United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
STRIKE; GRANTING IN PART AND DENYING IN PART MOTION FOR
SUMMARY JUDGMENT RE: DKT. NOS. 58, 59
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.)
II.
LEGAL STANDARD
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 ...