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Fourth Circuit Applies Daubert in Reversing and Remanding West Virginia District Court in Favor of Defendants
Howard E. Nease & Nancy Nease v. Ford Motor Company
In November 2012, Howard was involved in an automobile accident involving his recently purchased, used 2001 Ford Ranger pickup truck. Howard was driving about 45-50 miles per hour when he discovered his vehicle would not slow down despite releasing the accelerator pedal. When brakes could not remedy the situation, Howard ran the truck off the road and into a brick wall to avoid hitting pedestrians and other cars. Howard, and his wife, subsequently brought this case against Ford Motor Company (“Ford”) alleging a defectively designed accelerator pedal-to-throttle assembly on the basis of strict liability, negligence, and breach of warranty.
The Neases hired an electrical engineer, Samuel Sero, as expert, to testify towards the alleged malfunction of the truck’s accelerator pedal-to-throttle assembly, stating that it was a design defect with reasonably available and safer alternatives. Sero based his theory on an examination that he conducted personally on Howard’s car, as well as, a “Failure Mode and Effects Analysis” (“FMEA”) which is an internal document used by Ford engineers when designing new products. Prior to trial, Ford moved to exclude Sero’s testimony on two theories: (1) as required by Daubert, Sero’s opinions were not based on any reliable and relevant methodology, backed by testing, scientific literature, peer review, or other qualified factors, Daubert v. Merrell Dow Pharmaceuticials, Inc. 509 U.S. 579, 597 (1993), and (2) that Sero, as an electrical engineer, was not qualified to render an expert opinion on matters of automotive design.
The Court disagreed, and Sero was allowed to testify at trial. After trial concluded in favor of the Neases, Ford filed a Renewed Motion for Judgment, arguing that Sero’s testimony should have been excluded, and without Sero’s testimony, there was no possible support for the Neases’ claim. The trial court denied their motion, and Ford appealed to the Fourth Circuit.
The Fourth Circuit reviewed the trial court’s decision for abuse of discretion, which without clear and erroneous factual findings, would not be overturned. First, the Fourth Circuit addressed the Neases’ allegations that the Daubert standard did not apply to Sero because he was an electrical engineer and not a scientist. Daubert clearly states that, “[i]f scientific, technical, or other specialize 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.” 509 U.S. at 588 (italics added). While by this language, Daubert seems to state that scientific theory is not required for the Daubert standard to apply, the Court also referenced Kumho Tire Co. v. Carmichael in order to hit the point home. 526 U.S. 137, 141 (1999). In fact, in Kumho the testimony being offered was that of an electrical engineer, like Sero, and the Court found that Daubert applied to not just electrical engineers, but “to all expert testimony.” Id. at 147.
In concluding that Daubert applied, the Court then looked to whether the trial court correctly applied the Daubert gatekeeping standard. While a trial court judge has broad discretion in determining the reliability of an expert in light of the specific facts and circumstances of the case, the Daubert standard requires two things (1) a reliable foundation, which is (2) relevant to the task at hand. Daubert, 509 U.S. at 597. To establish relevancy, the expert testimony must have “a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” Id. at 592.
Reliability is not as straight forward. For expert testimony to be reliable, the opinion must be “based on scientific, technical, or other specialized knowledge and not on belief or speculation, and inferences must be derived using a scientific or other valid methods.” Oglesby v. Gen. Motors Corp., 190 F.3d 244, 250 (4th Cir. 1999). The Daubert court outlined 4 non-exclusive, though highly-considered, options for determining relevancy: (1) whether the opinion can be, and has been, tested, (2) whether the opinion has been subjected to peer review and publication, (3) whether the court can and has applied the known or potential rate of error on the method used to derive the opinion, and (4) the Frye standard, whether the opinion has been “generally accepted.” Daubert, 509 U.S. at 593.
Based on this standard, the First Circuit concluded that the trial court did not properly apply Daubert, and Sero’s testimony should have been excluded. First, the Court emphasized that Sero had not tested his theory. In fact, in his examination of the Neases’ truck, he was unable to make the engine malfunction in the way he suggested it had on the road. Moreover, Sero had never tested his theory on other 2001 Ford Ranger pickups. Without reasonable data for which to base his opinions, Sero never allowed his opinion to be scrutinized by publication or peer review, and for that same reason, the opinion had no known rate of error, nor was generally accepted by the community.
The only evidence Sero even had of this malfunction occurring was the FMEA. Sero asserted that the 1987 FMEA, which described the particular malfunction as a potential consequence of “vacuum-activated speed control system[s],” showed evidence that not only did the problem exist, but that Ford was fully aware of this problem. What Sero failed to realized was that the Neases’ 2001 Ford Ranger did not have a “vaccum-activated speed control system,” and therefore, the 1987 FMEA did not apply to the Neases’ truck. Moreover, Ford clarified FMEA’s are used as a before-the-fact brainstorming document for the Ford engineers when they are in the process of designing a product. So a FMEA would not reflect post-market concerns, and even further, Ford had actively implemented numerous mitigating features in its final design for the “vacuum-activated speed control system” in response to the 1987 FMEA.
Because Sero’s testimony was not backed by reliable scientific methods, the Court found that his testimony was not reliable, making it also not relevant. In the Fourth Circuit’s opinion, this constituted clear error because the trial court failed to apply the gatekeeping standard. Without Sero’s testimony, the Court found that the Neases had no proof of their claim, so it not only remanded the case back to the district court, but for an entry in Ford’s favor.
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