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UNITED STATES DISTRICT COURT DISTRICT OF MAINE

CONSTANCE FULLERTON, et al.,

) ) Plaintiffs ) ) v. ) ) GENERAL MOTORS CORPORATION, ) ) Defendant )

Docket No. 05-01-P-S

MEMORANDUM DECISION ON MOTIONS IN LIMINE

The defendant has filed two motions in limine and the plaintiffs one, all seeking to exclude or limit the testimony of various expert witnesses at trial. I deny all but a portion of one of the motions. I. Applicable Legal Standard Both parties seek to exclude expert testimony pursuant to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Defendant's Motion to Exclude or Limit Testimony of Plaintiffs' Expert, Neil Mizen, etc. ("Mizen Motion") (Docket No. 33) at 1; Plaintiffs' Motion in Limine to Preclude Portions of Testimony of Defendant's Experts Richard Keefer and David McKendry, etc. ("Plaintiffs' Motion") (Docket No. 35) at 5; General Motors' Motion to Exclude Testimony of Plaintiffs' Experts Related to Wear on Shift Lever, etc. ("Shift Lever Motion") (Docket No. 36) at 1. Daubert is often characterized as establishing the trial court as the "gatekeeper" for expert testimony. See 509 U.S. at 589 n.7. While it is now clear that the trial court's general "gatekeeping"

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function with respect to expert testimony that was set forth in Daubert applies to all expert testimony, not just that based on scientific knowledge, Kumho, 526 U.S. at 141, it is also clear that the specific analytic factors listed in Daubert "neither necessarily nor exclusively appl[y] to all experts or in every case," id. Relevant reliability concerns may focus on personal knowledge or experience, not just scientific principles. Id. at 148-49. "[T]he factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Id. at 150 (quoting with approval from the brief for the United States as Amicus Curiae). "[W]hether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine." Id. at 153. II. The Mizen Motion The defendant seeks to exclude the testimony of Neil Mizen, an expert witness designated by the plaintiffs, in the following specific respects: 1. To exclude any reference or testimony to an "illusory park" condition;1 2. To exclude testimony suggesting that the so-called "illusory park" condition did or may have occurred in connection with the plaintiffs' accident; 3. To exclude testimony . . . about why the car moved if it was left in the condition he calls "illusory park;" 4. To exclude testimony . . . about what the car would do if left in reverse or neutral at the accident site; 5. To exclude testimony . . . about his proposed alternative design; and 6. To exclude testimony . . . characterizing as a "defect" a condition common to automatic transmission vehicles in general. Mizen Motion at 1-2.

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It is clear from the context that the defendant seeks to exclude Mizen's use of this term to describe the condition rather than his proffering of an opinion or opinions about the condition itself.

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A. Item 1 The defendant states that "[i]t is undisputed that the transmission in the 1990 Cadillac can be placed so that the shift indicator is between `P' and `R,' while the park pawl at the transmission is engaged such that the transmission is actually in park." Id. at 3. It contends that Mizen characterizes this as a defective condition, which he calls "illusory park," and that this characterization is misleading. Id. at 3-4. It suggests that the word "illusory" "is apparently chosen to suggest that the car somehow tricks the operator into placing the transmission into that position," thereby attributing error to the car. Id. at 4. It asserts that this terminology "is not the result of objective, scientific analysis," in an attempt to bring its argument within the scope of Daubert, id., but the argument is really only that the term "illusory park"2 is so misleading that it will inevitably confuse the jury or be unduly prejudicial to the defendant. Contrary to the defendant's contention, it is not necessary that Mizen "rely on any industry standard, scholarly publication, research or scientifically valid analysis," id., to support his choice of a shorthand title for this condition. The defendant's speculations concerning Mizen's choice of words cannot provide the basis for exclusion of those words from the trial. My review of Mizen's report, Exh. A to Affidavit of Neil Mizen ("Mizen Aff.") (Docket No. 46), convinces me that his choice of words is both appropriate and descriptive. As explained in the report, and as can be explained to a jury through direct or crossexamination, the term does not suggest that the "car somehow tricks the operator into placing the transmission into that position." It refers to the state of mind of the operator who places the shift lever into a position allowed by the lever which will not necessarily achieve the result anticipated by the operator. The motion is denied as to the first item.

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I note that the term "illusory park" has been used to describe this condition in other cases. See, e.g., Miller v. Ford (continued on next page)

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B. Item 2 The defendant contends that "Mizen did literally nothing to connect the so-called `illusory park' phenomenon to the accident." Mizen motion at 5. Apparently, it takes the position that this makes any testimony from Mizen connecting the "illusory park" to Mrs. Fullerton's accident inadmissible. This is so, the defendant asserts, because Mizen "made no attempt to approach the accident site from the direction that Mrs. Fullerton did, or to maneuver the car in the driveway in the fashion she described. Id. Further, it asserts, "Mizen . . . did literally nothing to determine the conditions under which the vehicle would or would not remain stationary" in the position where Mrs. Fullerton described leaving it. Id. at 6. It finds further support for its position in the asserted fact that Mizen took photographs of the car during his investigation only from the rear, "where it is impossible to tell where the car is positioned relative to the road, the mouth of the driveway, and the crest of the driveway." Id. Contrary to the defendant's argument, these observations, if accurate, do not render Mizen's opinion inadmissible. At most, they go to the weight of his opinion testimony. The motion is denied as to the second item. C. Item 3 The defendant next argues that Mizen "did nothing to establish the conditions that would be required to disengage the park pawl so the car could move rearward, if in fact it had been left with the shift level between `P' and `R.'" Id. at 7. It contends that Mizen's opinion that engine vibration caused the level to move out of "Park" "is not based on any valid methodology," because Mizen "does not claim to have actually tested" this conclusion "nor does he supply any engineering basis for his opinion." Id. To the contrary, Mizen has stated that he was able to disengage the park pawl from the sprocket "with a very small

Motor Co., 184 F.R.D. 581, 582 (S.D.W.Va. 1999) (Ford vehicles); Pappas v. Ford Motor Co., 7 F.Supp.2d 22, 24 (D.D.C. (continued on next page)

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amount of force being applied to the selector lever," that he was able to accomplish such disengagement "using very slight force with one of my fingers," and that his opinion that engine vibration can exert sufficient force to cause this disengagement "when the selector lever is placed in various positions between park and reverse" is "[b]ased on more than 30 years of inspecting and testing hundreds of vehicles exhibiting this `Illusory Park' phenomenon." Mizen Aff.

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