United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
August 17, 2006
for the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 05-20424
JESSICA HAFSTIENN, Individually and as Next
Friend of Taylor Hafstienn, Deceased; KEVIN
HAFSTIENN, Individually and as Next Friend of
Taylor Hafstienn, Deceased,
Plaintiffs-Appellants,
versus
BMW OF NORTH AMERICA, LLC; ET AL,
Defendants,
BMW OF NORTH AMERICA, LLC,
a Delaware Corporation; BMG AG
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(4:03-CV-1646)
Before DeMOSS, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the Court has
determined that this opinion should not be published
and is not precedent except under the limited
Plaintiffs-Appellants Jessica and Kevin Hafsteinn
(“Appellants”) appeal the district court’s entry of final
judgement in favor of BMW of North America, L.L.C. and
BMW AG (collectively “Appellees”). Appellants argue that
final judgment was based solely on the court’s erroneous
exclusion of Appellants’ “crash test” evidence and expert
testimony. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2000, Jessica Hafsteinn was driving a
1999 BMW 323i with her six-year-old son, Taylor, riding
in the right rear seat. While making a left turn at an
intersection, Mrs. Hafsteinn failed to yield the right-
of-way and turned into oncoming traffic. As a result, a
speeding GMC truck violently hit the right side of her
BMW. The collision caused the BMW to split apart and roll
over. Taylor was killed.
Appellants, individually and as next friend of
Taylor, brought various product liability claims against
Appellees based on the following theories: (1)
manufacturing defect, (2) design defect, and (3) failure
circumstances set forth in 5TH CIR. R. 47.5.4.
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to warn. Generally, Appellants’ contention was that their
BMW 323i should not have split apart in the crash; and,
because it did split apart, Taylor was thrown from the
vehicle, hit his head on the pavement, and was killed.
More specifically, Appellants alleged that their
BMW’s “spot welds”--the locations where different metal
pieces of the vehicle are welded together--were
defective. Appellants contended that many of the spot
welds were located too close to the edges of the pieces
they connected. And this, in turn, weakened the vehicle
such that it split apart upon impact.
In an order preceding the evidentiary rulings at
issue on appeal, the district court granted partial
summary judgment in Appellees’ favor dismissing all but
Appellants’ manufacturing defect claim. Appellants do not
challenge that ruling.
With only the manufacturing defect claim remaining,
Appellees then filed motions to exclude (1) the testimony
of each of Appellants’ experts, and (2) Appellants’ crash
test evidence. After a three-day hearing, the district
court excluded each piece of evidence. Without the crash
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test and expert testimony, Appellants conceded that they
lacked sufficient evidence to prove causation and
stipulated to an order granting summary judgment in
Appellees’ favor. This timely appeal followed.
DISCUSSION
To prevail on their manufacturing defect claim,
Appellants were required to show that: (1) their BMW 323i
did not conform to BMW’s own manufacturing plans and
specifications; (2) the deviation made their BMW
unreasonably dangerous; and (3) the deviation was a
producing cause of Taylor’s injuries. See Torrington Co.
v. Stutzman, 46 S.W.3d 829, 844 (Tex. 2000). Again,
Appellants conceded below, as they do on appeal, that
without their crash test and expert testimony, they were
unable to prove the causation element. It is important to
note at this stage that, under Appellants’ theory of the
case, the causation element required Appellants to make
two showings: first, that Taylor would not have sustained
his injuries had he not been ejected from the BMW; and
second, that a properly constructed BMW (one with spot
welds built to BMW’s own specifications) would not have
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split apart allowing Taylor’s ejection. Only after making
both showings could Appellants prove that, but for the
allegedly defective spot welds, Taylor would have
survived the accident.
To establish causation, Appellants attempted to
introduce the crash test and the testimony of three
experts: (1) Thomas Grubbs, (2) Dr. McLellan, and (3) Dr.
Nicodemus. The crash test was excluded on basic relevancy
principles, see FED. R. EVID. 401-403, and nearly all of
the expert testimony was excluded pursuant to various
components of Federal Rule of Evidence 702.
We review the district court’s decision to exclude
evidence, including expert testimony, for an abuse of
discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136,
141-43 (1997).
1. Appellants’ Crash Test Evidence
Appellants planned to introduce video footage of a
crash test performed by one of their experts. The video
showed a collision between a GMC truck and a properly
constructed Volkswagen Passat. The crash test was
supposed to help Appellants prove causation; namely, that
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a similar vehicle with properly constructed spot welds
would not have split apart in the accident.
The district court excluded the test as irrelevant
under Rule 401 because the Volkswagen Passat’s
performance was completely unhelpful in deciding whether
Appellants’ BMW 323i had a manufacturing defect that
caused Taylor’s injuries in the accident. In the
alternative, the court found the video footage too
confusing and misleading under Rule 403.
Appellees on appeal agree with the district court
that the test is irrelevant because the car in the test
is a Volkswagen, not a BMW. On the other hand, Appellants
argue that the BMW in the accident and the Volkswagen
used in the test are “substantially similar,” which is
all that is required for the test to be relevant. See
Barnes v. Gen. Motors Corp., 547 F.2d 275, 277 (5th Cir.
1977).
We agree with the district court that the test
conducted by Appellants’ expert is irrelevant to the
issue of causation. A comparison of the accident to the
test, with a focus on the differences between the two,
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compels this conclusion.
First, as the district court noted, the Volkswagen
Passat and the BMW 323i are different vehicles. The
important differences between the two cars are not that
they have different names or that they are manufactured
by different companies; rather, it is that they are
materially dissimilar in design and final product. For
example, the Passat is longer than the 323i, has a longer
wheel base, has a different center of gravity, and has a
different tip-over ratio.
The Passat also weighs significantly less than the
323i. Because of the weight difference, Appellants’
expert had to fill the Passat’s fuel tank with 75 pounds
of lead shot, fill its oil pan with 100 pounds of lead
shot, and add an additional 169 pounds of lead ingots and
water to various other parts of the vehicle. After adding
this weight, which alone may have greatly skewed the
results of the test, the Passat still weighed less than
Appellants’ 323i.1
1
In addition to these obvious differences,
Appellants failed to provide the district court with
evidence that the vehicles did not differ in other
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Second, beyond Appellants’ use of a different and
dissimilar vehicle, other circumstances surrounding the
test differed from those surrounding the actual crash.
Namely, it is undisputed that Appellants’ BMW was
traveling at approximately 16 miles per hour when the GMC
collided with it; yet the Passat in the test was
stationary.
In sum, Appellants used a different and dissimilar
vehicle. The vehicles unquestionably differed in length
and weight, and perhaps in other respects, such as
rigidity and plasticity. And, the test vehicle was
stationary even though Appellants’ BMW at the time of the
accident was not. Because of these material differences
between the accident and the crash test, we cannot say
that the district court’s decision to exclude the test
was an abuse of discretion2.
2. The Exclusion of Appellants’ Experts
respects, such as their spot weld designs or overall
rigidity or plasticity.
To further support the conclusion that the test
2
differed from the accident, we note that the BMW and
the GMC in the accident rolled over after impact; the
Passat and the GMC in the crash test did not.
8
As mentioned above, Appellants’ theory was that a
properly constructed BMW would not have split apart in
the accident; and Appellants conceded that they could not
prove this theory without their crash test and expert
testimony. Because, as we discussed above, the crash test
was properly excluded, Appellants sole remaining source
of causation evidence was the testimony of their three
experts. The district court excluded most of the experts’
testimony under Rule 702. Rule 702 provides that:
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, may
testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based on
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.
Keeping in mind that Appellants’ experts had to (1)
comply with Rule 702 and (2) create a genuine issue of
material fact as to causation, we turn now to the
excluded testimony of each expert.
a. Thomas Grubbs
Appellants’ first expert, Thomas Grubbs, has a
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bachelor’s and master’s degree in mechanical engineering.
He has been an engineer for forty-three years and has
conducted approximately 2000 accident reconstructions.
Appellants intended to use Grubbs, who conducted their
crash test, to explain the test results to the jury.
The district court excluded Grubbs’ testimony because
he was not a qualified expert in the field of accident
reconstruction and because he relied upon inaccurate data
in conducting his test. See FED. R. EVID. 702.
We need not address either of the district court’s
stated reasons for excluding Grubbs’ testimony. The sole
purpose of his testimony was to explain the crash test to
the jury. Because we have already determined that the
district court properly excluded the crash test, Grubbs’
testimony relating to that test would not have
“assist[ed] the trier of fact to understand the evidence
or to determine a fact in issue.” See FED. R. EVID. 702.
Therefore, even though it did so for different reasons,
the district court did not abuse its discretion in
excluding Grubbs’ testimony.
b. Dr. McLellan
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The district court recognized Dr. McLellan as a
qualified metallurgist, i.e., someone who studies the
structure and properties of metals. Appellants
affirmatively state in their brief that they did not
intend to use Dr. McLellan to prove causation; rather,
they intended to use him to show only that the BMW’s
allegedly defective spot welds made the car less
“crashworthy.” Similarly, the district court recognized
that Dr. McLellan was unable to testify to causation
because he stated that he did not know whether a properly
constructed BMW 323i would have split apart in the
accident.
Appellants conceded that without their experts, they
could not prove causation. Thus, unless we determine not
only that the expert testimony was improperly excluded,
but also that the expert testimony, in light of other
admissible evidence, would have created a genuine issue
of material fact regarding causation, we must affirm the
district court’s entry of summary judgment in favor of
Appellees. Dr. McLellan himself, Appellants, and the
district court all agree that Dr. McLellan was not
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expected to and did not testify to causation. Therefore,
we turn now to Appellants’ last expert, Dr. Nicodemus.
c. Dr. Nicodemus
Dr. Nicodemus has a Ph.D. in biomechanics and
osteopathic medicine. His qualifications in those fields
are extensive, and were not attacked by Appellees or
questioned by the district court.
Appellants expected Dr. Nicodemus to establish that
Taylor died because he flew out of the vehicle and hit
his head on the pavement, and not because he was
immediately struck in the head when the GMC and BMW
collided. This would have proven that, but for the BMW
splitting apart, Taylor likely would have survived the
crash. The court excluded Dr. Nicodemus’ testimony for
two reasons: (1) his qualifications were irrelevant to
those opinions, and (2) his methodology in arriving at
those conclusions was either flawed or non-existent. See
FED. R. EVID. 702.
As was the case with the exclusion of Dr. McLellan’s
testimony, we need not address the district court’s two
stated reasons for excluding Dr. Nicodemus’s testimony.
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Even if his testimony had been admitted, Appellants still
would have failed to raise a genuine issue of material
fact regarding causation. Dr. Nicodemus was going to
opine that, had the BMW not split apart, Taylor would
have survived. While this certainly would have been
relevant to the issue of causation, it would not have by
itself established causation. Appellants still would have
needed to establish that a properly constructed BMW--one
with spot welds built to BMW’s own plans and
specifications--would not have split apart in the
accident.3
Like Appellants’ other two experts, Dr. Nicodemus was
not prepared to testify that a properly constructed BMW
would not have split apart. Therefore, we need not
address whether his testimony was properly excluded under
Rule 702 because, even with his testimony and the
As we stated above, to prove causation under their
3
theory of the case, Appellants had to make two
showings: first, that Taylor would not have sustained
his injuries had he not been ejected from the BMW; and
second, that the BMW would not have split apart,
thereby allowing Taylor’s ejection, had its spot welds
been properly manufactured. Even if all of the excluded
testimony had been admitted, Appellants failed to make
the second showing.
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testimony of Dr. McLellan, Appellants failed to establish
causation.
CONCLUSION
Because the district court did not abuse its
discretion when it excluded Appellants’ crash test and
their expert testimony related to the crash test, and
because the testimony of Appellants’ two remaining
experts did not create a genuine issue of material fact
regarding causation, we AFFIRM the court’s entry of final
judgment in favor of Appellees.
AFFIRMED.
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