Marie Valero v. Ford Motor Company and Jennings Anderson Ford, Inc.--Appeal from 216th Judicial District Court of Kendall County

No. 04-00-00737-CV
Marie VALERO,
Appellant
v.
FORD MOTOR COMPANY and Jennings- Anderson Ford, Inc.
Appellees
From the 216th District Court, Kendall County, Texas
Trial Court No. 96-214
Honorable Charles Sherrill, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: December 19, 2001

AFFIRMED

Marie Valero appeals the summary judgment against her in her products liability suit against Ford Motor Company and Jennings-Anderson Ford, Inc., contending the trial court abused its discretion in striking her expert's testimony. We affirm.

Factual and Procedural Background

On September 2, 1995 at approximately 3 a.m., Marie Valero was injured in a one-car automobile accident that occurred on Texas Highway 173 between Bandera and Kerrville. Valero's cousin, Becky Trevino, was driving the automobile, a 1993 Ford Taurus, owned by Trevino's parents. The Trevinos had purchased the used automobile in December 1993 from Jennings-Anderson Ford.

Both girls were eighteen years old at the time of the accident and had traveled to Bandera on the evening before the accident to meet friends. While in Bandera, the girls smoked marijuana Valero had purchased earlier that day and each drank two beers. At some point while driving, Trevino lost control of the car, drove off the road through a barbed-wire fence, and hit a large tree. Valero, who was not wearing a seat belt, was ejected from the automobile onto the hood where she lay unconscious when the automobile caught fire. Valero suffered burns to her right and left thighs and her right heel.

Valero sued defendants, alleging that a design defect in the fuel line contributed to the severity of the fire in the engine compartment by feeding the fire fuel from the gas tank. Valero alleged causes of action for strict liability, negligence, gross negligence, breach of express and implied warranties, and DTPA violations. Defendants moved to exclude the testimony of Valero's two experts, John Lohman and Jerry Wallingford. Defendants argued Wallingford was not qualified to testify as an expert and his opinions were unreliable. Valero did not file a response and the trial court struck both experts' testimony. Subsequently, Valero withdrew her claims for DTPA violations, breach of warranty, gross negligence, strict liability, and negligence based on defective manufacturing, leaving only the negligence and strict liability claims related to design defect. Defendants then filed a no-evidence motion for summary judgment, which the trial granted. Valero appealed. (1)

Standard of Review

We review the trial court's decision to exclude expert testimony for an abuse of discretion. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex. 1998). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Martinez v. City of San Antonio, 40 S.W.3d 587, 592 (Tex. App.- San Antonio 2001, pet denied.).

Reliability of Expert Opinion

Valero argues the trial court erred in striking Wallingford's testimony, which is the only summary judgment evidence tending to establish the alleged design defect in the 1993 Ford Taurus. In response, Defendants contend and Valero agrees Wallingford's testimony does not conform to the Robinson factors. However, Valero argues these factors are not exclusive, and reliability can be established by the expertise and skill of the expert testifying. She therefore asks us to review Wallingford's testimony, using the "analytical gap" standard. Defendants maintain that under either standard, Wallingford's opinions were unreliable, because they lacked a scientifically reliable basis. Specifically, defendants argue the trial court properly excluded Wallingford's opinions, because he: (1) failed to rule out alternative causes for the severity of the fire damage; (2) performed no testing to support his opinions; (3) and his examination of the evidence was incomplete and cursory. We agree.

Applicable Law

Because Wallingford's testimony as a mechanical engineer is based primarily on his experience and does not conform to the factors enumerated in Robinson, we apply the more general reliability test espoused in Gammill. See E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995); Gammill, 972 S.W.2d at 727. In applying the "analytical gap" standard, a trial court is not required to admit opinion evidence which is connected to existing data only by the "ipse dixit" or say so of the expert. Id. Rather, a court may conclude "'there is simply too great an analytical gap between the data and opinion proffered.'" Id. (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)). An impermissible analytical gap exists if an expert fails to demonstrate how his observations support his conclusions. Gammill, 972 S.W.2d at 727. However, in making its initial determination as to the admissibility of expert testimony, the trial court is not to determine whether an expert's conclusions are correct, but only whether the analysis used to reach them is reliable. Id. at 728.

Discussion

Wallingford testified the fire originated in the engine compartment where the nylon fuel lines are located. He asserts the nylon lines were crushed by the fire wall and engine when the automobile collided with the tree. Then, the initial fire, which may have been caused by gasoline or other flammable, combustible fluids and materials present in the automobile, further compromised or melted the nylon fuel lines, allowing fuel to be siphoned from the fuel tank. The siphoning effect, according to Wallingford, supplied the existing fire with enough fuel to burn the automobile from one end to the other. He surmised the initial fire was fed by gasoline, because damage to the automobile was severe. As a safer alternative to the allegedly defective nylon fuel line, Wallingford proposed a fuel line constructed of stainless steel, because he believed a metal fuel line could not be compromised to the extent it would allow fuel to be siphoned from the fuel tank.

Even assuming Wallingford was correct, he offers nothing other than his experience and general engineering principles to establish his conclusions that: the nylon fuel line, here, permitted siphoning of fuel; nylon fuel lines are therefore unreasonably dangerous; and metal fuel lines are a safer alternative. See id. at 725 ("experts who purport to rely on general engineering principles and practical experience [may not] escape screening by the district court [for reliability] simply by stating that their conclusions were not reached by any particular method or technique."). Wallingford conceded he would have to perform tests on the vehicle involved in the accident and/or an exemplar vehicle to determine if siphoning had occurred or could occur when the fuel pump is off. Nevertheless, he did not perform any such tests. Thus, Wallingford failed to establish "what he believes could have happened actually did happen." Id. at 728.

Nor did he perform tests to establish siphoning could not occur with fuel lines made of stainless steel. Instead, he summarily concluded that because he knew of no other manufacturer that was currently utilizing or had recently utilized nylon fuel lines, nylon fuel lines are unsafe whereas stainless fuel lines are safe. He did not know if Ford was still using nylon lines but assumed it was not, because Ford began installing stainless lines in its light trucks in 1993. While it is possible manufacturers switched from nylon to metal fuel lines for safety reasons, it is just as likely the switch was attributable to cost, availability of materials, or other reasons, because although Wallingford suggested this was common knowledge in the industry, he did not provide any data, case studies, or publications to establish his conclusions "comport[] with applicable professional standards outside the courtroom." Id. (quoting Watkins v. Telsmith, Inc., 121 F.3d 984, 991 (5th Cir. 1997)). Thus, his conclusion "was supported by little more than his credentials as an engineer."Gammill, 972 S.W.2d at 726-27.

In addition, the evidence does not support his theory the fire was unusually severe due to the introduction of fuel by the defective fuel line. Although Wallingford inspected the automobile in question, he did not consider the testimony of witnesses or the driver. See, e.g., Ford Motor Co. v. Aguiniga, 9 S.W.3d 252, 256 (Tex. App.-San Antonio 1999, pet. denied) (in assessing reliability of mechanical expert, court considered the fact the expert had questioned witnesses and the driver to determine the cause of the accident). As a result, he had no way of knowing how much fuel was in the fuel tank before the accident. He also did not know how much fuel remained after the accident, because he had not disassembled the fuel tank as he says would have been necessary, and he could not make this determination using "burn pattern evidence," because he did not inspect the automobile until three years after the accident.

Moreover, Wallingford did not consider and was unable to exclude alternate sources of fire such as potentially flammable or combustible materials present in the vehicle that could have contributed to the severity of the fire. See Martinez, 40 S.W.3d at 593. When asked, he did not know whether the grass under the automobile had caught fire or whether it played a role in the fire. Failure to rule out alternative causes such as these renders his opinion unreliable. See Weiss v. Mech. Assoc. Serv., Inc., 989 S.W.2d 120, 125 (Tex. App.--San Antonio 1999, pet. denied). Without some explanation of the data or reasoning he employed, his conclusion is simply inadmissible "ipse dixit." Consequently, his opinions amount to no more than "subjective belief or unsupported speculation." Robinson, 923 S.W.2d at 557.

Conclusion

Having concluded the expert's opinion was unreliable, we need not address the issue of whether the expert was qualified. We therefore hold the trial court did not abuse its discretion in striking Valero's expert and affirm the trial court's no-evidence summary judgment in favor of the defendants.

Sarah B. Duncan, Justice

Do not publish

1. On appeal, Valero only challenges the trial court's ruling excluding the testimony of Jerry Wallingford.