                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-2005

Simmons v. Ford Mtr Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2393




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"Simmons v. Ford Mtr Co" (2005). 2005 Decisions. Paper 1114.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1114


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 04-2393
                                     ____________

                              MARLENE M. SIMMONS,

                                             Appellant

                                           v.

                              FORD MOTOR COMPANY
                                   ____________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                 (D.C. No. 02-cv-02146)
                     District Judge: Honorable Anne E. Thompson
                                      ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 12, 2005

            Before: SLOVITER, FISHER and ALDISERT, Circuit Judges.

                                 (Filed: May 31, 2005)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      In this product liability action, Marlene Simmons (“Simmons”) seeks damages

arising from injuries she sustained when, upon exiting her Lincoln Navigator

(manufactured and distributed by Ford Motor Company (“Ford”)), she was struck by that
vehicle when it spontaneously shifted out of park. Simmons appeals the District Court’s

entry of summary judgment as to her claim for strict liability for design defect. Ford

moved for summary judgment and to exclude the testimony of Simmons’ expert Clifford

Anderson, P.E., for its failure to meet the threshold requirements for admissibility

pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993). After conducting a Daubert hearing, the District Court

determined that although Anderson was qualified to testify, the proposed expert testimony

failed to satisfy the reliability requirements of F.R.E. 702 and Daubert. In addition, the

District Court determined that Simmons failed to satisfy her burden of providing a

reasonable alternative design to the defect at issue pursuant to New Jersey’s product

liability law. See Lewis v. American Cyanamid Co., 715 A.2d 967, 980 (N.J. 1998).

Simmons subsequently requested that the District Court enter final judgment under Fed.

R. Civ. P. 54(b) because the disqualification of her expert rendered her unable to sustain

her burden at trial regarding the remaining breach of express warranty and failure to warn

claims. We have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons that follow,

we will affirm.

       Because we write principally for the parties, who are familiar with the underlying

facts, we need not recite them in detail here. Simmons argues that the Navigator was

defective because its park gear became disengaged by releasing itself or not holding the

proper position, causing the vehicle to roll backward. She contends that the vehicle was



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in “false park,” where a driver senses by feel and observation that she has placed the gear

shift lever in park but the parking pawl does not land in the appropriate place in the

transmission. This condition makes the vehicle susceptible to moving out of park into

neutral or reverse and permits inadvertent movement of the vehicle to occur. To prove

this theory of liability and her proposed alternative double wheel design regarding the

alleged defect, Simmons relied on the opinions of Anderson, which were excluded from

evidence. We apply an abuse of discretion standard when reviewing a trial court’s

decision to admit or exclude expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S.

137, 152 (1999).

       The District Court has broad discretion in determining the admissibility of

evidence, and “considerable leeway” in determining the reliability of particular expert

testimony under Daubert. Kumho, 526 U.S. at 152-53. Even where a witness is qualified

to testify as an expert, as was Anderson, he may only testify if (1) the testimony is based

upon sufficient facts or data, (2) the testimony is the product of reliable principles and

methods, and (3) the testimony evidences reasoning or methodology that properly can be

applied to the facts in issue. F.R.E. 702; In re Paoli R.R. Yard PCB Litig., 35 F.3d 717,

742 (1994). In assessing reliability, the District Court is guided by a number of factors

including: (1) whether a method consists of testable hypotheses; (2) whether the method

has been subject to peer review; (3) the known or potential rate of error; (4) the existence

and maintenance of standards controlling the techniques’s operation; (5) whether the



                                              3
method is generally accepted; (6) the relationship of the technique to methods which have

been established to be reliable; (7) the qualifications of the expert witness based on the

methodology employed; and (8) the non-judicial uses to which the method has been put.

Calhoun v. Yamaha Motor Corp., 350 F.3d 316, 321 (3d Cir. 2003); Paoli, 35 F.3d at 742

n.8.

       The District Court determined from both Anderson’s report and his testimony at

the Daubert hearing that the process by which he reached his conclusions was unreliable.

Calhoun, 350 F.3d at 321. Specifically, the District Court determined that he failed to

provide a testable hypothesis and was never able to duplicate a scenario where the weight

of the vehicle in combination with false park caused the vehicle to move; the method he

utilized was not subject to peer review; he failed to produce any material or data from

which a potential rate of error could be gathered; he had not established that he had used

any standards when conducting his tests; and there was no assertion that he utilized a

generally accepted method for determining false park.

       Despite Simmons’ arguments to the contrary, Anderson’s conclusions derive from

subjective observations and methodologies, thus failing to meet the reliability

requirements of F.R.E. 702 and Daubert. Kumho Tire, 526 U.S. at 154-55. Although he

opined that the vehicle was in false park when Simmons exited the vehicle, he could not

identify why the car disengaged from park. Anderson admitted that he could not replicate

the movement that caused Simmons’ injuries and that he arrived at two theories why the



                                              4
movement occurred simply because he could not come up with any other causes of the

movement. Anderson posited that Simmons’ vehicle rolled backwards either due to

Simmons’ inadvertent shifting of gears upon exiting the vehicle or due to the weight of

the vehicle combined with Simmons’ movement. The former theory lacks evidentiary

support. Simmons testified that the vehicle was placed in park, turned off, and exited by

her before the spontaneous movement occurred. As to the latter theory, Anderson could

not duplicate the movement experienced by Simmons. Further, when he accomplished

movement by hitting the gear shift out of park, the vehicle rolled too fast to permit his

exit from the vehicle.

       As to whether Simmons provided sufficient evidence of a reasonable alternative

design, we conclude that the District Court correctly ruled that she had not met her burden

in this regard. Under New Jersey law, a plaintiff claiming that a product is defectively

designed bears the burden of proving that a practical and feasible alternative design

would have reduced or prevented the harm. Lewis, 715 A.2d at 980. The District Court

must initially determine whether sufficient evidence has been presented to permit a

reasonable factfinder to conclude that a reasonable alternative design could have been

adopted. H.T. Rose Enter., Inc. v. Henny Penny Corp., 722 A.2d 587 (N.J. Super. 1999).

Here, the District Court properly exercised its discretion in determining that the testimony

offered by Anderson failed to meet the threshold for admissibility. The proposed

alternative was nothing more than a sketch without a mock-up or testing of the design.



                                              5
Nor could Anderson affirm that the proposed alternative design was in use by any vehicle

manufacturer or that any manufacturer had eliminated the possibility of false park in the

design of vehicles with automatic transmissions. Anderson offered only his

unsubstantiated belief as to what would be a feasible alternative design. Absent data or

evidence to support such a conclusion, however, we conclude that the District Court

properly exercised its discretion in excluding Anderson’s testimony. See H.T. Rose, 722

A.2d at 595-97; Smith v. Keller Ladder Co., 645 A.2d 1269, 1272 (N.J. Super. 1994).

       We have considered all of the arguments of the parties and conclude that no

further discussion is necessary. For the foregoing reasons, we will affirm the judgment of

the District Court.




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