Campbell v. Holly F. Fawber, & Gen. Motors Corp.

• Decision Date: 29 March 2013
• Docket Number: Civil Action No. 1:11–1215.
• Citation: 975 F.Supp.2d 485
• Parties: Callan CAMPBELL, Plaintiff, v. Holly F. FAWBER, and General Motors Corporation, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

975 F.Supp.2d 485

Callan CAMPBELL, Plaintiff,

v.Holly F. FAWBER, and General Motors Corporation, Defendants.

Civil Action No. 1:11–1215.

United States District Court, M.D. Pennsylvania.

March 29, 2013.

Richard C. Angino, Angino & Rovner, P.C., Harrisburg, PA, for Plaintiff.

Patrick J. Gibbons, Ryan, Brown, Berger & Gibbons, P.C., Norristown, PA, Dennis P. Ziemba, Michael P. Kinkopf, Eckert Seamans Cherin & Mellott, LLC, Philadelphia, PA, for Defendants.

MEMORANDUM

CHRISTOPHER C. CONNER, District Judge.

Presently before the court in the above-captioned matter are two motions for partial summary judgment, filed by defendant Motors Liquidation Company GUC Trust (formerly known as General Motors Corporation, and hereinafter referred to as “GM”) (Doc. 14), and plaintiff Callan Campbell (“Campbell”) (Doc. 11), and a motion for summary judgment (Doc. 17) filed by GM. The motions have been fully briefed, and are ripe for disposition.

I. BackgroundA. The Automobile Accident

This matter arises out of a single vehicle car accident that occurred on August 17, 2004, in Wiconisco Township, Pennsylvania. Defendant Holly Fawber (“Fawber”) was driving a 1996 GMC Jimmy sport utility vehicle, in which the plaintiff, Callan Campbell, was a passenger. At the time, Fawber and Campbell were 16 and 18 years old, respectively. Campbell was seated in the right front seat of the vehicle, and was wearing her seatbelt. Fawber, while making a lefthand turn from Pottsville Street onto Machamer Avenue, lost control of the vehicle. The Jimmy swerved and rolled in a driver-side leading fashion, meaning that the passenger's side rotated over the driver's side in the roll. The vehicle came to rest on its roof.

Campbell suffered catastrophic injuries as a result of the accident. Though the extent and precise nature of her injuries are disputed, the parties generally agree that Campbell suffered fractures of her C6 and C7 vertebrae, which damaged her spinal cord and rendered her quadriplegic.

B. The Bankruptcy Proceedings

Campbell commenced this action on August 31, 2005, by filing a complaint in the Court of Common Pleas of Lackawanna County, Pennsylvania, alleging negligence against Fawber, and strict liability and negligence against GM. The matter remained exclusively in state court until June 1, 2009, when General Motors Corporation declared bankruptcy and commenced voluntary Chapter 11 filings in the United States Bankruptcy Court for the Southern District of New York, at which point all proceedings and judicial actions against GM were automatically stayed. See11 U.S.C. § 362. On July 5, 2009, the Bankruptcy Court approved GM's asset sale motion. Upon consummation of the asset sale, GM changed its name to Motors Liquidation Company. The Bankruptcy Court established November 30, 2009, as the deadline for filing proofs of claim against Motors Liquidation Company, based upon pre-petition claims. See11 U.S.C. § 502(b)(9). Campbell filed her proof of claim on October 26, 2009. On March 28, 2011, the Bankruptcy Court established the GUC Trust pursuant to the Motors Liquidation Company GUC Trust Agreement. Campbell's claim was then transferred to the GUC trust, making the GUC Trust GM's successor in this matter. On May 31, 2011, the Bankruptcy Court entered an order modifying the automatic stay under § 362. The Court lifted the stay to the extent necessary to allow this action to proceed to final judgment or settlement.

GM removed to federal court on June 27, 2011. See28 U.S.C. § 1334(b) (granting district courts subject matter jurisdiction over cases “arising in or related to” bankruptcy proceedings). By order dated July 22, 2011, this court established filing deadlines for Campbell's amended expert reports, GM's expert reports, and Campbell's rebuttal reports, for depositions of all experts, and for filing dispositive motions.

II. Campbell's Expert Witnesses

GM has moved for summary judgment on the grounds that Campbell's expert witness testimony is inadmissible under Federal Rule of Evidence 702. Rather than challenge the reliability of each expert's testimony in depth, GM bluntly asserts that all of their opinions are unreliable for lack of sufficient “testing.” Accordingly, it is appropriate for the court to discuss at some length the processes and methodologies employed by four of Campbell's expert witnesses.

A. Dr. Michael Freeman

Campbell retained Dr. Michael Freeman to provide an opinion on whether, and to what degree, Campbell's cervical spine injurieswere caused by the collapse of the Jimmy's roof. Dr. Freeman has a Ph.D. in public health, with a specialization in epidemiology, and an M.P.H. in epidemiology and biostatistics. (Freeman CV, Doc. 27–3 at 2). He serves currently as an affiliate professor of epidemiology at Oregon Health & Science University School of Medicine, in the Department of Public Health and Preventive Medicine. ( Id.) Dr. Freeman teaches courses in forensic and trauma epidemiology, with a focus on motor vehicle crash injuries, to graduate medical students, M.P.H. and Ph.D. candidates, and doctors who practice emergency medicine and trauma surgery. (Freeman Report, Doc. 19–13 at 2).

Dr. Freeman has extensive experience studying rollover crashes and car accident-related fatalities, both as a field investigator and analyst, and as a scientist. He is a Special Deputy Sheriff vehicular homicide investigator for the vehicular homicide law enforcement team of Clackamas County, Oregon, and has consulted with the Medical Examiner Division of the Oregon State Police on the subject of forensic trauma epidemiology. ( Id. at 3). Dr. Freeman is also an accredited crash reconstructionist with the Accreditation Commission for Traffic Accident Reconstruction. ( Id.) He has published over 120 scientific papers, abstracts, books, and book chapters, primarily on the topic of motor vehicle crash-related injuries and fatalities, crash reconstruction, injury causation analysis, biomechanics, and forensic epidemiology. ( Id.) He has served more than 300 times as an expert witness on these topics in state and federal courts, as well as in several foreign countries. ( Id.)

Dr. Freeman performed four statistical studies in order to evaluate the strength of association between the degree of roof crush and the odds of sustaining a serious injury. These studies examined data from the National Automotive Sampling System—Crashworthiness Database (“NASS–CDS”). ( Id. at 9). The NASS–CDS is a data set gathered from approximately 5,000 motor vehicle crashes each year. Trained crash investigators and medical examiners log over 800 variables for each crash, including weather conditions, road conditions, the extent of injuries to occupants or pedestrians, and damage to the vehicle. ( Id. at 9).¹

Dr. Freeman's first two studies considered the head and neck injury outcome and risk of death as a result of roof crush, controlling for other accident variables that could affect risk of injury. The third study considered the odds of serious head and neck injury versus no injury for occupants in the same vehicle and depending on the degree of roof crush, controlling for other variables, but matching for roll severity and the roof's strength-to-weight ration (“SWR”). The fourth study considered the risk of serious cervical spinal injury, relative to the occupant's position in the vehicle, depending on whether the vehicle sustained greater than, or less than, six inches of roof crush.

Dr. Freeman examined data from single vehicle rollover crashes involving occupants ages 13 or over who were sitting in the front-right or front-left seats of a car, minivan, pickup truck, or SUV. ( Id. at 11). The studies considered occupants for whom an intrusion of a “specified vehicle component” occurred at their seating position, and who suffered a head, neck or spine injury (“Type M occupants”), and those for whom the specified component did not cause an injury, or the injury caused was not related to the head, neck or spine (“Type O occupants”). The studies excluded major vehicle fires, vehicle immersions, occupants seated in the center seat or in the second row, arrested rollover crashes, and end-over-end rollovers.

Applying these criteria, Dr. Freeman abstracted 3,088 vehicle occupants, 1,118 of whom were Type M occupants and 1,970 of whom were Type O. Within the Type M group, occupants were removed if death, air bag deployment, seatbelt use or roll direction were unknown, or if the vehicle was a convertible. ( Id.) This left 960 Type M occupants to comprise the “cohort study,” wherein their “putative injury exposure level (degree of roof crush) was gathered and categorized, and the outcome of interest was head and neck injury presence and severity.” ( Id.) The Type M occupants were then classified according to the abbreviated injury scale (“AIS”) used in the NASS–CDS, which broadly classifies injury severity as follows: 0: no injury; 1: minor; 2: moderate; 3: serious; 4: severe; 5: critical; 6: maximum; 7: injured, unknown severity. The 0 and 7 categories were removed. The NASS–CDS further classifies injured occupants according to the area of the body injured: 1: head; 2: face; 3: neck (referring to all tissue between the head and thorax, but excluding the spinal column); 4: thorax; 5: abdomen; 6: spine (referring to the cervical, thoracic, and lumbar regions of the spinal column); 7: upper extremity; 8: lower extremity; 9: unspecified. Dr. Freeman calculated a composite score of overall injury severity, called the New Injury Severity Score (“NISS”), which consists of the sum of the squares of the AIS scores of an occupant's three most severe injuries. ( Id.) Dr. Freeman further refined the scoring mechanism by evaluating only injuries to the head or neck (the “HN–NISS”).

Controlling for other variables, Dr. Freeman determined that roof crush of greater than six inches was associated with increased odds of head and neck injury and death. ( Id. at 23)....