AVILA v. FORD MOTOR COMPANY (2025)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO EXCLUDE AND STRIKE PLAINTIFF'S EXPERTS’ OPINIONS

Re: Dkt. Nos. 90, 92, 99, 100

Before the Court are defendant Ford Motor Company's motions to exclude certain opinions of plaintiff Robert Avila's expert Randall Bounds and to strike the report and testimony of Avila's rebuttal expert Dan Calef. For the reasons set forth herein, the motions are granted in part.¹

LEGAL STANDARD

The admissibility of expert testimony in a civil proceeding is governed by Fed. R. Evid. 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that: (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's opinion reflects a reliable application of the principles and methods to the facts of the case.

The Ninth Circuit has “interpreted Rule 702 to require that expert testimony ․ be both relevant and reliable.” Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014) (cleaned up). Relevance requires that “the evidence ․ logically advance a material aspect of the party's case.” Id. (citation omitted). Reliability concerns “whether an expert's testimony has a reliable basis in the knowledge and experience of the relevant discipline.” Id. (quoting Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 149, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). The role of the Court is not to determine the “correctness of the expert's conclusions but the soundness of his methodology.” Id. (quoting Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010)). The Court must “screen the jury from unreliable nonsense opinions, but not exclude opinions merely because they are impeachable.” Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013). Simply put, “[t]he district court is not tasked with deciding whether the expert is right or wrong, just whether his testimony has substance such that it would be helpful to a jury.” Id. at 969–70. “Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.” Primiano, 598 F.3d at 564.

ANALYSIS

I. Ford's motion to exclude certain of Bounds’ opinions is granted in part.

Ford seeks to preclude Bounds from offering any opinions or testimony concerning Ford's knowledge of the alleged defect in the 10R80 transmission and from relying on the O'Connor documents.

A. Bounds may not opine on Ford's state of mind.

Ford seeks to exclude Bounds’ opinion as to Ford's purported knowledge of any defect with the 10R80 transmission on the grounds that it constitutes impermissible state of mind opinion. “Courts routinely exclude expert testimony as to intent, motive, or state of mind as issues better left to a jury.” Camenisch v. Umpqua Bank, 763 F. Supp. 3d 871, 882 (N.D. Cal. 2025) (citation and quotation marks omitted). “Allowing an expert to testify as to a party's state of mind substitutes the opinion of the expert for the judgment of the jury. This sort of testimony lacks the substance that would be helpful to a jury.” Kawasaki Jukogyo Kabushiki Kaisha v. Rorze Corp., No. 22-CV-04947-PCP, ––– F. Supp. 3d ––––, ––––, 2025 WL 1407350, at *9 (N.D. Cal. May 12, 2025) (cleaned up).

Plaintiff argues that Bounds does not opine on what Ford knew, only on “what Ford documented in writing, when it documented it, and how its actions (or inaction) related to the Subject Vehicle.” The problem is that Bounds’ report goes beyond opining about these matters to draw conclusions about Ford's knowledge. Such inferences can be made by the jury, and any additional interpretation or synthesis that Bounds might offer would constitute an impermissible state of mind opinion regarding what Ford knew, when it knew it, and how its knowledge relates to plaintiff's vehicle. “The jury is perfectly capable of reviewing relevant evidence and testimony presented by the parties and then drawing its own inferences as to state of mind.” Kawasaki, ––– F. Supp. 3d at ––––, 2025 WL 1407350, at *9. Accordingly, Bounds’ opinions as to Ford's knowledge of any transmission defect are excluded.

B. Bounds may rely on the O'Connor documents.

Ford argues that Bounds should be precluded from referring to, reading from, or interpreting the O'Connor documents because his opinions are not his own, he is unqualified to interpret the documents, and his opinions on the documents are unreliable and unsupported.

An expert report must be prepared by the expert. See Fed. R. Civ. P. 26(a)(2)(B) (requiring an expert report to be prepared and signed by the expert witness). “Preparation implies involvement other than perusing a report drafted by someone else and signing one's name at the bottom to signify agreement.” Pat. Category Corp. v. Target Corp., No. CV 06-7311, 2008 WL 11336468, at *3 (C.D. Cal. July 17, 2008) (quoting Manning v. Crockett, 1999 WL 342715, at *3 (N.D. Ill. May 18, 1999)); see also Asetek Danmark A/S v. CoolIT Sys. Inc., No. 19-CV-00410-EMC, 2022 WL 21306657, at *12 (N.D. Cal. Oct. 4, 2022) (cleaned up) (“[A]n expert cannot simply peruse the work product of someone else and sign the bottom of the report because doing so creates very little, if any, evidentiary value in the expert's testimony.”). But counsel is permitted to provide substantial assistance to an expert witness in drafting their report, and the expert need not be the person “who actually puts pen to paper (or fingers to keyboard).” Pat. Category Corp, 2008 WL 11336468, at *2; see also id. (citing Marek v. Moore, 171 F.R.D. 298, 301–03 (D. Kan. 1997)) (“[S]ome attorney involvement in the preparation of an expert report is permissible as long as the expert substantially participates in the preparation.”).

Ford argues that Bounds’ opinions are not his own because he struggled during his deposition to justify some of his opinions and plaintiff's counsel selected which documents from the original O'Connor production to provide to Bounds, highlighted relevant sections of those documents for him, and was heavily involved in drafting his report. Such involvement, however, is permissible under Federal Rule of Civil Procedure 26(a)(2)(B). Bounds testified at his deposition that he reviewed all of the cited documents himself and that he “drafted the vast majority of [the report].” While plaintiff's counsel was undoubtedly involved in the preparation of Bounds’ report, that involvement does not approach the type of “ghost-writing” that might justify excluding his opinion. Pat. Category Corp., 2008 WL 11336468, at *3 (quoting Manning, 1999 WL 342715, at *3).

Ford also argues that Bounds is not qualified to opine on the O'Connor documents because those documents concern Ford's internal design and development decisions and Bounds’ expertise is in applied science. But Bounds not only worked as a mechanic for several years but also has many years of experience as a Ford field service engineer and a technical consultant in lemon law cases. Analyzing the types of documents included among the O'Connor documents—including internal correspondence, technical service bulletins (TSBs), NHTSA complaints, and vehicle repair records—is the diagnostic method that Bounds was trained to use as a Ford field service engineer doing technical analyses, buyback evaluations, and dispute resolution for lemon law and warranty complaints. Ford's concern about Bounds’ “lack of particularized expertise goes to the weight accorded [to Bounds’] testimony, not the admissibility of [his] opinion as an expert.” United States v. Garcia, 7 F.3d 885, 889 (9th Cir. 1993). The same is true of Ford's challenges to Bounds’ methodology.

II. Ford's motion to strike the report and testimony of plaintiff's rebuttal expert Calef is granted in part.

Ford argues that Calef's opinions should be stricken because they are not proper rebuttal opinions. According to Ford, Calef's opinions serve to reinforce and rehabilitate those of Bounds, rather than rebutting the opinions offered by Ford's expert.

Federal Rule of Civil Procedure 26 specifies that the role of a designated rebuttal expert is “solely to contradict or rebut evidence on the same subject matter identified by” the opposing party's expert witness. Fed. R. Civ. P. 26(a)(2)(D)(ii); see also 6 Moore's Federal Practice § 26.23[3] (3d ed. 2018) (“The proper function of a rebuttal report is to contradict, impeach, or defuse the impact of evidence offered by the adverse party's expert.”). “Rebuttal testimony cannot be used to advance new arguments or new evidence.” Huawei Techs., Co., Ltd. v. Samsung Elecs. Co., Ltd., 340 F. Supp. 3d 934, 995 (N.D. Cal. 2018) (citation and quotation marks omitted); Int'l Bus. Machs. Corp. v. Fasco Indus., Inc., 1995 WL 115421, at *3 (N.D. Cal. Mar. 15, 1995) (“ ‘Rebuttal’ experts cannot put forth their own theories; they must restrict their testimony to attacking the theories offered by the adversary's experts.”).

The majority of Calef's report covers material and opinions squarely within the scope of Bounds’ primary opinions. While styled as responses to Ford's experts, Calef's opinions largely reiterate Bounds’ analysis or present “lawyer argument dressed up as expert opinion.” Waymo LLC v. Uber Techs., Inc., No. C 17-00939 WHA, 2017 WL 5148390, at *5 (N.D. Cal. Nov. 6, 2017). Calef points out logical flaws in Ford's experts’ reports and disputes their conclusion, but such critiques “are more appropriate for cross examination or closing argument, rather than being within the purview of a rebuttal expert ․ The jury can draw these conclusions themselves ․ without the need for expert testimony.” Ely v. Cnty. of Santa Barbara, No. CV 20-6549-DMG (SKX), 2022 WL 18356630, at *3 (C.D. Cal. July 25, 2022).

Nonetheless, certain of Calef's opinions are proper rebuttal opinions because they present genuine methodological challenges to the opinions set forth in Ford's experts’ reports. Ford's motion to strike is denied solely as to those portions, which are:

• The paragraphs under the heading “January 05, 2021 Repair Visit”;

• The paragraphs under the heading “Blackstone Laboratories Report”; and

• The paragraphs under the heading “Opinion #4.”

Ford's motion to strike is granted as the remaining opinions set forth in Calef's report.

CONCLUSION

For the foregoing reasons, Ford's motions are granted in part and denied in part. The related motions to seal are denied.

IT IS SO ORDERED.

FOOTNOTES

1.   The Court denies Avila's administrative motions to consider whether another party's material should be sealed. Dkt. Nos. 99, 100. Avila seeks to seal certain portions of his expert reports and deposition testimony attached to his oppositions to Ford's motions because they reference contents of the O'Connor documents that were designated by Ford as confidential or subject to the stipulated protective order. Ford opposes the motions because the documents that Avila seeks to seal are not themselves designated as confidential or subject to the protective order. Because good cause does not exist to seal these documents, Avila's motions to consider whether another party's material should be sealed are denied. The Court also denies Ford's administrative motion to seal portions of its motion to exclude Bounds’ opinions and attached documents. Dkt. No. 89. The only justification for sealing that Ford offers is that the documents constitute or reference O'Connor material that the parties designated confidential. The parties’ preference for secrecy, however, is not a compelling reason sufficient to overcome the strong presumption in favor of public access. See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178–79 (9th Cir. 2006). Within seven days of this order, the parties shall file on the public docket unredacted versions of all material filed provisionally under seal in connection with the motions at docket numbers 89, 99, and 100.

P. Casey Pitts, United States District Judge