Product Defect Expert Witness’ Testimony Regarding Vehicle and Equipment Recalls Limited

Plaintiffs, Kevin and Vivian Hoog sought monetary damages following a fire, which they linked to a defective NDR 1292 gas absorption refrigerator (the “Refrigerator”) manufactured by Dometic. The Plaintiffs had the Refrigerator installed as original equipment in Plaintiffs’ 2007 RV, which Plaintiffs purchased from a private party around October 26, 2011.

Dometic initiated recalls of select models of its gas absorption refrigerators through the National Highway Traffic Safety Administration (“NHTSA”) in 2006 and 2008. Plaintiffs’ Refrigerator model was not among the select models. Plaintiffs alleged, however, that the NDR 1292 refrigerators shared common design defects with the recalled models and that Dometic was aware “that these model refrigerators continued to fail and cause fires.”

They also added that Dometic had an ongoing duty to disclose known defects and to conduct recall and retrofit campaigns of its gas absorption refrigerators in a timely manner. 

Plaintiffs offered Allan J. Kam, an attorney who formerly worked for NHTSA, to testify about the policies, procedures, and processes regarding vehicle and equipment recalls. Dometic filed a motion to exclude Kam’s proposed testimony under Rule 702 and Daubert v. Merrell Dow Pharmaceuticals (92-102), 509 U.S. 579 (1993). Dometic asserted that Kam’s opinions were not relevant and would not help the trier of fact to understand the evidence or to determine a fact in issue.

Product Defect Expert Witness

Allan J. Kam holds the degree of Juris Doctor With Honors from The George Washington University Law School. On April 30, 2000, he retired from the National Highway Traffic Safety Administration (“NHTSA” or “the agency”), United States Department of Transportation (“DOT”), after more than twenty-five years of service as an attorney in the NHTSA Office of the Chief Counsel’s Litigation and Enforcement Division. He received numerous NHTSA and DOT performance awards.

He has had broad experience with complex NHTSA safety defect and standards compliance investigations, including those resulting in the largest recalls in NHTSA’s history.

Discussion by the Court

Dometic did not challenge Kam’s qualifications. Rather, Dometic’s arguments were directed at the reliability and relevance of Kam’s proposed expert testimony.

Kam’s opinions were generally relevant and helpful

Dometic asserted that Kam’s opinions lacked relevance because Plaintiffs’ Refrigerator model was not among the select models, and Kam did not opine whether Dometic violated any of its statutory recall obligations or whether it failed to conduct the recalls in a timely, inclusive, or effective manner. Kam confirmed in his deposition that he did not “conduct that kind of review.” Dometic asserted that the opinions that Kam did offer were not tied to any factual dispute in that case.

Dometic conceded in its motion for partial summary judgment that it had assumed a post-sale duty by instituting and conducting the recalls, and that law required it to exercise reasonable care in conducting the recalls. Whether Dometic breached its post-sale duty of care was for the jury to determine.

The Court concluded that Kam’s proposed testimony was sufficiently tied to the facts of the case and would aid the jury in resolving whether Dometic breached its post-sale duty of care. Contrary to Dometic’s argument, it was improper for Kam to simply state that Dometic violated federal regulations or provisions of the Safety Act. That would have been a mere legal conclusion that would not have assisted the trier of fact in understanding an issue in the case. The Court, however, allowed Kam to testify based on his experience, skills, and education about his understanding of NHTSA’s standards or practices with respect to recall or retrofit campaigns.

Kam did not offer ultimate legal conclusions on the requirements of the Safety Act

Dometic asserted that Kam’s “attempts” to explain the requirements under “the Safety Act (albeit sometimes incorrectly)” were not helpful to the jury, and that the Court should have excluded that testimony under Daubert because expert witnesses may not give opinions on a question of law.

The Court reviewed Kam’s expert report and concluded that he did not offer ultimate legal conclusions on the requirements of the Safety Act. Rather, Kam’s opinions were the product of his personal knowledge and 25 years of experience as a NHTSA enforcement attorney and concerned specialized matters of NHTSA agency practice that a typical juror would not fully understand without expert assistance.

Kam’s statement in his report that NHTSA “did not make findings of ‘no defect'” was not likely to mislead or confuse the jury

Dometic contended that Kam’s opinions would confuse or mislead the jury “into believing that a safety defect still exists in the recalled refrigerators simply because NHTSA did not make a finding of ‘no defect.'” Kam did not opine that a safety defect still exists in the recalled refrigerators, nor did he opine that Dometic’s defect reports were inaccurate or misleading. Rather, he stated that NHTSA “did not make findings of ‘no defect'” and “did not ordinarily evaluate the truth, accuracy, or completeness of statements made in a Part 573 report.”  The Court believes that a jury is capable of understanding Kam’s testimony and that a jury can make their own decision about whether  Kam’s opinions are credible.

Kam’s proposed testimony that NHTSA did not approve or scrutinize the merits of Dometic’s remedy pursuant to the recalls was not reliable or relevant, and the Court excluded it

The Court found that Kam’s opinions concerning the safety remedy provided as part of the recalls and whether NHTSA approved of the remedy were not relevant or reliable. It was undisputed that Plaintiffs’ Refrigerator was not included in the recalls. Consequently, the safety remedy provided pursuant to the recalls was not included in Plaintiffs’ Refrigerator. Further, it did not appear that Dometic is asserting that NHTSA approved of its safety remedy.

Kam conceded that he could not “say with certainty” that NHTSA did not scrutinize Dometic’s remedy, and he confirmed that he did not speak to anyone at NHTSA regarding Dometic’s recalls.

Kam’s opinion that NHTSA did not scrutinize or approve of Dometic’s remedy appeared to be based on what Kam describes as NHTSA’s ordinary or typical procedure when there has been no preceding defect investigation. In other words, it was not based on facts that would enable Kam to accurately conclude that NHTSA did not approve or scrutinize Dometic’s remedy.

Kam’s testimony concerning Dometic’s completion rates for the recalls is reliable and relevant

Dometic asserted that Kam’s opinion that Dometic’s completion rates for the recalls were well below average was not relevant and was unreliable. Plaintiffs asserted that Kam had the specialized knowledge and expertise to conclude that a recall completion rate of less than 50 percent was low.

Upon review, the Court found that Dometic’s criticisms of Kam’s testimony regarding the recall completion rates concerned the weight of his testimony as opposed to its admissibility.

Held

The Court granted in part and denied in part Defendant Dometic Corporation’s motion to exclude expert declaration of Allan Kam.

Key Takeaways:

• Legal Conclusions: To ensure testimony is helpful, an expert may not state legal conclusions drawn by applying the law to the facts, but an expert may refer to the law in expressing his or her opinion. Kam did not offer ultimate legal conclusions but provided insights based on his experience, relevant for understanding NHTSA’s standards.

• Sufficient Factual Basis: Witnesses that rely on experience must explain how that experience leads to the conclusion and why that experience is a sufficient basis for the opinion. Kam’s opinion that NHTSA did not scrutinize or approve of Dometic’s remedy appeared to be based on what Kam describes as NHTSA’s ordinary or typical procedure when there has been no preceding defect investigation.

• Relevance: Relevant expert testimony must logically advance a material aspect of the case and aid the jury in resolving a factual dispute. The Court concluded that Kam’s proposed testimony would help determine whether Dometic breached its post-sale duty of care.

Case Details:

Case Caption:	Hoog Et Al V. Dometic Corporation
Docket Number:	5:20cv272
Court:	United States District Court, Oklahoma Western
Order Date:	March 22, 2024