The Mother Goose nursery rhyme goes like this:
For want of a nail, the shoe was lost, for want of a shoe, the horse was lost, for want of a horse, the rider was lost, for want of a rider, the battle was lost, for want of a battle, the kingdom was lost....
Judge Selna writes, in Docket 4329, page IDs 141690-1, his ruling on admissability of expert opinion, where for lack of a nail (the timely finding of the FTB), the shoe (the testing of the FTB) was lost:
Muckenhirn may not testify regarding the existence or effect of the software
bug identified as the FTB,35 nor may any other expert. At his deposition,
Muckenhirn testified that he examined the logic of the code and found a software
bug—eventually dubbed the FTB by fellow expert Michael Barr—that would,
through the occurrence of a specific set of circumstances, reset the target throttle
angle to 84 degrees from the idle position. (Muckenhirn Depo. at 59-74.)
However, he also testified that, although the FTB was testable, it had not been
tested.38 [this is the shoe 1 of 3] (Id. at 75-77.)39 For this reason, the Court excludes testimony regarding the FTB." [later the Court writes: "a testable hypothesis
(like the FTB) must be tested to be admissible," ]
"Much testimony has been elicited regarding how the overall complexity of
many portions of the Camry software renders it untestable, either because such
testing is impossible as a practical matter because of the number of permutations
involved or is otherwise infeasible. To the extent that a software’s complexity
renders testing unreliable (and thus, useless), sound scientific principles counsel
against such testing. However, because Muckenhirn testified that this portion of
the software is testable, sound scientific principles counsel that such testing should
be performed. (Cf. Daubert, 509 U.S. at 593 (“Ordinarily, a key question to be
answered in determining whether a theory or technique is scientific knowledge that
will assist the trier of fact will be whether it can be (and has been) tested.”).) It
appears to the Court that the FTB was not tested because it was simply discovered
too late in the process to be subjected to testing.40 [this is the nail/1 of 2]
35 A fuller discussion of the FTB is found in the Court’s Order Granting
Motion to Strike. (Docket No. 4086.) Familiarity with that Order is presumed.
...
38 Although many experts, including Muckenhirn, have testified that the
complexity of Toyota’s software makes it generally unamenable to testing,
Muckenhirn’s testimony that this particular portion of the software could be tested
is clear. (Muckenhirn Depo. at 75-77.)
39 At the hearing, counsel for Plaintiff argued that the Court misreads this
portion of the Muckenhirn deposition. Specifically, counsel argued that Muckenhirn actually testified that “System Guard 2,” that is, Toyota’s fail-safe,
could be tested, and not that the FTB could be tested. [the shoe 2 of 3] (See Tr. at 29-34.) Counsel
is partially correct. A careful examination of the deposition testimony reveals that
Muckenhirn answered affirmatively to defense counsel’s question that posited
whether a two-part test was feasible. Specifically, counsel questioned [trick question] whether the
software could be tested by (1) triggering the occurrence of FTB to discover (2) if
the fail-safe, “System Guard 2,” would mitigate any effect of the FTB on vehicle
behavior [the shoe 3 of 3].
40 The Court need not address whether this opinion was disclosed in a timely
manner under Federal Rule of Civil Procedure 26(a)(2).[the nail/2 of 2]"
"B. Barr
Toyota moves to exclude the Barr opinion that the FTB can lead to the
Camry’s throttle opening from an idle position to an 84-degree angle;
(1) Opinion Regarding the Full-Throttle Bug
In light of the Court’s ruling striking the Barr Supplemental Report
regarding the FTB, Plaintiff states that he will not rely on Barr’s opinion regarding
the FTB.44 Accordingly, the Court excludes it. [the horse]."
"(c) Causation Opinions
Like Barr, Jones may not testify as to the ultimate issue of causation. With
the exclusion of evidence of the FTB, Plaintiff’s experts have been unable to
reliably identity with specificity the defects that actually caused the collision.
Although they have reliably identified many factors that could have caused the
collision, or that could have combined to cause the collision, absent more
specificity, the connection between the existence of the defects and the cause of the
collision is too tenuous to be admissible. [the rider]"
From here the battle was somewhat lost, as the MDL did not achieve a decisive public revelation of the truth ...and then the kingdom was lost, in that Toyota could go on pretending to the public and the DOJ that there exists no electronic defect that causes SUA.
