Lance Belville v. Ford Motor Company , 919 F.3d 224 ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1470
LANCE R. BELVILLE; DONALD C. CARR; MINDI STEWART; STANLEY
STEWART; CHARLES JOHNSON; JILL DURANT; MICHAEL ANTRAMGARZA;
QUINTIN WILLIAMS; ACA LEGAL INVESTIGATIONS, INC.; JOHN MCGEE;
DAVID H. PATTON; INEZ A. PATTON; PAMELA D. SMITH; BETTY J. TRINQUE;
SHARON SHAFFER; ROBERT BRANDON; DANIEL GALLEGOS; TIMOTHY
MATTHEWS; SAMUEL HAIRSTON; RHODA JEFFERS; MARY PHIPPEN;
JONATHAN POMA; SHELLEY RILEY; CHARLES T. BURD; WILLIAM S.
TROUTMAN; SHANE MAYFIELD; ANDREA MARTIN; THOMAS PORTER;
HASEN DESIGN BUILD & DEVELOPMENT, INC.,
Plaintiffs – Appellants,
and
DEAN RICHARDSON; CHRISTINE SALAMONE; BEVERLY GORTON; JOSH
LEGATO; ROOFWERKS, INC.; MILLS ALLISON; LAURA ELSINGER, and;
GABRIEL KLETSCHKA, Individually and on behalf of all others similarly situated;
CAROLYN CHASE; GREG PEET; TONY BURNETT; GEORGE SHAFFER;
ROBERT AGRIS; JOHN E. GRIMALDI; JOLENE HARRIS,
Plaintiffs,
v.
FORD MOTOR COMPANY,
Defendant – Appellee.
Appeal from the United States District Court for the Southern District of West Virginia,
at Huntington. Robert C. Chambers, District Judge. (3:13-cv-06529)
Argued: January 29, 2019 Decided: March 25, 2019
Before AGEE and HARRIS, Circuit Judges, and DUNCAN, Senior Circuit Judge.
Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Harris
and Senior Judge Duncan joined.
ARGUED: John E. Tangren, DICELLO LEVITT & CASEY LLC, Chicago, Illinois, for
Appellants. Jonathan D. Hacker, O’MELVENY & MYERS LLP, Washington, D.C., for
Appellee. ON BRIEF: Adam J. Levitt, John E. Tangren, DICELLO LEVITT & CASEY
LLC, Chicago, Illinois; Niall A. Paul, SPILMAN THOMAS & BATTLE, PLLC,
Charleston, West Virginia; Gregory M. Travalio, Mark H. Troutman, Shawn K. Judge,
ISAAC WILES BURKHOLDER & TEETOR, LLC, Columbus, Ohio, for Appellants.
Sarah Virginia Bondurant Price, MCGUIREWOODS LLP, Richmond, Virginia;
Jonathan D. Hacker, Bradley N. Garcia, O’MELVENY & MYERS LLP, Washington,
D.C., for Appellee.
2
AGEE, Circuit Judge:
A group of individuals and corporations sued Ford Motor Company for an alleged
defect in their purchased or leased Ford vehicles manufactured between 2002 and 2010.
The district court dismissed various claims of certain Plaintiffs, excluded the opinions of
the Plaintiffs’ three experts, and granted summary judgment to Ford on all claims.
Twenty-seven individual and two corporate Plaintiffs1 now appeal and, for the reasons set
out below, we affirm the judgment of the district court.
I.
In 2013, various individuals and corporations filed three related actions in the
Southern District of West Virginia, alleging that their Ford vehicles had a defective
electronic throttle control (“ETC”) system, which could lead to an unintended
acceleration (“UIA”). They further alleged that to prevent a UIA, Ford should have
equipped their vehicles with an alternative failsafe system such as a Brake Over
Accelerator (“BOA”). Based on this theory of defect, the Plaintiffs asserted numerous
state and federal claims, including a violation of the Magnuson–Moss Warranty Act,
breach of implied and express warranty, unjust enrichment, and a violation of state
consumer protection statutes.
1
Plaintiffs in the proceedings below included Appellants as well as fourteen other
individuals and one corporation. These other Plaintiffs did not file a notice of appeal. For
convenience and to avoid confusion, we will identify all plaintiffs below as “Plaintiffs,”
which includes Appellants.
3
Despite the alleged defect, only sixteen Plaintiffs alleged that they actually
experienced UIAs, and none had suffered personal injury or property damage from the
alleged defect. Nonetheless, all Plaintiffs sought economic damages arguing that the
alleged defect made their vehicles worth less than their purchase or lease price.
Specifically, they requested “damages to recover for diminished value at the time of
purchase,” Belville v. Ford Motor Co., 13 F. Supp. 3d 528, 535 (S.D.W. Va. 2014),
which they posit on appeal is—for “many” Plaintiffs— “the market price to repair the
defective Class Vehicles.” Reply Br. 17.
Ford filed motions to dismiss all three actions, which the district court granted in
part and denied in part. Bellville, 13 F. Supp. 3d at 530. In 2014, the court dismissed,
among other claims, the warranty and unjust enrichment claims of those Plaintiffs who
had not experienced a UIA because they “failed to demonstrate a plausible claim that
they paid more for their vehicles than their actual worth when they have used their
vehicles without incident for many years.” Id. at 542. After the dismissal order was
issued, the Plaintiffs twice attempted to amend their complaints. In considering the
motions to amend, the district court clarified which claims were dismissed, consolidated
the three actions into one, and directed the Plaintiffs to file a consolidated amended
complaint consistent with the court’s orders.
In December 2015, seventeen individuals and two corporations, as the Plaintiffs in
the consolidated action, filed a Second Amended Master Consolidated Class Action
4
Complaint, 2 which became the operative complaint. As distinguished from the initial
complaints, all but two Plaintiffs 3 now alleged that they experienced a UIA due to a
defective ETC system in their Ford vehicles. Based on this alleged defect, the Plaintiffs
continued to assert one federal claim—a violation of the Magnuson-Moss Warranty
Act—and numerous state claims, including breach of express and implied warranty, fraud,
and unjust enrichment claims.
Ford moved to exclude the Plaintiffs’ expert witnesses and for summary judgment.
By order of February 27, 2018, the district court granted partial summary judgment to
Ford on the warranty and unjust enrichment claims, noting that because many factors
unrelated to an ETC system may cause UIAs, the Plaintiffs’ mere allegations that they
experienced UIAs were not evidence of a defect. See Johnson v. Ford Motor Co., 310 F.
Supp. 3d 699 (S.D.W. Va. 2018). It observed that to survive Ford’s motion for summary
judgment, the Plaintiffs must establish “a causal link between their alleged [UIAs] and
2
The Plaintiffs moved for class certification in January 2018, but the district court
granted summary judgment on all claims to Ford before ruling on this motion. Thus, the
court never certified a class.
3
In the initial complaints, sixteen Plaintiffs, including Roofwerks, Inc., Greg Peet,
Carolyn Chase, Robert Agris, and John Grimaldi, alleged that they experienced UIAs.
With the district court’s permission, Roofwerks, Peet, Chase, Agris and Grimaldi
voluntarily dismissed their claims.
Nineteen of the Plaintiffs who survived the dismissal orders became the Plaintiffs
in the consolidated action. This group included eleven Plaintiffs who alleged in the initial
complaints that they experienced UIAs. The six other Plaintiffs changed their stance and
alleged in the amended complaint that they experienced UIAs. Two Plaintiffs, John
McGee and Hasen Design Build & Development, Inc., did not allege that they
experienced UIAs or assert any warranty or unjust enrichment claims. All Plaintiffs in the
consolidated action are parties to this appeal.
5
the alleged defect.” Id. at 704. The district court held the Plaintiffs failed to produce
evidence of causation, explaining:
none of [Plaintiffs’ proposed] experts can say that, for those Plaintiffs who
alleged they experienced [a UIA], their events were the result of the alleged
defect with the ETC system. Quite simply, Plaintiffs produced no experts
who can testify that [their] alleged [UIAs] were proximately caused by the
alleged defect rather than some other known cause for such events.
Id. at 706–07. The court found, “this gap between Plaintiffs’ experts’ opinions and what
allegedly occurred in Plaintiffs’ specific vehicles fatal to Plaintiffs’ warranty and unjust
enrichment claims.” Id. at 707.
By order of March 26, 2018, the district court resolved the Plaintiffs’ remaining
claims. Johnson v. Ford Motor Co., No. 3:13-6529, 2018 WL 1512377 (S.D.W. Va. Mar.
26, 2018). The district court first granted Ford’s motion to exclude the opinions of the
Plaintiffs’ three experts, Todd H. Hubing, Ph.D., Marthinus van Schoor, Ph.D., and Philip
Koopman, Ph.D., holding that their opinions were inadmissible under Rule 702 of the
Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993). And “the challenged expert opinions [were] critical to the remaining
summary judgment issues.” Id. at *1. Because the expert opinions failed to prove the
Plaintiffs’ theory of defect, the theory was “largely hypothetical.” Id. at *2.
As the district court explained, the Plaintiffs’ “theory is that many predictable
flaws may occur with the pedal sensors. Plaintiffs theorize that these flawed sensors
produce faulty voltage signals that should trigger the ETC system’s failsafe modes.
However, due to a defectively designed ETC system, the failsafe modes are not activated,
6
resulting in [UIAs].” Id at *3. Thus, “testing of ETC systems was central to the experts’
opinions.” Id at *2.
The district court found that the experts’ “testing was flawed, and Plaintiffs have
failed to establish other means by which their experts can meet the reliability standard.”
Id. The district court noted, for example, that the only peer-reviewed publication relied on
by the experts was a 2015 article by Dr. Hubing; however, the theory relied on in that
article had been discredited by two federal agencies, the National Highway Traffic Safety
Administration (“NHTSA”) and the National Aeronautics and Space Administration
(“NASA”). In analyzing the experts’ testing evidence, the court noted the continuing
failure of proof establishing any causal link:
Although Plaintiffs’ experts purport to test [Plaintiffs’ theory of defect],
they leave a gap between analytical possibility and actual proof of
occurrence. The experts attempt to excuse this gap by reporting that the
defect leaves no evidence of its effect. However, this position shifts the
burden to Ford to prove the negative. Furthermore, there is no “general
acceptance” within the automotive safety or engineering community that
underpins Plaintiffs’ theory. The causes of [UIA] are myriad. Some events
are attributable to driver error, while others are tied to different defects
from cruise control to mechanical issues. Even though many drivers’
complaints of [UIA] are credible and likely caused by some defects,
Plaintiffs’ theory here is still largely hypothetical . . . .
Id. at *3.
The district court examined each of the three experts’ individual opinions to
determine whether that opinion should be admitted into evidence. First, the court rejected
the opinion of Dr. Hubing 4 whose report was primarily based on the article noted above
4
Dr. Hubing is an electrical engineer and a professor at Clemson University.
7
and in which he examined five vehicles with ETC systems, including two Ford models, a
2005 Mustang and a 2006 Explorer. After comparing accelerator pedal performance of
the five vehicles, Dr. Hubing concluded that “Ford’s Gen II ETC system fails to
adequately mitigate accelerator pedal faults which can lead to” UIAs. J.A. 10873. In Dr.
Hubing’s opinion, this was “the most probable reason that Ford vehicles with this throttle
control system have high reported rates of” UIAs. J.A. 10873.
The district court found Dr. Hubing’s testing unreliable for two reasons. First, his
testing required making separate accommodations for the Ford vehicles he tested because
the testing “was developed to test vehicles with ’two track’ pedal sensors,” but the Ford
vehicles had “three track” pedal sensors. Johnson, 2018 WL 1512377, at *4. To
accommodate this difference, Dr. Hubing arbitrarily assigned a set value to Ford’s third
pedal without knowing how this affected Ford’s computer source code or software
program. In some cases, the set value he used for the third track intentionally caused the
vehicles to accelerate if one of the other two sensors’ values matched this set value.
Second, Dr. Hubing’s testing rested on questionable assumptions that lacked
evidentiary foundations. The voltages he injected into the ETC system purportedly
simulated real-world circumstances and actual vehicle conditions. But the voltage values
simply reflected Dr. Hubing’s “assumptions of what would happen” if factors such as a
worn sensor, loose connector, or tin whisker existed. Id. at *4 n.6. Furthermore, Dr.
Hubing’s testing revealed that UIAs occurred when two pedal sensors produced values of
a certain range, and those values were “close to the same . . . , as though each sensor was
faulting in the same way.” Id. at *4. But Dr. Hubing did not “offer any testing of sensors
8
to verify the assumption that both sensors should be expected to fault and that they do so
in the same way.” Id.
The court found that the sources supporting Dr. Hubing’s sensor assumption were
insufficient to be reliable. Dr. Hubing’s assumption was based on two sources: “first, by
reference to various documents, such as Ford’s CQIS database (complaints relating to
either pedal faults and/or [UIA]) and Ford’s design and development phases for the Gen
II ETC system; second, the inherent knowledge of the expert.” Id. The first source did
“little” to support Dr. Hubing’s assumption because these documents were “brief,
and very few reflect[ed] an inspection, testing, or analysis by a trained eye.” Id. As for
Dr. Hubing’s qualifications, those alone could not substitute for the lack of testing
evidence.
The district court found further problems with Dr. Hubing’s report, including that
“degraded sensors are not the defect, nor are they the only precipitating cause of [UIA],
according to Plaintiffs’ claim. However, Dr. Hubing’s theory of defect rests significantly
on the system’s inability to properly recognize and mitigate faulty sensors.” Id. Dr.
Hubing also had never tested the Plaintiffs’ actual vehicles or attempted to produce
voltages that would cause a UIA instead of simply injecting these voltages. Finally, the
NHTSA and NASA in 2011 had rejected his theory as lacking real-world evidence.
Based on all these findings, the court excluded Dr. Hubing’s opinion.
Next, the court considered the opinion of Dr. van Schoor who holds a Ph.D. in
aeronautics and astronautics. He opined that Ford’s accelerator pedal sensors are subject
to wear or “gunk” buildup, either of which “can lead to failure and erratic vehicle
9
behavior.” J.A.10972. The district court found three problems with this theory: (1)
Plaintiffs’ counsel “explicitly stated that Plaintiffs were not offering his opinion as to a
defect;” (2) Dr. van Schoor did not perform any inspections or surveys to support his
theory; and (3) he “did not attribute any of Plaintiffs’ [UIAs] to the problems he
identified in his report.” Johnson, 2018 WL 1512377, at *5. Thus, the court found his
theory irrelevant to the Plaintiffs’ theory of defect.
Dr. van Schoor also offered an opinion on an alternative vehicle design with BOA,
but the court did not examine this in depth because the availability of an alternative
design was not proof of the alleged defect.5 Based on these findings, the court excluded
Dr. van Schoor’s report.
The third expert at issue was Dr. Koopman, 6 who opined that a design defect made
Ford’s Gen II ETC system vulnerable to allowing UIAs. In support, Dr. Koopman tested
two Ford models, a 2005 Mustang and a 2006 Fusion, by injecting voltages into the
accelerator wiring harness as a substitute for the three accelerator pedal sensors. Similar
to Dr. Hubing’s testing, the injected voltages represented the voltages “likely produced
5
The district court’s holding is consistent with our precedent. See Sexton By and
Through Sexton v. Bell Helmets, Inc., 926 F.2d 331, 338 (4th Cir. 1991) (holding that the
simple availability of an alternative design at the time of trial “does not lead to the
conclusion that the design of the [product] was defective”); see also Edwards v. Bell
Helicopter Textron, Inc., 63 F. App’x 674, 680–81 (4th Cir. 2003) (per curiam)
(determining that the availability of an alternative design “was irrelevant to the proof” of
the strict liability and negligent defective design claims because the existence of an
alternative design could not have contributed to the alleged injury and therefore did not
establish that an alleged design defect in the product was a proximate cause of the alleged
injuries).
6
Dr. Koopman is a tenured Associate Professor in the Electrical and Computer
Engineering Department of Carnegie Mellon University.
10
by sensors degraded in one or more ways, such as from wear and tear, loose wires, and
water intrusion.” Johnson, 2018 WL 1512377, at *5. Next, he evaluated “actual vehicle
performance” by repeating this testing on a dynamometer 7 that was designed to simulate
an actual vehicle condition. Id. Based on the results of his testing, Dr. Koopman
concluded that a UIA occurs when two or more sensors produce voltages of a certain
range close to each other.
The district court found Dr. Koopman’s approach unreliable for much the same
reasons that it found Dr. Hubing’s opinion defective. The court noted that he did not test
or prove his assumption that two or more degraded sensors have produced or would
produce the voltages he used for his testing. Furthermore, Dr. Koopman purposely chose
arbitrary voltage inputs that would instruct the system to accelerate. Thus, his “testing
was an artificial demonstration that essentially mimicked intentional acceleration.” Id. at
*7, and was not a “realistic example of sensor faults” because it required multiple steps
“in a sequence that ha[d] no ‘real-world’ support.” Id.
Furthermore, the district court concluded “Dr. Koopman’s testimony, that
Plaintiffs’ complaints are consistent with his design defect opinion, is inadequate to tie
his opinions to this case.” The court explained why this was so:
First, [Dr. Koopman] relies on nothing more specific than the Consolidated
Complaint to understand Plaintiffs’ [UIAs]. Second, there are profound
inconsistencies between the general complaints and his opinions. Nearly
every Plaintiff described a failure of their brakes to counteract the [UIA],
7
Dynamometer is a “device for measuring mechanical force, or power, transmitted
by a rotating shaft.” Dynamometer, Encyc. Britannica (2018); see Maxwell Dynamometer
Co. v. United States, 386 F.2d 855, 859 (Ct. Cl. 1967).
11
yet in Dr. Koopman’s own testing procedure, the brakes restrained the
acceleration. Further, some Plaintiffs reported that their gas pedals were
moving up and down without a foot-on-pedal, a circumstance not replicated
in any of the tests done by Plaintiffs’ experts. If these Plaintiffs were right,
this pedal problem likely would be mechanical, perhaps caused by the
return spring.
Id. at *8 (internal citation omitted). Because his testing was not “a reliable basis” for his
opinions regarding the alleged defect, the district court excluded Dr. Koopman’s opinion.
Id.
The district court also found problematic that none of the Plaintiffs’ experts had
tested or inspected the Plaintiffs’ actual vehicles or attempted to connect their testing to
any of those vehicles. Instead, the Plaintiffs asserted the alleged ETC defect and experts’
opinions applied universally to all the thousands of vehicles in their purported class
despite Drs. Koopman’s and Hubing’s opinions that their testing results varied
significantly between individual vehicles and that the pedal sensors differed among the
class vehicles.
Once the expert opinions were excluded, the district court concluded that the
Plaintiffs had “no evidence of their core allegation that there is a design defect in Ford’s
Gen II ETC system.” Id. Insomuch as the Plaintiffs’ theory of defect was without an
evidentiary basis, they could not establish the existence of a defect and the necessary
element of causation. Accordingly, the district court granted summary judgment on all
remaining claims to Ford.
A group of the Plaintiffs now appeal, and this Court has jurisdiction under 28
U.S.C. § 1291.
12
II.
A.
We review summary judgment decisions de novo, see Campbell v. Hewitt,
Coleman & Assocs., Inc., 21 F.3d 52, 53 (4th Cir. 1994), and Daubert decisions for abuse
of discretion, see Nease v. Ford Motor Co., 848 F.3d 219, 228 (4th Cir. 2017). A district
court abuses its discretion if it makes an error of law or clearly erroneous factual finding.
See id. at 228.
The merits of the district court’s Daubert decision addressing the Plaintiffs’ proof
of their defect theory is our initial focus because their entire case hinges on the allegedly
defective ETC system as the cause of UIAs. UIAs alone do not substantiate their theory
because, as the Plaintiffs concede on appeal, many factors unrelated to an ETC system
could trigger UIAs. See, e.g., Opening Br. 31 (“[M]ultiple circumstances can initiate
unintended acceleration signals.”). Thus, to establish the existence of the alleged defect
and the requisite causal link between it and their UIAs, the Plaintiffs proffered the
opinions of the three experts, Drs. Hubing, van Schoor, and Koopman. As the district
court recognized, these experts’ opinions are “critical” to the Plaintiffs’ case because
their theory of defect is “largely hypothetical” without them. Johnson, 2018 WL
1512377, at *3. Accordingly, if the district court correctly excluded the expert opinions,
the Plaintiffs’ case fails because they would be “unable to prove the fundamental theory
of their case.” Id. at *9.
B.
13
The district court excluded the expert opinions under the Supreme Court’s
landmark precedent in Daubert, which established that under the Federal Rules of
Evidence “the admissibility of scientific evidence no longer was limited to knowledge or
evidence ‘generally accepted’ as reliable in the relevant scientific community.” Nease,
848 F.3d at 228 (citing Daubert, 509 U.S. at 588–89). Instead, Daubert held that courts
must evaluate proposed expert testimony according to Rule 702, which tasks a district
judge with “ensuring that an expert’s testimony both rests on a reliable foundation and is
relevant to the task at hand.” 509 U.S. at 597. This rule requires trial judges to conduct “a
preliminary assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that reasoning or methodology properly
can be applied to the facts in issue. . . . . Many factors will bear on the inquiry, and we do
not presume to set out a definitive checklist or test.” Id. at 592–93.
Under Rule 702, an expert’s testimony is relevant if it has “a valid scientific
connection to the pertinent inquiry.” Id. at 592. To be reliable, the testimony “must be
based on scientific, technical, or other specialized knowledge and not on belief or
speculation, and inferences must be derived using scientific or other valid methods.”
Oglesby v. Gen. Motors Corp., 190 F.3d 244, 250 (4th Cir. 1999) (citing Daubert, 509
U.S. at 590, 592–93).
In determining whether expert testimony is “sufficiently reliable to be admissible,”
a district court generally considers several factors:
First, “a key question to be answered in determining whether a theory or
technique is scientific knowledge that will assist the trier of fact will be
whether it can be (and has been) tested.” A second question . . . is “whether
14
the theory or technique has been subjected to peer review and
publication.” Publication regarding the theory bears upon peer review; “the
fact of publication (or lack thereof) in a peer reviewed journal will be a
relevant, though not dispositive, consideration in assessing the scientific
validity of a particular technique or methodology on which an opinion is
premised.” Third, “in the case of a particular scientific technique, the court
ordinarily should consider the known or potential rate of error.” Fourth, . . .
“‘general acceptance’” is . . . relevant to the reliability inquiry.
“Widespread acceptance can be an important factor in ruling particular
evidence admissible, and a known technique which has been able to attract
only minimal support with the community may properly be viewed with
skepticism.”
Nease, 848 F.3d at 229 (quoting Daubert, 509 U.S. at 593–94) (internal citations and
alterations omitted).
This list, however, is “not exhaustive,” and “‘neither necessarily nor exclusively
applies to all experts or in every case.’” Id. (quoting Kumho Tire Co. v. Carmichael, 526
U.S. 137, 141 (1999)). “[A]t bottom, the court’s evaluation is always a flexible one, and
the court’s conclusions necessarily amount to an exercise of broad discretion guided by
the overarching criteria of relevance and reliability.” Oglesby, 190 F.3d at 250. Thus, the
trial court has “broad latitude” in determining whether “Daubert’s specific factors are, or
are not, reasonable measures of reliability in a particular case.” Kumho Tire, 526 U.S. at
153. Here, the district court properly considered appropriate factors and did not abuse its
discretion in excluding the experts’ opinions based on their lack of relevance and
reliability.
C.
The Plaintiffs fail to show that the district court made “a clearly erroneous factual
finding” or “error of law” by excluding their expert witnesses. See Nease, 848 F.3d at
15
228. They argue that the district court did not consider certain Daubert factors, such as
the known or potential rate of error, or considered Daubert factors, like peer review, in an
inappropriate manner. This argument lacks merit, in part, because the Plaintiffs do not
identify a tangible error in the district court’s analysis. The district court was not under
any obligation to consider a certain factor or weigh factors it did consider in a particular
manner. See id. at 229. As noted earlier, the trial court’s inquiry is a “flexible one,” and it
exercises “broad discretion” in choosing which Daubert factors to apply and how to
consider them. Oglesby, 190 F.3d at 250; accord Nease, 848 F.3d at 229.
The Plaintiffs further argue that the court made conclusory findings and wrongly
assessed the expert opinions. We disagree. Contrary to the Plaintiffs’ assertion, our
review shows that the district court thoroughly reviewed the record, including the
experts’ reports and the depositions of these experts, to understand their testing, theories,
and methodologies. The court then provided a well-reasoned analysis of the experts’
theories and testing based on its consideration of relevant Daubert factors such as general
acceptance of a theory within a relevant field, peer review, and the scientific validity of
their underlying methodologies.
For example, the district court properly noted that Dr. Hubing’s testing method
was, at a minimum, suspect because it had been rejected by NASA and NHTSA. Further,
as the court pointed out, Dr. Hubing never tested any vehicle in actual conditions so all
his projections were purely theoretical. His “testing,” at least in part, seemed artificially
induced to produce a desired result and did not reflect real-world results from any vehicle
claiming a UIA. In sum, Dr. Hubing’s opinion was partly ipse dixit.
16
As for Dr. van Schoor, even without examining the merits of his testimony, the
Plaintiffs effectively pled him out of the case. During the district court proceedings, the
Plaintiffs stipulated “on the record that Dr. van Schoor will not offer defect opinions per
se.” J.A. 11934. Even more to the point, Plaintiffs’ counsel admitted Dr. van Schoor
failed to meet the necessary threshold of evidentiary reliability: “candidly I will concede
to the Court that he couches all of his conclusions in the form of a defect opinion.
Candidly I’ll say to the Court that I don’t know that Dr. van Schoor in this case tested his
opinions against the rigor that is required for Federal Rules of Evidence.” J.A. 11932.
Regardless, we find no abuse of discretion in the district court’s merits analysis of
Dr. van Schoor’s testimony for the reasons it explained. We simply note two salient
points from that analysis: Dr. van Schoor “performed no inspections nor surveys to
support his theory about contacting sensors” and “did not attribute any of Plaintiffs’
[UIAs] to the problems he identified in his report.” Johnson, 2018 WL 1512377, at *5.
Dr. Koopman’s testimony fares no better. As with the other experts, there is a
considerable gap between Dr. Koopman’s theory and any evidentiary proof of causation
related to an ETC defect and a UIA. The district court aptly recited the evidentiary failure
on Dr. Koopman’s part:
Dr. Koopman admits that in many of his tests, he injected faults with
voltages designed to produce pedal angles consistent with acceleration.
. . . Yet, nowhere does he validate his hypothesis that degraded
sensors, presumably to be expected, will actually cause or, in fact, have
produced faulty voltages in the way he arranged for his testing. . . . The
testing was an artificial demonstration that essentially mimicked intentional
acceleration. Dr. Koopman offers no testing of Plaintiffs’ vehicles, or the
exemplars he chose, to demonstrate how degraded sensors or the other
17
circumstances can produce similar voltages that result in unintended open
throttle.
Id. at *7 (internal citation omitted).
Further, the district court correctly observed that none of the experts tested any of
the Plaintiffs’ vehicles or any of the thousands of Ford vehicles in their purported class
which they allege had a UIA. Of the multitude of vehicles the Plaintiffs claim to be
defective, the record does not reflect they attempted to test even one vehicle purported to
have had a UIA, much less conduct such a test under real-world conditions. Most
importantly, none of the proffered expert opinions purport to tie their testing to any
alleged UIA so as to show the fundamental element of causation. To the contrary, the
Plaintiffs’ experts disclaimed any finding or opinion as to the causation of any specific
UIA. J.A. 1754 ([Counsel’s question to Dr. Hubing:] “But you can’t say that your
vulnerabilities that you identify actually cause the event in the plaintiffs’ vehicles,
correct? . . . [Answer:] In any one of those vehicles, no.”); J.A. 10196–97 ([Counsel’s
question to Dr. van Schoor:] “Have you identified any alleged unwanted acceleration
event occurring in a Ford vehicle that you have determined resulted from any of the
alleged defects or vulnerabilities that you have identified in your report? [Answer:] I have
not.”); see also J.A. 8922–23 ([Counsel’s question to Dr. Koopman:]“And then you don’t
go out to the vehicle to see if there are any other possible causes or explanation for their
claim; correct? . . . [Answer:] I have not physically examined the vehicles.”); J.A. 8925–
26 ([Dr. Koopman:] “What I am saying is that I see explanations consistent with software
18
and hardware defects, and I see that that’s consistent with my report. That’s all I have
been saying.”). 8
The court’s well-articulated analysis clearly distinguishes this case from Nease in
which the district court failed to act as a gatekeeper by not assessing the expert’s
reliability but leaving that question to the jury. See 848 F.3d at 231. Instead, the court
here faithfully performed its duty as a “gatekeeper” in the manner we approved in In re
Lipitor (Atorvastatin Calcium) Marketing, Sales Practices and Products Liability
Litigation (No II) MDL 2502, 892 F.3d 624, 631 (4th Cir. 2018). There, we upheld the
district court’s extensive analysis of the experts’ theories and testing, which formed the
basis of the court’s exclusion of several expert opinions, because that court, like the
district court here, properly “identified and articulated clear . . . concerns it had about the
manner in which [the expert] reached his conclusions.” Id. at 638. In approving the
district court’s analysis in In re Lipitor, we once more emphasized that “‘[m]any factors
will bear on the inquiry,’ and there is no ‘definitive checklist or test.’” Id. at 637 (quoting
Daubert, 509 U.S. at 593).
Having failed on their primary arguments, the Plaintiffs argue that the district
court mischaracterizes the experts’ testimony during depositions, but this argument
8
The district court found, as do we, the anomaly of the Plaintiffs’ theory at trial
that the ETC defect was universal to all the class vehicles, but that their experts own
laboratory testing showed significant differences between vehicles. As the district court
noted, “Dr. Hubing’s testing revealed significant differences between the two Ford
vehicles, which he asserts had identical ETC systems,” and yet, the Plaintiffs are
“inconsistent” because they “maintain the Gen II ETC system used by Ford is exactly the
same in all vehicles, but then they excuse results when it is not.” Johnson, 2018 WL
1512377, at *8.
19
simply channels the Plaintiffs’ disagreement with the district court’s findings. The
Plaintiffs essentially assert the district court erred by making findings that were favorable
to Ford or reaching conclusions that contradicted their portrayal of the expert opinions.
For instance, the Plaintiffs challenge the district court’s finding that when Dr. Hubing
was asked whether “he ever saw ‘dual faults occur in the same resistive ranges’ in the
‘real world,’ [he] ultimately answered no.” Johnson, 2018 WL 1512377, at *4. They
assert that this finding is erroneous because Dr. Hubing answered “no” to an entirely
different question. Our review of the record reveals that the district court’s finding is
correct. When Ford’s counsel asked Dr. Hubing whether he had ever “physically see[n] . .
. dual faults occur in the same resistive range,” he answered, “. . . how would we do
that?” because “physical evidence of two simultaneous faults occurring [in the real
world] . . . would be basically impossible to find.” J.A. 09335–36. Similarly, the
Plaintiffs’ other arguments related to the district court’s alleged mischaracterization
reveal no more than their disagreement with the district court’s findings or contrary
interpretation, and do not show that the court committed any error.
Once the opinions of the three experts were excluded, the district court necessarily
concluded that the Plaintiffs had “no evidence of their core allegation that there is a
design defect in Ford’s Gen II ETC system.” Johnson, 2018 WL 1512377, at *8. As the
court held, other evidence that the Plaintiffs recite, such as a software expert’s opinion
and Ford’s internal documents, does not prove their defect theory.
The Plaintiffs point to unverified reports of UIAs from Ford vehicle drivers, but,
as noted above, UIA alone does not prove the existence of a defect. Similarly, the
20
availability of an alternative vehicle design with BOA does not substantiate the Plaintiffs’
theory of defect because the alternative design’s mere availability does not prove that the
existing design is defective or could lead to a UIA. See Sexton, 926 F.2d at 337–38
(remanding for new trial where district court improperly allowed expert testimony of a
possible alternative design to substitute for evidence that was necessary to satisfy
plaintiff’s burden of showing a design defect); Edwards, 63 F. App’x at 680–81
(discussing the difference between the two types of evidence). The Plaintiffs further
direct our attention to Ford’s internal documents without discussing what these
documents specifically contain or how they prove the missing element of causation.
Instead, they generally argue that “the factual record in this case is rife with internal
documents demonstrating Ford’s knowledge of the defect.” Reply Br. 14. Like the
Plaintiffs’ other evidence, this generalized argument neither proves nor disproves their
theory of defect. Lastly, the Plaintiffs focus on the opinion of the software expert, Steve
Loudon, but the district court could not have considered this opinion because the
Plaintiffs admit that it was not available to the court and is not in the record. Thus, we
agree with the district court that after the expert opinions were excluded, the Plaintiffs
had no proof of a defect in Ford’s ETC system.
21
Because the Plaintiffs could not prove their theory of defect and thus fail to meet
the essential element of causation, we affirm the district court’s grant of summary
judgment on all claims to Ford. 9
III.
For the foregoing reasons, the district court’s Daubert and summary judgment
decisions are
AFFIRMED.
9
We find it unnecessary to assess the merits of the Plaintiffs’ claims dismissed
under Federal Rule of Civil Procedure 12(b)(6) because those claims are based on the
same unsubstantiated theory and suffer from the same lack of proof, although the district
court dismissed them for additional reasons not discussed here. Thus, even if those claims
had survived the Rule 12(b)(6) challenge, they would not have survived the district
court’s summary judgment rulings because all contain the same failure of proof.
Similarly, we find without merit the Plaintiffs’ argument that the district court
erred by granting summary judgment to Ford on their various state consumer protection
claims because those claims also fail for the reasons stated herein. The Plaintiffs argue
the court did not recognize that those claims simply require “the breach of a duty to warn
consumers of a known risk or danger or violation of a prohibition against misleading the
consumer.” Opening Br. 37. The Plaintiffs cannot establish the existence of a defect, let
alone its risk or danger. Ford does not have a duty to warn consumers of an unproven risk
or danger associated with a hypothetical and unproven defect.
22