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Ruark v. BMW of North America, LLC

United States District Court, Fourth Circuit

January 30, 2014

DARIN RUARK, Plaintiff,
v.
BMW OF NORTH AMERICA, LLC, Defendants.

MEMORANDUM

Ellen Lipton Hollander United States District Judge

This suit arises out of a single-vehicle accident that occurred on July 30, 2006. Plaintiff Darin Ruark, then a 17-year-old rising high school senior, suffered a catastrophic neck injury on that date, when the 1995 BMW 325is coupe (the “subject vehicle”) in which he was riding as a front-seat passenger experienced a rollover, either two or three times. Plaintiff, who was wearing his seat belt, was in the trailing position in the rollover sequence and, during the first rollover, his head came in contact with the roof of the BMW. As a result of the accident, plaintiff’s cervical spine was fractured at C5/6, rendering him a quadriplegic.[1]

Following the accident, plaintiff filed suit against BMW of North America, LLC, the distributor of the subject vehicle, and BMW AG, the manufacturer of the subject vehicle (collectively, “BMW”), alleging, inter alia, that the subject vehicle was defective and unreasonably dangerous. ECF 2.[2] In sum, plaintiff claims that he was injured as a result of the failure of the occupant restraint to keep him firmly in his seat, and because the strength-to-weight ratio (“SWR”) of the roof was deficient, causing the roof to intrude into the passenger compartment during the rollover, where it came into contact with plaintiff. BMW disputes those contentions. With regard to the roof crush, BMW maintains, inter alia, that the SWR met federal standards and that the roof intrusion occurred after plaintiff had already sustained his catastrophic spinal injuries. In its view, a stronger roof would not have prevented plaintiff’s injury.

At the trial, scheduled to begin in May, the parties intend to rely heavily on expert testimony, and each side has filed a motion seeking to exclude certain expert opinions proffered by the opposing party. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993); Fed.R.Civ.P. 702. In particular, defendant filed a motion to exclude certain of the expert opinions of Gerald Rosenbluth and Stephen Batzer, Ph.D, P.E. (“BMW Motion, ” ECF 113), supported by a Memorandum (“BMW Memo, ” ECF 113-1) and voluminous exhibits. Plaintiff opposes that motion (“Ruark Opp., ” ECF 120), and BMW has replied (“BMW Reply, ” ECF 122). In addition, plaintiff filed a motion to exclude three aspects of the causation testimony of Robert Banks, M.D. (“Ruark Memo, ” ECF 114), supported by exhibits. BMW opposes that motion (“BMW Opp., ” ECF 119).

The Court held an evidentiary hearing on January 16, 2014, [3] at which three witnesses testified: Dr. Batzer, Dr. Banks, and Jeffrey Croteau, a mechanical engineer and expert for the defense. During the hearing, counsel for plaintiff withdrew several of his Daubert challenges.[4]As a result, the issues at the hearing were substantially narrowed.

Remaining for resolution are: (1) BMW’s objection to Dr. Batzer’s testimony regarding a reasonable alternative design of the vehicle’s A-pillars which, according to plaintiff, would have strengthened the roof; and (2) plaintiff’s objection to Dr. Banks’s testimony about conclusions he drew from the presence of two marks on the interior of the vehicle, allegedly imprinted from a hat found in the vehicle, and which may have been worn by plaintiff at the time of the crash.[5]

After setting forth the governing standards, I will describe each expert’s methodology and conclusions and then determine the admissibility of the challenged opinions.

Standard of Review

Under Federal Rule of Evidence 104(a), the court is responsible for determining “preliminary questions concerning the qualification of a person to be a witness” and “the admissibility of evidence, ” including the admissibility of expert testimony under Federal Rule of Evidence 702. “The party seeking admission of the expert testimony bears the burden of establishing admissibility by a preponderance of the evidence.” Fireman’s Fund Ins. Co. v. Tecumseh Prods. Co., 767 F.Supp.2d 549, 553 (D. Md. 2011); see Daubert, 509 U.S. at 590; Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001); Maryland Casualty Co. v. Therm-O-Disc., Inc., 137 F.3d 780, 783 (4th Cir. 1998); Casey v. Geek Squad ® Subsidiary Best Buy Stores, L.P., 823 F.Supp.2d 334, 340 (D. Md. 2011) (Grimm, J.).

Fed. R. Evid. 702 provides that a properly qualified expert witness may testify regarding technical, scientific, or other specialized knowledge in a given field if it would assist the trier of fact in understanding the evidence or to determine a fact in issue. The rule “was intended to liberalize the introduction of relevant expert evidence.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999). Federal Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

In Daubert, 509 U.S. at 597, the Supreme Court held that scientific evidence is admissible under Rule 702 if “it rests on a reliable foundation and is relevant.” The Supreme Court explained that expert scientific testimony must be grounded “in the methods and procedures of science, ” and it must be something more than subjective belief or unsupported assumptions. Id. at 589–90. Moreover, the evidence or testimony must be relevant to the extent that it will “assist the trier of fact to understand the evidence or to determine a fact in issue.” Id. at 591; see also United States v. Forrest, 429 F.3d 73, 80–81 (4th Cir. 2005). In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999), the Supreme Court extended the principles pertaining to scientific expert testimony to other expert testimony requiring technical or specialized knowledge.

Under Daubert, the trial court serves as the gatekeeper, making a pretrial determination “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.” 509 U.S. at 592–93. This gatekeeper role helps ensure that the jury hears reliable and relevant evidence that will assist the jury in factual determinations, clarify issues, and has probative value. Id. at 596. As to reliability, Daubert articulated five factors that the trial court should consider in evaluating the reliability of an expert’s reasoning or methodology: (1) whether the particular scientific theory has been or can be tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error; (4) whether there are standards controlling the method; and (5) whether the technique has gained general acceptance in the relevant scientific community. Daubert, 509 U.S. at 593–94; see United States v. Crisp, 324 F.3d 261, 265–66 (4th Cir. 2003).

As a whole, the factors are meant to ensure that “an expert, whether basing his testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152. The factors are meant to be “helpful, not definitive, ” and not all factors necessarily apply in a given case. Id. at 151. Indeed, the Supreme Court has said that the factors are not a “checklist.” Id. at 150. Regardless, the court “should meticulously focus on the expert’s principles and methodology, and not on the conclusions that they generate.” McDowell v. Brown, 392 F.3d 1283, 1298 (11th Cir. 2004).

As indicated, to satisfy the admissibility requirements of Rule 702, an expert’s opinion must be “based upon sufficient facts or data.” Fed.R.Evid. 702. An expert must also opine based on reliable principles and methods, applied reliably to the facts. With regard to an expert’s qualifications, the Advisory Committee’s notes to Rule 702 provide that experience alone, or in conjunction with “other knowledge, skill, training or education, ” can provide sufficient foundation for expert testimony. See Kumho Tire, 526 U.S. at 156 (stating that “no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience.”). On the other hand, an expert witness may not offer an opinion where the subject matter goes beyond the witness’s area of expertise. See Berry v. City of Detroit, 25 F.3d 1342, 1351 (6th Cir. 1994); see also Smith v. Central Admixture Pharm. Servs., Inc., 2010 WL 1137507, at *3 (D. Md. Mar. 19, 2010) (“It is well established that ...


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