Supreme Court Won’t Review Kawasaki Crash Expert Denial

October 3, 2016 – Media Coverage

Law360, New York (October 3, 2016, 6:30 PM EDT) -- The U.S. Supreme Court on Monday declined to hear arguments by a motorcycle rider that a lower court’s exclusion of two key witnesses resulted in the eventual dismissal of his case accusing Kawasaki Heavy Industries of hiding an electrical component defect that led to a crash.

The denial was among hundreds handed down by the Supreme Court Monday, ending the attempt by Michael Roper to overturn the decisions of U.S. District Judge Eleanor L. Ross of the Northern District of Georgia and the Eleventh Circuit. Judge Ross’ excluded the testimony of mechanical engineer Wayne Denham, who said a faulty voltage regulator in Roper’s Kawasaki Ninja ZX-10R caused his 2011 crash.

Judge Ross found that he failed to take into account alternative possible causes of the accident, such as excessive speed or operator error.  She also axed the testimony of expert motorcycle rider Randall Nelson in support of Roper, saying he relied on Denham’s opinions.

The case came to federal court in 2013 when Kawasaki removed it from Georgia state court. According to the complaint, Roper’s crash resulted from a faulty battery voltage regulator, and resulted in significant injuries and more than $1 million in medical costs.

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.

Judge Ross granted summary judgment in favor of Kawasaki in June 2015 after striking Denham and Nelson’s opinions.

After the Eleventh Circuit affirmed the decision, Roper asked the Supreme Court to hear the case, saying Judge Ross exceeded judicial "gatekeeping," and she instead acted as a jury would. Roper said Judge Ross’ decision to deny him a jury trial on the merits of his expert testimony violated the Seventh Amendment.

In his brief, Roper said 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 argued that there is no uniform standard among appeals courts for scrutinizing 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.

In a statement to Law360 on Thursday, counsel for Roper, Scott J. Forster said "we are disappointed that we did not have an opportunity to present our case to a jury."

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

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 16-51 in the in the Supreme Court of the United States.