A recent appellate opinion from Georgia excluded the opinion of well-known biomechanical expert, Dr. Joseph Burton. Not only did Plaintiff lose her expert, the exclusion resulted in the manufacturer’s dismissal.
In Hughes v Kia Motors Corporation, Allene Hughes died as a result of a collision with a Mack truck. In an odd sequence of events, Hughes traveled the wrong way on a one-way street in her 2004 Kia Optima. Realizing her error, Hughes attempted to proceed through a cross-intersection in order to travel in the correct direction. A Mack truck, pulling a loaded fuel tanker, collided with the driver’s side of Hughes car. The collision caused the brake pedal to deform towards the passenger side of the vehicle jamming the accelerator in an applied position. The car traveled onto a nearby gas station, crossed back over the lanes of travel from where the Mack truck had traveled, struck two parked cars, ran through a fence, sideswiped a tree, struck three supporting posts for a carport awning and flagpole, and finally came to rest against a house.
Inside the vehicle, Hughes side air bag deployed. But, the driver’s airbag did not. It had previously deployed and not been replaced. Ms. Hughes suffered a traumatic brain injury. She was placed on life support and died the following day.
Ms. Hughes’ representative filed the lawsuit against the car manufacturer alleging the vehicle should have been equipped with a fuel flow shut-off device and a defect in the airbag deployment system. Plaintiff retained Ralph Cunningham as an accident reconstructionist. Dr. Burton was retained to determine Ms. Hughes cause of death.
Cunningham determined the speed of the Mack truck was between 10 and 24 mph at the point of impact. The collision was 12 degrees forward of perpendicular to the driver’s side. The region of greatest deformation was at the left A pillar of the vehicle. While the total delta v was 37.5 mph, Cunningham argued that the longitudinal delta v was only 8 mph. Interestingly, he did not calculate the lateral delta v since Plaintiff’s counsel did not request it.
Dr. Burton then opines that even though Ms. Hughes died of blunt force trauma to the left side of her head, the continued operation of the vehicle after the initial collision due to the accelerator being applied contributed to her head injuries and death. But, Dr. Burton had significant problems backing up his opinions during his deposition.
First, Dr. Burton miscalculated Cunningham’s speeds in his deposition. Second, Kia’s counsel was able to get Dr. Burton to agree to hypotheticals that called into question the reliability of Dr. Burton’s opinions. Key was Dr. Burton admitting that a 37 mph delta v (what Cunningham calculated was the delta v during the collision of the truck) could cause a fatal head injury.
After the deposition, Kia moved to exclude Dr. Burton and for summary judgment. The district court determined Plaintiff was required to demonstrate the lack of a shut-off switch was a substantial factor in Ms. Hughes fatal injury when the vehicle collided with the truck. The court determined Dr. Burton failed to explain the scientific basis for his opinion. Importantly, the court seized on Dr. Burton’s admission concerning the correct delta v and potential injury. Since Dr. Burton could not rule out the initial impact with the truck caused the fatal injury, his opinion was unreliable.
With Dr. Burton’s opinion gone, Plaintiff had no evidence as to when Ms. Hughes suffered her fatal injury – either at the time of the collision with the truck or when the vehicle collided with the many other objects due to the continued acceleration of the vehicle. That took out the claim related to the shut-off switch. Further, the air bag claim failed since the record contained evidence the driver’s air bag was not replaced after it previously had been deployed. This took care of the remaining claim. The appellate court affirmed the district court’s dismissal in its entirety.