FILED
NOT FOR PUBLICATION AUG 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
DAÈ PIERSON, No. 09-17604
Plaintiff-Appellee, D.C. No. 4:06-cv-06503-PJH
vs.
MEMORANDUM *
FORD MOTOR COMPANY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted May 11, 2011
San Francisco, California
Before: W. FLETCHER and N.R. SMITH, Circuit Judges, and MILLS, Senior District
Judge.**
Dax Pierson was permanently paralyzed from his shoulders down following an
accident while he was a passenger in a rented van that was manufactured by Ford
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, Springfield, sitting by designation.
Motor Company.
The complaint asserted a product liability action against Ford. After the jury
returned a verdict in favor of Pierson, Ford moved for a new trial and judgment as a
matter of law and also to reduce the verdict in light of settlement payments that
Pierson had received from other entities. The district court reduced the amount and
entered judgment in favor of Pierson in the amount of ü14,928,367.78.
On appeal, Ford claims that the jury's verdict was not supported by substantial
evidence as to causation. Specifically, Ford alleges that Pierson did not establish that
the design of the van was a substantial factor in causing his injuries. Ford asserts
Pierson failed to offer expert testimony on two µey points of his theory: (1) that the
roof deformed on the van's first roll; and (2) that the seat unlatched during the first
roll. Ford further contends that the district court abused its discretion in denying its
motions, pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), to exclude or striµe the testimony of Martha Bidez, Ph.D., Pierson's
biomechanics expert. Ford argues that Dr. Bidez's theory of injury causation was
based on an accident reconstruction that had no basis in the record. Dr. Bidez relied
on the accident reconstruction opinion of Robert Caldwell, even though his views
were not presented to the jury.
A jury's verdict and the denial of a renewed motion for judgment as a matter
2
of law must be upheld if they are supported by 'substantial evidence.' See Harper v.
City of Los Angeles, 533 F.3d 1010, 1021 (9th Cir. 2008). Substantial evidence is
'evidence adequate to support the jury's conclusion, even if it is also possible to draw
a contrary conclusion.' See id. 'A renewed motion for judgment as a matter of law
is properly granted if the evidence, construed in the light most favorable to the
nonmoving party, permits only one reasonable conclusion, and that conclusion is
contrary to the jury's verdict.' See id. (internal quotation marµs and citation omitted).
A district court's decision to admit or exclude expert testimony is reviewed for abuse
of discretion. See Earp v. Cullen, 623 F.3d 1065, 1075 (9th Cir. 2010).
Causation is an essential element of a product liability case. See Stephen v.
Ford Motor Co., 134 Cal. App.4th 1363, 1373 (2005). If 'the complexity of the
causation issue is beyond common experience, expert testimony is required to
establish causation.' Id. An expert's opinions and conclusions which are based on
nothing more than speculation cannot constitute substantial evidence. See id.; see also
Leslie G. v. Perry & Associates, 43 Cal. App.4th 472, 487 (1996) ('[w]here an expert
bases his conclusion upon . . . factors which are speculative, remote or conjectural, .
. . the expert's opinion cannot rise to the dignity of substantial evidence.').
The district court did not abuse its discretion in declining to exclude or striµe
Dr. Bidez's testimony under Daubert. We find that any deficiencies with her
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testimony went to its weight and not its admissibility.
Although there may have been some problems with Dr. Bidez's expert
testimony, we conclude that there was sufficient evidence to support the jury's verdict.
Even without the assistance of an expert, there was ample evidence from which the
jury could determine that Pierson's head collided with the collapsed (or collapsing)
roof, which resulted in his injury. The jury also µnew, even without any
reconstruction evidence from Mr. Caldwell, that the van rolled over; that there was a
marµ in the roof where Pierson's head or the seat could have hit; and that there was
blood near the marµ in the roof. There was no evidence of a marµ on the passenger
side roof near the window where Ford contended that Pierson's head had hit. Pierson
testified that he put his hands up to the roof as the van began to roll over. This may
have served to impede any roll toward the window that his head would otherwise have
made. The jury heard evidence that the right-hand latch for the bench seat on which
Pierson was sitting did not hold the seat, so that the seat rotated up and to the left,
toward the center of the vehicle, as the van rolled over.
There was sufficient evidence from which the jury could conclude that
Pierson's injuries were caused by the van's deficient latch and the collapsing roof. In
our view, no expert was needed to establish that this occurred at a particular point
during the vehicle rollover.
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AFFIRMED.
5
FILED
Pierson v. Ford Motor Co., No. 09-17604 AUG 04 2011
N.R. SMITH, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
I must dissent from the majority's decision. This jury could not maµe its
causation determination based solely on the forensic evidence presented at trial.
Indeed, neither party argued to the district court that Pierson's case could be made
without the assistance of expert testimony. In closing argument, Pierson's own
counsel repeatedly emphasized that forensic evidence coupled with expert
testimony shows that Pierson's seat launched during the first roll and that his head
collided with the collapsing roof on the driver's side of the vehicle. The notion
that this conclusion could be made without the assistance of expert testimony
regarding accident reconstruction, latch strength, roof deformation, and
biomechanics belies everything in this record.
It is well established under California law that '[a] product liability case
must be based on substantial evidence establishing both the defect and causation
. . . [and where] the complexity of the causation issue is beyond common
experience, expert testimony is required to establish causation.' Stephen v. Ford
Motor Co., 37 Cal. Rptr. 3d 9, 17 (Ct. App. 2005). Although a jury may decide
what weight to give to the testimony of a witness, 'the uncontradicted and
unimpeached testimony of an expert witness may not be arbitrarily disregarded by
1
the trier of fact.' Lauderdale Assocs. v. Dep't of Health Servs., 78 Cal. Rptr. 2d
802, 808-09 (Ct. App. 1998) (citation omitted).
Pierson proceeded to trial under the assumption that he would present and
rely on the testimony of his expert witnesses to establish this product liability case.
Pierson's µeystone expert was Robert Caldwell, an accident reconstruction
specialist who developed an accident scenario describing the precise movement of
the Ford van during the rollover sequence. Each of Pierson's experts relied on Mr.
Caldwell's reconstruction report to develop their complementary opinions
regarding latch strength, roof deformation, and biomechanics. Though each
opinion was critical to Pierson's case, none was more important than Mr.
Caldwell's. His reconstruction scenario provided the foundation for each of the
other experts' conclusions that Pierson's injury was caused by defects in the design
and construction of the Ford van.
For example, Pierson's causation theory required the jury to accept the
testimony of his biomechanics expert, Dr. Martha Bidez, who was qualified to
testify regarding the impact of the rollover sequence on Pierson's body. Drawing
on assumptions in Mr. Caldwell's report, Dr. Bidez testified that 'Pierson was
injured very early in the rollover,' specifically during the 20 to 30 milliseconds
between 90 degrees and 135 degrees of the first roll. She claimed Pierson
2
sustained his necµ injury when (1) 'he was launched in the opposite direction from
where he should have been going based on physics by the unlatching . . . of th[e]
seat,' and (2) 'he had a head-on collision with the deformation of the roof as it was
intruding in.' These events had to happen simultaneously, because Pierson's
injury was allegedly caused by the combined velocity of the roof caving in and the
seat unlatching. Dr. Bidez also testified that this injury scenario could only have
happened during the first roll sequence, because centrifugal forces during
subsequent rolls would have pinned Pierson against the passenger (rather than
driver's) side of the van.
As critical as the rollover timing was to Pierson's case, none of Pierson's
experts testified at trial that (1) the seat came unlatched and 'launched' during the
first roll, or (2) the roof collapsed during the first roll. Among Pierson's experts,
only Dr. Caldwell was qualified to offer this testimony based on his accident
reconstruction report. However, Ford objected to Caldwell's attempts to so testify,
because these conclusions were allegedly not disclosed in an expert report. Rather
than explaining the basis for Caldwell's testimony, Pierson's counsel opted to
move on and ultimately failed to prove these critical facts during its case in chief.
To the extent other experts relied on the contents of Mr. Caldwell's reconstruction
report, they did so only for illustrative or foundational purposes--not to prove Mr.
3
Caldwell's rollover scenario.
The majority suggests the jury heard testimony 'that the right-hand latch for
the bench seat on which Pierson was sitting did not hold the seat, so that the seat
rotated up and to the left, toward the center of the vehicle, as the van rolled over.'
This testimony came from Mr. Cantor, a latch expert, who performed a
hypothetical demonstration. Based on Mr. Caldwell's reconstruction report,
Cantor testified about what could have happened during the rollover sequence.
However, the district court admitted Mr. Cantor's testimony for a limited purpose
and not to prove the timing of the roof collapse or what happened to Pierson during
the rollover:
During the course of this trial . . . you will see various different tests.
And the tests are being offered for the limited purpose of helping--of
illustrating the testimony of a witness and helping you understand
generally certain scientific principles. The tests are not being offered
to show what happened to the roof of the Ford van in the rollover
crash, or what happened to Mr. Pierson in the rollover crash.
They're for illustrative purposes and educational purposes for you all.
Thus, even Mr. Cantor's testimony could not establish that the roof collapsed and
the seat launched during the first roll--the only possible scenario under which
Pierson's injury could be attributed to a design defect.
Perhaps recognizing that no experts established the linchpin timing sequence
in Pierson's causation theory, the majority suggests the jury could have found
4
causation even without expert testimony. This view finds no support in the record.
The precise timing of Pierson's impact with the roof was critical. As even Dr.
Bidez's uncontested testimony established, had Pierson's seat remained latched or
unlatched at any other point during the rollover sequence, the centrifugal forces of
the rolling van would have pinned Pierson to the passenger side of the van rather
than launching him in the opposite direction toward the collapsing roof. Because
the timing of Pierson's seat launch and the roof collapse are issues 'beyond
common experience, expert testimony [wa]s required to establish causation.'
Stephen, 37 Cal. Rptr. 3d at 17.
The 'substantial evidence' in the record, to which the majority points to
prove causation even without expert support--namely, a 'marµ in the roof where
Pierson's head or the seat could have hit' and 'blood near the marµ in the
roof'--fails to cure the timing problem. Testimony at trial established at least two
potential causes of the roof dent and blood marµ: (1) Pierson's collision with the
driver's side roof during the first few milliseconds of the roll sequence, or
(2) subsequent rolls and Pierson touching the roof of the upside-down van as
paramedics removed him from the wrecµage. The jury could choose to discredit
Ford's view of the facts, but, given the narrow window during which Pierson's
injury must have taµen place, the jury could only adopt Pierson's explanation with
5
expert testimony establishing that the roof collapsed and the seat launched
simultaneously during the critical first roll sequence. See Becµ Dev. Co. v. S. Pac.
Trans. Co., 52 Cal. Rptr. 2d 518, 548 (Ct. App. 1996) ('[T[he fact that the trier of
fact does not credit a witness's testimony does not entitle it to adopt an opposite
version of the facts which otherwise lacµs evidentiary support.').
It is undisputed that Pierson failed to present expert testimony to establish
these essential facts in his causation theory. Because these facts could only be
proven by qualified expert testimony, Pierson failed to prove causation. Causation
is an essential element of his product liability case for which he bore the burden of
proof. See Stephen, 37 Cal. Rptr. 3d at 17. I would therefore reverse.
6