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 of North
America, LLC (“BMW NA”). [Filing No.
42.] On March 30, 2017, the Court issued an Order
granting BMW NA's Motion to Exclude All Evidence Related
to Human Subject Rollover Demonstrations Conducted by
Plaintiff's Counsel and Related Paper. [Filing No.
136.] Presently pending before the Court is Ms.
Brown's Motion to Reconsider the Court's Ruling.
[Filing No. 147.] The motion is now ripe of the
to reconsider ‘are not replays of the main
event.'” Dominguez v. Lynch, 612 Fed.Appx.
388, 390 (7th Cir. 2015) (quoting Khan v. Holder,
766 F.3d 689, 696 (7th Cir. 2014)). A motion to reconsider is
only appropriate where the Court has misunderstood a party,
where the Court has made a decision outside the adversarial
issues presented to the Court by the parties, where the Court
has made an error of apprehension (not of reasoning), where a
significant change in the law has occurred, or where
significant new facts have been discovered. Bank of
Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185,
1191 (7th Cir. 1990) (citation omitted). Because such
problems “rarely arise, ” a motion to reconsider
“should be equally rare.” Id.
2008, Ms. Brown's counsel, David 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. In preparation for that case, Mr. Scott
personally participated in rollover demonstrations using a
Ford Explorer with an alternative design in the restraint
system to demonstrate that an alternative design could have
avoided the plaintiff's injuries. Id. The
district court in Green held that the evidence was
inadmissible. Id. at *2.
Mr. Scott and several others 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.] The Paper provides a detailed
analysis of the rollover demonstrations that Mr. Scott
performed and includes visuals of those demonstrations.
[Filing No. 120-2.] BMW NA 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.] On March 30, 2017, the
Court issued an Order granting BMW NA's Motion.
[Filing No. 136.] Ms. Brown has now filed a Motion
to Reconsider the Court's Ruling. [Filing No.
Brown asks the Court to reconsider its ruling to exclude
evidence regarding the rollover demonstrations detailed in
the Paper, or in the alternative, permission to reference the
Paper and show a modified video from the rollover
demonstrations. [Filing No. 136.] According to Ms.
Brown, for the Paper to be admissible, there only needs to be
a “‘substantial similarity' between the test
and the circumstances at issue.” [Filing No. 147 at
2.] Ms. Brown argues that a properly designed belt
system would have kept her from making injurious contact with
the roof, and that the Paper discussed two methods utilized
during testing that would limit the “slack” in
the seat belt system in a rollover. [Filing No. 147 at
3.] In addition, she claims that the Paper also fulfills
the criteria of “testing conducted to illustrate
scientific principles.” [Filing No. 147 at 4.]
Lastly, Ms. Brown argues that “[s]howing [the] high
speed video of only the camera viewing the seat and the seat
belt latch is necessary to rebut testing conducted by BMW
NA's experts. . . .” [Filing No. 147 at
response, BMW NA argues that Ms. Brown provides no legal
basis in support of her motion. [Filing No. 155 at
3.] BMW NA argues that Ms. Brown has failed to show any
error of law or fact in the Court's Order, and has
instead, “filed an additional brief rehashing
previously raised and rejected arguments, and setting forth
additional arguments that do not change the outcome and that
could have been raised . . . in response to BMW NA's
motion.” [Filing No. 155 at 4.] BMW NA claims
that even considering Ms. Brown's arguments, the Court
found that Mr. Scott, who conducted the rollover
demonstrations, is not an engineer or an expert in automotive
safety. [Filing No. 155 at 5.] BMW NA contends that
the rollover demonstrations are “unreliable, not
scientifically valid, and were a case-specific attempt to
recreate the accident” in Green. [Filing
No. 155 at 5.] Lastly, BMW NA argues that ...