United States District Court, D. Minnesota
Thomas J. Murray and Mary S. O'Neill, Thomas J. Murray & Associates, 111 East Shoreline Drive, Sandusky, Ohio 44870; Gregory N. McEwen and Peter J. Kestner, McEwen Law Firm, 5850 Blackshire Path, Inver Grove Heights, Minnesota 55076; and James L. Murray, Murray & Murray Co., L.P.A., 111 East Shoreline Drive, Sandusky, Ohio 44870, for Plaintiffs.
David R. Kelly, Jennifer K. Huelskoetter, and Michael R. Carey, Bowman and Brooke LLP, 150 South Fifth Street, Suite 3000, Minneapolis, Minnesota 55402; Elizabeth B. Wright, Thompson Hine LLP, 3900 Key Center, 127 Public Square, Cleveland, Ohio 44114; and Jennifer M. Mountcastle, Thompson Hine LLP, 41 South High Street, Suite 1700, Columbus, Ohio 43215, for Defendant.
MEMORANDUM OPINION AND ORDER
SUSAN RICHARD NELSON, District Judge.
This matter is before the Court on Plaintiffs' Motion to Appoint Professor Todd H. Hubing as an Expert Pursuant to Federal Evidence Rule 706 and to Amend the Scheduling Order [Doc. No. 136]. For the reasons set forth below, the Court denies Plaintiffs' Motion to the extent that it seeks appointment of Professor Hubing as an expert under Rule 706 and grants Plaintiffs' Motion to the extent that it seeks to amend the Scheduling Order.
II. FACTUAL AND PROCEDURAL BACKGROUND
This lawsuit arises from a single-vehicle accident involving Plaintiff Kari Sue Kramer on May 9, 2008. (Am. Compl. [Doc. No. 61] ¶¶ 1, 10.) Plaintiffs allege that the accident was the result of a sudden and unintended acceleration of the vehicle that occurred-or was not prevented-because of several defects in the vehicle. (See id. ¶¶ 10, 14-21.) These alleged defects include an electronic throttle control system ("ETCS") that opened the throttle without input from the driver, failure to include a failsafe mechanism, failure to include a brake override system, and failure to provide vacuum to the brake booster when the throttle is maintained in an open condition. (See id. ¶¶ 15-17, 20.) The Amended Complaint in this matter asserts eight causes of action against Defendant: strict liability for defective design (Count I), strict liability for failure to warn (Count II), negligent design (Count III), negligent failure to warn (Count IV), breach of warranty (Count V), negligence per se (Count VI), consumer fraud (Count VII), and loss of consortium (Count VIII). (Id. ¶¶ 1, 13-49.)
Defendant moved for summary judgment on these claims on the grounds that there is no evidence of a defect in the subject vehicle or any Ford vehicle that did or could cause the alleged unintended acceleration, Plaintiff Kari Sue Kramer never read the warnings that accompanied the vehicle, and Plaintiffs have not identified any fraud or misrepresentation that caused their damages. (See Mem. in Supp. of Def.'s Mot. for Summ. J. [Doc. No. 66] (filed under seal), at 1-2.) In support of its motion, Defendant argued that Plaintiffs' liability experts-Neil Hannemann, David Bilek, and William Berg-admit that they are unaware of a defect in the subject vehicle or any other Ford vehicle that did or could cause an unintended acceleration. (Id. at 1, 3.) At the same time, Defendant also brought three motions in limine to exclude those experts' testimony and opinions [Doc. Nos. 69, 75, 81].
While those motions were pending, Plaintiffs brought their motion seeking to have Professor Todd Hubing appointed by the Court as an expert witness and to amend the Scheduling Order. (See Mot. to Appoint Prof. Hubing as an Expert [Doc. No. 136] ("Pls.' Mot.") at 1-2.) Professor Hubing was the director of certain research conducted by Clemson University's International Center for Automotive Research regarding ETCSs and unintended acceleration. (See id. at 1; Transcript of Sept. 12, 2014 Mot. Hr'g [Doc. No. 173] ("Tr.") 29-34.) Plaintiffs' Motion was heard on September 12, at which time the Court heard testimony from Professor Hubing. While Professor Hubing had not yet completed his final report resulting from Phase IV of that research (which was the portion of the research in which a Ford vehicle was analyzed) at the time of the hearing, he did file a copy of his final report with the Court on October 16. (See Tr. 29-34, 46-52.) The purpose of the report, titled "Comparison of the AP-to-ECM Interfaces on Vehicles with Low and High Reported Rates of Unintended Acceleration" (the "Report"), is summarized as follows:
[The Report] examines the [accelerator pedal]-to-[engine control module] interfaces of five vehicles equipped with electronic throttle control systems.... The purpose of the study is to identify any differences in the [accelerator pedal]-to-[engine control module] interfaces of vehicles with high reported rates of unintended acceleration compared to vehicles with low reported rates of unintended acceleration. The study does not attempt to identify the root causes of unintended acceleration; however it points out important design issues that suggest a set of best practices for electronic throttle control design.
(Technical Report [Doc. No. 174] at 3.) The parties subsequently filed limited supplemental briefing regarding the relevance of the Report to this lawsuit. In light of the subject matter of the Motion, the Court denied Defendant's motion for summary judgment and motions in limine without prejudice and without reaching the merits. (Order dated Aug. 20, 2014 [Doc. No. 166] at 3.)
A. Motion for Court-Appointed Expert
Plaintiffs request that the Court appoint Professor Hubing as an expert witness in this case pursuant to Rule 706 of the Federal Rules of Evidence. (Pls.' Mot. at 1.) Defendant, on the other hand, argues that Professor Hubing is not a proper court-appointed expert because he is not impartial. (Def.'s Mem. in Opp. to Appointment of Todd H. Hubing as Rule 706 Expert and to Amending the Scheduling Order [Doc. No. 157] ("Def.'s Opp.") at 1.) Defendant also argues that his testimony will be ...