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Filing # 67061909 E-Filed 01/25/2018 05:12:31 PM
IN THE CIRCUIT COURT OF THE
TWENTIETH JUDICIAL CIRCUIT, IN AND FOR
CHARLOTTE COUNTY, FLORIDA
SCOTT TINGLEY & BLANCA TINGLEY,
Plaintiffs,
vs. CASE NO.: 2016-001745-CA
TOYOTA MOTOR SALES, U.S.A., INC.,
Defendant.
/
TOYOTA MOTOR SALES, U.S.A., INC.’"S MOTION TO
EXCLUDE OPINION TESTIMONY OF ENRIQUE
JORGE AND INCORPORATED MEMORANDUM OF LAW
Defendant, Toyota Motor Sales, U.S.A., Inc. (“TMS”), respectfully requests this Court
enter an Order prohibiting Plaintiffs’ purported expert, Enrique Jorge, from offering certain
opinion testimony at trial because: (1) he is not qualified to offer an opinion regarding the design
and performance of the subject vehicle’s engine and transaxle; (2) his opinions regarding any
alleged unrepaired defects in the subject vehicle are based on insufficient facts and data and
amount to nothing more than mere speculation; and (3) he is not qualified to offer an opinion
regarding the diminution in value of a motor vehicle.
MEMORANDUM OF LAW
1 INTRODUCTION
This case concerns a 2014 Toyota Prius bearing Vehicle Identification Number
JTDKN3DU1E0368820 (“subject vehicle”), Plaintiffs allege that their Prius is defective and are
pursuing a claim for damages under the Federal Magnuson-Moss Warranty Act. In support of
their claims, Plaintiffs hired Enrique Jorge (“Jorge”) to inspect and ride in the Prius, and render
expert opinions at trial regarding any defects he was able to verify, and the reduction in value of
the Prius as a result of those alleged defects. Relevant excerpts from Jorge’s deposition
transcript are attached as Exhibit “A.” A copy of Jorge’s report is attached as Exhibit “B,” and a
copy of his CV is attached as Exhibit “D.”
The 2014 Toyota Prius is a full hybrid electric vehicle which uses a 1.8 liter internal
combustion engine in conjunction with high voltage batteries and Toyota’s Hybrid Synergy
Drive system. Affidavit of Eric Cook attached hereto as Exhibit “C” at § 4. As a full hybrid
vehicle, the Prius uses a split power path that allows flexibility between the internal combustion
engine and the electrical batteries to power the vehicle and achieve the best fuel economy
possible. Ex. “C” at §. 4. Toyota’s Hybrid Synergy Drive uses a computer to oversee the system
operation and determine the best combination of use between the internal combustion engine and
the batteries to propel the vehicle. Ex. “C” at 9 5.!
Jorge performed a cursory visual inspection of the subject vehicle, and a limited road test,
where the Prius was driven around Plaintiffs’ neighborhood for 6 miles. Based on his visual
inspection and brief test drive, Jorge’s opinions in summary are:
. The vehicle has a Continuously Variable Transmission (“CVT”) and a belt inside the
transmission is slipping and causing a lack of power in the engine. Exhibit “A,” pg.
27, In. 20 — pg. 28, In 9; pg. 61, Ins. 15-21.
When the vehicle’s gasoline engine was idling, the needle on the vehicle’s tachometer
showed the revolutions per minute (“RPM”) of the engine going up to 2,000 and
down to 800. Ex. “A,” pg. 45, In. 15 — pg. 46, In. 15.
The fluctuating engine idle occurs on an intermittent basis, and therefore is due to a
poor connection in the engine wiring harness. Ex. “A.” pg. 30-, In. 13 — Pg. 31, In. 1;
pg. 55, Ins. 10 — 18.
' There are multiple distinct engine settings for the Toyota Prius which affect the input from the engine
and batteries. Ex. “C” at §] . These settings are not manually adjustable by the driver, but instead are
selected by Toyota’s Hybrid Synergy Drive based on the driving conditions. Ex. “C” at { :
2
The CVT belt slippage and the fluctuation in the engine idle speed are defects which
require the replacement of the transmission and the replacement of the engine’s
electrical wiring harness. Ex. B.
The manufacturing defects in the transmission and engine wiring harness have
reduced the vehicle’s value by 20% or $4,271.00 of the original purchase price of
approximately $21,358.00. Ex. B.
Jorge is not qualified to render any of the above opinions, and his opinions are not
supported by facts and data.
IL. STANDARD FOR THE ADMISSIBILITY OF EXPERT TESTIMONY
Regardless of whether this Court employs the Frye or Daubert standard for the
admissibility of expert testimony”, the rule in Florida has always been that an expert witness
must be qualified and that his or her opinion must be based on sufficient facts and data.
An expert must establish his qualifications to give an opinion through either his or her
knowledge, skill, experience, training, or education. Fay v. Mincey, 454 So, 2d 587 (Fla. 2d
DCA 1984). “Any one of these methods will suffice,” but at least one method is required in
order to form the foundational level of qualifications for an expert opinion. 5 Fla. Prac., Civil
Practice § 19:10 (2017 — 2018). Importantly, “it is not enough that the witness be qualified to
propound opinions on a general subject; rather he must be qualified as an expert on the discrete
subject on which he is asked to opine.” Goodyear Tire & Rubber Co., Inc. v. Ross, 660 So. 2d
1109 (Fla. 4th DCA 1995) (citing United Technologies v. Indus. Risk Insurers, 501 So, 2d 46
(Fla. 3d DCA 1987).
In Goodyear Tire & Rubber Co., Inc. v. Ross, a portable rubber speed bump made and
sold by the defendant became dislodged and injured the plaintiff. Goodyear Tire & Rubber Co.,
660 So. 2d at 1110. The Fourth District Court of Appeal reversed the case for a new trial on
? The Florida Supreme Court is hearing Oral Argument on March 6, 2018, in Richard DeLisle v. Crane
Co., SC16-2182, regarding whether Frye or Daubert will be the governing standard for admissibility of
expert testimony in Florida.
unrelated grounds, but they also noted that for the retrial one of the experts previously permitted
to testify was not qualified to give an opinion.
To foreclose other errors in the retrial, we comment on the admissibility of
testimony of the expert witness Ramisch. He may be the world’s foremost expert
on traffic control devices, but it does not appear that he knows any more than we
do about portable rubber speed bumps. We agree that it is not enough that the
witness be qualified to propound opinions on a general subject; rather he must be
qualified as an expert on the discrete subject on which he is asked to opine.
Id. at 1111; see also Sea Fresh Frozen Prod. Inc. v. Abdin, 411 So. 2d 218 (Fla. 5th DCA 1982)
(holding that a doctorate in marine chemistry and research background in that field did not
qualify plaintiff's expert to testify regarding the slipperiness of algae growth or its control
because he had done no studies regarding marine algae growth).
In Consolidated Mutual Insurance Co. v. Hampton Shops. Inc., 332 So. 2d 101, 102 —
103 (Fla. 3d DCA 1976), the plaintiff filed a claim for damages to lumber machinery which
occurred as a result of a fire in the plaintiff's furniture manufacturing plant. /d. at 102. The
defense presented an insurance adjuster as an expert that specialized in property damage due to
fire. Id. The defense’s expert had previously investigated losses on machinery due to fire, and
was also raised around tool and die manufacturing equipment as a child. /d. Nevertheless, the
trial court refused to permit the defense’s expert to testify because he admitted that he was not an
expert with respect to wood manufacturing equipment. /d.
Should an expert be qualified, the question then becomes whether his opinion is based on
sufficient facts and data, [“‘aJn expert opinion is inadmissible where it is apparent that the opinion
is based on insufficient data.” Husky Industries, Inc. v. Black, 434 So, 2d, 988, 992 (Fla. 4th
DCA 1983); see also Sidran vy. El. Dupont De Nemors & Company, Inc., 925 So. 2d 1040, 1043
(Fla. 3d DCA 2006); Carnival Corp. v. Stowers, 834 So. 2d 386 (Fla. 3d DCA 2003). “An
expert cannot simply assume the facts which form the basis of his opinion.” Brito v. County of
Palm Beach, Florida, 753 So. 2d 109, 114 (Fla. 4th DCA 1998). Thus, a court must exclude as
speculative any expert opinion based on unconfirmed or irrelevant data, potentially unwarranted
factual assumptions, or guesswork. Sidran, 925 So. 2d at 1043; Carnival Corp., 834 So. 2d 386;
Brito, 753 So. 2d at 114; Central Florida Plastering and Development v. Sovran Construction
Co. Inc., 679 So, 2d 1226, 1228 (Fla. Sth DCA 1996); Young-Chin v. City of Homestead, 597 So.
2d 879, 882 (Fla. 3d DCA 1992); Newell v. Best Security Systems, Inc., 560 So. 2d 395, 397 (Fla.
4th DCA 1998); Husky Industries, Inc., 434 So. 2d at 993, 995.
In Brito v. County of Palm Beach, Fla., the defendant moved to exclude plaintiff's expert
engineer from testifying at trial. Plaintiff's expert opined that equipping the subject Jeep, an
under-steer vehicle, with oversized wheels resulted in terminal over-steer characteristics, and that
the danger of over-steering due to the wheels was not readily apparent. Brito, 753 So. 2d at 111.
The expert conceded, however, that he was unaware of any studies or research which supported
his opinion. /d. The Brito court determined that the opinion rendered by the plaintiffs expert
“was not based on any methodology, literature, or studies, and the only record evidence to
support his opinion is his testimony itself.” 7d. at 114. Asa result, the Fourth District Court of
Appeals affirmed the trial court’s exclusion of plaintiff's expert testimony, and further noted that
“{a]n expert cannot simply assume the facts which form the basis of his opinion.” /d. at 113 -
114,
Accordingly, this Court should exclude Jorge’s testimony unless Plaintiffs can
demonstrate that he is qualified as an expert regarding the design and performance of the Toyota
Prius, and that his opinion is based on sufficient facts and data. The Court also should exclude
Jorge from offering an opinion on the alleged reduction in the vehicle’s value unless Plaintiffs
demonstrate he is qualified to assess vehicle values.
Til. JORGE’S OPINION TESTIMONY IS INADMISSIBLE
A Jorge is not qualified to give an opinion regarding the design and
performance of the subject vehicle’s engine and transaxle.
Jorge must establish his qualifications to render an opinion regarding the design and
performance of the subject vehicle by showing either: (1) particularized knowledge regarding the
proper operation of the subject vehicle and its components; (2) discrete skill in diagnosing or
repairing the subject vehicle or its related components; (3) specific experience in diagnosing or
repairing the subject vehicle; or (4) specialized training or education regarding the subject
vehicle or its related components. See Mincey, 454 So. 2d 587; Goodyear Tire & Rubber Co.,
Inc., 660 So. 2d at 1111; Hampton Shops, Inc., 332 So. 2d at 102. But here, Jorge lacks the
knowledge, skill, experience, training and education to qualify him to render an opinion
regarding the subject vehicle.
Jorge spent most of his career working for various Volkswagen dealerships, most
recently Schumacher Volkswagen. See Jorge’s CV attached as Ex. “D.” As a Volkswagen
technician, both the dealerships and the manufacturer required Jorge to take two or three training
courses a year, and required him to earn new certifications on any new Volkswagen model or
component in order to perform warranty repairs on a vehicle. Ex. “A” pg. 14, In. 6; and pg. 15,
In. 11. As a technician for Volkswagen, Jorge did not receive any training regarding hybrid
vehicles or their components. Ex. “A” pg. 16, Ins. 8 — 14.
Jorge concedes that he was not permitted to perform diagnostics and repairs on
Volkswagen vehicles without specific training and certifications on each new Volkswagen model
and component, but he is offering “expert” opinions on a Toyota vehicle for which he has no
training or certifications. He has never worked for a Toyota dealership and does not hold any
Toyota certifications. Ex. “A,” pg. 16, In. 25 — pg. 17, In. 2. Jorge has not had any training
regarding the Toyota Prius, or Toyota’s Hybrid Synergy Drive. Ex. “A” pg. 17, Ins. 2-7. Jorge
also does not have any special training with any hybrid vehicles or hybrid system components.
Ex, “A” pg. 15, In, 12 — pg. 16, In. 14. The only experience he has with a Toyota Prius is the two
or three times he performed routine maintenance on the non-hybrid components of a Prius. Ex.
“A” pg. 17, Ins. 8 — 23.
Lack of Knowledge
Jorge does not possess even the most basic understanding of the 2014 Toyota Prius which
would qualify him to render an opinion regarding the design and performance of the subject
vehicle. During his deposition, Jorge testified that in his opinion the subject vehicle was idling
abnormally because he saw the engine RPMs “hunting” back and forth. Ex. “A” pg. 47, In. 22 -
pg. 49, In. 6; pg. 68, Ins. 16 — 22.
Q. [C. Mitchell]: Do you know if you were able to determine what the rpms
were?
A. [E. Jorge]: Yes, there was a tachometer, sorry, because that’s where I
saw the needle going up and down.
Q. [C. Mitchell]: Do you recall the rpm levels?
A. [E. Jorge]: Yes, they were over a thousand when it was in the up - -
you know, close to 2,000 rpm and then back to seven or eight hundred, six
hundred.
Q So in terms of the erratic idle, you recall at the high level the rpms were
over a thousand and perhaps close to two thousand?
A. Yes,
And then the low level they were perhaps six hundred to 800 rpms?
A. Yes.
That’s at idle.
A. At idle.
Q But you didn’t - - You don’t have any notations that reflect that, correct?
A. No, I do not, only that the idle was erratic.
Q. [C. Mitchell]: So you viewed the rpm levels you saw at idle as abnormal?
A. [E. Jorge]: Yes,
Q Was that abnormal in terms of how low or high or just that it was hunting
back and forth?
A: It was hunting back and forth is what I thought it was, because it is normal
to be - - when you first start it to be on the higher side, you know, closer to a
thousand, you know, but it would stay there until it comes down. But this was
going up and down, hunting.
Q It wasn’t so much the rpm level being too low or too high, it was just the
fact that it was bouncing back and forth?
As Correct.
Ex. “A” pg. 45, In. 12 — pg. 46, In.18; pg. 47, In. 22 — pg. 48, In. 10.
It would have been impossible for Jorge to actually see and ascertain the engine RPM
levels because the subject vehicle does not have a tachometer. Ex. “E” deposition of Scott
Tingley pg. 73, Ins. 10 — 13; and Ex. “C” Affidavit of Eric Cook at § 8. In fact, there is no
needle or gauge by which Jorge could have monitored the engine RPMs. Ex. “C” at § 8. In
addition, Jorge did not use any type of tool or computer to identify or monitor the engine RPMs.
Ex. “A” pg. 64, Ins. 20 — 23; pg. 64, In. 24 — pg. 65 In. 15.
Jorge also does not possess any particularized knowledge of the subject vehicle’s
transaxle which would qualify him to render an opinion regarding its design and performance.
Jorge opined that the subject vehicle’s transmission is “slipping.”* Ex. “A” pg. 41, Ins. 10 — 12.
Jorge believes that the vehicle has a Continuously Variable Transmission (“CVT”) with a belt
and pulley system that controls the gear ratios. Ex. “A” pg. 37, In. 4-8; pg. 60, In. 23 — pg. 63,
In. 19. In his opinion, if the CVT belt stretches, it will become lose and the transmission “slips.”
Ex. “A” pg. 60, In. 23 — pg. 63, In. 19.
Q. [C. Mitchell]: ‘You mentioned the belts. What did you means by the belts
and the way it was slipping?
A. [E. Jorge]: The CVT belt. I’m adding this. He didn’t tell me that. He
doesn’t know. But the CVT, of course, has a belt and that’s what I felt, that it was
slipping, the belt itself.
Q. [C. Mitchell]: Now, what do you mean by the transmission slipping?
A. [E. Jorge]: On this particular transmission, the only thing that could
slip is a belt. It’s driven by a belt that the wheels on either end, they get small and
large. It depends on the ratio. So that’s where it slips, slipping between those two
gears.
Now, if it was a regular transmission, it would be a clutch would be
slipping. So I mean, if it was a manual transmission, the clutch would be
slipping, but that’s the feeling, that the rpm’s were high and the engine wasn’t
keeping up with the speed. I mean, it’s just a feeling.
Q All right. So you indicated that there’s some belt that must have been
slipping between two gears, you said?
A. Yes.
Q What would you mean by that? Explain a little further what you mean
between two gears?
A. CVT transmissions have - - the basic design is two gears that they have - -
the sides they either widen or close. As they do that, when they close, it makes it
tighter; and when they open, it makes it looser, okay. And they both work in
tandem. When one goes big, this one goes small; and that’s how they control the
5 Jorge refers to the vehicle’s “transmission” in his deposition, but the Prius has a transaxle which
combines the functionality of a transmission, differential and associated components of the driven axle
into one integrated assembly. Ex. “C” Affidavit of Eric Cook at {. :
9
ratio of the transmission. It doesn’t have gears like first, second, third forth gear,
but it’s a continuance speed of velocity.
Q So explain that a little further. When you say there’s two gears and the
sides widen or close tighter or looser, explain that a little more.
As They’re pulleys. Let’s see, you have - - a belt rides on pulleys. Let’s not
say gears, because it doesn’t have teeth or anything. So it’s got pulleys and the
pulleys have two sides to each pulley and the control module will control the - -
They do this, they open and close the pulley. As you know, the belt is the same
size. If you close it, it goes to the top; and if you open it, it falls to the bottom,
meaning that before it was all the way around this big. And as it opens, it closes
this side, but at the same time it opens the other side.
So like a bicycle, for instance, how you change gears in a bicycle, you go
from big and it’s slower to small to make it fast, to go fast. This is the basic - -
that’s how I understand it.
Q So how would that slipping actually occur, what would happen, what
would go wrong?
As Okay. I think the belts have a lifetime. I don’t know whether they’re fifty
thousand, a hundred thousand. I’m not sure if they - - I’m sure they stretch,
whether they’re made of material or metal. I believe some of them are made of
metal. And if they stretch, you know, and the two gears or the two pulleys are in
the same position, you know, it would tend to at some point be - - the belt be
loose.
Ex. “A” pg. 28, Ins. 4 — 9; pg. 61, In. 15 — pg. 63, In. 19.
Jorge has no training on CVTs. Ex, “A” pg. 16, In. 15-24, Moreover, the subject
vehicle’s Hybrid Synergy Drive does not operate on a belt and pulley system. Ex. “C” at § 7.
There are no belts. Ex. “C” at § 7. There are no pulleys. Ex. “C” at § 7. And contrary to
Jorge’s suggestion in his deposition, the Hybrid Synergy Drive is not equivalent to a bicycle’s
gear system. Ex. “C” at § 7. Quite simply, there are no components within Toyota’s Hybrid
Synergy Drive to “slip” as Jorge theorizes. Ex. “C” at 47.
Furthermore, Jorge did not review any data parameters or written materials regarding the
normal operation of the Toyota Prius prior to his inspection. Ex. “A” pg. 66, Ins. 8— 10. Jorge’s
10
entire opinion therefore is based on incorrect knowledge of the components within the subject
vehicle and an incorrect understanding of how the Toyota Prius operates. Jorge cannot identify
the most basic systems and components of the subject vehicle, let alone how they operate. Thus,
Jorge cannot possess the particularized knowledge which would qualify him as an expert
regarding the correct operation of the Toyota Prius. See Mincey, 454 So. 2d 587; Goodyear Tire
& Rubber Co. Inc., 660 So. 2d at 1111.
Lack of Skill and Experience
Jorge does not have the requisite discrete skill or experience in diagnosing or repairing
either the Toyota Prius or hybrid vehicles in general in order to qualify him to give an opinion
regarding the subject vehicle’s design and performance.
Jorge’s only experience with a Toyota Prius are the two or three times he performed
routine maintenance on non-hybrid components. Ex. “A” pg. 17, Ins. 18 — 23. Additionally,
Jorge has never performed any repairs on the hybrid system of any hybrid vehicle. His
testimony is as follows:
Q. [C. Mitchell]: Did you - - So you didn’t have any certification for hybrid
vehicles: is that - -
A. [E. Jorge]: No, I didn’t have a certification, but I did work on them,
but not on the hybrid side. If I had to do any work on the engine itself, on the gas
engine, yes I did.
Do you recall if you’ve ever performed any repairs on a Prius?
Yes.
Are you able to estimate how many times?
A. Two or three times.
Do you happen to recall what, generally, those repairs were for?
ll
A. Yeah. It was maintenance, brakes and engine maintenance, but not the
hybrid side, but the engine itself, the gas engine, and brakes.
Q So did you do any work on Prius models, other than maintenance?
Aa: No, that’s it.
Ex. “A” pg. 16, In. 8 — pg. 17, In. 23.
As evidenced by his testimony, Jorge does not have any specific experience or the
discrete skill either diagnosing defects within the Toyota Prius or hybrid vehicles in general.
Jorge also does not have the required skill or training in repairing either the Toyota Prius or
hybrid vehicles in general. Jorge therefore is not qualified based on either his skill or experience.
See Mincey, 454 So. 2d 587; Goodyear Tire & Rubber Co. Inc., 660 So. 2d at 1111.
Lack of Training and Education
Jorge does not have any specific training or education regarding either the 2014 Toyota
Prius or hybrid vehicles in general which would qualify him to render an opinion regarding the
subject vehicle’s design and performance.
Q Do you have any certifications on any hybrid vehicles?
A. No. It was only one person in the dealership that did that. I guess they
didn’t want to - - I mean, it wasn’t something that they had so many of them.
They only had a few and so one person was the only certified on hybrid at my
dealership.
Do you have any Toyota certifications?
No.
Have you taken any Toyota training courses?
As No, I have not.
12
Any training on Toyota’s Hybrid Synergy Drive?
No.
Q Any training on the Toyota Prius?
A. No.
Ex. “A” pg. 15, In. 12 — pg. 17, In. 7.
As stated above, a general knowledge of a subject matter is not sufficient to qualify an
expert to give an opinion at trial. Goodyear Tire & Rubber Co., Inc., 660 So. 2d at 1111. The
expert must have some particularized knowledge, discrete skill, specific experience or
specialized training regarding the subject matter. See /d. (citing United Technologies, 501 So. 2d
at 46; Abdin, 411 So, 2d at 218. As evidenced by his testimony, Jorge does not possess the
necessary training or education regarding Toyota vehicles, the Toyota Prius or hybrid vehicles in
general, which would qualify him as an expert in this case.
B. Jorge’s opinions regarding any alleged unrepaired defects are not based
on sufficient facts and data and amount to nothing more than pure
speculation.
“An expert cannot simply assume the facts which form the basis of his opinion.” Brito,
753 So. 2d at 114. In order to be admissible, an expert’s opinion must be based on sufficient
facts and data. Husky Industries, Inc., 434 So. 2d at 992. In this case however, Jorge’s opinions
regarding the subject vehicle’s design and performance are not based on any facts or data.
Lack of Facts and Data to Support an Engine Defect
Jorge believes the alleged erratic engine RPMs are caused by a faulty electrical wiring
harness. Ex. “A” pg. 30, In. 13 — pg. 31, In. 1. Jorge believes this requires the replacement of
the subject vehicle’s engine wiring harness. Ex. “A” pg. 55, Ins. 2 — 12; Ex. “C.” In fact, Jorge
13
testified that there is no other likely cause of an erratic idle other than a malfunction in the engine
wiring harness. Ex. “A” pg. 59, Ins. 3-6.
Again, Jorge’s claims with regard to actually viewing the engine RPMs are patently false,
because the subject vehicle does not have a tachometer. Ex. “D” depo of S. Tingley pg. 73, Ins.
10 — 13; and Ex. “C” Aff. of E. Cook at ¥ 8. There is no needle or gauge by which Jorge could
have monitored the engine RPMs, and in addition, Jorge did not use any type of tool or computer
to monitor the engine RPMs. Ex. “A” pg. 64, Ins. 20 — 23; pg. 64, In. 24 — pg. 65 In. 15; Ex. “C”
at 78.
Jorge also did not consult any technical literature, repair manual, or specifications for the
subject vehicle. Ex. “A” pg. 53, In. 20 — pg. 54, In. 2. Moreover, Jorge failed to perform any of
the tests which could have confirmed the presence of a defect in the wiring harness.
Q. [C. Mitchell]: You say you had an OBD - -
A. [E. Jorge]: Two.
Q - - I Scanner?
A. Yes,
Q Was that something that had the capability to monitor the engine and
transmission parameters during the test drive?
A: No, not the parameters. I could read live specifications, for instance, what
the idle or whatever it is at certain times of the drive or whether the oxygen is
open loop or closed loop, that kind of stuff. Or if it’s got any misfires, I could
check that. But, in this case, I didn’t use it because it was something to do with - -
it had nothing to do with the live, but with feel. Like I said, I can actually see the
idle go up and down.
Q. [C. Mitchell]: What would you do to try to isolate what exactly has gone
wrong in the wiring harness?
14
A. [E. Jorge]: Okay. First thing that we do is a wiggle test, what they call
a wiggle test. We go around, you know, the harness and wiggling, moving the
harness to make it stop doing or start doing it.
Q You would not do any further diagnostics before doing that?
Aa: Of course. I mean, I would do the wiggle test. I would check - - you
know, connect and disconnect connectors to make sure that the connection is a
good connection, make sure you don’t see any corrosion or any kind of burning or
overheating connections. There are such a thing as an oil and coolant migration,
that the actual coolant goes through the wires and up to a connection and corrodes
it.
Q So when you were saying disconnect and connect, you would just unplug
and plug connectors back in just to make sure they were secure.
A. Correct.
Did you conduct a wiggle test?
A. No.
Did you disconnect and reconnect any of the connectors?
A. No.
Ex. “A” pg. 56, In, 22 — pg. 59, In. 2; pg. 64, In 24 — pg. 65, In. 15.
Setting aside his false claim of actually seeing the engine RPMs fluctuate on the non-
existent tachometer, Jorge does not have any identifiable data to support his opinion that the
engine wiring harness is defective.
Lack of Facts and Data to Support a Transmission Defect
Jorge believes the subject vehicle’s transaxle is slipping based on his perception of the
level of the RPMs in relation to the vehicle’s acceleration. Ex. “A” pg. 68, In. 23 — Pg. 69, In. 2.
As discussed above, it was impossible for Jorge to actually see the engine’s RPMs, as the subject
15
vehicle does not have a tachometer from which to read the RPM levels. Ex. “E” pg. 73, Ins. 10 —
13; Ex. “C” at § 8. Jorge also did not perform any test which could have confirmed the presence
of a defect in the subject vehicle’s transaxle. Furthermore, Jorge admitted that he did not collect
any data or perform any additional test which would confirm his opinion:
Q. [C. Mitchell]: Now, did you write down the rpm levels that you observed
when the vehicle was - - when you believe the transmission was slipping?
A. [E. Jorge]: No, I did not.
Q What steps could be taken to confirm whether the transmission does have
a malfunction in this vehicle?
A. Well, I believe if there is a scanner that can actually read the ratios, we can
- - that can be found out, or by taking it apart.
Q So if you had a scanner to read the ratios, what would that tell us?
As It will tell you - - I mean, I’m sure they have specifications for, at a certain
speed, what the ratios will be. That’s how you can tell if it’s slipping or not.
Maybe they have it another way. The only way I would know how to do is to
take it apart and see if it’s actually loose.
Q So but if you - - Apart from disassembling the transmission, if there were
a diagnostic tool that would allow you to monitor the ratios in the transmission at
certain speeds and then compare those to the specifications, that would tell you if
it’s slipping or not?
A: Yes.
Q And did you do that?
As: No.
Q Did you have any diagnostic tool hooked up to the vehicle’s ECM or
interfacing with the vehicle’s ECM during the test drive?
As No.
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Q Have you heard the phrase “data list parameters”? Are you familiar with
that phrase?
As Yes.
Q What does it mean?
A It’s like a - - we call it block values and what it is, is each block has a set
of values that will tell you where you’re at when you’re driving. For instance, it
depends on what you’re checking, you go to a specific block value and then that
gives you the specifications of where you’re at.
Q How the vehicle is performing?
As Right.
Q In relation to the specifications?
As Correct.
Q And did you analyze any data list parameters to assess the transmission’s
performance?
A. No.
Q So say you were working at Schumacher Volkswagen and a vehicle had
come in where you felt like there might be some transmission slipping, some issue
with an erratic idle, would you use a Volkswagen scanner tool to check for these
types of things?
As Yes.
Ex. “A” pg. 59, In. 19 — pg. 66, Ln. 10; pg. 68, Ins. 5 — 10.
In addition, Jorge admitted that if he were at a dealership and wanted to replace a
transmission under the manufacturer’s warranty, that there are specific tests and procedures to
follow in order to first confirm a defect.
17
Q. [C. Mitchell]: So if you were in a dealership that had all the equipment
you needed and Mr. Tingley brought his vehicle to you, would you do anything
else, in terms of diagnostics, before replacing the transmission?
A. [E. Jorge]: Usually in order to replace a transmission you have to have
some kind of evidence. Otherwise, a warranty would never accept it. So you do
have to - - yes, you have to run some tests. There’s usually a checklist. We had a
checklist that you had to check different things and then you have to call the tech
line; and judging by what the tech line will tell you, they could say repair or
replace it.
Ex. “A” pg. 69, Ins. 7 — 18. He did not perform any tests or procedures to validate his guess
that the transmission is malfunctioning.
A court must exclude as speculative any expert opinion based on potentially unwarranted
factual assumptions, or guesswork. Sidran, 925 So. 2d at 1043; Carnival Corp., 834 So. 2d 386;
Brito, 753 So. 2d at 114; Central Florida Plastering and Development, 679 So. 2d at 1228;
Young-Chin, 597 So. 2d at 882. Here, Jorge only has guesswork to support his opinions as he
has done nothing to confirm his opinion that a defect exists in the subject vehicle. He collected
no data, performed no tests, and did not review any literature or material which could provide a
baseline regarding the proper functions of the subject vehicle. Quite simply, Jorge’s opinion is
nothing more than ipse dixit because there is not one identifiable piece of data that he can base
his opinion on. Even the supposed visual observations of the engine RPMs are not reliable,
because it was impossible for him to actually view the RPMs as the subject vehicle does not have
a tachometer. Moreover, it is also impossible for the transmission belt to “slip” as Jorge
suggested, because there is no transmission belt. As such, this Court should prohibit Jorge from
offering an opinion regarding the design and performance of the subject vehicle’s engine and
transaxle as he is not qualified and does not have any facts or data to support his opinions.
18
C. Jorge is not qualified to offer an opinion regarding the alleged diminution
in value of the subject vehicle.
Jorge does not have any particularized knowledge, specialized training, discrete skill, or
specific experience or education which would qualify him to offer an opinion regarding the
diminution in value of the subject vehicle. Mincey, 454 So, 2d 587; Goodyear Tire & Rubber
Co., Inc., 660 So. 2d at 1111; Hampton Shops, Inc., 332 So. 2d at 102. In fact, Jorge does not
have any formal education, training or experience regarding the valuation of motor vehicles. The
only time Jorge has ever developed an opinion regarding the diminution in value of a vehicle, is
during his career preparing “expert” reports for Plaintiffs’ attorney.
Q. [C. Mitchell] Do you have any education directed at determining the
value of a vehicle?
A. [E. Jorge] Education, not - -
Q I mean formal education
A. Formal education, no
Q What about any training directed at estimating the value of a vehicle?
Ae No
Q: Outside of any work you *ve done for Krohn & Moss on cases in litigation,
do you have any work experience specific to determining the value of a vehicle?
As No.
Ex. “A” pg. 17, In. 24 — pg. 18, In. 10.
Jorge therefore readily admits that he has no formal training, experience, knowledge, skill
or expertise for determining the value of a motor vehicle. Thus, Jorge is not qualified to offer an
opinion quantifying the alleged reduction in the vehicle’s value
19
IV. CONCLUSION
Based on the foregoing arguments, Toyota Motor Sales, U.S.A., Inc. respectfully requests
that this Court enter an Order prohibiting Plaintiffs’ purported expert, Enrique Jorge, from
offering opinions at trial about any alleged defects and the alleged reduction in the vehicle’s
value based on any alleged defects.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing was served by e-Filing with the
Clerk of Court and via Florida e-Filing Portal to Brent Wikgren, Esquire, Krohn & Moss, Ltd.,
10 N. Dearborn St., 3“ Floor, Chicago, Illinois 60602 at bwikgren@consumerlawcenter.com,
nlacina@consumerlawcenter.com and ggrimes@consumerlawcenter.com (Counsel for
Plaintiffs), this 25th day of January, 2018.
s/Patrick M. Delaney
CHARLES P. MITCHELL
Florida Bar No. 0818240
Primary E-mail: cmitchell@rumberger.com
Secondary E-mails: docketingorlando@rumberger.com
cmitchellsecy@rumberger.com
PATRICK M. DELANEY
Florida Bar No.: 85824
Primary E-mail: pdelaney@rumberger.com
Secondary E-mails: pdelaneysecy@rumberger.com
njordahl@rumberger.com
RUMBERGER, KIRK & CALDWELL, P.A.
Post Office Box 1873
Orlando, Florida 32802-1873
Telephone: (407) 872-7300
Telecopier: (407) 841-2133
Attorneys for Defendant Toyota Motor Sales, U.S.A., Inc.
20
EXHIBIT
A
Scott Tingley & Blanca Tingley vs Toyota Motor Sales, U.S.A.
ENRIQUE JORGE on 09/05/2017
IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, STATE OF FLORIDA
CASE NO.: 2016-001745-CA
SCOTT TINGLEY & BLANCA
TINGLEY,
Plaintiff
(s)
vs.
TOYOTA MOTOR SALES, U.S.A.,
INC.,
Defendant(s).
DEPOSITION OF ENRIQUE JORGE
DATE: September 5, 2017
TIME: 10:14 a.m.
PLACE: 201 S.W. Port St. Lucie Blvd., #108
Port St. Lucie, Florida
TAKEN BY: Defendant
REPORTER: MARCELLA R. SAMSON, Notary
Public of State of Florida, at Large
APPEARANCES:
FOR PLAINTIFFS KROHN & MOSS, LTD.
10 N. Dearborn Street, 3rd Floor
Chicago, Illinois 60602
(On Phone) BY: Nicholas Lacina, Esquire
FOR DEFENDANT: RUMBERGER, KIRK & CALDWELL
300 S. Orange Avenue, #1400
Orlando, Florida 32801
BY: Charles P. Mitchell, Esquire
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Scott Tingley & Blanca Tingley vs Toyota Motor Sales, U.S.A.
ENRIQUE JORGE on 09/05/2017 Page 14
Q Did you get a degree there?
A No, I did not, but I got the job so.
Q Are you -- Is your ASE master mechanic
certification still current?
A Yes, till 2020.
Q Now, when you worked for Schumacher Volkswagen,
which I assume you were in their -- the dealership that
sold and serviced Volkswagens primarily?
A Yes.
10 Q In terms of warranty service, it would have been
11 warranty service on Volkswagen models?
12 A Yes.
13 Q And do you have any sort of certification with
14 Volkswagen?
15 A Yes, I have plenty of them dating back to the
16 sixties. Every year I go at least two or three times a
17 year or did go.
18 Q For training?
19 A Correct. For new models; problems, if we had,
20 you know.
21 Q And that would be certifications on VW models?
22 A Correct.
23 Q What were some of the primary certifications that
24 you had for Volkswagen?
25 A Well, it starts from model upgrades when a new
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Scott Tingley & Blanca Tingley vs Toyota Motor Sales, U.S.A.
ENRIQUE JORGE on 09/05/2017 Page 15
1 model comes out. Also, electrical, as it changes, they
give you upgrades -- or updates, I should say.
Transmission, new transmissions come in, then you get the
new classes. Airbag, whatever comes out new, any models or
anything, any component, any new component or technology,
we all have to go and get that done.
Q Did the dealer require it or did Volkswagen
require it?
A They both do. The dealer wants to send people to
10 be knowledgeable and the manufacturer welcomes that. It's
11 all free so. I mean, I'm sure they pay some kind of --
12 Q Do you have any certifications on any hybrid
13 vehicles?
14 A No. It was only one person in the dealership
15 that did that. I guess they didn't want to -- I mean, it
16 wasn't something that they had so many of them. They only
17 had a few and so one person was the only certified on
18 hybrid at my dealership.
19 Q What kind of -- over the past few years, what
20 kind of hybrid vehicles did Volkswagen make?
21 A There's been some Jettas and Golfs and I believe
22 Passats, too. But, like I said, I never get them so.
23 Q What is a CVT?
24 A CVT is a type of transmission. It's a
25 constant -- I can't remember what the acronym, but it's a
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Scott Tingley & Blanca Tingley vs Toyota Motor Sales, U.S.A.
ENRIQUE JORGE on 09/05/2017
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Filing # 67061909 E-Filed 01/25/2018 05:12:31 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT, IN AND FOR CHARLOTTE COUNTY, FLORIDA SCOTT TINGLEY & BLANCA TINGLEY, Plaintiffs, vs. CASE NO.: 2016-001745-CA TOYOTA MOTOR SALES, U.S.A., INC., Defendant. / TOYOTA MOTOR SALES, U.S.A., INC.’"S MOTION TO EXCLUDE OPINION TESTIMONY OF ENRIQUE JORGE AND INCORPORATED MEMORANDUM OF LAW Defendant, Toyota Motor Sales, U.S.A., Inc. (“TMS”), respectfully requests this Court enter an Order prohibiting Plaintiffs’ purported expert, Enrique Jorge, from offering certain opinion testimony at trial because: (1) he is not qualified to offer an opinion regarding the design and performance of the subject vehicle’s engine and transaxle; (2) his opinions regarding any alleged unrepaired defects in the subject vehicle are based on insufficient facts and data and amount to nothing more than mere speculation; and (3) he is not qualified to offer an opinion regarding the diminution in value of a motor vehicle. MEMORANDUM OF LAW 1 INTRODUCTION This case concerns a 2014 Toyota Prius bearing Vehicle Identification Number JTDKN3DU1E0368820 (“subject vehicle”), Plaintiffs allege that their Prius is defective and are pursuing a claim for damages under the Federal Magnuson-Moss Warranty Act. In support of their claims, Plaintiffs hired Enrique Jorge (“Jorge”) to inspect and ride in the Prius, and render expert opinions at trial regarding any defects he was able to verify, and the reduction in value of the Prius as a result of those alleged defects. Relevant excerpts from Jorge’s deposition transcript are attached as Exhibit “A.” A copy of Jorge’s report is attached as Exhibit “B,” and a copy of his CV is attached as Exhibit “D.” The 2014 Toyota Prius is a full hybrid electric vehicle which uses a 1.8 liter internal combustion engine in conjunction with high voltage batteries and Toyota’s Hybrid Synergy Drive system. Affidavit of Eric Cook attached hereto as Exhibit “C” at § 4. As a full hybrid vehicle, the Prius uses a split power path that allows flexibility between the internal combustion engine and the electrical batteries to power the vehicle and achieve the best fuel economy possible. Ex. “C” at §. 4. Toyota’s Hybrid Synergy Drive uses a computer to oversee the system operation and determine the best combination of use between the internal combustion engine and the batteries to propel the vehicle. Ex. “C” at 9 5.! Jorge performed a cursory visual inspection of the subject vehicle, and a limited road test, where the Prius was driven around Plaintiffs’ neighborhood for 6 miles. Based on his visual inspection and brief test drive, Jorge’s opinions in summary are: . The vehicle has a Continuously Variable Transmission (“CVT”) and a belt inside the transmission is slipping and causing a lack of power in the engine. Exhibit “A,” pg. 27, In. 20 — pg. 28, In 9; pg. 61, Ins. 15-21. When the vehicle’s gasoline engine was idling, the needle on the vehicle’s tachometer showed the revolutions per minute (“RPM”) of the engine going up to 2,000 and down to 800. Ex. “A,” pg. 45, In. 15 — pg. 46, In. 15. The fluctuating engine idle occurs on an intermittent basis, and therefore is due to a poor connection in the engine wiring harness. Ex. “A.” pg. 30-, In. 13 — Pg. 31, In. 1; pg. 55, Ins. 10 — 18. ' There are multiple distinct engine settings for the Toyota Prius which affect the input from the engine and batteries. Ex. “C” at §] . These settings are not manually adjustable by the driver, but instead are selected by Toyota’s Hybrid Synergy Drive based on the driving conditions. Ex. “C” at { : 2 The CVT belt slippage and the fluctuation in the engine idle speed are defects which require the replacement of the transmission and the replacement of the engine’s electrical wiring harness. Ex. B. The manufacturing defects in the transmission and engine wiring harness have reduced the vehicle’s value by 20% or $4,271.00 of the original purchase price of approximately $21,358.00. Ex. B. Jorge is not qualified to render any of the above opinions, and his opinions are not supported by facts and data. IL. STANDARD FOR THE ADMISSIBILITY OF EXPERT TESTIMONY Regardless of whether this Court employs the Frye or Daubert standard for the admissibility of expert testimony”, the rule in Florida has always been that an expert witness must be qualified and that his or her opinion must be based on sufficient facts and data. An expert must establish his qualifications to give an opinion through either his or her knowledge, skill, experience, training, or education. Fay v. Mincey, 454 So, 2d 587 (Fla. 2d DCA 1984). “Any one of these methods will suffice,” but at least one method is required in order to form the foundational level of qualifications for an expert opinion. 5 Fla. Prac., Civil Practice § 19:10 (2017 — 2018). Importantly, “it is not enough that the witness be qualified to propound opinions on a general subject; rather he must be qualified as an expert on the discrete subject on which he is asked to opine.” Goodyear Tire & Rubber Co., Inc. v. Ross, 660 So. 2d 1109 (Fla. 4th DCA 1995) (citing United Technologies v. Indus. Risk Insurers, 501 So, 2d 46 (Fla. 3d DCA 1987). In Goodyear Tire & Rubber Co., Inc. v. Ross, a portable rubber speed bump made and sold by the defendant became dislodged and injured the plaintiff. Goodyear Tire & Rubber Co., 660 So. 2d at 1110. The Fourth District Court of Appeal reversed the case for a new trial on ? The Florida Supreme Court is hearing Oral Argument on March 6, 2018, in Richard DeLisle v. Crane Co., SC16-2182, regarding whether Frye or Daubert will be the governing standard for admissibility of expert testimony in Florida. unrelated grounds, but they also noted that for the retrial one of the experts previously permitted to testify was not qualified to give an opinion. To foreclose other errors in the retrial, we comment on the admissibility of testimony of the expert witness Ramisch. He may be the world’s foremost expert on traffic control devices, but it does not appear that he knows any more than we do about portable rubber speed bumps. We agree that it is not enough that the witness be qualified to propound opinions on a general subject; rather he must be qualified as an expert on the discrete subject on which he is asked to opine. Id. at 1111; see also Sea Fresh Frozen Prod. Inc. v. Abdin, 411 So. 2d 218 (Fla. 5th DCA 1982) (holding that a doctorate in marine chemistry and research background in that field did not qualify plaintiff's expert to testify regarding the slipperiness of algae growth or its control because he had done no studies regarding marine algae growth). In Consolidated Mutual Insurance Co. v. Hampton Shops. Inc., 332 So. 2d 101, 102 — 103 (Fla. 3d DCA 1976), the plaintiff filed a claim for damages to lumber machinery which occurred as a result of a fire in the plaintiff's furniture manufacturing plant. /d. at 102. The defense presented an insurance adjuster as an expert that specialized in property damage due to fire. Id. The defense’s expert had previously investigated losses on machinery due to fire, and was also raised around tool and die manufacturing equipment as a child. /d. Nevertheless, the trial court refused to permit the defense’s expert to testify because he admitted that he was not an expert with respect to wood manufacturing equipment. /d. Should an expert be qualified, the question then becomes whether his opinion is based on sufficient facts and data, [“‘aJn expert opinion is inadmissible where it is apparent that the opinion is based on insufficient data.” Husky Industries, Inc. v. Black, 434 So, 2d, 988, 992 (Fla. 4th DCA 1983); see also Sidran vy. El. Dupont De Nemors & Company, Inc., 925 So. 2d 1040, 1043 (Fla. 3d DCA 2006); Carnival Corp. v. Stowers, 834 So. 2d 386 (Fla. 3d DCA 2003). “An expert cannot simply assume the facts which form the basis of his opinion.” Brito v. County of Palm Beach, Florida, 753 So. 2d 109, 114 (Fla. 4th DCA 1998). Thus, a court must exclude as speculative any expert opinion based on unconfirmed or irrelevant data, potentially unwarranted factual assumptions, or guesswork. Sidran, 925 So. 2d at 1043; Carnival Corp., 834 So. 2d 386; Brito, 753 So. 2d at 114; Central Florida Plastering and Development v. Sovran Construction Co. Inc., 679 So, 2d 1226, 1228 (Fla. Sth DCA 1996); Young-Chin v. City of Homestead, 597 So. 2d 879, 882 (Fla. 3d DCA 1992); Newell v. Best Security Systems, Inc., 560 So. 2d 395, 397 (Fla. 4th DCA 1998); Husky Industries, Inc., 434 So. 2d at 993, 995. In Brito v. County of Palm Beach, Fla., the defendant moved to exclude plaintiff's expert engineer from testifying at trial. Plaintiff's expert opined that equipping the subject Jeep, an under-steer vehicle, with oversized wheels resulted in terminal over-steer characteristics, and that the danger of over-steering due to the wheels was not readily apparent. Brito, 753 So. 2d at 111. The expert conceded, however, that he was unaware of any studies or research which supported his opinion. /d. The Brito court determined that the opinion rendered by the plaintiffs expert “was not based on any methodology, literature, or studies, and the only record evidence to support his opinion is his testimony itself.” 7d. at 114. Asa result, the Fourth District Court of Appeals affirmed the trial court’s exclusion of plaintiff's expert testimony, and further noted that “{a]n expert cannot simply assume the facts which form the basis of his opinion.” /d. at 113 - 114, Accordingly, this Court should exclude Jorge’s testimony unless Plaintiffs can demonstrate that he is qualified as an expert regarding the design and performance of the Toyota Prius, and that his opinion is based on sufficient facts and data. The Court also should exclude Jorge from offering an opinion on the alleged reduction in the vehicle’s value unless Plaintiffs demonstrate he is qualified to assess vehicle values. Til. JORGE’S OPINION TESTIMONY IS INADMISSIBLE A Jorge is not qualified to give an opinion regarding the design and performance of the subject vehicle’s engine and transaxle. Jorge must establish his qualifications to render an opinion regarding the design and performance of the subject vehicle by showing either: (1) particularized knowledge regarding the proper operation of the subject vehicle and its components; (2) discrete skill in diagnosing or repairing the subject vehicle or its related components; (3) specific experience in diagnosing or repairing the subject vehicle; or (4) specialized training or education regarding the subject vehicle or its related components. See Mincey, 454 So. 2d 587; Goodyear Tire & Rubber Co., Inc., 660 So. 2d at 1111; Hampton Shops, Inc., 332 So. 2d at 102. But here, Jorge lacks the knowledge, skill, experience, training and education to qualify him to render an opinion regarding the subject vehicle. Jorge spent most of his career working for various Volkswagen dealerships, most recently Schumacher Volkswagen. See Jorge’s CV attached as Ex. “D.” As a Volkswagen technician, both the dealerships and the manufacturer required Jorge to take two or three training courses a year, and required him to earn new certifications on any new Volkswagen model or component in order to perform warranty repairs on a vehicle. Ex. “A” pg. 14, In. 6; and pg. 15, In. 11. As a technician for Volkswagen, Jorge did not receive any training regarding hybrid vehicles or their components. Ex. “A” pg. 16, Ins. 8 — 14. Jorge concedes that he was not permitted to perform diagnostics and repairs on Volkswagen vehicles without specific training and certifications on each new Volkswagen model and component, but he is offering “expert” opinions on a Toyota vehicle for which he has no training or certifications. He has never worked for a Toyota dealership and does not hold any Toyota certifications. Ex. “A,” pg. 16, In. 25 — pg. 17, In. 2. Jorge has not had any training regarding the Toyota Prius, or Toyota’s Hybrid Synergy Drive. Ex. “A” pg. 17, Ins. 2-7. Jorge also does not have any special training with any hybrid vehicles or hybrid system components. Ex, “A” pg. 15, In, 12 — pg. 16, In. 14. The only experience he has with a Toyota Prius is the two or three times he performed routine maintenance on the non-hybrid components of a Prius. Ex. “A” pg. 17, Ins. 8 — 23. Lack of Knowledge Jorge does not possess even the most basic understanding of the 2014 Toyota Prius which would qualify him to render an opinion regarding the design and performance of the subject vehicle. During his deposition, Jorge testified that in his opinion the subject vehicle was idling abnormally because he saw the engine RPMs “hunting” back and forth. Ex. “A” pg. 47, In. 22 - pg. 49, In. 6; pg. 68, Ins. 16 — 22. Q. [C. Mitchell]: Do you know if you were able to determine what the rpms were? A. [E. Jorge]: Yes, there was a tachometer, sorry, because that’s where I saw the needle going up and down. Q. [C. Mitchell]: Do you recall the rpm levels? A. [E. Jorge]: Yes, they were over a thousand when it was in the up - - you know, close to 2,000 rpm and then back to seven or eight hundred, six hundred. Q So in terms of the erratic idle, you recall at the high level the rpms were over a thousand and perhaps close to two thousand? A. Yes, And then the low level they were perhaps six hundred to 800 rpms? A. Yes. That’s at idle. A. At idle. Q But you didn’t - - You don’t have any notations that reflect that, correct? A. No, I do not, only that the idle was erratic. Q. [C. Mitchell]: So you viewed the rpm levels you saw at idle as abnormal? A. [E. Jorge]: Yes, Q Was that abnormal in terms of how low or high or just that it was hunting back and forth? A: It was hunting back and forth is what I thought it was, because it is normal to be - - when you first start it to be on the higher side, you know, closer to a thousand, you know, but it would stay there until it comes down. But this was going up and down, hunting. Q It wasn’t so much the rpm level being too low or too high, it was just the fact that it was bouncing back and forth? As Correct. Ex. “A” pg. 45, In. 12 — pg. 46, In.18; pg. 47, In. 22 — pg. 48, In. 10. It would have been impossible for Jorge to actually see and ascertain the engine RPM levels because the subject vehicle does not have a tachometer. Ex. “E” deposition of Scott Tingley pg. 73, Ins. 10 — 13; and Ex. “C” Affidavit of Eric Cook at § 8. In fact, there is no needle or gauge by which Jorge could have monitored the engine RPMs. Ex. “C” at § 8. In addition, Jorge did not use any type of tool or computer to identify or monitor the engine RPMs. Ex. “A” pg. 64, Ins. 20 — 23; pg. 64, In. 24 — pg. 65 In. 15. Jorge also does not possess any particularized knowledge of the subject vehicle’s transaxle which would qualify him to render an opinion regarding its design and performance. Jorge opined that the subject vehicle’s transmission is “slipping.”* Ex. “A” pg. 41, Ins. 10 — 12. Jorge believes that the vehicle has a Continuously Variable Transmission (“CVT”) with a belt and pulley system that controls the gear ratios. Ex. “A” pg. 37, In. 4-8; pg. 60, In. 23 — pg. 63, In. 19. In his opinion, if the CVT belt stretches, it will become lose and the transmission “slips.” Ex. “A” pg. 60, In. 23 — pg. 63, In. 19. Q. [C. Mitchell]: ‘You mentioned the belts. What did you means by the belts and the way it was slipping? A. [E. Jorge]: The CVT belt. I’m adding this. He didn’t tell me that. He doesn’t know. But the CVT, of course, has a belt and that’s what I felt, that it was slipping, the belt itself. Q. [C. Mitchell]: Now, what do you mean by the transmission slipping? A. [E. Jorge]: On this particular transmission, the only thing that could slip is a belt. It’s driven by a belt that the wheels on either end, they get small and large. It depends on the ratio. So that’s where it slips, slipping between those two gears. Now, if it was a regular transmission, it would be a clutch would be slipping. So I mean, if it was a manual transmission, the clutch would be slipping, but that’s the feeling, that the rpm’s were high and the engine wasn’t keeping up with the speed. I mean, it’s just a feeling. Q All right. So you indicated that there’s some belt that must have been slipping between two gears, you said? A. Yes. Q What would you mean by that? Explain a little further what you mean between two gears? A. CVT transmissions have - - the basic design is two gears that they have - - the sides they either widen or close. As they do that, when they close, it makes it tighter; and when they open, it makes it looser, okay. And they both work in tandem. When one goes big, this one goes small; and that’s how they control the 5 Jorge refers to the vehicle’s “transmission” in his deposition, but the Prius has a transaxle which combines the functionality of a transmission, differential and associated components of the driven axle into one integrated assembly. Ex. “C” Affidavit of Eric Cook at {. : 9 ratio of the transmission. It doesn’t have gears like first, second, third forth gear, but it’s a continuance speed of velocity. Q So explain that a little further. When you say there’s two gears and the sides widen or close tighter or looser, explain that a little more. As They’re pulleys. Let’s see, you have - - a belt rides on pulleys. Let’s not say gears, because it doesn’t have teeth or anything. So it’s got pulleys and the pulleys have two sides to each pulley and the control module will control the - - They do this, they open and close the pulley. As you know, the belt is the same size. If you close it, it goes to the top; and if you open it, it falls to the bottom, meaning that before it was all the way around this big. And as it opens, it closes this side, but at the same time it opens the other side. So like a bicycle, for instance, how you change gears in a bicycle, you go from big and it’s slower to small to make it fast, to go fast. This is the basic - - that’s how I understand it. Q So how would that slipping actually occur, what would happen, what would go wrong? As Okay. I think the belts have a lifetime. I don’t know whether they’re fifty thousand, a hundred thousand. I’m not sure if they - - I’m sure they stretch, whether they’re made of material or metal. I believe some of them are made of metal. And if they stretch, you know, and the two gears or the two pulleys are in the same position, you know, it would tend to at some point be - - the belt be loose. Ex. “A” pg. 28, Ins. 4 — 9; pg. 61, In. 15 — pg. 63, In. 19. Jorge has no training on CVTs. Ex, “A” pg. 16, In. 15-24, Moreover, the subject vehicle’s Hybrid Synergy Drive does not operate on a belt and pulley system. Ex. “C” at § 7. There are no belts. Ex. “C” at § 7. There are no pulleys. Ex. “C” at § 7. And contrary to Jorge’s suggestion in his deposition, the Hybrid Synergy Drive is not equivalent to a bicycle’s gear system. Ex. “C” at § 7. Quite simply, there are no components within Toyota’s Hybrid Synergy Drive to “slip” as Jorge theorizes. Ex. “C” at 47. Furthermore, Jorge did not review any data parameters or written materials regarding the normal operation of the Toyota Prius prior to his inspection. Ex. “A” pg. 66, Ins. 8— 10. Jorge’s 10 entire opinion therefore is based on incorrect knowledge of the components within the subject vehicle and an incorrect understanding of how the Toyota Prius operates. Jorge cannot identify the most basic systems and components of the subject vehicle, let alone how they operate. Thus, Jorge cannot possess the particularized knowledge which would qualify him as an expert regarding the correct operation of the Toyota Prius. See Mincey, 454 So. 2d 587; Goodyear Tire & Rubber Co. Inc., 660 So. 2d at 1111. Lack of Skill and Experience Jorge does not have the requisite discrete skill or experience in diagnosing or repairing either the Toyota Prius or hybrid vehicles in general in order to qualify him to give an opinion regarding the subject vehicle’s design and performance. Jorge’s only experience with a Toyota Prius are the two or three times he performed routine maintenance on non-hybrid components. Ex. “A” pg. 17, Ins. 18 — 23. Additionally, Jorge has never performed any repairs on the hybrid system of any hybrid vehicle. His testimony is as follows: Q. [C. Mitchell]: Did you - - So you didn’t have any certification for hybrid vehicles: is that - - A. [E. Jorge]: No, I didn’t have a certification, but I did work on them, but not on the hybrid side. If I had to do any work on the engine itself, on the gas engine, yes I did. Do you recall if you’ve ever performed any repairs on a Prius? Yes. Are you able to estimate how many times? A. Two or three times. Do you happen to recall what, generally, those repairs were for? ll A. Yeah. It was maintenance, brakes and engine maintenance, but not the hybrid side, but the engine itself, the gas engine, and brakes. Q So did you do any work on Prius models, other than maintenance? Aa: No, that’s it. Ex. “A” pg. 16, In. 8 — pg. 17, In. 23. As evidenced by his testimony, Jorge does not have any specific experience or the discrete skill either diagnosing defects within the Toyota Prius or hybrid vehicles in general. Jorge also does not have the required skill or training in repairing either the Toyota Prius or hybrid vehicles in general. Jorge therefore is not qualified based on either his skill or experience. See Mincey, 454 So. 2d 587; Goodyear Tire & Rubber Co. Inc., 660 So. 2d at 1111. Lack of Training and Education Jorge does not have any specific training or education regarding either the 2014 Toyota Prius or hybrid vehicles in general which would qualify him to render an opinion regarding the subject vehicle’s design and performance. Q Do you have any certifications on any hybrid vehicles? A. No. It was only one person in the dealership that did that. I guess they didn’t want to - - I mean, it wasn’t something that they had so many of them. They only had a few and so one person was the only certified on hybrid at my dealership. Do you have any Toyota certifications? No. Have you taken any Toyota training courses? As No, I have not. 12 Any training on Toyota’s Hybrid Synergy Drive? No. Q Any training on the Toyota Prius? A. No. Ex. “A” pg. 15, In. 12 — pg. 17, In. 7. As stated above, a general knowledge of a subject matter is not sufficient to qualify an expert to give an opinion at trial. Goodyear Tire & Rubber Co., Inc., 660 So. 2d at 1111. The expert must have some particularized knowledge, discrete skill, specific experience or specialized training regarding the subject matter. See /d. (citing United Technologies, 501 So. 2d at 46; Abdin, 411 So, 2d at 218. As evidenced by his testimony, Jorge does not possess the necessary training or education regarding Toyota vehicles, the Toyota Prius or hybrid vehicles in general, which would qualify him as an expert in this case. B. Jorge’s opinions regarding any alleged unrepaired defects are not based on sufficient facts and data and amount to nothing more than pure speculation. “An expert cannot simply assume the facts which form the basis of his opinion.” Brito, 753 So. 2d at 114. In order to be admissible, an expert’s opinion must be based on sufficient facts and data. Husky Industries, Inc., 434 So. 2d at 992. In this case however, Jorge’s opinions regarding the subject vehicle’s design and performance are not based on any facts or data. Lack of Facts and Data to Support an Engine Defect Jorge believes the alleged erratic engine RPMs are caused by a faulty electrical wiring harness. Ex. “A” pg. 30, In. 13 — pg. 31, In. 1. Jorge believes this requires the replacement of the subject vehicle’s engine wiring harness. Ex. “A” pg. 55, Ins. 2 — 12; Ex. “C.” In fact, Jorge 13 testified that there is no other likely cause of an erratic idle other than a malfunction in the engine wiring harness. Ex. “A” pg. 59, Ins. 3-6. Again, Jorge’s claims with regard to actually viewing the engine RPMs are patently false, because the subject vehicle does not have a tachometer. Ex. “D” depo of S. Tingley pg. 73, Ins. 10 — 13; and Ex. “C” Aff. of E. Cook at ¥ 8. There is no needle or gauge by which Jorge could have monitored the engine RPMs, and in addition, Jorge did not use any type of tool or computer to monitor the engine RPMs. Ex. “A” pg. 64, Ins. 20 — 23; pg. 64, In. 24 — pg. 65 In. 15; Ex. “C” at 78. Jorge also did not consult any technical literature, repair manual, or specifications for the subject vehicle. Ex. “A” pg. 53, In. 20 — pg. 54, In. 2. Moreover, Jorge failed to perform any of the tests which could have confirmed the presence of a defect in the wiring harness. Q. [C. Mitchell]: You say you had an OBD - - A. [E. Jorge]: Two. Q - - I Scanner? A. Yes, Q Was that something that had the capability to monitor the engine and transmission parameters during the test drive? A: No, not the parameters. I could read live specifications, for instance, what the idle or whatever it is at certain times of the drive or whether the oxygen is open loop or closed loop, that kind of stuff. Or if it’s got any misfires, I could check that. But, in this case, I didn’t use it because it was something to do with - - it had nothing to do with the live, but with feel. Like I said, I can actually see the idle go up and down. Q. [C. Mitchell]: What would you do to try to isolate what exactly has gone wrong in the wiring harness? 14 A. [E. Jorge]: Okay. First thing that we do is a wiggle test, what they call a wiggle test. We go around, you know, the harness and wiggling, moving the harness to make it stop doing or start doing it. Q You would not do any further diagnostics before doing that? Aa: Of course. I mean, I would do the wiggle test. I would check - - you know, connect and disconnect connectors to make sure that the connection is a good connection, make sure you don’t see any corrosion or any kind of burning or overheating connections. There are such a thing as an oil and coolant migration, that the actual coolant goes through the wires and up to a connection and corrodes it. Q So when you were saying disconnect and connect, you would just unplug and plug connectors back in just to make sure they were secure. A. Correct. Did you conduct a wiggle test? A. No. Did you disconnect and reconnect any of the connectors? A. No. Ex. “A” pg. 56, In, 22 — pg. 59, In. 2; pg. 64, In 24 — pg. 65, In. 15. Setting aside his false claim of actually seeing the engine RPMs fluctuate on the non- existent tachometer, Jorge does not have any identifiable data to support his opinion that the engine wiring harness is defective. Lack of Facts and Data to Support a Transmission Defect Jorge believes the subject vehicle’s transaxle is slipping based on his perception of the level of the RPMs in relation to the vehicle’s acceleration. Ex. “A” pg. 68, In. 23 — Pg. 69, In. 2. As discussed above, it was impossible for Jorge to actually see the engine’s RPMs, as the subject 15 vehicle does not have a tachometer from which to read the RPM levels. Ex. “E” pg. 73, Ins. 10 — 13; Ex. “C” at § 8. Jorge also did not perform any test which could have confirmed the presence of a defect in the subject vehicle’s transaxle. Furthermore, Jorge admitted that he did not collect any data or perform any additional test which would confirm his opinion: Q. [C. Mitchell]: Now, did you write down the rpm levels that you observed when the vehicle was - - when you believe the transmission was slipping? A. [E. Jorge]: No, I did not. Q What steps could be taken to confirm whether the transmission does have a malfunction in this vehicle? A. Well, I believe if there is a scanner that can actually read the ratios, we can - - that can be found out, or by taking it apart. Q So if you had a scanner to read the ratios, what would that tell us? As It will tell you - - I mean, I’m sure they have specifications for, at a certain speed, what the ratios will be. That’s how you can tell if it’s slipping or not. Maybe they have it another way. The only way I would know how to do is to take it apart and see if it’s actually loose. Q So but if you - - Apart from disassembling the transmission, if there were a diagnostic tool that would allow you to monitor the ratios in the transmission at certain speeds and then compare those to the specifications, that would tell you if it’s slipping or not? A: Yes. Q And did you do that? As: No. Q Did you have any diagnostic tool hooked up to the vehicle’s ECM or interfacing with the vehicle’s ECM during the test drive? As No. 16 Q Have you heard the phrase “data list parameters”? Are you familiar with that phrase? As Yes. Q What does it mean? A It’s like a - - we call it block values and what it is, is each block has a set of values that will tell you where you’re at when you’re driving. For instance, it depends on what you’re checking, you go to a specific block value and then that gives you the specifications of where you’re at. Q How the vehicle is performing? As Right. Q In relation to the specifications? As Correct. Q And did you analyze any data list parameters to assess the transmission’s performance? A. No. Q So say you were working at Schumacher Volkswagen and a vehicle had come in where you felt like there might be some transmission slipping, some issue with an erratic idle, would you use a Volkswagen scanner tool to check for these types of things? As Yes. Ex. “A” pg. 59, In. 19 — pg. 66, Ln. 10; pg. 68, Ins. 5 — 10. In addition, Jorge admitted that if he were at a dealership and wanted to replace a transmission under the manufacturer’s warranty, that there are specific tests and procedures to follow in order to first confirm a defect. 17 Q. [C. Mitchell]: So if you were in a dealership that had all the equipment you needed and Mr. Tingley brought his vehicle to you, would you do anything else, in terms of diagnostics, before replacing the transmission? A. [E. Jorge]: Usually in order to replace a transmission you have to have some kind of evidence. Otherwise, a warranty would never accept it. So you do have to - - yes, you have to run some tests. There’s usually a checklist. We had a checklist that you had to check different things and then you have to call the tech line; and judging by what the tech line will tell you, they could say repair or replace it. Ex. “A” pg. 69, Ins. 7 — 18. He did not perform any tests or procedures to validate his guess that the transmission is malfunctioning. A court must exclude as speculative any expert opinion based on potentially unwarranted factual assumptions, or guesswork. Sidran, 925 So. 2d at 1043; Carnival Corp., 834 So. 2d 386; Brito, 753 So. 2d at 114; Central Florida Plastering and Development, 679 So. 2d at 1228; Young-Chin, 597 So. 2d at 882. Here, Jorge only has guesswork to support his opinions as he has done nothing to confirm his opinion that a defect exists in the subject vehicle. He collected no data, performed no tests, and did not review any literature or material which could provide a baseline regarding the proper functions of the subject vehicle. Quite simply, Jorge’s opinion is nothing more than ipse dixit because there is not one identifiable piece of data that he can base his opinion on. Even the supposed visual observations of the engine RPMs are not reliable, because it was impossible for him to actually view the RPMs as the subject vehicle does not have a tachometer. Moreover, it is also impossible for the transmission belt to “slip” as Jorge suggested, because there is no transmission belt. As such, this Court should prohibit Jorge from offering an opinion regarding the design and performance of the subject vehicle’s engine and transaxle as he is not qualified and does not have any facts or data to support his opinions. 18 C. Jorge is not qualified to offer an opinion regarding the alleged diminution in value of the subject vehicle. Jorge does not have any particularized knowledge, specialized training, discrete skill, or specific experience or education which would qualify him to offer an opinion regarding the diminution in value of the subject vehicle. Mincey, 454 So, 2d 587; Goodyear Tire & Rubber Co., Inc., 660 So. 2d at 1111; Hampton Shops, Inc., 332 So. 2d at 102. In fact, Jorge does not have any formal education, training or experience regarding the valuation of motor vehicles. The only time Jorge has ever developed an opinion regarding the diminution in value of a vehicle, is during his career preparing “expert” reports for Plaintiffs’ attorney. Q. [C. Mitchell] Do you have any education directed at determining the value of a vehicle? A. [E. Jorge] Education, not - - Q I mean formal education A. Formal education, no Q What about any training directed at estimating the value of a vehicle? Ae No Q: Outside of any work you *ve done for Krohn & Moss on cases in litigation, do you have any work experience specific to determining the value of a vehicle? As No. Ex. “A” pg. 17, In. 24 — pg. 18, In. 10. Jorge therefore readily admits that he has no formal training, experience, knowledge, skill or expertise for determining the value of a motor vehicle. Thus, Jorge is not qualified to offer an opinion quantifying the alleged reduction in the vehicle’s value 19 IV. CONCLUSION Based on the foregoing arguments, Toyota Motor Sales, U.S.A., Inc. respectfully requests that this Court enter an Order prohibiting Plaintiffs’ purported expert, Enrique Jorge, from offering opinions at trial about any alleged defects and the alleged reduction in the vehicle’s value based on any alleged defects. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was served by e-Filing with the Clerk of Court and via Florida e-Filing Portal to Brent Wikgren, Esquire, Krohn & Moss, Ltd., 10 N. Dearborn St., 3“ Floor, Chicago, Illinois 60602 at bwikgren@consumerlawcenter.com, nlacina@consumerlawcenter.com and ggrimes@consumerlawcenter.com (Counsel for Plaintiffs), this 25th day of January, 2018. s/Patrick M. Delaney CHARLES P. MITCHELL Florida Bar No. 0818240 Primary E-mail: cmitchell@rumberger.com Secondary E-mails: docketingorlando@rumberger.com cmitchellsecy@rumberger.com PATRICK M. DELANEY Florida Bar No.: 85824 Primary E-mail: pdelaney@rumberger.com Secondary E-mails: pdelaneysecy@rumberger.com njordahl@rumberger.com RUMBERGER, KIRK & CALDWELL, P.A. Post Office Box 1873 Orlando, Florida 32802-1873 Telephone: (407) 872-7300 Telecopier: (407) 841-2133 Attorneys for Defendant Toyota Motor Sales, U.S.A., Inc. 20 EXHIBIT A Scott Tingley & Blanca Tingley vs Toyota Motor Sales, U.S.A. ENRIQUE JORGE on 09/05/2017 IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, STATE OF FLORIDA CASE NO.: 2016-001745-CA SCOTT TINGLEY & BLANCA TINGLEY, Plaintiff (s) vs. TOYOTA MOTOR SALES, U.S.A., INC., Defendant(s). DEPOSITION OF ENRIQUE JORGE DATE: September 5, 2017 TIME: 10:14 a.m. PLACE: 201 S.W. Port St. Lucie Blvd., #108 Port St. Lucie, Florida TAKEN BY: Defendant REPORTER: MARCELLA R. SAMSON, Notary Public of State of Florida, at Large APPEARANCES: FOR PLAINTIFFS KROHN & MOSS, LTD. 10 N. Dearborn Street, 3rd Floor Chicago, Illinois 60602 (On Phone) BY: Nicholas Lacina, Esquire FOR DEFENDANT: RUMBERGER, KIRK & CALDWELL 300 S. Orange Avenue, #1400 Orlando, Florida 32801 BY: Charles P. Mitchell, Esquire First Choice Reporting & Video Services www .firstchoicereporting.com Scott Tingley & Blanca Tingley vs Toyota Motor Sales, U.S.A. ENRIQUE JORGE on 09/05/2017 Page 14 Q Did you get a degree there? A No, I did not, but I got the job so. Q Are you -- Is your ASE master mechanic certification still current? A Yes, till 2020. Q Now, when you worked for Schumacher Volkswagen, which I assume you were in their -- the dealership that sold and serviced Volkswagens primarily? A Yes. 10 Q In terms of warranty service, it would have been 11 warranty service on Volkswagen models? 12 A Yes. 13 Q And do you have any sort of certification with 14 Volkswagen? 15 A Yes, I have plenty of them dating back to the 16 sixties. Every year I go at least two or three times a 17 year or did go. 18 Q For training? 19 A Correct. For new models; problems, if we had, 20 you know. 21 Q And that would be certifications on VW models? 22 A Correct. 23 Q What were some of the primary certifications that 24 you had for Volkswagen? 25 A Well, it starts from model upgrades when a new First Choice Reporting & Video Services www .firstchoicereporting.com Scott Tingley & Blanca Tingley vs Toyota Motor Sales, U.S.A. ENRIQUE JORGE on 09/05/2017 Page 15 1 model comes out. Also, electrical, as it changes, they give you upgrades -- or updates, I should say. Transmission, new transmissions come in, then you get the new classes. Airbag, whatever comes out new, any models or anything, any component, any new component or technology, we all have to go and get that done. Q Did the dealer require it or did Volkswagen require it? A They both do. The dealer wants to send people to 10 be knowledgeable and the manufacturer welcomes that. It's 11 all free so. I mean, I'm sure they pay some kind of -- 12 Q Do you have any certifications on any hybrid 13 vehicles? 14 A No. It was only one person in the dealership 15 that did that. I guess they didn't want to -- I mean, it 16 wasn't something that they had so many of them. They only 17 had a few and so one person was the only certified on 18 hybrid at my dealership. 19 Q What kind of -- over the past few years, what 20 kind of hybrid vehicles did Volkswagen make? 21 A There's been some Jettas and Golfs and I believe 22 Passats, too. But, like I said, I never get them so. 23 Q What is a CVT? 24 A CVT is a type of transmission. It's a 25 constant -- I can't remember what the acronym, but it's a First Choice Reporting & Video Services www .firstchoicereporting.com Scott Tingley & Blanca Tingley vs Toyota Motor Sales, U.S.A. ENRIQUE JORGE on 09/05/2017