United States District Court, S.D. New York
OPINION AND ORDER
M. FURMAN, United States District Judge.
the Parties' Daubert Motions and Cross-Motions
for Summary Judgment]
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).
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.
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).
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).
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).
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
(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
(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.
New GM's Daubert Motion
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
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.