Claiming “Possible,” Not “Probable” Product Defect, Expert Witness Opinion Excluded

“[P]ossibilities are irrelevant, because anything is possible,” wrote Justice Graciela Freixes of the Los Angeles County Superior Court in her decision excluding testimony of an expert witness who, given repeated opportunities, would not opine that the product at issue was “probably” defective. A California appellate court agreed, even quoting her comment in its decision.

In Lamara Waller v. FCA US LLC (May 6, 2020) B2925240 Cal.App.2nd, Waller claimed that FCA (Fiat Chrysler Automobiles) had breached warranties after his Dodge Durango SUV repeatedly lost power while driving. Problems with the SUV developed within 18 months of him purchasing the new vehicle when the “check engine” light came on and he later lost power. The car dealership Waller took the Durango to for servicing made a repair based on a recall notice, installing a bypass around the fuel pump relay that was connected to the vehicle's “totally integrated power module” (TIPM). Waller experienced other intermittent losses of power and returned to the dealership, but they could not find a problem or replicate the loss of power.

A year later, Waller again experienced power loss and brought his suit against FCA. He retained Anthony Mical as his automotive engineering expert witness whose opinion was to include that the faulty fuel pump relay was “one of the possible causes” of the alleged loss of power. Before the trial began, FCA moved to exclude that and other parts of Micale's opinion.

The trial court ordered a section 402 hearing to determine the admissibility of Micale's opinion without a jury present. Micale testified that he personally experienced a lack of power when he test drove the Durango and that he attributed the power issue to two causes: the fuel pump relay which, if it fails intermittently, can starve the engine of fuel and software problems in the Durango's TIPM which he said “controls almost everything in the car and it interfaces probably to everything.” Micale concluded that, from the “totality of all the issues” affecting the Durango, including burned out light bulbs and problems with the instrument panel, the common cause of the problems was defective software in the TIPM. The loss of power was attributed to “deterioration and damage to the cylinder head from overheating because the TIPM was not directing the radiator cooling fan to turn on as it should.”

At his deposition, Micale was questioned by FCA's counsel about the fuel pump relay and if it had any symptoms of the failure before the recall was performed. He responded that it was possible, if the fuel pump was failing, that it was causing the loss of power. He reiterated that he was “not in a position to say it's more likely than not.”

At the section 402 hearing, Micale distinguished between the situation before and after the bypass, finding that the new relay was not attached correctly. While he had seen the relay fail in other cases, he had not seen that in this case, although “the evidence suggests that it is failing.” When asked what evidence, Micale referred to the power failure.

FCA's counsel went back to Micale's deposition testimony, asking if he had any indication that Waller “was having any symptoms of the failure of the fuel pump relay before he had the recall performed.” Micale testified that “there is a possibility” that if the fuel pump relay were failing, it would cause a loss of power. FCA's counsel asked what he had done since his deposition “to investigate the fuel pump relay issue,” and Micale responded that he had found that “the fuel pump relay bypass is not connected as it should have been per the recall of the fuel pump relay.” The appellate court noted that neither counsel followed up on that assertion.

FCA's counsel argued that Micale did not actually attribute the power loss to “the failure of the fuel pump relay on the TIPM” because there was a “workaround” for the fuel pump relay, quoting Micale:

“It's not fixed right onto the car. That is what is causing the problem. The current fuel pump relay is what is causing Mr. Waller's current loss of power, that the current fuel pump relay is outside of the TIPM.”

The appellate court noted that Waller's counsel did not address the “workaround” with the fuel pump relay bypassing the TIPM, arguing that Micale's testimony adequately supported the opinion that the TIPM itself was the root cause, that Micale had identified the fact there was an issue with the TIPM, that the “individual and discrete issues” were related to the TIPM.

The trial court ruled that “Micale failed to establish a foundation for his opinion that the loss of engine power in Waller's vehicle was related to the fuel pump relay.” The court highlighted Micale's repeated testimony that it was possible the loss of engine power was related to the fuel relay, but given multiple opportunities, would never testify that it was probable. The trial court concluded that “possibilities are irrelevant, because anything is possible,” and found Micale's opinion on the fuel pump relay to be speculative, excluding it. The appellate court agreed.

According to the appellate decision, Micale's contentious testimony appears related to the fuel relay before the recall repair, not after. Whether or not FCA's counsel who able to muddy the issues involving the fuel relay, expert opinions require clarity of what is probable, not possible.