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Galloway v. Big G Express

June 11, 2008

SAM GALLOWAY, PLAINTIFF,
v.
BIG G EXPRESS, INC., AND COMMERCE AND INDUSTRY INSURANCE COMPANY, INTERVENING PLAINTIFF,
v.
VOLVO TRUCKS NORTH AMERICA, INC., DEFENDANT.



The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge

(VARLAN/GUYTON)

MEMORANDUM AND ORDER

This civil action is before the Court pursuant to 28 U.S.C. § 636(b), the Rules of this Court, and by the Order [Doc. 60] of the Honorable Thomas A. Varlan, United States District Judge, for disposition of the defendant's Motion to Exclude the Testimony and Report of Plaintiff's Expert Farhad Booeshaghi, Ph.D. [Doc. 50], and the plaintiffs' Motion in Limine to Exclude Testimony of Defendant's Proffered Expert, Heino W. Scharf [Doc. 51], Motion in Limine to Exclude Testimony of Defendant's Proffered Expert, Charles E. Bird [Doc. 53], and Motion in Limine to Exclude Supplemental Opinion Testimony of Defendant's Proffered Expert, Charles E. Bird. [Doc. 57] On May 16, 2008, the parties came before the Court for a hearing on the instant motion. After the hearing, the Court took the matter under advisement, and the motions are now ripe for adjudication.

Plaintiff Sam Galloway, intervening plaintiff Big G Express, Inc., and intervening plaintiff Commerce and Industry Insurance Company (collectively, "Plaintiffs") move the Court to exclude the testimony of defendant Volvo Trucks North America, Inc.'s ("Defendant") experts, Heino Scharf and Charles E. Bird. In turn, Defendant moves the Court to exclude the testimony of Plaintiffs' expert, Farhad Booeshaghi, Ph.D. The Court will address each expert in turn.

I. Background

This lawsuit arises from an alleged defect in the front windshield (the "Windshield") of a tractor trailer (the "Vehicle") that was owned by intervening plaintiff Big G Express, Inc. and was being driven by plaintiff Sam Galloway. On March 4, 2004, Mr. Galloway was driving the Vehicle on I-240 near Oklahoma City, Oklahoma. While passing another semi-truck on the right, what is described as a wall of water splashed up from the other truck, striking the Windshield and allegedly causing the Windshield to collapse, injuring Mr. Galloway. Plaintiffs allege that Defendant was negligent in the manufacture and design of the Vehicle and, more specifically, the Windshield, resulting in an unreasonably defective and dangerous product. Plaintiffs have filed suit under the Tennessee Products Liability Act and Section 402(a) of the Restatement of Torts.

II. Applicable Law: Admissibility of Expert Testimony

The parties each challenge the admissibility of the opposing party's expert testimony under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony:

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 by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, 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 witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702. The trial judge must act as a gatekeeper, admitting only that expert testimony that is relevant and reliable. Daubert, 509 U.S. at 589. With regard to scientific knowledge, the trial court must initially determine whether the reasoning or methodology used is scientifically valid and is properly applied to the facts at issue in the trial. Id. To aid the trial court in this gatekeeping role, the Supreme Court has listed several key considerations: (1) whether the scientific knowledge can or has been tested; (2) whether the given theory or technique has been published or been the subject of peer review; (3) whether a known error rate exists; and (4) whether the theory enjoys general acceptance in the particular field. Id. at 592-94. The Court's focus "must be solely on principles and methodology, not on the conclusions that they generate." Id. at 595. "[T]he test under Daubert is not the correctness of the expert's conclusions but the soundness of his methodology." Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995).

Although Daubert centered around the admissibility of scientific expert opinions, the trial court's gatekeeping function applies to all expert testimony, including that based upon specialized or technical, as opposed to scientific, knowledge. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999); Berry v. City of Detroit, 25 F.3d 1342, 1350 (6th Cir. 1994). The trial court's objective "is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152. The trial judge enjoys broad discretion in determining whether the factors listed in Daubert reasonably measure reliability in a given case. Id. at 153. The party proffering the expert testimony bears the burden of showing its admissibility under Rule 702 by a preponderance of the evidence. Daubert, 509 U.S. at 592 n. 10. With this framework in mind, the Court will now address the instant motions.

III. Defendant's Motion to Exclude the Testimony and Report of Plaintiff's Expert Farhad Booeshaghi, Ph.D. [Doc. 50]

Defendant moves the Court to exclude the opinions of the Plaintiffs' expert Farhad Booeshaghi, Ph.D. ("Dr. Booeshaghi"). As grounds, Defendant contends that Dr. Booeshaghi's methodology is flawed, that Dr. Booeshaghi's testimony will not be helpful to the trier of fact, and that Dr. Booeshaghi lacks the necessary experience with the products and materials at issue. Plaintiffs oppose the motion, arguing that Dr. Booeshaghi's opinions satisfy the dictates of Daubert and are admissible.

A. Background and Training

Dr. Booeshaghi received a B.S. and an M.S. in Mechanical Engineering from the University of Alabama, a Ph.D. in Mechanical Engineering from Florida State University, and, most recently, a certification in Biomedical Engineering from the University of Florida. [Doc. 50-3] Dr. Booeshaghi is currently employed as a consulting engineer and managing member by Global Engineering and Scientific Solutions, LLC. [Id.] His past relevant employment includes approximately fifteen years experience as a consulting engineer with Benedict Engineering Company, including approximately eight years as an engineering team leader and one year as a general manager, and approximately nine years as an adjunct professor at the Florida State University College of Engineering. [Id.] Dr. Booeshaghi holds professional engineer licences in the states of Florida, Alabama, California, and South Carolina, and possesses an accreditation from the Commission for Traffic Accident Reconstruction. [Id.] Dr. Booeshaghi is a member of a number of professional organizations, including, but not limited to, the Society of Automotive Engineers, the American Society of Mechanical Engineers, the American Society of Safety Engineers, and the American Society for Testing and Materials. [Id.] Additionally, Dr. Booeshaghi's relevant experience includes "accident reconstruction, including underride, visibility, and intersection collisions" and "[i]nvestigation of accidents related to product design, manufacturing, assembly, maintenance, service, and repair in industrial and residential settings." [Id.]

In ruling on the types of experience and training sufficient to allow a witness' qualification as an expert, other courts have recognized that:

The test for expertise is not "overly rigorous" and "the trial court should not exclude expert testimony simply because the court feels that the proffered witness is not the most qualified or does not have the specialization considered most appropriate by the court." Lovato v. Burlington Northern & Santa Fe Ry., No. CIV.A. 00-RB-2584CBS, 2002 U.S. Dist. LEXIS 16844, at *3 (D. Colo. June 24, 2002) (citing Holbrook v. Lykes Bros. S.S. Co., Inc., 80 F.3d 777, 782 (3d Cir. 1996)). Any weaknesses in [a witness'] expertise or specialization in the area [at issue] may be addressed in cross-examination. See First Tenn. Bank Nat'l Ass'n v. Barreto, 268 F.3d 319, 333 (6th Cir. 2001) ("to the extent that [the proffered expert] may have lacked familiarity with some aspects of [the subject matter at issue], the district court correctly reasoned that such unfamiliarity merely affected the weight and credibility of his testimony, not its admissibility").

Starnes v. Sears Roebuck & Co., No. 01-2804 B An, 2005 U.S. Dist. LEXIS 35755, at *9-10 (W.D. Tenn. Dec. 13, 2005). Applying this jurisprudence to the experience and training of Dr. Booeshaghi, the Court finds that Dr. Booeshaghi's training and experience, while not focused in the area of windshields, are sufficient for Dr. Booeshaghi to offer expert opinions in the area at issue. The Court finds, at this point, that Dr. Booeshaghi's training and experience in the field of mechanical engineering, coupled with his experience in accident investigation,*fn1 are sufficient for qualification in this matter.

B. Facts and Data

The Court turns next to an analysis of the facts and data underlying Dr. Booeshaghi's opinion. As the Court noted above, Daubert requires that expert testimony be based upon sufficient facts or data. In his report, Dr. Booeshaghi identifies several items he relied upon in forming his opinions, including, but not limited to: personal inspection, documentation, and analysis of the Vehicle, its windshield gasket, and an exemplar windshield; the traffic incident report; Plaintiff's deposition; service and maintenance records for the Vehicle; engineering drawings; discovery provided by Defendant; applicable standards and technical data; and climatological data relevant to the incident. [Doc. 50-3] Based upon this information, the Court finds that Dr. Booeshaghi's opinions are sufficiently grounded in the facts and data relating to the incident.

C. Methodology

The Court turns next to the methodology employed by Dr. Booeshaghi in forming his opinion. This is the aspect of Dr. Booeshaghi's opinion criticized most by Defendant, with Defendant contending that Dr. Booeshaghi's model of one cubic foot of water striking the Windshield is simply physically impossible in the real world. In the case of Jarvis v. Ford Motor Co., 283 F.3d 33 (2d Cir. 2002), the Second Circuit addressed a similar disagreement over whether an expert's testimony relating to causation was actually possible in the real world. In Jarvis, plaintiff's expert, Samuel Sero, an electrical engineer, opined as to the possible cause of the malfunction at issue, hypothesizing a ...


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