United States District Court, S.D. Indiana, Indianapolis Division
Jane Magnus-Stinson, Chief Judge
September 29, 2012, Plaintiff Marsha R. Brown was driving her
2007 Mini Cooper on a highway when her vehicle went off the
road, rolled into a ditch, and landed on its roof. As a
result, Ms. Brown sustained a cervical fracture, which left
her partially quadriplegic. Ms. Brown filed the underlying
cause of action for negligence against Defendant BMW NA of
North America (“BMW NA”). [Filing
No. 42.] BMW NA has a filed a Motion to Exclude All
Evidence Related to Human Subject Rollover Demonstrations
Conducted by Plaintiff's Counsel and Related Paper.
[Filing No. 120.] According to BMW NA, Ms.
Brown's counsel, David Scott, designed and led rollover
demonstrations using Ford Explorers for a previous automotive
product liability case to show that injuries suffered by that
plaintiff could have been prevented by an alternative design
of the restraint system. BMW NA believes that Mr. Scott will
attempt to improperly introduce evidence from those
demonstrations here, and it seeks to exclude it. Ms. Brown
opposes BMW NA's motion. [Filing No. 128.] For
the reasons detailed below, the Court GRANTS BMW NA's
2008, Mr. Scott was the plaintiff's counsel for Green
v. Ford Motor Co., No. 1:08-CV-0163-LJM-TAB, 2010 WL
1726620, at *1 (S.D. Ind. 2010), an automotive products
liability case. The plaintiff in Green was rendered
quadriplegic after he struck the end of a guardrail and
rolled down an embankment while driving his 1999 Ford
Explorer Sport on the highway. Id. The issue in that
case was “the extent to which the seat belt system . .
. could reasonably be expected to protect the occupants in a
rollover.” Id. Mr. Scott wanted to introduce
evidence of the demonstrations that he performed on Ford
Explorers that he claimed demonstrated that an alternative
design to the restraint system could have avoided the
plaintiff's injuries. Id. The district court
described Mr. Scott's demonstrations as follows:
In an attempt to demonstrate that [Ms.] Green's injuries
could have been avoided with the use of alternative designs,
counsel for [Ms.] Green arranged and performed tests on
exemplar vehicles. . . . On one occasion, [Mr. Scott]
performed a test on an alternative design for a restraint
system by using a 1997 Chrysler Sebring seat attached to a
white 1999 Ford Explorer Sport 4 x 4 2-door (the “White
Explorer”). [Mr. Scott] placed the White Explorer at
the top of an embankment and used a Bobcat loader to lift one
side of the White Explorer until it tipped over and rolled
down the embankment. [ ] [Mr.] Scott, directly participated
in the August 27, 2009, test as a live human surrogate. On
another occasion, [Mr. Scott] attempted a similar test with
another 1999 Ford Explorer. During this test, [Mr. Scott]
unsuccessfully tried to utilize a “screw test, ”
which involves taking the vehicle and driving the wheels up
one side of a ramp to cause the vehicle to rollover.
Apparently the vehicle could not obtain the requisite speed
to properly execute this maneuver. Therefore, [Mr. Scott]
executed another rollover from a stationary position with the
use of a fork lift. According to [the plaintiff], both tests
demonstrate that neither “dummy” was
“injured” with the use of an alternative design
and that, therefore, the tests prove that an alternative
design was available to Ford.
Id. The defendant moved to either disqualify Ms.
Scott or exclude the demonstrations. Id. at *6. The
district court ultimately found the evidence was inadmissible
to demonstrate replications of the accident because they were
not sufficiently similar to the accident. Id. at *2.
Mr. Scott and several others, including Gary Whitman,
co-authored a paper entitled “Rollover testing with
volunteer live human subject” (the
“Paper”), which was published in the
International Journal of Crash Worthiness. [Filing No.
120-2.] Mr. Whitman admitted that he discouraged Mr.
Scott from conducting the demonstrations using himself as the
human subject and at the time, was not aware that Mr. Scott
chose to move forward. [Filing No. 120-6 at 4.] Mr.
Whitman testified that Mr. Scott had jumped a lot of steps
that would not have been approved by a “human subject
testing board.” [Filing No. 120-6 at 4.] Mr.
Whitman also stated that after Mr. Scott chose to conduct
more rollover demonstrations, Mr. Whitman thought it was
important to publish this information. The Paper provides a
detailed analysis of the rollover demonstrations that Mr.
Scott performed and includes visuals of those demonstrations.
[Filing No. 120-2.]
Ms. Brown's Case
Brown filed this cause of action alleging that on September
29, 2012, she was driving her 2007 Mini Cooper in Martin
County, Indiana, when it went off the road, rolled into a
ditch, and landed on its roof. [Filing No. 42 at 4.]
She claims that the “seat belt system allowed her to
make injurious contact with the roof of the vehicle, ”
leaving her partially quadriplegic. [Filing No. 42 at
4.] She filed one count of negligence against BMW NA
arguing that “a properly designed seat belt system
would have prevented [her] from making contact with the roof
of her vehicle . . . .” [Filing No. 42 at 5.]
has now filed a motion asking the Court to exclude evidence
that relates to the demonstrations that Mr. Scott conducted
in preparation for Green and the subsequent Paper
detailing those demonstrations. [Filing No. 121 at
1-2.] BMW NA claims that “materials from the
demonstrations and Paper were included in the files of [Mr.]
Whitman and Dr. Sri Kumar (Plaintiff's biomechanical
expert).” [Filing No. 121 at 2.] The motion is
now ripe for the Court's review.