Defeating Daubert challenges in auto defect cases.

Since the U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.,(1) expert testimony offered by plaintiffs in auto cases has been rejected more than 30 times. Unfortunately, it is likely that meritorious cases have been stopped cold by the judiciary's enhanced power to keep qualified experts' testimony from being heard by juries.

Consumers injured by dangerous products rely on the work and testimony of safety experts. Typically, rejection of that testimony is fatal to the injured party's case. The Daubert challenge has become a new kind of summary judgment procedure. Defendants move for rejection of plaintiff experts' testimony and seek summary judgment for insufficient evidence based on the lack of expert testimony.(2)

Unlike traditional summary judgment practice, with a Daubert challenge the trial court need not resolve all disputed facts in favor of the nonmoving party. Also, the court's decision is reviewable only for abuse of discretion. Thus, the Daubert challenge has become a real threat to the defective product case.

Meritorious defect cases have a better chance of survival if the plaintiff attorneys and experts understand and adapt to this new litigation environment. Lessons that can help us do so can be found in the cases applying Daubert in the context of auto defects.

Four Supreme Court decisions establish the ground rules for admissibility of expert testimony(3):

* Daubert v. Merrell Dow Pharmaceuticals, Inc., holds that expert testimony in federal court is subject to rigorous judicial examination before it is presented to the jury.

* Kumho Tire Co. v. Carmichael makes clear that this review applies to experts of all types, including mechanical engineers in auto cases.(4)

* General Electric Co. v. Joiner establishes an abuse of discretion standard for review of a trial court's decision to admit or exclude expert testimony.(5)

* Weisgram v. Marley Co. holds that an appellate court reversing a trial court decision to admit a plaintiff expert's testimony can order entry of judgment for the defendant based on insufficient evidence. The court does not need to give the plaintiff a new trial or an opportunity to bolster or replace the testimony invalidated on appeal.(6)

A few enduring rules come out of these cases:

* First, expert testimony will be allowed only if it is based on a methodology shown to be both reliable and relevant in that the case facts fit the methodology used to support the conclusions reached.(7)

* Second, the trial court gets broad leeway in selecting the criteria it will use to analyze experts' methodologies.(8)

* Third, ipse dixit--Latin, roughly, for "because I'm an expert, and I say so"--no longer suffices as a basis for expert opinion, no matter how qualified the expert.(9) The basis for the expert's conclusion--whether founded in scientific experimentation, application of physical principles, or experience and observation--must be explained and supported.

* Fourth, the reliability and relevance of expert testimony depends on whether an expert--basing testimony on either professional studies or personal experience--uses "the same level of intellectual rigor" characteristic of experts in the relevant field.(10)

Expert challenges

Kumho expanded the scope of Daubert review to include mechanical engineers and other experts involved in auto design defect cases. The court reviewed the testimony of a widely respected tire expert who opined that a defective tire, not tire mishandling or previous damage, caused an accident.

The expert testified that he ruled out tread separation caused by a certain type of tire misuse called "overdeflection" because the tire would have shown at least two of four symptoms: more tread wear on the shoulder than in the center of the tire, "bead groove," sidewall deterioration, and rim flange marks.

While the trial court found the expert well qualified, it found inadequate support for his methodology and his use of that methodology in this particular case, because substantial evidence showed heavy wear and preexisting damage. Nor was the court impressed to learn that the expert examined the tire only briefly the morning of his deposition, although he had presented his opinion in a report submitted earlier.

The Supreme Court upheld the trial court's conclusions. The Court considered whether the expert had used "the same level of intellectual rigor that characterizes the practice of an expert in the relevant field" and whether technical literature supported his methodology.

It found no indication in the record that other experts use the two-factor test or that tire experts normally make the fine distinctions about tread wear that, according to the expert's theory, were necessary to support his conclusions. The Court also noted that despite the prevalence of tire testing, the expert cited no articles or papers that validated his approach. As for the expert's testimony regarding his analytical approach, the Court said, "Of course [the expert] himself claimed that his method was accurate, but, as we pointed out in Joiner, 'nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.'"(11)

In an interesting postscript to this story, the Kumho expert received redemption when he survived a Kumho challenge last year. In allowing his testimony, the federal judge summed up the law succinctly: "His testimony was helpful to the trier of fact, it was relevant, and it was reliable. That is all Daubert and Kumho require."(12)

Lessons learned

Opinions applying Daubert and Kumho in auto defect litigation contain insights that, if heeded, can improve the odds that meritorious expert testimony will reach the jury.

Subjectivity. One lesson is the subjectivity of the opinions themselves. Courts have reviewed essentially identical testimony and reached opposite conclusions on admissibility. As a result, some plaintiffs are allowed their day in court, and others with nearly identical evidence are not. This is seen, for example, in cases admitting or rejecting testimony regarding virtually identical stability testing of sport utility vehicles(13) and testing seat belts for unintended unlatching.(14)

In some cases, judges appear to stand in for the jury, deciding which side's experts are right and refusing to allow the other point of view to be heard. For example, judges concluded in two separate cases that the plaintiff experts' testing had been peer reviewed and rejected. They based their decisions on the testimony and articles of defense experts who earned their living from auto manufacturers by criticizing independent auto safety experts in litigation.(15)

Other judges have rejected that approach. As one observed, "Neither Daubert nor Kumho require[s] a court, in exercising its gatekeeper function, to determine in advance which expert is correct: [T]he evidence may be admitted if it is reliable and relevant and if it will be helpful to the trier of fact."(16)

Perhaps the most important lesson of these cases is that it is crucial to make a persuasive presentation to the trial court. Subjective or not, the trial court's decision will probably be dispositive. In only 3 of the 60-plus cases reviewed for this article did an appellate court reverse a trial court decision to exclude testimony.(17)

Ipse dixit. The courts have shown that they mean it when they say that an expert's vouching for his or her own method of analysis is inadequate. Even a "supremely qualified expert cannot waltz into the courtroom and render opinions unless those opinions are based upon some recognized scientific method," one judge wrote.(18)

In rejecting an expert's conclusion that a defective ignition switch system caused a postcollision fire, a federal district judge in New York said that "without some explanation of the data, studies, or reasoning [the expert] employed, his conclusion is simply inadmissible ipse dixit."(19)

Courts have made clear what they expect in support of proffered auto safety opinions. In rejecting a chemist's opinion as to why a tire tread separated, the Louisiana Court of Appeals noted that the expert had no prior experience with tires; had never investigated tread separation before; had never looked at the specifications of the subject tire or of its rubber compounds; did not review any patents; and cited no precedent for his methodology.(20)

Another court, this one in Kentucky, rejected expert testimony regarding air bag deployment thresholds. "[The expert] presented a novel, untested, uncorroborated theory, which has not been subjected to debate, peer review, or publication, and which does not base itself on specific tests or data or calculations or quantitative analysis," the judge wrote.(21)

The court denied that the novelty of the expert's opinion was what led to its rejection. "Even if [the expert's] opinion is unique to him, it must at least have an adequate basis to pass the Daubert threshold."(22)

Fit. Courts are scrutinizing the factual predicates for experts' opinions, often rejecting testimony because the facts applied to the method do not support the conclusion offered.

The First Circuit upheld rejection of testimony claiming that a horizontal bar in a vehicle's seat back injured a passenger's back, for lack of expert evidence that the bar and the point of injury were aligned.(23)

The Texas Supreme Court upheld exclusion of testimony alleging that forensic marks proved that a seat belt had been used. The lower court had found too great an "analytical gap" between the data--the forensic marks--and the expert's opinion.(24) That case is troubling because the expert had pointed to forensic evidence supporting his conclusion. The appellate court, while upholding the lower court's decision, observed that even under the abuse of discretion standard the issue was a "close one."

In another case, the Louisiana Court of Appeals reversed a trial court's admission of an auto mechanic's testimony that a vehicle's rack-and-pinion assembly was defective. The appellate court said that while the mechanic had found 15 degrees of "play" in the steering wheel during a test drive, he did not find that the vehicle would veer from the direction in which it was steered, as the plaintiff alleged.(25)

A comparison of two recent decisions illustrates well the concepts of fit and relevance. Expert witnesses in each case attributed certain failures to corrosion of electrical wiring. In one case, the experts said that the electrical relay in question was exposed and corroded, and they conducted a test to determine whether such corrosion could cause an engine to stall. A Texas trial court admitted their opinions, and the state appeals court affirmed that decision because there was no "analytical gap" between the underlying data and the expert opinions.(26)

In contrast, an expert in a federal district court in New York opined that a corroded connection caused the unintended acceleration of a passenger van. The trial court rejected a jury verdict for the plaintiff in part because it found that the data did not support the expert's opinion. The court noted that the expert had not performed electrical tests or inspected the van or its wiring.(27)

Courts frequently base their rejection of expert testimony on what the expert did not investigate and facts the expert did not know. Rejecting an expert's conclusion that a defective air bag caused a plaintiff's chemical burns, the Maryland Court of Special Appeals noted that the expert did not know the location of the air bag system's sensors, the number of sensors, the deployment threshold, the chemical charge used in the igniter, or the toxicity of the chemical by-products.(28)

Experience and engineering analysis. Not all expert testimony must be based on specific scientific experimentation. As the Texas Court of Appeals noted, "experience alone can provide a sufficient basis for an expert's testimony in some cases."(29) Expert witnesses may apply engineering, physics, and other scientific principles to the facts at hand.

In Rudd v. General Motors Corp., a district court in Alabama found that such expert testimony was admissible where it was well explained:

   At no point does [the expert] attempt to rest simply on his authority as an
   expert; rather, each time [he] relies upon his experience, he "explain[s]
   how that experience leads to the conclusion reached, why that experience is
   a sufficient basis for the opinion, and how that experience is reliably
   applied to the facts."(30)

The court was persuaded that the testimony was reliable and should be admitted, in part because the expert "made his reasoning processes and data sources sufficiently transparent so that, if there are counterarguments and counterevidence available ... the adversary system will be competent to make them evident through 'vigorous cross-examination' and 'presentation of contrary evidence.'"(31)

Peer-reviewed publication, one of the factors set forth in Daubert, is not a prerequisite for admission of mechanical engineers' or other automotive experts' testimony. Their work analyzing cases does not typically result in publication or peer review.

Similarly, testing is not a prerequisite for admission. Thus, where an expert applied "well-established scientific principles, based upon his education and experience, in reaching his conclusions," his "failure to have his conclusions tested or submit his methodology for peer review do not cast doubt on the reliability of his opinion."(32)

However, experience will not substitute for identified and explained data and reasoning. A U.S. district court in Maine found inadmissible a biomechanical engineer's testimony on a vehicle's change of velocity based simply on "eyeballing" accident photographs.(33)

Proving causation through inference chains. The forensic analysis of physical evidence often requires reliance on circumstantial evidence and inference chains, which are constructed by applying scientific principles to the physical evidence. As the Rudd court explained, "Inference chains built upon ... circumstantial evidence are a well-established feature of admissible expert testimony."(34)

Admitting expert testimony regarding a fan blade that struck a plaintiff while he was working on an engine, the court found the expert witness's testimony "reliable because he provides a step-by-step and transparent account of the explanations he has considered, the physical indicia he associates with each possible alternative cause, and his reasons for excluding each of the alternative causes."(35)

This process was described well in a federal appellate decision addressing the sufficiency, rather than the admissibility, of a plaintiff expert's testimony at trial. In reaching its conclusion, the Seventh Circuit relied on the work of Holmes and noted that the plaintiff

   need not prove causation directly. He did not have high-speed cameras
   running in the cab at the time of the accident.... Instead he proceeded by
   eliminating the alternatives.... Engineers trying to understand a disaster
   often follow causal chains ("failure trees") until they find one that can
   account for the calamity. Sherlock Holmes observed that "when you have
   eliminated the impossible, whatever remains, however improbable, must be
   the truth...." Courts need not disdain a method that both engineers and
   detectives find useful.(36)

An expert witness need not rule out all alternative causes for testimony to be admissible. As the district court in Rudd observed, "When an expert relies upon a process of elimination for testimony on specific causation, 'the fact that several possible causes might remain uneliminated' goes to the weight rather than the admissibility of his testimony."(37)

The Seventh Circuit reversed a trial court's exclusion of testimony based in part on the fact that the experts, while, determining that a defect in the steering gearbox caused a driver to lose control, could not conclusively determine the particular defect or whether it was a design or a manufacturing defect. The experts postulated several defects that could have led to the failure.(38)

Plaintiffs have run into trouble in some courts when their experts have not adequately explained that they ruled out alternative causes--other than defect--for the failure alleged, or how they had done so.(39)

Proof of effectiveness of alternative designs. In jurisdictions that require plaintiffs to prove that a specific alternative design would have prevented the injury at issue, Daubert presents particular problems.

Expert testimony has been excluded, and summary judgment granted, where the expert did not support conclusions about alternative designs to the satisfaction of the court.(40) Problems courts cite concerning testimony on alternative designs include lack of expertise regarding the designs; failure to support the reliability of the testimony through testing, statistical analysis, or other means; and failure to show that the plaintiff would not have been injured had the alternative design been used.

The right expert for the right job. Several courts have found experts to be well-qualified, just not in the area in which they testified. In one case, a district court in Louisiana did not permit a defense mechanical engineer to testify that the plaintiffs diabetes, not smoke rising from under his vehicle, slowed his response to a vehicle fire.(41)

In another case, the Eighth Circuit would not allow a mechanical engineer who had been qualified as an expert many times to testify as an expert in "foamology." The court expressed skepticism that such a scientific discipline in fact existed.(42)

Other courts have limited the testimony of mechanical engineers who lack experience with the specific components at issue, finding that "not every mechanical engineer is qualified to testify as an expert in every products liability case.(43)

As the Texas Court of Appeals found, "In some instances, the nature of the design or manufacturing defect may be so complex as to require the expert analysis of a person highly skilled and experienced in that specific automotive component; in other instances, the area of expertise may be relatively simple and straightforward."(44) In that case, a mechanical engineering expert was permitted to testify on throttle control cables, despite a lack of experience with the cables, because they were a "relatively simple automotive component" that "did not require an explanation from a 'rocket scientist' for the jury to understand."(45)

Courts have differed in their views of just how specialized experts' experience must be. In one troubling case mentioned earlier, the Maryland Court of Appeals kept a mechanical engineer with 26 years of experience--including experience designing engine electronics and control systems, resulting in 15 patents--from testifying on air bags because he had no special training or experience with them.(46)

A district court in Indiana permitted a metallurgist to testify on metal liftgate cables but not on alternative designs. Nor would it allow the expert to give an opinion that the cables at issue were defective.(47)

Automakers have argued against expert testimony of mechanical engineers who are not, according to the manufacturer defendants, "automotive engineers." They seek to exclude experts who have not worked in the industry and have not designed components like the ones at issue.

Lack of industry experience has often been used to cross-examine plaintiff auto safety engineering experts. The defense's attempt to use that lack to exclude experts altogether, however, has dangerous implications. It is an effort to control science by declaring that the only valid science is that bought and paid for by the industry. It ignores the history of independent auto safety experts' exposure of automotive dangers, sometimes where the industry had intentionally suppressed knowledge of them. Fortunately, the courts have repeatedly rejected this argument.(48)

Plaintiffs need to use caution in turning to auto mechanics rather than mechanical engineers for expert testimony. The courts have been skeptical of mechanics whose lack of formal education limits the bounds of the opinions they can express.

A district court in Indiana allowed an expert who had worked in the repair industry and subsequently studied vehicle fire cause and origin to testify about the origin of a truck fire. However, it ruled that his proposed testimony on design of truck fuel and electrical systems and his opinion on the adequacy of the subject design were out of bounds.(49)

As mentioned earlier, the Louisiana Court of Appeals reversed a trial court's admission of a mechanic's opinions regarding defective manufacture of a steering assembly.(50)

The First Circuit excluded a mechanic's testimony that an automobile had a "false park" position that would let the vehicle roll when the driver believed it had been put in park. The court based its exclusion on the expert's lack of a mechanical engineering degree, the fact that he had never designed an automobile component, and the lack of similarity between the accident and the simple transmission parking-gear test he had conducted.(51)

Timing can be everything. One scenario is repeated throughout these cases, and it often results in summary judgment for defendants. Plaintiff experts are challenged so late in litigation that, if the court finds inadequate support for an expert's opinion, it is too late for him or her to do further work or for the plaintiff attorney to locate another expert.

Some courts have commented on the unfairness of this practice. A Tenth Circuit opinion held that a post-trial Daubert challenge was untimely.(52)

In that Seventh Circuit case involving the steering box defect, Ford moved, just before trial, to exclude the plaintiff's experts. The federal judge in Indiana heard the motion the first day of trial, after empaneling the jury. It struck the experts, denied the plaintiff's request for a continuance to seek a design expert who would satisfy the court, and dismissed the case for lack of evidence.(53)

The Seventh Circuit reversed, finding the exclusion of the experts an abuse of discretion. The appeals court condemned the unfairness of this practice, observing that "where a trial court's own action causes the need for a continuance, and that court then denies the continuance, resulting in prejudice to a party, courts have generally found an abuse of discretion."(54)

The court said that

   a district court should set a discovery and trial schedule that
   realistically provides both sides with an adequate opportunity to introduce
   necessary evidence. The application of Rule 702 to proposed expert
   testimony can often be an uncertain process and is best conducted in such a
   manner that litigants have a reasonable opportunity to locate experts who
   meet the rule's requirements.(55)

Plaintiffs ought to consider forcing the issue sooner rather than later in the litigation. This can be done through either a motion or a scheduling order with a deadline for Daubert challenges.

Surviving Daubert challenges

If there is a bottom line that comes from the review of cases both admitting and excluding expert testimony, it is that plaintiffs need to build a strong record of support for experts' opinions.

The record must meticulously cite authority for the expert's methodology, as well as proof of the facts applied to the methodology. Testing and analysis may need to extend beyond that which an expert previously may have deemed sufficient to support conclusions.

Plaintiffs cannot wait until the expert is on the stand at trial to make that record. Cases are dismissed based on the failure to support an expert's opinions at deposition, in the expert's report, or in affidavits submitted in opposition to a summary judgment motion.

Even where the trial judge is satisfied that the expert witness testimony is admissible, the record must be strong enough to support the trial judge's conclusion on appeal. This is the clear lesson from the Weisgram case and from other appellate decisions reversing trial courts' admission of expert testimony.(56)

These are steps above and beyond what has been required of litigants in the past. They add to the time pressure on counsel and experts. They add considerably to the cost of the litigation. They are grounds for lawyers' turning down cases because the litigation has simply become too expensive to pursue.

If plaintiffs do not take these steps, however, even strong and meritorious cases may be in jeopardy. Unfortunately, given the subjectivity involved in the courts' gatekeeper function, worthy cases may be in jeopardy no matter what counsel does to prepare.

What has been the fallout for the civil justice system? Possibly improved expert preparation and better quality evidence. Certainly, higher costs and the elimination of valid claims that are no longer cost-effective, to the benefit of manufacturers of dangerous products.

That was undoubtedly one of the political objectives of those who promoted the Daubert line of cases--and possibly of the U.S. Supreme Court in adopting these goals.(57)

Notes

(1.) 509 U.S. 579 (1993).

(2.) See, e.g., Browder v. General Motors Corp., 5 E Supp. 2d 1267 (M.D. Ala. 1998); Donnelly v. Ford Motor Co., 80 F.Supp. 2d 45 (E.D.N.Y. 1999); Oddi v. Ford Motor Co., 234 F.3d 136 (3d Cir. 2000), cert. denied, 121 S. Ct. 1357 (2001); Pillow v. General Motors Corp., 184 F.R.D. 304 (E.D. Mo. 1998); Reali v. Mazda Motor Corp. of Am., Inc., 106 F.Supp. 2d 75 (D. Me. 2000); Rogers v. Ford Motor Co., 952 F.Supp. 606 (N.D. Ind. 1997); Stalnaker v. General Motors Corp., 934 F.Supp. 179 (D.Md. 1996), aff'd, 120 F.3d 262 (4th Cir. 1997).

(3.) See Stuart A. Ollanik, Expert Testimony: Defeating the Kumho Challenge, TRIAL, Nov. 1999, at 28; Ned Miltenberg, Out of the Fire and into the Fryeing Pan, or Back to the Future, TRIAL, Mar. 2001, at 18.

(4.) 526 U.S. 137 (1999).

(5.) 522 U.S. 136 (1997).

(6.) 528 U.S. 440 (2000).

(7.) Daubert, 509 U.S. 579, 592-93.

(8.) Kumho, 526 U.S. 137, 152.

(9.) Joiner, 522 U.S. 136, 146.

(10.) Kumho, 526 U.S. 137, 152.

(11.) Id. at 157 (citation omitted).

(12.) Martin v. Michelin N. Am., Inc., 92 F.Supp. 2d 745, 755 (E.D. Tenn. 2000).

(13.) Compare Ford Motor Co. v. Ammerman, 705 N.E.2d 539 (Ind. Ct. App. 1999) (upholding admission of testimony), cert. denied, 529 U.S. 1021 (2000), with Samuel v. Ford Motor Co., 112 F.Supp. 2d 460 (D. Md. 2000) (excluding similar testimony).

(14.) Compare Dale v. General Motors Corp., 109 F.Supp. 2d 1376 (N.D. Ga. 1999) (excluding expert testimony); Nemir v. Mitsubishi, 60 F.Supp. 2d (E.D. Mich. 1999) (excluding expert testimony); Rogers, 952 F.Supp. 606 (excluding expert testimony), rev'd, 2001 WL 223775 (6th Cir. 2001), with Guild v. General Motors Corp., 53 F.Supp. 2d 363 (W.D.N.Y. 1999) (admitting similar testimony); Nemir, No. 99-1907, 2001 WL 223775 (6th Cir. 2001) (unpublished opinion) (admitting similar testimony).

(15.) See Dale, 109 F.Supp. 2d 1376, 1380-82; Rogers, 952 F.Supp. 606, 615-16.

(16.) J.B. Hunt Transp., Inc. v. General Motors Corp., 52 F.Supp. 2d 1084, 1088 (E.D. Mo. 1999), aff'd 243 F.3d 441 (8th Cir. 2001).

(17.) Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex. 1998); Nemir, No. 99-1907, 2001 WL 223775, reversing 60 F.Supp. 2d 660 (E.D. Mich 1999); Smith v. Ford Motor Co., 215 F.3d 713 (7th Cir. 2000).

(18.) Smith, 215 F.3d 713, 718 (quoting Clark v. Takata Corp., 192 F.3d 750, 759 n.5 (7th Cir. 1999)).

(19.) Donnelly, 80 F.Supp. 2d 45, 50.

(20.) Mitchell v. Uniroyal Goodrich Tire Co., 666 So. 2d 727, 729-30 (La. Ct. App. 1995), writ denied, 669 So. 2d 421 (La. 1996).

(21.) Demaree v. Toyota Motor Corp., 37 F.Supp. 2d 959, 964 (W.D. Ky. 1999).

(22.) Id.

(23.) Schubert v. Nissan Motor Corp., 148 F.3d 25, 31 (1st Cir. 1998).

(24.) Gammill, 972 S.W.2d 713, 727.

(25.) Williams v. General Motors Corp., 639 So. 2d 275, 289 (La. Ct. App.), reconsideration denied, 647 So. 2d 1104 (La. 1994).

(26.) Ford Motor Co. v. Aguiniga, 9 S.W.3d 252 (Tex. Ct. App. 1999).

(27.) Jarvis v. Ford Motor Co., 69 F.Supp. 2d 582, 595 (S.D.N.Y. 1999).

(28.) Wood v. Toyota Motor Corp., 760 A.2d 315, 322 (Md. Ct. Spec. App. 2000), cert. denied, 763 A.2d 735 (Md. 2000).

(29.) Nissan Motor Co. v. Armstrong, 32 S.W.3d 701,708 (Tex. Ct. App. 2000).

(30.) 127 F.Supp. 2d 1330, 1344 (M.D. Ala. 2001) (quoting FED. R. EVID. 702 adv. cmte. notes to 2000 amendment).

(31.) Id.

(32.) Dartey v. Ford Motor Co., 104 F.Supp. 2d 1017, 1024 (N.D. Ind. 2000).

(33.) Reali, 106 F.Supp. 2d 75, 77.

(34.) Rudd, 127 F.Supp. 2d 1330, 1343.

(35.) Id. at 1344.

(36.) Bammerlin v. Navistar Int'l Transp. Corp., 30 F.3d 898, 902 (7th Cir. 1994) (citing A. CONAN DOYLE, THE SIGN OF FOUR, ch. 6 (1890)).

(37.) Rudd, 127 F.Supp. 2d. 1330, 1344 (quoting Ambrosini v. Labarraque, 101 F.3d 129, 140 (D.C. Cir. 1996)).

(38.) Smith, 215 F.3d 713.

(39.) See, e.g., Browder 5 F.Supp. 2d 1267; Donnelly, 80 F.Supp. 2d 45, 50; Mitchell, 666 So. 2d 727.

(40.) See, e.g., Byrnes v. Honda Motor Co., 887 F. Supp. 279,282 (S.D. Fla. 1994); Gray v. General Motors Corp., 133 F.Supp. 2d 530, 535 (E.D. Ky. 2001); Oddi, 234 F.3d 136, 156-58; Reali, 106 F.Supp. 2d 75, 77; Rogers, 952 F.Supp. 606, 615-16.

(41.) Phillips v. General Motors Corp., No. CIV. A. 99-3423, 2000 WL 1285380, at *3 (E.D. La. Sept. 12, 2000).

(42.) J.B. Hunt Transp., Inc., 243 F.3d 441, 444-45.

(43.) Nissan Motor Co., 32 S.W.3d 701,708 (quoting Gammill, 972 S.W.2d 713, 719).

(44.) Id.

(45.) Id.

(46.) Wood, 760 A.2d 315, 320.

(47.) Dartey, 104 F.Supp. 2d 1017, 1024.

(48.) See, e.g., Aguiniga, 9 S.W.3d 252; Clay v. Ford Motor Co., 215 F.3d 663 (6th Cir. 2000), cert. denied, 121 S. Ct. 649 (2000); Dartey, 104 F.Supp. 2d 1017; Nissan Motor Co., 32 S.W.3d 701; Smith, 215 F.3d 713.

(49.) Smith v. Ford Motor Co., 882 F.Supp. 770, 772 (N.D. Ind. 1995).

(50.) Williams, 639 So. 2d 275, 289-90.

(51.) Bogosian v. Mercedes-Benz of N. Am., 104 F.3d 472 (1st Cir. 1997).

(52.) Macsenti v. Becker, 237 F.3d 1223, 1230-31 (10th Cir. 2001), petition for cert, denied, 69 U.S.L.W. 3715 (U.S. Apr. 23, 2001) (No. 00-1634).

(53.) 215 F.3d 713.

(54.) Id. at 722.

(55.) Id.

(56.) See, e.g., Clement v. Griffin, 634 So. 2d 412, 427-28 (La. Ct. App.), writ denied, 637 So. 2d 479 (La. 1994); DePaepe v. General Motors Corp., 141 F.3d 715 (7th Cir.), cert. denied, 525 U.S. 1054 (1998); Williams, 639 So. 2d 275.

(57.) After Bush v. Gore (121 S. Ct. 525 (2001)), is there any doubt that the Supreme Court decides cases to advance political goals?

Stuart A. Ollanik is an attorney with Gilbert, Frank, Ollanik & Komyatte in Arvada, Colorado. He thanks Richard L. Whitworth, an attorney and scholar with the firm, who conducted much of the research for this article.