United States District Court, E.D. New York
MATTHEW J. VALENTE and JAMES VALENTE, Plaintiffs,
TEXTRON, INC. and E-Z GO DIVISION OF TEXTRON INC., Defendants
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For Matthew J. Valente, James Valente, individually and as father of Mattew J. Valente, Plaintiffs: Patricia A. Sullivan, LEAD ATTORNEY, David Harlan Schultz, Barry, McTiernan & Moore, New York, NY.
For Textron, Inc., E-Z Go Division of Textron Inc., Defendants: David S. Osterman, LEAD ATTORNEY, Goldberg Segalla LLP, Princeton, NJ; Andrew John Scholz, Michael D. Shalhoub, Goldberg Segalla LLP, White Plains, NY.
MARGO K. BRODIE, United States District Judge.
MEMORANDUM & ORDER
Plaintiffs Matthew Valente and James Valente filed the instant products liability action in New York state court against Defendants Textron and the E-Z Go Division of Textron. Matthew Valente was seriously injured while operating a golf cart made by Defendants and alleges that Defendants are liable under a theory of strict liability, negligence, breach of implied warranty and failure to warn. Matthew Valente's father, James Valente, brings a claim for loss of consortium. Plaintiffs allege that the golf car at issue was defectively designed because it only had a rear-wheel braking system and did not have a seatbelt restraint system. Defendants removed the action to this Court and now move to preclude the testimony of Plaintiffs' experts, Kristopher Seluga and Bruce Gorsak, and for summary judgment. Plaintiffs also move to preclude the testimony of Defendants' experts, Matthew Schwall and David Bizzak, and for summary
judgment. The Court held a Daubert hearing on January 31 and February 1, 2013 with respect to Plaintiffs' experts. The Court heard argument on the parties' motions on February 28, 2013. For the reasons set forth below, the Court grants Defendants' motions to preclude the testimony of Plaintiffs' experts and for summary judgment. Plaintiffs' motions to preclude the testimony of Defendants' experts and for summary judgment are denied.
In August of 2007, plaintiff Matthew Valente (" Matthew" ) was working as a cart and range attendant at La Tourette Golf Course (" La Tourette" ) on Staten Island. (Def. 56.1 ¶ ¶ 1, 4.) Matthew was 18 years old at the time. (Pl. 56.1 ¶ 4.) As an attendant, Matthew was responsible for, among other things, driving golf cars between the pen and the area where golfers picked them up. (Def. 56.1 ¶ 5; Pl. 56.1 Reply ¶ 5.) Matthew was trained at La Tourette regarding how to operate a golf car. (Def. 56.1 ¶ 6; Pl. 56.1 Reply ¶ 6.)
On August 18, 2007, the day of the accident, Matthew was driving an E-Z-Go golf car. (Def. 56.1 ¶ 3; Pl. 56.1 Reply ¶ 3.) Textron manufactures E-Z-Go golf cars. (Def. 56.1 ¶ 2.) Matthew was driving on the path to the 10th hole, and his hat blew off. (Def. 56.1 ¶ 10.) Along the left side of the path, there was a series of posts connecting a rope. (Deposition of Matthew Valente (" M. Valente Dep." ) 88:21-89:11.) Defendants claim that Matthew reached back to retrieve his hat, removing his foot from the accelerator and stepping on the brake in an effort to stop the car. (Def. 56.1 ¶ 11.) Matthew claims that, when his hat blew off, he did not attempt to reach for his hat or turn his body. (Pl. 56.1 Reply ¶ 11.) According to Matthew, the path turned slightly to the left and the only adjustment to the steering that he made was to turn the steering wheel slightly " to maintain a straight course on the path."  (Pl. 56.1 Reply ¶ 14.) He simply applied the brakes, and the golf car yawed, or fishtailed. (Pl. 56.1 Reply ¶ ¶ 17-18.) Matthew remembers the car sliding, coming out of his seat and hitting his head. (Def. 56.1 ¶ 12; Pl. 56.1 Reply ¶ 12.) The golf car rolled over onto its passenger side. (Def. 56.1 ¶ 13; Tr. 25:2-8.) The parties agree that the golf car did not have any mechanical difficulties the day of the accident. (Def. 56.1 ¶ 8; Pl. 56.1 Reply ¶ 8.) Matthew suffered serious injuries, including a spinal fracture, and is paralyzed below the waist with partial paralysis in his upper body. (Pl. 56.1 ¶ 13.)
II. Admissibility of Expert Testimony
Rule 702 of the Federal Rules of Evidence provides 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: (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 proponent of the expert testimony bears the burden of " establishing by a preponderance of the evidence that the admissibility requirements of Rule 702 are satisfied." United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 n.10, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993))). However, " the district court is the ultimate 'gatekeeper.'" Id. (citations omitted); see also United States v. Farhane, 634 F.3d 127, 158 (2d Cir. 2011), cert. denied, 132 S.Ct. 833, 181 L.Ed.2d 542 (2011) (" The law assigns district courts a 'gatekeeping' role in ensuring that expert testimony satisfies the requirements of Rule 702." (citation omitted)).
Before permitting a person to testify as an expert under Rule 702, the court must make the following findings: (1) the witness is qualified to be an expert; (2) the opinion is based upon reliable data and methodology; and (3) the expert's testimony on a particular issue will " assist the trier of fact." Nimely v. City of New York, 414 F.3d 381, 396-97 (2d Cir. 2005); see also United States v. Cruz, 363 F.3d 187, 192 (2d Cir. 2004) (the court is tasked with " ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand" (quoting Daubert, 509 U.S. at 597)). In Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court set forth a list of factors, in addition to the criteria set forth in Rule 702, that bear on the determination of reliability: " (1) whether a theory or technique has been or can be tested; (2) 'whether the theory or technique has been subjected to peer review and publication; ' (3) the technique's 'known or potential rate of error' and 'the existence and maintenance of standards controlling the technique's operation; ' and (4) whether a particular technique or theory has gained general acceptance in the relevant scientific community." Williams, 506 F.3d at 160 (quoting Daubert, 509 U.S. at 593-94); see also Zaremba v. Gen. Motors Corp., 360 F.3d 355, 358 (2d Cir. 2004) (same). The Daubert inquiry for reliability is a " flexible one" and does not " constitute a definitive checklist or test," Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (citation omitted), and, thus, the Daubert factors " neither necessarily nor exclusively appl[y] to all experts or in every case," id. at 141.
The district court is afforded " broad latitude when it decides how to determine reliability as it enjoys [with] respect to its ultimate reliability determination." Kumho Tire, 526 U.S. at 142 (emphasis in original). Expert testimony should be excluded if it is " speculative or conjectural." Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008) (quoting Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996)). When an expert's opinion is based on data or methodologies " that are simply inadequate to support the conclusions reached, Daubert and Rule 702 mandate the exclusion of that unreliable opinion testimony." Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 253 (2d Cir. 2005) (citation omitted); see also Nimely, 414 F.3d at 396 (" [N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered."
(alteration in original) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997))). Nevertheless, " in accordance with the liberal admissibility standards of the Federal Rules of Evidence, only serious flaws in reasoning or methodology will warrant exclusion." In re Fosamax Products Liab. Litig., 645 F.Supp.2d 164, 173 (S.D.N.Y. 2009) (citing Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 267 (2d Cir. 2002)).
a. Defendants' Motion to Preclude
Defendants seek to exclude the testimony of Plaintiffs' experts, Kristopher Seluga and Bruce Gorsak. Defendants do not dispute the expert qualifications of Seluga but contend that Seluga's computer simulation model is not reliable because it has not been validated and uses flawed input values. (Def. Mem. 5-18.) With respect to Gorsak, Defendants argue that he lacks the requisite qualifications to testify as an expert and that his opinions are unreliable and manufactured for the purpose of litigation. (Def. Mem. 19-22.) For the following reasons, the Court finds that neither Seluga nor Gorsak meet the requirements of Rule 702, and, therefore, Defendants' motion to preclude the testimony of Seluga and Gorsak is granted.
i. Kristopher Seluga
Kristopher Seluga is a forensic engineer and accident reconstructionist. (Tr. 4:2-5.) Seluga has a master's degree and a bachelor's degree in mechanical engineering from Massachusetts Institute of Technology. (Tr. 4:21-23.) He is a licensed professional engineer in Connecticut and New York. (Tr. 5:5-7.) Seluga has previously published four articles related to golf car safety, and in a 2006 article he addressed the yaw instability of a golf car during rear-wheel braking. (Tr. 8:2-5, 9:24-10:6.) Seluga testified that, based on his prior research and study of braking systems, he believes that rear-wheel brakes are unstable and " cause the car to lose its directional stability, in other words, spin around." (Tr. 13:3-10.)
In October of 2007, Seluga went to La Tourette to inspect the accident site. (Tr. 23:24-24:2.) Seluga took photographs and measurements of the golf car that Matthew was driving the day of the accident. (Tr. 24:18-22.) Upon inspection, Seluga saw evidence, including a broken hip restraint and grass in one of the wheels, consistent with a rollover onto the passenger side of the golf car. (Tr. 25:2-8.) Seluga measured the slope where the accident occurred and found that the hill was between seven and nine degrees. (Tr. 25:13-16.) Seluga performed speed tests with the actual golf car, using a hand-held GPS, in two locations -- a relatively flat portion of the path and the hill where the accident occurred. (Tr. 34:23-35:2.) The maximum speed he obtained was ten miles per hour on the flat portion and ten and a half miles per hour on the hill. (Tr. 35:3-8.) Seluga testified that he noticed that the golf car was " running very rough," and, as a result, he believed that the golf car was running slower than it generally would. (Tr. 35:9-19.) Seluga did not calculate the center of gravity of the subject golf car as part of his inspection. (Tr. 32:13-17.) Instead, he calculated the center of gravity based on data that he was later provided. (Tr. 32:16-33:10; Pl. Ex. 4.)
While at the golf course, Seluga conducted various tests to determine the coefficient of friction. (Tr. 28:5-9, 29:9-30:4.) The coefficient of friction is the " ratio between the amount of force it takes to slide an object across another surface divided by the amount of weight that is pushing the two objects together." (Tr. 20:4-10.) With a lower coefficient of friction, there is less braking force, and, as a result, an
object will take longer to come to a stop. (Tr. 21:1-7.) There are two different forms of friction that can be tested: static friction and dynamic friction. (Tr. 20:16-25.) Static friction is the amount of friction that it takes for an object to start moving, and dynamic friction is the amount of friction that is generated once the object is moving. (Tr. 20:22-25.) Both methods for testing the coefficient of friction are accepted, but Seluga testified that the static friction test is not as precise as the dynamic friction test. (Tr. 89:4-17.) According to Seluga, the static test, when performed by the same individual, has a margin of error of approximately ten percent. (Tr. 90:4-11.)
Seluga first performed braking tests of the golf car by the maintenance shed in order to determine the coefficient of friction. (Tr. 28:4-9.) Seluga testified that he did not conduct the test for the dynamic coefficient of friction on the actual path because he was " aware of the instability problem and . . . was unsure if [conducting the test] would produce a dangerous effect, in other words, it would do what Mr. Valente claimed it did at the time of his accident." (Tr. 30:13-18.) Seluga claims that he chose the area by the maintenance shed because it was a " relatively flat area," which " makes it a little easier to do the calculations." (Tr. 28:10-14.) As can be seen in the photograph Seluga took that day, the path by the maintenance shed had a significant amount of sand on it. (Def. Ex. F.) This area is next to a dumpster and a sandy area, unlike the actual path where the accident occurred, which is bordered by grass. (Tr. 92:22-93:3.) Moreover, the maintenance shed is where vehicles are refueled, maintenance work is performed and a pressure washer is used to wash the " grime, oil, [and] dirt off the vehicles." (Tr. 236:19-24.) Contaminants such as sand, gas, cleaning fluids and oil can affect the coefficient of friction. (Tr. 236:24-237:1.)
Seluga described how he performed the test for the dynamic coefficient of friction at the maintenance shed path as follows:
I attached an accelerometer to the vehicle and then I recorded the acceleration on the accelerometer as I drove the vehicle up to its top speed. I slammed on the brakes to get the rear wheels to slide. Then I would turn the car around and do that again, and I did that four times. . . . I obtained measurements of the acceleration of the car. Then I used those to determine what the coefficient of friction between the tires and road must have been in order to produce that amount of deceleration.
(Tr. 28:15-29:1.) Based on these tests, Seluga found that the dynamic coefficient of friction by the maintenance shed was between 0.53 and 0.57. (Tr. 102:25-103:9.) However, in conducting these tests, Seluga failed to account properly for the accelerometer's gravity bias. (Tr. 51:20-22, 99:4-14.) The gravity bias is the effect that gravity has on the accelerometer. (Tr. 51:10-19.) Accelerometers read the acceleration caused by gravity in addition to the acceleration caused by the golf car's movement. (Tr. 227:25-228:1.) If an accelerometer is on a slope as opposed to a flat surface, the accelerometer will not read zero, even if the golf car is not moving. (Tr. 51:10-19, 228:2-7.) Here, the path by the shed contained a 1.7 degree slope at the beginning and a 3 degree slope at the end, with a depression between the two rising slopes. (Tr. 94:13-22.) Seluga set his accelerometer to zero at the beginning of his run and, thus, only accounted for the 1.7 degree slope at the beginning of the run. (Tr. 51:20-22, 99:4-14.) He did not correct his results for the 3 degree slope at the end of the run. (Tr. 51:20-22, 99:4-14.) After reviewing the criticisms of Matthew
Schwall, one of Defendants' experts, Seluga acknowledged that he should have measured the bias at the end and recalculated the coefficient of friction. (Tr. 51:23-52:22.) According to Seluga, after he corrected his calculations, the coefficient of friction for the dynamic tests by the maintenance shed increased between 0.54 and 0.58. (Tr. 52:20-22, 102:18-24.)
Seluga also conducted a static test, also known as a drag sled test, on the path by the maintenance shed and the actual slope. (Tr. 29:11-30:4, 83:23-84:2.) The drag sled test involves pulling an exemplar tire and some known amount of weight across the path in order to measure the static coefficient of friction, i.e. the friction required to start moving an object. (Tr. 29:11-30:4.) When Seluga performed the drag sled test by the maintenance shed, he found coefficient of friction values between 0.69 and 0.73. (Tr. 96:15-22.) Seluga then performed the drag sled test on the actual slope, and found the coefficient of friction to be between 0.83 and 0.90. (Tr. 90:17-22.) Despite these various calculations, Seluga used 0.53 exclusively as the coefficient of friction in all of the simulations he ran in preparing his report. (Tr. 103:11-16.) Seluga testified at his deposition that he used 0.53 because he " wanted to see if this accident could happen a certain way and the lowest friction value that was measure[d] is the most likely to see if it could happen." (Deposition of Kristopher Seluga (" Seluga Dep." ) 134:17-135:10.)
After collecting the relevant data, Seluga created a computer simulation in order to determine what conditions would " produce a significant yaw instability that would cause the car to rotate sideways." (Tr. 36:8-18.) Seluga used a software program called Matlab for his simulations. (Tr. 37:18-38:2.) Matlab is analogous to Microsoft Excel in that the user creates the formulas and equations, and the program merely solves the user-created model. (Tr. 41:5-18, 67:1-4.) Accordingly, Seluga wrote the computer code for the model, including the relevant algorithms and formulas. (Tr. 39:5-9.) Seluga conceded at the Daubert hearing that it was not the general practice of accident reconstructionists
to write their own code. (Tr. 38:22-39:2.) Seluga testified, however, that he used algorithms and formulas in writing the code for the simulation that he had previously used in his published, peer-reviewed articles. (Tr. 37:16-20.) However, the formulas and equations had generally only been used in the context of automobiles and large vehicles. (Tr. 41:14-42:5, 45:18-23.) The underlying computer code, i.e. Seluga's simulation model, has not ever been used or validated by anyone outside of Seluga's company. (Tr. 68:17-69:2.) The model is a proprietary model and is not commercially available. (Tr. 67:16-20.)
Seluga used a tire model for his simulation that had previously been used for automobiles. (Tr. 38:15-18.) Seluga testified that the particular tire model is not important in this action. (Tr. 47:15-22.) In contrast, Schwall claims that the tire model " is probably the most important part because all forces on a vehicle are coming through the tires." (Tr. 211:17-20.) Although Seluga maintains that the laws of physics apply identically to automobiles and golf cars, he had to change at least one of the equations -- the yaw moment of inertia -- used in his model, after he discovered the correction factor used in the equation is significantly different for golf cars than it is for automobiles. (Tr. 57:3-19, 117:2-24.)
Based on his simulations, Seluga concluded that, at a speed of 14 miles per hour and on a slope of less than 10 degrees, a golf car would " yaw significantly enough to produce a rollover if the friction of the tires on the road were in the vicinity of about 0.55."  (Tr. 50:4-10.) Seluga testified that yaw instability " was the best explanation for [Matthew's] accident." (Tr. 23:18-23.) Seluga determined that " [t]his instability does not require a major steering input by the driver other than the small steering angle require[d] to follow the gentle left curve of the path and results entirely from the inherent instability of a vehicle with skidding rear wheels and rolling front wheels." (Seluga Report 11.) Seluga further opined that the simulations " demonstrated that the yaw instability that caused the fishtail would have been avoided if the subject car had been equipped with either front only or 4-wheel brakes." Id. Seluga concluded that " [i]t may be stated to a reasonable degree of engineering certainty that the subject rollover accident was the result of providing a golf car equipped with brakes on the rear wheels only." Id. at 14. This conclusion was based on " multiple dynamic computer simulations," which Seluga conducted in order to evaluate the " yaw instability of the golf car." Id. at 11.
1. Reliability of Seluga's Simulation Model
Defendants concede that Seluga is qualified but argue that his simulation model is not reliable. (Def. Mem. 5-18.) As an initial matter, Plaintiffs contend that Seluga's simulation model does not involve a " novel scientific procedure" and, therefore, " Daubert should be generally inapplicable, or applied in the context of common sense and logic." (Pl. Opp'n 23.) As the Supreme Court held in Kumho Tire, " Daubert's general holding -- setting forth the trial judge's general 'gatekeeping' obligation -- applies not only to testimony based on 'scientific' knowledge, but also to
testimony based on 'technical' and 'other specialized' knowledge." 526 U.S. at 141 (quoting Fed.R.Evid. 702). As a result, courts have repeatedly applied Daubert in determining whether a specific accident reconstruction software program is sufficiently reliable to meet the requirements of Rule 702. See, e.g., Royal & Sun Alliance Ins. PLC v. UPS Supply Chain Solutions, Inc., No. 09 Civ. 5935, 2011 WL 3874878, at *8-9 (S.D.N.Y. Aug. 31, 2011) (conducting an analysis regarding whether the expert's methodology to reconstruct the accident in question met Rule 702's reliability requirements); Moon v. United States, No. 08 Civ. 1990, 2011 WL 181741, at *5 (S.D.N.Y. Jan. 13, 2011) (" As have other courts, I find that the use of PC-Crash to analyze the crash is a reliable methodology." (collecting cases)); Turner v. Liberty Mut. Fire Ins. Co., No. 07 Civ. 163, 2007 WL 2713062, at *3-4 (N.D. Ohio Sept. 14, 2007) (finding the computer simulation program validated where it was subject to peer review and publication, has known error rates and is generally accepted by the relevant scientific community). Accordingly, the Court must determine whether Seluga's simulation model is reliable. Plaintiffs bear the burden of proving by a preponderance of the evidence that Seluga's simulation model meets the requirements of Rule 702. Williams, 506 F.3d at 160. In determining whether a computer simulation is reliable, the court may consider whether the program has been or can be tested, has been subjected to peer review and publication, has a known or potential rate of error and has gained general acceptance in the relevant scientific community. Id. (citing Daubert, 509 U.S. at 593-94).
Defendants do not dispute that Matlab is an acceptable computer program to use in creating a simulation. (Def. Mem. 8-9; Tr. 243:12-20.) However, Matlab, unlike other generally accepted computer software programs, allows the user to create the underlying mathematical model. (Tr. 41:14-18, 67:1-4; Declaration of David Osterman (" Osterman Decl." ) Ex. G (" Schwall Aff." ) 6.) As a result, Seluga's simulation model must be validated. (Schwall Report 12 (" Only when the underlying physical model has been properly validated and the inputs to the model are accurate will the resulting output of the model be reliable." ).) Plaintiffs contend that Seluga's simulation model is reliable because (1) the model uses accepted models and laws of physics and, therefore, need not be validated; (2) the model was properly validated using test data; and (3) the model was validated through real-world testing conducted by Defendants' experts. (Pl. Opp'n 25-26; Oral Arg. Tr. 42:9-44:16.)
Plaintiffs maintain that " [w]here a simulation utilizes a well-understood and accepted model and laws of physics, and the utilized techniques, models and equations have previously been validated for vehicle simulations, no further validation is necessary for the results to be considered reliable." (Pl. Opp'n 25.) Plaintiffs contend, therefore, that Seluga did not need to perform any tests to validate his simulation. Id. at 25-26. " Engineering testimony rests upon scientific foundations, the reliability of which will be at issue in some cases." Kumho Tire, 526 U.S. at 150. A district court must determine whether a methodology, even one based on established scientific foundations, is reliable for the factual issues raised in a particular case. See Dreyer v. Ryder Auto. Carrier Group, Inc., 367 F.Supp.2d 413, 434 (W.D.N.Y. 2005) (" The ...