Bolt v. Ford Motor Co.

          MEMORANDUM OPINION^[1]

          STACI G. CORNELIUS U.S. MAGISTRATE JUDGE

         This is a products liability action brought by Michael Bolt against Ford Motor Company. It is before the undersigned on Ford's (1) motion to exclude the expert opinions of Russell Dunn, Ph.D. (Doc. 40), (2) motion to exclude the expert opinion of Charlie Miller (Doc. 42), (3) motions to exclude the expert opinions of Andrew Webb (Docs. 44 & 45), (4) and motion for summary judgment (Doc. 46). For the reasons discussed below, Ford's (1) motion to exclude the expert opinions of Dr. Dunn is due to be granted in part and denied in part as moot, (2) motion to exclude the expert opinion of Miller is due to be granted, (3) motions to exclude the expert opinions of Webb are due to be denied as moot, and (4) motion for summary judgment is due to be granted.

         I. Background & Facts^[2]

         As Bolt approached the top of Henry Road in Anniston, Alabama on March 29, 2014, his 2002 Ford Taurus began to accelerate even though he had released the accelerator pedal. (Doc. 48-2 at 47). He slammed the brakes, but they did not respond, and he lost control of the vehicle. (Id.; Doc. 48-17 at 4). The vehicle struck a tree, and Bolt sustained brain, pelvic, and lower limb injuries. (Doc. 48-1 at 3; Doc. 48-17 at 7).

         Bolt attributes the sudden, unintended acceleration of his vehicle and the resulting crash to an alleged defect in the design of the vehicle's speed control cable retention collar. (Doc. 1 at 5; Doc. 51 at 2).^[3] Based on this alleged defect, he commenced this action, asserting a claim against Ford under the Alabama Extended Manufacturer's Liability Doctrine (the “AEMLD”), as well as claims for negligence, negligent failure to warn, wantonness, wanton failure to warn, and breach of implied warranty under Alabama law. (Doc. 1 at 3-18).^[4]

         Bolt designated Dr. Dunn, Miller, and Webb as expert witnesses to support his claims. Ford seeks to exclude the expert opinions of Dr. Dunn, Miller, and Webb as unreliable and irrelevant (Docs. 40, 42, 44-45) and moves for summary judgment on the ground that without these opinions, Bolt has failed to provide sufficient evidence to support all elements of his claims. (Doc. 46).

         After Ford moved to exclude Webb's expert opinions, Bolt filed a notice withdrawing his designation of Webb as an expert witness. (Doc. 49; see also Doc. 51 at 14 n.12; Doc. 55; Doc. 56). Because Bolt will not rely on Webb's opinions to support his claims, Ford's motions to exclude those opinions (Docs. 44 & 45) are due to be denied without prejudice as moot. Moreover, in his response to Ford's motion for summary judgment, Bolt states he does not oppose entry of summary judgment in Ford's favor on his negligent failure to warn, wanton failure to warn, and breach of implied warranty claims. (Doc. 51 at 12 n.7). Accordingly, those claims are deemed abandoned, and Ford's motion for summary judgment is due to be granted with respect to the abandoned claims. See Powell v. American Remediation & Envtl., Inc., 61 F.Supp.3d 1244, 1252 n.9 (S.D. Ala. 2014) (noting that while a district court must ensure summary judgment is proper where party wholly fails to respond to motion, it may consider a particular claim abandoned where non-moving party fails to address that claim but does address others), aff'd, 618 Fed.Appx. 974 (11th Cir. 2015). Ford's motions to exclude the expert opinions of Dr. Dunn and Miller have been fully briefed (Docs. 41, 43, 57-1, 57-2, 61, 62), ^[5]as has Ford's motion for summary judgment with respect to Bolt's AEMLD, negligence, and wantonness claims (Docs. 47, 51, 60).

         A basic understanding of the throttle control system in a 2002 Ford Taurus provides context for the expert opinions of Dr. Dunn and Miller. Because the expert opinions of Dr. Dunn and Miller reference an investigation conducted by the Office of Defects Investigation (the “ODI”) within the U.S. Department of Transportation's National Highway Traffic Safety Administration identified as Preliminary Evaluation 12-033 (“PE12-033”), as well as an initiative Ford implemented following the investigation identified as Customer Satisfaction Program 13B04, an overview of the investigation and program will also precede a discussion of the expert opinions.

         A. Throttle Control System

         The throttle control system in a 2002 Ford Taurus is comprised in relevant part of an accelerator cable and a speed control cable connected to a throttle body. When the accelerator pedal is pressed, the accelerator cable is pulled and opens the throttle body plate, allowing the engine to generate speed and torque. When the accelerator pedal is released, two springs close the throttle body plate and return the engine to idle.

         The speed control cable is part of what is sometimes referred to as the cruise control system. When the speed control system is activated, a servo pulls on the speed control cable, which is connected to the throttle body plate by a lost motion device. One end of the speed control cable is bound by a ferrule that is secured within the speed control cable retention collar by two tabs. The retention collar, made of the polymer Nylon 66, is mounted to a bracket near the throttle body.^[6]

         B. PE12-033 & Customer Satisfaction Program 13B04

         The ODI opened the investigation identified as PE12-033 in October 2012 to address the concern a fractured speed control cable retention collar in certain 2000-2003 model year Ford Taurus vehicles could result in a stuck throttle condition. (Doc. 48-16 at 2).

         Ford undertook testing in response to the investigation. In a January 2013 response to the ODI, Ford stated that while it identified chemical exposure from battery venting as a likely cause of crazing on speed control cable retention collars, it concluded crazing was unlikely to cause collars to fracture under normal operating conditions. (Doc. 48-10 at 2, 16, 25, 27). Instead, it concluded collar fractures were likely caused by improperly performed service procedures. (Id. at 2, 20, 25, 27).

         Ford further stated it believed the throttle body plate must first be greater than 29% open before a fractured collar could prevent the throttle from returning to idle. (Id. at 21). It found that manually positioning a speed control cable ferrule on the edge of a broken speed control cable retention collar resulted in a throttle body plate opening of approximately 29% and that a vehicle with a throttle body plate stuck at 29% open, travelling at a speed up to 70 miles per hour, remained controllable and could be safely brought to a complete stop with a single application of the brakes and even after multiple brake applications diminished vacuum assist. (Id. at 2, 23-25, 27).

         Ford implemented Customer Satisfaction Program 13B04 in June 2013. (Doc. 48-3 at 2; Doc. 48-7 at 2; Doc. 48-16 at 2). The notice Ford sent to dealers and owners of affected vehicles stated the speed control cable in certain Taurus vehicles “may be susceptible to damage or becoming partially disconnected during under hood vehicle maintenance (e.g., replacing a battery or changing the air filter), ” and that a damaged speed control cable “could interfere with the throttle's full return to idle when the accelerator pedal is released, potentially resulting in an elevated idle.” (Doc. 48-3 at 2; Doc. 48-7 at 2, 7).^[7] To address this concern, Ford instructed dealers to (1) “[r]emove the two pin-type retainers and the accelerator control splash shield, ” (2) inspect the speed control cable retention collar for cracked or missing “retention tabs, ” (3) replace the speed control cable if either retention tab is missing, but not if the tabs are merely cracked, (4) install a “collar reinforcement clip” onto the speed control cable regardless of the state of the collar, and lastly, (5) “[i]nstall the accelerator control splash shield and the two pin-type retainers.” (Doc. 48-7 at 2, 7-8). Ford noted the clip “adds robustness to the collar's retaining feature and prevents the cable from sliding out of the collar.”

         (Id. at 2, 7).

         Also in June 2013, the ODI closed PE12-033. (Doc. 48-16 at 2, 4). In its closing resume, the ODI summarized the issue as follows:

The failure mode of the cable assembly is associated with the plastic collar used to secure the cable to a bracket near the throttle body []. Damage to one or both retention tabs used to secure the cable ferrule within the collar may allow the ferrule to become disconnected from the collar when the throttle is opened during accelerator pedal application. . . . If the displacement pulls the ferrule completely out of the collar, the ferrule end may contact the face of the collar when the accelerator pedal is released and the throttle is returning to idle []. This results in a throttle stuck at approximately 26-29% open. Testing conducted at [National Highway Traffic Safety Administration's] Vehicle Research and Test Center found that brake booster vacuum may become depleted, resulting in reduced brake effectiveness, if the brake is applied repeatedly when the throttle is stuck at this position.

(Id. at 2). It noted Ford's conclusion that collar fractures were likely caused by improperly performed service procedures, not a defect in the speed control cable, as well as Ford's initiation of Customer Satisfaction Program 13B04. (Id. at 2, 4).

         C. Dr. ...