On October 24, 2019, William Harrison Sims (Plaintiff) was driving his 2004 BMW 330Ci (the “Vehicle”) in Florida when another vehicle unexpectedly turned left in front of him, causing a minor accident. As a result of the collision, the Vehicle’s front driver-side airbag was signaled to deploy. However, the airbag inflator unexpectedly ruptured and shot metal shrapnel into Plaintiff’s face and body, leading to severe, permanent, and life-altering injuries.
Defendants, BMW of North America (“BMW NA”) and Bayerische Motoren Werke AG (“BMW AG”), procured and installed the airbag inflator during the process of designing, manufacturing, assembly, and producing the vehicle. Plaintiff filed a lawsuit against both Defendants, alleging strict liability and negligence for procuring and installing the defective airbag.
Defendants moved to exclude testimony from Plaintiff’s expert, Perry Ponder (“Ponder”), and two demonstrative exhibits. Defendants argued that Ponder changed his opinion regarding the lane of travel occupied by the alleged at-fault driver, non-party Tameca Harris-Jackson (“Harris-Jackson”). Ponder testified at deposition that Harris-Jackson turned from one of the through lanes instead of the left lane before colliding with Plaintiff’s vehicle. Defendants also identified two demonstrative exhibits produced before Ponder’s deposition, which depicted the placement the alleged at-fault vehicle and Plaintiff’s vehicles leading up to the collision.
Accident Reconstruction Expert Witness
Perry L. Ponder, P.E., holds a Bachelor of Science in mechanical engineering from Florida State University and is a licensed professional engineer in the states of Florida and Illinois. Ponder specializes in accident reconstruction, failure analysis, and designing semi-trailers, truck components, underride crash protection, and patented adjustable structures. He has significant experience reconstructing accidents of various types: trucks, cars, pedestrian and cycles.
Discussion by the Court
A. Plaintiff Failed to Meet His Fed. R. Civ. P. 26(a) Expert Disclosure Obligations
Defendants argued that Ponder, Plaintiff’s accident reconstruction expert violated Rule 26(a)(2) because he “renounced his former opinion that the Hyundai initiated its turn from the left lane of Good Homes Road while the deposition was underway.” Instead, he testified that the Hyundai turned from one of the through lanes of Good Homes Road and not from the left lane. Defendants contended that this new opinion was disclosed for the first time at the deposition.
Plaintiff countered that Defendants misunderstood or misrepresented the opinions expressed in Ponder’s report as compared to his deposition testimony. The Plaintiff emphasized that Ponder’s report did not specify which lane Harris-Jackson was traveling in when she initiated her left turn, only stating that she started her left turn from the northbound lanes of Good Homes Road. The Court agreed with Plaintiff, stating that Ponder did not offer an opinion in his report that Harris-Jackson was traveling in the left-hand lane when she initiated the turn and collided with Plaintiff
Moreover, Defendants failed to cite Ponder’s report to support their claim that he originally opined Harris-Jackson was traveling in the left-hand lane. Instead, Defendants cited the Crash Report created by the Orlando Police Department, a diagram of the collision prepared by a Trooper, and Harris-Jackson’s deposition. While Ponder reviewed these materials, the Court held that he did not adopt Harris-Jackson’s testimony or the police officer’s reconstruction as his opinion.
i. Reliability of Harris-Jackson’s Testimony
While Ponder cited Harris-Jackson’s testimony, in which she claims she stopped in the left lane and proceeded slowly after the traffic signal changed, he found Harris-Jackson’s testimony unreliable. Accordingly, Ponder did not offer a new opinion at the deposition. Even if he had, the Court held that Defendants had ample opportunity to cross-examine Ponder on the analysis employed to reach this opinion.
Furthermore, Ponder’s relative speed calculation for each vehicle was partially offered as a rebuttal to Defendants’ expert. At his deposition, Ponder conceded that Harris-Jackson could have turned from the left lane into Plaintiff’s path. However, he opined that “her orientation is more consistent with a turn that’s a bit more mature, so to speak, getting herself westward to take the 408 west.” He concluded that if Harris-Jackson had made the turn from the left-hand lane, “you’d expect more of a nose-to-nose kind of orientation as opposed to a square orientation (indicating) that we had in this impact.”
Regardless, the Court held that Ponder did not change his opinion at deposition, which is why the Defendants suffered no surprise or prejudice.
B. Demonstrative Exhibits
Defendants also challenged two demonstrative exhibits that displayed Good Homes Road intersecting with SR 408. Ponder’s report included diagrams prepared by law enforcement, as well as drone-generated top-down images of the crash scene. The Court held that the two demonstrative aids offered at the deposition are neither a surprise nor are they prejudicial because they are cumulative. Expert witnesses routinely create demonstrative exhibits on whiteboards or butcher paper at trial to drive home a point. To the extent that the demonstrative aids were untimely—which the Court does not find—their disclosure is harmless.
C. Ponder’s Testimony is Unreliable and Unhelpful
Defendants challenged Ponder’s accident reconstruction analysis, claiming it was unreliable and unhelpful. They argued that he failed to conduct independent testing, inspect or obtain an exemplar vehicle, drive an exemplar vehicle for work in the case, drive the intersection of the road in a Hyundai Sonata under the conditions to which he testified to or measure g-forces Harris-Jackson would have sustained had she turned from the through lane without stopping.
However, the Court held that the Defendants’ attack on Ponder’s analysis is boilerplate and unconvincing. They listed actions Ponder could have undertaken without explaining why he would need to take these steps. Ponder’s accident reconstruction analysis followed standard procedures, including a detailed crash scene examination, review of relevant documents as well as photographs of the 2010 Hyundai. It also considered the Crash Stiffness Coefficients for BMW vehicles and the deposition testimony. He also identified the final rest location of Plaintiff’s BMW and debris field and conducted a 3D scan of the subject BMW to quantify the damage.
Ponder then applied the General Momentum Equations to discern that Plaintiff’s BMW was traveling about 29 mph at the moment of impact, while Harris-Jackson’s Hyundai was traveling about 24 mph, with a resulting delta V, or change in velocity of 23 mph and a principle direction of force of 30 degrees counterclockwise of its longitudinal axis for the BMW. He factored in the speed and weight of the BMW to opine that the momentum was inadequate to propel the vehicle beyond the south edge of the intersection. Ponder supports this opinion with photographic evidence.
Just because Ponder reached a conclusion that differs from a crash report prepared by a Trooper whose qualifications are unknown, the Court held that it not indicate the failure to employ “the same level of intellectual rigor that characterizes the practice of an expert accident reconstructionist.” The Court noted that Defendants did not articulate how examining or driving an exemplar vehicle would add to the analysis. It would not support the determination of the delta-V, PDOF, or relative speed of the subject vehicles. And while knowing the g-force experienced by Harris-Jackson would be interesting, the Court held that Defendants offered no support for their contention that the failure to calculate g-force undermines Ponder’s analysis.
The Court ruled that Ponder is a highly qualified expert whose analysis was reliable, well-supported, and helpful to the jury. His core opinions remained unchanged, and the two demonstrative exhibits did not prejudice Defendants.
Held
The Court denied Defendants’ motion to exclude the testimony of Perry Ponder, P.E.
Key Takeaway:
While the Court admitted Ponder’s testimony regarding his accident reconstruction analysis, including his calculations of the vehicles’ speeds, momentum, and impact angles, the Court did not accept Defendants’ argument that Ponder had violated Rule 26(a)(2) by changing his opinion during his deposition. The Court found no evidence that Ponder’s core opinion had changed and ruled that Defendants were not prejudiced by the introduction of the two demonstrative exhibits, as they were merely cumulative of the evidence that was already presented. Further, while Defendants challenged Ponder’s failure to conduct independent testing and measure g-forces, the Court found these objections unpersuasive, stating that Ponder’s methodology was consistent with standard practices in accident reconstruction. In conclusion, the Court affirmed that Ponder’s testimony was both reliable and helpful to the jury in understanding the technical aspects of the case.
Please refer to the blog previously published about this case:
Neurology Expert Witness’ Injury Causation Testimony Admitted
Case Details:
| Case Caption: | Sims vs. Bmw Of North America Llc |
| Docket Number: | 6:22cv1685 |
| Court: | United States District Court for the Middle District of Florida, Orlando Division |
| Order Date: | January 13, 2025 |
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