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May 2, 2001


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 history.

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 inches. Id.

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 evidentiary reliability.
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.
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) (footnote omitted).

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 scientific evidence:

(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 ...

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