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Johnson v. Ford Motor Co.

United States District Court, S.D. West Virginia, Huntington Division

March 26, 2018

CHARLES JOHNSON, et al., Plaintiffs,



         Pending before the Court are Defendant “Ford Motor Company's Motion to Exclude Plaintiffs' Designated Expert Witnesses Hubing, van Schoor, and Koopman” (ECF No. 1046) and the balance of Ford's Motion for Summary Judgment. ECF No. 1055.[1] On January 17, 2018, the Court held an extensive hearing on the motion regarding these experts and held a hearing on the summary judgment motion on February 1, 2018. Upon consideration of the issues, the Court GRANTS Ford's Motion to Exclude and the balance of its Motion for Summary Judgment.



         Plaintiffs consist of nineteen individuals from seventeen states seeking economic loss damages for allegedly defective Ford vehicles manufactured between 2004 and 2010. See generally Second Am. Master Consol. Class Action Compl., ECF No. 686. Plaintiffs' theory is that the electronic throttle control (ETC) system contains a defect in its ability to identify and mitigate unintended acceleration. Plaintiffs allege that every vehicle in these model years with Ford's Gen II ETC system-literally millions of vehicles sold and driven hundreds of millions of miles-was worth less than the purchase price because of this inherent defect, whether the defect manifested itself (as an unintended acceleration) or not.[2] Each Plaintiff also seeks class action status for the pending state law claims. As the challenged expert opinions are critical to the remaining summary judgment issues, the Court addresses both matters together.


         Admissibility of Expert Testimony

         Rule 702 of the Federal Rules of Evidence governs the admissibility of expert witness testimony. A qualified expert's testimony is admissible if it “rests on a reliable foundation and is relevant[.]” Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 597 (1993). Pursuant to Rule 401 of the Federal Rules of Evidence, “[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401. There is no mechanistic test for determining if an expert's proffered relevant testimony also is reliable. Rather, “‘the test of reliability is flexible' and ‘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.'” United States v. Wilson, 484 F.3d 267, 274 (4th Cir. 2007) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42 (1999) (italics original in Kumho)).[3]

         To fulfill its gatekeeping responsibility, the court must determine whether: (1) “the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;” (2) “the testimony is based on sufficient facts or data;” (3) “the testimony is the product of reliable principles and methods;” and (4) “the expert has reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702(a)-(d). “This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93.

         In considering reliability, the Court must ensure that the expert opinions are “‘based on scientific, technical, or other specialized knowledge and not on belief or speculation, and inferences must be derived using scientific or other valid methods.'” Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th Cir. 2017) (quoting Oglesby v. Gen. Motors Corp., 190 F.3d 244, 250 (4th Cir. 1999) (italics original)). Although not definitive or exhaustive, Daubert sets forth several helpful factors for courts to bear in mind when deciding if expert opinions are admissible. Id. Courts consider a number of factors in conducting these evaluations, including, but not limited to: (1) “whether a theory or technique . . . can be (and has been) tested”; (2) “whether the theory or technique has been subjected to peer review and publication”; (3) the “known or potential rate of error”; (4) the “existence and maintenance of standards controlling the technique's operation”; and (5) whether the theory or technique has garnered “general acceptance.” Daubert, 509 U.S. at 593-94 (citations omitted); see also Nease, 848 F.3d at 229 (discussing Daubert factors). “[E]xpert witnesses have the potential to be both powerful and quite misleading[.]” PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 123 (4th Cir. 2011) (internal quotation marks and citations omitted). Therefore, the Court's gatekeeping role with respect to experts is critical. In situations in which experts formulate opinions from existing data, “nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). When an expert's opinion is based upon mere ispe dixit, “[a] court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Id. (citation omitted).

         In this case, testing of ETC systems was central to the experts' opinions. However, the Court finds this testing was flawed, and Plaintiffs have failed to establish other means by which their experts can meet the reliability standard. The only peer-reviewed publication relied upon was an article by one of Plaintiffs' experts, Todd H. Hubing, Ph.D. However, the National Highway Traffic Safety Administration (NHTSA) and its partner in unintended acceleration investigations, the National Aeronautics and Space Administration (NASA), concluded his theory lacked real-world evidence.[4] Additionally, at least one aspect of Plaintiffs' defect theory is unfalsifiable: that is, inherent in a computerized electronic system, there are transient defects which cannot be replicated and leave no trace. Assuming the impossibility of replicating some defects is true, Plaintiffs nonetheless failed to evaluate and test adequately those elements of their hypotheses that can be reproduced, tested, and observed.

         At its core, Plaintiffs' theory is that many predictable flaws may occur with the pedal sensors. Plaintiffs theorize that these flawed sensors produce faulty voltage signals that should trigger the ETC system's failsafe modes. However, due to a defectively designed ETC system, the failsafe modes are not activated, resulting in unintended accelerations.

         Plaintiffs argue Ford's design development history and complaints found in the Common Quality Indicator System (CQIS) database establish a connection between faulty sensors and the possibility that faulty signals can lead to unintended accelerations. Although Plaintiffs' experts purport to test that theory, they leave a gap between analytical possibility and actual proof of occurrence. The experts attempt to excuse this gap by reporting that the defect leaves no evidence of its effect. However, this position shifts the burden to Ford to prove the negative. Furthermore, there is no “general acceptance” within the automotive safety or engineering community that underpins Plaintiffs' theory. The causes of unintended acceleration are myriad.

         Some events are attributable to driver error, while others are tied to different defects from cruise control to mechanical issues. Even though many drivers' complaints of unintended acceleration are credible and likely caused by some defects, Plaintiffs' theory here is still largely hypothetical, as the Court explains below with respect to the three experts challenged by Ford in this motion.


         Todd H. Hubing, Ph.D.

         Ford first challenges the testimony of Dr. Hubing, an electrical engineer who has studied the field of electromagnetic compatibility in automobiles for many years, principally as a professor at Clemson University. His credentials are not challenged by Ford. As part of his work related to the automotive industry, he has published a number of peer-reviewed articles through the Institute for Electrical and Electronics Engineers (IEEE). One of those articles published in June 2015 focused on his examination of five vehicles equipped with ETC systems, including two Ford models. Dexin Zhang & Todd H. Hubing, Comparison of the Accelerator-Pedal-to-Engine-Control-Module Interfaces on Vehicles With Low and High Reported Rates of Unintended Acceleration, 3 IEEE Access 852, 853 (June 26, 2015), ECF No. 1101-1. His report in this case relied primarily on this article, where he mapped the operational lanes of each vehicle reading two acceleration pedal sensors to see when diagnostic trouble codes (DTCs) and wide open throttle (WOT) resulted.

         Comparing accelerator pedal performance among the five vehicles, Dr. Hubing concluded that Ford's Gen II ETC system was flawed in that it failed to mitigate or correct sensor faults that could result in unintended acceleration. See Expert Report of Todd H. Hubing, Ph.D., at 12 (June 15, 2017), ECF No. 1101-24, at 13. He noted that pedal sensors may be expected to generate faulty signals for a variety of reasons, such as wear and tear, contamination, water intrusion, and chafing among other causes. Id. at 13-14, ECF No. 1101-24, at 14-15. Dr. Hubing criticized Ford's system as “unnecessarily vulnerable” to unintended acceleration in several scenarios, and he opined that Ford's Gen II ETC ...

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