Zaremba v. General Motors Corp.

Decision Date13 February 2004
Docket NumberDocket No. 03-7565.
Citation360 F.3d 355
PartiesRobert ZAREMBA, Tomasz Tylenda, Estate of Arthur Pietraszko, Zdzislaw Pietraszko and Alicja Pietraszko, individually and as the Parents of Arthur Pietraszko, and Alicja Pietraszko as the Administratrix of the Estate of Arthur Pietraszko, Plaintiffs-Appellants, v. GENERAL MOTORS CORPORATION, John Does 1-5 and ABC Corporation, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Robert A. Skoblar (Brent Barton, on the brief), Englewood, NJ, for Appellants.

Loren H. Brown (Joseph G. Finnerty, Jr., Christopher Campbell, of counsel) Piper Rudnick, LLP, New York, NY, for Appellees.

Before: CARDAMONE* and CABRANES, Circuit Judges, and MUKASEY, District Judge.**

JOSÉ A. CABRANES, Circuit Judge.

The question presented is whether there was error in a decision by the United States District Court for the Eastern District of New York (Charles R. Wolle, Judge of the United States District Court for the Southern District of Iowa, sitting by designation) to exclude the testimony of plaintiffs' experts as unreliable and to enter summary judgment for defendant General Motors Corp. ("GM").

Background

On March 18, 1996 around 2:00 a.m., the three plaintiffs — two passengers and the driver of a 1994 Pontiac Trans Am car (the "Trans Am") — were involved in a one-car rollover accident. The driver had a blood alcohol content of .172, and all three occupants were unbelted. While driving at speeds approaching 100 mph, the driver lost control at a fork in the road, and the Trans Am struck a curb, rolled, and eventually crashed into an overpass railing. The driver was killed, the back seat passenger suffered severe brain damage, and the front seat passenger escaped with soft tissue injuries.

Some time prior to the accident, the Trans Am had been "totaled" by a prior owner; one of the plaintiffs purchased the Trans Am in 1995 and had it rebuilt. The Trans Am was a "T-top" model, with two removable glass roof panels. On a T-top car, the panels are separated at the center-line of the roof by a longitudinal bar that connects the top of the windshield to the top of the rear hatch. When the T-top panels are removed, the effect is an open-air environment similar to a convertible, but with a bar running down the center of the car where the roof would otherwise be.

Plaintiffs originally brought an action in New York state court, alleging that they were injured because of a design defect in the Trans Am, and GM removed to district court. Plaintiffs focused on two theories of design defect that they claim enhanced the injuries they sustained in the crash: a substandard roof design, and the absence of laminated glass in the side windows, roof, and rear hatch. Plaintiffs' theory of liability is as follows. (1) During the accident, the Trans Am's T-top panels became detached and shattered, and the side and rear windows shattered. (2) The driver and backseat passenger were both ejected through the portals created by the detached panels and shattered glass, and both were injured by contact with hard surfaces outside the car: The driver was ejected through the roof, and hit his head on a guardrail outside the vehicle, while the backseat passenger was ejected through the glassless rear hatch and landed in the road. (3) The Trans Am could have had an alternative safer design in which (a) instead of a single longitudinal bar connecting the windshield to the rear hatch along the center of the car, there were two longitudinal bars or "roof rails," one along each side of the car; and (b) the side and rear windows and T-top panels, instead of being made of tempered glass were made of laminated glass, which is allegedly more resistant to shattering. (4) If plaintiffs had been driving a vehicle of the alternative safer design, they would not have sustained the injuries they did.

In support of their theories of design defect, plaintiffs intended to call, as expert witnesses at trial, Donald Phillips and Joseph Burton. Phillips, an engineer, would testify as to his reconstruction of the accident and as to an alternative safer design. Burton, a medical doctor and biomechanical expert, would testify that plaintiffs' injuries would not have been so serious if they had been riding in Phillips's alternative design.

GM challenged the testimony by Phillips and Burton as inadmissible under the Federal Rules of Evidence, contending that the proffered testimony was not grounded in a reliable methodology. The District Court agreed, holding that plaintiffs had not met their burden of showing that the proffered opinions satisfied Federal Rule of Evidence 702. First, the Court found that Phillips (1) had not examined or tested the Trans Am;1 (2) had no measurements or calculations to support his theory of how the accident occurred; (3) made no drawing or model ("prototype") of his hypothetical alternative design for a Trans Am; (4) conducted no test of his design; (5) offered no calculations in support of the safety of his design; (6) had not subjected his alternative design to peer review and evaluation; and (7) presented no evidence that other designers or manufacturers in the automobile design community accepted the untested propositions underlying his opinions. The Court concluded that "[e]ssentially the Phillips design has no concrete basis in reality."

With respect to Burton, the Court found that (1) his opinions were speculative because they were based on Phillips's unsupported conjecture of how the accident occurred; (2) Burton could not say with sufficient certainty when during the rollovers and final crash the plaintiffs sustained their injuries, how their bodies moved within the vehicle, or when they were ejected, if ejected in the way Burton described; and (3) Burton was on "even shakier ground" in opining what injuries plaintiffs would have sustained had Phillips's hypothetical alternative design been used.

The District Court concluded that, while Phillips and Burton were "qualified experts in their fields," their testimony was "based on unfounded speculation and [was] unreliable under Daubert principles." After its exclusion of the testimony of plaintiffs' experts, the Court granted summary judgment to defendant.

Discussion

We review a district court's decision to exclude expert testimony for abuse of discretion, Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997), and we have explained that "[a] decision to admit or exclude expert scientific testimony is not an abuse of discretion unless it is `manifestly erroneous,'" Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir.2002).

Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert testimony, provides:

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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed.R.Evid. 702. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court held that the Federal Rules of Evidence "assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." The Court explained in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), that the objective of the "gatekeeping" requirement of Daubert and Rule 702 is "to make certain that an expert, whether basing 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."

In Kumho Tire, the Supreme Court held that the trial judge's gatekeeping obligation applies not only to testimony based on "scientific" knowledge, as in Daubert, but also to testimony based on "technical" or "other specialized" knowledge. Id. at 141, 119 S.Ct. 1167. The Court emphasized that the test for reliability is "flexible," id., and stated that a trial judge may, but need not, consider the specific factors identified in Daubert:

(1) whether a theory or technique can be and has been tested;

(2) whether it has been subjected to peer review and publication;

(3) whether it has a high known or potential rate of error; and

(4) whether it is generally accepted in the relevant scientific community.

Id. at 149-50, 119 S.Ct. 1167 (citing Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786). A district court should consider the Daubert factors "where they are reasonable measures of the reliability of expert testimony," id. at 152, 119 S.Ct. 1167; the list of factors "neither necessarily nor exclusively applies to all experts or in every case," id. at 141, 119 S.Ct. 1167. Notably, the trial judge has "the same kind of latitude in deciding how to test an expert's reliability ... as it enjoys when it decides whether that expert's relevant testimony is reliable." Id. at 152, 119 S.Ct. 1167.

We cannot say that the District Court committed manifest error in excluding the testimony of plaintiffs' experts. As an initial matter, we note that the reliability of Phillips's testimony is the central issue on this appeal. If his testimony regarding a safer alternative design is speculative and unreliable, then Burton's testimony — that the hypothetical design would have reduced the injuries in this accident — is even more so.

Plaintiffs have satisfied none of the four factors identified in Daubert with respect to Phillips's testimony about a safer alternative design: (1)...

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