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Deposition 1 - deposition of witness in products liability case

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GERALD A. CONFER, P.E., having been first duly sworn, was examined and testified as follows:


Q. Will you state your full name for the record, please.

A. Gerald A Confer, C-o-n-f-e-r.

Q. Show you what's been marked Exhibit 1. Ask if you've seen that before.

A. Yes, sir.

Q. I would ask what you have brought in response to the request attached to that notice?

A. Essentially my file in this case.

Q. Do you have it with you?

A. Yes.

Q. You said “essentially.” Is there anything else that you've brought in addition to your file in this case?

A. Got the camera equipment that I used for the investigation -- inspections last week. Okay. Do you want to produce your file, please. Sure.

MR. HENDERSON: These are ten additional pictures that were taken after the ones that I originally produced.

MR. CARTER: We'll mark those as seven.

(Exhibit No. 7 marked.)

(Discussion off the record.)


Q. You've given me a black notebook that gays “Miller v. Boucher.” Is that something that you created?

A. No.

Q. Who created that?

A. I assume Mr. Henderson's office did it because he sent it to me.

Q. Okay. This was what was contained in the notebook that was sent to you?

A. Yes, sir. The flags I've added.

Q. The flags you've added, all right.

A. And the photos are my photos.

Q. Photos after --

A. I'm talking about in here (indicating). The photos that are indexed were included in the notebook.

Q. The photos that are in the front end of the flap, are they something new and different than you've -- ??iously that have been shown to us?

A. I don't know. These are photos I took, and I referenced them in ray letter I sent to Mr. Henders??

MR. HENDERSON: These were the attachment to the letter report which was attached to the 213 disclosure.

A. The only ones that would be new are the ones I thin Mr. Henderson showed you this morning. I just took them yesterday.

Q. These are photographs of a 1997 Dodge Ram pickup ?? that's currently complete and whole and --

A. Yes.

Q. -- In existence?

A. Yes, it's one I took at home at the local Dodge dealer.

MR. HENDERSON: Let him finish his question??

Q. The documented chronological history, was that something that was created by Mr. Henderson office?

A. Yes.

Q. The index of documents in Miller versus Daimler Chrysler, was that -- it says, quote, from Robert Boucher's underlying file. Was that something prepared by you or Mr. Henderson?

A. Mr. Henderson's office.

Q. Okay. I'll want a copy of that. What was the significance of the chronology of the history of the vehicle to you, if any?

A. Hell, it's just basic background on the vehicle as far as my analysis is concerned. I'm interested in anything to do relative to the vehicle.

Q. Okay. Was there anything of significance in that chronology to your opinions?

A. I don't recall anything at this time, no.

Q. And there's nothing that you noted in any of the reports you've given, is that correct, either your report or the 213 disclosure that was made in this case?

A. I don't understand your question.

Q. All right. Let me show you what has been marked Exhibit 2 and ask you if you've previously seen that document?

A. Yes, sir.

Q. What's contained in Exhibit 2, does that express your opinions about this case?

A. Yes, sir.

Q. Are there any additional opinions you have other than what's contained in Exhibit 2?

A. Well, I probably have additional opinions, but as ?? as the significance to the issues in this case about the car and the accident and so forth, 1 think this covers them.

Q. I'm sure I'm probably not being very precise this coaming. I've had a long weekend. So, just so I'm clear, does Exhibit 2 contain the extent of your opinions that you're prepared to render with regard?? to this case?

A. Yes, sir.

Q. Okay. I'll show you Exhibit 3. Is that -- that was attached as part of what we've marked Exhibit 2 that received middle of last week.

A. Yes, sir.

Q. That reflects your current CV. Is that right, sir?

A. It does, sir.

Q. Okay. And then Exhibit 4, which we've marked, is, ?? believe, a report dated May 15, 2003, from you to ?? Henderson with Tabs 1 through 10 attached to it. ?? a look at that and make sure I've accurately reproduced that.

A. Yes. Some of this is stuff I put together and some it is stuff that I got from Mr. ??nderson.

Q. Okay.

A. The pictures of the wrecked vehicle, the subject wreck, were from the materials sent to me by Mr. Henderson. Some of the other materials of the whole vehicle are of the exemplar '91 that I took, and then I have marked some of the photos to help Mr. Henderson understand the parts of the car and so forth.

Q. Okay. Going back to this notebook that was sent to you, looking at the document that appears to be lower left side says May 13, 2003, page 1, the upper drawing says “Light Duty,” lower says “Heavy Duty.” Can you tell me what that is.

A. That's a sketch of the steering system and the front axle on a '97 Dodge. It's a piece of material I got from going to the Dodge dealer and asking the service people if they had any pictorials of the steering system.

Q. And was that your pencil drawings and notes on that?

A. Yes, they are.

MR. CARTER: Okay. Let's get this marked right now as Exhibit 8.

(Exhibit No. 8 marked.)

MR. HENDERSON: This is Tab 9 to that lette?? that's in the 213 disclosure.

MR. CARTER: Well, we didn't have a Tab 9. It was placed in Tab 8, but that's okay. That illuminates the situation.

THE WITNESS: It's in front of Tab 9.

MR. CARTER: Right. Others were placed behind it apparently.

THE WITNESS; Just so it's clear, I didn't put this tabulation together.

MR. CARTER: That's all right. No problem. Just trying to clear up what's in where.



Q. You were first contacted -- one other thing I want to ask you about real quick. I'm looking at, this is some loose material that you handed to me from your file, and it was between the Rule 213 disclosure and third supplemental response to request to produce, and it says “Building Inspection 6-30-03.” Is that your writing?

A. Yes.

MR. CARTER: Okay. Go ahead and mark that.

(Exhibit No. 9 marked.)

(Discussion off the record.)


Q. You're a mechanical engineer by training.

A. Yes.

Q. I'm just a lawyer, and I'm not an engineer by training. What kind of things do engineers, mechanical engineers deal with?

A. Well, mechanical engineering, I think, is better known as probably the general purpose of the engineering schools where you touch on a little bit of everything, but my particular time in college was I took electives that were pointed towards automotive engineering, but in that you take electrical courses, you take thermodynamics courses, and all engineers would take the general physics courses, the statics courses, kinematics courses, and those types of courses which would tend to allow them to understand the mathematics involved in calculating stresses and so forth.

But the mechanical people are the ones that stay in that probably the heaviest, and mechanical engineering is generally the one that, if you're going to be a machine designer type thing, that's what you work on, as opposed to civil taking you to buildings and bridges.

But we have had courses in calculating loads and beams and bridges and trusses and so forth, so we have a familiarity with that. I didn't spend my -- all my electivea in that. I went to automotive engineering where I understood engines, transmissions, suspensions and that type of thing.

Q. The vehicle that we're talking about here is a what's commonly called a pickup truck.

A. Yes, light duty pickup truck.

Q. Well, when you say “light duty,” does that -- in the construction of this vehicle, this Dodge Ram pickup, are there -- when you look at its design or its construction, you have to evaluate certain factors such as its ability to carry loads or its ability to take stresses under given circumstances,

I mean, do those all go in the design of a vehicle?

A. Yes. The designer would take into account that. The design would take that into account. It would be tested and, of course, field experience would -- in this instance we've got some history because this chassis was designed before 199. so we have some history before that time that we can get information from.

Q. And is there a process that engineers go through to evaluate the potential for failure in a product during its design or creation or even subsequent to that?

A. Well, yes, yes.

Q. Is there a name for that process?

A. Well, it would be -- well, you could have a DFMA, a design failure mode analysis, which a lot of people do. But in this type of suspension, and, of course, I can't speak for the specifics at Chrysler, but it would be dependent on the age and the experience of the guy involved in the design.

If you're talking about a designer that's been around for 20 years, a lot of things he says and does, you just do them because his experience and background and knowledge usually produces a pretty good part without running all the calculations.

If you're dealing with a 22-year-old fresh out of college, then you have to do some other considerations because he doesn't have any experience. Doesn't mean he can't design, but he has to work a ?? bit harder at it.

Q. Okay. So you've worked for, was it General Motors?

A. Yes, sir.

Q. For too long of a time.

A. Thirty-three years.

Q. And then --

A. Plus, I've worked for them since that time indirectly working on accident analysis for them.

Q. Okay. Since '92 I think it is you've been --

A. '92 I retired and I think -- well, I'm trying to think, I think I've got one or two active cases for GM right now but pretty much backed off. I'm kind of trying to re-retire, but I get calls from friends and I help them out.

Q. That's how you're here today.

A. Yes, sir.

Q. Mr. Henderson is a former friend.

A. Well, friend by virtue of I've worked with Mr. Henderson before.

Q. On some GM cases?

A. Yes.

Q. Okay. And so, well, what you've been doing since '92, is that basically what you were doing for some period of time prior to '92 when you formally retired as a full-time employee for General Motors?

A. Yes.

Q. And what exactly is that, just so I'm --

A. Hell, my title at GM when I was working was senior staff analysis engineer, and I had been doing accident analysis work since basically 1965.

Q. Hell, what was entailed in performing your work? Has it senior accident analysis --

A. Senior staff analysis engineer.

Q. Sorry. And your responsibility in that position was to perform analysis of incidents involving various GM motorized vehicles?

A. Yes, particularly where accidents or claims were made against the vehicle. I was asked to evaluate the vehicle and the vehicle component, depending on the situation, do some accident reconstruction work and doing accident analysis and accident reconstruction since 1965.

Q. When you say “vehicle component,” you mean the component of causation that could be or might be attributable to the vehicle with regards to Che accident in question?

A. It would be -- this part would be sent in and it would be claimed by someone that it had caused an accident, and I would be asked to analyze sometimes just the component.

Q. Can you give me -- when you say “part,” what do you mean?

A. Hell, you've got a tie rod ball stud end and it's broken, and I would be asked to -- you know, they're making a claim that it broke and caused the vehicle to go out of control.

In that case I'd do a fracture analysis and a component analysis to make a determination whether it was broken by overload or whether it was broken by fatigue or because -- it was loose and it came apart because it wasn't, properly assembled.

Q. Is that a process that you would follow with respect to most cases or all cases that you're applying your engineering analysis to?

A. Certainly anywhere a component was claimed to be the problem. In some instances, the design was attacked, and we would be working on the design analysis, i.e., the Corvair litigation, X car brake claims.

Q. But anywhere there was a component that was at issue. you'd need to perform, you said ?? what was it -- a fatigue analysis. What else?

A. Hell, fatigue analysis is basically, from my standpoint, it's a visual inspection. It's a low power microscope inspection. And I would take it to the point of doing metallurgical examinations by asking for metallurgy being done.

I did not do the metallurgy, but over the. years, I developed an awful good knowledge of the metallurgy because it was involved in so many of the various cases that were -- that I worked on.

Q. Hell, when you say you did fatigue analysis, it was visual, but then you said low power microscopic analysis. I mean, I'm just --

A. Eye --

Q. I really don't understand, so I'm just trying to get some understanding.

A. Eyeball and low power magnification, generally called macroscopic examination, of components in 99.9 percent of components that are broken can be determined whether there is fatigue involved in the process versus just plain old overload can be done macroscopically.

There are things that you can do in like the electron microscope, and it shows you the microstructure of the material, and there are characteristics of the microstructure that tell you whether fatigue is involved or not involved.

But in most cases that's not necessary. It doesn't mean it's got to be done to do the complete examination. In many cases, particularly if they're litigation, they go to that extreme because usually the other side will come in and say I looked at it under the microscope and there's fatigue.

Q. When you say “fatigue analysis,” though, I mean, does that mean shaving metal or cutting metal or taking a piece and -- how do you do that?

How do you perform this -- I mean, you know, you can't just take a microscope and go stick it down on the -- or do you?

Do you just literally take the microscope and put it down on the product or the particular component?

A. I may. In most cases, I take and hold it and I look at it with my eye. And essentially fatigue is a process of material failure where it has -- a part has failed due to a cyclic load application, the load is applied and reduced, applied and reduced, and it's applied in one direction and it's applied in the other direction. It's called reverse bending, for instance.

And you get a different appearance on the separation surfaces where the fracture has occurred, and I can identify them in many instances, most instances, on an automotive product, by virtue of eyeball examination or light power microscope or magnifying glass.

Q. I take it, when you design a vehicle, the engineers that are in the design side anticipate those stressors that you've just talked about that can cause metal to fatigue.

A. Yes.

Q. And they build that into the design of the product by specifying the type of steel or the alloy or the ingredients that go into the -- they specify what the product is to be, what the component is to be when it ends the manufacturing process before assembly. Is that right?

A. As a general statement, that's correct.

Q. Okay.

A. But it's a conglomeration of knowledge that many people have developed over the years. It's published in various technical bulletins, and if you review that, for instance, the automobile industry in the early times, up through the early '50s, made axle shafts out of steel that was hard and did a heat-treating process called through-hardening, but axle shafts still could fail, they would fatigue.

And in the middle '50s, I don't know if it was Tocco or not, but Tocco makes machinery that induction-harden plain old carbon steel, and basically that process was applied to automotive axle shafts, and it essentially eliminated fatigue failures.

So they didn't change the design of the axle; they changed the design of the material and the application of heat treat.

Q. The specifications for manufacturing were changed?

A. That's right.

Q. Right.

A. Yeah, and I've seen -- my personal experience I have seen that farm implement people didn't have that knowledge or at least didn't utilize that knowledge because I've seen fatigue failure on farm implements, and I looked at that and I said ?? didn't they induction-haroen this thing? They wouldn't have a problem.

Q. Fatigue failure in a component can be the result of a failure in the manufacturing process to meet specifications. Is that correct?

A. You can have fatigue if your manufacturing process does something other to the part than what is by design. For instance, if it's putting in some sort of a notch, if your heat-treating process fails and it doesn't heat-treat properly, and in some instances you can have fatigue.

If it's -- if the unit, particularly in nuts and bolts and threaded fasteners, if they're not properly tightened, you can get into fatigue failure as a result of that.

Q. Okay. Looking at -- I mean, you've told me now that typically what you would do in cases is you would look at a component part, you'd evaluate it, you'd do a fatigue analysis by looking at it with your eyeball and then perhaps doing some type of microscopic analysis, and on some occasions you would perform or ask to have metallurgical exams performed.

A. ??

Q. Have I so far recited what you've told me your process --

A. Yes.

Q. Okay. What else do you do in your job?

A. Well, with the vehicle analysis --

MR. HENDERSON: Jerry, just let him finish his question. I don't think he was through yet.

MR. CARTER: I was done.


A. We do vehicle analysis. We want to determine the path of the vehicle. We take a look at the damage to the vehicle, take a look at the damage to the object struck. We pay attention, for instance, if it's a car, the car situation, we pay attention to the damage to both vehicles.

We look at the parameters on both vehicles because there are physics that apply to collisions such that you can do calculations and make determination's of vehicle velocities and things of that nature. You can also determine the velocity based on the general appearance of the vehicle and the amount of crush to a vehicle.

And the other thing we look at, of course, is just the overall damage to the vehicle, the direction of damage to the vehicle, and certainly we consider the environment, location, the weather. And I guess that's a general coverage of the various topics we take a look at.

Q. Okay. So now you've added vehicle analysis to the list of those things that you typically do in the work you have done or had done for General Motors and have continued to do for approximately ten years since you left General Motors. Correct?

A. Yes. And the other thing we do occasionally and I have done extensively, particularly when I was with GN, is we will take a vehicle out and we'll operate it with a particular component disconnected or simulated broken, disconnected, that type situation, to show the effects on the vehicle, what it will do, what it won't do, that type of thing.

Q. Anything else?

A. Again, generally I think chat covers it.

Q. Okay. When you said vehicle analysis to determine the path of the vehicle, is that what you referred to earlier as accident reconstruction?

A. That -- yes, that's part of accident reconstruction. Just looking at the vehicle and how it's damaged is part of accident reconstruction, right.

Q. Well, so is accident reconstruction a separate type of process that you perform or go through?

A. Well, it -- no. It's part of the process.

Q. Okay. Is there some --

A. We're talking in generalities here. There are some instances where, you know, there may not be a -- an accident per se. The vehicle might Just exhibit some vehicular damage, not hit anything, not hurt anybody but the customer may have been complaining that, you know, he had to repair this vehicle and he didn't want to spend the money for the repair; he thought the motor company ought to. And we would be asked to analyze those situations.

So accident reconstruction in this isn't per se what you're looking at, but we'd still be relating what we saw, the vehicle damage, the vehicle path and that type of thing.

Q. Well, I'm just trying to make sure I understand what -- that I'm -- that I understand what you're telling me, and you've said the vehicle analysis is also one of the things that you do in an ??fort to determine the path of the vehicle.

Is what you've described for me as vehicle analysis different from what you're calling accident reconstruction or is it the same process?

Do you look at the same things, the damage to the vehicle, the damage to the object struck, the parameters on the vehicle or vehicles, overall damage, to the vehicle, the environment?

I mean, are there other things you look at besides those things to do some type of accident reconstruction?

A. Well, I think in a general sense, that's true, but let me give you a for instance. Several years ago we were involved in a claim where a stabilizer was claimed to be the defective part to cause the car to lose control.

So we ran a lateral capability test on the vehicle with and without the stabilizer assembled to show that actually, under the circumstances, the vehicle had a higher lateral capacity without the stabilizer than it did with; however, they were both very very high, we're talking about lateral Capabilities and in the high sixes, low sevens in tenths of a G, and that's above and beyond 99 percent of anybody's ability to drive on the highway.

If you put them in a type of lateral acceleration situation, they're usually out of contro and have an accident. But all we did was just show the capacity of the vehicle with and without the link. So there was no accident, but we were showing vehicle capability in that situation. That would be part of something we might do too.

Q. Okay. And I think that's what -- is that what you referred to as simulation of failure?

A. In that case, that would be a simulation of the claimed failure, yes.

Q. Okay. Is that something that's part of, quote, accident reconstruction then too?

A. No. That would be, in my category, would be --

Q. Would be different?

A. -- Would try to be a visualization and also an education process for myself. Now, that isn't something in that particular instance that was done in the design process. That was only done because I had -- I wanted to know the difference with and without.

Q. Okay. Are there any other things that you typically and usually do in your job and have done in your job for at least the last 10 to 15 years as you've told me about your job?

A. I think we've covered them pretty well in general, yes.

Q. Okay. I take it that it would be fair to state that you have worked with a large number of lawyers over the last 15 to 20 years.

A. Yes.

Q. Most of your work since '92 has been, I think you indicated, doing analysis for, is it ESIS?

A. Since I retired I've done probably thousands of claims analysis for ESIS, yes.

Q. And ESIS is an insurance company that's doing what for General Motors?

A. I don't know that it's an insurance company. All I know is it is the servicing company for General Motors to investigate claims and to handle claims.

Q. Okay. So you were assisting or you were contracting with ESIS to help them do that work for General Motors.

A. Right.

Q. And then in addition to that, in the last ten or eleven years, you've also had independent assignments or hirings by lawyers to perform the type of work you've told me that you do.

A. Yes.

Q. All right. And have most of those assignments or hirings been by individuals who were representing General Motors or some other automotive company?

A. No.

Q. What is --

A. There have been several of them that way, but I've had several insurance companies contact me.

Q. Direct contact --

A. Yes.

Q. -- By the insurance companies, okay. anD does that pretty well cover who most of your clients have been in the last ten years now?

A. Yes.

Q. All right. When you receive a -- typically when you receive a phone call about a matter, what is the process that you go through, and when I say a phone call about a matter, I mean an inquiry -- I take it -- lee me back up.

I take it that not ?? inquiry from a lawyer or an insurance company results in you opening a formal file and doing a formal investigation or evaluation. Is that correct?

A. That's correct.

Q. And why would that be?

A. Well, basically they would call me and ask me if I would be interested in working, and for one reason or another I would say, no, I'm not. Or they would give me some facts and go through the situation and I might say, you know, I really can't help you there. You know, I think you're barking up the wrong tree.

And they would either take that information and run with it or they would say, well, forget him and go someplace else. Of course, I don't know what they do on that.

But most people that call me know me and know my background and so forth, and I can only say, based on my experience, most of them run with what I tell them.

Q. So it's not unusual, in your experience, for a lawyer to contact you, as a competent engineer, and ask -- give you some information and ask what your opinion is ?? cake that opinion to the bank, so to speak, and rely upon it in moving forward or deciding not to move forward with a case. Is that right?

A. Yes.

Q. And that's been a process that you've observed personally at least for the last 10 to 15 years of your experience.

A. Well, let's put it this way. Yes, but, you know, it's not a frequent process.

Q. I understand.

A. But it's a situation I think that's just been established by my contact with the people over the years. I've never advertised since I retired. I've only basically been working with the people that knew me before I retired.

Q. Let's talk about the cases where you get a phone call and, you know, you decide you'll work on the case and they'll decide they want you to work on the case. What's your typical -- what typically is your process?

A. I'm pretty loose because I'm -- I'm it. I'm the secretary and the biller and the whole nine yards. I don't have anybody that works for me. And when Mick called, I said, yeah, I can help you. And in some instances the attorney will send me a letter saying we want you to do this and that and the other thing.

If it's with some corporations, for instance, today GM, they ask you to make some sort of an estimate of your time and costs, but generally I don't do that unless I'm asked to do that.

Most of the time the people will just ask me to send a CV and tell what my charges are and we go from there.

Q. Okay. And after you get through that process, then what do you do?

A. Well, I do the work as requested by the attorney or, as we agree upon, in some instances I say, well, what shall we do or what has to happen here, and we'll agree on that particular path and go on it.

I've got one right now where the fellow called me, and I'm waiting for manuals so I can take a look to make sure I understand the system before I offer him any more opinions.

I've given him preliminary opinions, told him what they are, depending on what I find in the manuals and so forth, because obviously I can't memorize all the systems in all the vehicles. And that's why you go back to things like the shop manual, which we have on the Ram truck, to see what -- how it's put together and how it functions.

Q. So, in your experience, most of the lawyers or the insurance companies' representatives or others like that that contact you, are they engineers by background or training or not?

A. I would say the majority of them are not engineers.

Q. And so are you presuming they're coming to you for some type of insight into engineering issues that they think may exist in the case?

A. Yes.

Q. And, as a result of that inquiry then, are you giving them guidance as to what the engineering issues are or how does that work? You listen to their question, you say, well, that may not be right but, you know, there's this question and that question and we need to do this and that to evaluate the issue? I mean, how do you do that? Is that how -- do you understand my question? I'm just trying to find out how you work here.

A. Well, basically, I listen to what I'm told and, depending on who it is and what it is, it might be just some legal advice because ?? been in trial and been in 30 many cases over the years.

Based on what I'm told, I may tell them in this instance I can't help you and I don't think you've got a case or here's what you should be doing, here's the avenue you should be taking, and, you know, you shouldn't be looking to me type of thing. You ought to be looking over here at this particular situation.

You know, every one of the calls is different. Every accident is different.

Q. Every --

A. Most of the people that are calling me are people that have known me over the years, either through insurance work, through ESIS, through even the insurance carriers for lawyers such as Mick that they've worked on, and they come back and Mick says Jerry might help and I get a call from a stranger.

But I'm usually quoted I talked to so-and-so and that name I know, and that's how they've gotten my name.

Q. Okay. Have you pretty much -- well, let me back up a second. So what you're saying is you get these phone ?? and ultimately you decide to be involved in the case; then you outline or tell them what you think the analysis process needs to be and they decide to do it or not. Is that kind of the way it works?

A. Essentially. I may get materials from them to make an analysis. We may just do the phone call, and that's it and there's -- I don't bill for the time. Some cases I might, if I'm on the phone for half a day, I might send them a bill.

Q. And I take it from what you said a moment ago that even if you have -- well, strike that.

You had experience working -- you've had experience working on products liability cases in the last 15 or 20 years. Yes?

A. Yeah.

Q. Okay. And in that history of life experience, did you ever work on the same or similar vehicle with regards to the same or similar claims of defect? You know, and I guess I would think I would liken it to the Ford Pinto where they claimed the gas tanks or the GM -- were they GM pickups not too long that had side saddle tanks?

A. GM fire claims, yes.

Q. So those were similar design issues.

A. Yes.

Q. I mean, have you worked on cases where it's been a second or third or fourth time that you've seen a similar claim of design failure?

A. Hell, you name the subject and I've probably worked a claim on it. I have worked fire issues, I've worked several fire issues, particularly with ESIS.

Q. I guess my point of my question --

A. As far as similar claims, I don't -- I know of one other Dodge incident that I was asked to analyze, but it was a fire claim on the Dodge.

MR. HENDERSON: I don't think that's the question he's trying to get to. He was going to try to restate the question.

A. Okay.

Q. What I want to ask you is, even if you have cases that involve a similar issue, I think what you'd said a few moments ago is that each case is a unique case and has to be approached in the same analytical fashion. Correct?

A. Yes.

Q. Okay. You don't walk into a case presuming that there is a problem just because a similar product on an earlier occasion had a problem. Is that correct?

A. Oh, absolutely.

Q. Would you agree with me that it would be, in your opinion -- listen, when I -- again, I'm not -- I'm not an engineer, so I'm just trying to figure things out.

But if I ask you questions about your opinion, we have this standard to a reasonable degree of engineering certainty, I guess is what we'd be talking about.

A. Yes, sir.

Q. Instead of having me say that all the time, if I just say your opinion, can we agree we're understanding --

A. My opinions are to a reasonable degree of engineering certainty, yes.

Q. Okay. Thanks. Would it be your opinion that, if someone wasn't a trained engineer, it would be almost impossible for them to make a determination about whether a product contained a defect or a failure that was perhaps a cause of some accident or collision?

MR. HENDERSON: Just object to the form. He can go ahead and answer.

A. You know, I can't answer that question because you're asking me about too many unknown. I mean, just because the guy doesn't have a degree, he might be a pretty sharp mechanic and he might understand physics well enough to do things.

I had a good friend of mine who's now passed away that I would send out to take photos for me and so forth, and he and I had worked a long time. He knew a lot about accident reconstruction, part analysis and so forth.

Q. But assume that somebody doesn't --

A. So I can't answer that question.

Q. Assume that somebody doesn't have that kind of a background, you know, a self-taught accident reconstruction background, I mean.

Do you think a person without engineering background, training, and experience is able to analyze whether or not a product contains a defect, as that word is used in the law?

A. They may or they may not be able to.

MR. HENDERSON: Object to the form.

Q. Under what circumstances?

A. You would have to give me the person and let me talk to them, and I could make a determination whether they ?? or not,

Q. What would go into making a determination that they could render such an opinion?

A. Well, it would depend on the circumstances involved ?? a particular situation. In other words, if you got ?? vehicle and the wheel Cell off, you know, that's one ?? circumstance. Obviously anybody can tell when a whee?? is off the vehicle.

Whether they can make a determination of why it's off the vehicle, I don't know. But if they look at it and the five nuts are missing or the studs are broken, they could make a determination that the vehicle probably lost the wheel while it was in operation. If the axle's broken, then it could be broken off in the accident.

But, again, some of those things are common sense, but depending on how much common sense the nontechnical person has, they might come to the right conclusion. I don't know. I'd have to talk to the person involved.

Q. Okay. Looking at Exhibit 2 that you have in front of you --

MR. HENDERSON: Let me just -- this is a publication that was in Mr. Confer's file, and he handed it to me last week, and I didn't give it back to him. It should be part of his file. You're welcome to a copy of it. It's called Accident Reconstruction Journal, Volume 6, No. 2.

Q. Hell, that's dated March/April of 1996. What's the significance of that being in your file with regard to this case?

A. That particular journal has the results of some offset barrier crash tests, one of them being a pickup truck, and I was using it to reference why I had an opinion relative to the accident forces involved in this particular pickup, and I was using the pictures and so forth to help explain to Mr. Henderson how I got these and what the real world of testing showed.

And this is something that I have in my office. I was a member of that until, I think, last year, and that's a publication they'd send out periodically and would show you the results of testing they did.

I don't have results of the testing that was done at GH. I have it in my head and my experience relies on that, but this was actual tangible stuff I had, so I brought it to show Mr. Henderson or anybody else that needs to understand how I came to the conclusions that I have on this particular Miller '97 Dodge.

Q. Offset means what?

A. It means it's running into the barrier but it's running in so that the vehicle isn't encompassing the whole barrier, it's hitting, in that particular instance, I think they're 50 percent. So they're hitting from the center line of the vehicle off to the left. From the center line of the vehicle to the right they're not striking the barrier.

MR. CARTER: Let's mark this.

(Exhibit No. 10 marked.)

Q. What is it about -- well I'll come back to that. Looking at your disclosure, understand I just want to run through these and see if I understand clearly what's being said and I'll come back to A.

B is: Vehicle operated by Mr. Miller at the time of the accident was reasonably crashworthy. I

A. Yes.

Q. By crashworthy do you mean that it does not deform in the course of a crash in a fashion that would exacerbate injury to human ???

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