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An expert witness’s testimony can go beyond the contents of his report as long as his conclusions are consistent with the report and don’t add any new theories that would unfairly “surprise” the other side, a federal judge has ruled. In his 14-page opinion in Bowersfield v. Suzuki Motor Corp., Judge Jan E. DuBois of the U.S. District Court for the Eastern District of Pennsylvania rejected objections from defense lawyers who said the plaintiff’s expert on vehicle crashworthiness was improperly expanding on his opinions during a pretrial hearing. DuBois ruled that Alan Cantor’s testimony “should not be limited to what is set forth in his report” because the conclusions he reached during the pretrial Daubert hearing simply “expanded on the details of his methodology and the bases for his opinions.” And any prejudice to defendants can be cured, DuBois said, by allowing the defense to take Cantor’s deposition and supplement their own expert reports. “What defendants should have done upon receipt of Mr. Cantor’s conclusory report was to take his deposition, but they did not do so. Nevertheless, any prejudice to the defendants caused by permitting Mr. Cantor to testify at trial in accordance with his testimony at the Daubert hearing may be cured by the granting of leave to the defendants to respond to Mr. Cantor’s Daubert testimony with supplemental expert reports,” DuBois wrote. DuBois reopened discovery so that both sides can take depositions of experts, but said the experts “will not be permitted to add theories not contained within their reports.” In a previous opinion, DuBois denied summary judgment in the case, saying a jury must decide whether the 1992 Suzuki Samurai is “crashworthy” and whether the auto maker failed to warn riders not to sit in the vehicle’s rear cargo area. Attorney Andrew J. Stern of Philadelphia-based Beasley Casey & Erbstein filed the products liability suit on behalf of Thomas J. Bowersfield Jr., who was left brain-damaged, partially paralyzed and blind in one eye when he was ejected from a Samurai in an accident in Philadelphia’s Center City area. The suit alleges that Suzuki knew that passengers would ride in the rear cargo area of the Samurai and that studies of the car have disclosed a high rate of rear passenger ejections, resulting in serious, sometimes fatal, injuries. Stern says internal corporate documents show that Suzuki decided against installing a physical divider behind the front seat to discourage people from riding in the rear because it had decided to stop sales at the end of the 1992 model year and wanted “to spend as little on mold costs as possible.” Bowersfield was injured in the early morning hours of March 10, 1996, at the intersection of 7th and Spruce streets. He and two companions were traveling west on Spruce Street in a 1992 Samurai when another vehicle, traveling north on 7th Street, collided with the Samurai and sped away. Christian French, who owned the Samurai, was driving, and Brian Farnham was seated in the right front bucket seat of the vehicle. Bowersfield was riding on the uncarpeted floor in the cargo area. In his suit, Bowersfield asserts a claim in strict product liability under the Restatement (Second) of Torts, Section 402A, pursuing two separate theories: failure to warn and the crashworthiness doctrine. The Samurai was designed and manufactured by defendant Suzuki Motor Corp., a Japanese manufacturer; in the United States it was distributed by defendant American Suzuki Motor Corp., a California corporation. Stern contends that from the time it was introduced in 1985 until 1991, the Samurai was marketed as a four-passenger car. For years, he says, Suzuki’s ads showed people riding in the rear compartment. ‘DAUBERT’ HEARING Suzuki’s lawyers — Edward J. McGinn, Daniel J. Hart and Eric A. Weiss of Marshall Dennehey Warner Coleman & Goggin — moved to block Cantor from testifying as an expert. Earlier this month, DuBois held a Daubert hearing, saying it was necessary to test Cantor’s methodology and the reliability of his conclusions. During the hearing, defense lawyers frequently objected that Cantor’s testimony went beyond the scope of his expert report. DuBois found that Daubert calls for a two-step inquiry in which the court first considers whether the witness is truly qualified to express an expert opinion, and then whether the opinion itself is reliable. Stern argued that Cantor’s testimony established that the 1992 Suzuki Samurai was defectively designed, and that the defects caused Bowersfield’s injuries. Cantor opined that the vehicle should have been marketed with a rear seat with three-point seatbelts, or, in the alternative, with a barrier separating the rear cargo area from the front two seats and an adequate warning of the danger of riding in that area. Defense lawyers argued that Cantor’s expert report was conclusory and lacked the requisite methodology. DuBois found that Cantor holds a bachelor’s degree in aerospace engineering from Pennsylvania State University, and has spent his career in the fields of occupant crash protection, emergency escape, crash safety, crash survival and life-support engineering for both ground and air vehicles. Cantor was employed as a civilian for the U.S. Navy from 1973 through 1987 where he designed, developed and tested crashworthy seats, restraints and similar systems. After the explosion of the Space Shuttle Challenger, he headed a team that designed an emergency egress system that is still in use. In 1987, he left the Navy and started his company, ARCCA Inc., where he does similar work on vehicle safety and restraint systems. His company has performed approximately 3,000 crash investigations. Cantor also designed a seat for the U.S. Army — the common crashworthy occupant protection system — for which he is a patent holder. The seat was designed to be placed into any light truck or multipurpose vehicle where it would provide occupant protection regardless of other things within the vehicle. DuBois also found that Cantor has written numerous articles, manuals and treatises. One of those treatises is used by the Navy to create air crew escape systems — common ejection seats that Cantor said can be used “for any application just by making quick modifications.” Cantor has also “extensively studied and written on the kinematics of vehicle occupants — the way the occupants move when subjected to certain physical forces,” DuBois found. Those studies included other accidents that involved Suzuki Samurais. DuBois found that Cantor is also “familiar with the requisite vehicle safety standards, including those relating to seatbelts, barriers and placement, but not content, of warning labels.” In his expert report, Cantor listed 10 conclusions. He found that the 1992 Suzuki Samurai was hazardous for passengers in the rear of the vehicle, and that if Suzuki had provided rear seats with three-point seatbelts, Bowersfield “would have been afforded the opportunity to restrain himself and thus given protection from the grievous injuries he sustained.” He also opined that the warning in the rear area of the Samurai was inadequate; and that the injuries Bowersfield suffered could have been avoided if Suzuki had provided the Samurai with the necessary elements of safety for its foreseeable use. In his testimony at the Daubert hearing, Cantor elaborated on the conclusions and the substance of his report. He first explained that there is a “hierarchy” of engineering principles relating to design. Manufacturers, he said, should “design out” potential hazards. If that is not possible, he said, they should guard against those hazards and warn potential users of any hazards that could not be designed out. Cantor identified the hazard in the 1992 Suzuki Samurai as use of the rear area of the vehicle for occupant seating. He said the rear area was defectively designed because Suzuki provided rear seats for all previous years of manufacture, as shown by Suzuki documents, and because of what he characterized as an inadequate warning in the rear of the Samurai, it was readily foreseeable that someone would ride in that area. He explained that the best remedy for the hazards in the 1992 Samurai was the installation of seats with three-point seatbelts in the rear area of the vehicle. At the Daubert hearing, he produced drawings and photographs of various ways to do so. He also testified that other vehicles manufactured at the same time, including other Suzukis, provided rear seats with three-point seatbelts secured to roll cages or the vehicle frame. His own patented seat could also have been fitted into the Samurai without modifying the floor design, he said. If Suzuki could not design around the hazard by installing a rear seat with three-point seatbelts, Cantor said, the next best thing would be to guard against the hazard by installing a barrier and placing an adequate warning in the rear area. Such a barrier, he said, would protect the front occupants from any danger caused by cargo in the rear, and make it clear to people who might think about riding in the rear cargo area that the 1992 Samurai was not designed to have people ride there. DuBois found that while Cantor’s conclusions at the Daubert hearing were consistent with his expert report, “much of the methodology and bases for the conclusions to which he testified were not contained in his expert report.” But DuBois found that courts should not limit an expert’s testimony to the contents of his report “absent surprise or bad faith.” In the final pages of the opinion, DuBois concluded that Cantor is qualified as an expert and that his opinion is reliable. “Cantor testified at length to the principles and methodology he applied in reaching the conclusions outlined in his report. He relied upon well accepted peer-reviewed literature and treatises, some of which he authored,” DuBois wrote. “He is clearly qualified to offer opinions as to the alleged design defects of the 1992 Suzuki Samurai, its crashworthiness, the sufficiency of the warning label, and causation. He is also qualified to testify about the placement of seats with three-point seatbelts or a barrier in the rear of the 1992 Suzuki Samurai. Likewise, he may testify to the proper placement and size of a warning label.” But since Cantor himself admitted that he was not familiar with the contents of warning labels, DuBois ruled that he may not testify on that subject.

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