In re Yamaha Motor Corp. Rhino ATV Prods. Liab. Litig.

• Decision Date: 06 September 2011
• Docket Number: Master File No. 3:09–MD–2016–JBC.MDL No. 2016.
• Court: U.S. District Court — Western District of Kentucky
• Parties: In re YAMAHA MOTOR CORP. RHINO ATV PRODUCTS LIABILITY LITIGATION.This Document Relates to All Cases.

816 F.Supp.2d 442

In re YAMAHA MOTOR CORP. RHINO ATV PRODUCTS LIABILITY LITIGATION.This Document Relates to All Cases.

Master File No. 3:09–MD–2016–JBC.MDL No. 2016.

United States District Court, W.D. Kentucky,Louisville Division.

Sept. 6, 2011.

Elizabeth J. Cabraser, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA, Linsey Walker West, Dinsmore & Shohl LLP, Lexington, KY, Paulina Do Amaral, Lieff, Cabraser, Heimann & Bernstein, LLP, New York, NY, Jennifer A. Moore, Grossman & Moore, PLLC, Louisville, KY, for Yamaha Motor Corp. Rhino ATV Products Liability Litigation.

MEMORANDUM OPINION AND ORDER

JENNIFER B. COFFMAN, District Judge.

Pending before the court are the plaintiffs' motions to exclude the testimony of Robert Larson, R. 2364, Eddie Cooper, R. 2364, and Kevin Breen, R. 2434. Also pending are the motions of defendants Yamaha Motor Co., Ltd., Yamaha Motor Corp., U.S.A., and Yamaha Manufacturing Corp. of America (collectively “Yamaha”) to exclude the proposed testimony of James Williams, R. 2371, Catherine Downs, R. 2370, William Kitzes, R. 2369, and Ronald Carr, R. 2372.

This is a products-liability MDL involving an off-road vehicle called the “Rhino” that is designed, manufactured, marketed, and distributed by Yamaha. The plaintiffs in these cases allege that the Rhino was defectively designed and that the defects caused them injury. Although the precise mechanism of injury varies across cases, in general the plaintiffs allege that the Rhino rolled over unexpectedly, causing crushing injuries to their extremities. These cases were consolidated within this MDL by the Judicial Panel on Multidistrict Litigation on February 13, 2009, 597 F.Supp.2d 1377 (J.P.M.L.2009). R. 1.

The pending Daubert motions present a variety of complex issues, some of which are appropriately before this court and others that will be left for the various transferor courts after remand. First, it is important to note that although the Federal Rules of Evidence and the requirements of Daubert will apply to all cases, each case will be governed by state substantive laws. To the extent these laws vary, considerations such as the relevance of the challenged testimony can vary as well. See In re Diet Drugs Products Liability Litigation, 2000 WL 876900 (E.D.Pa. June 20, 2000). Second, in several cases, the expert opinions challenged depend upon the facts in each particular case. Some experts have not fully formulated their opinions, but rather have provided a sketch of how they will go about formulating their opinions once presented with a specific case. The court addressed these issues at the start of the Daubert hearing held on August 2–3, 2011, and encouraged the parties to indicate whether any of the motions would be more appropriately heard by the transferor courts. The court also reminded the parties that the failure to file Daubert motions in anticipation of the hearing was without prejudice to their right to file a non-duplicative motion after remand. Finally, at the close of the hearing, the court gave the parties the opportunity to file supplemental responses and replies to all motions under consideration. R. 2603.

a. Robert Larson

The plaintiffs have moved to strike a portion of the testimony offered by Robert Larson. The plaintiffs are not challenging Larson's qualifications, but rather the methodology and design of a particular test that underlies a portion of his opinions. For the reasons discussed below, the motion will be denied.

Robert Larson is an engineer at Exponent, an engineering and scientific consulting firm that, among other things, conducts third-party vehicle tests and accident reconstructions. At Yamaha's request, Larson ran a series of tests on the Rhino to determine whether a rollover crash would cause an occupant's limbs to leave the passenger compartment of the vehicle. The plaintiffs challenge the portion of Larson's testimony that is based on the results of these tests, known as the sled tip-up tests (“STU tests”). In the test, Larson placed two crash test dummies in a Rhino 660 and attached the Rhino to a movable “sled.” The sled was accelerated to 27 mph laterally (i.e., it moved sideways) and then brought to a stop using brakes on the sled, at which point the Rhino's momentum would tip it over. The positions of the dummies after the crash were then photographed.

The plaintiff's primary challenge to the STU tests relates to Eddie Cooper's later use of it in his seatbelt analysis (discussed below). Indeed, although the plaintiffs spend most of their brief criticizing the STU tests, the vast majority of it is inapplicable to Larson at all. The only portion that could be said to criticize Larson's methodology or proposed testimony is the plaintiffs' challenge to the Rhino's lateral movement. R. 2364 at 9–10.

Larson's methods are acceptable under Daubert. Sled testing is a well-accepted method of analyzing vehicle performance during an accident. Public Citizen, Inc. v. NHTSA, 374 F.3d 1251, 1254 (D.C.Cir.2004). Larson clearly documented his methods and results and explained his reason for choosing a sideways sled orientation. The plaintiffs' critique of this method is nothing more than a vague, unsupported suggestion that the sled's orientation might overstate the forces acting on the seatbelt. This criticism has nothing to do with the conclusions reached by Larson regarding occupant containment. To the extent this element may relate to occupant containment, the plaintiffs will be free to inquire into it on cross-examination, but it does not call the reliability of his methods into question.

b. Eddie Cooper

The plaintiffs have moved to strike the testimony of Eddie Cooper. They are not challenging Cooper's qualifications, but rather the methodology and design of certain tests that underlie his opinions. For the reasons discussed below, the motions will be denied in part, without prejudice to their reassertion in the transferor courts.

Eddie Cooper is the Chief Technical Officer of B33 Consulting, Inc. He specializes in “failure analysis of vehicles, vehicle components, and vehicle systems.” R. 2437, Exh. A at 12. Specifically, Cooper is an expert in seatbelt design, construction, and evaluation. At Yamaha's request, he conducted a series of tests on the Rhino's seatbelt system. These included a retractor lock-up test and a belt load study. Cooper also proposed a series of case-specific tests including belt-fit and inversion studies. In addition, he analyzed the seatbelts used in Larson's STU tests.

In his report, Cooper reached several global conclusions. He found (1) that the seatbelts used in the Rhino were not defectively designed and provided “reasonably safe occupant restraint;” (2) that the Rhino's cinching latch plate in conjunction with the “web-sensitive-only retractor” was appropriate; (3) that the retractor is not prone to excessive payout, and (4) that the “geometry of the anchorages for the Yamaha Rhino seat belt system does not allow excessive excursion of the occupant or otherwise result in an unsafe design.”

In their brief, the plaintiffs primarily challenge Cooper's use of the STU tests in his seatbelt analysis. According to the plaintiffs, the STU tests “provide Mr. Cooper with the necessary foundation for his opinions in this case, namely that there will be marks on the webbing of the seat belt as a result of use after a rollover. Testimony concerning these tests and their purported results, which Mr. Cooper has used as the sole basis for his testimony in every case he has been retained with the exception of one in which the occupants were both unbelted, should be excluded....” The remainder of the plaintiffs' brief is dedicated almost exclusively to the STU tests. At the Daubert hearing, however, the plaintiffs shifted focus to Cooper's underlying premise that he can determine whether an occupant was wearing his seatbelt based on marks found on the belt's webbing. According to the plaintiffs, “What we are challenging on Mr. Cooper is his technique, which is to look for the presence of what he calls loading marks on the actual seat belt webbing.”

Yamaha defends Cooper's use of the STU test and contends that the plaintiffs' objections to Cooper's opinions regarding “loading marks” are premature. With respect to Cooper's reliance on the STU tests, Yamaha notes that the tests form only a portion of the basis for Cooper's opinions. His conclusions about the use (or non-use) of a seatbelt in any particular case will be based on several tests and studies, says Yamaha, not just the STU test results. Yamaha also notes the long history of using sled testing in the automotive and vehicle industries and argues that the plaintiffs' primary criticism of the tests as they relate to Cooper—that the seatbelts were not instrumented—is a “red herring.” R. 2437 at 20 (“[W]hen a Rhino occupant moves laterally, they engage the hip restraint attached to the seat, which reduces the lateral acceleration and thus the belt loads. If, however, some of that lateral acceleration is transferred forward (or longitudinally), the load forces on the belt will be higher, making it even more likely that belt loading marks will be created.”).

Yamaha also emphasizes that Cooper's testimony is highly dependent upon case-specific factors. Cooper's “seat belt use and performance opinions, and the methods he uses to arrive at them, are driven by the facts of a particular case.... In each individual case, Cooper performs detailed vehicle and belt inspections ... conducts surrogate studies (when appropriate), and reviews pertinent testimony, witness statements, accident reports, medical records, and other physical evidence in and around the incident location, where available.” Id. at 3, 6.

This court agrees that any analysis of Cooper's testimony is premature. Despite the plaintiffs' initial claims to the contrary, it is apparent that his testimony is based upon a multitude of sources, not...