United States District Court, N.D. Alabama, Eastern Division
G. CORNELIUS U.S. MAGISTRATE JUDGE
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
Background & Facts
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).
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). 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).
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).
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), as has Ford's motion for summary
judgment with respect to Bolt's AEMLD, negligence, and
wantonness claims (Docs. 47, 51, 60).
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.
Throttle Control System
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
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
PE12-033 & Customer Satisfaction Program 13B04
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).
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).
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).
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,
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.”
at 2, 7).
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
(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).