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Bachman v. General Motors Corporation

July 29, 2002

DEBRA L. BACHMAN, AS MOTHER AND LEGAL GUARDIAN OF THE ESTATE AND PERSON OF DANIELLE L. BACHMAN, A DISABLED PERSON, AND DANIELLE L. BACHMAN, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
GENERAL MOTORS CORPORATION, A FOREIGN CORPORATION; UFTRING CHEVROLET-OLDSMOBILE, INC., AN ILLINOIS CORPORATION; DELPHI AUTOMOTIVE SYSTEMS, A FOREIGN CORPORATION; AND DELCO ELECTRONIC SYSTEMS, A FOREIGN CORPORATION, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Woodford County No. 98L21 Honorable Scott Drazewski, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

In December 2000, plaintiffs, Debra L. Bachman and Danielle L. Bachman, filed a third-amended complaint against defendants, General Motors Corporation (General Motors), Uftring Chevrolet-Oldsmobile, Inc. (Uftring), Delphi Automotive Systems (Delphi), and Delco Electronic Systems (Delco), seeking to recover for injuries Danielle sustained when her 1996 Chevrolet Cavalier collided with an oncoming 1984 Ford one-ton delivery van (step van). Plaintiffs alleged that the Cavalier's supplemental inflatable restraint system (air bag) inadvertently deployed prior to the collision, thus causing the collision. Later that same month, following a jury trial, the jury returned a verdict in favor of defendants and against plaintiffs.

Plaintiffs appeal, arguing that (1) the trial court erred by (a) allowing evidence regarding data downloaded from the Cavalier's sensing and diagnostic module (SDM or SDM-R) (the air-bag crash sensor) and admitting related opinion testimony, (b) striking the causation opinion of one of plaintiffs' expert witnesses, (c) limiting the testimony of certain witnesses involved in allegedly similar occurrences, (d) allowing evidence regarding data downloaded from the SDMs of the vehicles that were driven by the "similar occurrence" witnesses, (e) denying plaintiffs' motion to bar defendants' opinion witnesses based on alleged discovery violations, (f) permitting the jury to view Danielle's damaged Cavalier during defendants' case in chief, (g) allowing one of defendants' witnesses to testify about the dangerousness of the curve where Danielle's collision occurred, (h) allowing evidence regarding Danielle's seat belt use and the condition of her seat belt following the collision, (i) submitting a special interrogatory to the jury, and (j) denying plaintiffs' motion to amend their complaint to add a punitive damages prayer, pursuant to section 2-604.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-604.1 (West 1996)); (2) the jury's verdict was against the manifest weight of the evidence; and (3) the trial court's cumulative errors denied plaintiffs a fair trial. We affirm.

I. BACKGROUND

In late October 1996, Danielle purchased a new 1996 Cavalier from Uftring. On the morning of November 6, 1996, Danielle was driving her Cavalier north on Nofsinger Road in Woodford County. At around 7:45 a.m., Danielle lost control of the car and collided with an oncoming step van. As a result of the collision, Danielle sustained very serious and permanently disabling injuries.

In June 1998, plaintiffs sued defendants (as well as other entities that are no longer parties to this action) for injuries Danielle sustained in the collision. In December 2000, plaintiffs filed a third-amended complaint, alleging as follows: (1) the air bag in Danielle's Cavalier, which was sold by General Motors through its authorized dealer, Uftring, was defective in that it inadvertently deployed because its SDM (which was designed and manufactured by Delphi and Delco) was "hypersensitive" to road surfaces and objects striking the Cavalier's floor pan; (2) General Motors, alone and by and through Uftring, failed to warn consumers about defective air bags in 1996 Cavaliers; (3) negligence on the part of General Motors and Uftring; (4) Delphi and Delco failed to warn consumers about the defective air bags in 1996 Cavaliers; and (5) negligence on the part of Delphi and Delco.

A. Frye Hearing

In September 2000, plaintiffs filed a motion in limine, seeking to bar defendants from presenting evidence regarding data downloaded from the SDM in Danielle's Cavalier. In October 2000, defendants filed a supplemental response to plaintiffs' motion, requesting a Frye hearing (see Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)) to determine the admissibility of the SDM evidence. The trial court granted defendants' request, and the evidence at the November 2000 hearing showed the following.

Douglas Nunan, a senior project engineer in Delphi's restraint systems electronics group, testified that between August 1989 and May 1996, he was responsible for designing and developing SDMs, including the type of SDM installed in Danielle's Cavalier. Crash sensing devices like the SDM are commonly used throughout the automobile industry. The SDM, which is controlled by a microprocessor, has multiple functions: (1) it determines if a severe enough impact has occurred to warrant deployment of the air bag; (2) it monitors the air bag's components; and (3) it permanently records information. The SDM contains software that analyzes the longitudinal deceleration of a vehicle to determine whether a deployment event has occurred "based on testing that was done previously to determine what events would require protection by an air bag." When the SDM senses an event (either a deployment event or an event that is not severe enough to require an air bag--that is, a near-deployment event), that information is recorded to the microprocessor's electrically erasable programmable read-only memory (EEPROM). (When the air bag is deployed, the SDM records the event as a "Code 51.") Nunan explained that by recording data, "you have a record to go back and look to see, did the result that came out match what you should have had." Although certain diagnostic codes stored in the EEPROM could be erased, the SDM installed in the Cavalier "was specifically designed to prevent" air-bag deployment data from being altered or erased.

Based on crash test data, Nunan opined that the type of SDM installed in Danielle's Cavalier accurately and reliably recorded data. Because SDM data is stored in hexadecimal format, it must ordinarily be converted to a decimal format before it can be analyzed. (A hexadecimal system is a numbering system that has 16 characters; that system employs the letters A through F, in addition to the numbers zero through nine, which are used in the decimal system.) A competent engineer could convert and read the data using a basic calculator and General Motors documents. In mid-2000, a publicly available crash data retrieval tool (Vetronix equipment) was updated with new software to allow anyone with a Windows-based computer to download SDM data in an easy-to-read format. Based on Nunan's experience, engineers at the National Highway Traffic Safety Administration (NHTSA), as well as automobile manufacturing engineers, rely upon data that is recorded and stored by SDM-type devices. He opined that deployment and crash event data recorded by the SDM is generally accepted as reliable and accurate by the automobile industry and the NHTSA.

Nunan also stated that a power loss during a crash would not affect data previously recorded. Therefore, the fact that Danielle's Cavalier lost electrical power during the collision did not affect the reliability or accuracy of the data recorded by the SDM. Due to the Cavalier's loss of electrical power, an external power source was used to retrieve data from the SDM in August 1997. According to Nunan, such a procedure is normal and does not affect the accuracy of the SDM's data. Nunan further stated that the newly updated Vetronix equipment could be used to retrieve data from Danielle's Cavalier, and that data would be identical to the data originally retrieved. He acknowledged that the SDM's performance specifications were not public knowledge. He also acknowledged that at the time of the collision, crash data recorders in vehicles were not standardized.

Nunan further testified that General Motors began receiving reports in 1996 indicating that air bags in some Cavaliers and other "J-cars" inadvertently deployed when small road objects hit a specific area under the car and the SDM's microprocessor incorrectly interpreted the incident as a deployment event. (J-cars included Cavaliers and Pontiac Sunfires.) General Motors' investigation of those inadvertent, non-crash deployments reconfirmed the reliability of the SDM's data-record-ing capabilities. Nunan explained that the eventual recall involved repairing the SDMs by recalibrating the software to create a higher threshold for air-bag deployment. However, that recalibration did not have anything to do with the SDM's data-recording function or the reliability of its recorded data. He also stated that in the reported inadvertent, non-crash deployment events, the SDMs recorded only a small change in velocity (delta-v or delta-velocity) or deceleration of the vehicles.

John Sprague, a Delphi systems engineer who worked at General Motors in Warren, Michigan, testified that from 1993 through 1996, he was a sensing application engineer for several vehicles, including the 1996 Cavalier. He conducted development testing of the SDM and investigated actual field deployments. The SDM on the 1996 Cavalier was designed to sense longitudinal deceleration of the vehicle. A competent and knowledgeable engineer could convert and read the SDM data using General Motors documents and a basic calculator. He acknowledged that the 1996 Cavalier SDM's product definition documents were "generally treated as confidential" by General Motors.

Sprague also stated that he was involved in the investigation of the inadvertent-deployment cases. That investigation included downloading and reading data from (1) SDMs involved in the inadvertent deployments and (2) SDMs in vehicles used to replicate the actual inadvertent deployments. That data showed a relatively low delta-v, ranging from one to three miles per hour. The investigation also showed that when the vehicle's floor pan was hit in a particular manner, it caused a high frequency resonance that the SDM interpreted as a deployment event. The SDM's microprocessor correctly measured and performed calculations with the input signal, and using a deployment logic algorithm, the SDM compared the calculated values to calibration parameters programmed into the SDM. The SDM accurately recorded the delta-v as calculated by the SDM's microprocessor. However, the SDM made a decision to deploy the air bag when it was not actually needed.

Sprague opined that neither the defect nor the recall had anything to do with the SDM's recording function, the retrieval of data from the SDM, or the reliability of its recorded data. General Motors submitted information regarding the investigation to the NHTSA, which must approve the determination and proposed correction of an automobile defect. According to Sprague, no one from NHTSA ever questioned the reliability or accuracy of the data being downloaded from the 1996 J-cars. Based upon his development testing of the SDM and his investiga-tion of the inadvertent-deployment events, Sprague opined that the SDM's recording function was both reliable and accurate.

Sprague further testified that the data retrieved from Danielle's Cavalier showed a delta-v of 16.2 miles per hour, which was above the air-bag deployment threshold and consistent with a crash event. He opined that the data retrieved from Danielle's Cavalier was not consistent with the data retrieved from the vehicles involved in the inadvertent-deployment events.

The trial court also considered several affidavits and documents submitted by the parties. Donald Floyd, a former supervisor of diagnostic software activities at General Motors, averred that he was responsible for releasing data to Vetronix for its use in developing a crash retrieval system for General Motors cars. The Vetronix equipment allows anyone with a computer equipped with Windows 95 or 98 to download data recorded by SDMs on General Motors vehicles. Floyd participated in testing with Vetronix, the Insurance Institute for Highway Safety, and Canadian law enforcement, in which the accuracy of downloaded SDM data was confirmed.

Daniel Faust, a General Motors staff development engineer, averred that the NHTSA and the National Transportation Safety Board (NTSB) have requested other downloaded SDM collision data from General Motors. Keith Schultz, a General Motors senior staff engineer, averred that other government and law enforcement agencies also request and rely on SDM collision data downloaded by General Motors engineers. Schultz and NHTSA representatives co-authored an article entitled "Recording Automotive Crash Event Data," in which they (1) concluded that the loss of electrical power during a crash did not affect the reliability or accuracy of data retrieved from the SDM and (2) suggested traffic safety uses for the SDM data.

After considering the evidence and counsel's arguments, the trial court denied plaintiffs' motion in limine, upon determining that the data downloaded from the SDM in Danielle's Cavalier and opinions regarding that data were admissible at trial under both (1) the Frye standard (Frye, 293 F. at 1014); and (2) the "Frye-plus-reliability" standard set forth by this court in Harris v. Cropmate Co., 302 Ill. App. 3d 364, 368-75, 706 N.E.2d 55, 60-65 (1999).

B. The Trial

At the November and December 2000 jury trial, Danielle testified that on October 28, 1996, she purchased a 1996 Cavalier from Uftring. When Danielle, who is 5 feet tall, drove her car, her seat was positioned close to the steering wheel, in an upright position. Around 7:15 a.m. on November 6, 1996, she left her house and drove toward Wesley Schalk's house on Nofsinger Road. About one-half mile from Schalk's house, the road had a rough section leading into a curve. That morning, she was driving between 35 and 40 miles per hour on that section of road when "out of the blue [her] air bag unexpectedly deployed." The air bag knocked her hands off the steering wheel, hit her head, and rendered her unconscious, causing her to lose control of her car. She did not remember anything else about the collision.

Danielle also testified that prior to the collision, neither Uftring nor General Motors warned her that a greater risk of inadvertent air-bag deployment existed in 1996 Cavaliers. She acknowledged that during her discovery deposition, she testified that after the air bag deployed, she tried to unbuckle her seat belt and jump out of her car.

James Reed testified that around 8 a.m. on November 6, 1996, he was driving a 1984 Ford one-ton step van south on Nofsinger Road, which is a two-lane, tar and chip road. According to Reed, no loose gravel was on the road. As he was driving around a curve, Danielle's car "started crossing the line" and coming toward him. He acknowledged that during his deposition, he testified that Danielle was traveling too fast for the curve she was approaching. According to Reed, "[i]t looked like she might have gotten control of [her car] and hit the dirt and then she [came] at [him] sidewise." Reed put on his brakes, steered toward the right, and was almost completely stopped when the front driver's side of Danielle's car hit his step van. Danielle's car did not slow down significantly prior to the collision. Reed did not see smoke inside Danielle's car as it was coming toward him, nor did he see anything inside her car at the time of the collision. Following the collision, Reed entered the passenger's side of Danielle's car and noticed that the driver's side air bag had deployed.

Richard A. Schneider, an Uftring auto body technician, testified that on the morning of November 6, 1996, he was driving behind Reed on Nofsinger Road. Nofsinger Road is "a blacktop surface road that proceeds straight for some time, and *** has a series of gradual S-curves with a dip in the area where the accident occurred." The road has several bumps south of the collision scene; however, those bumps had never affected Schneider's ability to control his car when driving between 35 and 50 miles per hour. When he first noticed Danielle's car, she was traveling north around a curve on Nofsinger Road. Schneider estimated that Danielle was going "significantly more" than the posted 35-mile-per-hour speed limit. Schneider saw Danielle's car fishtail to the left, with the back end of her car crossing the centerline into the southbound lane, then back to the right, and then back to the left again. At the time of the collision, the front of Danielle's car was pointing in a northeastern direction. According to Schneider, the left front portion of Reed's step van collided with the "rear of the left front fender" and the left rear quarter panel of Danielle's car. He acknowledged that during his discovery deposition, he testified that Reed's step van hit Danielle's car at a right angle. At the time of the collision, Schneider did not see smoke inside Danielle's car or the air bags deploy. As he approached Danielle's car following the collision, he smelled the odor of deployed air bags and saw that both air bags had deployed and Danielle was wearing a seat belt.

Daniel Law, an Illinois State Police sergeant, testified that at around 7:50 a.m. on November 6, 1996, he arrived at the scene of the collision. After observing Danielle, Law requested Life Flight, an emergency helicopter. He noted that the surface of Nofsinger Road was dry that morning. Based on Law's background as an accident investigator and his inspection of the scene, he concluded that Danielle's speed was a contributing cause of the collision. Law acknowledged that he did not calculate Danielle's speed at the moment of the collision.

William Gray, Jr., testified that at the time of the collision, he had lived on Nofsinger Road for about eight years and had driven on the road many times. Approximately 300 feet south of the collision site, the road's surface was "wavy [and] ripply." When he drove over that section of the road, his vehicle bounced and vibrated "a little bit." William stated that on the morning of November 6, 1996, Nofsinger Road was damp.

Ricki Gray testified that at the time of the collision, she had lived on Nofsinger Road for about seven years. When driving her car around the curve near the "rippled" section of the road, it gave her the "feeling that [she] want[ed] to lose control."

Several physicians, including Dr. Ronald Meyer, Danielle's treating physician, Dr. Panna Goswami, a rehabilitation physician, and Dr. Jai Kumar, a neurologist, testified about Danielle's various injuries and their treatment of her following the accident.

John Sonye, Jr., General Motors' director of product investigations for North America, testified as an adverse witness that he participated in field performance evaluations of General Motors products. He participated in the investigation into claims of inadvertent air-bag deployments in 1996 and 1997 J-cars (referred to as the "1241 investigation"). Based upon that investigation, General Motors recalibrated the air-bag software to create a higher threshold for air-bag deployment. Sonye also stated that when the SDM commands an air-bag deployment, it records the event as a Code 51. In some of the 1996 and 1997 Cavaliers that Sonye investigated, the SDM showed a Code 51 although no crash had occurred, which meant that the air bag had inadvertently deployed.

Sonye then identified plaintiffs' exhibit No. 7, an August 1998 recall letter from General Motors to its customers, which stated that (1) "General Motors [had] decided there [was] a defect related to motor vehicle safety in 1996 and some 1997 Chevrolet model vehicles"; and (2) "[b]ecause of certain calibrations in the air bag's computer, there [was] an increased risk of an air[-]bag deployment in a low speed crash or when an object strikes the floor pan." He acknowledged that the recall letter, which was the only notice sent to customers, also advised customers that their Chevrolet dealers would reprogram their SDMs at no charge to reduce the possibility of inadvertent deployments. He also identified plaintiffs' exhibit No. 28, an August 1998 product recall campaign bulletin, which stated that General Motors had determined that a defect "related to motor vehicle safety" existed.

Sonye further testified that the 1241 investigation, which was in its "infancy stage" in November 1996, ultimately showed that when the Cavalier's floor pan was hit in a particular manner with a force equivalent to a three- to five-ounce hammer, it caused an air-bag deployment. In those instances, the data recorded by the SDM showed a delta-v of less than five miles per hour, which "was clearly below the threshold at which it should have deployed." Sonye further stated that the data retrieved from the SDMs was reliable and was used to identify the inadvertent-deployment problem. He explained that the SDM accurately recorded data; however, it incorrectly interpreted that data as a crash. Once data is recorded by the SDM, it cannot be altered or erased, and a power loss during a crash would not affect data previously recorded.

Sprague testified as an adverse witness that Delphi designed and manufactured the SDM that was installed in 1996 and 1997 Cavaliers. He participated in the 1241 investigation, which showed that the inadvertent air-bag deployments occurred following short-duration events with "relatively flat low [delta velocities] with little or no damage to the vehicles." The delta-v in the inadvertent air-bag deployments ranged from one to three miles per hour. Based on the 1241 investigation, the investigators changed the SDM's sensing calibration to increase the air-bag-deployment threshold. Sprague acknowledged that between October 1995 and August 1998, General Motors received approximately 200 complaints of inadvertent air-bag deployments. Around 24 complaints were filed prior to November 6, 1996.

Brian Everest, a General Motors product analyst, testified as an adverse witness that he analyzed the performance of air bags during crashes involving General Motors vehicles. He participated in the August 4, 1997, joint inspection of Danielle's Cavalier. Everest visually inspected Danielle's car, but he did not inspect the car's undercarriage. He also downloaded data from the SDM using an event data retrieval unit (EDRU) that interfaces either with a vehicle's data link connector or directly to the SDM. Everest acknowledged that a person must receive some training to download data from an SDM. A copy of the downloaded data was provided to plaintiffs' attorney and their engineering expert. The SDM detects whether a vehicle's air bags should deploy, monitors the air bag's components, and permanently records information. The download from Danielle's SDM revealed only 160 to 170 milliseconds of data, although the SDM was capable of recording up to 300 milliseconds. Everest stated that a power loss likely caused the SDM to record only 160 to 170 milliseconds of data. He did not know what caused the power loss in Danielle's car.

Keith Schultz, a senior staff engineer for General Motors' product investigations department, testified as an adverse witness that his department's primary role is to communicate with the federal government regarding problems with General Motors products. He stated that the tool that was used to download data from the SDM was not publicly available in 1996. At that time, a person would need certain General Motors documents to interpret the downloaded data. However, once provided with the proper documents, a competent engineer could interpret data downloaded from the SDM. General Motors provided the proper documents to plaintiffs' attorney and experts in this case. Sometime in 2000, a crash data retrieval tool that was designed to download and interpret SDM data was made available to the public.

Dennis McConnell, a General Motors customer assistance manager, testified that he assisted in the 1241 investigation. He identified plaintiffs' exhibit No. 68 as an August 22, 1996, customer complaint regarding a 1996 J-car's air bag that had deployed "with no impact." McConnell also identified plaintiffs' exhibit No. 67 as an October 30, 1995, customer complaint regarding a 1996 Cavalier's air bag that had deployed without impact. He stated that such customer complaints were kept in the regular course of business.

Douglas Page, a mechanical engineer, testified as plaintiffs' expert witness that he had almost 35 years' experience in the aerospace industry, including work with the F-5 fighter plane and developing certain devices for the Gemini and Apollo space programs. Page acknowledged that he had never worked in the automobile industry or designed any type of air bag or SDM. Page did not have experience testing a recording system like the one on the SDM or retrieving crash event data from an automobile. However, he stated that based on his work in the aerospace industry, he understood the general principles of air-bag deployment. On August 4, 1997, Page conducted a joint inspection of Danielle's Cavalier, along with some General Motors inspectors. Page identified certain photographs, which showed damage to Danielle's car "from just behind the front wheel" on the driver's side to the rear left wheel. Following the visual inspection, the General Motors inspectors removed the SDM and downloaded its recorded data.

Page also testified that he reviewed several items in formulating his opinions, including the following: (1) a printout of the downloaded data from the SDM removed from Danielle's Cavalier; (2) excerpts from the Cavalier's owner's manual and service manual regarding its air-bag system; (3) a videotape showing the accident scene and Reed's step van; (4) photographs of the step van; (5) correspondence between NHTSA and Sonye; (6) a "near deployment file worksheet"; (7) a copy of the accident report; (8) several discovery depositions; and (9) certain General Motors and NHTSA documents.

Based on his review of those items, Page opined that the SDMs installed in 1996 and some 1997 Cavaliers (1) were defective because they had an increased risk of inadvertent deployment and (2) had inadvertently deployed in over 200 cases. He also opined that the air bag in Danielle's Cavalier "inadvertently deployed primarily due to design faults in the system." He based that opinion on (1) "an accumulation of information from throughout the General Motors documents"; (2) Danielle's deposition testimony that the air bag inadvertently deployed; (3) Schneider's deposition testimony that he never saw Danielle's air bag deploy; and (4) Reed's deposition testimony that he saw Danielle's car fishtailing prior to the collision. Page also stated that the condition of Nofsinger Road (specifically, the bumpy, "washboard" section and loose pebbles) could have caused the inadvertent deployment of Danielle's air bag.

Page also opined that the air bag in Danielle's Cavalier was not designed to deploy on a side impact. He based that opinion on his review of (1) Cavalier's owner's and service manuals, and (2) deposition testimony. Page explained that the service manual stated that the air bag was designed to deploy when the car was involved in a "frontal crash up to 30 degrees off the center[]line of the vehicle." He further opined that the collision involved a "t-bone" side impact to Danielle's Cavalier, basing that opinion on his review of the photographs of her car following the collision. Page acknowledged that his opinion in this regard was "at odds" with plaintiffs' accident reconstruction expert, who opined that Reed's step van hit Danielle's car at a 43-degree angle.

Page additionally opined that the data downloaded from the SDM in Danielle's car (1) was in a hexadecimal code, which was confidential and known only to General Motors, Delco, or Delphi, and (2) was not accurate or reliable. He stated that the algorithms and formulas were proprietary to General Motors and not subject to examination by him. He also stated that the SDM "can be lied to" by its sensors. Although the SDM can record 300 milliseconds of data, the printout from Danielle's SDM contained only 170 milliseconds of data.

Page acknowledged that he did not know exactly what caused Danielle's air bag to deploy. He also acknowledged that he did not inspect the site of the collision or Reed's step van. Page further stated that the SDM from Danielle's Cavalier recorded a longitudinal deceleration during the November 6, 1996, incident. The data downloaded from that SDM showed a delta-v of over 16 miles per hour, which exceeded the level at which the air bag was designed to deploy. The SDM recorded only one deployment event during the time Danielle was driving the Cavalier on the morning of November 6, 1996. Page additionally acknowledged that he did not rely on the data downloaded from the SDM in Danielle's car because he never attempted to interpret the data and "[i]t was meaningless to [him]." Nor had he compared the data down-loaded from Danielle's SDM with the data downloaded from the Cavaliers that were part of the 1241 investigation. Page also conceded that he could not say that the SDM was inaccurate.

Ronald L. Van Daele, plaintiffs' accident reconstruction expert, testified that "[t]he contact damage on the Cavalier [began] at the rear of the front left wheel, wheel well, and continue[ed] rearward, including the driver's door, the left side of the windshield, left side of the roof, the rear left quarter panel and ending in the center of the rear left wheel well." Van Daele opined that based on his reconstruction of the accident, Reed's step van hit Danielle's car at a 43-degree angle. He stated that the impact constituted a side impact, but not a "90-degree, pure t-bone side impact." Van Daele also stated that the Cavalier's initial instability was due to the bumpy road surface. He further stated that "[t]he allegation that the air bag inadvertently deployed causing [Danielle] to be stunned appears to be reasonable." He opined that (1) "[t]he Cavalier appeared to be driven by a person who could have been stunned, but not certainly out of control"; and (2) he could think of no other cause for Danielle's lack of reaction to the approaching hazard of Reed's step van. Van Daele additionally opined that if Danielle had attempted to negotiate the curve just south of the collision scene at a high rate of speed, she would have crashed into a nearby ravine, not Reed's step van. The only role speed played in the collision was its effect on the severity of the crash.

Van Daele acknowledged that (1) the data downloaded from the SDM in Danielle's Cavalier showed a delta-v of over 16 miles per hour and (2) the Cavalier's collision with Reed's step van was the only thing that could have resulted in such a change in velocity.

Several witnesses testified that they had been driving 1996 or 1997 J-cars when the driver's side air bag inadvertently and unexpectedly deployed. Those witnesses also testified that the air bag knocked their hands off the steering wheel and created noise and smoke upon deployment.

Sharon Seckler testified for defendants that on the morning of November 6, 1996, she was in her house when she heard a crash. She walked down her driveway and saw that a Cavalier and a step van had collided. Seckler looked inside Danielle's car and noticed that Danielle was wearing a seat belt and the air bag had deployed. Seckler stated that she had lived on Nofsinger Road for almost eight years and had frequently driven through the same curve Danielle had driven through just before the collision. Based on Seckler's personal experience, if a person drives around the curve at more than 35 miles per hour, that person could lose control and cross the centerline.

Alan Thebert, a crash analysis automotive engineer, testified as defendants' accident reconstruction expert that when Reed's step van finally collided with the left rear wheel of Danielle's car, "the force between the two vehicles was almost purely front to rear." Thebert opined that Danielle was traveling at approximately 55 to 60 miles per hour as she drove through the curve approaching the collision site. He also opined that Danielle was driving 45 to 50 miles per hour when the collision occurred. Thebert further opined that (1) Reed's step van collided with Danielle's Cavalier at a 30- to 45-degree angle; and (2) as a result of the collision, the Cavalier experienced longitudinal deceleration. He additionally opined that (1) Danielle was steering the Cavalier as she came around the curve and up to the point of the collision and (2) the collision was due to driver error and excessive speed.

Edward McKenna, a product litigation consultant, testified for defendants that in April 1999, he inspected the driver's seat belt assembly in Danielle's Cavalier. McKenna opined that (1) Danielle had worn the seat belt during the collision, (2) "the marks on the belt" and latch plate showed that Danielle moved forward and to the left during the collision, and (3) "[t]he seat belt restrain[ed] the forward motion when the longitudinal deceleration was being experienced by the car."

Nunan testified regarding the purposes, function, and accuracy of the SDM, as he did at the Frye hearing. He also stated that based on his review of a videotape of the downloading of the SDM data from Danielle's Cavalier, the downloading was performed properly. Nunan opined that the downloading process had no effect on the data downloaded from the SDM. The downloaded data showed that the delta-v for Danielle's Cavalier during the collision was 16.2 miles per hour, which was above the air-bag-deployment threshold of 14 miles per hour. In contrast, the data from the 1241 investigation showed that the delta-v in the inadvertent-deployment cases was one to two miles per hour.

Nunan also testified that the SDM can record two separate events in the same ignition cycle (measured each time the vehicle is started). Nunan stated that if--as plaintiffs alleged--Danielle's Cavalier experienced an inadvertent deployment prior to the collision, "there would be two records present in the SDM": (1) the inadvertent deployment; and (2) the 16.2-mile-per-hour delta-v. The SDM recorded only one event--the 16.2-mile-per-hour delta-v--during the November 6, 1996, ignition cycle. Nunan also opined that the air-bag-deployment threshold was exceeded when Danielle's Cavalier collided with Reed's step van. He further opined that (1) the loss of power to the Cavalier during the collision had no effect on the data recorded by the SDM, (2) the data downloaded from the Cavalier was inconsistent with the data downloaded from cars involved in the 1241 investigation, and (3) the air bag in Danielle's Cavalier did not inadvertently deploy.

Roger Nightingale, a biomedical engineer, testified regarding the causes of Danielle's specific injuries. He opined that the overall cause of Danielle's injuries was the "oppressive" intrusion of Reed's step van into the Cavalier.

On this evidence, the jury returned a verdict in favor of defendants and against plaintiffs. The jury also answered "no" to defendants' special interrogatory, which inquired as follows: "Did the driver's side air bag inadvertently deploy on November 6, 1996?" This appeal followed.

II. ANALYSIS

A. The Trial Court's Decision To Allow Evidence Regarding the Cavalier's SDM Data

Plaintiffs first argue that the trial court erred by denying their motion in limine to exclude evidence regarding the data downloaded from the SDM in Danielle's Cavalier and related opinion testimony. We disagree.

Initially, we note that prior to oral argument in this case, the Supreme Court of Illinois in Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 80-81, 767 N.E.2d 314, 325-26 (2002), clarified that the Frye standard is the standard in Illinois, not the "Frye-plus-reliability" standard (see Harris, 302 Ill. App. 3d at 368-75, 706 N.E.2d at 60-65). We thus determine whether the trial court abused its discretion by admitting SDM data and related testimony under the Frye standard.

"The determination of whether a party has met the Frye standard lies within the trial court's discretion, and a reviewing court will not reverse absent an abuse of that discretion." First Midwest Trust Co. v. Rogers, 296 Ill. App. 3d 416, 427, 701 N.E.2d 1107, 1114 (1998). "In determining whether there has been an abuse of discretion, [a reviewing court] may not substitute [its] judgment for that of the trial court, or even determine whether the trial court exercised its discretion wisely." Simmons v. Garces, 198 Ill. 2d 541, 568, 763 N.E.2d 720, 737 (2002); see also People v. Illgen, 145 Ill. 2d 353, 364, 583 N.E.2d 515, 519 (1991) (an abuse of discretion occurs only where the trial court's decision is arbitrary, fanciful, or unreasonable or where no reasonable man would take the view adopted by the trial court).

In Donaldson, 199 Ill. 2d at 76-78, 767 N.E.2d at 323-24, the supreme court discussed the admission of expert testimony under the Frye standard, stating as follows:

"Illinois law is unequivocal: the exclusive test for the admission of expert testimony is governed by the standard first expressed in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). [Citations.] The Frye standard, commonly called the 'general acceptance' test, dictates that scientific evidence is only admissible at trial if the methodology or scientific principle upon which the opinion is based is 'sufficiently established to have gained general acceptance in the particular field in which it belongs.' Frye, 293 F. at 1014.

First, 'general acceptance' does not concern the ultimate conclusion. Rather, the proper focus of the general acceptance test is on the underlying methodology used to generate the conclusion. If the underlying method[s] used to generate an expert's opinion are reasonably relied upon by the experts in the field, the fact finder may consider the opinion- -despite the novelty of the conclusion rendered by the expert. [Citations.]Second, general acceptance of methodologies does not mean 'universal' acceptance of methodologies. *** 'In determining whether a novel scientific procedure is "generally accepted" in the scientific community, the issue is consensus versus controversy over a particular technique. *** Moreover, the mere existence of a dispute does not preclude a finding that the procedure is generally accepted.' [Citations; see] Frye, 293 F. at 1014 ('[J]ust when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized'). Simply stated, general acceptance does not require that the methodology be accepted by unanimity, consensus, or even a majority of the experts. A technique, however, is not 'generally accepted' if it is experimental or of dubious validity. Thus, the Frye rule is meant to exclude methods new to science that undeservedly create a perception of certainty when the basis for the evidence or opinion is actually invalid."

In denying plaintiffs' motion in limine to exclude evidence regarding the SDM data and related opinion testimony, the trial court initially found that the process of recording SDM data was not novel, stating as follows:

"Computer data, in general, and it is the computer information being recorded, in the court's mind[,] is not novel. It is an accepted fact of society. We have floppy disks, tape backups, [Z]ip drives used by individuals and businesses alike to record and capture data.

***

The microprocessor used in the SDM-R in this case is used in many consumer products and is a standard part used in various vehicle control systems, including engine controls, anti-lock brakes, suspension controls and air bags. It is only the admissibility, under the Frye test, of the SDM-R data which could be, in the court's opinion, conceived as novel."

We agree with the trial court that the process of recording and downloading SDM data does not appear to constitute a novel technique or method. See American Heritage Dictionary of the English Language 898 (1975) (defining "novel" as "[s]trikingly new, unusual, or different"). Crash sensors such as the SDM have been in production in automobiles for over a decade, and the microprocessors that run them and record their data also run everyday appliances, such as computers and televisions. See Harris, 302 Ill. App. 3d at 372, 706 N.E.2d at 62 ("If the scientific evidence is not 'novel,' then the Frye admissibility standard has been satisfied ***"); see also State v. Russell, 125 Wash. 2d 24, 70, 882 P.2d 747, 776 (1994) (holding that the Frye standard did not apply where computer programs listing various characteristics of homicides were "nothing more than sophisticated record-keeping systems").

Nonetheless, because the admissibility of SDM data is a question of first impression, we analyze its admissibility under the Frye standard--as did the trial court. In determining that "[t]he method of downloading data, and utilization of data recorded by the SDM" was generally accepted within the relevant scientific community, the court stated, in pertinent part, as follows:

[T]he court refers to the scientific community or communities as being mechanical engineering and/or physics.

Is the technique or method generally accepted within that community? The defendants have offered affidavits of General Motors engineers and/or non[- General Motors] engineers, albeit engineers who are employed by the defendants.

Have any physicists, mechanical engineers[,] and/or accident reconstructionist experts scrutinized that data outside [General Motors]? According to the documents which have been submitted to the court, [two individuals with NHTSA] co-authored an article with [General Motors] employees Tom Mercer and Keith Schultz entitled 'Recording Automotive Crash ...


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