Automaker must prove reliability of black box data.

A Sixth Circuit decision reinstating an air bag case remanded it to the lower court and asked that the court conduct a Daubert hearing on General Motors's (GM) black box technology.

The mandate, which appears as a footnote in the Harris v. General Motors Corp. opinion, may be the first time an automaker has been asked to prove the soundness of its crash-data technology. In this case, the computer module that recorded the air bag deployment is a Diagnostic Energy Reserve Module, or DERM. (No. 993092, 201 F.3d 800 (6th Cir. Jan. 31, 2000).)

"Certainly, nothing in the record as it now exists evinces either the reliability or validity of [the GM engineer's] testimony as to the DERM. Our own research did not reveal a single reported case addressing the Daubert issue as to General Motors's automotive `black box,'" wrote Judge John Feikens. The judge vacated the lower court's decision granting GM summary judgment by applying the "physical facts rule" to affidavit testimony from GM's expert doctor and engineer.

Ruby Harris had filed suit when the air bag in her 1991 Chevrolet Corsica deployed after a low-speed head-on collision. The air bag broke her right arm. Her suit against GM claims that the air bag was defective because it deployed after the crash.

Harris and her passenger testified that the bag deployed late as Harris was reaching for the ignition. GM's expert doctor testified that Harris's right arm had to be on the steering wheel because of a mark on the air bag. The GM engineer concluded that crash data collected from the DERM suggested the bag deployed properly during impact.

The Sixth Circuit said Harris and GM had a dispute of fact that should have been decided by a jury. The court said the district court's "application of the `physical facts rule' in this case was error" because GM did not establish an "undisputed physical fact fatal to Harris's products liability claim," but rather provided an alternative theory.

"[T]he DERM data suggests that the air bag deployed properly; it does not establish that the air bag could not have deployed belatedly in the manner described by Harris," Feikens wrote in his passage focusing on the black box data.

Edward Van Gunten, of Toledo, Ohio, Harris's attorney, praised the ruling. "A suggestion is not admissible evidence, and it is not enough evidence to dispute my client and her passenger's eyewitness testimony," he said

Although Harris's appeal did not directly challenge the validity of the DERM, Van Gunten acknowledged that the opinion's footnote is significant. "Over the long haul, it will be the dicta of this opinion that will come back to haunt GM," he said.

Scottsdale, Arizona, attorney Larry Coben said the footnote questions the assumption that the DERM is accurate. Coben, who has litigated several air bag cases involving the DERM, said typically the data are accepted as scientific because a computer records the deployment functions. ("Black Box" Technology Creates Discovery Issues for Lawyers, TRIAL, Jan. 2000, at 56.)

"If GM's position is the DERM is foolproof, then this court is saying `prove it.' Clearly, this footnote suggests that until GM produces discovery demonstrating and establishing the accuracy of the DERM, the DERM is unreliable," said Coben.