Northern California Record

Sunday, October 13, 2019

Ford seeks to exclude plaintiffs' auto mechanic expert in transmission MDL, saying scientific knowledge not there as Daubert requires

Federal Court

By Rich Peters | Oct 3, 2019


Birotte

LOS ANGELES – U.S. District Judge Andre Birotte Jr. last week denied summary judgment sought by Ford Motor Co. in multi-district litigation involving transmission issues with Focus and Fiesta models, but he will allow further hearing on the company's moves to exclude certain plaintiff expert witnesses.

The auto giant is fighting the lemon law actions consolidated last year at the Central District of California which allege power shift transmission are prone to delayed acceleration and downshifting and that some vehicles have crashed.

In one of the dozens cases pending before Birotte, Ford argued plaintiff Christi Brown's fraud claims should be barred by the statute of limitations because within six months of her June 2014 purchase, "she was aware of facts that would have caused a reasonable person to at least suspect she might have a cause of action—partly because a plaintiffs’ firm wrote her to tell her so," but that she did not file her complaint until more than three years after that date. 

Lawsuits in the MDL allege that transmissions in the 2012-2016 Ford Focus and the 2011-2016 Ford Fiesta are defective, particularly claiming that dual-clutch DPS6 PowerShift transmissions tend to shudder, slip, jerk, hesitate and suffer other problems.

Plaintiff firms include Kiesel Law of Beverly Hills, Strategic Legal Practices of Los Angeles, Knight Law Group of Los Angeles, Consumer Legal Remedies APC of Beverly Hills, and others.  

Ford is represented by Gordon Rees Sully Mansukhani of San Francisco, Shook Hardy & Bacon of San Francisco, Dykema Gossett of Ann Arbor, Mich., and others. 

In a series of Daubert motions that Birotte will hear toward the end of the month, Ford argues that plaintiffs' expert witnesses are unreliable. In Brown's case, Ford seeks to exclude automotive service technician Randall Bounds.

“...Bounds...has experience fixing cars, but he is not qualified to opine on value and safety, and his ‘opinions’ are nothing more than pure guesswork with no valid basis,” states Ford in its memorandum of points and authorities to exclude Bounds' testimony. 

“His opinions are not supported by any facts or analysis, and he does not cite a single source to support whatever ‘methodology’ he applied," the memorandum states. "In addition to being unreliable, his opinions would not be helpful to the jury, as they amount to little more than thinly veiled legal conclusions on ultimate issues and are not based on any specialized knowledge or expertise. Bounds does not come close to employing the ‘level of intellectual rigor that [Rule] 702 requires’ for the admission of expert testimony.”

The memorandum further explained that Daubert requires “scientific knowledge” which necessitates opinions to be the product of reliable principles and methods.

“'This argument suggests that so long as an individual has sufficient expertise to address an issue it is permissible to offer ultimate conclusions on that subject without offering any expert's opinions were reached or the methodology that was used,'" it quoted. "'That is not the law.”

An expert witness may offer opinion testimony only if: “(1) the testimony is based upon 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 to the facts of the case,” the memorandum states.

To be admissible under this rule, the testimony must be given by an expert witness who is qualified “by knowledge, skill, experience, training, or education,” Ford argues.

In seeking summary judgment, which Birotte denied, Ford argued in the case of Mary Cannon that the plaintiff failed to respond to written discovery, could not prove claims for intentional or negligent misrepresentation and could not prove any alleged transmission defects. Ford further argued that claims for punitive damages should be dismissed because plaintiffs do not "have clear and convincing evidence that any act that harmed her was committed, authorized, or ratified by a Ford officer, director, or managing agent," the motion stated.

Birotte will hear arguments at 9 a.m. on Thursday, Oct. 24. 

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