Johnson v. American Honda Motor Co.

PRODUCT LIABILITY: Opinion that improper assembly of steering components of crashed Honda ATV caused “difficult and unpredictable” steering stricken for failure to satisfy Rule 702 reliability/relevance, leaving insufficient evidence to establish manufacturing defect claim… JML for Defendant following hung jury… Lynch.

Zane Johnson purchased a Honda ATV in 3/07. A few months later he failed to negotiate a right turn on a Forest Service road and crashed. He sued Honda alleging design & manufacturing defects, negligence, and breach of express warranty. He withdrew his negligence claim and the Court dismissed his design defect claim on summary judgment. Trial on his manufacturing defect and warranty claims began 10/22/12. The Court dismissed his warranty claim before instructing the jury 10/31. The Missoula jury deliberated 5 days on the manufacturing defect claim but was unable to reach a verdict. (MLW 12/15/12). Consistent with discussion in open court, Honda has moved to strike the testimony of Johnson’s expert ME Robb Larson and filed renewed motions for JML and sanctions for spoliation.

Larson testified that improper assembly of the right front axle shaft and CV joint caused the ATV to exhibit a “difficult and unpredictable steering response.” Honda moves to strike his testimony for failure to meet Rule 702 and Daubert (US 1993) requirements. It argues that his general expertise in mechanical engineering did not qualify him to offer expert testimony as to ATV operation, handling, and manufacturing, metallurgy, and forensic investigation, he never tested or objectively validated his theory, and his opinion was irrelevant because the difficult steering response he described was unlike the steering problem Johnson claimed before and at the time of the crash.

Assuming for present purposes that Larson was properly qualified to testify as he did, the first question is whether his testimony was sufficiently reliable. Honda’s most compelling complaint is that he did not test or objectively validate his hypothesis. The post-trial record reflects that he failed to conduct any tests to verify or quantify a “difficult and unpredictable” steering response. He admitted as much on cross and went so far as to concede that he did “no validation testing” as to his theory. Presumably in light of his testimony, Johnson concedes that Larson “did not do any tests of the steering mechanism on the subject ATV or an exemplar ATV” and agrees that he indicated that “his opinion of the steering effects was a subjective one.” The scientific method involves generating hypotheses and testing them to determine whether they are correct. Daubert. By his own admission, Larson failed to follow this basic scientific process before he never tested his theory. He never verified that metal-to-metal contact between the axle shaft and CV joints would have caused any steering problem at all, and made no attempt to objectively quantify the extent of such a problem. Thus his opinion that improper assembly of the right front axle shaft had caused a “difficult and unpredictable” steering response was not supported by sufficient facts or data and was not the product of reliable methodology. Johnson takes the position that his testimony was otherwise supported by sufficient facts & data because he relied on information that he had “been made aware of or personally observed” as contemplated by Rule 703. To Johnson, it is significant that Larson “had possession of the physical components” of the ATV and visually inspected them. He notes that Larson found that “the axle did not look the way that an axle should look,” it “did not fit into its corresponding cv joint, and the cv joint had metal particles in it,” which is “objective information that a reasonable juror could understand and that an expert would rely on in the field.” However, Honda has not challenged Larson’s testimony under Rule 703, but claims that under Rule 702 he “cannot identify any objective data that is logically related to his opinions.” Johnson fails to explain how Larson’s basic observations as to the condition of the various parts substantiated or validated his theory that a difficult and unpredictable steering response would have resulted.

Johnson also claims Larson’s opinion was supported by sufficient facts & data because he had received information about the nature of the crash from Johnson and his family. As Johnson notes, Larson testified that “he knew the vehicle had a steering failure directly prior to the crash” and “the facts reported were that the axle was on the vehicle at the time of the crash.” He maintains that this was relevant data which Larson was entitled to accept at face value and properly considered in forming his opinions, and it was for the jury to determine how much weight to give to his opinion. However, Larson assumed that the axle was on the ATV at the time of the accident and disregarded evidence that might have suggested otherwise. When he first received the ATV there was dirt and mud-encrusted duct tape on the inboard CV joint and the outboard joint was filled with contaminated grease. He nonetheless “proceeded with the assumption that the shaft had been in place up until the time of the accident” and disposed of the duct tape and grease without testing or analyzing them. (Honda contends that because Larson did not preserve those materials it was deprived of the ability to establish that the axle was not in the ATV at the time of the crash. Because the Court finds that his testimony must be stricken under Rule 702, its motion for case-terminating sanctions based on spoliation is moot.) Larson essentially accepted that the axle shaft was in the ATV at the time of the crash and extrapolated to an unfounded conclusion that metal-to-metal contact between the shaft and CV joint had caused a “difficult and unpredictable” steering response. But because he never tested his theory and failed to rule out the possibility that the shaft may have been missing when Johnson crashed, the analytical gap between the available data and his ultimate opinion was simply too great.

Johnson nonetheless argues that Larson’s methodology was sound because he performed other tests “to inform his opinion.” For example, he did an Instron tensile exam, or “pull test,” on the left front axle to measure the static force necessary to overcome the circlip capture force and pull the shaft out of the CV joint, because “the shaft had apparently come out of the right side” in the crash and he “was very curious to find out how much force would have been required to extract that.” In Larson’s words, he “learned the maximum force to overcome the circlip tension,” learned that there was “some diminished force required to continue to pull the shaft all the way out,” and discovered that “the further it gets extracted, the lower that force value is until finally it drops to zero and the shaft pops free.” He did not claim to have learned anything about the ATV’s steering.

In an attempt to determine whether the axle had been inserted completely at the time of manufacture he cut the CV joint in half to determine if the circlip had expanded and left any marks inside the joint. He found “no obvious wear patterns,” and described the results as “inconclusive.” He sent some grease and metallic particles from the joint to a lab. That testing “ruled out the possible presence of foreign metallic materials within the CV joint recess” and had nothing to do with steering. He performed a Rockwell hardness test to find out why the right front axle appeared “shiny, smooth, rounded compared to the machined splined surface on a good axle.” That showed that “the splines were extremely hard and resistant to wear and the rounded portion and the core of the shaft was relatively soft.” To Larson, this simply “explained the rounded shape” of the axle shaft because they “seem to indicate that once the ends of those splines were chipped off or ground off or broken off, then what’s left would round off nicely into the form seen.” He did not claim to have learned anything about the steering mechanism.

Nonetheless, Larson concluded based on his tests that there was a manufacturing defect in the form of improper coupling of the right front axle shaft and CV joint, which caused a difficult and unpredictable steering response. While his tests may have “informed his opinion” as to a manufacturing defect, Johnson fails to explain how they substantiated, validated, or even related to his theory that the alleged defect affected the steering, while Larson made it abundantly clear on cross that he did no validation testing to determine whether metal-on-metal contact between the axle shaft and CV joint would have caused a steering problem, and conceded that his opinion was a “hypothesis that I did not test.” Johnson argues that Larson should not be faulted for failing to test his hypothesis because the steering “condition is inimitable, because there is no documentation of the exact conditions and placement of the axle at the moment of the steering failure.” But the point is not whether the exact condition and placement of the axle at the time of the accident can ever be known, but that Larson developed a hypothesis which he failed to test or otherwise validate. There is also no evidence that his “difficult and unpredictable” steering theory has been subjected to peer review or publication or is generally accepted in the scientific community. Barabin (9th Cir. 2012). His opinion that improper assembly of the axle shaft caused a “difficult and unpredictable” steering response was not based on sufficient facts or data and was the product of a fundamentally flawed methodology, and is not sufficiently reliable to be admitted under Rule 702.

Even if it could be said to be sufficiently reliable, it would still have to be stricken because it did not “fit” the facts developed at trial and so failed to satisfy Rule 702 “relevancy.” Daubert. Larson testified that the response would be felt during “operation of the vehicle in any condition other than when it’s going in a straight line” and “would be especially apparent at large turn angles.” He explained that “there would be feedback through the steering assembly that would cause a feeling by the operator that the vehicle wanted to return to a straight line condition” — that there would be a large degree of difficulty when the steering angle was severe and basically negligible when the vehicle is going in a straight line. However, as Johnson described it, he was “approaching the corner and went to turn,” the steering “was stuck, so I went straight off the corner and I wrecked.” He stated that the handlebars essentially “locked up” as he was making his straight approach to the turn and he “couldn’t move them” and was unable to force them loose, even as he stood in an attempt to do so, and they remained locked as he went straight off the edge of the road. He and his brother-in-law testified that the steering had similarly locked up earlier that day. However, Larson made clear that he “did not identify a condition where it was impossible to turn the handlebars.”

Honda moved for JML under Rule 50(a) at the close of Johnson’s case. The Court denied the motion after the jury was unable to reach a verdict, subject to Honda’s right to renew it in light of the evidence at trial. Honda has filed a renewed motion pursuant to 50(b). The Court instructed that for Johnson to prevail on his manufacturing defect claim he had to prove:

First, that at the time of sale by [Honda] the product was in a defective condition because of a manufacturing defect. A manufacturing defect exists when a product fails to conform to its design. Second, that the manufacturing defect caused injury to Mr. Johnson.

There can be no real dispute that ATV assembly and the effects that improper assembly may have on steering are beyond the common experience of the trier of fact, so it was necessary for Johnson to present expert testimony to establish that a manufacturing defect caused the steering problem that he alleges made it impossible to negotiate the turn. However, Larson’s opinion that improper assembly of the right front assembly and CV joint caused a “difficult and unpredictable” steering response is properly stricken because it does not satisfy Rule 702. Without Larson’s opinion Johnson has no evidence that the alleged manufacturing defect cause any steering problem, and without that he cannot show that it caused his injuries.

Honda’s renewed motion to strike Larson’s testimony is granted to the extent set forth. Its motion for JML is granted. Its renewed motion for a dispositive spoliation sanction is denied as moot.

Johnson v. American Honda Motor Co., 40 MFR 160, 1/31/13.

Martin Judnich & Vincent Pavlish (Judnich Law Offices), Missoula, and Mathew Stevenson, Missoula, for Johnson; Paul Cereghini & William Auther (Bowman & Brooke), Phoenix, and Gerry Fagan (Moulton Bellingham), Billings, for Honda.