Opinion
Case No. CV 01-03617 CAS (MANx), [This order relates to: No. CV 06-1095 CAS (MANx)].
September 12, 2006
Proceedings: DAUBERT HEARING RE: PLAINTIFF'S EXPERT DR. JOHN L. MIHELICH [IN CHAMBERS]
CIVIL MINUTES — GENERAL
I. INTRODUCTION
On January 19, 2001, Hyon Seong Kim filed a complaint against Bridgestone/Firestone and Ford Motor Company in Los Angeles Superior Court asserting products liability claims. On April 19, 2001, the action was removed by defendant Bridgestone/Firestone to this Court pursuant to 28 U.S.C. § 1332. Thereafter, the Judicial Panel on Multidistrict Litigation transferred the case to the Southern District of Indiana. Subsequently, the case against Bridgestone/Firestone was dismissed. On July 12, 2005, the Judicial Panel on Multidistrict Litigation ordered that the case be remanded to the transferor court, and the case was reopened in this Court. On April 20, 2006, the Court consolidated a companion case brought by Tae Hyun Kim, Kyo Hyun Hwang, and Chan Hyun Hwang (collectively with Hyon Seong Kim, "plaintiffs"), No. CV 06-1095 CAS (MANx) with this case.
On May 3, 2006, the Court ruled that Ford Motor Company ("defendant") could bring a Daubert motion to challenge plaintiffs' expert Dr. John L. Mihelich ("Dr. Mihelich"). On August 7, 2006 defendant filed a brief re expected issues at the Daubert hearing. On August 21, 2006, plaintiffs filed their response. Defendant filed a reply brief on August 28, 2006. The Court held an evidentiary hearing on September 12, 2006. Having considered the testimony of Dr. Mihelich and the arguments of the parties, the Court concludes as follows.
II. FACTUAL BACKGROUND
On January 21, 2000, plaintiffs were driving a 1998 Ford Explorer (the "Explorer") in Venezuela. According to plaintiffs, the car hit a defect in the roadway (likely a pothole) and the driver lost control of the vehicle. The vehicle jumped the concrete curb, went over the rail, and fell 20 meters onto the roadway below. Plaintiffs allege that there was a steering/braking system malfunction that resulted in loss of steering control, which caused the accident. Opp'n, Ex. B at 3.
Plaintiffs retained Dr. Mihelich to examine the left hand side steering knuckle, a component of the Explorer that plaintiffs contend was defective. Dr. Mihelich is a metallurgist with about 50 years of experience working in metallury. Opp'n at 2. Dr. Mihelich examined the steering knuckle, the lug which broke off from the body of the steering knuckle, and the fillet radius that joined the lug to the body of the steering knuckle. Dr. Mihelich reviewed pictures of the wrecked Explorer, examined the wrecked Explorer and the steering knuckles from the Explorer, and witnessed on April 15, 2005, the metallographic examination, Brinell hardness testing, and the chemical analysis of the lug and the body of the knuckle. Id., Ex. B at 9.
Defendant does not dispute Dr. Mihelich's qualifications as a metallurgist.
Defendant refers to this component as the steering arm. Mot. At 11.
Dr. Mihelich concluded that "[s]everal factors were responsible or contributed to reducing the impact fracture resistance of the steering knuckle:"
• Inappropriate design of the knuckle using too small a fillet radius joining the lug to the body causing a notch effect,
• Presence of a fillet vein surface defect in the too sharp fillet radius which acted to further intensify the notch effect of the fillet radius, and
• Improper foundry practice (too little magnesium added) to achieve the desired uniform distribution of nodular graphite particles typical of a high quality ductile iron,
• Using too high CE [carbon equivalent] level resulting in primary graphite appearing in the microstructure of the knuckle that can contribute to reduced ductility and toughness, and
• Presence of a hard carbide containing phase (pearlite) in the microstructure which reduces ductility and toughness of the casting.
Opp'n, Ex. B at 5.
III. LEGAL STANDARD
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Fed.R.Evid. 702.
The determination of whether expert testimony is admissible "entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-93 (1993). "Daubert's general holding — setting forth the trial judge's general `gatekeeping' obligation — applies not only to testimony based on `scientific knowledge' but also to testimony based on `technical' and `other specialized' knowledge." Kumho Tire Company v. Carmichael, 526 U.S. 137, 141 (1999).
The Supreme Court has established four non-exclusive factors for determining whether scientific evidence is reliable and therefore admissible: whether the scientific theory or technique can be tested; whether the theory or technique has been subjected to peer review and publication; whether a particular technique has a known potential rate of error; and whether the theory or technique is generally accepted in the relevant scientific community. Daubert, 509 U.S. at 587-89.
IV. DISCUSSION
Defendant argues that Dr. Mihelich's testimony regarding the study is inadmissible under Federal Rule of Evidence 702 andDaubert because Dr. Mihelich's "opinions regarding the metal in the left steering arm/knuckle are not founded in reliable scientific techniques and in some cases are not supported by any evidence or scientific findings" and "Mihelich's opinions will not be helpful to the trier of fact because he cannot establish a causal link between the hypothetical `defects' he claims are present [in] the subject steering components and the subject crash." Mot. at 1. Plaintiffs respond that defendant's objections are more appropriately the subject of cross-examination, and that Dr. Mihelich relied upon data of a type that is reasonably relied on by experts in his field. Opp'n at 5, 15.
Defendant's particular objections and plaintiff's responses are as follows.
A. Magnesium content of the iron
Dr. Mihelich opines that the percentage of magnesium, 0.03%, in the steering arm/knuckle was too low. Defendant argues that (1) Dr. Mihelich cannot verify the accuracy of the equipment used to test the metal, (2) the test values for magnesium and sulfur were not sufficiently reliable, (3) Dr. Mihelich did not test for cerium, which would increase the strength of the metal, (4) Dr. Mihelich cannot quantify the amount of reduction of strength due to the alleged low magnesium, and (5) Dr. Mihelich does not have a sufficient basis for saying that 0.03% magnesium is too low.
Plaintiffs argue that (1) Dr. Mihelich is entitled to rely upon the spectrographic testing because it is data of a type reasonably relied on by experts in the field, (2) there is always some margin of error associated with such test results and Dr. Mihelich chose the best method of testing for magnesium and sulfur under the circumstances, (3) Dr. Mihelich explained that he did not test for cerium because it is not typically used in ductile iron components, (4) an expert need not quantify his opinions for them to be admissible, and (5) Dr. Mihelich's 50 years of experience qualifies him to make the determination that 0.03% magnesium is on the low side.
B. Pearlite composition in the iron
Dr. Mihelich states that the presence of a carbide containing phase (called pearlite) reduced the ductility and toughness of the metal. Defendant argues that Dr. Mihelich did not know by how much the pearlite reduced the ductility of the steering arm. Plaintiffs respond that, under Smith v. BMW North America, 308 F.3d 913 (8th Cir. 2002), the fact that an expert cannot quantify the exact amount by which a different design would have reduced the risk of failure or injury is not grounds to exclude the opinion.
C. Alleged fillet radius defect
Dr. Mihelich states that the fillet radius was too small. Defendant argues that (1) Dr. Mihelich is not qualified to testify to the presence of an automotive design defect because he has no specific experience in automotive component design, (2) Dr. Mihelich did not review the material specifications or design drawings for the subject steering knuckle, (3) Dr. Mihelich could not quantify the reduction in strength caused by the design of the fillet radius, (4) Dr. Mihelich admitted that all metals fail at some point, and (5) he did not know, and did not conduct exemplar testing to determine, the particular failing point for the metal in the failed component.
Plaintiffs argue that Dr. Mihelich is qualified to form an opinion on the design of a fillet because, while at university studying metallurgy, he studied "the performance of these various metals under impact loading and using various kinds of notches, and these notches would be like a fillet radius in a part, and the sharper the notch, the more brittle the material becomes." Opp'n at 13. Again, plaintiffs argue that an expert need not quantify his opinions in order for them to be admissible. Plaintiffs further argue that defendant is improperly attacking the sufficiency of Dr. Mihelich's conclusions, rather than focusing on the principles and methodology which are the proper inquiries in a Daubert hearing. Opp'n at 22.
D. Alleged defect in the fillet vein
Dr. Mihelich opines that the presence of a "fillet vein" was a casting defect. Defendant argues that oxidation damaged the component, such that Dr. Mihelich was not able to tell whether there were any fatigue fractures. Further, defendant argues that Dr. Mihelich was not able to quantify the reduction in strength attributable to the alleged fillet vein defect. Plaintiffs respond that Dr. Mihelich admitted that the oxidation made examination of the fracture site more difficult, and this is a proper ground for cross-examination at trial, not exclusion.
The Court concludes that defendant's objections to Dr. Mihelich's testimony are more properly grounds for cross-examination of Dr. Mihelich at trial. Defendant's arguments do not support the exclusion of Dr. Mihelich's testimony altogether. Dr. Mihelich's opinions are based on accepted techniques in the field of metallurgy. Although Dr. Mihelich cannot quantify many of his opinions, that is not a sufficient ground to exclude these opinions. See Smith v. BMW North America, 308 F.3d 913 (8th Cir. 2002) ("That Dr. Erickson was unable to quantify how much of Smith's assumed forward neck flexion occurred before a properly functioning air bag would have deployed, or by how much Smith's forward neck flexion would have been reduced by an air bag, is not grounds to exclude his opinion, based upon factors within his expertise, that to a reasonable degree of medical certainty a properly deploying air bag would have reduced Smith's injuries.")
As to defendant's contention that Dr. Mihelich's testimony cannot be helpful because he cannot establish causation, an "expert's testimony need not go to an ultimate issue to be relevant under Rule 702." Smith v. Ford Motor Co., 215 F.3d 713, 721 (7th Cir. 2000). Dr. Mihelich's testimony is relevant to the issue of whether, from a metallurgical point of view, the composition and design of the left steering knuckle made the component less ductile and tough.
Finally, insofar as defendant objects to Dr. Mihelich's testifying regarding design defects in the design of the knuckle, Dr. Mihelich made clear that his proposed testimony is based on his experience as a metallurgist in assessing what stress is caused on metals given particular designs. So limited, he appears qualified to render an opinion regarding the alleged inappropriate design of the knuckle using too small a fillet radius.
V. CONCLUSION
The Court DENIES defendant's motion to preclude Dr. Mihelich from providing expert opinion testimony.
IT IS SO ORDERED.