United States District Court, Eastern District of Pennsylvania
May 2, 2001
KIMBERLY A. RAPP,
GURDEV SINGH, G.S. FREIGHT LINES, INC., PABLO MOLINA, GILBERT EXPRESS, GREAT DANE TRAILERS, INC. AND GREAT DANE LIMITED PARTNERSHIP.
The opinion of the court was delivered by: Dalzell, District Judge.
On August 21, 1998, Edwin R. Rapp, Jr. was driving his 1997
Mercury Sable station wagon eastbound on Interstate 78 in Berks
County, Pennsylvania. Also in the car were his wife, Kimberly,
who was seated in the front passenger seat, his five-year old
son, Bradford, who was strapped into a car seat behind Edwin, and
his four-year old daughter, Grace, who was on the floor of the
rear seat behind Kimberly. Because of an earlier accident,
traffic was stopped in the eastbound lanes at about 10:30 a.m.,
and the Rapp car came to a stop in the right hand lane behind a
tractor-trailer owned by defendant Gilbert Express and operated
by defendant Pablo Molina (the "Molina trailer"). The Molina
trailer had been manufactured and sold by defendant Great Dane.
While the Rapp car was stopped behind the Molina trailer,
another truck, a GMC owned by defendant G.S. Freight Lines and
operated by defendant Gurdev Singh (the "Singh truck"), collided
with the rear of the Rapp car, propelling it forward into the
rear of the Molina trailer. Edwin and Bradford died in the crash,
while Kimberly and Grace, though injured, survived.
Kimberly Rapp, individually, as executrix of her husband's
estate, administratrix of her son's estate, and on behalf of
Grace, filed this action against Great Dane.*fn1 She alleges
that the rear bumper guard on the Molina trailer was defective
for failing to have a vertical attachment between the edges of
the horizontal member and the rear corners of the trailer.
Before us is Great Dane's motion for summary judgment, to which
Kimberly Rapp has responded, and Great Dane has replied. We held
oral argument on April 24, 2001. In sum, Great Dane argues that
Mrs. Rapp has failed to make a prima facie case because her
proposed expert testimony fails to satisfy the Daubert*fn2
standards, as applied in Kumho Tire v. Carmichael,
526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) and Oddi v. Ford
Motor Co., 234 F.3d 136 (3d Cir. 2000). As she conceded at oral
argument, Great Dane's motion succeeds or fails based upon the
admissibility of her experts' testimony.
For the reasons set forth below, plaintiff's experts do not
pass Daubert muster, and, accordingly, we will grant Great
Dane's motion for summary judgment.
I. Overview of Federal Regulation of Rear Guards
There has been longstanding federal Government interest in the
problem at the heart of Great Dane's motion. It will be helpful
to our understanding and analysis briefly to summarize this
Accidents like the Rapps' are all too common. The National
Highway Traffic Safety Administration*fn3 ("NHTSA") estimates
that 11,551 rear-end crashes with trucks occur annually,
resulting in about 423 passenger vehicle occupant deaths and over
5,000 non-fatal injuries. See 61 Fed. Reg. 2004 (Jan. 24,
1996). Trailers, although accounting for only 28% of registered
heavy vehicles, account for 73% of these occupant fatalities and
82% of the injuries. Id. at 2006.
In 1953, the Interstate Commerce Commission ("ICC") — whose
duties pertinent to this matter now reside in the Federal Highway
Administration ("FHWA") — promulgated the first regulation
addressing the problem of "underride", which occurs when a
passenger vehicle collides with the rear end of a trailer and
slides under the trailer. This first standard required the use of
a rear impact guard on trailers. Id.*fn4 The Federal Motor
Carrier Safety Regulation 393.86 ("FMCSR 393.86") set the
requirements for the rear guard (or, as it is sometimes called,
the "ICC bar"), including specifications for maximum ground
clearance and width.*fn5 NHTSA now promulgates safety standards
for new motor vehicles, the Federal Motor Vehicle Safety
Standards, which apply to vehicle manufacturers, including Great
Dane. See 49 C.F.R. § 571.1; Def.'s Mot. at 6.
Since 1967, both the NHTSA and the FHWA have studied the
underride issue to determine the performance criteria for an
optimum rear impact guard standard. The key engineering challenge
in designing such a guard involves a trade-off between the
strength of a rear guard and its capacity to absorb energy. A
rear guard that is too strong may prevent underride (and thus
passenger compartment intrusion), but the effects of a sudden
deceleration on the passengers of an impacting car can be severe
(including death or serious injury).*fn6 See 61 Fed. Reg. 2004
(Jan. 24, 1996). On the other side, an energy absorbing rear
guard will slow an impacting vehicle, but may allow excessive
underride and passenger compartment intrusion. See id.
After a series of proposals and tests, on January 24, 1996
NHTSA authored a final rule establishing two Federal Motor
Vehicle Safety Standards, FMVSS Nos. 223 and 224, effective as of
January 26, 1998. FMVSS No. 223 establishes the equipment
standard, setting forth the requirements
that a rear impact guard must meet and specifying the procedures
that NHTSA will use when testing a guard. FMVSS No. 224
establishes the vehicle standard, requiring a new trailer to be
equipped with a guard that meets the equipment standard.
The final rule requires the guard to extend to within four
inches of the sides of the trailer, have a ground clearance of no
more than twenty-two inches, and be placed as close to the rear
of the trailer as possible. 61 Fed. Reg. 2007. The static load
test*fn7 requirements (to determine strength and energy
absorption) provide that each vertical member must withstand a
static load test of at least 22,480 pounds (and between the
vertical members the guard must withstand at least 11,240
pounds), and the testing must displace the guard by at least five
II. Great Dane's Model Q Trailer
Although the Model Q trailer involved in the Rapp accident was
manufactured before the effective date of the current regulation,
the rear guard in fact exceeded the current requirements for
height, width, and location, as well as strength and energy
absorption. See Def.'s Mot. at 9. Thus, the Q Model guard's
ground clearance was no greater than twenty-two inches, its width
extended to within four inches of the trailer sides, and it was
placed at the extreme rear end of the trailer.
Great Dane also manufactures trailers whose rear guards contain
additional vertical attachments that connect the rear corners of
the trailer to either end of the horizontal bar. According to
Great Dane, however, the strength and energy absorption
capabilities of these vertical attachments are not known, and
they are typically added at a customer's request to support an
intermediate step between the horizontal bar and trailer cargo
area. See Def.'s Mot. at 10.
Plaintiff contends that had the Q Model trailer been equipped
with these vertical attachments, the Rapp car would have been
deflected from the corner of the Molina trailer, thereby
eliminating the passenger compartment intrusion of the right rear
corner of the trailer. Edwin's and Bradford's lives would thus
have been saved.*fn8
III. Legal Standards*fn9
A. Enhanced Injury/Crashworthiness Claim
In cases where, as here, the plaintiff claims that the
manufacturer of an
allegedly defective product did not cause the accident, but
rather increased the severity of the injuries sustained in the
accident, courts have applied an "enhanced injury" or
"crashworthiness" doctrine. See, e.g., Oddi v. Ford Motor Co.,
234 F.3d 136 (3d Cir. 2000). Enhanced injury claims are a subset
of products liability and impose liability on the manufacturer
"not for causing the accident, but rather for failing to minimize
the injuries or even increasing the severity of the injuries
sustained in an accident brought about by a cause other than the
alleged defect." Habecker v. Clark Equip. Co., 36 F.3d 278, 283
(3d Cir. 1994) ("Habecker III").
Although the typical crashworthiness case involves an injured
party suing the manufacturer of the vehicle in which she was a
passenger, Mrs. Rapp agrees that "some hybrid of the
crashworthiness doctrine is applicable" in this case. Pl.'s Resp.
at 7 n. 3.*fn10
"To establish a cause of action on a theory of crashworthiness,
a plaintiff must show: (1) the design of the product was
defective; (2) an alternative, safer design that was practical
existed; (3) what injuries, if any, the plaintiff would have
received had the alternative design been used; and (4) the
defective design caused or exacerbated specific injuries."
Oddi, 234 F.3d at 143 (footnotes omitted).*fn11
Great Dane argues that plaintiff cannot, without the testimony
of her experts, meet the elements of defect, alternative design
or enhanced injury.
B. Standards for Admissibility of Expert Testimony
Fed.R.Evid. 702 provides:
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.
With respect to the admissibility of expert evidence, our Court
of Appeals has recently stated:
The Supreme Court amplified the operation and scope
of Rule 702 in Daubert v. Merrill Dow
Pharmaceuticals, Inc. . There, the Court held that
scientific knowledge requires
an inference or assertion . . . derived by the
scientific method. Proposed testimony must be
supported by appropriate validation — i.e., "good
grounds," based on what is known. In short, the
requirement that an expert's testimony pertain to
"scientific knowledge" establishes a standard of
Id. at 590, 113 S.Ct. 2786. Rule 702 thus "clearly
contemplates some degree of regulation of the
subjects about which an expert may testify." Id. at
589, 113 S.Ct. 2786. Consequently, the Court
established a "gatekeeping role for the [trial]
judge." Id. at 597, 113 S.Ct. 2786.
[T]he trial judge must determine at the outset,
pursuant to Rule 104(a), whether the expert is
proposing to testify to (1) scientific knowledge
(2) will assist the trier of fact to understand or
determine a fact in issue. This entails a
preliminary assessment of whether the reasoning or
methodology underlying the testimony is
scientifically valid and of whether that reasoning
or methodology properly can be applied to the facts
Id. at 592-93, 113 S.Ct. 2786. The proponent must
satisfy this burden "by a preponderance of proof."
Id. at 593 n. 10, 113 S.Ct. 2786.
Oddi v. Ford Motor Co., 234 F.3d 136, 144 (3d Cir. 2000)
Our Court of Appeals, considering Daubert in conjunction with
an earlier Third Circuit opinion, has concluded that eight
factors are relevant in assessing the admissibility of expert
(1) whether a method consists of a testable
hypothesis; (2) whether the method has been subjected
to peer review; (3) the known or potential rate of
error; (4) the existence and maintenance of standards
controlling the technique's operation; (5) whether
the 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 testifying based
on the methodology; and (8) the non-judicial uses to
which the method has been put.
Oddi, 234 F.3d at 145 (quoting In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717
, 742 n. 8 (3d Cir. 1994)).
Moreover, the expert's testimony must "fit" — that is, it must
assist the trier of fact — and "[a]dmissibility thus depends in
part upon `the proffered connection between the scientific
research or test result to be presented and the particular
disputed factual issues in the case.'" Oddi, 234 F.3d at 145
(quoting Paoli, 35 F.3d at 743).
On the other hand, a proponent of expert evidence need not
prove to the court that the expert assessments are correct, but
rather must demonstrate by a preponderance of the evidence that
they are reliable, which is to say that the "particular opinion
is based on valid reasoning and reliable methodology," Oddi,
234 F.3d at 146 (quoting Kannankeril v. Terminix Int'l, Inc.,
128 F.3d 802, 806 (3d Cir. 1997)).
While the decisions discussed above were in the specific
context of scientific, as opposed to technical, expert evidence,
in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167,
143 L.Ed.2d 238 (1999), the Supreme Court held that Daubert's
general principles apply to all expert testimony introduced
pursuant to Rule 702. Kumho, 526 U.S. at 147-48, 119 S.Ct.
1167. Kumho held that a court may use the Daubert factors in
evaluating nonscientific expert testimony, but also noted that
these factors do not form any sort of definitive checklist,
Kumho, 526 U.S. at 150, 119 S.Ct. 1167.*fn12
With respect to the gap between an expert's scientific
information and his conclusions, our Daubert analysis is
largely restricted to the expert's methodology, and not to the
conclusions, Oddi, 234 F.3d at 146.
Nonetheless, "conclusions and methodology are not
entirely distinct from one another." General Elec.
Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139
L.Ed.2d 508 (1997). A court "must examine the
expert's conclusions in order
to determine whether they could reliably flow from
the facts known to the expert and the methodology
used." Heller v. Shaw Indus. Inc., 167 F.3d 146,
153 (3d Cir. 1999). "A court may conclude that there
is simply too great a gap between the data and the
opinion proffered." Joiner at 146, 118 S.Ct. 512;
see also In re TMI Litigation, 193 F.3d 613, 682-83
(3d Cir. 1999), opinion amended by 199 F.3d 158 (3d
Cir.), cert. denied sub nom. General Public
Utilities Corp. v. Abrams, 530 U.S. 1225, 120 S.Ct.
2238, 147 L.Ed.2d 266 (2000) and Dolan v. General
Public Utilities Corp., 530 U.S. 1225, 120 S.Ct.
2238, 147 L.Ed.2d 266, (2000).
With the Oddi factors in mind, we now turn to the expert
IV. The Expert Testimony*fn13
A. Steven M. Schorr
Mr. Schorr, a forensic and accident reconstruction engineer,
opined in his December 18, 2000 preliminary report:
1. The collision between the front of the GMC [Singh]
truck and the rear of the stopped Mercury occurred
with the Principle Direction of Force (PDOF) acting
on the Mercury primarily from rear to front, with a
slight component of force from right to left.
2. The change in velocity of the Mercury, as a result
of the impact by the GMC truck, was approximately 25
miles per hour.
3. The Mercury was pushed forward and to the right as
a result of the contact by the GMC truck. The
movement resulted in contact between the left side of
the Mercury and the right rear of the stopped
tractor-trailer. This collision occurred with the
Mercury moving at a speed of less than 25 miles per
4. The physical evidence indicates that the impact
and subsequent intrusion by the right rear corner of
the Great Dane trailer into the left side of Mercury
resulted in fatal injuries to the left side
occupants, while the right side occupants survived
5. The presence of an underride bar on the rear of
the Great Dane trailer that would have connected the
end of the bar to the corners of the trailer would
have changed the distribution of the impact force and
reduced the intrusion into the left side occupant
compartment of the Mercury. This would have prevented
the intrusion-related injuries described.
6. The operator of the GMC truck had more than enough
time and distance to perceive, react and avoid the
Ex. O, Pl.'s Resp. (Steven Schorr Report dated December 18, 2000
at 9) (hereinafter "Schorr Report").
Before reaching his conclusions, Schorr inspected the Rapp
vehicle twice to take photographs and make detailed measurements.
He also studied the engineering specifications of the 1997
Mercury Sable. Pl.'s Resp. at 23-25; Ex. E, Pl.'s Resp. (Schorr
Dep. at 31-32, 122-23) (hereinafter "Schorr Dep."). Schorr
obtained crush stiffness coefficients by reviewing test data for
similar model cars under similar impact configurations and had an
outside vendor, Neptune Engineering, compile the test data.
Schorr Dep. at 121-22. With the compiled measurements, stiffness
coefficients and vehicle specifications, Schorr obtained a crush
profile for the Rapp car using a computer program (AutoCAD).
Schorr Dep. at 19-20. Schorr also generated
AutoCAD crush profiles for the Singh truck and Molina trailer.
Schorr Dep. at 17-18; Pl.'s Resp. at 24.
Using all of this information, Schorr calculated change in
velocity, angle of impact, principal direction of force, moment
of inertia, crush depth, and energy dissipation of the vehicles
during the course of the accident. Schorr Dep. at 135-36. And,
based upon these calculations, Schorr created accident
reconstruction diagrams. Pl.'s Resp. at 25 (citing Ex. Z).
During his deposition, Schorr testified with respect to the
rear guard as follows:
A. The fact is putting that guard there you are
preventing the vehicle from underriding. So, again,
intuitively you are trying to prevent underride
accidents, you are putting something there that
resists the underride so necessarily it makes sense.
Q. Would these attachments make the guards stronger
than guards without such vertical attachments?
A. Very likely.
Q. And is it possible to make guards too strong?
A. Well, you have the trade-off, of course, of the
danger of the underride versus the danger of the
increased strength and that becomes a cost benefit.
Q. To the extent you increase strength you also
increase the possibility of deceleration injuries,
A. That would make sense.
Q. You have no data that you can site [sic] to me
today or that you've looked at that tells us whether
the addition of these vertical attachments, in fact,
makes the guards less safe?
A. I don't have any data, no.
Schorr Dep. at 86-87.
When asked how the presence of vertical attachments would have
altered the degree of penetration into the Rapp vehicle, Schorr
Well, you have a situation where the [Mercury] Sable
is sliding forward and rotating when it impacts the
right rear corner. The energy that the Sable has at
that impact is being basically applied in two areas,
where the underride guard is and where the right
corner of the trailer is. You had that longitudinal
guard, that vertical strut there. What you are doing
is you are increasing the linear area using the same
energy. So you are distributing the energy
differently across the side of that vehicle. And by
doing that you are necessarily, especially on the
shallow angle that you have, you are necessarily
providing less energy and, therefore, the less energy
the less crush.
Schorr Dep. at 87-88.
Schorr did not know the degree of deformation the right corner
guard experienced, if any, during the impact with the Rapp
vehicle. Schorr Dep. at 89. Nor could he quantify the deformation
that would have happened had the guard been equipped with
Q. If vertical attachments of the type that you have
described were connected to that guard, would that
guard have deformed during this accident?
A. May have.
Q. To what degree?
A. I don't know.
Q. What assumption have you made with respect to
energy absorption contributed by the guard during
this accident, energy absorption contributed by the
guard to the Rapp vehicle?
A. I don't know how much the guard was deformed so I
didn't really include that.
Q. You do not know how much energy absorption would
be contributed by deformation of a guard with
vertical attachments of the type you described,
A. That's correct.
Schorr. Dep. at 89-90 (objections omitted).
Specifically, as to the difference in crush to the Rapp vehicle
had the trailer been equipped with a vertical attachment, Schorr
stated that, "I can't quantitatively give you a number, that's
what we are working on on that additional analysis that we talked
about. I think you are going to have a significantly less amount
of intrusion as a result of taking this force and distributing it
along the side door at the shallow angle that we believe it
contacted." Schorr Dep. at 90.
Later in his deposition, Schorr testified with respect to the
Q. Why do you say the degree of penetration would be
somewhere between the outside of the door and the
roof rail using that as the plane of reference?
A. Why do I say that?
Q. Yes. If the bumper had vertical attachments of the
type you have described.
A. Because I believe that the distribution of that
energy over a wider or longer cross-sectional area,
linear area, 19 inches, essentially, from the bottom
of the trailer to where the bar is, I believe that
that's going to absorb and distribute enough of that
energy that you are not going to have the same kind
of intrusion. You have actually something now to
absorb that energy, which is the door, as opposed to
the door only having a small point of force absorbing
that energy and the rail and the corner of the
trailer being able to enter the car with ease.
Q. Is that opinion, that the degree of crush would be
somewhere between the exterior plane and the plane
defined by the undeformed roof rail based upon any
Q. Is it based upon any data in the scientific
literature pertaining to underride accidents?
A. No. I have not found — we are in the process of
checking that. I have not found anything that mirrors
what we are talking about today.
Q. Is it based upon any calculations?
A. Again, those are the calculations that we talked
about on those yellow sheets that we are trying to
put together as a result of work that was asked to be
Q. Is it based upon anything else other than your
intuitive belief as an engineer?
Schorr. Dep. at 159-161 (objections omitted).
B. Byron Bloch
Byron Bloch, an auto safety design consultant, was retained to
testify as to the design defect. In his preliminary expert report
dated December 20, 2000, Bloch opined:
A well-designed truck underride prevention guard
could and should have been installed at the rear of
the subject Great Dane trailer. Irrespective of
whatever may have caused the car-into-trailer
collision, the Mercury Sable stationwagon Celica
coupe would have been prevented from penetrating or
underriding beneath and into the rigid structures at
the rear of the trailer. The designed-in frontal
crush zone of the Mercury Sable stationwagon
would have enabled a safer "ride-down" of Edwin Rapp
and Bradford Rapp within the decelerating vehicle.
The safety belt that she was wearing, and the
collapsible steering column would have further helped
to restrain her and allow for her safer deceleration
without forceful impact to her head, and Edwin Rapp
and Bradford Rapp would not have incurred such severe
Byron Bloch Report dated December 20, 2000 at 5 (hereinafter
With respect to Bloch's area of expertise, Bloch testified
In a particular accident I have done not the
computerized, mathematical type of reconstruction,
but a more what I would call an accident assessment
or evaluation, understanding the basic speeds and
angles and offsets that are involved in collisions
and inspecting the accident vehicle or vehicles,
plural, as to points of contact and penetration,
witness marks of head injury, impact zones, things
like that. So the kind of accident reconstruction is
more vehicle performance related rather than
mathematical or computer analysis related. But it is
a type of accident reconstruction.
Ex. K, Pl.'s Resp. (Bloch Dep. at 144) (hereinafter "Bloch
The following exchange occurred during Bloch's deposition, with
respect to energy absorption:
Q. You have no knowledge of the amount of energy
absorbed by the side of the Rapp vehicle in this
accident, do you?
A. No. I didn't care to know the amount of
theoretical calculations to try to approximate the
transfers of energy. The key issue has nothing to do
with the transference of energy, but rather having a
harpoon-like rear corner of a trailer to penetrate
into the occupant survivor space. It would cloud the
issue to try to talk about theoretical calculations
of transferrings of energy.
Bloch Dep. at 64 (objections omitted).
Later still, Bloch testified that "one can make clearly
evaluations of rear guard designs that have blatant defects or
deficiencies in them, such as total failure to protect the rear
corners of the trailer. You don't need a crash test program to
determine that defect." Bloch Dep. at 141.
C. Michael Kleinberger, Ph.D
Plaintiff retained Dr. Kleinberger, an injury biomechanics
consultant, to report on the injury enhancement Edwin and
Bradford suffered. In his January 22, 2001 report, Dr.
Kleinberger opined that:
In summary, it is my opinion that the injuries
sustained by Kimberly and Grace Rapp and the deaths
of Edwin and Bradford Rapp were proximately caused by
the accident on 8/21/98. Furthermore, it is my
opinion that the reported injuries, including the
fatal injuries to the left side occupants, were
caused by the impact with the Great Dane trailer and
not by the initial rear impact from the GMC truck.
The fatal injuries sustained by Edwin and Bradford
Rapp were a direct result of the intrusion of the
lower right rear corner of the trailer into the
occupant space of the Sable and not by intrusion of
the door into their bodies as in a typical side
impact collision. If an improved underride guard
design had been used, the amount of intrusion would
have been reduced and both Edwin and
Bradford Rapp would have survived this collision.
These opinions are based on my experience and
knowledge of automotive occupant safety and are made
within a reasonable degree of biomechanical and
Ex. G, Pl.'s Resp. (Michael Kleinberger Report dated January 22,
2001 at 6).
With respect to his knowledge of an "improved underride guard",
Kleinberger testified that:
A. What I'm referring to there is that if the
intrusion into the occupant space had been reduced,
the likelihood of them receiving these injuries would
have been greatly reduced.
Now, I don't believe I am opining in that paragraph
the relationship between the design of the underride
guard and the amount of intrusion. Those opinions are
based on the other experts in this case.
Q. So that I'm clear then, you have in mind no
particular design of a underride guard when you write
A. Right. I am relying on the other experts in this
case to discuss that matter.
Q. That matter being an alternative design that would
reduce the amount of intrusion?
Ex. P, Pl.'s Resp. (Kleinberger Dep. at 73).
At oral argument, plaintiff claimed there were four primary
distinctions between her case and Oddi.*fn15 First, while the
experts in Oddi failed to examine other bread truck designs,
plaintiff's expert, Schorr, analyzed schematics of the Rapp
vehicle and photographs of alternative rear impact guards.
Second, in Oddi there was no evidence of an alternative design,
whereas here we know that rear guard rails with vertical
attachments exist. Next, unlike Oddi, where there was no
enhanced injury evidence, plaintiff's expert, Kleinberger,
testified that Edwin and Bradford would have survived the crash
had the passenger compartment intrusion been minimized. Lastly,
Mrs. Rapp contends that the experts in Oddi performed no
measurements or calculations, in contrast to her experts who
performed extensive measurements, calculations, and analyses.
Although we agree that Schorr, in particular, undertook a
seemingly rigorous analysis of the accident as it happened, we
are aware of no measurements, calculations, or analyses done with
respect to the hypothetical accident in which the trailer rear
guard is equipped with vertical attachments between the
horizontal member and the rear corners of the trailer. Several
times during oral argument, plaintiff suggested that the evidence
of what would have happened had the Molina trailer been equipped
with vertical attachments was as
simple as "high school physics". Notwithstanding, Mrs. Rapp
readily agreed that the issue of defect with respect to this rear
guard requires expert testimony.
Great Dane argues that the experts' calculations and crash
analyses go to the impact between the Singh truck and the rear of
the Rapp car, rather than between the Rapp car and the Molina
trailer. Therefore, although Schorr performed many calculations,
he failed to undertake any relevant calculations. Moreover,
Great Dane contends that the strength and energy absorption of
any proposed vertical attachment are critical to any analysis,
and the experts' failure to account for this undermines their
As stated above, an expert's proposed testimony must "fit", and
its admissibility "thus depends in part upon `the proffered
connection between the scientific research or test result to be
presented and particular disputed factual issues in the case.'"
Oddi, 234 F.3d at 145 (citing Paoli, 35 F.3d at 743).
Although we ought not evaluate an expert's conclusions, we
must, consistent with Oddi, at least examine the conclusions
"in order to determine whether they could reliably flow from the
facts known to the expert and the methodology used." Heller v.
Shaw Indus. Inc., 167 F.3d 146, 153 (3d Cir. 1999) (cited in
Oddi, 234 F.3d at 146).
Here the dispute involves what effect, if any, vertical
attachments would have had on the accident and its consequences
on the Rapps. Yet the underlying data involve only the mechanics
of the accident as it happened and does not reflect, in even the
barest of terms, what would have happened with the addition of
a vertical attachment. These data thus in no way illuminate the
problem at the heart of Mrs. Rapp's case against Great Dane,
which is the degree of enhancement the allegedly defective rear
guard added to her husband's and son's injuries.*fn16
For example, during Schorr's deposition, he resorted to his
intuition to surmise that vertical attachments would have
prevented underride. See Schorr Dep. at 86-87, supra.
Although he acknowledged that adding vertical attachments would
very likely increase the strength of the rear guard, he did not
factor in this added strength — and its own injury-enhancing
potential — to his analysis. See id.
In essence, Schorr and Bloch ignore decades of federal agency
studies regarding the delicate balance between strength and
energy absorption for rear trailer guards. Although, to be sure,
Great Dane's conformity with these minimum safety requirements
does not bar plaintiff's strict liability claims, see, e.g.,
Pokorny v. Ford Motor Co., 902 F.2d 1116, 1121 (3d Cir. 1990),
we look to the decades of research as evidence that rear trailer
guard design is by no means a matter of simple "high school
For example, an NHTSA study on Heavy Truck Rear Underride
Protection conducted at the Vehicle Research and Testing Center
included a crash test using a very strong ("rigid") guard. See
61 Fed. Reg. 2007. "Although underride in this crash test was
minimal, occupant compartment forces generated during the crash
were significant, with onboard dummy readings indicating a
potential for serious driver chest injuries". Id. By contrast,
a similar crash test using the current minimally compliant guard
allowed more underride than the rigid guard, but generated
"occupant compartment forces low enough that they posed
essentially no potential for life-threatening occupant injuries."
Absent a similarly principled consideration of the competing
strength/energy absorption concerns for a vertical attachment,
plaintiff's expert testimony lacks the fundamental "fit" required
under Daubert and its progeny. As NHTSA's studies demonstrate,
the balance between strength and energy absorption is an elusive
and vexing one. "It should be recognized, therefore, that impact
guards cannot be optimized for all situations." 61 Fed. Reg. 2009.
Therefore, we cannot allow Schorr to testify as to his
conclusion, based solely on "high school physics", that
increasing the linear area between the rear corner of the trailer
and the edge of the horizontal member would improve the overall
safety of the trailer guard to the extent that it would have had
a cognizable benefit for the Rapps (or others similarly
Similarly, Bloch intuitively believes that the exposed corner
of the rear trailer guard acts as a "harpoon", Bloch Dep. at 64,
supra, and that the addition of the vertical attachments would
have safely deflected the Rapp vehicle. Yet he performed no
calculations regarding the proposed deflection or the energy
transference during impact. According to Bloch, one can
intuitively, and without the need for testing, perceive a
"blatant" defect, such as having exposed corners on a rear
trailer guard. However, the fact that both parties agree that we
need an expert to describe this alleged defect suggests that more
than conclusory intuition must be brought to bear on this
Having reviewed plaintiff's photographs of trailers with
vertical attachments, we agree with Mrs. Rapp that these vertical
attachments make the rear guard appear to offer greater
protection than the horizontal member alone provides. However,
our intuition, like Schorr's or Bloch's, is not, on the record
before us, supported by any Daubert-satisfying methodology
addressing the relative safety or desirability of adding the
vertical attachments.*fn17 Such untutored intuition simply will
not carry the day in the post-Daubert/Kumho legal world, at
least as applied to this hard problem that has occupied federal
safety authorities for over forty years.
Although Mrs. Rapp attempts to distinguish this case from
Oddi, we in fact see a striking similarity. Oddi's expert "did
not know how much [force] was required to bend the bumper or
penetrate the floor, or how much force the bumper or floor could
withstand. His hypothesis about adding a `wedge' or bracket to
bumper was likewise without support as he did not determine the
tensile strength or gauge of whatever metal should be
incorporated into his alternative design. Accordingly, there was
no way of knowing if his suggested alternative would better
protect the cab's occupant, or if the suggested modifications
were practical." Oddi, 234 F.3d at 158. Likewise here, neither
of plaintiff's experts even proposed — much less tested — a
vertical attachment design with any specificity, with respect to
its measurements, its materials, its strength, or its energy
Under Oddi, therefore, plaintiff has failed to establish by a
preponderance of the evidence that her expert testimony with
respect to the addition of vertical attachments is based upon
"valid reasoning and reliable methodology." Oddi, 234 F.3d at
146 (internal quotations omitted). Absent such expert testimony,
plaintiff cannot establish that the Q Model rear guard was
defective, or that the proposed rear guard with vertical
attachments constitutes a safer design. Accordingly, we will
grant Great Dane's motion for summary judgment.
AND NOW, this 1st day of May, 2001, upon consideration of
defendant Great Dane's motion for summary judgment (docket entry
#55), plaintiff's response thereto, Great Dane's reply, and
following oral arguments held April 24, 2001, and for the reasons
stated in the accompanying Memorandum, it is hereby ORDERED that:
1. Defendant Great Dane Limited Partnership's motion is
2. The claims against defendant Great Dane Limited Partnership
are DISMISSED WITH PREJUDICE.*fn1