Kawasaki Rider Asks High Court To Admit Expert Testimony

July 18, 2016 – Media Coverage

Law360, New York (July 18, 2016, 5:28 PM EDT) -- A motorcyclist who sued Kawasaki Heavy Industries Inc. over injuries he sustained when an allegedly faulty electrical component stalled his engine and he crashed has asked the U.S. Supreme Court to review a lower court's exclusion of two of his experts, a decision he said ultimately led to the dismissal of the case.

Michael Roper asked the Supreme Court July 11 to grant his writ of certiorari, saying the determination by U.S. District Judge Eleanor L. Ross of the Northern District of Georgia to strike testimony favoring Roper went far beyond her "gatekeeping" duties and instead crossed into responsibilities normally reserved for juries. Roper said Judge Ross’ decision to deny him a jury trial on the merits of his expert testimony violated the Seventh Amendment.

“What occurred in this case was that the trial judge determined which experts she believed, struck the other experts under Daubert, and decided this case without a jury,” Roper said. 

Kawasaki removed Roper’s lawsuit to Georgia federal court in 2013. According to the complaint, Roper crashed his Kawasaki Ninja ZX-10R motorcycle due to a faulty battery voltage regulator.  Roper’s 2011 crash resulted in significant injuries and more than $1 million in medical costs, the complaint said.

Kawasaki launched a recall of motorcycles over faulty voltage regulators in 2012 and knew the potential issues associated with the part, according to the National Highway Traffic Safety Administration. Roper said in his complaint that Kawasaki knew of the defect but failed to do anything about it until the recall.

Expert Wayne Denham, a mechanical engineer and Automotive Service Excellence certified master technician, said in a deposition that the voltage regulator in Roper’s motorcycle failed because of a manufacturing defect, causing the engine to stall and resulting in the crash.

Expert motorcycle rider Randall Nelson also brought evidence supporting Roper, saying he tested a Kawasaki Ninja ZX-10R at the same location where Roper’s crash occurred and determined a faulty voltage regulator caused the accident.

Judge Ross granted summary judgment in favor of Kawasaki in June 2015 after striking Denham’s opinion. Judge Ross said Denham could not definitively say Roper’s motorcycle was defective because he had failed to examine alternative possible causes for a crash, including excessive speed or operator error.

The court also granted summary judgment based on the exclusion of Nelson’s expert opinion because he relied in part on Denham's deposition.

A panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed the decision in March, saying it was appropriate for Judge Ross to weigh the expert's' testimony.

In his brief, Roper argued the courts incorrectly used discovery depositions to strike the Denham and Nelson opinions, not testimony, which would face a higher level of examination and scrutiny at trial.

Roper also said the case is ripe for decision by the Supreme Court because there is no uniform standard on the scrutiny of expert testimony in federal court. In a number of cases, circuit courts have come to different conclusions regarding the standard created by the Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceutícals Inc., which, among other elements, allows a judge to make a determination on allowing scientific evidence.

Counsel for Roper, Scott J. Forster, told Law360 Monday, “I hope we get cert and I hope we’re able to try this case to jury because we think we can prove Kawasaki knew of these defects and tried to hide it."

Counsel for for Kawasaki did not respond to a request for comment Monday.

Roper is represented by Scott J. Forster of Law Offices of Scott J Forster and S. Lester Tate, III of Akin & Tate PC.

Kawasaki is represented by Michael J. Goldman of Hawkins Parnell & Young and Richard Mueller of Thompson Coburn LLP

The case is Michael Roper v. Kawasaki Heavy Industries, Ltd, et al., case number 15-13363 in the U.S. Court of Appeals for the Eleventh Circuit.