NEALE et al v. VOLVO CARS OF NORTH AMERICA, LLC et al, 2:10-cv-04407, No. 274 (D.N.J. Mar. 4, 2013) (2024)

`
`Case 2:10-cv-04407-JLL-JAD Document 274 Filed 03/04/13 Page 2 of 5 PageID: 16669
`
`in the sunroof drainage systems in the following six Volvo vehicles models: S40, S60, S80, V50.
`
`V70 (model years 20034 to present), XC9O (model years 2003 to present), and V50 (model years
`
`2005 to present). Plaintiffs allege that the sunroof drainage systems in these vehicles harbored a
`
`defect which allows water to become entrapped within the passenger compartment floorpans,
`
`causing damage to the vehicles, including interior components, carpets, and safety-related
`
`electrical sensors and wiring. Plaintiffs further allege that Volvo had longstanding knowledge
`
`of a material design defect, based on Plaintiffs assertion that numerous consumer complaints
`
`existed as well as internal Volvo communications and Technical Service Bulletins issued by
`
`Volvo in an unsuccessful attempt to address the problem.
`
`On July 3, 2012, Defendants filed their pending Motions for Summary Judgement with
`
`respect to each named Plaintiff. (ECF Nos. 72, 73, 74, 75, 76, 77, 78, 79),
`
`In support of those
`
`Motions, Defendants included several statements about the National Highway Transportation
`
`Safety Administration (“NHTSA” or “Administration”). Subsequently, Plaintiffs retained Allan
`
`Kam to rebut the Defendants characterizations of the NHTSA’s investigative procedures and
`
`findings. Defendants filed the instant Motions to Preclude the Testimony and Expert Reports of
`
`Allan Kam (collectively “Def. Kam Mov. Br.”) on September 28, 2012. (ECF Nos. 219, 221,
`
`224, 226, 228, 230, 232, 234). Plaintiffs filed their Opposition to Defendants Motions on
`
`October 26, 2012. (ECF No. 239). Defendants filed a reply Brief on November 16, 2012 (ECF
`
`No. 252-261). The Motions to Preclude the Testimony and Expert Reports of Allan Kam are
`
`now before this Court.
`
`II.
`
`STANDARD OF REVIEW
`
`The admissibility of expert testimony is governed by Federal Rule of Evidence 702. That
`
`2
`
`

`
`Case 2:10-cv-04407-JLL-JAD Document 274 Filed 03/04/13 Page 3 of 5 PageID: 16670
`
`rule provides that an expert qualified by “knowledge, skill, experience, training, or education”
`
`may testify if: “(a) the expert’s scientific, technical, or other specialized knowledge will help the
`
`trier of fact to understand the evidence to determine a fact in issue; (b) the testimony is based
`
`upon sufficient facts or data; (c) the testimony is the product of reliable principles and methods;
`
`and (d) the expert has applied the principles and methods reliably to the facts of the case.” FED.
`
`R. EvID. 702.
`
`Expert testimony is admissible on the merits if it meets three requirements: qualification
`
`of the expert, reliability, and relevancy. Schneider ex rd. Estate of Schneider v. Fried, 320 F.3d
`
`396, 404 (3d Cir. 2003). The seminal case for the admissibility of expert testimony is Daubert v.
`
`Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), which requires that the trial judge “ensure that
`
`any and all scientific testimony or evidence admitted is not only relevant, but reliable.” ffl. at 589.
`
`Under Daubert, “[tjhis entails a preliminary assessment of whether the reasoning or methodology
`
`underlying the testimony is scientifically valid and of whether that reasoning or methodology
`
`properly can be applied to the facts in issue.” ii. at 592-93.
`
`Plaintiffs do not have to “prove their case twice—they do not have to demonstrate to the
`
`judge by a preponderance of the evidence that the assessments of their experts are correct, they
`
`only have to demonstrate by a preponderance of the evidence that their opinions are reliable,” jn
`
`re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994), abrogated on other grounds by
`
`General Electric Co. v. Joiner, 522 U.S. 136 (1997) (emphasis in original). As the Third Circuit
`
`has explained,
`
`The grounds for the expert’s opinion merely have to be good, they do not have to be
`perfect. The judge might think that there are good grounds for an expert’s conclusion
`even if the judge thinks that there are better grounds for some alternative conclusion, and
`
`3
`
`

`
`Case 2:10-cv-04407-JLL-JAD Document 274 Filed 03/04/13 Page 4 of 5 PageID: 16671
`
`even if the judge thinks that a scientist’s methodology has some flaws such that if they
`have been corrected, the scientist would have reached a different result. .
`
`III.
`
`DISCUSSION
`
`Plaintiffs offer Allan Kam’s (“Kam”) expert opinions to rebut alleged facts stated in
`
`Defendants’ Motion for Summary Judgement. Defendants argue that Kam’s opinions are not
`
`probative on any issue in the case (Def. Kam Mov. Br., 5). Further, Defendants contend that
`
`Kam’s opinions regarding the NHTSA’s investigative procedure and findings would not assist
`
`the trier of fact, and that Kam’s opinions regarding recalls and investigations by NHTSA are a
`
`matter of public record, and thus, do not require expert testimony, are irrelevant, and would not
`
`assist the trier of fact. The Court disagrees.
`
`Within their Motions for Summary Judgement, Defendants have presented several
`
`allegations of fact with regard to the NHTSA’s investigative procedure and findings pertaining to
`
`the alleged defect in the Class Vehicles. (ECF Nos. 72, 73, 74, 75, 76, 77, 78, 79). For example,
`
`Defendants claim that, “[the] NHTSA routinely refuses to find a safety related defect to motor
`
`vehicle safety where drivers have an opportunity to correct the problem before it becomes a
`
`safety risk.”(ECF No. 76-3, at 14-15) Defendants cite to four different NHTSA investigations to
`
`support this contention,
`
`Moreover, Defendants, in their Motions for Summary Judgement offer that, “[t]he
`
`National Highway Traffic Safety Administration (“NHTSA”) recently examined whether the risk
`
`of a water leak causing electrical systems to fail would create an unreasonable risk of an accident
`
`with respect to water leaks in 2004-2005 Volvo XC9O vehicles and found it did not,” (ECF No.
`
`76-3, at 13). “[The] NHTSA closed its investigation, finding that “[a] safety-related defect has
`
`not been identified at this time.” jçj. Plaintiffs object to the accuracy of the Defendants’
`
`4
`
`

`
`Case 2:10-cv-04407-JLL-JAD Document 274 Filed 03/04/13 Page 5 of 5 PageID: 16672
`
`classifications of NHTSA procedure, and have retained Kam, an expert in the regulatory process
`
`of automotive safety, to rebut the Defendants statements.
`
`When the Defendants chose to include NHTSA procedure in their Motion for Summary
`
`Judgement, Defendants made the Administration relevant as to this matter. Kam has been
`
`retained by Plaintiffs to specifically address the statements made by the Defendants about the
`
`conclusiveness the NHTSA closing an investigation. (Kam Dec. at ¶9-il). Kam’s opinion is
`
`helpftii in clarifying what can be properly ascertained by an NHTSA investigation; Specifically,
`
`what can be concluded from the NHTSA’s closing of an investigation after the Administration
`
`has found no safety related defect.
`
`Kam is qualified to present expert opinion as to the NHTSA’s investigative procedures
`
`and findings. Kam’s specialized knowledge of the NHTSA and their regulatory and safety
`
`evaluation procedures appropriately help the trier of fact understand a relevant matter in this
`
`case. Kam served as a decorated NHTSA enforcement official after having graduated with
`
`honors from The George Washington University School of Law in 1972, and has been active in
`
`regulatory matters pertaining to the NHTSA for over 37 years. (Kam Dec. at ¶J 3-7, Ex. 1).
`
`IV.
`
`CONCLUSION
`
`For the foregoing reasons, Defendants’ Motions to Preclude the Testimony and Expert
`
`Report of Allan Kam are denied, An appropriate Order accompanies this Opinion.
`
`Date:
`Orig.:
`cc:
`
`March Y,2013
`Clerk
`All Counsel of Record
`Hon. Mark Falk, U.S.M.J.
`File
`
`5