Last month, the Tenth Circuit reversed a significant judgment against Ford Motor Company in a rollover accident. Hoffman v. Ford Motor Co., No. 10-1137, 2012 WL 3518997, 2012 U.S. App. LEXIS 17215 (10th Cir. Aug. 16, 2012) (unpublished), rev’g 690 F. Supp. 2d 1179 (D. Colo. 2010). The plaintiff, Erica Hoffman, sustained severe injuries, with resulting quadriplegia, when she was thrown out of the passenger seat, and out of her parents’ 1999 Mercury Cougar, during the rollover.
Hoffman sued Ford Motor Company on the claim that the seatbelt, which she claims to have been wearing, released during the accident. Hoffman’s expert witness, Dr. Craig Good opined that Hoffman’s seatbelt “most probably” unlatched during the accident due to a design defect that permitted unlatching under various inertial forces. Dr. Good supported his opinion by testing that sought to show the threshold of inertial forces under which unlatching occurred. Good, however, lacked rollover crash data, and he thus used data from crash tests conducted only in the horizontal plane, rather than the more complex forces at work in a rollover situation. From the “planar” data, Good concluded that Hoffman’s accident presented sufficient force to cause the inertial unlatching of her seatbelt during the accident. The jury found Ford liable; the verdict, molded for comparative negligence, amounted to 4.5 million dollars.
Ford had objected, under Rule 702, to Good’s testimony, and to his extrapolation of his test data from a horizontal test scenario to the three-dimensional array of forces involved in the actual rollover accident. The gravamen of Ford’s complaint was that Good had failed to show the levels of acceleration needed to induce inertial unlatching in the laboratory in the real-world setting of Hoffman’s accident.
The panel of the Tenth Circuit, divided 2 to 1, agreed with Ford that the trial judge had not been:
“a sufficiently exacting gatekeeper; Daubert requires more precision. Good failed to present a scientific connection between the accelerations he found necessary to inertially unlatch buckles tested in the laboratory and accelerations that occurred could have occurred on Erica’s buckle during the rollover. As a result, his opinion (that Erica’s buckle was defective because it inertially unlatched during the accident) should not have been admitted at trial.”
Hoffman, 2012 U.S. App. LEXIS 17215, *4-5. Because Good’s opinion was necessary to support plaintiff’s recovery, and because there was no other evidence to support the claim of design defect, the Circuit reversed and remanded with instructions that judgment be entered in favor of Ford.
The Hoffman decision does not really broach new ground in the law of expert witnesses. The law requires that testing data bear on the situation in which the product supposedly malfunctioned. The opinion, however, has already had the salutary effect of causing the newly assigned trial judge to Watson v. Dillon Companies, to reconsider the previous Rule 702 rulings in this diacetyl consumer case.
Chief Judge Wiley Daniel took over the case for trial, when Senior Judge Miller assumed inactive senior status. Plaintiff Watson claims lung injuries from diacetyl inhaled in the course of consuming upwards of 7,000 bags of popcorn, over seven years. Judge Miller heard, and largely denied, defendants’ 702 motions. Watson v. Dillon Companies, Inc., 797 F. Supp. 2d 1138 (D.Colo. 2012). Chief Judge Daniel found the Hoffman precedent sufficiently on point to the challenged diacetyl exposure assessment, that he invited renewed argument on the challenges to plaintiffs’ expert witnesses. Order of Aug. 29, 2012.
In Chief Judge Daniel’s words:
“After reviewing the Tenth Circuit’s recent pronouncement on Daubert challenges and the admissibility of expert testimony at trial, I reexamined pertinent documents in this matter. Specifically, I reread Judge Miller’s June 22, 2011 order denying the motions to exclude expert testimony of Plaintiffs’ expert witnesses along with the opinion issued by the United States District Court for the Eastern District of Washington in Newkirk v. ConAgra Foods, Inc., 727 F. Supp. 2d 1006 (E.D.Wash. 2010). I also revisited the material submitted by Defendants surrounding the issue of the reliability of Dr. Martyny’s testing of diacetyl levels at Plaintiffs’ home, as Plaintiffs’ expert witnesses based some of their opinions on these test results.
I find that the Hoffman opinion may impact previous expert witness rulings including, but not limited to, Dr. David Egilman’s opinions. Accordingly, on Tuesday, September 4, 2012, prior to the commencement of jury selection in this matter, the parties shall be prepared to discuss these issues and how they may impact the trial.”
Along with the encouragement provided by the Hoffman case, the Chief Judge may have been moved to revisit the 702 issues by a defense filing that challenged the plaintiffs’ exposure level evidence. The defendant filed a motion in limine to preclude plaintiffs’ expert witnesses’ reliance upon data generated by an Innova Model 1312 Photoacoustic Multi-Gas Monitor. The court denied this motion, with leave to raise it at trial, but also precluded mention of the testing in front of the jury until the evidentiary matter is resolved. Order of June 22, 2012.
It appears that the plaintiffs may have withdrawn the challenged evidence, which if true, will have significance beyond this case, given the media and regulatory fora sought out by Dr. Egilman and his colleagues.
Let us hope that the Hoffman opinion inspires the court to be the sufficiently exacting gatekeeper required by law.
