Brown v. Miska

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 95-40758 Summary Calendar _______________________

DORISTEEN BROWN,

Plaintiff-Appellant,

versus

KATHY MISKA, ET AL.,

Defendants,

MITSUBISHI MOTOR SALES OF AMERICA, INC.,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (CA-V-94-067) _________________________________________________________________

August 29, 1996

Before JONES, JOLLY, and STEWART, Circuit Judges.

PER CURIAM:*

Doristeen Brown (“Brown”) appeals the district court’s

decisions to strike her expert’s proposed testimony and to award

summary judgment to Mitsubishi Motor Sales of America, Inc.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. (“Mitsubishi”) on Brown’s product liability claims. Finding no

error in these decisions, this court AFFIRMS.

BACKGROUND

On June 1, 1992, while driving her son’s 1990 Mitsubishi

Galant in Victoria, Texas, Brown was rearended by another driver,

Cathy Miska (“Miska”). Upon impact, the seatback of Brown’s car

twisted somewhat, leaving the left side of the seat farther forward

than the right. Brown moved the seatback into an upright position

before she left the accident scene.

After the accident, Brown had the Mitsubishi repaired.

During the course of repairs, Brown complained that the seat back

had not been properly restored and adjusted, so the entire driver’s

seat was replaced. Brown did not preserve the original seatback or

the recliner mechanism. As a result, neither is available for

analysis or study.

Brown filed suit against both Miska and Mitsubishi for

the injuries she allegedly sustained during this accident. Brown

has settled her claims against Miska and seeks recovery from

Mitsubishi, alleging that the seat back of the car was defectively

manufactured and that this defect proximately caused serious

injuries to her back.

To support her claims against Mitsubishi, Brown relies on

the purportedly expert testimony of David F. Cox (“Cox”), an

engineer, who testified that the Mitsubishi seatback was defective.

2 Even though Cox was unable to examine either the seatback or

recliner mechanism involved in the collision, he nonetheless

concluded that the seatback was defective. Cox apparently reached

this conclusion by examining a model seat provided by Brown’s

attorney and by relying exclusively on the attorney’s version of

the accident. Indeed, Cox never reviewed Brown’s deposition

testimony, did not calculate the speed or acceleration of either

vehicle in the accident, and did not determine the magnitude of the

force that might have impacted the seatback during the collision.

Brown seeks to bolster Cox’s perfunctory conclusions

through evidence that the replacement seat did not bend or collapse

during a subsequent collision on April 25, 1993. In this

collision, Brown was hit from behind by a pickup truck while her

vehicle was stationary. Brown asserts that the fact that the

seatback survived this accident demonstrates that the original

seatback was defective. However, Brown did not produce any expert

testimony analyzing or otherwise comparing either the two

collisions or the two seatbacks.

After considering Brown’s evidence, the district court

granted Mitsubishi’s motion to strike Cox’s expert testimony as

well as its motion for summary judgment on Brown’s products

liability claims.

DISCUSSION

I. Striking the Expert Testimony

3 This court will disturb a trial court’s ruling regarding

the admissibility of expert testimony only if the ruling is

manifestly erroneous. See U.S. v. Moore, 997 F.2d 55, 57 (5th Cir.

1993); Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109

(5th Cir. 1991); Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 280

n.32 (5th Cir. 1987), cert. denied, 484 U.S. 851, 108 S. Ct. 152.

Before an expert witness will be allowed to opine, “the

trial judge must ensure that any and all scientific testimony or

evidence admitted is not only relevant, but reliable.” Daubert v.

Merrell Dow Pharmaceuticals, Inc., ___ U.S. ___, ___, 113 S. Ct.

2786, 2795 (1993); see also E.I. Du Pont De Nemours & Co. v.

Robinson, 38 Tex. Sup. Ct. J. 852 (1995) (applying the Daubert

inquiry to trials in Texas state courts). As a result, the

district court will engage in a “preliminary assessment of whether

the reasoning or methodology underlying the testimony is

scientifically valid and of whether that reasoning or methodology

can properly be applied to the facts in issue.” Daubert, ___ U.S.

at ___, 113 S. Ct. at 2796. The focus of this assessment “must be

solely on principles and methodology, not on the conclusions that

they generate.” Id.1

In the instant case, because the proffered expert

testimony was premised on specious, questionable, and unscientific

1 There is a serious question whether Cox’s background qualified him to testify as an expert on the subject of defective automobiles, but the district court did not predicate his opinion on that point, and neither do we.

4 methodology, the district court properly refused to admit the

testimony. As discussed earlier, not only did Cox not examine

either the allegedly defective seatback or recliner mechanism, but

also he never reviewed Brown’s deposition testimony, did not

calculate the speed or acceleration of either vehicle in the

accident, and did not determine the force caused by the collision.

Indeed, his only understanding of the collision was developed

exclusively by conversations with Brown’s attorney. Since Cox did

not engage in either sound scientific analysis or reasoning, the

district court correctly surmised that his methodology and expert

opinions were not only untestable, but also inherently unreliable.

II. Summary Judgment on Products Liability

As has been frequently explained, this court reviews the

district court's grant of summary judgment de novo, employing the

same criteria used in that court. Burfield v. Brown, Moore &

Flint, Inc., 51 F.3d 583, 588 (5th Cir. 1995). Summary judgment is

proper only "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law." Fed. R. Civ. P. 56(c). The nonmovant must do

more than merely raise some metaphysical doubt as to the material

facts. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574,

5 586, 106 S. Ct. 1348, 1355 (1986).

In Texas, Brown’s claim that the Mitsubishi seatback was

defective requires that she demonstrate that a manufacturing flaw

existed in the seatback when the car left Mitsubishi’s possession

and that this flaw proximately caused her injuries. See, e.g.,

Fitzgerald Marine Sales v. LeUnes, 659 S.W.2d 917, 918 (Tex. App.--

Dallas 1983, writ dism’d). In order to satisfy this burden, Brown

is required to produce expert testimony supporting the existence of

a defect; without such testimony, Brown cannot reach the jury.

See, e.g., Hernandez v. Nissan Motor Corp., 740 S.W.2d 894, 895

(Tex. App.--El Paso, 1987, writ denied) (“No expert witness of any

sort was presented as to any defect that the automobile might have

had . . . The mere fact that an accident occurred is not sufficient

proof that the automobile was defective.”); Selig v. BMW of N. Am.,

Inc., 832 S.W.2d 95, 99-100 (Tex. App.--Houston [14th Dist.] 1992,

no writ). Brown has failed to produce such admissible expert

testimony and, as a result, has not created a triable issue of fact

for the jury concerning the alleged defect.

This failure is not cured by Brown’s assertion that since

the replacement seatback survived a subsequent collision, the

original seatback must have been defective. As discussed earlier,

the sparse description that Brown provides of her subsequent

accident is not probative of her claim against Mitsubishi. Brown

has not produced expert testimony comparing the two accidents and

6 supporting her assertion that the original seatback was defective.

Absent rank speculation, since the two accidents were never

analyzed in any detail, it is not possible for reasonable minds to

conclude that the original Mitsubishi seatback was defective from

what little is known about the second accident or replacement

seatback. Under such circumstances, a jury could not find that a

preponderance of the evidence demonstrates that the original

seatback was defective and, therefore, the decision of the district

court to grant summary judgment to Mitsubishi was proper.

CONCLUSION

For the foregoing reasons, the decisions of the district

court to strike Brown’s proffered expert testimony and to award

summary judgment to Mitsubishi on Brown’s products liability claims

are AFFIRMED.