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Brown v. BMW of North America, LLC

United States District Court, S.D. Indiana, Indianapolis Division

March 20, 2017



          Hon. Jane Magnus-Stinson, Chief Judge

         On 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 Motion.


         Relevant Background

         A. Rollover Demonstrations

         In 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.

         Thereafter, 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.]

         B. Ms. Brown's Case

         Ms. 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.]

         BMW NA 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.



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