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Bullock v. Volkswagen Group of America, Inc.

United States District Court, M.D. Georgia, Columbus Division

May 11, 2015

CHERYL BULLOCK and KEVIN BULLOCK, Plaintiffs,
v.
VOLKSWAGEN GROUP OF AMERICA, INC., VOLKSWAGEN AG, and HONEYWELL INTERNATIONAL, INC., Defendants.

ORDER

CLAY D. LAND, Chief District Judge.

In Virgil's ancient epic poem The Aeneid, Diomede advises the Latians to avoid war based on his personal experience. Virgil uses the phrase e xperto credite ("believe the expert") in the original version to explain why Diomede should be believed.[1]

Like many product liability actions, liability in this case depends on which parties' experts are believed. Since the days of Virgil, particularly in the federal courts, some have grown skeptical of those who base their expertise on their own personal experience. Many modern day lawyers and judges would scoff at Diomede's suggestion of experto credite. They would likely label his attempt to support his opinion that war should be avoided based on his first-hand experiences in war with the oft-quoted Daubert motion favorite-expert opinion evidence must be rejected when the foundation of the opinion is the ipse dixit of the expert ("believe it solely because I said it").[2] This skepticism arises especially when an expert does not have multiple advanced degrees or maintain an up-to-the-minute curriculum vitae on his web site; but instead bases his opinion primarily on personal experience. In this case, one of Plaintiff's experts, Lee Hurley, is a veteran automobile mechanic with over 40 years experience. He may be no Diomede, but he confirms the wisdom of Virgil's observation that old-fashioned first-hand experience can be a powerful thing.

Before reaching the merits of the pending motions, a few additional observations about the pervasive use of Daubert motions in modern day litigation are appropriate. Much of the Daubert -related skepticism of expert testimony arises in part from an apparent concern that ordinary citizens are incapable of evaluating the credibility of some types of opinion evidence. Thus, we have anointed the omniscient judge as the gatekeeper to determine what opinions a jury should and should not hear. The gatekeeper role originated over concerns about "junk science, " but some have expanded it to decide cases on the merits based on an assessment that the expert's opinion is not credible. Allowing such credibility assessments to lock the gate to the jury box removes decisions traditionally best left to the common sense and varied life experiences of a properly instructed jury. Although the Court certainly has a duty to perform its gatekeeping function, it must be careful to recognize the distinction between excluding evidence based on skepticism as to its believability (an assessment to be made by the jury) and excluding evidence because it is not reasonably reliable (a job for the judge). In some cases, this distinction becomes blurred and is difficult to ascertain. This is not such a case.

Plaintiffs Kevin and Cheryl Bullock filed this product liability action against Defendants Volkswagen Group of America, Inc., Volkswagen AG, and Honeywell International, Inc., alleging that the Honeywell turbocharger in their 2004 Volkswagen Passat was defective. They contend that as a result of the defective turbocharger, the vehicle suddenly and unintendedly accelerated, causing Mrs. Bullock to lose control of it. The car left the roadway and flipped, and Mrs. Bullock suffered injuries from the crash. She seeks to recover damages for her personal injuries; her husband seeks damages for loss of consortium. To prove that the turbocharger was defective and contributed to the crash, Plaintiffs rely on two expert witnesses: Lee Hurley, an automotive mechanic with over 40 years of experience; and Mark Hood, a materials engineer.

The Court finds that Plaintiffs' experts are sufficiently qualified and their opinions are adequately reliable and adjusted to the facts of this case such that a jury should hear their opinions and decide whether to believe them. Accordingly, for the reasons explained in the remainder of this Order, Defendants' motions to exclude the testimony of Plaintiffs' experts (ECF Nos. 49, 50, 51, & 52) are denied. Because that testimony, along with other evidence in the record, creates genuine factual disputes as to Defendants' liability in this case, Defendants' summary judgment motions (ECF Nos. 53 & 56) are also denied in large part. Plaintiffs' motion to exclude one of Defendants' experts (ECF No. 54) is also denied.

DISCUSSION

I. Defendants' Daubert Motions

A. Standard for the Admissibility of Expert Opinions

Under Federal Rule of Evidence 702, the Court must serve as the gatekeeper "to keep out irrelevant or unreliable expert testimony." United States v. Ala. Power Co., 730 F.3d 1278, 1282 (11th Cir. 2013) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 145 (1999) and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993)). "This gatekeeping role, however, is not intended to supplant the adversary system or the role of the jury: vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Id. at 1282 (internal quotation marks omitted).

In evaluating the admissibility of expert testimony under Rule 702, the Court must consider whether "(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable...; and (3) the testimony assists the trier of fact... to understand the evidence or to determine a fact in issue." United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc). Many cases, particularly those involving opinion testimony that relies on the scientific method, cite the traditional factors that courts should consider when determining whether an expert's methodology is sufficiently reliable: "(1) whether the expert's theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential error rate of the technique; and (4) whether the technique is generally accepted in the scientific community." Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1327 (11th Cir. 2014) (per curiam). These factors, of course, represent a non-exhaustive list and "do not constitute a definitive checklist or test.'" Id. (quoting Kumho Tire, 526 U.S. at 150). "While those factors may help in assessing the reliability of scientific or experience-based expert testimony, the district court's gatekeeping inquiry must be tied to the facts of a particular case.'" Id. (quoting Kumho Tire, 526 U.S. at 150). In its gatekeeping role, the Court's focus must be on the reliability of the testimony, not simply whether it fits within the narrow confines of lawyer-urged litmus tests. While "each stage of the expert's testimony [must] be reliable, ... each stage must [also] be evaluated practically and flexibly without bright-line exclusionary (or inclusionary) rules.'" Frazier, 387 F.3d at 1262 (quoting Heller v. Shaw Indus., Inc., 167 F.3d 146, 155 (3d Cir. 1999)). Although it is certainly appropriate in some cases to scrutinize "how often an engineering expert's experience-based methodology has produced erroneous results, or whether such a method is generally accepted in the relevant engineering community..., it will [likewise] at times be useful to ask even of a witness whose expertise is based purely on experience... whether his preparation is of a kind that others in the field would recognize as acceptable.'" Id. at 1262 (quoting Kumho Tire, 526 U.S. at 151). The Court's goal is to ensure that an expert "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'" Id. at 1260 (quoting Kumho Tire, 526 U.S. at 152). "Sometimes the specific [traditional] Daubert factors will aid in determining reliability; sometimes other questions may be more useful." Id. at 1262. To allow the testimony to be considered by the jury, the Court must find that "it is properly grounded, well-reasoned, and not speculative.'" Id. (quoting Fed.R.Evid. 702 advisory comm. note (2000 amends)).

B. Lee Hurley

Lee Hurley is a motor vehicle mechanic. He has been a mechanic for more than forty years. Hurley has worked with all kinds of engines, including turbocharged diesel engines like the one in Mrs. Bullock's Passat. Hurley has investigated and diagnosed unintended acceleration events in cars, and he designed a solution to fix a problem with unintended acceleration in prior model Volkswagen turbocharged engines.

In this case, Hurley intends to explain how a turbocharged engine works and how oil migrates through the engine. He also intends to explain the basis for his opinion that oil seeped through the turbocharger's compressor seal and ultimately into the Passat's engine, creating an unintended acceleration event. To reach his conclusions, Hurley relied on his experience as a mechanic, his inspections of the Passat and its components, and his testing of an exemplar Volkswagen Passat that had the same turbocharged diesel engine as Mrs. Bullock's Passat.

Based on Hurley's affidavits, expert report, and Daubert hearing testimony, Hurley has extensive experience inspecting, evaluating, testing, and diagnosing engine problems, as well as building, servicing, repairing, designing, and modifying automotive engines-including turbocharged diesel engines. Based on Hurley's experience, the Court finds that he is qualified to testify about the matters he intends to address.

Defendants contend that even if Hurley is qualified to give an expert opinion in this case, his opinion is not based on reliable methodology and should therefore be excluded. Defendants argue that Hurley's opinion is nothing more than an ipse dixit assessment, i.e., my opinion is reliable because I am an expert and I say that it is. Defendants misunderstand and mischaracterize the nature and basis of Hurley's opinions. Hurley formed his opinions by observing the physical evidence, testing an exemplar vehicle, and drawing on his extensive experience in the field. That is not an ipse dixit assessment.

Hurley personally reviewed the available physical evidence- Mrs. Bullock's Passat-and observed excessive amounts of oil indicating a leak from the turbocharger seal. Hurley explained that while he did not conduct a precise measurement of the oil, he knew based on his skill and experience that the amount of oil he saw where he saw it was excessive. Moreover, evidence of the excess oil remains on the component parts of the vehicle and can be shown to the jury as the jury evaluates Hurley's opinions. He explained why the failure to measure the excessive oil down to the closest gram or milliliter does not diminish the reliability of his conclusion. Hurley also stated that reasonable mechanics of similar experience and knowledge would reach the same conclusion based on generally accepted principles of automotive mechanics and on Volkswagen's representations regarding how much oil should be in the turbocharger and the intake hoses.

A multi-page, Latin-titled listing of every degree ever received and every seminar ever attended does not always qualify someone as an expert witness. Nor does an opinion necessarily have to be unduly complicated to be reliable. Hurley has spent his entire life since age seven in a garage. He has studied automobiles-listening to owners' complaints, examining their vehicles, diagnosing what is wrong with them, and then devising a plan to fix them. Hurley has torn down engines and turbochargers. He has seen how they work. He has personally encountered the very problems that allegedly existed in Mrs. Bullock's Passat. He has observed how excessive oil escaping from a turbocharger can create an accelerant for the engine, producing unintended acceleration. He did not learn this by doing a Google search or by being in front of a blackboard (or smartboard). He experienced it. His classroom was the garage. He explained how his examination of the vehicle after the crash supports his opinions. Essentially, he opines that no more than a de minimis amount of oil should escape from the turbocharger because excess oil can create an accelerant that can cause unintended acceleration. And he found substantially more than de minimis oil in an area where it could only have been found if there was a substantial leak from the turbocharger. He eliminated the other possible sources of the oil and concluded the most likely source was the turbocharger's seal. Hurley adequately explained how his own personal experience led him to his conclusions and why those opinions are reliable. Cf. Frazier, 387 F.3d at 1261 (noting that a "witness must explain how [his] experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that ...


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