The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND ORDER DENYING DEFENDANTS' MOTIONS TO EXCLUDE THE TESTIMONY OF WILLIAM BROADHEAD AND WILSON HAYES (Documents # 57, #62 & #64)
Plaintiff Tracy Yu-Santos ("Plaintiff") has filed a wrongful death action against Defendants. Plaintiff's action arises from a vehicle rollover accident of a 1998 Ford Explorer on December 25, 2004, in which her two children, Keilan Tito Santos ("Keilan") and Tia Leilani Santos ("Tia") were ejected and killed. Plaintiff has sued Defendants for defective design and manufacture of the seat belts. This case comes before the court on a motion for summary judgment or, in the alternative, for summary adjudication brought by defendants TRW Vehicle Safety Systems Inc. ("TRW VSSI"), TRW Automotive Holdings Corp. ("TRW AH"), TRW Automotive Inc. ("TRW AI"), and TRW Automotive U.S. LLC ("TRW AU"), (collectively "Defendants"). Defendants have also filed motions to exclude the testimony of Plaintiff's experts William G. Broadhead ("Broadhead") and Dr. Wilson C. Hayes ("Hayes") pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). For the reasons that follow, this court grants in part and denies in part Defendants' motion for summary judgment. Defendants' motions to exclude the testimony of Broadhead and Hayes are denied.
The following facts are presented in the light most favorable to Plaintiff, the non-moving party.
On December 25, 2004, Christopher Miranda ("Christopher") was driving Plaintiff's 1998 Ford Explorer on Interstate 5 in Fresno County, California when he lost control of the vehicle. The vehicle left the roadway and overturned. Prior to the accident, Tia was sitting in the right front passenger seat and was wearing her seat belt. Keilan was sitting in the right rear passenger seat. Plaintiff's and Defendants' experts dispute whether Keilan was wearing his seat belt but Plaintiff and Robert Santos ("Mr. Santos") have both testified in their depositions that Keilan always wore his seat belt. Daniel Torres-Santos ("Daniel") was sitting in the left rear passenger seat and was also wearing his seat belt. Paloma Santos ("Paloma") was sitting in the center rear passenger seat and did not appear to have been wearing her seat belt. Christopher was in the driver's seat and was wearing his seat belt.
During the rollover, both of the Ford Explorer's passenger-side doors and the rear cargo door opened. Tia, Keilan, Daniel, and Paloma were fully ejected from the vehicle. Tia, Keilan, and Paloma were pronounced dead at the scene of the accident. Daniel was pronounced dead while en route to the hospital. Christopher was not ejected from the vehicle during the rollover and was the sole survivor of the crash.
The California Highway Patrol Central Division Multidisciplinary Accident Investigation Team's ("MAIT") supplemental report indicated that Tia's and Daniel's seat belt webbing had separated. Additionally, the MAIT report indicated that Keilan's seat belt buckle did not lock and unlock. Plaintiff testified during her deposition that Keilan's seat belt appeared to be functional prior to the accident.
On December 19, 2006, Plaintiff filed an amended complaint against Defendants alleging that Tia's and Keilan's seat belts were defectively designed and manufactured and caused their deaths. Plaintiff also named her ex-husband Mr. Santos as a nominal defendant because, as the father of Tia and Keilan, he is an heir to their estate. Plaintiff's first cause of action alleges strict products liability. Plaintiff's second cause of action alleges negligence. Plaintiff's third cause of action alleges breach of warranty. Plaintiff's fourth cause of action alleges failure to warn. Plaintiff designated Broadhead to testify about whether the seat belts performed properly during the accident. Plaintiff designated Hayes to testify about how Tia and Keilan sustained their injuries.
On November 17, 2008, Defendants filed a motion for summary judgment as to all causes of actions or in the alternative, for summary adjudication. Defendants contend they are entitled to summary judgment as to the first and second causes of action because Plaintiff cannot establish the existence of any probable seat belt defect or injury causation. Defendants contend they are entitled to summary judgment as to the third cause of action because TRW VSSI did not have a duty to warn as a component part supplier. Defendants contend they are entitled to summary judgment as to the fourth cause of action because Plaintiff lacks privity with the Defendants.
On November 17, 2008, Defendants filed separate motions to exclude the testimony of Plaintiff's experts Broadhead and Hayes.
On December 1, 2008, Plaintiff filed oppositions to Defendants' motion for summary judgment and motions to exclude the testimony of Broadhead and Hayes.
On December 8, 2008, Defendants filed a reply to Plaintiff's opposition and evidentiary objections to Broadhead's and Hayes's declarations in support of Plaintiff's opposition. Defendants request that this court strike both declarations.
The court took the matter under submission on December 11, 2008.
On December 12, 2008, the court received a letter drafted by nominal pro se defendant Mr. Santos. In the letter, Mr. Santos expressed his concerns with Plaintiff's causes of action. Mr. Santos's letter was not styled as a motion, an affidavit, or a declaration.
On December 16, 2008, the clerk of the court mailed Mr. Santos a clerk's notice informing him that his letter needed to be styled as a motion and not a letter pursuant to Rule 7. The clerk of the court mailed the notice to Mr. Santos's last known address on file with the court.
On December 23, 2008, the clerk's notice was returned to the court because the address was incorrect. Subsequently, a clerk of the court emailed and telephoned Mr. Santos regarding this matter but was unable to contact him. See Minute Order dated January 27, 2009.
On December 15, 2008, Plaintiff filed a surreply in support of her opposition. Plaintiff's surreply is based on the ground that her opposition should not be stricken because it was timely filed. On December 16, 2008, Defendants filed an objection to Plaintiff's surreply and request that the surreply be stricken because Plaintiff did not request permission from the court to file a surreply.*fn1
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985). Where summary judgment requires the court to apply law to undisputed facts, it is a mixed question of law and fact. See Sousa v. Unilab Corp. Class II (Non-Exempt) Members Group Benefit Plan, 252 F. Supp.2d 1046, 1049 (E.D. Cal. 2002). Where the case turns on a mixed question of law and fact and the only dispute relates to the legal significance of the undisputed facts, the controversy for trial collapses into a question of law that is appropriate for disposition on summary judgment. See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1523 (9th Cir. 1994); Sousa, 252 F.Supp.2d at 1049.
[Editor's Note: Text illegible] district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56 (c), is satisfied." Id. at 323.
If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Nissan Fire & Marine Ins., 210 F.3d at 1103; Nolan v. Cleland, 686 F.2d 806, 812 (9th Cir. 1982); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A "genuine issue of material fact" arises when the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248-49; Thrifty Oil, 322 F.3d at 1046.
In attempting to establish the existence of a factual dispute, the opposing party may not rely upon the mere allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56 (e); Matsushita, 475 U.S. at 586 n.11; First Nat'l Bank, 391 U.S. at 289; Willis v. Pacific Maritime Ass'n., 244 F.3d 675, 682 (9th Cir. 2001). However, the opposing party need not establish a material issue of fact conclusively in its favor.
It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 290; Hopper v. City of Pasco, 248 F.3d 1067, 1087 (9th Cir. 2001). Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587; Mende v. Dun & Bradstreet, Inc., 670 F.2d 129, 132 (9th Cir. 1982).
In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. See Fed. R. Civ. P. 56 (c); Fortyune, 364 F.3d at 1079-80. The court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). The evidence of the opposing party is to be believed and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at 587; Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Mayweathers v. Terhune, 328 F.Supp.2d 1086, 1092-93 (E.D. Cal. 2004); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002).
Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted). "A motion for summary judgment may not be defeated, however, by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson, 477 U.S. at 249-50; Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103.
In the alternative, Defendants move for summary adjudication on Plaintiff's four causes of action if summary judgment is not granted. Summary adjudication is proper when a court does not enter judgment upon the whole case or for all of the relief requested by the moving party. See Fed. R. Civ. P. 56 (b). Rule 56 requires the court to ascertain what material facts exist without substantial controversy and issue an order accordingly. See id. At trial, such facts shall be deemed established. See Fed. R. Civ. P. 56 (d).
DEFENDANTS' DAUBERT MOTION
Plaintiff designated Broadhead as an "occupant restraint systems" expert who will opine on seat belt defects and injury causation. Plaintiff designated Hayes to testify about the biomechanics*fn2 of injury causation and accident reconstruction analysis. Defendants contend that summary judgment is warranted because Plaintiff's experts' testimony is inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Defendants move to exclude Broadhead's and Hayes's testimony pursuant to Rule 702 on the grounds that they are not qualified and their methods are suspect.
Additionally, Defendants object to Broadhead's and Hayes's declarations in support of Plaintiff's oppositions on the following grounds: (1) vague and ambiguous; (2) irrelevant; (3) lack of qualifications; (4) contradicts prior testimony; (5) fails to comply with best evidence rule; (6) lack of foundation; (7) contains hearsay; (8) improper conclusion; (9) improper argument; and (10) lack of personal knowledge.*fn3
II. Daubert Legal Standard
Rule 702 governs the admissibility of expert testimony. Pursuant to Rule 702, a witness qualified as an expert in "scientific . . . knowledge" may testify thereto 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 witness has applied the principles and methods to the facts of the case." Fed. R. Evid. 702.
The trial court acts as a gatekeeper to the admission of expert scientific testimony under Rule 702. Daubert, 509 U.S. at 579-580. The court must conduct a preliminary assessment to "ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable." Id. at 589. This two-step assessment requires consideration of whether (1) the reasoning or methodology underlying the testimony is scientifically valid (the reliability prong); and (2) whether the reasoning or methodology properly can be applied to the facts in issue (the relevancy prong). Id. at 592-93; Kennedy v. Collagen Corp., 161 F.3d 1226, 1228 (9th Cir. 1998).
Reliable testimony must be grounded in the methods and procedures of science and signify something beyond "subjective belief or unsupported speculation." Daubert, 509 U.S. at 590. The inferences or assertions drawn by the expert must be derived by the scientific method. Id. In essence, the court must determine whether the expert's work product amounts to "'good science."' Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995) ("Daubert II") (quoting Daubert, 509 U.S. at 593). In Daubert, the Supreme Court outlined factors relevant to the reliability prong, including: (1) whether the theory can be and has been tested; (2) whether it has been subjected to peer review; (3) the known or potential rate of error; and (4) whether the theory or methodology employed is generally accepted in the relevant scientific community. Daubert, 509 U.S. at 593-94. The Supreme Court emphasized the "flexible" nature of this inquiry. Id. at 594. As later confirmed in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999): "Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination." Id. at 141-42.
The relevancy, or "fit," prong requires that the testimony be "relevant to the task at hand, . . . i.e., that it logically advances a material aspect of the proposing party's case." Daubert II, 43 F.3d at 1315 (quoting Daubert, 509 U.S. at 597). Relevancy requires opinions that would assist the trier of fact in reaching a conclusion necessary to the case. See Kennedy, 161 F.3d at 1230.
The Daubert analysis focuses on the principles and methodology underlying an expert's testimony, not on the expert's conclusions. Daubert, 509 U.S. at 595. However, the Supreme Court has cautioned that "conclusions and methodology are not entirely distinct from one another." General Elec. v. Joiner, 522 U.S. 136, 146 (1997). As such, "[a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." Id. Nothing in either Daubert or the Federal Rules of Evidence requires the admission of opinion evidence connected to existing data "only by the ipse dixit of the expert." Id.
III. Resolution Regarding the Admissibility of Broadhead's Expert Testimony
A. Broadhead's Qualifications
Defendants claim that Broadhead lacks the qualifications of an expert who can opine on seat belt performance and injury causation because Broadhead has never designed any seat belt components that have gone into automobile production and has never been employed by an automotive manufacturer. Defendants rely on Paris v. Ford Motor Co., No. 05-439 ACT-RLP, 2007 U.S. Dist. LEXIS 96627, *17 (D.N.M. May 25, 2007) for this proposition. In Paris, however, the court excluded the seat belt expert's testimony because the methodology he used was deductive reasoning and because the expert testified that he did not have sufficient information to perform his analysis, including the lack of an accident reconstruction, surrogate study, and data about the seat position. The instant matter is distinguishable because Broadhead followed a peer-reviewed methodology (as discussed below in the methodology section), relied on an accident reconstruction, and conducted a first-hand inspection of the seat belts.
Defendants also contend that Broadhead is not qualified because he has never performed peer-reviewed, published research relating to the performance of seat belts in rollover accidents or been licensed as an engineer.
The court does not agree that Broadhead lacks the requisite credentials to testify about the existence of seat belt defects. Broadhead's curriculum vitae reflects he has a masters degree in mechanical engineering from the University of California, Santa Barbara. Broadhead states that he has lectured on seat belts and accident reconstruction and has authored numerous publication reports. See Broadhead Rule 26 Report; CV at pages 3-4. Broadhead has studied seat belts for over 30 years and has headed up numerous research programs for the National Highway Traffic Safety Administration ("NHTSA"). Id. Broadhead has also designed seat belt components under contracts with NHTSA. See Broadhead Decla. ¶5. Broadhead declares that his findings related to seat belt performance in rollover accidents have been published and presented at two conferences. See Broadhead Decla. ¶3; CV at page 4.
Additionally, Broadhead details that he has analyzed occupant restraint performance in hundreds of real world car accidents. See Broadhead Decla. ¶2. Broadhead declares that he has testified as an expert in restraint systems dozens of times in 20 states, including state and federal courts.*fn4 See Broadhead Decla. ¶2. Accordingly, the court finds that Broadhead has sufficient "knowledge, skill, experience, training, or education" and overrules Defendants' objections regarding his qualifications.*fn5
Lastly, Defendants contend that Broadhead is not qualified because he lacked specific knowledge of the issues in this case. The court disagrees. Broadhead declares that in forming his opinions, he relied on and reviewed the subject traffic collision report, depositions of fact witnesses and investigators, a first-hand inspection of the subject vehicle and its seat belts, photographs of the subject vehicle, various materials produced by Ford, the subject vehicle's CarFax Report, the NHTSA database, the 1998 Ford Explorer owner guide, and the decedents' autopsy reports. See Broadhead Rule 26 Report at pages 2-3. Accordingly, Defendants' contentions go to the weight accorded to Broadhead's testimony and not its admissibility. See United States v. Garcia, 7 F.3d 885, 889-90 (9th Cir. 1993); see also People v. Stuller, 10 Cal. App.3d 582, 597 (1970) (expert's degree of knowledge is a matter affecting weight of testimony, not its admissibility). Thus, Defendants' objections relating to Broadhead's degree of knowledge of the issues are overruled.
B. Broadhead's Methodology
Defendants challenge Broadhead's opinions concerning the right front seat belt and right rear seat belt. For the right front seat belt, the methodology critique relates to the webbing and retractor. For the right rear seat belt, the methodology critique relates to the buckle.
1. Right Front Seat Belt Opinion
Broadhead offers two opinions regarding the right front seat belt: (1) the seat belt was defective either because it broke even though the webbing was not subjected to G forces beyond its design tolerance (as set by federal motor vehicle safety standards requirements on seat belt strength) or because the retractor failed to lock during the rollover and improperly allowed excessive webbing to spool out, which in turn allowed a significant increase of the webbing lengths and excess G forces to be applied on the webbing. See Broadhead Decla. ¶16; and ...