Citations
- 978 F. Supp. 2d 1053
Full opinion text
Order Granting in Part and Denying in Part Motions to Exclude Expert Testimony (“Daubert Motions”)
Order Granting in Part and Denying in Part Toyota’s Motion for Summary Judgment
JAMES V. SELNA, District Judge.
Table of Contents
PART ONE: THE MOTIONS TO EXCLUDE.....................................1064
I. Introduction — The St. John Collision.................................1064
II. Admissibility of Expert Opinion Testimony and Reports................1064
III. Motion to Exclude Expert Evidence Regarding Institutional Bias of Investigating Agency.............................................1067
IV. Motions to Exclude Expert Evidence Regarding Medical/Human Factors.........................................................1068
A. Burton .......................................................1068
B. Cassini.......................................................1069
C. Gill..........................................................1070
D. Pierce........................................................1072
E. Polydefkis ....................................................1078
V. Motions to Exclude Expert Evidence Regarding Mechanical Issues/Corrosion in Throttle Body..................................1074
A. Anderson.....................................................1074
B. Kitchen.......................................................1075
VI. Motions to Exclude Opinions Regarding Software Defects...............1077
A. Muckenhim...................................................1077
(1) Opinion Regarding the Full-Throttle Bug............1077
(2) Opinion that Memory Corruption Can Cause SUA from, Idle.......................................1078
(3) Opinion that the AID Converter is a “Single Point of Failure” .....................................1079
B. Barr.........................................................1079
(1) Opinion Regarding the Full-Throttle Bug............1080
(2)-(4) Opinions Regarding Task Death, Disabling of
Fail-Safes, and Causation........................1080
(a) Opinions Regarding Task Death.................1081
(b) Opinions Regarding Toyota’s Fail-Safes..........1081
(c) Causation Opinion.................■............1081
(5) Other Opinions Expressed in Report.................1081
(6) Opinion Regarding Pedal Misapplication and Brake Pressure..................................1081
(a) Opinion Regarding Pedal Misapplication.........1081
(b) Opinion Regarding Brake Pressure :.............1082
C. Jones........................................ 1082
(l)-(3) Opinions Regarding Task Death, Disabling of Fail-Safes, and Causation........................1082
(a) Opinion Regarding Task Death..................1082
(b) Opinion Regarding Toyota’s Fail-Safes...........1083
(c) Causation Opinions............................1083
(4) Other Opinions Regarding Multiple Major Mistakes.......................................1083
D. van Schoor....................................................1084
(1) ' • Opinions Regarding a Brake Override System........1084
(2) Opinions Related to Pedal Sensor Circuit Resistance......................................1084
(3) Opinion that Mrs. St. John Was Attempting to Brake..........................................1085
(4) Opinion Regarding Mrs. St. John’s Control of the Camry.........................................1085
(5) Opinion Regarding Toyota’s Conformance with Coding Standards...............................1085
(6) Opinion Regarding the Camry’s Brake Switch........1085
(7) Opinion Related to the Camry’s Vacuum Brake-Assist Booster...................................1085
(8) Opinions Regarding Other Similar Incidents (“OSIs”)........................................1086
E. Loudon.......................................................1086
(l)-(2) Opinions Regarding Toyota’s Understanding.........1087
(3), (6) & (7) Causation Opinions ...............................1087
(4) ■ Opinions Regarding the STP Brake Switch or Sensor Design...................................1087
(5) Opinions Regarding Toyota’s Software Development Process and the Resulting Defective Nature of the Software Developed Pursuant to that Process ............................................1087
(8) Opinion that the Lack of a Brake Override or Panic Braking System Makes the Camry Design Negligent.......................................1088
F. Koopman.....................................................1088
G. Arora ........................................................1089
VII. Motions to Exclude Opinions Regarding Braking System...............1090
(1) Opinion that Mrs. St. John Was Applying the Brakes.........................................1090
(2) Opinions Regarding Brake Pedal Application Forces .........................................1090
(3) Opinions that Flow from Hannemann’s Brake Testing................................. 1090
PART TWO: THE MOTION FOR SUMMARY JUDGMENT.......................1091
I. Summary Judgment Standard.......................................1091
II. Statement of Uncontroverted Facts...................................1092
III. Claims Asserted and Governing State-Law Legal Standards ............1094
A. Design and Manufacturing Defects — Statutory Claim..............1095
(1) Elements of a Design Defect Claim..................1095
(2) Elements of a Manufacturing Defect Claim...........1096
(3) Burden of Proof and the Role of Circumstantial Evidence.......................................1096
B. Negligent Product Design and Manufacturing.....................1100
C. Failure to Warn...............................................1100
IV. Discussion........................................................1100
A. Design Defect..................................................1101
B. Manufacturing Defect..........................................1102
C. Negligence....................................................1102
D. Failure to Warn...............................................1102
V. Conclusion........................................................1103
The St. John case is a member case in the multi-district litigation (“MDL”), and arises out of a single-vehicle collision (“the collision”) involving a 2005 Toyota Camry (“the Camry”) that allegedly resulted from an incident of sudden, unintended acceleration (“SUA”). Defendants in this action are Toyota Motor Corporation (“TMC”), Toyota Motor Sales, U.S.A., Inc. (“TMS”), and Toyota Engineering & Manufacturing America, Inc. (collectively, “Toyota” or “the Toyota Defendants”). Plaintiff is the estate of the driver of the Camry, the now-deceased Ida Starr St. John, and the present action is brought by and through the executor of the estate, William Curtis Grasty, Jr. In the First Amended Complaint (“FAC”), Plaintiff brings claims for strict products liability and negligence. (St. John Docket No. 43.)
This matter is before the Court on sixteen Motions to Exclude Expert Testimony. Toyota moves to exclude all or portions of the testimony and/or opinions of thirteen of Plaintiffs experts; Plaintiff moves to exclude all or portions of the testimony and/or opinions of three of Toyota’s experts. This matter is also before the Court on Toyota’s Motion for Summary Judgment. The parties filed extensive evidentiary records in support of and in opposition to the present Motions, and they filed timely Opposition and Reply briefs to every Motion.
As set forth herein, the Court GRANTS IN PART and DENIES IN PART Toyota’s Motions to Exclude Expert Testimony, and the Court GRANTS IN PART and DENIES IN PART Plaintiffs Motions to Exclude Expert Testimony. The Court GRANT IN PART AND DENIES IN PART Toyota’s Motion for Summary Judgment. Summary judgment is granted as to the manufacturing defect claim and the negligence claim, but summary judgment is denied as to the design defect claim and the failure to warn claim.
Because much of the expert evidence forms the underpinning of both sides’ positions on summary judgment, the Court addresses the Daubert motions first.
PART ONE: THE MOTIONS TO EXCLUDE
I. Introduction — The St. John Collision
As detailed more fully infra, Part Two, Section II, the collision at issue here occurred after the driver, Mrs. St. John, was stopped and ready to turn right at a stop sign in front of an elementary school. Before her death, Mrs. St. John testified in both a discovery and a trial deposition that when she removed her foot from the brake pedal, the Camry immediately accelerated without her depressing the accelerator pedal. She testified that application of the brakes did nothing to stop or slow the Camry, and that she struggled to control the Camry as she drove through the school yard, striking a number of obstacles in her path, including a brick column that formed part of the entryway to the school gymnasium, before ultimately coming to rest.
Given Mrs. St. John’s account regarding the Camry’s abnormal performance, each side relies extensively on the opinions of experts in support of and in defense of the claims asserted here.
II. Admissibility of Expert Opinion Testimony and Reports
The parties have developed and exchanged volumes of expert reports, and each side challenges the admissibility of a number of the other side’s expert opinions. Each side contends that under the standard enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786,125 L.Ed.2d 469 (1993), and expanded upon in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the challenged expert opinions are unreliable and/or irrelevant. Therefore, the parties call upon the Court to fulfill its role as the “gatekeeper” of such evidence by attending to “the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786.
Federal Rule of Evidence 702 permits expert testimony from “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education,” if:
(a) 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; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
Fed.R.Evid. 702. A trial court’s “gatekeeping” obligation to admit only expert testimony that is both reliable and relevant is especially important “considering the aura of authority experts often exude, which can lead juries to give more weight to their testimony.” Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1063-64 (9th Cir.2002). Nevertheless, “[sjhaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.” Primiano v. Cook, 598 F.3d 558, 564 (9th Cir.2010). Importantly, the Court’s gatekeeper role under Daubert is “not intended to supplant the adversary system or the role of the jury.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir.2003) (internal quotation marks and citation omitted). In other words, the Court is not supposed “to make ultimate conclusions as to the persuasiveness of the proffered evidence.” Id.
The Rule 702(a) requirements address an expert’s qualifications and the relevance of the opinions he or she offers, and the requirement set forth in Rule 702(b) relates to the foundation underlying the expert opinions. The requirements set forth in Rule 702(c)-(d) most directly address the reliability of the expert opinions.
The requirement that expert testimony “help the trier of fact to understand the evidence or to determine a fact in issue” goes primarily to relevance. Primiano, 598 F.3d at 564. Where state law provides the substantive law, relevance is necessarily determined by reference to what must be proven pursuant to the state-law claims asserted. Id. at 566-67 (applying Nevada product liability concepts to determine the helpfulness of expert testimony). Thus, the elements of Plaintiffs claims and' Georgia case law regarding design and manufacturing defects and negligent failure to warn factor heavily into the Court’s relevance analysis.
The Rule 702(b) “facts or data” upon which the expert opinion must be based may come from the expert’s personal observation, or the expert may simply be “made aware of’ those facts or data. Fed. R.Evid. 703. The “facts or data” need not be independently admissible if those facts or data are of the type(s) experts in the field would reasonably rely upon. Id.
The Rule 702(c) and (d) reliability indicators are subject to a more flexible analysis. According to the Ninth Circuit,
[i]n Daubert, the Supreme Court gave a non-exhaustive list of factors for determining whether scientific testimony is sufficiently reliable to be admitted into evidence, including: (1) whether the scientific theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether there is a known or potential error rate; and (4) whether the theory or technique is generally accepted in the relevant scientific community.
Domingo ex rel. Domingo v. T.K., 289 F.3d 600, 605 (9th Cir.2002). The Supreme Court later held that “a trial court may consider one or more” of the Daubert factors in determining the reliability of nonscientifíc expert testimony. Kumho Tire, 526 U.S. at 141, 119 S.Ct. 1167 (emphasis in original).
The trial court has “broad latitude” in deciding how to determine the reliability of an expert’s testimony and whether the testimony is in fact reliable. Mukhtar, 299 F.3d at 1064; see also Kumho Tire, 526 U.S. at 152, 119 S.Ct. 1167. The “test of reliability is ‘flexible,’ and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case.” Kumho Tire, 526 U.S. at 141, 119 S.Ct. 1167. For example, in United States v. Hankey, 203 F.3d 1160, 1169 (9th Cir.2000), the Ninth Circuit Daubert factors were inapplicable to a gang expert’s testimony because “reliability depend[ed] heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it.” The Daubert factors, with their focus on peer review, publication, and the testability of methodologies, were simply inapplicable in that field of expertise. Id. Similarly, in a products liability case, a surgeon’s experience with prosthetic elbow replacements rendered him qualified “by knowledge, skill, experience, training, or education” to render an opinion based on the expected minimum lifespan of an implanted prosthetic elbow. Primiano, 598 F.3d at 566-67.
In a complex case, the opinions of multiple experts may be presented. That is, a number of expert opinions may be necessary to establish a party’s theory of liability or to fully defend against liability. Thus, courts have considered to what extent an expert opinion may be based on the opinions of other experts. Generally, although a party’s expert testimony may build upon itself, in no instance does the Court relax the admissibility threshold of any given expert opinion, and each opinion remains subject to the underlying requirement that it be premised upon “sufficient facts or data” of the type generally relied upon by experts in the relevant field.
More specifically, expert opinions may find a basis in part “on what a different expert believes on the basis of expert knowledge not possessed by the first expert.” Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609, 613 (7th Cir.2002). Indeed, this is common in technical fields. Id. For example, a physician may rely for a diagnosis on an x-ray taken by a radiologist, even though the physician is not an expert in radiology. Id. “[T]here is no general requirement that the [underlying] expert testify as well.” Id. There are limits to this general rule, however. Where the “soundness of the underlying expert judgment is in issue,” the testifying expert cannot merely act as a conduit for the underlying expert’s opinion. Id. at 613-14. Moreover, more scrutiny will be given to an expert’s reliance on the information or analysis of another expert where the other expert opinions were developed for the purpose of litigation. See, e.g., In re Imperial Credit Indus., Inc. Sec. Litig., 252 F.Supp.2d 1005, 1012 (C.D.Cal.2003).
The Court must pause at the outset to acknowledge that no single expert provides a self-sufficient opinion that an identified defect or defects in fact caused the St. John collision. This is not dispositive. The case law does not require a plaintiff to identify a specific defect. Nor does it require each expert to present the complete decision tree leading from defect to collision. “Reliable expert testimony need only be relevant, and need not establish every element that the plaintiff must prove, in order to be admissible.” Primiano, 598 F.3d at 565 & n. 37; see Jarvis v. Ford Motor Co., 283 F.3d 33, 47-48 (2d Cir.2002) (“The jury was entitled to consider [expert testimony], even if it did not conclusively demonstrate — as it need not— what specific defect caused the Aerostar’s cruise control to malfunction.”).
With these standards in mind, the Court considers each Motion to Exclude.
III. Motion to Exclude Expert Evidence Regarding Institutional Bias of Investigating Agency
Toyota moves to exclude portions of the expert testimony of Allan Kam. (Docket Nos. 4005 (Motion), 4140 (Opp’n) & 4177 (Reply).) More specifically, Toyota challenges the following opinions of Kam: (1) the National Highway Traffic Safety Administration’s (“NHTSA”) Office of Defect Investigations (“ODI”) has an institutional bias towards finding mechanical and driver error causes of SUA, affecting its ability to effectively regulate and enforce automotive safety in the area of SUA; and (2) the NHTSA has not developed much, if any, real expertise in automotive electronics which, together with its lack of staffing, regulation, and enforcement, undermines its ability to examine the causes of SUA. (Motion at 1.)
Toyota first argues that Kam’s opinions lack reliability because they are not based on a reliable foundation or methodology. Instead, they amount to Kam’s ipse dixit. The Court agrees. An expert who relies solely or primarily on his experience “must explain how that experience leads to the conclusions reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Fed.R.Evid. 702 advisory committee’s note (2000) (emphases added); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (explaining that expert opinions cannot be “connected to existing data only by the ipse dixit of the expert”). Kam’s opinion that the ODI has an institutional bias towards finding mechanical and driver error causes of SUA is based on his experience as an attorney for the NHTSA. Beginning with the Audi investigations in the 1980s, he explains, the ODI has repeatedly concluded that mechanical and driver error are the most likely causes of UA. (See Kam Report at 18-52.) Kam believes that the ODI inappropriately relies on the “Silver Book,” a contract report by researchers at the Transportation System Center, as well as other studies that have failed to identify any link between vehicle defects and SUA, in their defect investigations. (Id.)
Kam is an attorney and a consultant by trade. Although he participated in “hundreds of safety defect investigations” while working at the NHTSA (Kam Report at 1), he does not explain his role in those investigations. It appears from Kam’s CV and expert report that he has no specific training or education in automotive electronics. Kam does not explain how his experience as an attorney and a consultant provides him with a sufficient basis under Rule 702 and Daubert to reliably opine that the ODI engineers and scientists are biased towards finding mechanical and driver error as causes of UA. Simply put, his opinion lacks a reliable foundation. Kam’s opinion regarding the NHTSA’s expertise in automotive electronics is unreliable for the same reasons. Therefore, the Court excludes these opinions.
Toyota also argues that Kam’s opinions are not relevant. The Court agrees. Plaintiff contends that Kam’s opinions will help the jury to understand the role of the NHTSA and relevant Federal Motor Vehicle Safety Standards (“FMVSS”). (Opp’n at 8.) However, such general testimony regarding the NHTSA and FMVSS does not sufficiently fit the facts of this case. Kam offers no opinions that are specific to the Camry or the collision. (See generally Kam Report; Kam Depo. at 261-62.) If Toyota’s expert witness Robert Lange misrepresents the meaning of the NHTSA’s findings, then Plaintiff may challenge Lange in cross-examination. However, a general overview of the NHTSA and relevant FMVSS will not be helpful to the jury.
The Court need not address Toyota’s argument that Kam’s opinions should be excluded or stricken pursuant to Rules 402 and 403 (see Motion at 13) because it has ruled that the opinions lack reliability and are not relevant.
The Court GRANTS Toyota’s Motion to Exclude the Expert Testimony of Allan Kam.
IV. Motions to Exclude Expert Evidence Regarding Medical/Human Factors
A. Burton
Toyota moves to exclude the expert testimony of Joseph L. Burton, M.D. (Docket Nos. 4003 (Motion), 4139 (Opp’n) & 4167 (Reply).) More specifically, Toyota moves to exclude (1) Dr. Burton’s opinion that the injuries sustained by Mrs. St. John in the 2009 collision contributed to her death in 2012, and (2) his occupant kinematic and biomechanics opinions regarding Mrs. St. John’s body position during the collision sequence. (Motion at 1.)
Dr. Burton opines that the 2009 collision “resulted in injuries that caused further debility and stress to the overall physical condition” of Mrs. St. John, and that “this stress and medical debility contributed to and set the stage for her uncontrollable urosepsis which occurred and resulted in her death in 2012.” (Burton Rebuttal Report at 4.) Toyota argues that this opinion is impermissibly speculative because Dr. Burton cannot determine how much of an effect the injuries from the collision had on Mrs. St. John’s death. (Motion at 3-4.) In addition, Toyota points out that Dr. Burton failed to consider the effects of a subsequent fall suffered by Mrs. St. John, during which she broke her hip. (See Burton Depo. at 179-80.)
Dr. Burton’s opinions are not impermissibly speculative. As a rebuttal witness, he may rely largely on other expert reports, as he does, and point out flaws in their methodologies or conclusions. See United States v. 4.0 Acres of Land, 175 F.3d 1133, 1141 (9th Cir.1999). Dr. Burton also reviewed other materials to form his opinions, including, inter alia, Mrs. St. John’s medical records and the collision report. (Burton Rebuttal Report at 1-2.) Thus, there is a sufficient factual basis for Dr. Burton’s opinions. The argument that he failed to consider other injuries that Mrs. St. John suffered after the collision goes to weight, not admissibility. Toyota may challenge Dr. Burton’s opinions, and their factual bases, in cross-examination. See Hartley v. Dillard’s, Inc., 310 F.3d 1054, 1061 (8th Cir.2002) (“As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in cross-examination.” (internal quotation marks and citation omitted).)
Toyota next argues that Dr. Burton’s occupant kinematic and biomechanics opinions should be excluded because they are subjective and purely speculative. (Motion at 8.) Toyota also contends that these opinions are inadmissible because they were not presented before the June 6, 2013 deadline for rebuttal expert opinions; they were disclosed for the first time during Dr. Burton’s June 16, 2013 deposition. (Id.) First, the Court agrees that Dr. Burton’s opinions on these matters were not timely disclosed and, therefore, could be excluded under Federal Rule of Civil Procedure 37(c). However, because Toyota thoroughly examined Dr. Burton’s opinions on these matters shortly after disclosure was required (Burton Depo. at 23-24, 43-45, 63-67, 94-5, 101-10, 193-94, 198-99, 205-08, 211-19), no harm will result from their admission at trial. See In re Sulfuric Acid Antitrust Litig., 235 F.R.D. 646, 659 (N.D.Ill.2006). Second, in Dr. Burton’s deposition testimony, he explains fully the factual basis for his kinematic and biomechanics opinions — Dr. Corrigan’s expert report, including surrogate study photographs on which she relied, photographs of the vehicle at the scene of the collision, and Mrs. St. John’s medical records. (Burton Depo. at 63-67, 94-95.) Again, Toyota may challenge the factual bases for Dr. Burton’s opinions in cross-examination.
The Court DENIES Toyota’s Motion to Exclude the Expert Testimony of Dr. Joseph Burton.
B. Cassini
Plaintiff moves to exclude the expert opinion of Peter Cassini, M.D. (Docket Nos. 4011 (Motion), 4118 (Opp’n) & 4186 (Reply).) Dr. Cassini opines that Mrs. St. John’s neurologic condition at the time of the collision affected her ability to operate a motor vehicle safely, resulting in the collision. (Cassini Report at 2-3.) Plaintiff argues that Dr. Cassini’s opinions are neither reliable nor relevant. (Motion at 1.)
Plaintiff first argues that Dr. Cassini’s opinions are unreliable because they are speculative. (Id. at 3-6.) More specifically, Plaintiff contends that Dr. Cassini does not know whether the risk factors discussed in his report actually manifested at the time of the collision. (Id. at 5.) Dr. Cassini need not testify with certainty that the risk factors manifested. See Primiano, 598 F.3d at 565 (“Lack of certainty is not, for a qualified expert, the same thing as guesswork.”); see also In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir.1994) (“The evidentiary requirement of reliability is lower than the merits standard of correctness.”). Dr. Cassini relied on Mrs. St. John’s medical records as well as his extensive experience treating patients with neurologic conditions. (Cassini Report at 2-3; Cassini Depo. at 30, 70, 92.) See Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1317 (9th Cir.1995) (“Daubert II ”) (“[I]n determining whether proposed expert testimony amounts to good science, we may not ignore the fact that a scientist’s normal workplace is the lab or the field.”). Plaintiffs arguments about other sources that Dr. Cassini could have consulted (Motion at 6-9) and alternative explanations he could have considered (id. at 9-10) go to weight, not admissibility. However, Dr. Cassini may not testify that Mrs. St. John’s neurologic condition ultimately caused the collision, as this opinion would be unreliably speculative.
Plaintiff next argues that Dr. Cassini’s opinions do not fit the facts of this case. (Id. at 10-11.) The Court disagrees. Whether Mrs. St. John experienced a neurologic condition that may have affected her ability to control the Camry is clearly relevant to a jury tasked with determining the cause of the collision. Plaintiffs citation to select bits of testimony from Dr. Cassini’s deposition does not convince the Court otherwise. Further, for reasons already stated, Plaintiff is incorrect that Dr. Cassini’s opinions will be unhelpful because he does not know “precisely what happened.” (Reply at 1.)
The Court agrees with Toyota that the conflicting testimony of Dr. Cassini, Pierce, and Dr. Polydefkis creates a “battle of the experts,” the resolution of which is properly left to the jury. See Am. Booksellers Ass’n, Inc. v. Barnes & Noble, Inc., 135 F.Supp.2d 1031, 1064 (N.D.Cal.2001) (explaining that a “battle of the experts can only be decided in the courtroom”). None of these experts will be permitted to testify as to the ultimate cause of the collision.
The Court GRANTS IN PART and DENIES IN PART Plaintiffs Motion to Exclude the Expert Testimony of Dr. Peter Cassini.
C. Gill
Toyota moves to exclude the expert testimony of Richard Gill, Ph.D. (Docket Nos. 4001 (Motion), 4137 (Opp’n) & 4172 (Reply).) Toyota contends that Dr. Gill’s opinions about Mrs. St. John’s alleged brake pumping during the UA event are neither relevant nor reliable. (Gill Motion at 1-2.) Toyota also contends that Dr. Gill’s opinions about Mrs. St. John’s physical condition and abilities at the time of the collision are unreliable. (Id.)
Toyota first argues that Dr. Gill’s brake pumping opinions do not fit the facts of this case and, therefore, are not relevant. (Id. at 4-8.) According to Toyota, Dr. Gill’s opinion that Mrs. St. John likely pumped the brakes during the UA event is “anything but definitive.” (Id. at 6.) However, to be admissible, Dr. Gill need not prove that his opinions are correct. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir.1994). Further, Dr. Gill’s opinions are not based solely on Mrs. St. John’s testimony, as Toyota suggests. Dr. Gill also relies, inter alia, on the reports of Robert Caldwell (accident reconstruction expert), Neil Hannemann (brake expert), and (researcher) Joel Cooper, as well as data taken from other UA events. (E.g., Gill Report at 3; Walburg Decl. Ex. D (Gill Depo. at 29, 47-48, 50-51, 59-60, 61-62, 64, 168-69, 171-72, 187-89); Gill Opp’n at 5.) Notably, in his report, Dr. Gill explains that one may “pump” the brake pedal without removing all pressure from it. Indeed, according to Dr. Gill, repeated application of the brakes — or “brake pumping” — is “most efficient” when the foot remains in contact with the brake pedal throughout the process. (Gill Report ¶ 4.b.) Thus, there is a sufficient factual basis for Dr. Gill’s opinions, which may properly be challenged in cross-examination. See Humetrix, Inc. v. Gemplus, S.C.A., 268 F.3d 910, 919 (9th Cir.2001) (explaining that a party who seeks to challenge the correctness of an expert’s testimony should do so in cross-examination and with its own experts).
Toyota also argues that Dr. Gill’s brake pumping opinions are unreliable because they lack sufficient factual support. (Gill Motion at 8-10.) The Court has already found that a sufficient factual basis exists for Dr. Gill’s opinions. It is properly left to the jury to determine whether Mrs. St. John actually pumped the brakes and, if so, how may times.
Next, Toyota argues that Dr. Gill unreliably applied methods and principles to reach his brake pumping opinions. (Id. at 11-13.) More specifically, Toyota contends that studies on which Dr. Gill relies, such as the NHTSA and Cooper studies, do not support his opinions. Dr. Gill cites the NHTSA study because the driver in the Weller incident pumped what he thought was the brake pedal. Even though he actually pumped the accelerator pedal, the study may support Dr. Gill’s opinion that a driver in a UA event is likely to attempt to pump the brake pedal. Dr. Gill cites the Cooper study because, he believes, it shows that a natural human reaction when a driver perceives that brakes are not working properly is to pump the brake pedal. Although roughly 55 percent of drivers in the Cooper study did not pump the brake pedal, 45 percent did. It is up to the jury to determine to what extent these studies support Dr. Gill’s opinions.
Finally, Toyota argues that Dr. Gill should be precluded from testifying about Mrs. St. John’s physical condition and abilities at the time of the collision. (Gill Motion at 15-16.) Dr. Gill opines only that there is not sufficient evidence, based on his human factors analysis, to conclude that Mrs. St. John was incapacitated during the UA event. (Gill Report at 7-8.) This opinion is supported by Mrs. St. John’s testimony, the testimony of eyewitnesses, and Dr. Gill’s experience as a human factors expert. (Id.) According to Dr. Gill, Mrs. St. John’s alleged reactions to the UA event were typical, indicating that she was functioning normally. Toyota will present experts with contrary opinions. It may also challenge Dr. Gill’s opinions in cross-examination.
Accordingly, the Court DENIES Toyota’s Motion to Exclude the Expert Testimony of Dr. Gill.
D. Pierce
Plaintiff moves to exclude the expert testimony of Susan Pierce. (Docket Nos. 4009 (Motion), 4117 (Opp’n) & 4185 (Reply).) Pierce opines that Mrs. St. John’s chronic medical diagnoses and age-related impairments put her at risk for being involved in a motor vehicle crash. (Pierce Report at 5.) Plaintiff argues that Pierce’s opinions are speculative and unreliable, and would not be helpful to the jury. (Motion at 1.)
Plaintiff first argues that Pierce’s opinions are speculative and unreliable because she cannot say whether the “risk factors” discussed in her report actually influenced Mrs. St. John’s driving on the day of the collision. Further, Plaintiff contends that Pierce cites no evidence or scientific studies supporting her opinions. (Id. at 3-11.) As to Plaintiffs first point, Pierce need not testify with certainty that the risk factors manifested on the day of the collision. See Primiano, 598 F.3d at 565; In re Paoli R.R. Yard PCB Litig., 35 F.3d at 744. As to Plaintiffs second point, to reach her conclusions, Pierce relies on her extensive experience working with elderly drivers, scientific literature, and Mrs. St. John’s medical records. (Pierce Report 6-9.) Therefore, her opinions are not speculative. The Court has already dismissed Plaintiffs arguments regarding failure to consider alternative causes of the collision. Pierce does not, and could not, opine that the risk factors actually caused the collision.
Next, Plaintiff argues that Pierce’s opinions would not be helpful to the jury because they do not fit the facts of this case. (Pierce Motion 11-14.) The Court disagrees. The cause of the collision must be determined by the jury. Pierce’s opinions will help the jury to consider possible contributing factors. See Clark v. Heidrick, 150 F.3d 912, 915 (8th Cir.1998).
The Court DENIES Plaintiffs Motion to Exclude the Expert Testimony of Susan Pierce.
E. Polydefkis
Toyota moves to exclude the expert testimony of Michael Polydefkis, M.D. (Docket Nos. 4002 (Motion), 4138 (Opp’n) & 4168 (Reply).) Dr. Polydefkis opines that Mrs. St. John’s peripheral neuropathy — a condition that results in decreased sensation in the feet — did not cause the collision. (Polydefkis Rebuttal Report at 1.) This opinion is offered to rebut the opinions of Toyota’s experts, including Dr. Cassini, who asserts that Mrs. St. John’s neurologic condition contributed to the collision.
Toyota first argues that Dr. Polydefkis’s opinion is unreliable because he is not qualified to testify about what did or did not cause the collision. (Motion at 4-9.) Toyota also argues that Dr. Polydefkis does not have a sufficient factual basis for his opinion. (Id. at 9-14.) To be clear, Dr. Polydefkis does not purport to know what caused the collision. Rather, he asserts only that, in his opinion, Mrs. St. John’s peripheral neuropathy did not cause the collision. According to Dr. Polydefkis, even with her condition, Mrs. St. John had “ample reaction time” to apply the brakes. (Polydefkis Rebuttal Report at 2.) This opinion is based on his review of Mrs. St. John’s medical records, transcripts from depositions taken in this case, and his extensive experience with patients who have peripheral neuropathy. (Id. at 1-2; Polydefkis Decl. ¶ 4.) The Court finds that Dr. Polydefkis is qualified to render this opinion, which is based on sufficient facts and data.
Toyota next argues that Dr. Polydefkis’s opinion that Mrs. St. John was not confused at the time of the collision is unreliable because it lacks a sufficient factual basis. (Motion at 14.) The Court disagrees. Dr. Polydefkis reviewed Mrs. St. John’s deposition testimony, as well as the deposition testimony of other witnesses, who described her as being alert and coherent following the collision. (See Polydefkis Report at 1; Polydefkis Depo. at 53-54.) Dr. Polydefkis also noted during his deposition that Mrs. St. John’s blood sugar and vital signs were normal at the time of the collision. (Polydefkis Depo. at 38; Opp’n at 9-10.) Thus, there is a sufficient factual basis for his opinion that she was not confused. Toyota’s challenges regarding all of the materials that Dr. Polydefkis did not review go to weight, not admissibility. Toyota may challenge the factual basis of his opinions in cross-examination.
The Court agrees with Toyota, however, that Dr. Polydefkis cannot testify at trial that the Camry “accelerated uncontrollably.” (Motion at 16 n. 5.) He may rely on Mrs. St. John’s testimony to form his opinion, but must refrain from presenting it as his own opinion.
Except as noted, the Court DENIES Toyota’s Motion to Exclude the Expert Testimony of Dr. Michael Polydefkis.
V. Motions to Exclude Expert Evidence Regarding Mechanical Issues/Corrosion in Throttle Body
A. Anderson
Toyota moves to exclude the expert testimony of Robert N. Anderson, Ph.D., whose testimony is offered in response to Toyota’s expert, Dr. Gary Fowler. (Docket Nos. 3999 (Motion), 4136 (Opp’n) & 4176 (Reply).) Toyota specifically challenges Dr. Anderson’s opinion that corrosion in the throttle body of the Camry that he observed in December 2012 existed at the time of the collision in April 2009. (Motion at 1-2.) Toyota offers three grounds for excluding Dr. Anderson’s testimony: (1) he lacks the facts and data necessary to support his opinions; (2) he employs scientifically unreliable methods and procedures to develop his opinions; and (3) he can only speculate about whether corrosion in the throttle body existed at the time of the collision and the progression of that corrosion thereafter. (Id.)
Toyota first argues that Dr. Anderson lacks facts and data necessary to conclude that the battery in the Camry ruptured during the collision. (Motion at 7-10.) The Court disagrees. The parties do not dispute the existence of sulfur in the throttle body. Dr. Anderson opines that sulphuric acid most likely splashed as an aerosol from the ruptured battery during the collision. (Anderson Rebuttal Report at 3.) This opinion is offered in response to the opinion of Toyota’s expert, Dr. Fowler, who contrarily opines that industrial pollutants were the source of the sulfur. Dr. Anderson’s opinion that the battery ruptured is based on (1) the high levels of sulfur he found under the hood of the Camry, which would not result from industrial pollutants alone; (2) his December 2012 inspection of the Camry, during which he noted the battery’s location in the front of the car’s engine compartment, which was severely damaged during the collision; and (3) his experience. (Id. at 3-4.)
The Court finds that Dr. Anderson has facts and data sufficient to conclude that the battery in the Camry ruptured during the collision. Toyota’s experts may disagree, but Dr. Anderson’s opinions need not be proven correct to be admissible. See Hartley, 310 F.3d at 1061; In re Paoli R.R. Yard PCB Litig., 35 F.3d at 744.
Toyota next argues that Dr. Anderson’s opinions are unreliable because he employed unreliable methods to develop them. (Motion at 11-16.) The Court disagrees. Toyota points out that Dr. Anderson relied on samples of corrosion products he collected during his December 2012 inspection of the Camry, after years of exposure to environmental elements. However, Dr. Anderson explains how he was able to determine that corrosion existed in the throttle body at the time of the collision. According to Dr. Anderson, the iron throttle valve shaft on the butterfly valve was cathodically protected by corrosion to the aluminum in the throttle body. (Anderson Rebuttal Report at 4.) Again, Dr. Anderson need not prove that he is correct for this opinion to be admissible.
Toyota also contends that Dr. Anderson erroneously relied on a thermodynamic equation that incorporates values for pure metals, not alloys, which are used in the Camry throttle body. (Motion at 14.) But Dr. Anderson contends that the principle he was demonstrating with the equation— that in the presence of battery acid, aluminum will corrode in preference to the iron — holds true in the presence of alloys. (Anderson Rebuttal Report at 4; Anderson Depo. at 158-59.) Toyota’s disagreement with this opinion goes to the credibility of Dr. Anderson’s testimony, not the admissibility. The use of the same thermodynamic equation for the pure metals and alloys is not so fatally flawed as to counsel exclusion.
Finally, Toyota argues that Dr. Anderson’s testimony is unreliable because he did not do any testing and did not review any literature supporting his methodology. (Motion at 15-17.) Toyota’s contention that Dr. Anderson “conducted no testing of any kind” is simply wrong. (Id. at 15.) Dr. Anderson collected samples of corrosion products from the throttle body and performed element analyses, which he explains in his report. (Anderson Rebuttal Report at 2, 4-6.) If Toyota believes that Dr. Anderson should have performed additional testing, then it can challenge his methodology in cross-examination. Contrary to Toyota’s apparent position (Motion at 16), Dr. Anderson did not need to do enough testing to prove the correctness of his opinions.
With regard to Toyota’s point that Dr. Anderson failed to cite any professional standards that he complied with in his expert report, the Court does not find this particularly troubling. Dr. Anderson is a highly educated and experienced forensic consultant, with significant expertise in corrosion and thermodynamics, who was retained to identify corrosion of the throttle body at the time of the collision. Further, he was on the Board of Directors of the American Academy of Forensic Sciences, and is the current President of the International Board of Forensic Engineering Sciences, which certifies engineering science reports. See In re Fosamax Prods. Liab. Litig., 645 F.Supp.2d 164, 179 (S.D.N.Y.2009) (explaining “the more qualified the expert, the more likely that expert is using reliable methods in a reliable manner.” (internal quotation marks and citation omitted).). The Court declines to exclude Dr. Anderson’s testimony because he did not list all of the standards he complied with in his expert report.
The Court DENIES Toyota’s Motion to Exclude the Expert Testimony of Dr. Robert Anderson.
B. Kitchen
Toyota moves to exclude the expert testimony of Myles H. Kitchen. (Docket Nos. 4000 (Motion), 4135 (Opp’n) & 4178 (Reply).) Kitchen opines that corrosion in the throttle body of the Camry at the time of the collision caused the throttle valve to “stick,” which likely caused the Camry to operate in an erratic and unexpected manner and ultimately led to UA. (Kitchen Report ¶¶4, 75.) Toyota generally challenges the relevance and reliability of Kitchen’s opinions. (See Motion at 2.)
Toyota first argues that Kitchen’s opinions are not relevant because he has not determined that the throttle valve actually stuck on the day of the collision and, even if it did, he cannot demonstrate that it would have played a role in causing the collision. (Id. at 10.) The Court disagrees. Kitchen’s opinion that the throttle valve stuck on the day of the collision is based on Dr. Anderson’s expert report, which concludes that corrosion existed in the throttle body, as well as his own investigation, testing, and experience. (See Kitchen Report §§ VIII-IX.) As noted previously, an expert’s opinions need not be proven correct to be admissible. E.g., In re Paoli R.R. Yard PCB Litig., 35 F.3d at 744. Also, Toyota misreads Kitchen’s testimony as asserting that the throttle valve was stuck at a 19 percent open position throughout the incident. (Motion at 11-13.) Kitchen asserts only that the throttle valve was stuck at the 19 percent open position when he examined it. (Kitchen Report ¶ 75; Kitchen Depo. at 26, 75, 204.) According to Plaintiff, this suggests that corrosion in the throttle body likely caused the Camry to operate in an erratic and unexpected manner on the day of the collision. (Opp’n at 11-12.) This opinion is relevant to a jury attempting to determine the cause of the collision, which may involve numerous factors.
Toyota next argues that Kitchen employed unreliable methodologies and extrapolated from facts and data that do not support his opinions. In particular, Toyota challenges Kitchen’s testing of a modified Camry, his analysis of exemplar throttle bodies from vehicles involved in other collisions, and his reliance on certain written materials compiled for this case. (Motion at 13-22.) To test Toyota’s fail-safe mechanisms, Kitchen used a “sticky” throttle body that he created and a 2006 Toyota Camry, which was “substantially similar” to the St. John Camry. (Kitchen Report ¶¶ 68-74; Opp’n at 17.) Toyota may challenge aspects of Kitchen’s testing, but such challenges generally go to weight, not admissibility. See Kennedy v. Collagen Corp., 161 F.3d 1226, 1231 (9th Cir.1998) (explaining that disputes concerning an alleged fault in methodology go to weight). Likewise, Toyota’s argument that Kitchen’s testing of the Moreau and Parker throttle bodies indicates little, if anything, about the St. John throttle body goes to weight. (See Motion at 18-20.) Finally, in his report, Kitchen cites Identifix postings, automotive technician materials authored by James Halderman, an Exponent report, and Toyota technical service bulletins. (Kitchen Report ¶¶ 38-46.) These sources contribute to the factual bases for Kitchen’s opinions. Accordingly, they may properly be challenged in cross-examination. See Hartley, 310 F.3d at 1061.
Toyota did not argue in its Motion that Kitchen should not be permitted to testify that a brake override system (“BOS”) would have prevented the collision. But Kitchen only briefly mentions the absence of BOS in his expert report; he does not explain his background with BOS, how it works, or how it would have prevented the collision. (See Kitchen Report ¶¶4, 76.) Therefore, the Court agrees with Toyota that Kitchen may not testify about BOS.
Except as noted, the Court DENIES Toyota’s Motion to Exclude the Expert Testimony of Myles Kitchen.
VI. Motions to Exclude Opinions Regarding Software Defects
Toyota moves to exclude the expert opinions of Michael Barr, Nigel Jones, Phillip Koopman, Steven Loudon, Carl Muckenhirn, and Marthinus van Schoor. (Docket Nos. 4067, 4065, 8997, 4066, 4064 & 3996 (Motions), 4128, 4130, 4133, 4126, 4129 & 4123 (Opp’ns), & 4216, 4212, 4155, 4215, 4214 & 4173 (Replies).) Plaintiff moves to exclude the expert opinion of Ashish Arora. (Docket Nos. 4010 (Motion), 4145 (Opp’n), & 4224 (Reply).)
A. Muckenhirn
Toyota moves to exclude three categories of opinion testimony from Plaintiff’s expert Carl Muckenhirn. These include his opinions (1) that a full-throttle bug (“FTB”) can lead to the Camry’s throttle opening from an idle position of approximately 6.5 degrees to the wide-open throttle (“WOT”) position of 84 degrees; (2) that memory corruption can cause SUA in a vehicle that is at a stop or idle; and (3) that the Camry’s analog-to-digital converter (“A/D converter”) is a “single point of failure.”
(1) Opinion Regarding the Full-Throttle Bug
Muckenhirn may not testify regarding the existence or effect of the software bug identified as the FTB, nor may any other expert. At his deposition, Muckenhirn testified that he examined the logic of the code and found a software bug — eventually dubbed the FTB by fellow expert Michael Barr — that would, through the occurrence of a specific set of circumstances, reset the target throttle angle to 84 degrees from the idle position. (Muckenhirn Depo. at 59-74.) However, he also testified that, although the FTB was testable, it had not been tested. (Id. at 75-77.) For this reason, the Court excludes testimony regarding the FTB.
Much testimony has been elicited regarding how the overall complexity of many portions of the Camry software renders it untestable, either because such testing is impossible as a practical matter because of the number of permutations involved or is otherwise infeasible. To the extent that a software’s complexity renders testing unreliable (and thus, useless), sound scientific principles counsel against such testing. However, because Muckenhirn testified that this portion of the software is testable, sound scientific principles counsel that such testing should be performed. (Cf. Daubert, 509 U.S. at 593, 113 S.Ct. 2786 (“Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested.”).) It appears to the Court that the FTB was not tested because it was simply discovered too late in the process to be subjected to testing.
(2) Opinion that Memory Corruption Can Cause SUA from Idle
Toyota moves to exclude Muckenhirn’s opinion that memory corruption can cause SUA in a stopped vehicle with a throttle at idle because he “cites no evidence to back up this assertion.” (Motion at 12.) To be sure, neither Muckenhirn nor any other expert can identify a specific software bug, a specific instance of memory corruption, or another specific type of interruption in the normal processes of the Camry’s software that caused a SUA event. However, as discussed at length below, Georgia law simply does not require identification of a specific defect.
Muckenhirn explains more generally how memory corruption can cause arbitrary and unpredictable malfunctions in the Camry’s software:
34.... When memory corruption occurs in software, it is typically more like a shotgun blast that spreads out to damage multiple memory locations, than a rifle shot that just damages a single bit. Memory corruption happens in this “scattershot” way because software is all linked together and errors propagate, as described in Barr’s Chapter Regarding Toyota’s Software Bugs. Thus, Mrs. St. John’s vehicle clearly could have accelerated away from the stop sign even without her pressing on the accelerator pedal, due only to a memory corruption event.
(Muckenhirn Rebuttal Report ¶ 34.) Because Barr’s testimony on software bugs is itself admissible, Muckenhirn may rely upon it to the extent his opinions build on Barr’s testimony. See Dura Auto. Sys., 285 F.3d at 613. Essentially, Muckenhirn opines that memory corruption can lead to unpredictable results and random events, and one of those unpredictable results or random events is the opening of the throttle from its idle position without input from the driver.
(3) Opinion that the A/D Converter is a “Single Point of Failure”
Muckenhirn may testify that both accelerator pedal sensor signals and both throttle sensor signals are converted by the same ESP-B2 monitor CPU. (Muckenhirn Rebuttal Report ¶ 46.) Muckenhirn may also testify that this creates a single point of failure in that, if the conversion circuitry in the ESP-B2 chip fails, the accelerator pedal sensor signals and dual throttle sensor signals will match even if they are inaccurate. (Id. ¶ 47.) This testimony builds on the expert opinion testimony of Dr. Koopman, whose opinion testimony is admissible on this issue, as explained infra Section VI.F.
Toyota’s reliance on Schudel v. General Electric Co., 120 F.3d 991, 996 (9th Cir.1997), overruled on other grounds by Weisgram v. Marley Co., 528 U.S. 440, 120 S.Ct. 1011, 145 L.Ed.2d 958 (2000), does not compel a contrary result. Toyota argues that Schudel compels the Court to exclude this opinion because Muckenhirn has not offered the opinion that the A/D converter more probably than not caused the collision. The Court disagrees.
After noting that admissibility of expert testimony necessarily considers state substantive law regarding the merits of a plaintiffs claims, Schudel relied on a Washington Supreme Court decision for the proposition that “the act complained of ‘probably’ or more likely than not caused the subsequent disability.” Schudel, 120 F.3d at 996 (quoting O'Donoghue v. Riggs, 73 Wash.2d 814, 440 P.2d 823, 830 (1968)). ODonoghue, in turn, imposes the substantive requirement that where medical opinion is necessary to establish causation, “the medical testimony must be sufficiently definite to establish that the act complained of ‘probably’ or ‘more likely that not’ caused the subsequent disability.” 73 Wash.2d at 824, 440 P.2d at 830. “[T]he whole of the medical testimony” is considered, but “opinion[s] that the physical disability ‘might have’ or ‘possibly did’ result from the hypothesized cause” are insufficient and are “deemed based on speculation and conjecture.” Id. As discussed at length infra Part Two, Section 111(A), Georgia law does not subject proof of a product defect and causation to the same exacting standard as Washington law subjects proof of causation of disability or injury.
The Court GRANTS IN PART and DENIES IN PART the Motion to Exclude Expert Testimony of Carl Muckenhirn.
B. Barr
Toyota moves to exclude six categories of opinion testimony from Plaintiffs expert Michael Barr. These include his opinions (1) that the FTB can lead to the Camry’s throttle opening from an idle position to an 84-degree angle; (2) that Task X can disable the Camry’s fail-safes and cause SUA; (8) that an unidentified software bug can cause partial task death of Task X and disable the Camry’s fail-safes; (4) that a software bug or bugs caused random access memory (“RAM”) corruption, which caused task death, resulting in SUA, which caused the St. John collision; (5) other opinions that Barr did not apply to the St. John collision regarding hardware memory corruption, the watchdog supervisor, and the monitor central processing unit (“CPU”); and (6) other opinions expressed in his deposition, including those related to pedal misapplication and brake pressure. (Motion at 2-3.)
(1) Opinion Regarding the Full-Throttle Bug
In light of the Court’s ruling striking the Barr Supplemental Report regarding the FTB, Plaintiff states that he will not rely on Barr’s opinion regarding the FTB. Accordingly, the Court excludes it.
(2)-(4) Opinions Regarding Task Death, Disabling of Fail-Safes, and Causation
The next three categories Toyota seeks to exclude must be broken down into three discrete concepts (which do not correspond to the three categories identified by Toyota). Those concepts relate to task death, disabling of the Camry’s fail-safes, and Barr’s opinion on the ultimate issue of software bug(s) as the cause of the collision.
(a) Opinions Regarding Task Death
Barr may testify regarding task death generally, how it may be caused, and its possible effects on software operation. The fact that Barr (or any other expert) is unable to identify with certainty a precise software bug (or other specific cause) that can open the Camry throttle from its idle position does not render Barr’s opinion regarding the role of task death wholly inadmissible. As discussed more fully infra, Part Two, Section 111(A), Georgia law simply does not require identification of a specific defect. Barr’s opinions are based on sufficient facts and data (review and testing of the source code), and the bases therefor are adequately explained. Moreover, in cases in which the malfunction is not preserved by physical evidence or is not otherwise amenable to tracing, there is more tolerance for consideration by the jury of circumstantial evidence. {See Barr Report ¶ 150 (Toyota’s engine control module (“ECM”) software lacks an event-logging facility); accord Jones Report ¶ 22 (“Toyota’s ECM is designed not to record information that would prove or disprove software failure.”).)
However, Barr may not testify as to partial task death. Partial task death was not disclosed in Barr’s Report; thus, this opinion is untimely. Fed.R.Civ.P. 37(c)(1). Barr discusses partial task death briefly in his deposition; however, although this testimony may be related to a point made in his Report, this concept cannot fairly be said to be encompassed in the cited portion of the Report. (Compare Barr Report at ¶ 106 & n. 73, and Opp’n at 16, with Barr Deposition at 82-83.)
(b) Opinions Regarding Toyota’s Fail-Safes
Barr may testify as to how Toyota’s fail-safe may have failed to engage. Specifically, Barr may testify regarding the fact that in order for the STP brake switch to have transitioned in the manner required to trigger the fail-safe, Mrs. St. John would have had to remove all pressure from the brake pedal for at least 208-212 ms (approximately 2/10 of a second). (See Barr Depo. at 246-47.) This opinion does not ignore Mrs. St. John’s testimony that she took her foot off the brake. There is no suggestion in either the discovery or trial deposition that the participants focused on the exact timing of Mrs. St. John’s manipulation of the brake pedal. Instead of focusing on the split-second timing that is relevant to the present narrow question, the participants were focused on the broader issue of Mrs. St. John’s account of the car accelerating when she removed her foot from the brake pedal and whether immediately thereafter it was possible that she stepped on the accelerator pedal rather than the brake pedal. To a lesser extent, it was focused on whether Mrs. St. John applied steady pressure or was pumping the brakes. Without more detailed inquiry into this issue, which is no longer possible, the record allows for the inference that Mrs. St. John did not remove all pressure from the brake pedal for the 208-212 ms required to transition the STP brake switch.
(c) Causation Opinion
Barr may not testify as to the ultimate issue of causation. With the exclusion of evidence of the full-throttle bug, Plaintiffs experts have been unable to reliably identity with specificity the defect or defects that actually caused the collision. Although they have reliably identified many factors that could have caused the collision, or that could have combined to cause the collision, absent more specificity as to the defects present in the Camry, the connection between the existence of the defects and the cause of the collision is too tenuous to be admissible. The Court draws the same line with a number of Plaintiffs other experts. Testimony regarding factors relevant to failure, standing alone, does not provide a sufficient foundation to close the evidentiary gap between mere possibility and a reasonable certainty of cause.
(5) Other Opinions Expressed in Report
Barr may testify regarding hardware memory corruption, the watchdog supervisor, and the monitor central processing unit (“CPU”). These are all relevant bases regarding how task death might occur.
(6) Opinion Regarding Pedal Misapplication and Brake Pressure
(a) Opinion Regarding Pedal Misapplication
Barr’s opinions regarding the possible causes of the collision necessarily assume that Mrs. St. John was not mistakenly applying the accelerator pedal rather than the brake pedal. This assumption will be manifest in his testimony at trial, but ultimately, this is a question of fact for the jury to decide that is not amenable to expert opinion. For that reason, although Barr may not testify as to this fact (as he lacks personal knowledge thereof), he may acknowledge that this fact is a fundamental assumption of his testimony.
(b) Opinion Regarding Brake Pressure
Barr’s opinion regarding the effect of an open throttle and the effect of a driver’s actions in pumping the brakes on the effectiveness of vacuum assist braking is based on Loudon’s expert testimony. {See Opp’n at 27-28; Loudon Report a 45 (opining that where the throttle is stuck in the open position, “the engine vacuum is very low and the available brake boost is reduced ... [and] Plaintiffs testing [revealed] that with only two pumps of the brakes most of the brake boost is completely l