Opinion
Civil Action No: 99-3423 Section: "R" (3).
September 11, 2000.
ORDER AND REASONS
Before the Court are plaintiff Stephanie Phillips' motions in limine to exclude or limit testimony of defendant's experts, to strike certain supplemental expert reports, and for partial summary judgment. For the following reasons, the Court grants in part plaintiff's motion in limine to exclude or limit testimony of defendant's experts, grants her motion to strike Mr. Heintz's and Mr. Saiki's supplemental reports, and denies her motion for partial summary judgment.
I. Background
This tragedy arises out of a single-vehicle accident. On September 24, 1999, witnesses observed James Lawrence Fortenberry driving a 1999 Buick Regal LS Sedan on U.S. Interstate 10 West in Jefferson Parish, Louisiana. At first, all appeared normal, but somewhere between the Loyola and U.S. Interstate 310 exits, they saw a "cherry-red" glow under the car. They tried to get Mr. Fortenberry's attention, but to no avail; smoke appears to have blackened the windows to the point that they could not see Mr. Fortenberry. Then near the I-310 exit, the witnesses heard a loud popping noise emanate from the vehicle. The automobile slowed down, then sped up, and the flames increased, fanning from the rear and rising over both sides of the rear deck lid. Burning pieces of the vehicle littered the road. When the automobile eventually came to a stop, the fire rapidly grew in intensity, engulfing the passenger compartment in flames. The automobile then exploded.
While the parties agree that the automobile exploded, they disagree on the cause. plaintiff notes that later inspection of the left engine exhaust manifold revealed a missing section between the number 3 and 5 runners that was several square inches in area with portions showing erosion by exhaust gas. The heat shield covering the manifold was deformed and showed evidence of exhaust gas impingement, indicating that the engine ran for a period of time while the manifold was not present. Plaintiff asserts that exhaust gas from this opening is hot enough to result in degradation of underhood components in the immediate area and result in the ignition of combustible materials.
Defendant offers a different version of events. It suggests that a hole in the exhaust manifold could not have caused this fire and that the fire would not have resulted unless the automobile had been abused. Defendant further suggests that Mr. Fortenberry experienced a hypoglycemic event immediately preceding the fire which prevented him from responding properly to obvious warning signals.
Plaintiff now seeks to exclude or limit the testimony of four of defendant's experts — Robert A. Heintz, Scott J. Saiki, Dr. Francis W. Weir, and Dr. Robert J. Richards. She also seeks to strike Mr. Saiki's supplemental and second supplemental expert reports as well as Mr. Heintz's supplemental report. She further moves for partial summary judgment that General Motors Corporation is solely and completely liable for any and all damages from this accident.
II. Discussion
A. Testimony of Defendant's Experts
As a threshold matter, plaintiff seeks to exclude or limit the testimony of four of defendant's experts — Robert A. Heintz, Scott J. Saiki, Dr. Francis W. Weir, and Dr. Robert J. Richards. Plaintiff argues that these experts offer opinions that they are not qualified to render. A district court has considerable discretion to admit or exclude expert testimony under Federal Rule of Evidence 702. See General Electric Co. v. Joiner, 522 U.S. 136, 138-39, 118 S.Ct. 512, 515 (1997); Seatrax, Inc. v. Sonbeck Int'l, Inc., 200 F.3d 358, 371 (5th Cir. 2000). Rule 702, which governs the admissibility of expert witness testimony, provides that an expert witness "qualified . . . by knowledge, skill, experience, training or education," may testify when specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. FED. R. EVID. 702. See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587, 113 S.Ct. 2786, 2794 (1993). In Daubert, the Supreme Court held that Rule 702 requires a district court to act as a "gatekeeper" to ensure that "any and all scientific evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589, 113 S.Ct. at 2795. See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 1174 (1999) (clarifying that Daubert gatekeeping function applies to all forms of expert testimony). Plaintiff, however, challenges the qualifications of these four experts, not the reliability or relevance of their testimony. Accordingly, the Court decides this motion on that basis.
In assessing these experts' qualifications, the Court notes that its gatekeeping function does not replace the traditional adversary system and the role of the jury within the system. See Daubert, 509 U.S. at 596, 113 S.Ct. at 2798. As the Supreme Court noted in Daubert, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Id. (citing Rock v. Arkansas, 483 U.S. 44, 61, 107 S.Ct. 2704, 2714 (1987)). The Fifth Circuit has added that, in determining the admissibility of expert testimony, a district court must defer to "the jury's role as the proper arbiter of disputes between conflicting opinions. As a general rule, questions relating to the bases and sources of an expert's opinion affect the weight to be assigned that opinion rather than its admissibility and should be left for the jury's consideration." United States v. 14.38 Acres off Land, More or Less Situated in Lefore County, Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir. 1987)). Thus, a witness qualified as an expert in a products liability action is not strictly confined to his area of practice, but may testify concerning related applications; a lack of specialization does not affect the admissibility of the opinion, but only its weight." Wright v. John Deere Co., 935 F.2d 1090, 1100 (10th Cir. 1991) (collecting cases). See also Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 176-77 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air. Corp., 37 F.3d 1069 (5th Cir. 1996) (permitting mechanical engineer who had never designed a press brake to testify as to safety of brake design)
1. Robert A. Heintz
Plaintiff seeks to exclude or limit Mr. Heintz's testimony. She contends that his conclusions regarding an "alert driver" and the implications raised by those statements are beyond his qualifications. (Pl.'s Reply Supp. Mot. Limine at 1.) Specifically, she seeks to exclude the following statements:
1. "The exhaust noise resulting from this would have been immediately noticeable by an alert driver."
2. "Smoke would be generated that would be visible to an alert driver looking in a rearview mirror."
3. "This would allow sufficient time for an alert occupant to exit the vehicle."
4. "The fact that the car was not under control when it came to a stop and there is no indication that Mr. Fortenberry tried to exit the car is further evidence that he was incapacitated by something other than the fire."
5. "Even after the fire started, an alert driver would have sufficient time to recognize the danger, safely stop, and exit the car."
(Pl.s Mem. Supp. Mot. Limine at 2-3.)
Mr. Heintz has worked for General Motors for 34 years and has a mechanical engineering degree from Cornell University. Since 1981, he has been a Staff Analysis Engineer for General Motors' Product Analysis Group. While at General Motors, he has worked on vehicle structural design, fuel system design, and crashworthiness. He has also testified in numerous cases involving vehicle fuel and electrical systems, accident reconstruction, and fire cause and origin.
The Court's review of Mr. Heintz's report and qualifications indicates that he is not qualified to opine that Mr. Fortenberry was "incapacitated by something other than the fire," as he has no medical or other training that would qualify him to render such an opinion. ( Id., Ex. A at 4.) Accordingly, his opinion on this issue is stricken.
Mr. Heintz's opinions as to the conduct of "an alert driver" are also stricken. These statements are an effort to use an "expert" to make counsel's closing argument. Mr. Heintz may state his opinions that the engine light would have gone off prior to a fire and that exhaust noise and smoke would have been produced prior to a fire entering the engine compartment. References, however, to an "alert driver looking in a rearview mirror" and to exhaust noises being "immediately noticeable to an alert driver" are stricken. ( Id., Ex. A at 3.) Mr. Heintz may opine, however, whether smoke would have been visible from a rearview mirror and whether exhaust noise could have been heard inside the vehicle. He may also give his opinion as to whether there was sufficient time for a driver to exit the vehicle before the fire entered the passenger compartment.
2. Scott J. Saiki
As to Scott Saiki, a Senior Staff Analysis Engineer at General Motors who has a masters degree in mechanical engineering from Rennselaer Polytechnic Institute, plaintiff challenges his credentials, argues that his conclusions are based unreliable reports, and seeks to exclude the second paragraph of his report by reiterating her argument regarding comments about "alert drivers." ( Id. at 5-6.) The Court orders these opinions excluded for a different reason. The second paragraph of Mr. Saiki's report is entirely duplicative of Mr. Heintz's report. The Court will not permit cumulative expert testimony, and Mr. Saiki may not testify as to the conclusions in the second paragraph. As to Mr. Saiki's credentials, the Court is satisfied that he may be offered as an expert in automotive engineering. Indeed, plaintiff so concedes in her Reply Memorandum. (Pl.'s Reply Mem. Supp. Mot. Limine at 1.) The Court will allow Mr. Saiki to testify to the other opinions.
3. Dr. Francis W. Weir
Plaintiff also challenges Dr. Weir's testimony to the extent he suggests that Mr. Fortenberry's diabetes could have incapacitated him instead of exposure to fire combustion products prior to his death. (Pl.'s Mem. Supp. Mot. Limine at 7.) Dr. Weir is a pharmacologist, toxicologist, and industrial hygienist. In his testimony he identifies the effects of carbon monoxide on the human body and then analyzes the carboxyhemoglobin level in Mr. Fortenberry's blood. While he is qualified to opine on these matters, he has no expertise that would qualify him to suggest that plaintiff's incapacity was induced by diabetes. His comments on this subject are subject are gratuitous and are therefore excluded.
4. Dr. Robert J. Richards
Finally, plaintiff challenges Dr. Richards' testimony arguing that "Dr. Richards is not sufficiently qualified in the field of endocrinology" to testify. ( Id. at 2-3.) Specifically, plaintiff contends that he has twice failed the board examinations in endocrinology, has only worked in the field for three years, has predominantly treated patients with Type-2 (not Type-1 like Mr. Fortenberry) diabetes, and has never written any medical abstracts on Type-1 diabetes or hypoglycemia. ( Id. at 2.)
The Court disagrees. "[T]he heart of Daubert is relevance and reliability. As long as some reasonable indication of qualifications is adduced, the court may admit the evidence without abdicating its gate-keeping function. After that, qualifications become an issue for the trier of fact, rather than for the court in its gate-keeping capacity." Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 507 (5th Cir. 1999) (citing Daubert, 509 U.S. at 596, 113 S.Ct. at 2798). Since 1998 Dr. Richards has been the Associate Director of the Diabetes Clinic at the Medical Center of Louisiana at New Orleans and an Assistant Professor of Medicine in the Endocrinology Section of LSU Medical Center. In addition, he has published peer review articles in endocrinology. The absence of board certification in endocrinology is not controlling. See id. ("The `emphasis on qualifications over reliability of the expert testimony reflect[s] a pre-Daubert sensibility.'" (quoting Watkins, 121 F.3d at 992)). See also United States v. Crosby, 713 F.2d 1066, 1076 (5th Cir. 1983) (noting district court had qualified a doctor without board certification as an expert); Landry v. Offshore Logistics, Inc., 544 F.2d 757, 759 (5th Cir. 1977) (allowing doctor who was board qualified, but not board certified to testify as an expert); In re Ingram Barge Co., 187 F.R.D. 262, 264 (M.D. La. 1999) (same). While Dr. Richards' credentials as an endocrinologist may not be impressive, the Court finds him sufficiently qualified to render an opinion in the field of endocrinology. Therefore, the Court denies plaintiff's motion to exclude Dr. Richards' testimony.
B. Supplemental Expert Reports
Plaintiff further seeks to strike Mr. Saiki's supplemental and second supplemental expert reports as well as Mr. Heintz's supplemental report because defendant submitted them after the Court's deadline. Federal Rule of Civil Procedure 16(b) authorizes district courts to control and expedite the discovery process through a scheduling order. See FED. R. CIV. P. 16(b). Consistent with this authority, the Court has "broad discretion" to enforce its scheduling order. See Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990) ("[O]ur court gives the trial court `broad discretion to preserve the integrity and purpose of the pretrial order.'" (quoting Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir. 1979))). Rule 16(f) specifically authorizes the Court to sanction a party for failing to comply with its scheduling order by excluding evidence. Rushing, 185 F.3d at 509 ("We will not disturb `a trial court's decision to exclude evidence as a means of enforcing a pretrial order . . . absent a clear abuse of discretion.'" (quoting Geiserman, 893 F.2d at 790)).
In Geiserman, the Fifth Circuit listed four factors that a court should consider in exercising its discretion to exclude evidence: (1) a party's explanation for its failure to timely identify its witnesses and exhibits; (2) the importance of the proposed evidence; (3) potential prejudice in allowing the admission of the exhibits or testimony; and (4) the availability of a continuance to cure such prejudice. Geiserman, 893 F.2d at 790. See also Rushing, 185 F.3d at 509.
After considering these four factors, the Court grants plaintiff's motion to strike Mr. Saiki's and Mr. Heintz's supplemental reports. First, the Court is not satisfied by defendant's belated explanation for its failure to submit the supplemental reports on time. Indeed, the tests, which are the bases for these supplemental reports, were not performed until after the reports were due, even though defendant had long been aware of plaintiff's theories. Further, the tests were performed by General Motor's employees over whom it has control, and the tests were not subject to the vagaries of a third party's schedule. Defendants never sought leave of court to extend the expert report deadline to accommodate these tests or to file "supplemental" reports. Moreover, the importance of the tests "cannot singularly override the enforcement of local rules and scheduling orders." Rushing, 185 F.3d at 509 (quoting Geiserman, 893 F.2d at 792). If the tests were that important, defendant should have conducted them earlier, and if that were not possible, it should have sought the Court's permission to conduct them later. Second, these supplemental reports prejudice plaintiff. The timing of these tests, on the eve of the experts' depositions and after they submitted their reports, would obviously derail the scheduled depositions and suggest the need for a trial delay. The Court further finds it odd that defendant's experts chose to opine first and test later. Although the prejudice from these late reports might be ameliorated by continuance of the trial date, "delaying rulings or trial never is ideal," and the Court refuses to countenance a continuance due to defendant's decision not to perform its tests in a timely fashion. Id. Furthermore, the Court is doubtful of the value of the supplemental reports because they fail to account adequately for the observations of the witnesses. Defendant's proffered scenario requires Mr. Fortenberry to put the car in neutral while traveling at approximately 70 mile per hour and then hit the accelerator for at least two minutes. The police report, however, indicates that the automobile was in "drive" when it came to a stop. Furthermore, the scenario ignores the witness testimony that a loud popping noise emanated from the vehicle after which the automobile slowed down, then sped up and drove another seven miles. Therefore, the Court grants plaintiff's motion to strike Mr. Saiki's and Mr. Heintz's supplemental reports.
C. Partial Summary Judgment
1. Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). Accordingly, a court must be satisfied that no reasonable trier of fact could find for the nonmoving party. In other words, "if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden." Beck v. Texas State Bd. of Dental Exam'rs, 204 F.3d 629, 633 (5th Cir. 2000)
Initially, the moving party bears the burden of establishing that there are no genuine issues of material fact. If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential on which it bears the burden of proof at trial. See id. at 322, 106 S.Ct. at 2552. The nonmovant may not rest upon the pleadings but must identify specific facts that establish a genuine issue exists for trial. See id. at 325, 106 S.Ct. at 2553-54; Rushing v. Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir. 1999)
2. Louisiana Products Liability Act
The Louisiana Products Liability Act ("LPLA") provides that a manufacturer of a product is liable to a claimant for damage "proximately caused" by a characteristic of the product that rendered it "unreasonably dangerous" when the damage arose from a reasonably anticipated use of the product by the claimant. LA. R.S. § 9:2800.54(A). A claimant must prove that the product was "unreasonably dangerous" in one of the following four ways: (1) in construction or composition; (2) in design; (3) because of inadequate warning; or (4) because of nonconformity to an express warranty. Id. § 9:2800.54(B). These are the "exclusive theories of liability for manufacturers for damage caused by their products" under Louisiana law. Id. § 9:2800.52. See also Brown v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 526 (5th Cir. 1995); Lewis v. Intermedics Intraocular, Inc., 56 F.3d 703, 706 (5th Cir. 1995)
Here, plaintiff asserts the product was unreasonably dangerous due to its design and composition or construction. A product is unreasonably dangerous in design if, at the time the product left its manufacturer's control:
(1) There existed an alternative design for the product that was capable of preventing the claimant's damage; and
(2) The likelihood that the product's design would cause the claimant's damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product.
LA. R.S. § 9:2800.56. To withstand a motion for summary judgment on a claim of defective design, the claimant must present evidence that would enable a reasonable trier of fact to conclude that safer alternative designs were in existence at the time the product left the manufacturer's control and that the risk avoided by such designs outweighed the burden of adopting the designs. See Morgan v. Gaylord Container Corp., 30 F.3d 586, 590 (5th Cir. 1994); McKey v. General Motors Corp., 691 So.2d 164, 170 (La.App. 1st Cir. 1997)
A product is unreasonably dangerous in construction or composition if "at the time the product left its manufacturer's control, the product deviated in a material way from the manufacturer's specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer." LA. R.S. § 9:2800.55.
To prove the automobile was unreasonably dangerous, plaintiff cites Dr. Courtney Busch's testimony that the exhaust manifold was defectively constructed. Merely citing Dr. Busch's testimony, however, is insufficient to merit summary judgment. As plaintiff acknowledges, defendant's expert Al Wilinski "disputes Dr. Busch's ultimate conclusion that a casting defect existed." (Reply Mem. Supp. Mot. Partial Summ. J. at 12.) Accordingly, there is a genuine issue of material fact that precludes partial summary judgment.
Alternatively, plaintiff asserts that she merits partial summary judgment under the doctrine of res ipsa loquitur. Res ipsa loquitur is a rule of circumstantial evidence, which "must be sparingly applied." Spott v. Otis Elevator Co., 601 So.2d 1355, 1362 (La. 1992). It allows a court to infer negligence on the part of a defendant if the facts indicate that, in the absence of other equally probable explanations offered by credible witnesses, the defendant's negligence is the probable cause of the accident. See id.; Aetna Life Cas. Co. v. Ami-Electrical Hoist Serv., 637 So.2d 173, 175 (La.App. 3d Cir. 1994). Res ipsa loquitur should be applied only "if the circumstances are such that the only reasonable and fair conclusion is that the accident was due to the breach of duty on defendant's part." Spott, 601 So.2d at 1362. The initial burden of proof is on the plaintiff, see id., and the plaintiff must exclude all other reasonable hypotheses for the cause of the accident except defendant's negligence. See Aetna Life Cas. Co., 637 So.2d at 175.
To prevail, plaintiff must exclude all other reasonable hypotheses for the cause of the fire. Defendant proffers expert testimony from Robert Heintz that the fire in plaintiff's vehicle was the result of Mr. Fortenberry's continuing to operate the vehicle after it had an obvious problem. The Court cannot determine on this record that defendant's theory is so unreasonable that it must be disregarded. Therefore, the Court denies plaintiff's motion for summary judgment.
III. Conclusion
For the foregoing reasons, the Court grants in part plaintiff's motion in limine to exclude or limit testimony of defendant's experts, grants her motion to strike Mr. Heintz's and Mr. Saiki's supplemental reports, and denies her motion for partial summary judgment.