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Brown v. BMW of North America, LLC

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

August 10, 2017

MARSHA RUDDELL BROWN, Plaintiff,
v.
BMW OF NORTH AMERICA, LLC, Defendants.

          ORDER

          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 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 Court's consideration.

         I.

         Standard

         “Motions 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.

         II.

         Relevant Background

         In 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.

         Thereafter, 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. 147.]

         III.

         Discussion

         Ms. 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 5.]

         In 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 ...


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