Whitaker ex rel. & v. Hyundai Motor Co., Case No. 7:17-cv-00055

CLARENCE EDWARD WHITAKER, on behalf of himselfand as Administrator of the Estate ofShannon Marie Whitaker, deceased, Plaintiff, v. HYUNDAI MOTOR COMPANY, et al., Defendants.

Case No. 7:17-cv-00055

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

FILED: October 10, 2018

October 9, 2018

By: Michael F. Urbanski Chief United States District Judge

MEMORANDUM OPINION

Shannon Whitaker ("Shannon") was crushed to death by a 2007 Hyundai Santa Fe (the "Vehicle"). Plaintiff Clarence Whitaker ("Whitaker") filed suit against Defendants Hyundai Motor Company ("HMC") and Hyundai Motor America, Inc. ("HMA," and collectively with HMC, "Defendants"). After several false leads, the parties discovered that a solenoid in the Vehicle's steering column was disconnected. That solenoid is designed to prevent an individual from removing an ignition key when a vehicle's transmission is not in the Park position. Who disconnected the solenoid—or whether the solenoid was ever connected—is in dispute.

This matter comes before the court on a multitude of motions. Defendants have filed a Motion for Summary Judgment, ECF No. 63, which seeks summary judgment on Whitaker's Complaint (the "Complaint" or "Compl"), ECF No. 1. Additionally, both Defendants and Whitaker have filed motions to exclude the opposing parties' expert witnesses (the "Motions in Limine"). See Mot. Exclude Pl.'s Witnesses, ECF No. 65; Pl.'s Mot. Limine Exclude Testimony Defs.' Expert Witness Eddie Ray Cooper, ECF No. 68; Pl.'s Mot. Limine Exclude Testimony Defs.' Expert Charles A. Rau, Jr., ECF No. 69. For the reasons discussed below, the Motions in Limine will be DENIED, and Defendants' Motion for Summary Judgment will be DENIED.¹

I. Motions in Limine

Federal Rule of Evidence 702 states that "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the following four criteria are established:

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

The Supreme Court of the United States has held that Rule 702 "clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify." Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). Accordingly, the SupremeCourt in Daubert expounded upon the relevancy and reliability requirements of Rule 702. First, in order to establish "a standard of evidentiary reliability," an expert must testify about scientific knowledge.² Id. at 589-90. This means that the testimony must be "grounded in the methods and procedures of science" and must consist of "more than subjective belief or unsupported speculation." Id. at 590. Second, in order to ensure relevancy, the expert's evidence or testimony must "'assist the trier of fact to understand the evidence or to determine a fact in issue.'" Id. at 591 (quoting Fed. R. Evid. 702). This "'helpfulness' standard requires a valid scientific connection to the pertinent inquiry as a precondition of admissibility." Id. at 591-92.

When faced with potential expert testimony, then, the trial judge must make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue."³ Id. at 592-93. In particular, the Fourth Circuit Court of Appeals has "admonished that 'a plaintiff may not prevail in a products liability case by relying on the opinion of an expert unsupported by any evidence such as test data or relevant literature in the field.'" Oglesby v. Gen. Motors Corp., 190 F.3d 244, 249 (4th Cir. 1999) (quoting Alevromagiros v. Hechinger Co., 993 F.2d 417, 422 (4th Cir. 1993)).

A. Motion to Exclude Plaintiff's Experts

Defendants' motion in limine to exclude the testimony of William Carden, Whitaker's materials engineering expert, ECF No. 66, is DENIED. The court has considered Carden's report, supplemental report, deposition and testimony at the August 21, 2018 hearing, and finds that Carden's opinions are amply supported by Carden's experience, training, and analysis, and the available scientific literature cited by Carden.

At the threshold, the court believes that Carden's supplemental report, ECF No. ECF No. 78-9, is properly before the court. Carden's report was prepared, and he was deposed, before Defendants submitted their expert reports. At Carden's deposition, Whitaker's counsel reminded defense counsel that his expert report may be supplemented upon review of Defendants' expert reports. Given these circumstances, Defendants cannot claim to be surprised by Carden's supplemental report. Nor are they prejudiced, as they had an opportunity to redepose Carden, which they declined to do, and an opportunity to cross examine him at the August 21, 2018 hearing.

Carden is Registered Professional Metallurgical Engineer who performs failure analysis and engineering investigation for McSwain Engineering, Inc. Carden has worked in materials engineering for more than twenty years and is a member of several well-regarded professional societies, including the American Society of Mechanical Engineering (ASME) and the Society of Automotive Engineers (SAE).

Carden orchestrated the two-day laboratory examination of the Vehicle and solenoid connection at issue in this case based on an investigative protocol circulated to the defense. Defendant's engineering expert, Charles Rau, participated in the laboratory examination andvoiced no concerns over the methodology employed. Each side had access to the hundreds of photographic, microscope, electron microscope, spectroscopy and CT images taken during the examination. Carden prepared a detailed written report describing his methodology, conclusions and basis for his conclusions. In essence, based on his examination of scratch or gouge marks on the metal connector blades of the subject solenoid connector and his comparison to exemplar connectors, Carden opined that the connector "was not fully engaged in its locked position at the time the subject vehicle was manufactured," and later became completely disengaged, allowing the ignition key to be removed even though the gear shifter was not in the "Park" position.

Defendants quarrel with Carden's opinion, arguing that he engaged in an unreliable "cherry-picking scratch methodology and leaps of logic." The court disagrees. Carden is a trained metallurgical engineer with years of experience in failure analysis investigations. The examination of the subject vehicle and solenoid connector was methodologically mapped out, painstakingly undertaken and well-documented. Carden bases his opinion on physical marks found on the metal solenoid connector blades, indicating to him that the connector was never fully engaged. While Defendants disagree with Carden's conclusion, there is no basis to question his qualifications, experience, the use of the scientific method, the rigor of the testing procedure or that data obtained from the physical examination. To the extent defendants complain that Carden used inconsistent lighting and magnification to justify his conclusions, those concerns go to the weight of Carden's testimony, and not its admissibility. As such, he may be cross-examined about the claimed inconsistency in his technique.

Defendants also argue that Carden's report ignored their alternative explanation for the solenoid's disassembly, centered around the aftermarket installation of a radio and microphone, but Carden addresses this theory in his supplemental report. As such, Carden's opinion, grounded in the data obtained from his scientific examination of the solenoid connector, is more than subjective belief or unsupported speculation. Moreover, it is plainly helpful to the trier of fact. As such, it is admissible under Fed. R. Evid. 702 and sufficiently reliable under Daubert.

Defendant's motion in limine to exclude the testimony of Richard Clarke, Whitaker's failure analysis expert, ECF No. 66, is DENIED. Federal Rule of Evidence 703 does not require an expert to perform his own analysis. Instead, he may merely have "been made aware of or personally observed" the facts or data that informed his opinion, Fed. R. Evid. 703, exactly the complaint levied by Defendants. Because the court has already held that Carden's testimony is admissible at trial, Clarke's opinion, founded on Carden's investigation, likewise is admissible.

B. Plaintiff's Motion in Limine to Exclude the Testimony of Defendants'Expert Witness Eddie Ray Cooper

Whitaker's motion in limine to exclude the testimony of Eddie Ray Cooper, Defendants' automotive expert, ECF No. 68, is DENIED.

Cooper is expected to provide expert testimony concerning how the solenoid connector functions as part of the Vehicle's safety system. Cooper also is expected to support Rau's expected metallurgical testimony that the metal blades in the solenoid connector exhibited evidence of being fully engaged by describing his observation of certain gouge marks in the plastic housing of the solenoid connector. Cooper is expected to testifythese marks indicated to him that the lock tabs in the plastic connector housing were mechanically disconnected using a metal tool. Cooper bases his testimony on the common use of such tools in the industry and the fact that he has used such a tool to separate the two halves of such connectors many times. Deposition of Eddie Ray Cooper ("Cooper Dep."), ECF 67-2, at 20, 36. Although Cooper will not be permitted to testify as to when, why, or by whom the tool marks were made, he may testify as to the separation of the...