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Buzzerd v. Flagship Carwash of Port St. Lucie

October 29, 2009

THOMAS BUZZERD AND KRISTI COURTNEY, PLAINTIFFS
v.
FLAGSHIP CARWASH OF PORT ST. LUCIE, INC.; U-HAUL CO. OF FLORIDA; AND U-HAUL CO. OF ARIZONA, DEFENDANTS



The opinion of the court was delivered by: Vanaskie, District Judge

MEMORANDUM

This is a personal injury action removed to this Court based upon diversity of citizenship jurisdiction. See 28 U.S.C. § 1332 and 28 U.S.C. § 1441.*fn1 Plaintiffs, Thomas Buzzerd and Kristi Courtney, claim to have suffered permanent cognitive, behavioral and personality problems as a result of carbon monoxide (CO) poisoning while driving a U-Haul truck from Florida to Pennsylvania in November of 2004. Plaintiffs assert that vehicle defects attributable to negligent maintenance allowed levels of carbon monoxide to accumulate in the truck's passenger compartment during their 30-hour trip. Presently before the Court is the remaining Defendants' motions to preclude Plaintiffs' experts from offering opinion testimony to the effect that during their trip Plaintiffs were exposed to harmful levels of carbon monoxide sufficient to cause permanent brain injury. Defendants contend, inter alia, that the experts' opinions are not grounded in reliable scientific methodology. For the reasons that follow, Defendants' motions will be granted.

I. BACKGROUND

Plaintiffs leased a U-Haul truck from Defendant Flagship Carwash of Port St. Lucie, Inc. in November of 2004. While driving the truck from Florida to Pennsylvania on November 28 and 29, 2004, plaintiffs experienced headaches, nausea, disorientation, and confusion. Mr. Buzzerd had hallucinations of deer in the roadway near the end of the trip, which was completed around 9:00 p.m. on November 29th.

The service engine light was illuminated for the entire 30-hour duration of the non-stop trip. Exhaust fumes were visible, and Plaintiffs claim that there was a leak in the vehicle's emissions system. Photographs of the vehicle's exhaust fumes were taken.

Upon arriving at their destination in Pennsylvania on November 29, 2004, Plaintiffs went to sleep. Mr. Buzzerd went to work the next day, and Ms. Courtney stayed home. At approximately 5:30 p.m. on November 30, 2004, after unpacking the truck, Plaintiffs went to the emergency room at the Tyler Memorial Hospital, complaining of nausea, headaches, and flu-like symptoms that they attributed to their exposure to exhaust fumes during their journey. An emergency room physician made a notation of "carbon monoxide exposure" as his diagnostic impression. No objective testing, however, confirmed carbon monoxide poisoning. Carbon monoxide exhale breath tests administered at the Tyler Memorial Hospital revealed carbon monoxide levels of 1 and 2 parts per million ("ppm") for Mr. Buzzerd and Ms. Courtney, respectively, well within normal limits. No carboxyhemoglobin test results appeared in the hospital records, even though this test was ordered.

Evidently, Plaintiffs' acute symptoms abated with the administration of oxygen. Plaintiffs were prescribed Tylenol and told to return to the emergency room if their symptoms recurred.

Plaintiffs noticed cognitive and behavioral changes after their Florida trip. On November 23, 2005, almost one year after the onset of acute symptoms, Plaintiffs were examined by Dr. William Jeffreys upon referral from Dr. Lisa Robertson. Dr. Jeffreys, a neurologist, found that reports of magnetic resonance imaging ("MRI"), CT scans, and EEG tests for both Plaintiffs were within normal limits.*fn2

Dr. Jeffreys referred both Plaintiffs for a neuropsychological evaluation by Michael S. Driscoll, Ph.D. Plaintiffs were seen by Dr. Driscoll in February of 2006 and November of 2007. Dr. Driscoll found that Mr. Buzzerd had a cognitive disorder and adjustment reaction involving depressed mood, which Dr. Driscoll attributed to carbon monoxide exposure during the trip from Florida. As to Ms. Courtney, although finding that neuropsychological testing was essentially normal, Dr. Driscoll concluded that she suffered cognitive impairment due to carbon monoxide exposure based upon Ms. Courtney's report of the sequence of symptoms.

Dr. Jeffreys saw Plaintiffs for the second and last time in November of 2007, about two (2) years after he first examined them.*fn3 Based upon Ms. Courtney's reports, Dr. Jeffreys found that she had suffered personality and behavior problems associated with her exposure to carbon monoxide. As to Mr. Buzzerd, Dr. Jeffreys diagnosed encephalopathy secondary to carbon monoxide exposure with residual cognitive and language impairments.*fn4 (Jeffreys Dep., at 23.)

Drs. Jeffreys and Driscoll relied upon the emergency room records and the temporal connection between Plaintiffs' reports of illness and their exposure to vehicle fumes on their drive from Florida in November of 2004 to attribute carbon monoxide as the cause of their alleged brain injuries. Neither doctor, of course, could say that Plaintiffs inhaled harmful levels of carbon monoxide during the trip, especially in light of the absence of carboxyhemoglobin testing.*fn5

To show that Plaintiffs were exposed to elevated levels of carbon monoxide during their trip from Florida, Plaintiffs retained Joseph Cocciardi, an industrial hygienist, to perform carbon monoxide and emissions testing on the U-Haul truck in question. Mr. Cocciardi designed a test regimen to determine "exposure quantification" and to predict carbon monoxide levels to which Plaintiffs were exposed during their trip. Over the course of more than 28 hours of stationary testing conducted by Mr. Cocciardi, the carbon monoxide level never exceeded 1.8 ppm, well below the 9 ppm National Ambient Air Quality Standard published by the U.S. Environmental Protection Agency. The highest carbon monoxide reading during one of the three 45-minute road tests performed by Mr. Cocciardi was in the range of 5 to 6 ppm, but lasted for no more then one minute, with all other readings between 0 to 1 ppm. Mr. Cocciardi also analyzed the vehicle emissions at the exhaust system outlet, which he found to be at levels well below the emission standard for the type of vehicle in question.

Plaintiffs also retained Mr. George Meinschein, a mechanical engineer and former automobile mechanic, to inspect the vehicle for possible pathways for vehicle emissions to enter the truck's passenger compartment. He observed several possible pathways attributable to negligent maintenance of the truck, but did not identify any particular pathway by which emissions would have entered the vehicle's cab. Mr. Meinschein also opined that carbon monoxide emissions would have been greater during the trip from Florida than the levels measured by Mr. Cocciardi, but did not articulate any basis for estimating the carbon monoxide levels during the trip.

Defendants contend that the opinions of Plaintiffs' experts on probable exposure to harmful levels of carbon monoxide during the 2004 trip from Florida do not meet the standard of admissibility articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and codified in Federal Rule of Evidence 702. In particular, Defendants assail the absence of reliable scientific methodology underpinning the experts' opinions that carbon monoxide accumulated in the passenger compartment at levels that caused permanent cognitive, behavioral, and personality impairments.

II. DISCUSSION

A. Standard of Review

The admissibility of expert witness opinions is governed by Federal Rule of Evidence 702, which 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, 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, the trial judge serves as a "gatekeeper" to insure that expert opinion testimony is both relevant and reliable. See Daubert, 509 U.S. at 589. Where, as here, a party challenges the admissibility of a proffered expert opinion, the trial court must inquire into: (1) the qualifications of the expert, (2) the reliability of the process or technique the expert used in formulating the opinion, and (3) the "fit" between the opinion and the facts in dispute. See In Re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 741-47 (3d Cir. 1994) ("Paoli II").

As explained in Jaasma v. Shell Oil Co., 412 F.3d 501, 513 (3d Cir. 2005), a qualified expert's "testimony (1) must be based on sufficient facts and data; (2) must be the product of a reliable methodology; and (3) must demonstrate a relevant connection between that methodology and the facts of the case." In this regard, scientific or technical knowledge "must be supported by appropriate validation -- i.e., 'good grounds' based on what is known." Daubert, 509 U.S. at 592. "Put differently, an expert opinion must be based on reliable methodology and must reliably flow from that methodology and the facts at issue -- but it need not be so persuasive as to meet a party's burden of proof or even necessarily its burden of production." Heller v. Shaw Industries, Inc., 167 F.3d 146, 152 (3d Cir. 1999). "[A]dmissibility under Rule 702 is governed by Rule 104(a), which requires the judge to conduct preliminary factfinding, to make 'a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid,' and thus enables the judge to exclude evidence presented in plaintiff's prima facie case." Paoli II, 35 F.3d at 743 (quoting Daubert, 509 U.S. at 592-93).

To establish a prima facie case, Plaintiffs must show that harmful levels of carbon monoxide entered the truck's passenger compartment as a result of defects in the condition of the truck; that they inhaled the carbon monoxide at harmful levels for a sufficient period of time as to cause permanent brain injury; that they have suffered injury; and that carbon monoxide accumulating in the truck's cab is the cause of the injury. See Heller, 167 F.3d at 153. It is also clear that to establish a prima facie case Plaintiffs must present admissible expert opinion testimony because no measurements of carbon monoxide levels in the vehicle or in Plaintiffs' blood were made during or immediately after their trip.

Plaintiffs premise their prima facie case on the opinions of Mr. Meinschein, Mr. Cocciardi, Dr. Jeffreys, and Dr. Driscoll. Mr. Meinschein, a former automobile mechanic and a registered professional engineer in New Jersey and Connecticut with a Bachelor's Degree in Mechanical Engineering, opines that there were pathways by which vehicle emissions could have passed into to the truck's passenger compartment. Mr. Cocciardi, although conceding that his testing of the vehicle over a prolonged period did not produce harmful levels of carbon monoxide in the vehicle cab, opines that the truck's emissions included carbon monoxide, there were pathways for exposure to carbon monoxide, there was potential for carbon monoxide levels in the truck's cab and box to increase during the road operation by approximately 50%, and that an overexposure to carbon monoxide during the trip "is apparent." (Cocciardi Report, at 19-20.) Dr. Jeffreys opines that Mr. Buzzerd suffered from an encephalopathy and that Ms. Courtney suffered changes in her personality and behavior secondary to exposure to carbon monoxide that he attributed to the trip based on information Plaintiffs gave him more than one year after the incident. Finally, Dr. Driscoll opines that Plaintiffs suffered carbon monoxide poisoning during the trip based on the sequence of events reported to him and the data collected during examinations he conducted more than one year after the incident.

B. Meinschein's Opinions

Mr. Meinschein, a former automobile mechanic who owned and operated a service station, lists on his curriculum vitae as pertinent experience the following:

Automotive systems failure analysis, product failure/liability and defect analysis, vehicle examinations, improper repair procedures, seat belt/air bag restraints, ABS brake failures, vehicle fire cause & origin investigation, NHTSA recalls, hydraulic lifts & jacks, machine design, BOCA & New York City building codes, residential & commercial construction, HVAC Failures, slips/trips/falls, stairways/ramps/handrails. (C.V. for George H. Meinschein, P.E., Ex. No. 2 to Meinschein Dep.)

Mr. Meinschein conducted visual examinations of the truck on September 9, 2005, and September 12, 2007.*fn6 (Meinschein Report at 2, Ex. No. 3 to Meinschein Dep.) Meinschein observed "evidence of exhaust leaks at the connection between the muffler and the front pipes," and a broken hanger at the rear of the exhaust system. (Id.) He also noticed that "[t]he rear-most bolt for holding the left side exhaust manifold to the cylinder head was broken." (Id.) These observations supported his conclusion that there were leaks in the exhaust system. (Id. at 3.)

Meinschein also observed an opening in the left side of the firewall, near a wiring harness, where it passed from the engine compartment to the passenger cabin. He noticed that a trim screw in the right door sill was missing, presenting "a hole from the passenger cab to the underside of the cab floor." (Id. at 2.) He further noticed that a "weather strip seal at the rear of the hood was distorted in the area directly adjacent to the cab's fresh air inlet opening." (Id.) These observations supported his conclusion that there were "multiple paths for exhaust gases to flow into the passenger cabin . . . ." (Id. at 3.)

Finally, Mr. Meinschein stated that, based upon his operation of the vehicle on the road during both inspections, an "engine miss" was present on September 9, 2005, but not on September 12, 2007. (Id.) He also stated that "[t]he left side exhaust manifold was leaking audibly when the truck was started on September 12, 2007." (Id.) Observing that the "service engine soon" lamp was illuminated throughout his examinations of the vehicle, he asserted that "the engine's computerized control system . . . recognized a defect in the system." (Id. at 3.) He further ...


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