Advocacy Trust, LLC v. Kia Corporation

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

ADVOCACY TRUST, LLC, as Special

Administrator and Personal Representative of

the Estate of Thomas Roy Rodabaugh, Deceased PLAINTIFF

v. No. 5:21-CV-05064

KIA CORPORATION, et al. DEFENDANTS

OPINION AND ORDER

Before the Court are four motions from Defendants Kia Corporation and Kia America, Inc.

(“Kia”). Those motions are a Motion for Summary Judgment (Doc. 78); a Motion for Partial

Summary Judgment (Doc. 81); a Motion to Exclude Expert Kelly Kennett (Doc. 84); and a Motion

to Exclude Expert Chris Caruso (Doc. 85). Plaintiff Advocacy Trust, LLC opposed each motion

(Docs. 90–93). The Court has considered the motions, responses, replies, and accompanying briefs

and statements of facts, including sealed exhibits. (Docs. 82–83, 86–89, 94, 95–96, 100). For the

reasons set forth below, only Kia’s motion (Doc. 81) for partial summary judgment will be

GRANTED. The remaining motions (Docs. 78, 84, and 85) will be DENIED.

I. Background

This case arises from a fatal car accident that occurred in Bentonville, Arkansas in April

2020. (Doc. 82, ¶ 1). Thomas Rodabaugh was driving a 2017 Kia Soul north on N. Walton

Boulevard with his wife, Christine Rodabaugh, in the front passenger seat. Id. ¶ 2. Jackson

Tedford, no longer a party here (Doc. 61), attempted to make a left-hand turn onto N. Walton

Boulevard, striking the Rodabaughs’ Kia Soul in the process. Id. ¶¶ 3–4. Mr. Rodabaugh hit the

steering wheel upon impact and died from his injuries. Id. ¶ 7. According to the Bentonville

Police Department accident report, Mr. Rodabaugh was not wearing his seatbelt at the time of the

accident. (Doc. 82-4, p. 2). Mrs. Rodabaugh, who wore her seatbelt, walked away from the

accident with minor injuries. (Doc. 82, ¶ 8).

Over a year and a half after the Rodabaughs’ accident, Kia and the National Highway

Traffic and Safety Administration issued a voluntary safety recall that covered the Rodabaughs’

2017 Soul. Id. ¶ 9. As Kia explains:

Kia issued the recall due to variances in the manufacturing of the Supplemental

Restraint System Control Module (“SRSCM”) (also referred to as the Airbag

Control Module (“ACU”)). The manufacturing variances may cause contact

between the SRSCM cover and the Electrically Erasable Programmable Read-Only

Memory (“EEPROM”) chip on the SRSCM’s Printed Circuit Board (“PCB”). The

contact may cause damage to the EEPROM’s soldering joints resulting in an open

circuit.

(Doc. 82, ¶ 10). Kia sent a letter Mrs. Rodabaugh notifying her of the recall. (Doc. 94-5). That

letter mentions the airbag warning light might be illuminated because of a Diagnostic Trouble

Code (“DTC”) B1620. Id. at 1. The recall condition could lead to the B1620 code. Id. But the

parties agree that many issues besides the recall condition could lead to a B1620 trouble code.1

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(Doc. 82, ¶ 12).

Before the January 2022 recall, Kia received two reports from its Korean market services

team about 2019 Kia Sedonas with airbag warning lights activated by a B1620 code. (Doc. 82, ¶¶

13–14). From October 2021 to January 2022, Kia collected warranty-returned Airbag Control

Modules that had the B1620 code to investigate the code’s cause. Id. ¶ 15. Kia determined the

code was caused by contact between the SRSCM cover and the EEPROM chip. Id. When the

cover and the chip made contact, the airbag warning light illuminated. Id. Kia decided to conduct

1 The DTC can be properly referred to as B1620 or B162000. (Doc. 96, p. 4 n.1). For

clarity, the Court will use B1620.

the recall after its investigation. Id. ¶ 17. The recall included the Rodabaughs’ 2017 Kia Soul.

(Doc. 94-5).

Advocacy Trust, as the administrator and personal representative of Mr. Rodabaugh’s

estate, sued Kia alleging wrongful-death and survivor actions. (Doc. 6). Advocacy Trust brings a

host of claims, including negligence and strict products liability. Id. Advocacy Trust also seeks

punitive damages. Id. Advocacy Trust relies in part on two experts to support its case. Advocacy

Trust retained Kelly Kennett as an accident reconstruction and biomechanical engineering expert.

(Doc. 84-2, p. 2).2 Advocacy Trust also retained Chris Caruso to serve as an engineering expert

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on the issue of airbag deployment. (Doc. 89, p. 4). Kia now moves for summary judgment on all

claims, partial summary judgment on the punitive damages claim, and to exclude the opinions of

both experts.

II. Legal Standard

On a summary judgment motion, the movant has the burden to show that there is no

genuine dispute of material fact and that it is entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56. Once the movant has met its burden, the non-movant must present specific facts

showing a genuine dispute of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). For there to be a genuine dispute of material fact, the

evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.”

Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66–67 (8th Cir. 1994) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). “To survive a motion for summary judgment, the

2 When a document is e-filed, the Electronic Case Filing system adds page numbers to a

header at the top of the document. Except for depositions, which the Court will cite by deposition

page and line number, all citations included in this Order reference the pages as numbered in that

header, rather than any page numbers native to the document.

nonmoving party must substantiate her allegations with sufficient probative evidence that would

permit a finding in her favor based on more than mere speculation, conjecture, or fantasy.” Clay

v. Credit Bureau Enters., Inc., 754 F.3d 535, 539 (8th Cir. 2014) (cleaned up).

III. Analysis

Kia moves to exclude both of Advocacy Trust’s experts, Kelly Kennett and Chris Caruso,

based on their testimony’s reliability. Without those experts’ testimony, Kia argues that summary

judgment is proper because Advocacy Trust does not have evidence of causation. Finally, Kia

argues that even if the claims move forward, summary judgment is proper on Advocacy Trust’s

claim for punitive damages. The Court will address each argument in turn.

A. Motions to Exclude

Kia moves to exclude both Mr. Kennett and Mr. Caruso. Kia challenges the reliability of

the experts’ opinions but does not challenge either of the experts’ qualifications. An expert may

testify if “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of

fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on

sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d)

the expert has reliably applied the principles and methods to the facts of the case.” Fed. R. Evid.

702.

Several general principles about the admissibility of expert evidence apply here. First,

“‘[t]he standard for judging evidentiary reliability of expert evidence is lower than the merits

standard of correctness.’” In re Bair Hugger Forced Air Warming Devices Prods. Liab. Litig., 9

F.4th 768, 777 (8th Cir. 2021) (quoting Kuhn v. Wyeth, Inc., 686 F.3d 618, 625 (8th Cir. 2012)).

Second, “[a]s a general rule, the factual basis of an expert opinion goes to the credibility of the

testimony, not the admissibility.” Id. (quoting United States v. Coutentos, 651 F.3d 809, 820 (8th

Cir. 2011)). Third, “rejection of expert testimony is the exception rather than the rule.” Robinson

v. GEICO General Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006) (quotation omitted). And fourth,

any “shaky but admissible evidence” can be addressed through “vigorous cross-examination,

presentation of contrary evidence, and careful instruction on the burden of proof.” In re Bair

Hugger, 9 F.4th at 778 (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)).

1. Kelly Kennett

Kia moves to exclude Mr. Kennett for two reasons. First, Kia argues Mr. Kennett does not

support his opinion about whether the accident is an airbag-deployable event with the necessary

scientific calculation, testing, or analysis. (Doc. 84, p. 3). Second, Kia argues Mr. Kennett’s

biomechanics opinions are not based on sufficient facts or data. Id. at 5. The Court does not agree

with Kia on either front, so the Court will not exclude Mr. Kennett’s testimony.

Kia faults Mr. Kennett for not calculating the Principal Direction of Force (PDOF) or delta-

v of the subject vehicle. Mr. Kennett testified he did not think calculating the PDOF was necessary.

See Doc. 93-3, 125:5–126:21.3 Instead, Mr. Kennett used the barrier equivalent velocity (“BEV”)

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to calculate the impact severity. Mr. Kennett calculated the BEV using “traditional crush energy

methods” since the airbag control module did not have any event data from the accident. (Doc.

84-2, p. 9). Mr. Kennett describes this method as “the way we used to do it before we had event

data records for everything.” (Doc. 93-3, 109:1–10). Kia’s critique of Mr. Kennett boils down to

disagreeing with Mr. Kennett’s methodology. But Kia has not shown that Mr. Kennett’s

methodology is unreliable. Kia’s arguments relate to the weight and credibility of the testimony,

so the Court will leave that analysis for a jury. See In re Bair Hugger, 9 F.4th at 777.

3 Mr. Kennett also testified in his deposition that he calculated a delta-v. (Doc. 93-3, 129:6–

16). Kia had the chance to depose Mr. Kennett about that calculation.

Kia’s arguments about Mr. Kennett’s biomechanics opinions are also better saved for a

jury. Kia faults Mr. Kennett for not reviewing several documents, including the deposition of Mr.

Rodabaugh’s treating physician and Mr. Rodabaugh’s medical records. (Doc. 84, p. 6). Mr.

Kennett did, however, rely on other medical information, such as a Fire Department patient care

record, Northwest Medical Center records, and the Benton County Coroner’s report. (Doc. 84-2,

p. 3). If Kia thinks that Mr. Kennett should have used other medical records, that is a disagreement

about the weight of the evidence rather than admissibility. Kia is welcome to try to expose that

“shaky but admissible evidence” via cross-examination or otherwise. See In re Bair Hugger, 9

F.4th at 778 (quoting Daubert, 509 U.S. at 589).

2. Chris Caruso

Kia moves to exclude Mr. Caruso for three reasons. First, Kia argues Mr. Caruso did not

base his opinion on sufficient facts and data. (Doc. 89, p. 4). Second, Kia argues Mr. Caruso

failed to reliably test his hypothesis and opinions. Id. at 9. Third, Kia argues Mr. Caruso will not

assist the jury because his opinion is based on erroneous facts, speculation, and conjecture. Id. at

11. As with Mr. Kennett, Kia’s arguments about Mr. Caruso go to the weight of the testimony

rather than its admissibility. So, the Court will also not exclude Mr. Caruso’s testimony.

Kia’s first argument, that Mr. Caruso did not base his opinion on sufficient facts and data,

more closely resembles an argument that Kia disagrees with the data Mr. Caruso used. For

example, Kia attacks Mr. Caruso’s understanding of the EEPROM chip, how the recall condition

leads to airbag non-deployment, and if Kia should have issued a recall sooner. The first two

disagreements are simply challenges to the factual basis for Mr. Caruso’s opinion, which amounts

to challenging the testimony’s credibility. A jury will decide how much credibility to give Mr.

Caruso’s opinions. See In re Bair Hugger, 9 F.4th at 777. Kia’s third attack, about how Mr.

Caruso used facts and data to say when a recall should have occurred, is rather mere disagreement

with Mr. Caruso’s opinion. As the reliability inquiry does not focus on the conclusions an expert

generates, see Daubert, 509 U.S. at 595, the Court will not use Kia’s disagreement with Mr.

Caruso’s opinion as a basis to exclude his testimony.

Kia’s second argument is that Mr. Caruso failed to reliably test his hypothesis and opinion.

Kia is correct that one factor to determine reliability is “whether [a theory] can be (and has been)

tested.” Daubert, 509 U.S. at 593. But that testing requirement is not always necessary. See

Klingenberg v. Vulcan Ladder USA, LLC, 936 F.3d 824, 829 (8th Cir. 2019). For example, a court

does not abuse its discretion to admit expert testimony when the expert based his conclusion on

“his experience and expertise in ladder investigations, general engineering principles, information

from [the plaintiff] about the accident, and his examination of the damaged ladder, its design and

specifications, competitors’ ladders, and photos of the accident scene.” Id. Substitute “ladder” for

“vehicle”, and the reasoning fits perfectly here. Mr. Caruso based his opinions on his experience

“designing and developing crash sensors and occupant safety systems.” (Doc. 85-5, p. 26). He

also based his opinions on the damaged vehicle, photos of the accident scene, crash test reports,

the EDR data from the vehicle, and recall documentation. Id. at 8. The Court finds that Mr.

Caruso’s testimony is reliable despite Mr. Caruso’s lack of testing.

Kia finally argues that Mr. Caruso’s opinions are speculative and are “so fundamentally

unsupported that [they] can offer no assistance to the jury.” (Doc. 89, p. 12 (citing Bonner v. ISP

Technologies, Inc., 259 F.3d 924 (8th Cir. 2001)). The Court has already determined that Mr.

Caruso’s opinion was based on sufficient facts and data and Mr. Caruso’s opinion is reliable

despite any potential deficiency in testing. Because of this, the Court does not agree that Mr.

Caruso’s opinions are speculative or that they won’t assist a jury. If Kia wants to challenge Mr.

Caruso’s testimony, again, Kia can cross-examine Mr. Caruso and offer contradictory evidence to

help the jury weigh Mr. Caruso’s opinion.

The Rule 702 inquiry is flexible, and the factors should be adapted based on the demands

of the case. Klingenberg, 936 F.3d at 829 (citing Russell v. Whirlpool Corp., 702 F.3d 450, 456–

57 (8th Cir. 2012)). The Court has considered those factors here and is satisfied that both Mr.

Kennett and Mr. Caruso’s testimony is admissible. Kia’s challenges more closely resemble

challenges to the expert’s credibility. The Court will leave that credibility determination to a jury.

Therefore, Kia is not entitled to the exclusion of Mr. Kennett and Mr. Caruso’s opinions.

B. Motion for Summary Judgment

Kia moves for summary judgment based on Advocacy Trust’s alleged failure to prove the

causation element of its claim. (Doc. 80, p. 1). Kia focuses the bulk of its motion on Mr. Caruso’s

five alternative designs that Mr. Caruso states “would have deployed the frontal impact dual stage

airbags and seat belt pretensioners in the subject collision.” (Doc. 85-5, pp. 25–26). Kia

misconstrues these alternative designs as “several possible causes of non-deployment.” (Doc. 80,

p. 7). The Court does not agree with Kia’s interpretation of Mr. Caruso’s report. Mr. Caruso

opined that the alternative designs would have deployed the airbags. But that is not Mr. Caruso’s

sole opinion. Mr. Caruso also opines that “[t]he manufacturing defect and subsequent delayed

recall of the defective SRSCM module” rendered the Kia Soul defective. (Doc. 85-5, p. 26).

Mr. Kennett and Mr. Caruso’s opinions create a genuine issue of material fact on causation.

As discussed above, the Court will not exclude Mr. Caurso’s or Mr. Kennett’s opinions. In

addition to Mr. Caruso’s opinion quoted in the previous paragraph, Mr. Kennett opined that if the

airbag deployed, the airbag would have allowed Mr. Rodabaugh to enjoy “the traditional load

distribution, ride‐down, and acceleration attenuating benefits of the airbag.” (Doc. 84-2, p. 11).

Mr. Kennett also concluded that those benefits would have “ameliorated the thoracic accelerations

and deflections in the subject accident,” and those benefits have been shown to exhibit low

likelihood of serious injury and death. Id. After reviewing Advocacy Trust’s expert reports, the

Court is satisfied that there is a genuine dispute of material fact on causation. Because of this, Kia

is not entitled to summary judgment on Advocacy Trust’s claims.

C. Punitive Damages

Arkansas sets the standard for punitive damages by statute. To recover punitive damages,

Advocacy Trust must show Kia is liable for compensatory damages, and one or both of the

following aggravating factors:

(1) [Kia] knew or ought to have known, in light of the surrounding circumstances,

that [its] conduct would naturally and probably result in injury or damage and

that [Kia] continued the conduct with malice or in reckless disregard of the

consequences, from which malice may be inferred; or

(2) [Kia] intentionally pursued a course of conduct for the purpose of causing injury

or damage.

Ark. Code Ann. § 16-55-206. Advocacy Trust must prove this by clear and convincing evidence.

Id. § 16-55-207. Advocacy Trust does not argue Kia intentionally caused the Rodabaughs’

injuries, so the Court will focus on factor one.

Before addressing the merits of Advocacy Trust’s punitive damages claim, the Court must

dispel the notion that dismissing punitive damages at the summary judgment stage is improper.

Advocacy Trust argues that “punitive damages are not a cause of action that can, or should, be

dismissed on summary judgment.” (Doc. 91, p. 9 (citing Carvin v. Ark. Power & Light Co., 1991

WL 540481, at *6 (W.D. Ark. Dec. 2, 1991)). Advocacy Trust is mistaken that punitive damages

cannot be dismissed on summary judgment. In ruling on a motion for summary judgment, the

court must “view the evidence presented through the prism of the substantive evidentiary burden.”

Anderson, 477 U.S. at 254. That means “unless a reasonable jury could conclude by clear and

convincing evidence” that Kia’s actions meet the punitive damages standard, “summary judgment

is proper.” Perry v. Steven Transp., 2012 WL 2805026, at *4 (E.D. Ark. July 9, 2012); see also

In re Aircraft Accident at Little Rock, 351 F.3d 874 (8th Cir. 2003) (affirming summary judgment

on punitive damages). Because the Court can properly consider the punitive damages claim on

summary judgment, the Court turns to the merits.

Arkansas law disfavors and limits punitive damages. In re Aircraft Accident at Little Rock,

351 F.3d at 876. “[N]egligence alone, however gross,” is not enough to sustain punitive damages.

Id. at 877. As the Arkansas statute explains, not only must a plaintiff establish compensatory

damages, but the plaintiff must also show the defendant knew or ought to have known its conduct

would probably cause harm, and also that the defendant “continued the conduct with malice or in

reckless disregard of the consequences, from which malice may be inferred.” Ark. Code Ann.

§ 16-55-206.

For example, malicious or reckless conduct was shown when a tobacco company knew

about harmful carcinogens in cigarettes, but untruthfully represented cigarettes as not unhealthy

and not a cause of cancer, all while “suppress[ing] research into the harmful health consequences

of cigarette smoking.” Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594, 601 (8th Cir.

2005). On the other hand, the Eighth Circuit has held punitive damages are not appropriate when

defendants who were allegedly acting negligently “[were] actively making choices, and exhibiting

some level of care” while trying to protect persons from a train or plane crash. See In re Aircraft

Accident at Little Rock, 351 F.3d at 881–82; Morris v. Union Pac. R.R., 373 F.3d 896, 904 (8th

Cir. 2004).

Advocacy Trust focuses its claim for punitive damages on Kia’s knowledge of the B1260

code three years before the accident. (Doc. 91, p. 6). Mr. Caruso, one of Advocacy Trust’s experts,

explained in his report that Kia’s documents show the B1620 code was first diagnosed as early as

May 2017, three years before the Rodabaughs’ accident. (Doc. 91-3, p. 25). At that point, Mr.

Caruso’s position is that Kia “should have taken the time to diagnose the root cause of this fault

and correct the deficiencies of the SRS system immediately.” Id. Mr. Caruso admitted, however,

that he does not know whether the B1620 code diagnosed in 2017 was due to the recall condition.

(Doc. 91-4, p. 180:12). Indeed, the B1620 code could have been caused by one of the many other

conditions that Advocacy Trust admits could lead to the B1620 code. Id.; see also Doc. 82, ¶ 12.

Mr. Caruso assumed, knowing in hindsight a recall occurred, that the B1620 code in 2017 was

caused by the recall condition. (Doc. 91-4, p. 179:12–15).

This evidence is insufficient to show by clear and convincing evidence that Kia acted

maliciously or with reckless disregard of the consequences. First, Advocacy Trust does not point

to any affirmative conduct of Kia’s that showed Kia acted maliciously in refusing to investigate

the B1620 code in 2017. As Advocacy Trust admits, there are many reasons for the B1620 code,

not just the recall condition. (Doc. 82, ¶ 12). Second, Kia demonstrated that once it learned of the

B1620 code illuminating the airbag warning light in 2021, Kia took steps to investigate the issue,

which led to the eventual recall. Like in the Eighth Circuit cases where parties took steps to protect

the safety of others in crashes, Kia took steps to protect others by conducting a recall.

The standard for punitive damages under Arkansas law is strict, and Advocacy Trust does

not provide sufficient evidence to present that issue to a jury. Even if Advocacy Trust could prove

compensatory damages and that Kia knew its conduct would naturally and probably lead to injury

or damage, Advocacy Trust’s claim for punitive damages would still fail. That is because

Advocacy Trust has not presented sufficient evidence that Kia acted with malice or in reckless

disregard of the consequences of its conduct. Therefore, Kia is entitled to summary judgment on

the punitive damages claim.

IV. Conclusion

IT IS THEREFORE ORDERED that Kia’s motion (Doc. 81) for partial summary judgment

on Advocacy Trust’s claim for punitive damages is GRANTED.

IT IS FURTHER ORDERED that Kia’s motions for summary judgment (Doc. 78), to

exclude expert Kelly Kennett (Doc. 84), and to exclude expert Chris Caruso (Doc. 85) are

DENIED. Advocacy Trust’s claims remain pending for trial.

IT IS SO ORDERED this 31st day of March, 2023.

/s/P. K. Holmes,

P.K. HOLMES, III

U.S. DISTRICT JUDGE