article on braking hazards of low-speed vehicles, both found in the Journal of Accident Analysis and Prevention. Acronyms mentioned refer to the Consumer Product Safety Commission and the National Electronic Injury Surveillance System. The Plaintiffs point out that Stern admitted in his deposition he has not seen any Textron policy or intent to comply with the ASME B56.8 standard. Nevertheless, Stern mentioned he had seen evidence indicating the vehicle conformed to the standard, including test reports and an ASME label. The Court finds the Plaintiffs' argument regarding Stern's basis for concluding compliance unpersuasive. The Plaintiffs challenge Fisher's testimony, claiming he was not present at E-Z-GO before 1993 when the vehicle was manufactured, but the Defendant clarifies that Fisher was employed at E-Z-GO from 1990. Fisher, who worked as a design engineer for personnel carriers, provided relevant testimony, rendering the Plaintiffs' argument about the speculation of Fisher's testimony unpersuasive. The Plaintiffs do not dispute Entwisle's qualifications to testify as an expert under Rule 702 but argue that some of his proposed opinions are improper.
