Stating Expert Witness Testimony is Scientific Doesn’t Make It So

Referring to scientific principles and scientific methods in expert witness testimony may provide gravitas, but in those jurisdictions where the Daubert standard has been adopted, it risks having such testimony designated as scientific, and then having it fall under Daubert's more stringent standards for such testimony, where it may then fail to be accepted.

In Mazda Motor Corporation v. Hurst, No. 1140545, Supreme Court of Alabama (July 7, 2017), a failure analysis expert witness, Jerry Wallingford, repeatedly referred to the “scientific method” and “scientific evidence” in his testimony. Defendant Mazda argued his opinion should therefore fall under the more stringent “scientific testimony” requirements of the Daubert standard, which Alabama adopted in 2012.

Wallingford testified for the plaintiff Hurst and McLemore families who filed two product liability claims against Mazda, alleging a fuel tank design defect, asserting wrongful-death claims against Mazda based on the Alabama Extended Manufacturer's Liability Doctrine (AEMLD), and alleging negligence and wantonness of Mazda. At trial, the plaintiffs won a combined $3.9 million from two jury verdicts. Mazda appealed, arguing Wallingford's testimony should have been excluded.

The claims stemmed from an accident in which the passenger, 15-year old Natalie Hurst, died from her burns and the driver, 16-year old Sydney McLemore, received third-degree burns to 15 percent of her body. McLemore was driving a 2008 Mazda 3 at around 3:00 a.m. at 55 to 60 mph in a 35 mph zone when she lost control of the car and it spun around and hit a light pole, bursting into flames.

Wallingford testified that the Mazda 3's fuel and exhaust system was defectively designed. The car's plastic fuel tank was positioned too close to the steel muffler, which had sharp protruding edges. The tank was placed beside the muffler, with only a thin aluminum heat-deflector between them. When the car hit the light pole, the steel muffler was forced into the plastic fuel tank, the muffler's sharp edge cutting the tank, allowing gasoline vapors to escape and ignite.

The plaintiffs also introduced a survey showing that, out of 80 automobiles of a similar size and model year to the Mazda, all but three had designs in which the fuel tanks were located in front of the rear axle and the mufflers located behind it, not adjacent to one another. The other three models were the Ford Focus, produced on the same line as the Mazda 3, one configuration of the Mazda 3 produced for California, and the Mazda 3 in question.

Wallingford also testified that his defective-design conclusion relied primarily on Ford documents written by a senior fuel-systems specialist for Ford, which stated that “[a]ny component that impinge[s] should have smooth, rounded surfaces next to the [fuel] tank.” The documetns also stated that engineers should “[e]nsure that trim edges and flanges do not project in the direction of the fuel system components, both before and after crash tests” and that any “[s]hields should be steel and have a material hardness which exceeds that of adjacent components.”

According to Wallingford, the Ford documents, obtained through discovery, were intended to make Ford and Ford-related vehicles (including the Mazda) safer.

Mazda objected to Wallingford's testimony before, during and after the trial. Before trial, Mazda filed a motion in limine contending that Wallingford's testimony should be considered “scientific testimony” under Alabama's Rules of Evidence, Rule 702(b), and as his testimony did not meet the rule's requirements, it should be precluded.

Mazda did not argue that Wallingford's testimony should have been subject to the requirements of Rule 702(b) because it was, as the rule says, “testimony based on a scientific theory, principle, methodology, or procedure.” Instead, Mazda argued that because “Wallingford repeatedly represented his own opinion to be ‘scientific'”, Rule 702(b) should apply. Otherwise, an expert could “claim[] the mantle of science, even though he hasn't satified the heightened Rule 702(b) requirements.” Such scientific claims would purportedly cause jury confusion and ‘bump' the importance of the testimony. The objecting party would suffer unfair prejudice.

The trial court denied the motion, stating that “the Daubert provisions of Rule 702(b) are inapplicable as Wallingford's opinions and testimony do not involve scientific evidence.”

After Wallingford testified at trial, Mazda filed a renewed motion to strike his testimony on the same grounds. The trial court denied Mazda's motion, concluding that Wallingford “didn't testify to any type of scientific principles. He just made observations based upon his forty years of experience and his knowledge of the automotive industry and his observations of data that he had been given by others.”

Mazda appealed the trial court's decision, contending, among other things, that it erred in refusing to exclude Wallingford's testimony because of he couched it as “scientific.”

The State Supreme Court noted that some authorities support Mazda's position, and an amicus curiae brief filed by Professor Terrence W. McCarthy (co-author of Gamble's Alabama Rules of Evidence) did so as well, with both Mazda and McCarthy relying heavily on Michigan Millers Mutual Insurance Corp. v. Benfield, 140 F.3d 915 (11th Cir. 1998).

The Court, however, noted significant differences between Benfield and this case. In Benfield, the plaintiff argued that the testimony of his expert witness was scientific, but in this case, when Mazda's counsel attempted to label Wallingford's conclusions as “science” during Wallingford's deposition, McLemores' counsel objected to the use of the word.

The Court continued that Wallingford “never claimed in his testimony that he was a scientist or that his conclusions were based upon a particular scientific theory or principle.” While Wallingford did use the word “scientific” four times in his testimony, three of those times he referred to having used the “scientific method” in describing his use of failure analysis to determine the cause of the fire. In the fourth instance, Wallingford used the term “scientific evidence” to refer to accident-scene photographs.

Further, the Court found that Wallingford's testimony was “based on his specialized knowledge of automotive technology and his experience with automotive-fuel fires, not on a scientific formula or theory.”

The State Supreme Court found that the trial court did not err when it refused to subject Wallingford's testimony to the scientific requirements of Rule 702(b), upholding the wrongful-death claims against Mazda based on the AEMLD, but not supporting punitive damages. The majority of the Court did find that the plaintiffs presented insufficient evidence to support the wantonness claim, although they found no reason for disturbing the jury's $3.9 million award.