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Tolliver v. Illinois Tool Works Inc.

United States District Court, N.D. California

November 22, 2019

MARY TOLLIVER, et al., Plaintiffs,


          KANDIS A. WESTMORE United States Magistrate Judge

         Plaintiffs filed the instant case[1] against Defendant Illinois Tool Works Inc., asserting product liability and negligence claims with respect to the death of Johnny Tolliver, Sr. (See First Amended Compl. (“FAC”) ¶ 1, Dkt. No. 30.) Pending before the Court are Defendant's motion for summary judgment and motion to strike Plaintiffs' expert opinions. (Def.'s MSJx, Dkt. No. 58; Def.'s Mot. to Strike, Dkt. No. 59.)

         Having considered the parties' filings, the relevant legal authority, and the arguments made at the November 21, 2019 hearing, the Court GRANTS IN PART and DENIES IN PART Defendant's motion to strike, and GRANTS IN PART AND DENIES IN PART Defendant's motion for summary judgment.

         I. BACKGROUND

         A. The Fatal Accident

         Decedent was a Solid Waste Truck Driver, employed by the City of Berkeley's Public Works Zero Waste Division since January 20, 1991. (Westfall Decl. ISO Def.'s MSJx, Exh. 2 (“Berkeley Accident Report”) at 6, Dkt. No. 58-1.) Decedent held a Class B commercial vehicle driver's license with restriction limited to vehicles with automatic transmission. (Id.)

         On January 11, 2016, Decedent was assigned Vehicle #350, a 1994 Crane Carrier Company rear-loading vehicle (“Subject Truck”). (Berkeley Accident Report at 9; FAC ¶ 11.) Decedent and his helper, Andres Herrera, were assigned Garbage Route Area B (“GRB”), a bid route that Decedent had held for at least three years. (Westfall Decl. ISO Def.'s MSJx, Exh. 1 (“Carr Dep.”) at 85:3-86:13; see also FAC ¶ 10.)

         Decedent parked the Subject Vehicle on Parnassus Road in Berkeley, California. (Berkeley Accident Report at 5; FAC ¶ 13.) Parnassus Road is a residential street with an approximate 5% north/west decline. (Berkeley Accident Report at 5.) The Subject Vehicle was parked for at least one minute when Mr. Herrera heard an unusual hissing sound. (Berkeley Accident Report at 7; Westfall Decl. ISO Def.'s MSJx, Exh. 5 (“CHP Report”) at 22; Westfall Decl. ISO Def.'s MSJx, Exh. 6 (“BPD Report”) at 7.) The Subject Vehicle then began moving forward and downhill. (Berkeley Accident Report at 5.) The Subject Vehicle proceeded down the street for approximately 75 feet, contacting small trees and bushes. (Id. at 2, 5.) The Subject Vehicle ultimately entered into the upper front yard of 90 Parnassus Road, going over a retaining wall approximately three feet high into the lower yard before it stopped. (Id. at 5.)

         While the Subject Vehicle was rolling downward, Decedent and Mr. Herrera attempted to stop the Subject Vehicle. (Berkeley Accident Report at 5, 7.) Decedent was on the driver's side when he suffered fatal blunt force injuries, possibly when the truck crushed him against a utility pole or tree. (Id. at 2; BPD Report at 8, 13.) Responding Berkeley Police Department (“BPD”) photos showed the transmission gear shift was in third gear. (Berkeley Accident Report at 10.) The neutral interlock switch was activated in the “on” position, and the air pressure gauge indicated between 55 and 60 psi. (Id. at 9; see also Westfall Decl. ISO Def.'s Mot. to Strike, Exh. 8 (“Granda Report”) at 47.)[2]

         Following the accident, the California Highway Patrol (“CHP”) performed a mechanical inspection of the Subject Vehicle. (CHP Report at 22.) The inspection “did not reveal any evidence of pre-existing mechanical conditions or failures of the air powered brake system, transmission shifter or other mechanical systems that would have affected its safe operation upon the highway.” (Id.) The CHP detected a “minor air leak . . at the adjustable air pressure regulator inside of the cab, ” but determined the leak was “not . . . a contributing factor of this collision” because “[w]hen checked, the air compressor maintained adequate air pressure in the reservoirs while engaged.” (Id.) The CHP ultimately could not determine what caused the Subject Vehicle to roll downhill. (Id.) The CHP found, however, that the transmission shifter was in the third gear, and that “[t]his condition would mandate that a driver be present in one of the driver positions to apply the service or parking/emergency brakes. Without a driver present inside of [the Subject Vehicle, the Subject Vehicle] would be powered under engine torque causing it to propel forward, especially with the descending hill [the Subject Vehicle] was on.” (Id.) Similarly, the City of Berkeley examined the mechanical systems and “found that the neutral interlock system and all other brake system components were functioning properly prior to the accident.” (Berkeley Accident Report at 10.)

         B. The Neutral Interlock Control System

         The Subject Vehicle is equipped with two distinct braking systems: the service or “air brake” system and a mechanical parking brake system. (Westfall Decl. ISO Def.'s MSJx, Exh. 8 (“Carpenter Dep.”) at 53:24-56:3.) The air brakes use air pressure to apply the brakes, and is engaged by stepping on the foot pedal. (Carpenter Dep. at 54:3-11, 55:18-23; Westfall Decl. ISO Def.'s MSJx, Exh. 9 (“Ivie Dep.”) at 158:6-9.) The parking brake is engaged by pulling up a yellow knob on the dashboard. (Ivie Dep. at 158:10-15.)

         The Subject Vehicle also has a Neutral Interlock Control System (“NICS”), “a safety system that automates multiple functions of the truck to make it more user friendly . . . .” (Carpenter Dep. at 44:22-4.) The NICS is armed or activated when the NICS “rocker switch” is put on the “on” position. (Carpenter Decl. at 65:7-12.) The NICS is engaged by placing the truck's transmission gearshift level into the neutral position; it cannot be engaged if the truck's transmission is in third gear. (Carpenter Decl. at 66:25-67:21, 68:17-23.)

         When activated and engaged, the NICS applies the service brake to all of the wheels. (Carpenter Dep. at 65:13-17.) The NICS must be used to collect garbage. (Carpenter Dep. at 65:18-21 (“Q: Does someone who operates the subject truck have to use the neutral interlock to collect garbage? A: As the truck is currently set up, yes.”); see also Id. at 66:8-24.) The NICS can be engaged at the same time as the parking brake. (Carpenter Dep. at 64:5-9.) If the NICS itself loses pressure at 60 psi, it will apply the parking brakes. (Carpenter Dep. at 58:2-4, 58:22-59:14.)

         C. Expert Opinions

         In support of their claims for product liability and negligence, Plaintiffs present reports from three experts: Jose J. Granda, Paul Herbert, and Kenneth Nemire. Dr. Granda, a professor of mechanical engineering, opines that as Decedent and Mr. Herrera collected garbage from nearby homes, the Subject Vehicle's NICS was activated and engaged, which would have applied the service brake. (Granda Report at 8.) The Subject Vehicle then experienced a loss of pressure, as evidenced by the unusual hissing sound that Mr. Herrera reported. (Id. at 6.) The pressure on the service brake (or air brakes) went from 100-120 psi to 55 psi; “this sudden loss of pressure on the service brake side while under the control of the [NICS] diminished the friction forces that the brake shoes produced to the point the friction forces were less than the downhill weight component and the truck started rolling slowly downhill.” (Id.) The parking brakes, which should have been triggered by the loss of pressure below 60 psi, did not activate. (Id. at 7.) Dr. Granda further opines that despite the loss of pressure, the brakes still kept 55 psi, resulting in “some braking forces acting all the way down. These, combined with opposing forces when the truck hit a telephone pole, uprooted a tree, dragged it underneath and cracked a retaining barrier contributed to dissipate the” energy the truck had from its descent, which is why the truck did not roll through the house. (Id.) Dr. Granda opines that on inspection, the truck had a defective air brake system. (Id. at 10.)

         Dr. Granda further opines that the NICS failed to consider fault conditions besides the low pressure and electrical failure in determining when to trigger the parking brakes, such as incline, velocity, or acceleration. (Granda Report at 8.) If the parking brakes had activated, the death would not have occurred. (Id. at 9.) Thus, once the NICS was activated and engaged, there should have been other backup systems that triggered the parking breaks. (Id. at 11.)

         Mr. Herbert, an expert in commercial motor vehicle safety standards, opined that the NICS “is not designed to be used as a parking brake, ” and that “[d]ue to the complexity of the setup, the propensity for malfunctions due to failed components, and broken or otherwise compromised air lines and connections, is tremendous[.]” (Westfall Decl. ISO Mot. to Strike, Exh. 5 (“Herbert Report”) at 7-8.) Mr. Herbert opines that the air compressor was creating pressure intermittently, indicating a probable malfunction of the air pressure governor or other air system component designed for maintaining an adequate supply of pressurized air for the braking system. (Id. at 8-9.) Due to a likely leak, the truck began to roll because the air system failed to maintain sufficient pressure, allowing the brakes to partially release. (Id. at 9.)

         Mr. Herbert further opines that the only effective and safe way to prevent unintended movement of the Subject Vehicle is to apply the parking brakes prior to exiting the vehicle. (Herbert Report at 9.) He thus believes that “there must be very clear and concise warnings prominently displayed in a very conspicuous location within the cab, ” which “should very clearly state that [the NICS] system must never be used to immobilize the truck if the driver is going to exit the vehicle.” (Id. at 8.) Further, the warning should state that drivers should never exit the vehicle without applying the parking brakes. (Id. at 9-10.)

         Finally, Dr. Nemire, an experimental psychologist and human factors engineer, opines that Decedent failed to apply the parking brakes before exiting the Subject Vehicle. (Westfall Decl. ISO Mot. to Strike, Exh. 4 (“Nemire Report”) at 5.) He further finds that the NICS system had a confusing design, in that it was unclear whether the NICS applied the service brake or the parking brake. (Id.) Dr. Nemire opines that Defendant could have obviated the confusion by having the NICS automatically set the parking brake or wheel chocks when engaged, or to warn users of the need to set the parking brakes or wheel chocks when exiting the vehicle. (Id. at 6-8.)

         D. Procedural History

         On October 2, 2019, Defendant filed the instant motions for summary judgment and to strike Plaintiffs' expert opinions. On October 16, 2019, Plaintiffs filed their oppositions to the motions. (Pls.' Opp'n to Mot. to Strike, Dkt. No. 60; Pls.' Opp'n to MSJx, Dkt. No. 62.) On October 24, 2019, Defendant filed their replies. (Def.'s Reply re MSJx, Dkt. No. 64; Def.'s Reply re Mot. to Strike, Dkt. No. 65.)


         A. Motion to Strike

         In determining whether expert testimony is admissible under Federal Rule of Evidence 702, the district court is charged with performing “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993). This inquiry is “a flexible one, ” and “[i]ts overarching subject is the scientific validity - and thus the evidentiary relevance and reliability - of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” Id. at 594-95.

         B. Motion for ...

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