AMENDED ORDER ON MOTIONS IN LIMINE AND DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The plaintiff, Paul Reali ("Reali"), was a front seat passenger ina 1992 Mazda Protegé automobile when it was rear-ended by a pickuptruck. As a result, he suffered diffuse axonal injury, a form of mildtraumatic brain injury. He has sued the defendants Mazda Motor ofAmerica, Inc. d/b/a Mazda North American Operations and Mazda MotorCorporation (collectively "Mazda") claiming that Mazda defectivelydesigned the seat and thereby caused his injuries.
This Order addresses two motions in limine and a summary judgmentmotion filed by Mazda. The motions in limine seek to exclude experttestimony of Professor Mariusz Ziejewski and Terrell Schaefer. Afterreviewing the moving papers, the case law and the record assembled upto this point, I exclude certain, critical testimony of Ziejewski andSchaefer. In the absence of such testimony, Reali cannot surviveMazda's motion for summary judgment.
TESTIMONY OF PROFESSOR MARIUSZ ZIEJEWSKI
Reali offers the testimony of Professor Ziejewski, a biomechanicalengineer, to prove two issues: first, that the forces created in thisaccident were sufficient to cause Reali's diffuse axonal injury; andsecond, that had Mazda employed an alternative seat design, Realiwould not have suffered his injury. Mazda maintains that Ziejewski'stestimony is based on computersimulations that are unreliable andirrelevant under the standards of Daubert v. Merrell Dow Pharm.,Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael,526 U.S. 137 (1999).
1. Human Tolerance Levels
Both parties appear to accept that diffuse axonal injury is caused by highvelocity, angular acceleration of the head and, consequently, thebrain. Angular acceleration velocity is measured in radians persecond squared ("rpss"). The parties disagree on the threshold levelat which angular acceleration velocity leads to diffuse axonalinjury. Reali maintains that it is 1,800 rpss. Mazda maintains thatit is at least 4,500 rpss. In support of his figure, Reali cites a1968 peer reviewed article authored by Dr. A. K. Ommaya and aNational Highway Traffic Safety Administration ("NHTSA") reportciting Dr. Ommaya's results. Mazda claims that Ommaya's article isoutdated and contradicted by Ommaya's own testimony in at least oneother trial, and that the NHTSA report pertains to the development ofchild crash test dummies. Mazda observes that Ziejewski has done noindependent research on this subject and claims that Ziejewski isinsufficiently familiar with the relevant literature.
I conclude on this record that Ziejewski may testify on human tolerancelevels. Mazda concedes that an expert may render an opinion based on therelevant literature and I do not find that Ziejewski has insufficientfamiliarity with the literature. The reliability of Ziejewski'sopinion is bolstered by the fact that a government agency apparentlyrelies upon Ommaya's 1968 conclusions, the same conclusions on whichZiejewski's opinion relies. (Reali has submitted a copy of the Ommayastudy; unfortunately, neither party has presented me with a copy ofthe NHTSA report.) Ommaya's study might be outdated, or NHTSA'sreport might have a tenuous connection to the issues in this case,but on the record as presented these assertions go to credibility,not admissibility.1
2. Accident Forces
Professor Ziejewski used a computer application called Articulated TotalBody ("ATB") to understand the forces involved in the accident. ATBallows its user to model human body dynamics, a critical step inbiomechanical analysis. An important data point in ATB modeling isDelta V, the change in the velocity of one object when struck byanother. Ziejewski used a Delta V of 12 m.p.h. to run his two ATBsimulations. Mazda argues that the 12 m.p.h. figure is unreliablebecause of the way in which Ziejewski derived that figure-makingassumptions based on the vehicle bumper rating and partly throughviewing photographs of the damaged automobile and estimating Delta Vbased on what he saw in the photographs. Reali responds thatZiejewski's figure is based on a reliable analysis of the automobileby Ziejewski, a biomechanical engineer with 25 years experience, andthat Mazda's complaint is a red herring because Mazda's own expertsestimate that the Delta V could have been as high as 11 m.p.h.
I conclude that the 12 m.p.h. figure is unreliable. Under Daubertand Kumho Tire, I am to determine whether opinions are scientificallyvalid-derived from an application of the scientific method or methodsthat are accepted in the relevant field. See Daubert, 509 U.S. at589; Kumho Tire, 526 U.S. at 151-52. Ziejewski derived the 12 m.p.h.figure in large part from eyeballing accident photographs. SeeZiejewski Dep. at 36-17 to 38-15. Reali hasproduced no testimony orrecord evidence suggesting that this is an acceptable way todetermine Delta V. Consequently, I find the 12 m.p.h. figure unreliable.
Reali's red herring argument does not save Ziejewski's Delta V opinion.Under Daubert, I must consider the methodology, not the results. See509 U.S. at 590, 592-93. That Ziejewski's low end figure comes closeto Mazda's experts' high end figure tells me very little about thevalidity of his method. Perhaps Ziejewski could be asked hypotheticalquestions regarding Mazda's 11 m.p.h. figure, but only if that figureis introduced at trial, an event that is uncertain. Even if suchquestions could be posed, the current record does not furnish ananswer to them. At his deposition, Ziejewski refused to opine on theforces of the accident, given a hypothetical Delta V figure, withoutrunning the computer simulation. See Dep. at 45-13 to 46-16.2
3. ATB Simulations
Professor Ziejewski relied upon two ATB simulations to render his opinionsabout the accident forces and about the forces that would haveoccurred with an alternative design. Mazda complains both that ATB isan unreliable way to test accident forces and that Ziejewski'sresults are irrelevant because he did not model the defectsidentified by Reali's car seat design expert, Terrell Schaefer, northe alternative design proposed by Schaefer. Reali responds that ATBmodeling is reliable and that Ziejewski did model theSchaefer-identified defects.
A trial judge may exclude expert testimony that isirrelevant-testimony that does not fit with the facts of the case.See Daubert, 509 U.S. at 591-93; accord Bogosian v. Mercedes-Benz ofNo. America, Inc., 104 F.3d 472, 479 (1st Cir. 1997) (excluding asirrelevant expert testimony because in performing test the expert"did not, in any way, attempt to replicate the known factssurrounding the injury-producing event"). After reading thedeposition testimony and studying the two expert reports, I ampersuaded that neither ATB simulation modeled the defects identifiedby Schaefer. According to Reali, Schaefer testified that the car seatwas defective because it failed in a rotational, non-uniform manner.See Pl.'s Opp'n Mem. to Defs.' Mot. for Summ. J. at 4. Specifically,Schaefer maintained that when Reali's car was struck from behind, theseat too easily rotated inward and collapsed backward. See SchaeferDep. at 28-12 to 29-2. According to Schaefer, the twisting was theprimary mode of failure. See id. at 154-13 to 154-21. But whenZiejewski ran his first ATB simulation to test whether the forces ofthe accident were sufficient to cause diffuse axonal injury, he didnot model the twisting. See Ziejewski Dep. at 110-2 to 110-10. Whathe did was input a static, one-inch inward angulation of the seat andhold it constant throughout the simulation. See id. at 110-2to 116-7. That tells the factfinder nothing about the forces allegedlycaused by what Schaefer has identified as the defect in the Mazdaseat and, in fact, might lead to confusion of the issues. Reali'sseat design expert will say that the automobile was defective becausethe seat twisted and collapsed. However, that defect is not whatZiejewski studied. He studied the forces created when the seat didnot twist and, apparently, did not collapse. This poor fit betweenthe first ATB simulation and the accident troubles me. Nevertheless,I would be inclined to allow Ziejewski to testify about the first ATBsimulation because, he explained, even in the absence of dynamictwisting, the force of the accident was sufficient to cause diffuseaxonal injury and, had he modeled dynamic twisting, the force wouldhave increased. See Ziejewski Dep. at 110-20 to 111-9.3 (Mazdafailed to challenge Ziejewski's opinion that the force would rise asthe model grew more precise.) However, the entire ATB exercise issuspect because of the 12 m.p.h. Delta V input, which I have rejectedas being unreliable. Accordingly, Ziejewski may not testify aboutsimulation 1.
Ziejewski may not testify about simulation 2 for the same reason.Additionally, I note that Ziejewski changed only one factor in simulation 2.Specifically, he made the headrest three times stiffer, an arbitraryfigure. See Ziejewski Dep. at 94-19 to 95-11. His results mightdemonstrate that an alternative design would decrease angularacceleration to a point below harmful forces, but they do not sayanything about the alternative design recommended by Schaefer-namely,installing dual as opposed to single recliner mechanisms in the seats.4
Reali devoted much of his briefing to impugning the methodology employedby, and conclusions of, Mazda's expert, Lawrence Thibault, claimingthat Thibault's methodology was no better. The effort is misguided.The issue presented by Mazda's motion in limine is whetherZiejewski's testimony satisfies the reliability and relevancestandards of Daubert and Kumho Tire. To resolve that issue, Iconsider whether Ziejewski's opinions are scientifically valid andrelevant to the issues before me. The propriety of Thibault's methodsand conclusions never enter the equation. Reali could have filed amotion in limine to limit or exclude Thibault's testimony. That wouldhave been another matter and would have compelled me to measureThibault's work against the Supreme Court standards, as I have donewith Ziejewski's work here.
Mazda's motion to limit or exclude Ziejewski's testimony is thereforeGRANTED IN PART AND DENIED IN PART as follows: Professor Ziejewski maytestify that the threshold for diffuse axonal injury is 1,800 rpss.He may not testify that the car seat, because it was defective,causedangular acceleration at a force sufficient to cause diffuseaxonal injury. Nor may he testify that a stiffer head rest would havelessened or prevented the injury.5
TESTIMONY OF TERRELL SCHAEFER
Reali offers the testimony of Terrell Schaefer, a car seat designexpert, to prove that the Mazda seat, as designed, was defective andthat feasible alternative designs that would have made the seatnon-defective were available. Schaefer's opinion regarding seatcollapse and twisting was based on the results of a test thatSchaefer performed on two exemplar seats from a 1992 Mazda Protegé.The test involved a gradual application of force to the exemplarseats through a bar placed across the seat back cushion, 16 inchesabove the seat bottom cushion. Mazda attacks not only the validity ofthe test and the usefulness of its results, but also the opinionsbased on it. Schaefer performed no tests to demonstrate that hisrecommended alternative design-a dual recliner seat-would havelessened or prevented Reali's injuries.
For the purposes of resolving Mazda's motion, I assume without decidingthat Schaefer's testing protocol satisfies Daubert and Kumho Tire,and that he could testify that the seat was defective because itcollapsed and twisted too easily.6
Nevertheless, Mazda attacks Schaefer's opinion that a dual reclinermechanism in the seat would have prevented twisting and collapsing and,consequently, would have lessened or prevented Reali's injuries.Mazda says that this Schaefer opinion is wholly unsupported. Realiresponds that "Schaefer states throughout his deposition that had theseat had a dual recliner mechanism, which cost [sic] 4-5 U.S. dollarsto produce and install, the seat would have failed uniformly, notrotationally." Pl.'s Opp'n Mem. at 7, 10. I see no such statement inSchaefer's testimony. Even if I did, I would not permit Schaefer tooffer that opinion at trial unless it was supported by reliable data.All I have is Schaefer's assertion-unsupported by citation tostudies, tests or statistics-that certain model cars that employ thedual recliner mechanism are safer. That is not enough.
Mazda's motion to limit or exclude Schaefer's testimony is GRANTED INPART : Schaefer may not testify that dual recliner seats are saferthan single recliner seats.7
MAZDA'S MOTION FOR SUMMARY JUDGMENT
In a products liability case the plaintiff has the burden of proofon causation. Further, in Maine, a plaintiff in a design defect casemust prove that an alternative design is feasible and safer. See St.Germain v. Husqvarna Corp., 544 A.2d 1283, 1285 (1988) (quotingStanley v. Schiavi Mobile Homes, Inc., 462 A.2d 1144, 1148 (Me.1983). Because Professor Ziejewski's opinion is based on accidentforces that cannot be supported on this record, Reali cannotdemonstrate that the defectively designed seat caused his injuries.Because there is no scientifically valid basis for Schaefer's opinionthat a dualrecliner seat would have prevented or lessened Reali'sinjuries and no argument that a stiffer headrest should have beenprovided (the second simulation done by Ziejewski), Reali cannotprove that a safer, alternative design exists. Reali has failed toraise a genuine issue of triable fact on either causation oralternative designs and, therefore, Mazda is entitled to summaryjudgment. Mazda's motion for summary judgment is GRANTED.
DATED THIS 12TH DAY OF JULY, 2000.
1. Because of my ruling, Reali's motion to strike Mazda's replymemorandum is MOOT. Whether Ommaya's testimony from another case isadmissible in this matter is not an issue before me.
2. The deposition reads:
Q: [If] you assume with me that Mr. Rigol's opinion is that Delta V is 6 based on your methodology, that can't be correct. Correct?
A: Again, I don't want to assume anything and comment on something that is not based on facts. I don't want to extend any further opinions in regard to his report and his findings without having a chance to review that.
Q: If you assume with me Mr. Rigol's opinion is that Delta V is 6, if that Delta is the correct Delta V, would the forces of the collision be sufficient to cause brain damage under your analysis?
A: Again, you cannot ask an engineer a question without redoing the analysis. For me to answer this question would be to go back and redo the analysis for different Delta V. You don't know. One thing I can tell you that as you decrease Delta V, you decrease the severity of impact. The fact or the relation between Delta V change and the forces on human body is not simply straight relation. Straight line relation. Nobody can tell you-answer your question without doing the analysis. The only thing I can tell you it would be lower than that.
Dep. at 45-13 to 46-16.
3. The deposition reads:
Q; What did you include in your simulation with respect to twisting?
A: I did not include the dynamic deflection of the seats since there's no reliable data that would allow me to do that. If you're comfortable with that position because it gives you the minimum value of angular acceleration of the head, of the person sitting in the seat like this one it would include the dynamic rotation, twisting of the seat, the angular acceleration would be greater. Even with my assumption, I am showing the forces were sufficient to cause brain damage. I don't worry about the additional elements.
Ziejewski Dep. at 110-20 to 111-9.
4. Reali argues that Ziejewski also testified about the effects ofstiffening seat backs, but that does not remedy Reali's problems:Schaefer never recommended stiffer seats; he only recommended a dualrecliner mechanism. And even if Schaefer did recommend stiffer seats,Ziejewski's testimony regarding seat stiffness would not be enough.Ziejewski did say that a stiffer seat back provides betterprotection. See Dep. at 109-3 to 109-5. But, when pressed for a basisfor this opinion, he only reiterated that it was accepted by theindustry and supported by 30 years of studies that he did notidentify. See id. at 109-11 to 110-1. When asked whether a stifferseat back would have decreased the forces in this accident, Ziejewskitwice said, "I don't know." See id. 97-3 to 97-14.
5. Mazda has also moved for the exclusion of an animatedsimulation videotape, prepared by Ziejewski, that illustrates bodyand brain movement in a rear end collision. See Defs.' Mot. at 11-12.I do not address this portion of the motion because it is notdispositive of Ziejewski's competence to testify.
6. Mazda also contends that Schaefer's testimony is taintedbecause it relies on opinions about how much load, or force, a seatshould withstand before collapsing and how much a seat can twistbefore it is considered defective. According to Mazda, those opinionsare unsubstantiated in the literature and at odds with government andindustry standards. For the purpose of resolving Mazda's motion, Iassume without deciding that Schaefer could give these opinions at trial.
7. Indeed, Schaefer's testimony is that single recliner seats arenot inherently defective. See Dep. at 28-19 to 28-21.
8. Because I grant summary judgment, three other motions in liminefiled by Mazda are MOOT.