Roe v. FCA US LLC

42 F.4th 1175

Cindy ROE, Plaintiff - Appellant.

v.FCA US LLC, f/k/a Chrysler Group LLC, f/k/a Chrysler LLC, f/k/a Daimler Chrysler, Defendant - Appellee.

No. 21-6073

United States Court of Appeals, Tenth Circuit.

FILED August 2, 2022

Rosalind B. Bienvenu, Durham, Pittard & Spalding, LLP, Santa Fe, New Mexico (Caren I. Friedman and Justin R. Kaufman, Durham, Pittard & Spalding, LLP, Santa Fe, New Mexico, and David T. Bright, Sico Hoelscher Harris, Corpus Christi, Texas, with her on the briefs), for Plaintiff-Appellant.

Ryan C. Bueche, Germer Beaman, & Brown, PLLC, Austin, Texas (Robert G. Sonnier, Germer Beaman & Brown, PLLC, Austin, Texas, and Heather L. Hintz and Thomas G. Wolfe, Phillips Murrah, P.C., Oklahoma City, Oklahoma, with him on the brief), for Defendant-Appellee.

Before MATHESON, EBEL, and BACHARACH, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-Appellant Cindy Roe suffered serious injuries after her Jeep Grand Cherokee unexpectedly backed over her. After the accident, she filed a lawsuit in federal district court against the manufacturer of her vehicle, FCA US ("FCA"), alleging that the shifter assembly in her vehicle had been defectively designed in that it could be perched into a "false-park" position where the vehicle appears to be in park, but is actually in an unstable position that can slip into reverse. Roe further alleged that this defect caused her injuries. To demonstrate this theory, she designated two experts, Steven Meyer and Peter Sullivan. After testing and analysis of the subject vehicle, the experts concluded that the vehicle was in this defective false-park position when Roe exited the vehicle, and the vehicle then slipped into reverse and backed over her, causing her injuries.

FCA moved to exclude Roe's experts as unreliable on the issue of causation, among other objections. FCA additionally moved for summary judgement because Roe could not create a material issue of fact on the essential element of causation without her experts’ testimony. The district court agreed with FCA, excluded the experts, and granted summary judgment for FCA. Notably, the district court found that the experts’ theory on causation was unreliable because they failed to demonstrate that the shifter could remain in false park for sufficient time for Roe to move behind the vehicle and then slip into reverse without manual assistance. Roe now appeals, arguing that the district court abused its discretion in excluding Meyer and Sullivan's testimony. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

FACTUAL BACKGROUND

A. The Accident

On February 26, 2017, Roe was driving her 2004 Jeep Grand Cherokee on a rural property near Cushing, Oklahoma. After driving through a gate on the property, she stopped and exited the car to close the gate behind the rear of the car. Tragically, her Jeep suddenly moved backwards and rolled over her. Roe was eventually found by the vehicle near the gate having suffered severe injuries including a traumatic brain injury.

Roe filed suit in federal district court against FCA, the manufacturer of her vehicle, for product liability, negligence, and failure to warn, alleging that her vehicle "improperly and unexpectedly jumped into reverse on its own after she had shifted it into park and exited the vehicle, running over her and causing traumatic and permanent injuries." Aplt. App. at 12. Roe claimed that the shifter assembly of the subject vehicle was defectively designed in that it could be shifted into a "false-park" position where the shifter appears to be in park, but is actually in an unstable position where the shifter can self-engage into reverse. Roe alleged this defective position allowed her Jeep to slip into reverse and caused her injuries.

B. Roe's Experts

To support her theory, Roe designated two experts, Steven Meyer and Peter Sullivan to testify as to "automotive defects, engineering issues, the automotive components involved and their functioning; the ‘false park’, ‘park to reverse’, or ‘powered rollaway’ defect, the history of this defect in Chrysler and other vehicles, and other similar incidents; applicable regulations, industry standards, and investigations; investigation and testing; and the causes of Cindy Roe's injuries." Id. at 67.

i. Steven Meyer

Steven Meyer is a mechanical engineer specializing in vehicular accident reconstruction; mechanical and structural failure analysis; and system design, analysis, and testing. In his report, Meyer surmised two potential hypotheses for how the accident could have occurred: 1) Roe shifted the vehicle into a false-park position before exiting and moving behind the vehicle when it then slipped into reverse and backed over her, and 2) Roe shifted the vehicle into reverse before exiting and moving behind the vehicle when it backed over her. After testing on Roe's Jeep, an exemplar 2004 Jeep Grand Cherokee, and an exemplar shifter, Meyer determined that the second scenario was impossible and that the first scenario had a reasonable scientific probability of being correct.

First, Meyer inspected and tested the subject vehicle on a flat concrete surface at his company's facility. In inspecting and testing the gear shifter assembly, Meyer was able to "easily" manipulate the shifter lever to achieve the "perched" false-park condition. Id. at 120. He then performed testing on two scenarios. In the first, he shifted the vehicle from drive to reverse. After releasing the brake pedal, "the vehicle immediately began to move/accelerate" on the flat concrete surface. Id. In the second scenario, Meyer manually perched the vehicle in the false-park position. The "shifter was then nudged rearward, resulting in the transmission to engage the reverse gear. Once the shifter was nudged rearward, the vehicle began to move rearward after a slight hesitation." Id. at 120–21. Meyer then recorded the amount of force necessary to move the shift lever from the false-park position to reverse, which ranged between 13 and 26 newtons.¹

Next, Meyer performed the same evaluation and testing a second time with an exemplar vehicle at the accident scene and repeated it a third time at his facility. He noted that the "[v]ehicle response was similar with little to no difference due to the ground condition or terrain." Id. at 123. He also noted that "by leaving the vehicle in reverse, the driver could not exit the vehicle as the vehicle moved too fast for the driver to get out of the way of the moving open door," effectively ruling out his second hypothesis. Id. at 126. He did not state in his report whether he achieved test results indicating there was sufficient time to exit the vehicle when the shifter was left perched in false park.

At Meyer's deposition, he estimated that it would take at least seven to eight seconds to exit the Jeep and walk behind it. While he referenced several instances of the vehicles slipping on their own from false park to reverse, he could not recall if the shifter ever slipped into reverse after staying perched for precisely seven to eight seconds. Meyer could recall one test where the vehicle stayed perched in the false-park position for over four minutes, but in this test, he manually nudged the shifter into reverse from false park. Meyer additionally discussed a National Highway Traffic Safety Administration (NHTSA) investigation into a "park-to-reverse" defect in Jeep Grand Cherokees.²

Meyer concluded in his reconstruction of the accident that a flat spot between park and reverse in the shifter assembly is a design defect that allowed Roe to unknowingly perch the subject vehicle in false park instead of park. Meyer surmised that when she exited the vehicle and moved behind it, the shifter lever slipped into reverse and the vehicle backed over her. Meyer also concluded that FCA could have feasibly installed an out-of-park alarm that would have warned Roe and others of this unsafe condition.

ii. Peter Sullivan

Roe's other expert was Peter Sullivan. Sullivan is an automotive specialist and master service technician with specialized experience as a motor vehicle systems performance analyst. Sullivan has evaluated and written on shift systems throughout his career, including numerous park-to-reverse incidents.

Sullivan created an exemplar demonstrative aid of the subject vehicle shifter and transmission, on which he was able to achieve the false-park position. Sullivan relied in large part on Meyer's investigation and testing as to the ability to achieve false park and the timing of the vehicle's backward movement when the vehicle is placed in reverse versus when the vehicle slips into reverse from false park. He also discussed five forces that may cause the shift lever to move from false park to reverse. These included:

[1] [S]light vibrations, [2] movements, [3] impacts, or [4] weight transfers (such as a passenger opening or closing a door upon exiting the vehicle or opening or closing the rear lift/tail gate, or engine vibration, A/C compressor engagement, etc.), or [5] the gradual filling of the transmission coupling, [sic] ‘accumulator’, with transmission fluid as a result of fluid bypass through a partially open manual valve.

Id. at 206–207. Sullivan also relied on the NHTSA report on Jeep Grand Cherokees.

Like Meyer, Sullivan concluded that Roe left her Jeep in a defective false park rather than reverse when she exited the vehicle. He asserted that the Jeep then suddenly and without warning self-engaged into reverse, resulting in her injuries. Sullivan also opined that an out-of-park alarm could have been implemented to provide a warning.

C. The district court's decision

After the expert reports and depositions had been submitted, FCA filed a motion under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to exclude the two experts and also for summary judgment. FCA contended that Meyer and Sullivan were both unqualified to testify as to a design defect in the shifter assembly, to opine...