Tolliver v. Illinois Tool Works Inc.

Background

The plaintiffs asserted product-liability and negligence claims against Illinois Tool Works Inc. concerning the death of Johnny Tolliver, Sr. Tolliver was driving a 1994 rear-loading garbage truck assigned to him by the City of Berkeley when the truck began moving downhill on Parnassus Road. Tolliver and his helper, Andres Herrera, tried to stop it. Tolliver suffered fatal blunt-force injuries while the truck was moving.

The truck had an air-brake system, a mechanical parking brake, and a neutral interlock control system (NICS). The NICS applied the service brakes when activated and engaged, but it could not be engaged while the transmission was in third gear. The California Highway Patrol found no pre-existing mechanical condition that affected the truck’s safe operation, although it found a minor air leak that it determined was not a contributing factor. The investigations did not determine why the truck began rolling.

The plaintiffs relied on expert opinions from Jose J. Granda, Paul Herbert, and Kenneth Nemire. Their opinions included that the NICS was engaged, the truck experienced a loss of air pressure, the NICS design was confusing, and safer alternative designs or warnings could have prevented the death. The defendant moved to strike portions of those opinions and sought summary judgment.

Motion to Strike Expert Evidence

The court applied Federal Rule of Evidence 702 and the reliability principles associated with Daubert. It also considered the disclosure requirements and sanctions under Federal Rules of Civil Procedure 26 and 37.

The court granted in part and denied in part the motion to strike. It found that Dr. Granda’s September 10, 2019 report was primarily an untimely rebuttal report rather than a supplemental report. The court determined that the late disclosure was not harmless and warranted exclusion, except for the portion the court identified as a proper supplementation. The opinion’s discussion identifies that exception as Section II, pages 7–12, while the conclusion identifies it as Section I. The text therefore contains an internal inconsistency about which section remains admissible.

The court denied the request to exclude Dr. Nemire’s and Mr. Herbert’s unspecified deposition testimony because the defendant did not identify the allegedly new opinions. The court also denied the request to strike Dr. Granda’s opinion as a whole, concluding that disputes about his physics-based accident reconstruction and his interpretation of the evidence could be addressed through cross-examination and competing expert testimony.

The court excluded Dr. Granda’s alternative-design opinions that depended on the truck having an anti-lock brake system, an electronic control unit, or a back-up sensor, because the record indicated that the truck did not have those systems. It did not exclude alternative-design opinions involving an incline-detection sensor, forward-motion sensor, or velocity sensor. The court also declined to exclude the alternative-design opinions of Dr. Granda and Dr. Nemire merely because the proposed designs had not been tested.

The court denied the requests to strike Mr. Herbert’s opinion that the NICS had a high propensity for failure and Dr. Nemire’s opinion that the NICS design was likely to confuse users. The court found that those opinions had factual or analytical support and that disagreements about them were matters for the jury.

Summary Judgment

The court granted in part and denied in part the motion for summary judgment. On causation, it found sufficient evidence for a jury to decide whether the NICS was activated and engaged, whether the truck had inadequate air pressure, and whether the gear shifter moved from neutral to third gear after the truck began rolling. The court treated the conflicting investigation reports and expert opinions as factual disputes that could not be resolved on summary judgment. It therefore denied summary judgment on the claims other than failure to warn.

The court granted summary judgment on the plaintiffs’ failure-to-warn claim. The defendant relied on the “sophisticated user” defense, which can eliminate a manufacturer’s duty to warn when the user knew or should have known about the relevant danger. The court found that Tolliver was a sophisticated user because he was a long-time garbage-truck driver who trained other drivers and instructed them to use the NICS and separately apply the parking brake on hills. The court concluded that he knew the NICS did not activate the parking brake and that the parking brake had to be set separately.

Disposition

The order states that the motion to strike was granted in part and denied in part. It grants the motion for summary judgment as to the failure-to-warn claim and denies it with respect to all other claims. The order does not state that either motion was granted or denied with prejudice.