Simmons v. Ford Motor Co. , 132 F. App'x 950 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-31-2005
Simmons v. Ford Mtr Co
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2393
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"Simmons v. Ford Mtr Co" (2005). 2005 Decisions. Paper 1114.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-2393
____________
MARLENE M. SIMMONS,
Appellant
v.
FORD MOTOR COMPANY
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 02-cv-02146)
District Judge: Honorable Anne E. Thompson
____________
Submitted Under Third Circuit LAR 34.1(a)
May 12, 2005
Before: SLOVITER, FISHER and ALDISERT, Circuit Judges.
(Filed: May 31, 2005)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
In this product liability action, Marlene Simmons (“Simmons”) seeks damages
arising from injuries she sustained when, upon exiting her Lincoln Navigator
(manufactured and distributed by Ford Motor Company (“Ford”)), she was struck by that
vehicle when it spontaneously shifted out of park. Simmons appeals the District Court’s
entry of summary judgment as to her claim for strict liability for design defect. Ford
moved for summary judgment and to exclude the testimony of Simmons’ expert Clifford
Anderson, P.E., for its failure to meet the threshold requirements for admissibility
pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). After conducting a Daubert hearing, the District Court
determined that although Anderson was qualified to testify, the proposed expert testimony
failed to satisfy the reliability requirements of F.R.E. 702 and Daubert. In addition, the
District Court determined that Simmons failed to satisfy her burden of providing a
reasonable alternative design to the defect at issue pursuant to New Jersey’s product
liability law. See Lewis v. American Cyanamid Co., 715 A.2d 967, 980 (N.J. 1998).
Simmons subsequently requested that the District Court enter final judgment under Fed.
R. Civ. P. 54(b) because the disqualification of her expert rendered her unable to sustain
her burden at trial regarding the remaining breach of express warranty and failure to warn
claims. We have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons that follow,
we will affirm.
Because we write principally for the parties, who are familiar with the underlying
facts, we need not recite them in detail here. Simmons argues that the Navigator was
defective because its park gear became disengaged by releasing itself or not holding the
proper position, causing the vehicle to roll backward. She contends that the vehicle was
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in “false park,” where a driver senses by feel and observation that she has placed the gear
shift lever in park but the parking pawl does not land in the appropriate place in the
transmission. This condition makes the vehicle susceptible to moving out of park into
neutral or reverse and permits inadvertent movement of the vehicle to occur. To prove
this theory of liability and her proposed alternative double wheel design regarding the
alleged defect, Simmons relied on the opinions of Anderson, which were excluded from
evidence. We apply an abuse of discretion standard when reviewing a trial court’s
decision to admit or exclude expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S.
137, 152 (1999).
The District Court has broad discretion in determining the admissibility of
evidence, and “considerable leeway” in determining the reliability of particular expert
testimony under Daubert. Kumho, 526 U.S. at 152-53. Even where a witness is qualified
to testify as an expert, as was Anderson, he may only testify if (1) the testimony is based
upon sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the testimony evidences reasoning or methodology that properly can be
applied to the facts in issue. F.R.E. 702; In re Paoli R.R. Yard PCB Litig., 35 F.3d 717,
742 (1994). In assessing reliability, the District Court is guided by a number of factors
including: (1) whether a method consists of testable hypotheses; (2) whether the method
has been subject to peer review; (3) the known or potential rate of error; (4) the existence
and maintenance of standards controlling the techniques’s operation; (5) whether the
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method is generally accepted; (6) the relationship of the technique to methods which have
been established to be reliable; (7) the qualifications of the expert witness based on the
methodology employed; and (8) the non-judicial uses to which the method has been put.
Calhoun v. Yamaha Motor Corp., 350 F.3d 316, 321 (3d Cir. 2003); Paoli, 35 F.3d at 742
n.8.
The District Court determined from both Anderson’s report and his testimony at
the Daubert hearing that the process by which he reached his conclusions was unreliable.
Calhoun, 350 F.3d at 321. Specifically, the District Court determined that he failed to
provide a testable hypothesis and was never able to duplicate a scenario where the weight
of the vehicle in combination with false park caused the vehicle to move; the method he
utilized was not subject to peer review; he failed to produce any material or data from
which a potential rate of error could be gathered; he had not established that he had used
any standards when conducting his tests; and there was no assertion that he utilized a
generally accepted method for determining false park.
Despite Simmons’ arguments to the contrary, Anderson’s conclusions derive from
subjective observations and methodologies, thus failing to meet the reliability
requirements of F.R.E. 702 and Daubert. Kumho Tire, 526 U.S. at 154-55. Although he
opined that the vehicle was in false park when Simmons exited the vehicle, he could not
identify why the car disengaged from park. Anderson admitted that he could not replicate
the movement that caused Simmons’ injuries and that he arrived at two theories why the
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movement occurred simply because he could not come up with any other causes of the
movement. Anderson posited that Simmons’ vehicle rolled backwards either due to
Simmons’ inadvertent shifting of gears upon exiting the vehicle or due to the weight of
the vehicle combined with Simmons’ movement. The former theory lacks evidentiary
support. Simmons testified that the vehicle was placed in park, turned off, and exited by
her before the spontaneous movement occurred. As to the latter theory, Anderson could
not duplicate the movement experienced by Simmons. Further, when he accomplished
movement by hitting the gear shift out of park, the vehicle rolled too fast to permit his
exit from the vehicle.
As to whether Simmons provided sufficient evidence of a reasonable alternative
design, we conclude that the District Court correctly ruled that she had not met her burden
in this regard. Under New Jersey law, a plaintiff claiming that a product is defectively
designed bears the burden of proving that a practical and feasible alternative design
would have reduced or prevented the harm. Lewis, 715 A.2d at 980. The District Court
must initially determine whether sufficient evidence has been presented to permit a
reasonable factfinder to conclude that a reasonable alternative design could have been
adopted. H.T. Rose Enter., Inc. v. Henny Penny Corp., 722 A.2d 587 (N.J. Super. 1999).
Here, the District Court properly exercised its discretion in determining that the testimony
offered by Anderson failed to meet the threshold for admissibility. The proposed
alternative was nothing more than a sketch without a mock-up or testing of the design.
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Nor could Anderson affirm that the proposed alternative design was in use by any vehicle
manufacturer or that any manufacturer had eliminated the possibility of false park in the
design of vehicles with automatic transmissions. Anderson offered only his
unsubstantiated belief as to what would be a feasible alternative design. Absent data or
evidence to support such a conclusion, however, we conclude that the District Court
properly exercised its discretion in excluding Anderson’s testimony. See H.T. Rose, 722
A.2d at 595-97; Smith v. Keller Ladder Co., 645 A.2d 1269, 1272 (N.J. Super. 1994).
We have considered all of the arguments of the parties and conclude that no
further discussion is necessary. For the foregoing reasons, we will affirm the judgment of
the District Court.
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