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In re General Motors LLC Ignition Switch Litigation

United States District Court, S.D. New York

June 20, 2017

General Motors LLC, 14-CV-8317 This Document Relates To: Ward


          JESSE M. FURMAN, United States District Judge.

         [Regarding the Parties' Daubert Motions and Cross-Motions for Summary Judgment]

         The next bellwether trial in this multidistrict litigation (“MDL”), familiarity with which is presumed, involves claims brought under Arizona law by Plaintiff Dennis Ward against General Motors LLC (“New GM”) stemming from a March 27, 2014 accident involving Ward's 2009 Chevrolet HHR. That car was manufactured by General Motors Corporation (“Old GM”) - which filed for bankruptcy in 2009, a bankruptcy from which New GM emerged after it purchased most of Old GM's assets and assumed some of its liabilities. Now pending are (1) dueling motions to preclude expert opinions and testimony under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), and Rule 702 of the Federal Rules of Evidence (Docket Nos. 3873, 3877); and (2) cross-motions, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment. (Docket Nos. 3868, 3882).[1]

         For the reasons stated below, New GM's Daubert motion is granted in part and denied in part, while Ward's Daubert motion is denied without prejudice to raising objections to particular testimony at trial. Additionally, New GM's motion for summary judgment is denied to the extent that it seeks dismissal of all claims on causation grounds and Ward's claims sounding in negligence on other grounds, but granted to the extent that it seeks dismissal of Ward's fraud claims. Finally, Ward's motion for partial summary judgment is denied.


         Ward, a resident of Arizona, purchased a used 2009 Chevrolet HHR from Precision Toyota, a car dealership in Tucson, Arizona, in December 2012. (Docket No. 3870 (“New GM SOF”) ¶¶ 6, 7; 14-CV-8317, Docket No. 157 (“Am. Compl.”) ¶¶ 18, 39). The car was previously owned by John and Sue Suor, who had purchased it from an authorized Old GM dealership in 2008. (New GM SOF ¶ 5). A little over two years after Ward's purchase, on the morning of March 27, 2014, he was driving the car on or near a rough patch of roadway in Tucson when he crashed into a Ford Explorer directly in front of him. (Id. ¶¶ 13, 14, 19; Docket No. 4052 (“New GM Response SOF”) ¶ 49). Ward claims that, prior to impact, he saw that the driver of the Ford Explorer had stopped, so he “smashed” on his brake pedal and “attempt[ed] to steer away, ” but he was unable to prevent the crash because his “vehicle suddenly and unexpectedly lost power.” (New GM SOF ¶ 18; Am. Compl. ¶¶ 1, 19-21). He alleges that was due to a defect in the ignition switch of his car that allowed the switch to move from the “run” to the “accessory” or “off” positions when the vehicle “experience[d] rough road conditions or other jarring.” (Am. Compl. ¶¶ 28, 72). Whatever the cause of the accident, Ward sustained severe injuries, including a ruptured patellar tendon, and was subsequently hospitalized. (Id. ¶¶ 22-25).

         On the following day, March 28, 2014, New GM expanded a previously announced recall relating to ignition switch defects in certain of its vehicles - familiarity with which is presumed - to include certain 2008-2011 model year vehicles, including Ward's HHR. (New GM SOF ¶ 4). While the previous recall concerned only ignition switches containing service part number 10392423 (the “423 switch”), the new recall was directed at vehicles that might have received the concededly defective 423 switch during repairs. (Id. ¶¶ 1-4). Significantly, Ward's ignition switch, at the time of his accident, was not the concededly defective 423 switch; it was a switch containing service part number 15886190 (the “190 switch”), which contained a longer spring and detent plunger assembly that New GM began using in or about 2008. (Id. ¶ 8; New GM Response SOF ¶ 44). In April 2014, New GM sent Ward a recall notice regarding the ignition switch defect. (Docket No. 4003 (“Ward Add'l SOF”) ¶ 61). In the notice, New GM notified Ward that it would replace his ignition switch “[w]hether or not [his] ignition switch ha[d] been previously serviced.” (New GM Response SOF ¶ 64). In detailing the dangers of the 423 switch, the recall notice warned that “[t]here is a risk, under certain conditions, that your ignition switch may move out of the ‘run' position, resulting in a partial loss of electrical power and turning off the engine. This risk increases if your key ring is carrying added weight (such as more keys or the key fob) or your vehicle experiences rough road conditions or other jarring or impact related events. If the ignition switch is not in the run position, the airbags may not deploy i[f] the vehicle is involved in a crash, increasing the risk of injury or fatality.” (Ward Add'l SOF ¶ 63).

         On October 17, 2014, Ward filed this action against New GM, alleging that he suffered various injuries as a result of the accident, which was caused, in turn, by his car unexpectedly losing power due to a defect in the car's ignition switch. (14-CV-8317, Docket No. 1). Specifically, Ward brings claims under Arizona law pursuant to four theories: negligence (Count I), strict liability (Count II), fraudulent concealment (Count III), and violation of the Arizona Consumer Fraud Act (Count IV). (Am. Compl. ¶¶ 118-158). All but the strict liability claim are pleaded (in the terminology of the bankruptcy court that presided over the bankruptcy of Old GM) as “Independent Claims” - that is, claims “based solely on New GM's own, independent, post-Closing acts or conduct.” In re Motors Liquidation Co., 09-50026 (REG), Docket No. 13177 ¶ 4 (Bankr. S.D.N.Y. June 1, 2015); see, e.g., In re: Gen. Motors LLC Ignition Switch Litig., 202 F.Supp.3d 362, 364-72 (S.D.N.Y. 2016) (“Cockram Summ. J. Op.”) (discussing the definition of “Independent Claims”). Ward seeks both compensatory damages and punitive damages with respect to these Independent Claims. (Am. Compl. ¶¶ 159-163). In light of rulings by the bankruptcy court, Ward seeks only compensatory damages with respect to his strict liability claim, as to which New GM assumed liability from Old GM in connection with the bankruptcy. See, e.g., In re Motors Liquidation Co., 541 B.R. 104, 108 (Bankr. S.D.N.Y. 2015) (concluding that claims for punitive damages can only be “based on New GM knowledge and conduct alone” because New GM did not assume liability for punitive damages under the Sale Agreement with Old GM).


         The Court begins with the parties' competing Daubert motions. (Docket Nos. 3873 and 3877). The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which provides in relevant part that “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify” to his opinion 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. In Daubert, the United States Supreme Court defined the “gatekeeping role” of district courts with respect to expert testimony, declaring that “the Rules of Evidence - especially Rule 702 - . . . assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” 509 U.S. at 597. “The Rule 702 inquiry is a flexible one that “depends upon the particular circumstances of the particular case at issue.” In re: Gen. Motors LLC Ignition Switch Litig., No. 14-MD-2543 (JMF), 2015 WL 9480448, at *2 (S.D.N.Y. Dec. 29, 2015) (“Scheuer Daubert Op.”) (internal quotation marks omitted). “Although a district court should admit expert testimony only where it is offered by a qualified expert and is relevant and reliable, exclusion remains the exception rather than the rule.” Id. (internal quotation marks omitted). And “[a]lthough expert testimony should be excluded if it is speculative or conjectural, or if it is based on assumptions that are so unrealistic and contradictory as to suggest bad faith, or to be in essence an apples and oranges comparison, other contentions that the assumptions are unfounded go to the weight, not the admissibility, of the testimony.” Id. (internal quotation marks omitted). As the Daubert Court itself stressed, “the traditional and appropriate means of attacking shaky but admissible evidence” are not exclusion, but rather “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Daubert, 509 U.S. at 596.

         A. New GM's Daubert Motion

         New GM challenges the testimony of four experts that Ward intends to call: Matthew Pitman, Glen Stevick, Steve Loudon, and David Lent. The Court addresses each expert in turn, followed by a brief discussion of one issue relating to both Loudon and Stevick.

         1. Matthew Pitman

         First, New GM seeks to preclude testimony from Ward's accident reconstructionist, Matthew Pitman. To the extent that New GM seeks to preclude Pitman from offering his opinion that the accident was caused by inadvertent key rotation, the motion falls short. Pitman is indisputably qualified as an accident reconstructionst, and his reconstruction of the accident and opinion that it was caused by inadvertent key rotation are based on commonly used methods, including tests he conducted, and a review of medical records, witness depositions, repair records, and photographs. (Docket No. 3875 (“New GM Decl.”) Ex. 1 (“Pitman Rpt.”), at 1-2, 5-6). New GM's arguments to the contrary - including, for example, its argument that Pitman ignored certain facts in concluding that Ward's anti-lock braking system was inoperable at the time of the accident (see Docket No. 3874 (“New GM Daubert Mem.”), at 11-13) - ultimately go to the weight, not the admissibility, of Pitman's testimony and are fodder for cross-examination, not exclusion. See, e.g., Scheuer Daubert Op., 2015 WL 9480448, at *3. By contrast, New GM's arguments are well founded to the extent that Ward proposes to elicit Pitman's opinion on why or how the key inadvertently rotated. (New GM Daubert Mem. 10-11; Docket No. 4048 (“New GM Daubert Reply”), at 4-5; New GM Decl. Ex. 2, at 157, 174; Pitman Rpt. 9). (Whether Ward does intend to go that far is somewhat unclear.) Pitman lacks the qualifications to testify on that subject, and did not collect or analyze the sorts of date that he would need to do so. (See New GM Daubert Mem. 10-11 & nn. 47-55). Accordingly, New GM's motion as to Pitman's testimony is granted in part and denied in part.

         2. ...

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