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Breaking Legal Developments

04-04-2008

Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor
palynch@cozen.com
http://www.cozen.com

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. ED PA Dist Ct Permits Expert to Testify on his Speed Deactivation Control Switch Investigation


(1) ED PA DIST CT PERMITS EXPERT TO TESTIFY ON HIS SPEED DEACTIVATION CONTROL SWITCH INVESTIGATION

In Giorgini v. Ford Motor Company (March 28, 2008) (ED PA) No. 06-0968, http://www.paed.uscourts.gov/documents/opinions/08d0370p.pdf , plaintiff's had filed a product liability action against Ford Motor Company in Pennsylvania. They alleged a fire from a diesel 1996 Ford F-250 was caused by a speed deactivation control switch design defect. After the case was removed to the federal court, Ford moved in limine to exclude plaintiff's expert testimony to include a Daubert hearing.

The court denied in part the motion in limine and its' Motion for Summary Judgment. The plaintiff's theory was the fire started a result of a defect in the truck's SCDS, which was manufactured by Texas Instruments and installed by Ford in many of its engines, including plaintiff's truck. The SCDS serves as a back up hydraulic pressure switch, with the purpose of disconnecting the speed control "servo valve" for the cruise control when the vehicle's brakes are applied. If the primary disconnect switch fails, the SCDS operates to disconnect the cruise control. Mr. Giorgini was driving his truck when he saw smoke coming out of the hood. He pulled over, looked under the hood and saw the engine on fire in the area underneath the master cylinder and the brake booster on the driver's side. He allegedly received injuries during that examination.

A National Highway Traffic Safety Administration ODI Resume and Failure Report Summary describes SCDS failure mechanisms in more detail. Ford has recalled numerous vehicles 1992-2004 for alleged defective SCDS according to the court's opinion. Ford contends SCDS failures do not occur in diesel engines that result in a fire.

It contended the plaintiff's expert should not be permitted to testify. The expert had relied on the Ford recall, his own investigation to include examining the vehicle, burn patterns, eyewitness statements, mode of operation of the vehicle, physical evidence, elimination of other ignition sources and comparisons with other vehicles.

The court reviewed the expert's proposed testimony pursuant to Daubert. The expert also relied on several sources to guide his investigation to include NFPA 921 Guide for Fire and Explosion Investigations, articles in the Fire & Arson Investigator on SCDS and the NHTSA report on SCDS failures. The court was satisfied that the methodology used was reliable enough to permit him to testify. The court ruled "testimony regarding his conclusion that the fire originated in the SCDS is sufficiently reliable under Rule 702 and Daubert and shall be admitted"(footnote omitted). The court did limit part of the expert's opinions but concluded he may testify regarding SCDS fires generally, if relevant.

The court then examined and rejected Ford's motion for summary judgment. The court noted under Pennsylvania law, a plaintiff must only prove 91) a product was defective, (2) that the defect existed at the time the product left the manufacturer's control and (3) that the defect was a substantial factor in causing the plaintiff's injury. The plaintiff's expert's testimony was admissible and withstands summary judgment.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.

Please direct comments, suggestions, stories, and other items to the author by e-mail at palynch@cozen.com

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