New York Law Journal
This column focuses on two recent rulings in automobile crashworthiness cases. The Lindemann decision by a Washington appellate court examines the potential interface of the so-called “eggshell plaintiff” rule with a crashworthiness/enhanced injury claim. The Rupert decision by a federal court in Pennsylvania examines the reliability deficits in an expert’s conclusions about certain crashworthiness features he claimed would have reduced the injuries.
In Lindemann v. Toyota Motor Corp.1 a drunken driver crossed the center line and caused a collision. Plaintiff sued the manufacturer of her own Lexus vehicle contending that defective design at the front end caused the passenger compartment to collapse resulting in a loss of occupant space. The lack of crashworthiness, she claimed, caused her to suffer enhanced injuries, that is, injuries over and above what would have occurred in a crashworthy car. Under the automobile crashworthiness doctrine, a manufacturer may be held liable for unreasonably dangerous defects that increase injuries in a collision beyond those that would have been sustained absent the defects. In order to prove or disprove such a claim and the degree of injury enhancement, the parties usually rely on expert testimony.
Toyota defended the design by contradicting plaintiffs’ proof regarding the extent of passenger compartment deformation. Toyota also challenged plaintiff’s proof of causation. It presented evidence that very high crash forces were imparted to the Lexus and that the injuries plaintiff sustained would have been the same even if the passenger compartment had not deformed. At the time of the collision, plaintiff, age 56, was obese. She was about 5 feet 8 inches tall and weighed 239 pounds. That factor, according to Toyota’s expert, Dr. Elizabeth Raphael, was significant in explaining causation of the critical injury to plaintiff’s pelvis.
The trial unfolded over three weeks. Plaintiff presented two experts who asserted that the Lexus front end design should have had more strength to prevent the dash from crumpling in upon her legs. Then, another expert, Dr. Joseph Burton testified that the force of the accident alone would not have been sufficient to cause the most severe injuries. Rather, Burton said, the loss of occupant space when the front-end structure gave way was the cause. He testified that plaintiff did not get the full benefit of the airbag cushion which moved to the right as she moved forward.
Dr. Raphael was presented to counter Burton. She is an emergency room physician and engineer with expertise in the field of occupant kinematics. She has treated thousands of patients and analyzed car accidents and biomechanics since the mid-1990s. Raphael testified that frontal barrier crash tests show that about 50 percent of a person’s body weight goes into the shoulder belt and 50 percent into the lap belt. To be conservative, she assumed only 100 pounds of plaintiff’s weight went into the lower lap belt. Using Newton’s second law of motion (force = mass x acceleration), Raphael concluded that the collision force was 2,500 pounds. It would take some 2,000 pounds of force to cause the pelvic fractures plaintiff experienced.
Dr. Raphael consulted a published study showing that seat-belted obese cadavers had more “forward excursion” (forward movement) in high-speed, frontal barrier crash tests than non-obese cadavers. Sometimes, this means that a seat belt would have almost no restraining properties on an obese person initially. The obese occupant keeps going forward, as much as eight inches, until the seat belt, moving through “all of that soft tissue,” restrains the pelvis. For a non-obese body, however, the pelvis stays almost completely in place. In an actual car, that obese person’s forward excursion would entail impact of the driver’s lower body with the instrument panel, knee bolster and dash. Since plaintiff was obese (at 239 pounds), the amount of soft tissue allowed her to move into the structures and the crash forces for her were very “severe.”
The jury reached a defense verdict. On appeal, plaintiff complained that Dr. Raphael’s testimony was irrelevant, amounting to a claim that it was too burdensome to design a car that would protect some plaintiffs. The Washington Court of Appeals rejected this argument. Next, plaintiff argued that Raphael’s testimony should have been excluded under the Frye rule, which asks whether the scientific theory and methodology or technique is “generally accepted” in the scientific community.2
Plaintiff argued that Raphael’s testimony involved a novel and unreliable application of science. But the appellate court rejected the claim. Raphael primarily relied on Newton’s second law of motion, hardly a matter of novel science. Further, even plaintiff’s expert, Burton, said that the plaintiff’s weight was a necessary part of the equation to determine the force experienced by her body. He agreed that the degree of soft fatty tissue meant “she won’t be restrained as easily” and it would be “more difficult to slow that mass down.”3
Perhaps the most serious issue on appeal was whether the “Eggshell Plaintiff” rule was an influencing factor warranting reversal. The eggshell plaintiff rule holds that a tortfeasor takes his victim as he finds him. Thus, a tortfeasor may not escape or reduce damages by highlighting the injured party’s susceptibility to injury.4 The Washington appellate court said it was fair to regard the driver as an eggshell plaintiff because the evidence established that “obesity is a recognized negative risk factor in car accidents.”
Here potential application of the eggshell rule initially emerged when plaintiff moved in limine to disallow Dr. Raphael’s testimony that obesity was a cause of the critical pelvic injury. Toyota responded that the eggshell plaintiff rule does not make the expert’s testimony irrelevant. The trial court held that the eggshell plaintiff rule does not apply to enhanced injury cases and, so, refused to give an “eggshell” jury instruction.
The appellate court held that Dr. Raphael’s testimony was relevant and admissible. The expert’s opinion did not suggest that a passenger’s obesity is a defense when a design defect is found to exist. Nor did it encourage the jury to think that Toyota had no duty to design cars that would be reasonable for obese persons. The eggshell plaintiff rule “comes into play” when the plaintiff proves that defendant is liable for wrongful conduct and that conduct caused at least some injury to plaintiff. At that point, the rule “imposes liability for the full extent of those injuries, not merely those that were foreseeable to the defendant.”5
Dr. Raphael’s testimony did not imply, nor did Toyota argue, that plaintiff’s predisposition to injury precluded Toyota’s liability for a defective design. “The references to obesity were not accusatory.” Thus, the trial judge’s allowance of Raphael’s testimony was correct. The appellate court then turned to plaintiff’s argument that her request for an eggshell jury instruction was wrongfully rejected. The court of appeals said there is no apparent reason why an eggshell plaintiff instruction should not be given in an enhanced injury case. Thus, if the Lexus were defective and the defect caused at least some of plaintiff’s injuries by failing to protect her, it would make sense to instruct the jury to consider all of her enhanced injuries, even if they were greater than injuries that a person of normal weight would have incurred in the same circumstances.6
Here, however, an eggshell plaintiff instruction would not come into play “unless the jury found Toyota liable for furnishing an unsafe product.” The verdict form with its interrogatories showed the jury did not find the Lexus to be unsafe. As a result, the jury did not reach the next question, whether plaintiff’s injuries were enhanced because the car was unsafe. Thus, denial of the eggshell plaintiff instruction, “if error, was harmless.”7 As is evident from the “if error” language, the Washington Court of Appeals did not definitively settle the question.
That eggshell plaintiff battle, perhaps, is for another day. But would it not be somewhat preposterous if, for example, a lawsuit were filed by representatives of a hemophiliac, who suffered a cut in a severe crash and bled to death, claiming that an automobile manufacturer must “take the plaintiff as it finds him,” even though a non-hemophiliac would only have sustained a cut under similar circumstances? That kind of eggshell claim, if upheld, would amount to imposing a duty to make an injury-proof car. The applicable legal duty, however, is reasonable safety, not absolute safety. So, clearly, the eggshell plaintiff rule, at least in some of its settings, would be at odds with the very underpinnings of the vehicle crashworthiness doctrine itself.
In Rupert v. Ford Motor Co.,8 plaintiff Michael Rupert was driving a Ford pick-up truck. A second vehicle crossed the center line and struck the truck in the front at high speed. A third vehicle crashed into and beneath the rear of Rupert’s truck. Plaintiff sued the manufacturer contending the vehicle was “excessively crushed” entrapping him. Witnesses unsuccessfully tried to extricate Rupert. A post-collision fire ensued, and Rupert sustained serious injuries. The complaint asserted strict liability and negligence theories and sought punitive damages.
Defendant Ford Motor Company moved to exclude the opinions of plaintiff’s proposed expert, Byron Bloch. The court held a “Daubert hearing,” during which Bloch testified, in order to assess the reliability of his conclusions on design defect and crashworthiness.9 The U.S. District Court Judge for the Western District of Pennsylvania, Cathy Bissoon, focused on Bloch’s qualifications, which were challenged, and on the reliability of his opinions. The court held that “a subset of Mr. Bloch’s conclusions is insufficiently reliable, and his testimony is partially excluded.” Based on that exclusion, Ford Motor was entitled to summary judgment.
Bloch had over 40 years of automobile safety experience but was not a licensed engineer. He worked as an independent consultant in auto safety design and crashworthiness. For three years he was a research editor for Road Test Magazine, evaluating the design and safety technology features of automobiles. He worked with the National Safety Council as a judge, evaluating accident prevention research. He testified and/or presented information regarding auto safety issues before the Department of Transportation and National Highway Traffic Safety Administration. He lectured at colleges, universities and professional groups on auto safety issues. He testified in about 30 cases in state and federal courts. He published and/or presented on automobile/traffic safety approximately 44 times. He orchestrated, observed and/or analyzed vehicle crash tests on multiple occasions. He made recommendations “to the automobile industry” about relocating fuel tanks in front of the rear axle and about seat anchorage strength.
The court concluded, based on the “liberal policy of admissibility” under Federal Evidence Rule 702 that prevails in the Third Circuit, that Bloch had “specialized knowledge” regarding vehicle design and crashworthiness “far greater than the average layman.” Thus, he was qualified as an expert.10 Prior to issuing his report, Bloch examined the Rupert vehicle, a “virtually identical” exemplar truck which he sectioned in order to evaluate its design features, and also examined the second vehicle that struck Rupert’s.
Bloch’s report concluded that: (1) a properly designed vehicle should be designed so that occupants are not needlessly entrapped and subjected to a fire; (2) a vehicle that doesn’t prevent the foregoing is not crashworthy; (3) the Rupert vehicle lacked six features the industry recognized as vital to passenger compartment crashworthiness; (4) the addition of six specified features to correct the six defects would have prevented the “excessive crushing” of the passenger compartment; and (5) had the compartment not been excessively crushed, Rupert could have been extricated and not have been subjected to the burn injuries.11
The court found the first three conclusions “sufficiently reliable.” These opinions related to “general precepts” about safety design, specific design features of the Rupert vehicle, the availability of feasible alternative designs at the time the Rupert vehicle was manufactured, and the general benefit of those designs. The opinions naturally flowed from Bloch’s past experiences in the field of auto safety and work he undertook in this particular case. However, Bloch’s fourth and fifth conclusions presented genuine reliability problems. After “extensive consideration” of Bloch’s methodologies used to arrive at these conclusions, the court found the last two unreliable and inadmissible at trial.
An expert must testify to scientific, technical or specialized knowledge. The process or technique used in formulating his or her opinion must be reliable. Proposed testimony must be “supported by appropriate validation—i.e., ‘good grounds’ based on what is known.”12 It was clear that Bloch did not use a scientific method to arrive at conclusions (4) and (5). He conducted no testing—no hypothetical calculations or actual replications—to support the opinion that his alternative design features would have prevented the excessive crushing of the Rupert vehicle and plaintiff’s extrication without fire injuries.
During the Daubert hearing, the expert struggled to explain his methodology, which the court believed to be, largely, an “analysis internal to Mr. Bloch’s brain.” While he “may be very intelligent and possess an impressive wealth of knowledge that informed his thought-process, the Court is unable to find this ‘reliable’ within the Daubert framework.” Although his conclusions may be correct, if the methods he utilized to reach those opinions are not “testable or standardized, such that another expert can critique his methods, utilize those same methods to arrive at an independent conclusion, or point to the rate of error of those methods, they are not ‘reliable’.”13
To conclude that his six features would have prevented the subjectively described excessive crushing, Bloch “must first reliably conclude, quantitatively, the extent to which the Rupert vehicle would have been crushed if it had included Bloch’s recommended alternative designs.” For example, Bloch posited that, in the absence of side door beams, the driver’s side door was crushed by 10 inches in the impact. He then opined that adding a side beam would have reduced crush by between six and 10 inches. When pressed by the court as to how he arrived at that number, Bloch “was unable to provide a satisfactory answer.” He did not explain any past testing or calculations to support his opinion. Rather, he stated more generally that door beams reduced crush in industry crash tests. “This does not suffice.”14
Instead of test results or calculations, “Bloch’s background and intuition inform his particular conclusions.” As impressive as they are, “they fail to provide a testable, reliable foundation for his conclusion under Daubert and its progeny.”15 Bloch did not employ a testable method to conclude that crush would have been reduced by any specific measurable quantity “in this particular accident.”16 The industry testing he cited did not establish that it replicated the forces at play in this case—”speed, angle, etc.—such that he could state with a reasonable degree of scientific certainty how the outcome of Mr. Rupert’s accident would have been different with the implementation of alternative designs.” Bloch did not “bridge the gap” between the results in industry crash tests or other accidents, and Rupert’s accident. Without that bridge, his fourth conclusion was not reliable and did not assist the trier of fact.
The expert’s fifth conclusion, that Rupert could have been extricated before fire reached the truck’s cab, was also unreliable. Bloch did not satisfactorily explain away the possibility of the locking of the seat belt, Rupert’s loss of consciousness and/or his severe upper body injuries as factors slowing Rupert’s exit from the vehicle such that burn injuries would have occurred in any event. Bloch’s “method” is “entirely unique to Mr. Bloch and his depth of knowledge.” This “method” is not testable, has not been subjected to peer review, has no identifiable rate of error, is not governed by maintained “standards,” is not generally accepted, and has not been established to be reliable.17 Since plaintiff could not establish all of the elements of a crashworthiness cause of action, the court granted summary judgment to defendant.
- 2014 Wash. App. LEXIS 2871 (Wash. App. Dec. 15, 2014).
- Frye refers to the famous case of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
- Lindemann, 2014 Wash. App. LEXIS 2871, at *13.
- Id., LEXIS at *14— *17.
- Id., LEXIS at *16 — *17.
- Id., LEXIS at *20.
- 2015 U.S. Dist. LEXIS 21270 (W.D. Pa. Feb. 23, 2015).
- A Daubert hearing is named after the pivotal decision of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), holding that scientific or technical expert testimony must be relevant and reliable. The Daubert principles are reflected in Federal Rule of Evidence 702 and its Comments.
- Rupert, 2015 U.S. Dist. LEXIS 21270, at *8 — *9.
- Id., LEXIS at *11— *12.
- Id., LEXIS at *15 (quoting from Daubert, 509 U.S. at 590).
- Id., LEXIS at *15 — *16.
- Id., LEXIS at *17.
- Id., LEXIS at *19 (quoting from Oddi v. Ford Motor Co., 234 F.3d 136, 158 (3d Cir. 2000)).
- Ibid. (Emphasis by court).
- Id., LEXIS at *22 — *23.