                                                  United States Court of Appeals
                                                           Fifth Circuit
                                                        F I L E D
               UNITED STATES COURT OF APPEALS
                                                        August 17, 2006
                    for the Fifth Circuit
                                                    Charles R. Fulbruge III
                                                            Clerk

                        No. 05-20424



        JESSICA HAFSTIENN, Individually and as Next
         Friend of Taylor Hafstienn, Deceased; KEVIN
        HAFSTIENN, Individually and as Next Friend of
                 Taylor Hafstienn, Deceased,

                                    Plaintiffs-Appellants,

                           versus

              BMW OF NORTH AMERICA, LLC; ET AL,

                                                  Defendants,

                 BMW OF NORTH AMERICA, LLC,
               a Delaware Corporation; BMG AG

                                       Defendants-Appellees.



        Appeal from the United States District Court
             for the Southern District of Texas
                       (4:03-CV-1646)


Before DeMOSS, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*


    *
     Pursuant to 5TH CIR. R. 47.5, the Court has
determined that this opinion should not be published
and is not precedent except under the limited
    Plaintiffs-Appellants Jessica and Kevin Hafsteinn

(“Appellants”) appeal the district court’s entry of final

judgement in favor of BMW of North America, L.L.C. and

BMW AG (collectively “Appellees”). Appellants argue that

final judgment was based solely on the court’s erroneous

exclusion of Appellants’ “crash test” evidence and expert

testimony. We AFFIRM.

            FACTUAL AND PROCEDURAL BACKGROUND

    In September 2000, Jessica Hafsteinn was driving a

1999 BMW 323i with her six-year-old son, Taylor, riding

in the right rear seat. While making a left turn at an

intersection, Mrs. Hafsteinn failed to yield the right-

of-way and turned into oncoming traffic. As a result, a

speeding GMC truck violently hit the right side of her

BMW. The collision caused the BMW to split apart and roll

over. Taylor was killed.

    Appellants,     individually      and   as   next   friend    of

Taylor, brought various product liability claims against

Appellees   based     on   the       following    theories:      (1)

manufacturing defect, (2) design defect, and (3) failure


circumstances set forth in 5TH CIR. R. 47.5.4.
                                 2
to warn. Generally, Appellants’ contention was that their

BMW 323i should not have split apart in the crash; and,

because it did split apart, Taylor was thrown from the

vehicle, hit his head on the pavement, and was killed.

    More      specifically,    Appellants   alleged    that   their

BMW’s “spot welds”--the locations where different metal

pieces     of   the     vehicle   are    welded    together--were

defective. Appellants contended that many of the spot

welds were located too close to the edges of the pieces

they connected.       And this, in turn, weakened the vehicle

such that it split apart upon impact.

    In an order preceding the evidentiary rulings at

issue    on   appeal,   the   district   court    granted   partial

summary judgment in Appellees’ favor dismissing all but

Appellants’ manufacturing defect claim. Appellants do not

challenge that ruling.

    With only the manufacturing defect claim remaining,

Appellees then filed motions to exclude (1) the testimony

of each of Appellants’ experts, and (2) Appellants’ crash

test evidence. After a three-day hearing, the district

court excluded each piece of evidence. Without the crash

                                  3
test and expert testimony, Appellants conceded that they

lacked   sufficient        evidence     to    prove   causation       and

stipulated   to    an     order    granting   summary      judgment    in

Appellees’ favor. This timely appeal followed.

                             DISCUSSION

    To   prevail     on    their    manufacturing     defect    claim,

Appellants were required to show that: (1) their BMW 323i

did not conform to BMW’s own manufacturing plans and

specifications;      (2)     the     deviation      made    their     BMW

unreasonably      dangerous;      and   (3)   the   deviation    was    a

producing cause of Taylor’s injuries. See Torrington Co.

v. Stutzman, 46 S.W.3d 829, 844 (Tex. 2000). Again,

Appellants conceded below, as they do on appeal, that

without their crash test and expert testimony, they were

unable to prove the causation element. It is important to

note at this stage that, under Appellants’ theory of the

case, the causation element required Appellants to make

two showings: first, that Taylor would not have sustained

his injuries had he not been ejected from the BMW; and

second, that a properly constructed BMW (one with spot

welds built to BMW’s own specifications) would not have

                                    4
split apart allowing Taylor’s ejection. Only after making

both showings could Appellants prove that, but for the

allegedly     defective   spot       welds,   Taylor    would    have

survived the accident.

     To   establish   causation,       Appellants      attempted    to

introduce the crash test and the testimony of three

experts: (1) Thomas Grubbs, (2) Dr. McLellan, and (3) Dr.

Nicodemus. The crash test was excluded on basic relevancy

principles, see FED. R. EVID. 401-403, and nearly all of

the expert testimony was excluded pursuant to various

components of Federal Rule of Evidence 702.

     We review the district court’s decision to exclude

evidence, including expert testimony, for an abuse of

discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136,

141-43 (1997).

1.   Appellants’ Crash Test Evidence

     Appellants planned to introduce video footage of a

crash test performed by one of their experts. The video

showed a collision between a GMC truck and a properly

constructed    Volkswagen   Passat.       The   crash     test     was

supposed to help Appellants prove causation; namely, that

                                 5
a similar vehicle with properly constructed spot welds

would not have split apart in the accident.

    The district court excluded the test as irrelevant

under    Rule    401    because        the   Volkswagen      Passat’s

performance was completely unhelpful in deciding whether

Appellants’ BMW 323i had a manufacturing defect that

caused   Taylor’s      injuries       in   the   accident.    In    the

alternative,     the   court   found       the   video   footage    too

confusing and misleading under Rule 403.

    Appellees on appeal agree with the district court

that the test is irrelevant because the car in the test

is a Volkswagen, not a BMW. On the other hand, Appellants

argue that the BMW in the accident and the Volkswagen

used in the test are “substantially similar,” which is

all that is required for the test to be relevant. See

Barnes v. Gen. Motors Corp., 547 F.2d 275, 277 (5th Cir.

1977).

    We   agree   with    the   district      court   that    the   test

conducted by Appellants’ expert is irrelevant to the

issue of causation. A comparison of the accident to the

test, with a focus on the differences between the two,

                                  6
compels this conclusion.

    First, as the district court noted, the Volkswagen

Passat and the BMW 323i are different vehicles. The

important differences between the two cars are not that

they have different names or that they are manufactured

by different companies; rather, it is that they are

materially dissimilar in design and final product. For

example, the Passat is longer than the 323i, has a longer

wheel base, has a different center of gravity, and has a

different tip-over ratio.

    The Passat also weighs significantly less than the

323i.   Because   of   the   weight   difference,   Appellants’

expert had to fill the Passat’s fuel tank with 75 pounds

of lead shot, fill its oil pan with 100 pounds of lead

shot, and add an additional 169 pounds of lead ingots and

water to various other parts of the vehicle. After adding

this weight, which alone may have greatly skewed the

results of the test, the Passat still weighed less than

Appellants’ 323i.1

    1
     In addition to these obvious differences,
Appellants failed to provide the district court with
evidence that the vehicles did not differ in other
                                7
      Second, beyond Appellants’ use of a different and

dissimilar vehicle, other circumstances surrounding the

test differed from those surrounding the actual crash.

Namely,    it    is    undisputed       that    Appellants’      BMW     was

traveling at approximately 16 miles per hour when the GMC

collided   with       it;   yet   the    Passat      in   the    test    was

stationary.

      In sum, Appellants used a different and dissimilar

vehicle. The vehicles unquestionably differed in length

and   weight,    and    perhaps     in   other       respects,    such    as

rigidity   and    plasticity.       And,       the   test   vehicle      was

stationary even though Appellants’ BMW at the time of the

accident was not. Because of these material differences

between the accident and the crash test, we cannot say

that the district court’s decision to exclude the test

was an abuse of discretion2.

2.    The Exclusion of Appellants’ Experts


respects, such as their spot weld designs or overall
rigidity or plasticity.
     To further support the conclusion that the test
      2

differed from the accident, we note that the BMW and
the GMC in the accident rolled over after impact; the
Passat and the GMC in the crash test did not.
                                    8
    As mentioned above, Appellants’ theory was that a

properly constructed BMW would not have split apart in

the accident; and Appellants conceded that they could not

prove this theory without their crash test and expert

testimony. Because, as we discussed above, the crash test

was properly excluded, Appellants sole remaining source

of causation evidence was the testimony of their three

experts. The district court excluded most of the experts’

testimony under Rule 702. Rule 702 provides that:

    If scientific, technical, or other specialized
    knowledge will assist the trier of fact to
    understand the evidence or to determine a fact
    in issue, a witness qualified as an expert, may
    testify thereto in the form of an opinion or
    otherwise, if (1) the testimony is based on
    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 reliably to the facts of the case.

Keeping in mind that Appellants’ experts had to (1)

comply with Rule 702 and (2) create a genuine issue of

material    fact   as   to   causation,   we   turn   now   to   the

excluded testimony of each expert.

    a.     Thomas Grubbs

    Appellants’     first     expert,   Thomas   Grubbs,    has    a


                                 9
bachelor’s and master’s degree in mechanical engineering.

He has been an engineer for forty-three years and has

conducted approximately 2000 accident reconstructions.

Appellants intended to use Grubbs, who conducted their

crash test, to explain the test results to the jury.

      The district court excluded Grubbs’ testimony because

he was not a qualified expert in the field of accident

reconstruction and because he relied upon inaccurate data

in conducting his test. See FED. R. EVID. 702.

      We need not address either of the district court’s

stated reasons for excluding Grubbs’ testimony. The sole

purpose of his testimony was to explain the crash test to

the jury. Because we have already determined that the

district court properly excluded the crash test, Grubbs’

testimony    relating    to    that    test    would    not   have

“assist[ed] the trier of fact to understand the evidence

or to determine a fact in issue.” See FED. R. EVID. 702.

Therefore, even though it did so for different reasons,

the   district   court   did   not    abuse   its   discretion   in

excluding Grubbs’ testimony.

       b. Dr. McLellan

                                10
    The district court recognized Dr. McLellan as a

qualified metallurgist, i.e., someone who studies the

structure     and     properties         of     metals.       Appellants

affirmatively state in their brief that they did not

intend to use Dr. McLellan to prove causation; rather,

they intended to use him to show only that the BMW’s

allegedly     defective      spot    welds      made    the    car    less

“crashworthy.” Similarly, the district court recognized

that Dr. McLellan was unable to testify to causation

because he stated that he did not know whether a properly

constructed    BMW    323i   would       have   split   apart    in    the

accident.

    Appellants conceded that without their experts, they

could not prove causation. Thus, unless we determine not

only that the expert testimony was improperly excluded,

but also that the expert testimony, in light of other

admissible evidence, would have created a genuine issue

of material fact regarding causation, we must affirm the

district court’s entry of summary judgment in favor of

Appellees. Dr. McLellan himself, Appellants, and the

district    court    all   agree     that     Dr.   McLellan    was    not

                                    11
expected to and did not testify to causation. Therefore,

we turn now to Appellants’ last expert, Dr. Nicodemus.

            c.        Dr. Nicodemus

      Dr.    Nicodemus       has   a    Ph.D.     in    biomechanics    and

osteopathic medicine. His qualifications in those fields

are extensive, and were not attacked by Appellees or

questioned by the district court.

      Appellants expected Dr. Nicodemus to establish that

Taylor died because he flew out of the vehicle and hit

his   head       on    the   pavement,      and   not    because   he   was

immediately struck in the head when the GMC and BMW

collided. This would have proven that, but for the BMW

splitting apart, Taylor likely would have survived the

crash. The court excluded Dr. Nicodemus’ testimony for

two reasons: (1) his qualifications were irrelevant to

those opinions, and (2) his methodology in arriving at

those conclusions was either flawed or non-existent. See

FED. R. EVID. 702.

      As was the case with the exclusion of Dr. McLellan’s

testimony, we need not address the district court’s two

stated reasons for excluding Dr. Nicodemus’s testimony.

                                       12
Even if his testimony had been admitted, Appellants still

would have failed to raise a genuine issue of material

fact regarding causation. Dr. Nicodemus was going to

opine that, had the BMW not split apart, Taylor would

have       survived.     While   this    certainly       would      have   been

relevant to the issue of causation, it would not have by

itself established causation. Appellants still would have

needed to establish that a properly constructed BMW--one

with       spot     welds    built      to     BMW’s     own     plans      and

specifications--would            not    have     split     apart      in   the

accident.3

       Like Appellants’ other two experts, Dr. Nicodemus was

not prepared to testify that a properly constructed BMW

would       not   have   split   apart.       Therefore,       we   need    not

address whether his testimony was properly excluded under

Rule       702    because,   even      with   his   testimony        and    the


     As we stated above, to prove causation under their
       3

theory of the case, Appellants had to make two
showings: first, that Taylor would not have sustained
his injuries had he not been ejected from the BMW; and
second, that the BMW would not have split apart,
thereby allowing Taylor’s ejection, had its spot welds
been properly manufactured. Even if all of the excluded
testimony had been admitted, Appellants failed to make
the second showing.
                                       13
testimony of Dr. McLellan, Appellants failed to establish

causation.

                          CONCLUSION

    Because     the   district    court     did     not    abuse   its

discretion when it excluded Appellants’ crash test and

their expert testimony related to the crash test, and

because   the   testimony   of        Appellants’    two    remaining

experts did not create a genuine issue of material fact

regarding causation, we AFFIRM the court’s entry of final

judgment in favor of Appellees.

AFFIRMED.




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