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In re General Motors LLC Ignition Switch Litigation

United States District Court, S.D. New York

December 28, 2017

General Motors, No. 15-CV-1626 This Document Relates To: Greenroad Abney et al.
General Motors, No. 14-CV-5810


          JESSE M. FURMAN, United States District Judge

         [Regarding the Parties' Daubert Motions and New GM's Motions for Summary Judgment in the Bellwether Phase Two, Category B Cases]

         This multidistrict litigation (“MDL”), familiarity with which is assumed, arose from the recall in 2014 by General Motors LLC (“New GM”) of General Motors (“GM”) vehicles that had been manufactured with a defective ignition switch - a switch that could too easily move from the “run” position to the “accessory” and “off positions, causing moving stalls and disabling the airbag and other critical safety systems. In most of the personal injury and wrongful death cases pending before the Court, Plaintiffs point to the non-deployment of airbags following deployment-level crashes as evidence of inadvertent switch rotations. Approximately 213 Plaintiffs, however, bring claims arising from accidents in which airbags actually deployed. (Docket No. 4850, at 2-3). New GM contends that if the airbag in a vehicle deployed during an accident sequence, the switch was in the “run” position and, a fortiori, that the switch did not inadvertently rotate out of “run.” Plaintiffs concede that if a vehicle's airbag deployed, the switch was in the “run” position at the moment of impact, but allege that a switch could have rotated from “run” to “accessory” or “off first, caused (or exacerbated) an accident, and then rotated back into the “run” position before airbag deployment.

         To test these positions, the parties identified two cases to serve as “bellwethers” for the category of cases involving airbag deployment - referred to as “Category B” of Phase Two of the Court's bellwether program. (Docket No. 3081, at 1-2). In an Order entered on July 7, 2016, the Court specified that discovery and motion practice in the two Category B cases would be focused, at least in the first instance, on whether Plaintiffs could “offer sufficient admissible evidence to create a genuine issue of material fact as to whether an inadvertent ignition switch rotation occurred in an accident where an airbag deployed during that accident.” (Id. at 6). Now pending are (1) the parties' dueling motions to preclude expert opinions and testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Rule 702 of the Federal Rules of Evidence; and (2) New GM's motion, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment in the two Category B bellwether cases.

         For the reasons stated below, the Court concludes that New GM's motions must be granted. Significantly, neither Plaintiffs nor their experts cite any evidence suggesting that double ignition switch rotation has occurred in the real world. Nor did (or could) they conduct any experiments that would tend to show that double switch rotation is anything more than a theoretical possibility. At the end of the day, the experts' opinions that double rotation could occur, and did occur in each of the cases at issue, relies more on ipse dixit and speculation than it does on actual scientific or technical expertise. It follows that those opinions do not pass muster under Daubert and Rule 702 and must be excluded. And from that conclusion, it follows that New GM is entitled to judgment as a matter of law in each of the two cases.


         The following brief background is taken from admissible evidence in the record and the parties' statements submitted pursuant to Local Rule 56.1. See, e.g., Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011).

         A. The Accidents

         On the night of February 3, 2011, Vivian Garza and two passengers - all Texas residents - were driving in icy weather conditions in a 2009 Chevrolet Cobalt (the “2009 Cobalt”) across a bridge on a four-lane highway in Alice, Texas. (Docket No. 3710 (“Def.'s 56.1 Statement”) ¶¶ 4-5, 11-17). It was Garza's first time driving on ice. (Id. ¶ 19). Before Garza reached the bridge, a car ahead of hers lost control and “rolled” into the highway median. (Id. ¶ 9). A Ford Mustang then “lost control” and struck a guardrail, coming to a stop in the middle of the road. (Id. ¶¶ 9, 18). Thereafter, a third vehicle hit the Mustang and fled the scene. (Id. ¶ 9). Garza testified that she then tried to steer her car to avoid the Mustang, but she was unable to turn the steering wheel. (Docket No. 3776 (“Lusztig Decl.”), Ex. 22, at 70). Her 2009 Cobalt crashed into the Mustang, at which point the Cobalt's airbags deployed; Garza's vehicle subsequently struck the guardrail, but with insufficient force to cause an airbag deployment. (Def.'s 56.1 Statement ¶ 10; Docket No. 3712 (“Bartoszek Decl.”), Ex. 10 (“McCort Garza Report”), at 10-11). A crash data retrieval (“CDR”) report from the car indicated that it was in the “run” mode when the crash with the Mustang occurred. (Def.'s 56.1 Statement ¶¶ 26-27).

         The Greenroad case arises from an accident nearly two years later. At that time, Ruby Greenroad, also a resident of Texas, was eighty-nine years old and suffered from benign positional vertigo, for which she was prescribed the anti-vertigo medication meclizine. (Id. ¶¶ 28, 31; Docket No. 3774 ¶ 80). On January 12, 2013, she was driving her 2007 Chevrolet Cobalt (the “2007 Cobalt”) toward a T-intersection on an overpass when, she later claimed, her brakes failed; she began pumping the brakes and attempting to steer her car through the intersection, both to no avail. (Id. ¶¶ 44, 48). Her 2007 Cobalt veered off the road into the guardrail, then flew off the overpass and crashed into the ground below, causing the airbag to deploy. (Id. ¶¶ 48-49). The 2007 Cobalt's Sensing Diagnostic Module (“SDM”) - which records certain information in the event of a crash - was never imaged after the crash, and thus no CDR report is available. (Docket No. 3709 (“Def.'s Mem.”), at 9 n.17).

         B. Plaintiffs' Theory

         It is undisputed that, in each of the cars at issue, the ignition switch had to be in the “run” position for the airbags to deploy - as they did. (Def.'s Mem. 2; Docket No. 3773 (“Pls.' Mem.”), at 3). In fact, it is undisputed that, for the airbags to have deployed in either case, the ignition switch had to be in the “run” position for at least 2.5 to 3 seconds before the relevant impact, as that is the minimum amount of time it would have taken the airbag system to reinitialize and deploy. (Def.'s Mem. 3; Pls.' Mem. 3). Thus, in these cases - as in all of the Category B cases - the Plaintiffs' theory is that the ignition switches in the cars at issue rotated twice. Specifically, Plaintiffs posit that each ignition switch first moved inadvertently out of the “run” position into the “accessory” or “off” position; stayed in accessory or off long enough to result in the loss of crucial features - such as power brakes, power steering, and airbag systems - and to cause or exacerbate the accident at issue; and then shifted back from accessory or off to run at least 2.5 seconds before a crash of sufficient magnitude to cause airbag deployment, leaving enough time for the airbag system to reinitialize and the airbags to deploy upon impact. The Court will refer to that full sequence of events as an “Airbag Deployment RAR Sequence.”

         C. Plaintiffs' Experts

         In support of their theory that the Airbag Deployment RAR Sequence occurred in both accidents, Plaintiffs proffer three experts: Michael McCort, Glen Stevick, and Chris Caruso. First, McCort conducts an accident reconstruction analysis, including the sequence, speed, and trajectory of each Plaintiff's vehicle, and seeks to opine on the likelihood that each crash was caused by ignition switch rotation. (McCort Garza Report 1; Bartoszek Decl., Ex. 13 (“McCort Greenroad Report”), at 1). In Garza, after reconstructing the likely sequence of the accident, McCort supports his conclusion that double ignition switch rotation caused the crash with the Mustang by noting that the drop in engine speed within three and two seconds of Garza's impact with the Mustang “indicates [that] a key state change from RUN to ACC or OFF occurred prior to the Mustang coupe impact and most likely between the -3 sec and -2 sec time intervals.” (McCort Garza Report 12-13 (“The key state change induced a moving stall, shutting off the engine and resulting in 0 RPM being recorded in the pre-crash data from -2 sec to -1 sec.”)). McCort accounts for the subsequent airbag deployment by opining that by the time of “the Deployment event, the key state had returned to RUN and the Run/Crank Ignition Switch Logic Level reported as ‘Active.'” (Id. at 13). His report explains that the reduced braking Garza exhibited in the course of the accident and “the reported steering problems testified to by the driver and her passengers” were “consistent” with ignition switch rotation. (Id. at 15). McCort apparently assumes that double ignition switch rotation is possible - both in general and within the time period in which the Garza accident occurred. He did no independent analysis to verify these assumptions and did not rely on the opinions of Plaintiffs' other experts as to the possibility of an Airbag Deployment RAR Sequence. (See Bartoszek Decl., Ex. 9 (“McCort Dep.”), at 17, 63-64, 66, 78).

         Similarly, in Greenroad, McCort opines on the speed and sequence of the accident before concluding that “[b]ecause there was an airbag deployment in this crash, the most likely scenario is a key state change from RUN to ACC and back to RUN” and that the latter “must have occurred at least 2.5 seconds prior to the ground impact that resulted in deployment.” (McCort Greenroad Report 10). McCort notes that Greenroad's reported loss of engine power, power steering, and power braking were “consistent with what occurs when the key state is moved to the ACC or OFF position, turning off the engine, ” as was Greenroad's description of pumping her brakes without effect. (Id. at 11). While acknowledging that the “cause of a key state change in the subject crash is unknown, ” McCort explains that “[i]t has been shown by others, including GM, that a key state change can occur due to driver interaction with the vehicle, such as a knee impact, or external forces such as ground bumps or impacts” and posits that expansion joints in the bridge deck or Greenroad's knee interacting with the key could have caused the ignition switch to rotate. (Id.). He further opines that “[r]otation caused by a knee impact or a bump in the road could have occurred at least twice during this accident sequence; just before Ms. Greenroad experienced the described loss of power, and then again approximately 2.5-3 seconds before the vehicle's impact with the ground.” (Id.).

         Plaintiffs' second expert, Stevick, is a mechanical engineer who specializes in failure analysis and the design of mechanical-electrical equipment and systems. Stevick's testing for his report consisted of mounting GM ignition switches in test frames and measuring their torque responses in moving from off to accessory to run to start and back from run to accessory to off. (Bartoszek Decl., Ex. 5 (“Stevick Report”), at 9). Stevick concludes that 2006 and earlier model year switches had “measurably lower torques than the 2008 and later [model year] vehicle switches, ” while ignition switches from 2007 had a wider range of torques. (Id. at 9-17). Stevick notes that “the same low torque that allows the switch to inadvertently move from RUN to ACC will allow the switch to move back from ACC to RUN later in the sequence of events. Either inertial loadings or knee-to-key interaction can move the ignition switch back to RUN. If the SDM maintained power or had sufficient time to reinitialize the airbags may be deployable at later stages of the collision event because the switch moved back to the RUN position.” (Id. at 17-18). Stevick also offers opinions regarding the evidence in Greenroad's and Garza's cases “supporting ignition rotation.” (Id. at 18-24). Citing Greenroad's statements about her perceived loss of power steering and power braking, Stevick notes that “the failure of the ignition switch to stay in RUN would lead to all of the descriptions that Ms. Greenroad provided to multiple persons - loss of steering, loss of braking, and the engine turning off.” (Id. at 20). Descriptions of Greenroad's key ring, Stevick opines, are “consistent with a knee to key interaction, particularly given witness testimony that Ms. Greenroad kept her seat near the steering column. This interaction can move the ignition switch from RUN to ACC . . . [and] could also move the switch back from ACC to RUN later in the collision sequence of events.” (Id. at 21). And “inertial activation/rotation of the ignition switch cannot be ruled out” because the switch in Greenroad's car “was known to be in the family of recalled switches, which had very low actuation torques for both RUN to ACC and ACC to RUN.” (Id.). Similarly, Stevick notes that the “vehicle symptoms described by the subject vehicle occupants in the Garza incident are consistent with a loss of power due to ignition switch rotation out of the RUN position.” (Id. at 21-22). According to Stevick, a photograph of Garza's key ring confirms that it included “several hanging items, ” rendering knee-to-key interaction “a possible cause of an inadvertent ignition switch rotation out of the RUN position prior to impact and possibly back into run during the sequence of collision events”; in Stevick's view, Garza was similarly susceptible to knee-to-key interaction “due to her height and consequently her seat position.” (Id. at 23). As in the Greenroad case, Stevick opines that “inertial rotation of the ignition switch cannot be ruled out” given the “low actuation torques” in the subject ignition switches. (Id. at 24).

         Finally, Plaintiffs seek to introduce the opinions of Caruso, an automotive safety systems expert. Caruso's “process consists of identifying, to the extent possible, the system design, development and testing methodologies used by the [original equipment manufacturer] and systems suppliers, evaluating these processes and determining, based on forensic evidence from the subject vehicle, potential sources for the failure.” (Bartoszek Decl., Ex. 8 (“Caruso Report”), at 7). Caruso opines that Greenroad's loss of control “indicates a catastrophic loss of vehicle power caused by the known defect in the GM ignition switch design” and that the “subsequent deployment of the airbag during the crash sequence was the result of the vehicle ignition being put back into the RUN/Crank mode within 2.5 to 3 seconds before the vehicle's impact with the ground.” (Id.). Caruso describes the Greenroad crash as “consistent” with three earlier accidents involving GM vehicles - the Breen, Frei, and Harding accidents - in which the airbags did not deploy despite the vehicles being in “run” as late as one second before impact; engineers at New GM initially theorized that the three accidents were caused by double ignition switch rotation. (Id. at 7-8, 12-15). Caruso assumes that the Airbag Deployment RAR Sequence generally is possible based on McCort's opinions concluding that double ignition switch rotation caused these accidents and on New GM's speculation regarding the Breen, Frei, and Harding accidents. (Id. at 15-16). He opines that “the most plausible explanation” for the combination of “the ignition switch rotation which caused the accident” and the subsequent airbag deployment is double ignition switch rotation, caused by knee-to-key interactions, “sudden vehicle jerk[s], ” or Greenroad's deliberate attempt to rotate the ignition switch back into run mode by hand. (Id.). Notably, Plaintiffs no longer plan to elicit Caruso's opinions about the causes of the Garza crash. (See Pls.' Mem. 32).[1]

         APPLICABLE ...

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