United States District Court, Eastern District of Pennsylvania
July 23, 2001
THOMAS J. BOWERSFIELD, JR., PLAINTIFF,
SUZUKI MOTOR CORPORATION AND AMERICAN SUZUKI MOTOR CORPORATION, DEFENDANTS, V. CHRISTIAN FRENCH, THIRD PARTY DEFENDANT.
The opinion of the court was delivered by: Dubois, J.
This case arises out of an automobile accident which occurred in the
early morning hours of March 10, 1996 at the intersection of 7th and
Spruce Streets in Philadelphia, Pennsylvania. At that time, plaintiff,
Thomas J. Bowersfield, Jr., and two companions were traveling west on
Spruce Street in a 1992 Suzuki Samurai (the "Samurai"). Another vehicle
traveling north on 7th Street collided with the Samurai and sped away.
The Samurai was designed and manufactured by defendant Suzuki Motor
Corporation ("SMC"), a Japanese auto manufacturer. In the United States,
it was distributed by defendant American Suzuki Motor Corporation
("ASMC"), a California corporation.
By Order and Memorandum dated August 28, 2000, the Court denied the
defendants' joint motion for summary judgment. See Bowersfield v. Suzuki
Motor Corp., 111 F. Supp.2d 612 (E.D.Pa. 2000). The facts and legal
theories advanced by the parties are set forth in detail in that
Memorandum, and will not be repeated in this Memorandum.
On September 21, 2000, defendants SMC and ASMC filed a Motion in Limine
to Preclude the Testimony of Plaintiff's Expert, Alan Cantor. By Order
dated April 5, 2001, the Court ordered a hearing under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993) to address the issues raised in that motion. See Oddi v. Ford
Motor Co., 234 F.3d 136, 155 (3d Cir. 2000) (explaining that a Daubert
hearing is necessary where a court can "not
determine what methodology
the expert used, and the reliability of the expert's conclusion could
therefore not be established"); see generally Padillas v. Stork-Gamco,
Inc., 186 F.3d 412, 417 (3d Cir. 1999) (stressing the importance of in
limine hearings under Rule 104(a) in making the reliability determination
required under Rule 702) (citing United States v. Downing, 753 F.2d 1224,
1241 (3d Cir. 1985)). The hearing was held on July 11 and 12, 2001.
At the Daubert hearing, defendants frequently objected that the
testimony of Mr. Cantor went beyond the scope of his expert report. The
Court will address both those objections and the Daubert issues in this
A. Expert Testimony Under Daubert
Federal Rule of Evidence 702, as amended December 1, 2000, provides as
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable
principles and methods, and (3) the witness has
applied the principles and methods reliably to the
facts of the case.
Under Rule 702, when "[f]aced with a proffer of expert scientific
testimony . . . the trial judge must determine at the outset, pursuant to
Rule 104(a), whether the expert is proposing to testify to (1) scientific
knowledge that (2) will assist the trier of fact to understand or
determine a fact in issue." Daubert, 509 U.S. at 592, 113 S.Ct. at 2796
(footnotes omitted). It is well settled that the gatekeeping role
established in Daubert under Rule 702 is not limited to scientific
testimony — the Daubert approach applies to all cases where the
"testimony reflects scientific, technical, or other specialized
knowledge." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119
S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999). The Daubert factors may apply
to the testimony of engineers and other experts who are not scientists.
Id. This approach helps to ensure the reliability of expert testimony,
which "can be both powerful and quite misleading because of the
difficulty in evaluating it." Daubert, 509 U.S. at 595, 113 S.Ct. at 2798
(quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence is
Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991)).
Under Daubert, the Court must engage in a two-step inquiry. "First of
all, the proffered `expert' must be qualified to express an expert
opinion. . . . Secondly, the proffered expert opinion must be reliable."
In re TMI Litig., 193 F.3d 613, 663 (3d Cir. 1999). With respect to this
inquiry, a number of criteria to guide the courts in making reliability
determinations have been identified, including:
(1) whether a method consists of a testable
hypothesis; (2) whether the method has been subject to
peer review; (3) the known or potential rate of
error; (4) the existence and maintenance of standards
controlling the technique's operation; (5) whether the
method is generally accepted; (6) the relationship of
the technique to methods which have been established
to he 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
Elcock v. Kmart Corp., 233 F.3d 734, 745-46 (3d Cir. 2000) (quoting In re
Yard PCB Litig., 35 F.3d 717
, 742 n. 8 (3d Cir. 1994)
("Paoli")). This list is not exhaustive — the inquiry under
Daubert should remain a flexible one. See, e.g., Elcock, 233 F.3d at 746
(writing that "Kumho Tire makes clear that this list is non-exclusive and
that each factor need not be applied in every case"); Schieber v. City of
Philadelphia, 2000 WL 1843246, at *2 (E.D.Pa. Dec. 13, 2000) ("These
factors are non-exclusive and no one of the factors weighs more heavily
than another; the approach to determining the admissibility of expert
testimony is a flexible one.") (citing Daubert, 509 U.S. at 594). As a
general rule, the party offering the expert testimony has the burden of
establishing its admissibility by a preponderance of the evidence. See
Padillas v. Stork-Gamco, Inc., 186 F.3d 412
, 418 (3d Cir. 1999).
B. Testimony of Mr. Cantor
Plaintiff plans to use Alan Cantor's testimony to establish that the
1992 Suzuki Samurai involved in this case was defectively designed, and
that the defects caused plaintiff's injuries. Specifically, plaintiff
argues that the vehicle should have been marketed with a rear seat with
three-point seatbelts, or, in the alternative, with a barrier separating
the rear cargo area from the front two seats and an adequate warning of
the danger of riding in that area.
In the Motion in Limine, defendants challenge Mr. Cantor's expert
report as being conclusory and lacking the requisite methodology.
At the hearing, defendants interposed numerous objections to Mr.
Cantor's testimony on the ground that it was beyond the scope of
Mr. Cantor, who holds a B.S. in aerospace engineering from Pennsylvania
State University, has spent his career in the fields of occupant crash
protection, emergency escape, crash safety, crash survival, and
life-support engineering for both ground and air vehicles. Ex. P-52-A.
Mr. Cantor was employed as a civilian for the United States Navy from
1973 through 1987 where he designed, developed, and tested crashworthy
seats, restraints and similar systems. Hr'g Tr., July 11, 2001 ("Tr. 1")
at 44. From 1985 to 1987, while working for the Navy, he was "the
technical director of all crashworthy items, including helicopters,
ejection seats and other crash components." Id. at 43. After the
explosion of the Space Shuttle Challenger, he headed a team that designed
an emergency egress system, still in use. Id. at 45. In 1987, he left the
Navy and started his company, ARCCA, Inc., where he does similar work on
vehicle safety and restraint systems. His company has performed
approximately 3,000 crash investigations. Id. at 52.
Mr. Cantor designed a seat for the United States Army, the common
crashworthy occupant protection system ("CCOPS"), for which he is a
patent holder. That seat was designed to be placed into any light truck or
multipurpose vehicle where it would provide occupant protection
"irregardless of other things within the vehicle." Tr. 1 at 42, 50-52;
Ex. P-52-R. Among the articles, manuals and treatises Mr. Cantor has
written, he was one of the principal authors of a treatise, Mil. S.
18471G, used by the Navy to create air crew escape systems — common
ejection seats that can be used "for any application just by making quick
modifications." Tr. 1 at 35-36; Ex. P-52-I. Mil S. 18471G "dealt with how
to design, what are the stages of the design, what are the requirements
for human tolerance, how do you evaluate the human data, how you
structurally make the seat work, [and] how to apply the forces." Tr. 1 at
36. He also wrote a treatise applying that technology to light
other ground vehicles. Tr. 1 at 38-39.
In his work, Mr. Cantor has extensively studied and written on the
kinematics of vehicle occupants — the way the occupants move when
subjected to certain physical forces. Tr. 1 at 40-42; Exs. P-52-Q, R.
These studies included other accidents which involved Suzuki Samurais.
Tr. 1 at 56-60. Mr. Cantor is familiar with the requisite vehicle safety
standards, including those relating to seatbelts, barriers, and
placement, but not content, of warning labels.
In Mr. Cantor's expert report, dated July 26, 1999, he listed ten
conclusions. He concluded, inter alia, that the 1992 Suzuki Samurai was
hazardous for passengers in the rear of the vehicle; had Suzuki provided
rear seats with three-point seatbelts, "Mr. Bowersfield would have been
afforded the opportunity to restrain himself and thus given protection
from the grievous injuries he sustained;" the warning in the rear area of
the Samurai is inadequate; and the injuries sustained by Mr. Bowersfield
"could have been avoided had Suzuki provided the Samurai with the
necessary elements of safety for its foreseeable use when it left
Suzuki's control." Mr. Cantor also opined on the need for placement of a
barrier behind the two front seats of the Samurai as an alternative to
installing seats with three-point seatbelts in the rear area, and
placement of an adequate warning label.
In his testimony before the Court, Mr. Cantor elaborated on the
conclusions and the substance of his report. Most relevantly, he stated
that there is a hierarchy of engineering principles relating to design
— (1) design out potential hazards; (2) if that is not possible,
guard against those hazards as best as possible; and (3) warn potential
users of any hazards that could not be designed out. Tr. 1 at 49, 80-81,
105-06. Mr. Cantor identified the hazard in the 1992 Suzuki Samurai as
use of the rear area of the vehicle for occupant seating. He said the
rear area was defectively designed because Suzuki provided rear seats for
all previous years of manufacture, and as shown by Suzuki documents and
what he characterized as an inadequate warning in the rear of the
Samurai, it was readily foreseeable that someone would ride in that
Mr. Cantor explained that the best remedy for the hazards in the 1992
Samurai was the installation of seats with three-point seatbelts in the
rear area of the vehicle. At the Daubert hearing, he produced drawings
and photographs of various ways to do so. For instance, he explained how
the roll cage could be extended and modified to provide an anchor for the
seatbelts, and provided photographs, technical drawings and calculations
of the proposed modifications. Tr. 1 at 100-01, 110-11; Hr'g Tr., July
12, 2001 ("Tr. 2") at 54-60; Exs. P-52-V, W, X, Y, Z, AA, BB; Exs.
P-63-D, E, F, G. He also testified that other vehicles manufactured at
the same time, including other Suzukis, provided rear seats with
three-point seatbelts secured to roll cages or the vehicle frame.*fn1
Tr. 1 at 112-13; Exs. P-52-J, T, U, KK. He showed that the CCOPS seat
could fit into the rear of the
vehicle with some added floor
reinforcement, but without modifying the floor design. Tr. 2 at 61-63.
Additionally, the methodology of placing seats and seatbelts is well
defined in treatises, peer-reviewed literature, and Federal Government
standards. Tr. 1 at 89-90.
It was Mr. Cantor's testimony that if Suzuki could not design around
the hazard by installing a rear seat with three-point seatbelts, the next
best thing would be to guard against the hazard by installing a barrier
and placing an adequate warning in the rear area. Tr. 1 at 119. Such a
barrier would protect the front occupants from any danger caused by cargo
in the rear, and make it clear to people who might think about riding in
the rear cargo area that the 1992 Samurai was not designed to have people
ride there. Tr. 1 at 135-36. In amplifying this testimony, he said that
he designed a barrier for use in the vehicle which was in accordance with
peer-reviewed literature, and provided photographs, technical drawings and
calculations of the proposed barrier. Tr. 1 at 123. Exs. P-52-H, CC, DD,
EE, FF, GG, HH, II; Exs. P-63-J, K.
Additionally, Mr. Cantor testified that, if the vehicle did not have
rear seats with three-point seatbelts, Suzuki should have placed a better
warning label in the rear of the Samurai. He explained that there is
peer-reviewed literature on the proper size and placement of a warning
label. Tr. 1 at 144-45; Exs. P-52-L, M. Mr. Cantor also testified that he
does not have expertise on the wording of such labels. Tr. 1 at 72.
While the conclusions presented by Mr. Cantor at the Daubert hearing
were consistent with his expert report, much of the methodology and bases
for the conclusions to which he testified were not contained in his
expert report. For example, his report did not contain any of the
photographs, technical drawings or calculations of the proposed vehicle
modifications for seats with three-point seatbelts, the barrier or the
proper placement of a warning label. Consequently, the first question
presented by defendants' motion is the extent to which the Court, in
addressing the Daubert issues, should consider Mr. Cantor's hearing
testimony that is beyond the scope of his report.
"Testimony of an expert on matters within the expert's expertise but
outside of the expert's report is not only permissible at trial, but the
exclusion of such testimony may be reversible error . . . . An expert may
testify beyond the scope of his report absent surprise or bad faith."
Fritz v. Consolidated Rail Corp., 1992 WL 96285, *3 (E.D.Pa. Apr. 23,
1992) (Hutton, J.) (Citing DeMarines v. KLM Royal Dutch Airlines,
580 F.2d 1193 (3d Cir. 1978). Courts within this district have also noted
that there is no local custom, practice or rule which would limit an
expert's testimony to the strict confines of his report. See id. at *3
(citing Kelly v. GAF Corp., 115 F.R.D. 257 (E.D.Pa. 1987) (Ditter, J.))
This Court will use the test the Third Circuit has articulated to
determine when a district court should exclude testimony for failure to
comply with pre-trial notice requirements:
the prejudice or surprise in fact of the party
against whom the excluded witnesses would have
the ability of that party to cure the prejudice;
the extent to which waiver of the rule against
calling unlisted witnesses would disrupt the
orderly and efficient trial of the case or of other
cases in the court;
bad faith or willfulness in failing to comply with the
DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1201-02 (3d Cir.
1978) (quoting Meyers v. Pennypack Woods Home Ownership Ass'n,
559 F.2d 894, 904 (3d Cir. 1977)). Further, the Court notes that
"exclusion of evidence is a drastic sanction which must pass the strict
Meyers test to be upheld." Id. (citing Coleco Indus., Inc. v. Berman,
567 F.2d 569, 576 n. 14 (3d Cir. 1977)).
The Court concludes that, applying the aforesaid factors, Mr. Cantor's
testimony should not be limited to what is set forth in his report. This
determination is based on the fact that the conclusions reached by Mr.
Cantor at the Daubert hearing were consistent with the report, although
the testimony substantially expanded on the details of his methodology
and the bases for his opinions, and any prejudice to defendants can be
What defendants should have done upon receipt of Mr. Cantor's
conclusory report was to take his deposition, but they did not do so.
Nevertheless, any prejudice to the defendants caused by permitting Mr.
Cantor to testify at trial in accordance with his testimony at the
Daubert hearing may be cured by the granting of leave to the defendants
to respond to Mr. Cantor's Daubert testimony with supplemental expert
reports. Further, as there have been no depositions of expert witnesses,
both parties will be allowed to depose opposing experts.*fn2 In the
depositions, the experts will not be permitted to add theories not
contained within their reports. By way of example, if there were no
mention of a barrier in a report, the expert would not be allowed to
testify that a barrier was required. However, if the opinion that a
barrier was necessary was included in a report, but the expert did not
state how he arrived at that conclusion, the expert would be permitted to
state the bases for his conclusion.
Further, at the Daubert hearing, the Court ruled that Mr. Cantor would
not be permitted to testify to the data gathered from other
investigations conducted after the date his report was prepared, July
26, 1999. Specifically, the Court excluded tests run in November 2000 on
a modified seat used as an alternate design in Moore v. Suzuki. Because
any prejudice to the defendants can be alleviated by the procedure
outlined above, this order will be vacated.
The Court will now address Mr. Cantor's report and hearing testimony
and determine whether, under Daubert, he is qualified to express his
stated opinions. Mr. Cantor testified at length to the principles and
methodology he applied in reaching the conclusions outlined in his
report. He relied upon well accepted peer-reviewed literature and
treatises, some of which he authored. He is clearly qualified to offer
opinions as to the alleged design defects of the 1992 Suzuki Samurai, its
crashworthiness, the sufficiency of the warning label, and causation. He
is also qualified to testify about the placement of seats with
three-point seatbelts or a barrier in the rear of the 1992 Suzuki
Samurai. Likewise, he may testify to the proper placement and size of a
warning label. Since he admitted he was not familiar with the contents of
warning labels, he may not testify on that subject.
For the foregoing reasons, the Court will deny defendants' Motion in
Limine. The Court finds Mr. Cantor to be qualified to offer an expert
opinion on the subjects stated above. To avoid any prejudice, the
will be allowed the very limited reopening of expert discovery as set
forth above. An appropriate order follows.
AND NOW, this 23rd day of July, 2001, upon consideration of the Motion in
Limine of Defendants, Suzuki Motor Corporation and American Suzuki Motor
Corporation, to Preclude the Testimony of Plaintiff's Expert, Alan Cantor
(Document No. 60, filed September 21, 2000) and Plaintiff's Memorandum of
Law in Opposition to Defendants' Motion to Preclude the Testimony of Alan
Cantor at the Time of Trial (Document No. 94, filed October 26, 2000),
the Court having conducted a Daubert hearing on July 11 and 12, 2001 with
respect to the issues raised in the motion, for the reasons stated in the
attached Memorandum, IT IS ORDERED that the Motion in Limine of
Defendants, Suzuki Motor Corporation and American Suzuki Motor
Corporation, to Preclude the Testimony of Plaintiff's Expert, Alan Cantor
(Document No. 60, filed September 21, 2000) is GRANTED IN PART and DENIED
IN PART. Alan Cantor will be PERMITTED to testify regarding his opinions
Defects in the 1992 Suzuki Samurai;
Placement of the warning label in the 1992 Suzuki
Samurai, but not the content of the warning label;
Crashworthiness of the 1992 Suzuki Samurai; and
Causation of the injuries suffered by Thomas J.
In all other respects the Motion in Limine is DENIED.
IT IS FURTHER ORDERED that the Court's oral order of July 11, 2001
relating to use of data from tests run in November 2000 in Moore
v. Suzuki is VACATED.
IT IS FURTHER ORDERED as follows:
Defendants are permitted to supplement their expert
reports to respond to the testimony and opinions
offered by Alan Cantor in his report and in the
The parties are given leave to depose experts other than
Alan Cantor who have not already been deposed;
All additional expert discovery must be completed by
September 17, 2001; and
A final pretrial conference is scheduled for Monday,
October 1, 2001 at 3:00 p.m.
BY THE COURT: