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Pertile v. General Motors, LLC

United States District Court, D. Colorado

September 15, 2017

GENERAL MOTORS, LLC, a Delaware limited liability company, TRW VEHICLE SAFETY SYSTEMS, INC., a Delaware corporation, KELSEY- AYES COMPANY, a Delaware corporation, Defendants.


          William J. Martínez United States District Judge

         This case arises out of a rollover accident in which Plaintiff Daniel Pertile was the front seat passenger in a Chevrolet Silverado pickup truck. (See generally ECF No. 31.) Mr. Pertile was badly injured, and in this action Plaintiffs bring suit against General Motors, LLC (“GM”), TRW Vehicle Safety Systems, Inc., and Kelsey-Hayes Company (“Kelsey-Hayes”), advancing claims for strict liability, negligence, breach of warranties, violation of the Colorado Consumer Protection Act, and loss of consortium.

         Now before the Court are Defendant Kelsey-Hayes Company's Motion to Exclude Steve Loudon's ESC Opinions (ECF No. 198) and Defendant General Motors LLC's Motion to Exclude the Testimony of Steven Loudon (ECF No. 203). For the reasons explained below, both motions are granted in part.


         A district court must act as a “gatekeeper” in admitting or excluding expert testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2004). Admission of expert testimony is governed by Rule 702, which provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. The proponent of the expert testimony bears the burden of proving the foundational requirements of Rule 702 by a preponderance of the evidence. United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009).

         An expert's proposed testimony also must be shown to be relevant and otherwise admissible. See Adamscheck v. Am. Family Mut. Ins. Co., 818 F.3d 576, 588 n.7 (10th Cir. 2016). To be relevant, expert testimony must “logically advanc[e] a material aspect of the case” and be “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” United States v. Garcia, 635 F.3d 472, 476 (10th Cir. 2011) (brackets in original).

         While an expert witness's testimony must assist the jury to be deemed admissible, Fed.R.Evid. 702(a), it may not usurp the jury's fact-finding function. See Specht v. Jensen, 853 F.2d 805, 808 (10th Cir. 1988). The line between what is helpful to the jury and what intrudes on the jury's role as the finder of fact is not always clear, but it is well-settled that “[a]n opinion is not objectionable just because it em braces an ultimate issue.” Fed.R.Evid. 704.

         The trial court's focus under Rule 702 is on the methodology employed by an expert, not on his or her conclusions. Bitler, 400 F.3d at 1233. Ultimately, “the rejection of expert testimony is the exception rather than the rule.” Fed.R.Evid. 702 advisory committee's note. “[T]he trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system. . . . Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Id. (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993)). Nevertheless, when an expert's conclusion “simply does not follow from the data, a district court is free to determine that an impermissible analytical gap exists between premises and conclusion.” Bitler 400 F.3d at 1233. The Court therefore may properly exclude expert testimony “that is connected to existing data only by the ipse dixit of the expert.” Id. at 1238 (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)).


         Detailed background of this case has been set out in other orders and is not repeated here. In relevant summary, Plaintiff was the passenger in a Chevrolet Silverado 2500HD pickup truck (the “Vehicle”) during a single vehicle rollover on February 25, 2013 (the “Rollover, ” or the “Crash”). Among other theories of liability, Plaintiffs claim that the Vehicle's Electronic Stability Control (“ESC”) system was defective and therefore seek damages from both Kelsey-Hayes, which manufactured the control module of the Vehicle's ESC system, and from GM, which manufactured the Vehicle. (See ECF No. 237 at 8.)

         Pursuant to Federal Rule of Civil Procedure 26(a)(2) and Federal Rule of Evidence 702, Plaintiffs disclosed Mr. Steven Loudon to testify as an expert “in the field of Electronic Stability Control (ESC) Systems, including evaluation of designs and design alternatives, and design, development, testing and analysis of hardware and software that has been used in automobile control systems.” (ECF No. 199-3 at 4.) As described by Mr. Loudon, ESC “functions to detect when the vehicle is beginning to skid or spin. It will then use the brake control system and the engine management system to correct the skid or spin, allowing the driver to regain control of the vehicle. ESC is the combination of ABS [anti-lock braking system], Traction Control (‘TC') and Yaw Stability Control (‘YSC') on the Electronic Brake Control Module (‘EBCM') and is together referred to by GM as ‘Stabilitrak.'” (ECF No. 198-6 at 10.)

         Mr. Loudon opines that “Electronic Stability Control (‘ESC') is a critical safety feature in any motor vehicle, ” and provides a lengthy exposition of how ESC systems work, and why he opines they are highly effective and beneficial, particularly in preventing incidents such as the Rollover here. (Id. at 10-20.) Regarding the Vehicle's ESC system in this case, he opines that “the performance of the system complies with the applicable standards” under federal regulations, that “[t]est reports and videos show the vehicle met all of GM's internal requirements, ” and that “the system was demonstrated to be capable of dealing with emergency evasive maneuvers if the systems [sic] is available and not in a fault state.” (ECF No. 203-6 at 21.)

         Mr. Loudon's report goes on to explain his opinion that the Vehicle in this case “intermittently experienced ESC disabling faults including on the day of the accident.” (Id. at 22-36.) Mr. Loudon explains how, relying on the “diagnostics of the inputs and outputs of the system, ” and on results from a vehicle inspection, he reviewed the recorded “faults or DTCs” stored in the vehicle's ESC system after the Crash. (Id. at 22.) Mr. Loudon's report reflects that 11 faults “were found stored in the EBCM [electronic brake control module] and extracted.” (Id. at 24.) He then walks through the recorded data regarding each of these 11 faults. (Id. at 24-32)

         Mr. Loudon's conclusion, in part, is that of the 11 total faults recorded, “four . . . were set after the accident, during the vehicle inspections, ” and “three . . . were active during the ignition cycle of the accident-faults #1, #9, and #10. These faults inhibit the operation of the Electronic Stability Control (ESC) function of the Electronic Brake Control Module.” (Id. at 33.) He further concludes that “[t]here were at least 4 faults that had occurred sporadically in the ignition cycles prior to the accident, ” of which “three . . . are faults of the steering wheel angle sensor (#5, #6, and #8) which is a primary input to the Electronic Stability Control system.” (Id.) Additionally, Mr. Loudon concludes that “of the faults that occurred during the . . . accident, Fault #1 . . . indicates that it had occurred 48 times since codes were last cleared. This shows that the diagnostic sub-function of the EBCM is intermittently detecting faults which in turn will turn the ESC light on during one ignition cycle and then it would be off in following ignition cycles. When this happens on a regular basis, a driver will begin to ignore the warnings.” (Id. at 34.) He explains that “[t]he steering sensor appears to be particularly unreliable, ” given that 4 of the 11 total faults are related to the same sensor, and these occurred “between the ignition cycle . . . of the accident[] and 58 ignition cycles prior to the last vehicle inspection.” (Id.)[1]

         Given this analysis, Mr. Loudon concludes that the Vehicle had a “history of random intermittent faults” that would have disabled the ESC system, including at the time of the accident:

[T]his vehicle has a history of random intermittent faults that directly affect the functioning of the [ESC] system. It is my opinion that the ESC light was intermittently and randomly turning on and disabling the ESC function. Further, it is my opinion that the three faults, #1, #9, and #10 [were] active in the ignition cycle of the accident and prevented the ESC system from being available to the driver when he needed to make an evasive maneuver.

(Id. at 34.) Mr. Loudon therefore opines that “the ESC system's availability had become unreliable, ” that “[w]ith all these [fault] codes, causing lights to come on intermittently, it is no wonder that the driver began ignoring the warnings, ” and that the driver “would not have noticed the fact that the system was disabled. (Id. at 24-35.) He further opines that the dashboard warnings provided by the ESC system in this Vehicle were “inadequate to convey that there is a safety problem with the vehicle.” (Id. at 35.)

         Further, the parties do not dispute, for present purposes, that the Vehicle's ESC system was in fact disabled at the time of the Crash in this case. Mr. Loudon therefore addresses the lack of functioning ESC as a cause of the accident in this case, opining that “[i]f the ESC function had been available. . . . it would have aided the driver in regaining control of [the] vehicle and the accident would have been avoided” (id. at 34), that “[i]f the driver had the benefit of a functioning ESC system, the driver would not have ...

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