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Benavides v. Tesla, Inc | 21-21940 | S.D. Fla. | Judgment | Law | CaseMine

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Smart Summary

Benavides v. Tesla, Inc., Case No. 21-cv-21940 — Omnibus Order on Summary Judgment and Daubert Motions (June 26, 2025)

Factual and Procedural Background

On April 25, 2019, George McGee was driving a 2019 Tesla Model S equipped with "Autopilot" features when the vehicle struck a parked Chevrolet Tahoe at a T-intersection on Card Sound Road in Key Largo, Florida. The Tahoe was pushed into pedestrians, killing decedent Naibel Benavides Leon and seriously injuring plaintiff Dillon Angulo. Plaintiffs allege automotive products liability claims against Tesla arising from the collision.

Plaintiff Neima Benavides (personal representative of the estate) filed suit in state court on April 22, 2021; Tesla removed to federal court on May 25, 2021. A second action by Angulo was later transferred and consolidated. Plaintiffs filed a consolidated Amended Complaint (March 11, 2024) asserting: (Count I) Strict Products Liability—Defective Design; (Count II) Failure to Warn; (Count III) Defective Manufacture; and (Count IV) Negligent Misrepresentation.

The Court considered multiple motions: Tesla's Motion for Summary Judgment (ECF No. 326); Tesla's Daubert motion to exclude Plaintiffs' experts (ECF No. 318); and Plaintiffs' Daubert motion to exclude Tesla expert Ryan Harrington's testing and testimony (ECF No. 322). The Court resolved the motions after reviewing the record and briefing.

Legal Issues Presented

Whether Tesla is entitled to summary judgment on Plaintiffs' strict products liability—design defect claim (Count I), failure to warn claim (Count II), manufacturing defect claim (Count III), negligent misrepresentation claim (Count IV), and Plaintiffs' request for punitive damages.

Whether the proffered expert testimony of Plaintiffs' experts (Alan Moore, Dr. Mary Cummings, and Dr. Bernard Pettingill) is admissible under Federal Rule of Evidence 702 and Daubert.

Whether Plaintiffs' motion to exclude Tesla expert Ryan Harrington's crash testing and testimony should be granted—i.e., whether Harrington's testing is admissible and, if so, which phases are substantially similar to the subject collision such that they may be presented to the jury.

Arguments of the Parties

Tesla's Arguments

Tesla sought summary judgment arguing Plaintiffs cannot show Tesla proximately caused the injuries and that Plaintiffs lack admissible expert proof of defects; alternatively, Tesla argued McGee's negligence was the sole proximate cause.

Tesla argued Plaintiffs' experts' opinions were speculative, unreliable, and not the product of reliable methodology (Daubert challenges to Moore, Cummings, and Pettingill) and sought exclusion of portions or all of their testimony.

Regarding Harrington's testing, Tesla argued the testing is relevant to show what technology existed in 2019 and that it need not be substantially similar when used to demonstrate industry-state-of-the-art; Tesla maintained phases were admissible and that phase one was not an attempted recreation of the crash.

Tesla argued that its warnings and Owner's Manual were adequate as a matter of law and that McGee was aware of the responsibilities of a Level 2 driver, undermining failure-to-warn claims and causation.

On punitive damages, Tesla contended that evidence did not meet the high Florida statutory standard for punitive damages (gross negligence or intentional misconduct), and that compliance with industry standards militated against punitive liability.

Plaintiffs' Arguments

Plaintiffs opposed summary judgment, arguing there is sufficient admissible expert evidence that Autopilot had design defects (ODD limitations, DMS, TACC/AEB/FCW interactions) and that inadequate warnings and training were proximate causes of the collision.

Plaintiffs defended Moore and Cummings as qualified and using reliable methodologies—arguing their opinions create genuine issues of material fact and are properly presented to the jury.

Plaintiffs sought to exclude Harrington's testing as not substantially similar to the subject collision and thus unduly prejudicial and unreliable for causation analysis.

Plaintiffs argued Tesla's representations about Autopilot and the inaccessibility of electronic Owner's Manual warnings contributed to consumer confusion and overreliance—supporting failure-to-warn and punitive damages theories.

Plaintiffs maintained that negligent misrepresentation may extend to bystanders injured as a result of misrepresentations to third parties and urged preservation of that claim if state law permitted; they also argued punitive damages were supported by evidence of Tesla's knowledge of misuse and failure to timely mitigate.

Table of Precedents Cited

The table below records the authorities expressly cited in the opinion, the rule or principle the opinion identifies from each authority, and how the Court deployed that authority in its analysis. Entries reflect only what the opinion itself states about each authority.

Precedent

Rule or Principle Cited For

Application by the Court

Rink v. Cheminova, Inc., 400 F.3d 1286 (11th Cir. 2005)

Proponent of expert testimony bears burden of laying proper foundation under Rule 702.

Used in setting the Daubert standard and explaining party's burden to show admissibility by preponderance.

Allison v. McGhan Med. Corp., 184 F.3d 1300 (11th Cir. 1999)

Supports the Rule 702 burden framework for expert admissibility.

Cited alongside Rink to frame the expert admissibility burden.

City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548 (11th Cir. 1998)

Describes three-part Daubert inquiry (qualifications, reliability, helpfulness).

Used to explain the three-part inquiry the Court applies to expert testimony.

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)

Gatekeeping function: district courts must ensure expert testimony is reliable and relevant.

Foundation for the entire Daubert analysis throughout the opinion; invoked repeatedly for standards.

United States v. Frazier, 387 F.3d 1244 (11th Cir. 2004)

Labels the Daubert requirements as "qualifications," "reliability," and "helpfulness"; explains trial court leeway.

Cited for describing the three-pronged Daubert approach and the court's role in scrutinizing experts.

Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333 (11th Cir. 2003)

Daubert does not supplant the adversary system; court must exclude speculative/unreliable testimony.

Quoted to emphasize gatekeeping limits and to caution against excluding testimony based on persuasiveness.

McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253 (11th Cir. 2002)

Courts must ensure speculative, unreliable expert testimony does not reach the jury.

Invoked to support exclusion of speculative expert opinions and to frame the gatekeeper role.

Vision I Homeowners Ass'n, Inc. v. Aspen Specialty Ins. Co., 674 F. Supp. 2d 1321 (S.D. Fla. 2009)

On cross-examination, opposing counsel can expose weaknesses in expert opinions.

Quoted in support of allowing juries to test shaky-but-admissible expert evidence via cross-examination.

Jones v. Otis Elevator Co., 861 F.2d 655 (11th Cir. 1988)

Supports the role of cross-examination in exposing expert weaknesses.

Cited in the legal standard discussion on expert evidence and cross-examination.

Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092 (11th Cir. 2005)

District court enjoys considerable leeway in evidentiary determinations.

Cited to explain the Court's discretion in admitting or excluding expert testimony.

Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235 (11th Cir. 2008)

Definition of 'material' factual disputes for summary judgment purposes.

Used in summarizing Rule 56 materiality standard.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)

Rule on scintilla of evidence being insufficient to create a jury issue.

Quoted in the summary judgment standard discussion about sufficiency of evidence.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)

Nonmoving party cannot rely on metaphysical doubt to defeat summary judgment.

Referenced to explain the nonmoving party's obligation to present more than speculation.

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)

Nonmoving party's burden to show a genuine issue on elements for which it bears the burden.

Used in explaining summary judgment burden-shifting principles.

Shiver v. Chertoff, 549 F.3d 1342 (11th Cir. 2008)

Moving party's initial burden on summary judgment.

Cited within the summary judgment standard discussion to describe burdens.

Lewis v. City of Union City, Ga., 934 F.3d 1169 (11th Cir. 2019)

On summary judgment, courts draw all reasonable inferences for nonmoving party.

Cited to explain how courts evaluate factual disputes on summary judgment.

Crocker v. Beatty, 886 F.3d 1132 (11th Cir. 2018)

Accept the non-moving party's version of facts on summary judgment.

Used to support summary judgment standard discussion.

Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294 (11th Cir. 1983)

Summary judgment inappropriate where parties agree on facts but disagree about inferences.

Cited to note that reasonable factual inferences may preclude summary judgment.

Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989 (11th Cir. 1990)

If more than one reasonable inference arises, summary judgment is improper.

Used to reinforce the Court's summary judgment analysis standards.

In re Abilify (Aripiprazole) Prods. Liab. Litig., 299 F. Supp. 3d 1291 (N.D. Fla. 2018)

Daubert requires reliability, not certainty; courts must balance gatekeeper role with jury's role.

Cited to support admission of expert opinions that lack certainty but are reliable.

Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183 (11th Cir. 2010)

Daubert does not require certainty—only reliability.

Applied in explaining admissibility even when expert cannot state opinion with absolute certainty.

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)

Daubert principles apply to non-scientific expert testimony and the trial judge's leeway.

Referenced regarding evaluation standards for non-scientific experts.

Clena Invest., Inc. v. XL Specialty Ins. Co., 280 F.R.D. 653 (S.D. Fla. 2012)

An expert's unexplained assurance that opinions rest on accepted principles is insufficient.

Used to reject ipse dixit expert opinions lacking foundation.

Furmanite Am., Inc. v. T.D. Williamson, Inc., 506 F. Supp. 2d 1126 (M.D. Fla. 2007)

Expert's unexplained assurances are not enough under Daubert.

Invoked to explain reliability requirements for expert methodologies.

Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329 (11th Cir. 2003)

Expert must explain how experience leads to conclusions and why experience is a reliable basis.

Used to evaluate non-scientific expert testimony dependent on experience.

Ohio State Troopers Ass'n, Inc. v. Point Blank Enters., Inc., No. 18-CV-63130, 2020 WL 1666763 (S.D. Fla. Apr. 3, 2020)

Non-scientific expert testimony need not be based on empirical testing to be admissible.

Cited in assessing Moore's methodology as not so unreliable as to require exclusion.

Maiz v. Virani, 253 F.3d 641 (11th Cir. 2001)

Experts may properly base testimony on professional study or personal experience.

Invoked to permit expert reliance on experience rather than formal studies.

Simmons v. Ford Motor Co., 576 F. Supp. 3d 1136 (S.D. Fla. 2021)

Lack of empirical testing is not automatic grounds for exclusion; engineers/design experts may rely on experience.

Used to support admission of experienced-based expert opinions.

Schenone v. Zimmer Holdings, Inc., No. 12-1046-J-39MCR, 2014 WL 9879924 (M.D. Fla. July 30, 2014)

Experience combined with knowledge, skill, training or education may suffice for reliability.

Relied upon in permitting experience-based opinions about design and behavior.

Carideo v. Whet Travel, Inc., No. 16-23658, 2018 WL 1367444 (S.D. Fla. Mar. 16, 2018)

Questions about an expert's reasoning often go to weight, not admissibility.

Applied to deny exclusion where concerns go to weight to be tested at trial.

In re TMI Litig., 193 F.3d 613 (3d Cir. 1999)

Experts' opinions resting upon "good grounds" should be tested by adversarial process.

Used to support admitting borderline expert testimony for jury consideration.

Rappuhn v. Primal Vantage Co., Inc., No. 23-10050, 2024 WL 2930448 (11th Cir. June 11, 2024)

Daubert does not require an expert's assessment to be incontrovertibly correct.

Quoted to justify admitting expert views on disputed factual predicates.

Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77 (1st Cir. 1998)

Daubert does not demand the trial judge reach ultimate correctness of experts.

Cited in support of admitting experts despite disputes about their conclusions.

Heath v. Suzuki Motor Corp., 126 F.3d 1391 (11th Cir. 1997)

Doctrine of substantial similarity in admitting prior testing or recreations; purpose is to avoid prejudice.

Used in analyzing admissibility of Harrington's crash testing under substantial similarity doctrine.

McHale v. Crown Equip. Corp., No. 21-14005, 2022 WL 4350702 (11th Cir. Sept. 20, 2022)

Substantial similarity doctrine; testing may be inadmissible if pointedly dissimilar.

Compared to Harrington testing to assess whether testing was substantially similar.

Tran v. Toyota Motor Corp., 420 F.3d 1310 (11th Cir. 2005)

Substantial similarity doctrine does not apply when evidence is "pointedly dissimilar" or not offered to reenact accident.

Cited in discussing when substantial similarity doctrine applies to testing evidence.

Burchfield v. CSX Transp., Inc., 636 F.3d 1130 (11th Cir. 2011)

Doctrine requires recreations to be "nearly the same in substantial particulars" though not identical.

Used to explain the standard for substantial similarity in testing admissibility.

Fox v. Gen. Motors LLC, No. 1:17-CV-209-MHC, 2019 WL 3483171 (N.D. Ga. Feb. 4, 2019)

Testing demonstrating scientific principle may not require substantial similarity to accident.

Distinguished in the Harrington analysis when determining whether tests were offered merely to show principles or to recreate accident.

Ree v. Royal Caribbean Cruises Ltd., 315 F.R.D. 682 (S.D. Fla. 2016)

Doctrine allows some "play in the joints" regarding recreations and similarity.

Invoked to explain permitted flexibility in evaluating substantial similarity.

Rappuhn (again)

Failure to include variables usually affects probativeness, not admissibility.

Cited to justify admitting testing despite missing some variables, leaving weight for cross-examination.

Guinn v. AstraZeneca Pharm. LP, 602 F.3d 1245 (11th Cir. 2010)

To survive summary judgment plaintiff must show a reasonable basis that defendant's conduct was a substantial factor.

Quoted in defining causation standard (substantial factor) for strict products liability claims.

Gooding v. Univ. Hosp. Bldg. Inc., 445 So. 2d 1015 (Fla. 1984)

Cited for causation standards in Florida product liability context.

Used in discussing Plaintiffs' burden to show defect was a substantial contributing factor.

Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015)

Describes consumer-expectation and risk-utility tests for design defects under Florida law; a plaintiff need not prove a reasonable alternative design under consumer-expectation test.

Relied upon to explain Florida test(s) for design defect and consumer-expectation test applicability.

Cates v. Zeltiq Aesthetics, 73 F.4th 1342 (11th Cir. 2023)

Explains consumer-expectation and risk-utility tests for defective product under applicable law.

Used to summarize tests for defective design under Florida law.

Tillman v. C.R. Bard, Inc., 96 F. Supp. 3d 1307 (M.D. Fla. 2015)

Consumer-expectation test phrasing: product fails to perform as safely as ordinary consumer would expect.

Quoted to explain the consumer-expectation test element.

Brosius v. Home Depot Inc., No. 6:20-cv-1136, 2022 WL 1272087 (M.D. Fla. Feb. 8, 2022)

Elements of strict products liability under Florida law.

Cited for the general elements required to prove strict products liability.

McCorvey v. Baxter Healthcare Corp. (again)

Design defects must be proven by expert testimony; plaintiff must show but-for causation.

Referenced in doctrinal discussion about design-defect proof requirements.

West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976)

Manufacturer not insurer; not required to design a product incapable of causing injury.

Applied to emphasize limits on manufacturer liability.

Zuccaro v. Tricam Indus., No. 9:21-cv-80867, 2022 WL 17750747 (S.D. Fla. Sep. 12, 2022)

Strict liability design defect notion that plaintiff must show product defective at time of accident and at manufacturer's possession.

Used to articulate a plaintiff's burden on a defect temporal element.

Jozwiak v. Stryker Corp., No. 6:09-cv-1985, 2010 WL 743834 (M.D. Fla. Feb. 26, 2010)

Products liability defect proof guidance.

Cited as authority for standard descriptive text on strict liability elements.

Builders Shoring & Scaffolding Equip. Co. v. Schmidt, 411 So. 2d 1004 (Fla. 1982)

Defect proof and strict liability context.

Included in the string cite describing products liability elements.

Jennings v. BIC Corp., 181 F.3d 1250 (11th Cir. 1999)

Products may be defective by design, manufacture, or inadequate warning.

Cited for general proposition about types of defects.

Farias v. Mr. Heater, Inc., 757 F. Supp. 2d 1284 (S.D. Fla. 2010)

Burden rests on plaintiff to show defective design.

Cited as authority for plaintiff's burden in design defect claims.

Grieco v. Daiho Sangyo, Inc., 344 So. 3d 11 (Fla. 4th DCA 2022)

Manufacturer's duty to warn when product has dangerous propensities; no duty to warn of obvious danger.

Applied in failure-to-warn duty analysis.

Brown v. Glade & Grove Supply, Inc., 647 So. 2d 1033 (Fla. 4th DCA 1994)

Warnings may be defective because of content or placement/manner of conveyance.

Used to assess whether electronic Owner's Manual accessibility could render warnings inadequate.

Pinchinat v. Graco Children's Prods. Inc., 390 F. Supp. 2d 1141 (M.D. Fla. 2005)

To warn adequately, label must make apparent potential harmful consequences and significant dangers.

Applied in evaluating whether vehicle display warnings were adequate as warnings (Court found they read more like instructions).

Veliz v. Rental Servs. Corp. USA, Inc., 313 F. Supp. 2d 1317 (S.D. Fla. 2003)

Manufacturer may be liable if product is safe but introduced into stream of commerce solely by virtue of inadequate warnings.

Invoked to frame the failure-to-warn analysis and possible liability despite otherwise safe product.

Dye v. Covidien LP, 470 F. Supp. 3d 1329 (S.D. Fla. 2020)

Warning adequacy may be a question of fact; plaintiffs must plead content of warning.

Cited in warning-content adequacy discussion and pleading requirements.

Leoncio v. Louisville Ladder, Inc., 601 F. App'x 932 (11th Cir. 2015)

If the plaintiff did not read the label/manual, an inadequate warning cannot be the proximate cause.

Applied to the situation where McGee admitted not reading the Owner's Manual, though Court discussed exception where manner of conveyance prevented reading.

Lopez v. So. Coatings, Inc., 580 So. 2d 864 (Fla. 3d DCA 1991)

Plaintiff who has not read a warning cannot base proximate cause on an inadequate warning.

Discussed and distinguished in context of Owner's Manual accessibility and possible jury question on placement/conveyance.

Thomas v. Bombardier Recreational Prods., Inc., 682 F. Supp. 2d 1297 (M.D. Fla. 2010)

Manufacturer's fault in manner of warning conveyance can allow failure-to-warn claim to survive despite non-reading.

Cited in support of exception to Leoncio/Lopez where placement/conveyance may be the manufacturer's fault.

Stanley Indus., Inc. v. W.M. Barr & Co., 784 F. Supp. 1570 (S.D. Fla. 1992)

Factors for evaluating adequacy of warning (dangerousness, form, intensity, burdens, likelihood communicated).

Applied in assessing Owner's Manual accessibility and whether jury question exists on adequacy.

Marzullo v. Crosman Corp., 289 F. Supp. 2d 1337 (M.D. Fla. 2003)

Obviousness of a danger may be determined as a matter of law when the case is plain and palpable.

Invoked when discussing whether dangers of Autopilot overreliance are open and obvious.

Jackson v. H.L. Bouton Co., 630 So. 2d 1173 (Fla. 1st DCA 1994)

Compliance with industry standards is evidence but not conclusive that a product was not defective.

Used to reject Tesla's argument that compliance with standards forecloses defect finding.

Alvarez v. General Wire Spring Co., No. 8:07-cv-1319-T-33TGW, 2009 WL 248264 (M.D. Fla. Feb. 1, 2009)

Design defects must be proven by expert testimony and show but-for causation.

Referenced for the evidentiary requirement that experts prove design defects.

Drury v. Cardiac Pacemakers, Inc., No. 8:02-cv-933T-17MAP, 2003 WL 23319650 (M.D. Fla. June 3, 2003)

Design-defect proof requires expert testimony.

Cited in the same context as Alvarez concerning expert proof.

R.J. Reynolds Tobacco Co. v. Nelson, 353 So. 3d 87 (Fla. 1st DCA 2022)

Design-defect and causation principles under Florida law.

Included as authority in describing design-defect proof and causation.

Pierre v. Intuitive Surgical, Inc., 854 F. App'x 316 (11th Cir. 2021)

Mere possibility of causation is insufficient to survive summary judgment.

Applied to emphasize that plaintiffs must do more than show mere possibility.

Salinero v. Johnson & Johnson, 400 F. Supp. 3d 1334 (S.D. Fla. 2019)

Elements for manufacturing defect: defective product, defect existed at time product left defendant's control, proximate cause.

Used to assess Plaintiffs' failure to present manufacturing defect evidence.

Wolicki-Gables v. Arrow Int'l, Inc., 641 F. Supp. 2d 1270 (M.D. Fla. 2009)

Manufacturing defect standards and proof.

Part of the authority string defining manufacturing-defect proof.

Colville v. Pharmacia & Upjohn Co., 565 F. Supp. 2d 1314 (N.D. Fla. 2008)

Manufacturing-defect proof principles.

Included for legal standard on manufacturing defect.

Benitez v. Synthes, Inc., 199 F. Supp. 2d 1339 (M.D. Fla. 2002)

Manufacturing defects are limited to something going wrong in manufacturing for the specific product.

Used to distinguish manufacturing defects from design-wide problems.

Cassisi v. Maytag Co., 396 So. 2d 1140 (Fla. 1st DCA 1981)

Manufacturing vs design-defect distinction.

Referenced in discussing manufacturing-defect jurisprudence.

Harduvel v. General Dynamics Corp., 878 F.2d 1311 (11th Cir. 1989)

Authority on manufacturing defect principles.

Cited in the manufacturing-defect legal discussion.

Oakwood Ins. Co. v. N. Am. Risk Servs., Inc., No. 618CV437ORL31KRS, 2018 WL 3381284 (M.D. Fla. July 11, 2018)

Negligent misrepresentation requires that plaintiff acted in justifiable reliance causing injury.

Applied to reject Plaintiffs' negligent misrepresentation claim for lack of justifiable reliance by Plaintiffs.

Atl. Nat. Bank of Fla. v. Vest, 480 So. 2d 1328 (Fla. 2d DCA 1985)

Negligent misrepresentation requires injury resulting from justifiable reliance.

Used to support dismissal of negligent misrepresentation absent direct reliance.

Souran v. Travelers Ins. Co., 982 F.2d 1497 (11th Cir. 1993)

Justifiable reliance element in negligent misrepresentation.

Cited in rejecting Plaintiffs' third-party negligent misrepresentation theory.

Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008)

Discusses reliance in fraudulent misrepresentation context; not controlling for negligent misrepresentation.

Discussed by Plaintiffs but the Court explained Bridge does not alter Florida negligent-misrepresentation law.

Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So. 2d 334 (Fla. 1997)

Fraud vs negligent misrepresentation: scope of liability differs; negligent misrepresentation governed by ordinary negligence duty rules.

Used to underscore that negligent misrepresentation requires duty and justifiable reliance.

In re Palm Beach Fin. Partners, L.P., 517 B.R. 310 (Bankr. S.D. Fla. 2013)

Negligent misrepresentation requires a duty owed to plaintiff to communicate accurate information.

Used to explain duty element for negligent misrepresentation.

Levine v. Wyeth Inc., 684 F. Supp. 2d 1338 (M.D. Fla. 2010)

To succeed on negligent misrepresentation, plaintiff must show defendant owed it a duty of care.

Applied in concluding negligent misrepresentation claim failed for lack of duty/justifiable reliance.

ZP No. 54 Ltd. P'ship v. Fidelity and Deposit Co. of Md., 917 So. 2d 368 (Fla. 5th DCA 2005)

Negligent misrepresentation requires duty of care element.

Cited in negligent misrepresentation dismissal reasoning.

Owens-Corning Fiberglas Corp. v. Ballard, 749 So. 2d 483 (Fla. 1999)

Punitive damages standard—purpose is punishment/deterrence; high standard for automobile products cases.

Quoted in explaining purpose of punitive damages.

Johns-Manville Sales Corp. v. Janssens, 463 So. 2d 242 (Fla. 1st DCA 1984)

Permits punitive damages where defendant knew product dangerous and continued to market it without feasible modifications.

Plaintiffs cited it to argue punitive damages are supportable; Court considered it among other evidence.

Tesla, Inc. v. Banner, No. 4D2023-3034, 2025 WL 610816 (Fla. 4th DCA Feb. 26, 2025)

Appellate decision finding record did not support punitive damages at pleading stage; held Autopilot features state-of-the-art in that case.

Cited by Tesla; Court distinguished Banner given different procedural posture and more developed record here and allowed punitive damages to proceed to trial on a record basis.

Gen. Motors Corp. v. McGee, 837 So. 2d 1010 (Fla. 4th DCA 2002)

Failing to warn of known dangers followed by inaction may support punitive damages.

Used as illustrative authority that actual knowledge followed by failure to warn can support punitive damages.

Sims v. BMW of N. Am. LLC, No. 6:22-cv-1685-PGB-UAM, 2025 WL 724047 (M.D. Fla. Mar. 5, 2025)

Similar authority cited in punitive damages context.

Invoked to support possibility of punitive damages where evidence suggests actual knowledge and failure to act.

Bridgestone/Firestone, Inc. (cited as authority in punitive damages context)

Cases where actual knowledge of danger followed by failure to warn supported punitive damages.

Used as examples of contexts where punitive damages have been allowed.

Court's Reasoning and Analysis

The Court addressed the Daubert motions and the summary judgment motion in tandem, applying the Rule 702/Daubert framework (qualifications, reliability, helpfulness) and the Rule 56 summary judgment standards.

Daubert analysis — Plaintiffs' experts (Moore, Cummings, Pettingill)

The Court found Moore and Cummings qualified. It evaluated each expert opinion under the reliability and helpfulness prongs and excluded only particular opinions that failed reliability.

Alan Moore

The Court found Moore's qualifications appropriate and that several of his opinions relied on reasonably reliable methods and factual bases (e.g., vehicle log data, augmented video, Tesla records).

The Court admitted Moore's opinions that: (i) Autopilot's Driving Monitoring System (DMS) was defective (including conclusions that a stronger suspension policy could have altered McGee's behavior); (ii) that permitting Autopilot use outside of its Operational Design Domain (ODD) rendered the product defective; and (iii) that Autopilot failed to warn or deploy brakes (TACC/AEB/FCW defect theory), concluding Moore relied on vehicle logs and video showing detection without braking or warnings.

The Court excluded Moore's opinions that were unsupported or ipse dixit: (i) that Tesla's training for new owners was insufficient (Moore failed to articulate standards, specifics, or connect his experience to a reliable basis); and (ii) his broad "Beta software" opinion—he failed to explain why being in "Beta" made the product inherently dangerous or how Tesla used the term.

The Court explained that where Moore's reasoning rested on inference or experience rather than a formal study, those features affected weight and not admissibility so long as the methodology provided a reasonable basis.

Dr. Mary Cummings

The Court found Cummings qualified and her opinions sufficiently reliable and helpful.

Cummings' ODD opinion was admissible: she tied her opinion to NTSB recommendations, industry practices, Tesla's own materials, and testimony that Tesla could have limited Autopilot to its ODD but chose not to.

Cummings' DMS opinion (criticizing torque-based steering-wheel monitoring and favoring facial-recognition approaches) was admissible, supported by NTSB findings and industry comparisons.

Cummings' opinion that Autopilot detected obstacles but failed to warn or apply brakes was admissible because she relied on augmented video and vehicle data indicating detection without activation of FCW/AEB.

Cummings' opinions regarding Tesla's failure to warn and train were admitted. The Court found her methodology (experience, industry data, surveys, regulatory reports, and record evidence about Tesla's communications and driver misunderstanding) provided a reliable basis and would be helpful to the jury.

The Court limited Cummings in certain respects: it precluded her from testifying to particular, inflammatory deposition statements listed in the record footnote (found unduly prejudicial and unhelpful).

Dr. Bernard Pettingill

Pettingill's opinion and testimony were excluded. (Separately, Plaintiff Angulo withdrew Pettingill as an expert, and the Court excluded his opinions.)

Daubert analysis — Plaintiffs' motion to exclude Harrington (Tesla expert)

Plaintiffs argued Harrington's crash testing lacked substantial similarity to the subject collision and thus should be excluded.

The Court applied the "substantial similarity" doctrine to Harrington's testing because Harrington described his demonstrations as including aspects of the subject collision and as recreations in phases.

The Court excluded Harrington's Phase One testing (Daylight nominal FCW/AEB demonstrations) because key differences (daylight vs. night, a slower in-lane rear-approach scenario rather than a nighttime broadside parked-vehicle event) rendered that phase materially dissimilar.

The Court admitted Harrington's Phase Two (Nighttime FCW with broadside targets) and Phase Three (Nighttime collision-scenario demonstration) testing and accompanying testimony as substantially similar in the material respects relevant to FCW/AEB effectiveness at night against broadside targets at speed. The Court noted that whether ADAS was engaged in McGee's vehicle at the moment of collision was a disputed material fact; because Parties dispute the correct recreation parameters, the admissibility of tests should not be decided against Tesla on that basis. The Court preserved for trial limiting instructions and cross-examination regarding differences (e.g., whether ADAS was engaged in the tests).

Summary judgment analysis

The Court applied Florida product-liability law and federal summary judgment standards. The Court examined each count in turn and evaluated whether there existed evidence (including admissible expert opinions) creating genuine issues of material fact on defect and proximate cause.

Design defect (Count I)

Tesla argued McGee's negligence was the sole proximate cause and that Plaintiffs lacked admissible expert proof of a defect. The Court rejected summary judgment on this claim.

The Court concluded Plaintiffs presented admissible expert testimony (Moore and Cummings) identifying multiple design-defect theories (ODD limitations, DMS inadequacy, TACC/FCW/AEB interoperation) and that these opinions, taken with the record, afford a reasonable basis to conclude a defect was a substantial factor in causing the collision. The Court found multiple proximate causes can exist; McGee's negligence does not necessarily preclude Tesla liability where experts and regulatory findings suggest defects contributed and where misuse was foreseeable.

The Court denied summary judgment on the design-defect claim because the issue of defect and proximate causation create genuine issues of material fact for the jury.

Failure to warn (Count II)

Tesla argued the danger was obvious and McGee knew the risks, and that warnings (Owner's Manual and vehicle display) were adequate; Tesla further argued McGee's failure to read the Owner's Manual foreclosed proximate causation.

The Court found the question of whether dangers of using and relying on Autopilot were "open and obvious" was not suitable for decision as a matter of law—particularly given Tesla's public statements and marketing that could have misled the reasonable consumer regarding Autopilot capabilities.

The Court concluded the vehicle's in-dash display warnings were more instructional than warnings of significant hazards and therefore could not be deemed adequate as a matter of law. Although the Owner's Manual contained warnings that appear accurate and unambiguous, McGee admitted he did not read them. The Court nonetheless found a triable issue because Plaintiffs offered evidence (Cummings' opinion) that the electronic format and manner of conveyance made the Owner's Manual warnings less likely to reach users—an exception to the "did not read" rule—and thus summary judgment was denied on the failure-to-warn claim.

Manufacturing defect (Count III)

Tesla argued Plaintiffs failed to produce evidence that McGee's vehicle deviated from intended design or manufacturing.

The Court found Plaintiffs did not present evidence showing a manufacturing defect (i.e., something went wrong in production of this specific vehicle), distinguishing manufacturing defects from design-wide issues, and granted summary judgment in Tesla's favor on Count III.

Negligent misrepresentation (Count IV)

Tesla argued Plaintiffs cannot show they acted in justifiable reliance on any misrepresentations by Tesla and therefore cannot sustain negligent misrepresentation.

The Court applied Florida law requiring justifiable reliance and a duty to the plaintiff; it concluded Plaintiffs supplied no record evidence that Tesla's alleged misrepresentations were conveyed to Plaintiffs or that Plaintiffs relied to their detriment. The Court dismissed Count IV.

Punitive damages

Tesla sought dismissal of punitive damages, arguing the high statutory standard could not be met. Plaintiffs cited regulatory reports and Tesla's public statements and internal knowledge to argue reckless disregard.

The Court found that on the developed record (NTSB/NHTSA findings, internal evidence, public statements, and expert testimony), a reasonable jury could find conduct meeting the Florida punitive-damages standard, and thus Plaintiffs may pursue punitive damages at trial. The Court distinguished a recent Florida appellate decision (Banner) given the differing procedural posture and record development.

Holding and Implications

Holding (core rulings):

Tesla's Motion for Summary Judgment is GRANTED in part and DENIED in part.

Specifically:
GRANTED
as to Plaintiffs' Defective Manufacture Claim (Count III) and Negligent Misrepresentation Claim (Count IV);
DENIED
as to Plaintiffs' Strict Products Liability—Defective Design Claim (Count I) and Failure to Warn Claim (Count II).

Tesla's Daubert Motion to Exclude Plaintiffs' Experts is GRANTED in part and DENIED in part.
The Court excluded Dr. Bernard F. Pettingill; excluded Alan Moore's opinions relating to (i) insufficient training and (ii) the Beta software design defect; admitted the remaining opinions of Moore and admitted Cummings' relevant opinions subject to limited exclusion of specific deposition statements deemed inflammatory.

Plaintiffs' Motion to Exclude Ryan Harrington's testing is GRANTED in part and DENIED in part.
The Court excluded Harrington's Phase One (Daylight nominal FCW/AEB demonstrations) but admitted Phases Two and Three (Nighttime broadside and Nighttime collision scenario demonstrations) and accompanying testimony.

Punitive damages were not dismissed; the Court allowed plaintiffs to pursue punitive damages at trial based on record evidence sufficient to create a triable issue under Florida law.

Implications / Practical effects:

Counts I (design defect) and II (failure to warn) will proceed to trial; Counts III (manufacturing defect) and IV (negligent misrepresentation) are dismissed.

Plaintiffs will be permitted to introduce the admitted portions of Moore's and Cummings' expert testimony, subject to the limitations outlined (training and Beta software opinions of Moore excluded; certain Cummings deposition statements excluded as inflammatory).

Tesla may present Harrington's Phase Two and Three testing and testimony at trial, but the Court has excluded Phase One testing; the Court signaled it will permit targeted cross-examination and limiting instructions to account for differences between tests and the actual collision.

The Court did not purport to announce a novel legal rule or create binding precedent beyond application of existing federal and Florida law to the record; it resolved the evidentiary and summary judgment disputes based on the submitted record, leaving factual issues (defect, proximate cause, and punitive damages) for jury resolution where genuine disputes remain.

This summary reflects only the matters expressly discussed in the Court's opinion and does not add factual or legal conclusions beyond the opinion's text.

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JUDGMENT

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Benavides v. Tesla, Inc

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-21940-BLOOM/Torres

NEIMA BENAVIDES,
as Personal

Representative of the Estate of Naibel

Benavides Leon, deceased
,

Plaintiff,

v.

TESLA, INC.,
a/k/a. Tesla Florida, Inc.
, Defendant.

_________________________________/

OMNIBUS ORDER ON MOTION FOR SUMMARY JUDGMENT AND
DAUBERT

MOTIONS

THIS CAUSE
is before the Court upon Defendant Tesla, Inc.'s ("Tesla") Motion for Summary Judgment,
1
ECF No. [326]; Tesla's Motion to Exclude Plaintiffs' Experts Moore, Cummings, and Pettingill, ECF No. [318]. Plaintiffs Neima Benavides, as personal representative of the Estate of Naibel Benavides Leon, and Dillon Angulo ("Plaintiffs"), filed Responses in Opposition to both of Tesla's Motions, ECF No. [352] ("Response to Motion Summary Judgment");
2
ECF Nos. [347] ("Response to Tesla's Motion to Exclude Plaintiffs' Experts"), to which Tesla filed Replies, ECF No. [378] ("Reply to Motion for Summary Judgment"); ECF No.

[377] ("Reply to Exclude Plaintiffs' Experts"). Plaintiffs also filed a Sur-Reply to Tesla's Motion

1 In addition to the Motion for Summary Judgment, Tesla filed an accompanying Statement of Undisputed Facts,
see
ECF No. [325], to which Plaintiffs filed a Counter Statement and a Statement of Additional Material Facts. ECF No. [351]. Tesla also filed a Reply Statement of Material Facts in Support of its Motion for Summary Judgment. ECF No. [379].

2 Plaintiffs originally filed a Response to Tesla's Motion for Summary Judgment at ECF No. [350]; however, they subsequently filed a Corrected Response at ECF No. [352]. Accordingly, when the Court refers to Plaintiffs' Response to Tesla's Motion for Summary Judgment, the Court is referring to the Corrected Response filed at ECF No. [352].

1

2

for Summary Judgment ("Sur-Reply"). ECF No. [407]. Before the Court also for consideration is Plaintiffs' Motion to Exclude Expert Testing and Testimony of Tesla Expert Ryan Harrington, ECF No. [322]. Tesla filed a Response in Opposition, ECF No. [349], to which Plaintiffs filed a Reply. ECF No. [375].

The Court has reviewed the Motions, the supporting and opposing submissions, the record, and is otherwise fully advised. For the reasons that follow, Tesla's Motion for Summary Judgment is granted in part and denied in part, Tesla's Motion to Exclude is granted in part and denied in part, and Plaintiffs' Motion to Exclude is granted in part and denied in part.
3

I. BACKGROUND

This matter arises from a collision that occurred in Key Largo, Florida. George McGee owned a 2019 Tesla Model S ("Vehicle") "equipped with automatic driving features, one of which Tesla called 'Autopilot,' that could navigate without driver input." ECF No. [205] at 3. On April 25, 2019, McGee was driving the Vehicle when it hit a parked Chevrolet Tahoe, which then struck Decedent Naibel Benavides Leon and Plaintiff Dillon Angulo, killing Benavides Leon and causing significant injuries to Angulo.
See id.
at 3-4.

On April 22, 2021, Plaintiff Neima Benavides, as Personal Representative, brought this action against Tesla on behalf of the Estate of Decedent Naibel Benavides Leon in the Circuit Court for Miami-Dade County, Florida, alleging automotive product liability claims against Tesla. ECF No. [1-1]. Tesla removed the action to this Court on May 25, 2021. ECF No. [1]. On August 16, 2022, Plaintiff Angulo initiated a similar automotive products liability action against Tesla in this district, Case No. 22-cv-22607-KMM.
See
22-cv-22607, ECF No. [1]. The Court accepted the

3 The Court will resolve the Parties' respective Motions
in Limine
, including Plaintiff Angulo's Motion to Limit and Exclude Certain Opinions and Testimony of Dr. Barry Crown in separate order.
See
ECF Nos. [320], [329], and [344].

3

transfer of that case and consolidated both actions due to the overlapping issues presented. ECF No. [50].

Plaintiffs filed a consolidated Amended Complaint on March 11, 2024, asserting the following claims against Tesla: Strict-Products-Liability—Defective design (Count I), Failure to Warn (Count II), Defective Manufacture (Count III), and Negligent Misrepresentation (Count IV).
See
ECF No. [205] at 6, ¶¶ 39-46.

A. Material Facts

Based on the Parties' briefings and the evidence in the record, the following facts are not materially in dispute unless otherwise noted.

i. The Subject Collision

George McGee purchased his 2019 Model S Tesla ("Vehicle") in early 2019.
See
ECF No. [318-9] at 33. "The [s]ubject [collision] occurred on April 25, 2019[,] at a 'T' intersection on Card Sound Road in Key Largo[,] Florida," just a few miles from McGee's home. ECF No. [325] at ¶¶ 1-2. Card Sound Road is a "two-lane undivided rural road, with unpaved shoulders and drop-offs in places, several curves, and no roadside lighting for most of the road." ECF No. [351] at ¶ 112. Pedestrians often use the road, and vehicles are often "stopped on the roadside."
Id.
Before he reached the intersection of Card Sound Road, McGee had activated the Vehicle's Autopilot, including the Traffic Aware Cruise Control ("TACC"), which among other things, restricts the Vehicle's speed to 45 miles per hour when the Vehicle is not operating on a highway or limited access roadway. ECF No. [325] at ¶ 3; ECF No. [351] at ¶ 117. However, McGee subsequently manually engaged the Vehicle's accelerator, increasing the Vehicle's speed to 62 miles per hour and temporarily disengaging the TACC speed restrictions
4
while leaving

4 Similar to the cruise control in an ordinary vehicle, once the driver releases the accelerator, the TACC cruise control function resumes at the set speed.
See
ECF No. [351] at ¶ 3 (citing ECF No. [318-10] at

4

certain Autopilot features operational.
5
ECF No. [351] at ¶¶ 3, 157. The Parties dispute which specific Autopilot features remained active once McGee pressed the accelerator.
6
Most notably, the Parties disagree whether Autopilot's longitudinal control function and the automatic emergency brake function were deactivated in the moments leading up to the collision.
See
ECF No. [379] at ¶ 126;
see also
ECF No. [351] at ¶ 3.

As McGee continued driving toward the Card Sound Road intersection, he dropped his cell phone and immediately reached down to pick the phone off the floorboard. While McGee was reaching for his phone, the Vehicle detected a stop sign, a stop bar, the road's edge,
7
a pedestrian, and a parked Chevrolet Tahoe, but the Vehicle did not provide McGee with any audio alert or other warning of the obstacles and never engaged its emergency brakes.
Id.
at ¶¶ 8, 125.
8
Because McGee also failed to observe the traffic signs and "obstacles," McGee drove through the intersection, failing to brake before striking the side of the parked Tahoe, "which in turn was

1878).

5 However, the Parties do not dispute that approximately 1.65 seconds before the collision, "Autopilot aborted with an accompanying visual alert." ECF No. [358] at ¶ 159. There was no cause given by the vehicle for the abort.
Id.

6 The Parties do not dispute that the Vehicle's "Autopilot remains engaged even when the accelerator pedal is depressed by 20%" or that "McGee did not depress the accelerator by more than 20% prior to the accident." ECF No. [351] at ¶¶ 123-24; ECF No. [379] at ¶¶ 123-24. Therefore, there is no dispute that the Autopilot was still engaged, to some degree, as the Vehicle approached the intersection. There is also no dispute that McGee accelerated the vehicle to 62 miles per hour.
Compare
, ECF No. [325] at ¶ 3
with
ECF No. [351] at ¶ 3. Therefore, there is no material dispute that McGee temporarily overrode the TACC's 45 mph speed restriction in the 30 seconds leading up to the collision. The only dispute is whether accelerating the Vehicle past the TACC max speed temporarily disabled the Autopilot's longitudinal control function and the automatic emergency brake function.
See
ECF No. [379] at ¶ 126;
see also
ECF No. [351] at ¶ 3.

7 "The Vehicle detected the end of drivable space prior to the subject collision." ECF No. [351] at ¶ 126.

8 Although both the Vehicle's Automatic Emergency Brake ("AEB") system and the Forward Collision Warning ("FCW") system are capable of operating at speeds up to 90 mph, neither system activated prior to the collision. ECF No. [358] at ¶ 159.

5

pushed into two pedestrians"—killing Decedent Naibel Benavides Leon and seriously injuring Angulo. ECF No. [325] at ¶¶ 5-6, 8; ECF No. [351] at ¶¶ 29, 118. Shortly after the crash, McGee called 911, telling the operator: "Oh my God, I wasn't looking," "I don't know what happened. I ended up missing the turn. I was looking down," and "I dropped my phone. Oh my God."
Id.
at ¶ 8. Officers eventually arrived on the scene, and McGee told them, "I was driving. I dropped my phone and looked down and I ran the stop sign and hit the guy's car."
Id.
at ¶ 9. McGee stated to officers, "[i]t was actually because I was driving [ ]. I looked down and I've been using cruise control, and I looked down, I didn't realize (INAUDIBLE) and then I [ ] sat up. The minute I sat up[,] I hit the brakes and saw his truck."
Id.
at ¶ 9.
9
McGee acknowledged that the road "signs were visible if he had looked up" and "that, had he been watching the road, [he would have] had a clear and unobstructed view of the 't' intersection for a 'long distance'—at least 1,000 feet."
Id.
at 11-12. According to McGee, "there was nothing that prevented him from acting to prevent the crash."
Id.
at ¶ 10.

ii. The 2019 Tesla Model S

"The Vehicle is equipped with a set of driver assist features collectively known as 'Autopilot,'" which the Parties agree includes "(a) [Traffic Aware Cruise Control] [']TACC['], an adaptive cruise control system that helps drivers maintain a safe distance behind a detected vehicle in the same lane—to maintain the posted speed limit" and "(b) Autosteer, which provides lane centering" thereby providing "both lateral and longitudinal control of the vehicle to assist the driver."
10
ECF No. [325] at ¶ 13; ECF No. [351] at ¶ 100. The Vehicle was also equipped with

9 McGee also told the officers he "was driving on cruise going for - and [he] looked down [ ] - to get the phone [he] dropped … [then he] reached down . . . And then when [he] popped up and looked, [he] saw a black truck. It just happened so fast." ECF No. [325] at ¶ 9.

10 While Tesla contends that the term "Autosteer" also includes "Forward Collision Warning (FCW) and [ ] Automatic Emergency Braking (AEB)," ECF No. [325] at ¶ 13, Plaintiffs disagree, arguing that

6

Forward Collision Warning ("FCW") and Automatic Emergency Braking ("AEB").
11
ECF No.

[325] at ¶ 13; ECF No. [351] at ¶ 101. "The Autopilot suite of features is designated by the Society of Automotive Engineers (SAE) as a Level 2 [Advanced driver-assistance system] [']ADAS['] System." ECF No. [325] at ¶ 14;
see also
ECF No. [351] at ¶ 100.
12
When using the Level 2 system, the SAE recommends that the driver always remain in control of the vehicle, and therefore, a driver "must still brake, accelerate, and steer just as if the system is not engaged, and retains responsibility to always keep his hands on the wheel and his eyes on the road." ECF No. [325] at ¶¶ 15-16.

"Before using Autosteer for the first time, the driver must, while parked, enable the feature on the center touchscreen."
Id.
at ¶ 17. "Thereafter, each time a user engages Autosteer, the vehicle displays a message instructing him to keep his hands on the steering wheel and to remain prepared to take over."
Id.
at ¶ 21. "When a driver overrides Traffic Aware Cruise Control, a visible alert is issued when after six seconds of override on the dash that TACC will not brake."
Id.
at ¶ 28.
13
In addition to those warnings, Tesla provides an electronic Owner's Manual on the Vehicle's touchscreen.
Id.
¶ 22.
14
"The Owner's Manual contains several pages of warnings about the

"Autopilot" only includes TACC and Autosteer.
See
ECF No. [351]. However, Plaintiffs do not dispute that McGee's Vehicle was equipped with FCW and AEB systems.
Id.

11 "The Vehicle's Owner Manual states that FCW monitors are designed to monitor up to 525 feet in front of the vehicle." ECF No. [351] at ¶ 127.

12 The Parties also do not dispute that McGee purchased an Autopilot package that lacked the hardware compatible with future software development that would have enabled the Vehicle to eventually become self-driving. ECF No. [325] at ¶ 29. 13 On the day of the subject collision, McGee received a visual alert at 12:10.314 that the TACC brake system would not activate because he was exceeding the TACC speed restriction.
See
ECF No. [351] at ¶ 158. "Between the time of the alert about the lack of braking action at 12:10.314 and the accident at

13 :16.427, McGee received no other alerts[,] and the car continued to steer while Mr. McGee pushed the accelerator pedal, as designed."
Id.

14 The Parties dispute whether McGee read the Owner's Manual. ECF No. [325] at ¶¶ 23-24; ECF No. [351]

7

capabilities and limitations of the Autopilot features," including a warning about Autosteer, which states:

Warning: Autosteer is intended for use only on highways and limited-access roads with a fully attentive driver. When using Autosteer, hold the steering wheel and be mindful of road conditions and surrounding traffic . . .. Never depend on Autosteer to determine an appropriate driving path. Always be prepared to take immediate action. Failure to follow these instructions could cause serious property damage, injury or death.

Id.
at ¶ 27.
15
"Despite the [O]wner's [M]anual statements about where Autopilot should not be used, Tesla allows Autopilot to be engaged on two-lane county roads, like that of Card Sound Road, [ ] the road McGee was driving on just prior to the crash." ECF No. [351] at ¶ 152.

iii. McGee's Knowledge of Autopilot

Prior to McGee purchasing the Vehicle, "Tesla aired a commercial stating that '[t]he person in the driver's seat is only there for legal reasons. He is not doing anything. The car is driving itself."'
16
ECF No. [351] at ¶ 109. Elon Musk ("Musk"), the CEO of Tesla, later "stated in a [2017] TED talk that, in about two years, Tesla owners could actually sleep while their cars drove themselves."
Id.
at ¶ 111.

Although there is no evidence that McGee saw the commercial or that he heard or read any statements Elon Musk had made about the 2019 Tesla Model S, "McGee testified that his beliefs about the capabilities of Autopilot came from 'looking at information on the [V]ehicle' . . . [and] at ¶¶ 23-24.

15 Plaintiffs contend the Owner's Manual further provides that Autopilot "(1) is primarily intended for driving on dry, straight roads, such as highways and freeways; (2) should not be used on city streets; [and] (3) should not be used on winding roads with sharp curves, on icy or slippery road surfaces[.]" ECF No. [351] at ¶ 150.

16 "Segments of the commercial were staged[,] and one Tesla crashed in the making of th[e] video." ECF No. [351] at ¶ 110.

8

that he likely watched videos online or on Tesla's website about the [V]ehicle's features and how they work . . . [including] [o]ne video show[ing] Tesla['s] drivers operating the vehicle without their hands." ECF No. [351] at ¶ 39. Nevertheless, McGee does not believe Mr. Musk's representations had any effect on his decision to purchase the Vehicle. ECF No. [325] at ¶ 39. McGee testified he purchased the Vehicle because it was equipped with the most advanced autonomous driving package, which he thought "would assist in his 100-mile drive from Boca Raton to Key Largo." ECF No. [351] at ¶¶ 98-99.

Following the collision, however, McGee testified that "he understood that Autopilot did not make the car 'self-driving'" and "that it was his 'responsibility as the driver of the [V]ehicle— even with Autopilot activated—to drive safely and be in control of the [V]ehicle at all times."'
Id.
at ¶¶ 30-31. McGee also acknowledged that "he understood before the crash that it was his job— not the [V]ehicle's job—to detect and to react to a stop sign or red flashing light," and that it was his responsibility to be aware of his surroundings, the speed limit, and other traffic control devices on the road.
Id.
at ¶¶ 33-35.

Furthermore, McGee understood that "the [V]ehicle would not be able to stop under all circumstances" and, in particular, the Vehicle "would not detect or stop at signs [ ] and stoplights."

Id.
at ¶¶ 36, 38. Therefore, it was ultimately McGee's responsibility to do that job and "manage the technology."
Id.
at ¶¶ 37-38.

Despite McGee's acknowledgment that he was ultimately responsible for controlling and operating the Vehicle, the Parties dispute what McGee expected the Vehicle to do when the Autopilot function was engaged. According to Plaintiffs, "McGee believed that the Vehicle's features would 'keep him in the lane, avoid crashes, [ ] direct him to where he needed to go' . . . help him see any ongoing traffic[,] and would help him stop or turn or avoid collisions." ECF No.

9

[351] at ¶¶ 103-04. McGee also thought "that when the Vehicle was on Autopilot[,] it 'would stop regardless of any car . . . [and i]f there was a parked car, it would stop and not hit it.'"
Id.
(quoting ECF No. [318-9] at 108:15-23). Therefore, because the Vehicle did not prevent the collision, McGee believes the "[V]ehicle's [A]utopilot's system, automatic emergency braking system, and front collision warning malfunctioned at the time of the accident." ECF No. [351] at ¶ 120 (quoting ECF No. [318-9] (internal quotations omitted).

iv. Causation Regarding McGee

"[W]ith a Level 2 vehicle, like the 2019 Model S, 'the operator of the vehicle is in control of the vehicle and responsible for what occurs in the vehicle."' ECF No. [325] at ¶ 43 (quoting ECF No. [318-2] at 24:11-20).
17
Not only is the operator responsible for the vehicle, he or she is also "legally obligated to drive the vehicle and obey all traffic laws."
Id.
at ¶ 44.
18
On the day of the collision, McGee did not fulfill his role as a Level 2 driver, and if he had, the Parties agree the collision "could have been avoided or mitigated."
Id.
at ¶¶ 46, 48. Notwithstanding his delayed reaction and his failure to observe multiple traffic signals, "in the last five seconds, McGee was [still] in a better po[sition] than Tesla to avoid the crash."
Id.
at ¶¶ 49- 50 (quoting ECF No. [318-2] at 214:15-18) (internal quotations omitted).

"During McGee's three-month ownership of his Tesla, he experienced 23 'strikeouts' due to inattentive driving, many less than 10 minutes apart." ECF No. [351] at ¶ 107 (quoting ECF No.

17 The "guidance issued by the Society of Automotive Engineers ('SAE') in place at the time of the Model S' manufacture dictated [that] the driver of a vehicle equipped with a Level 2 system is expected to monitor the roadway and respond to hazards[,]" and is responsible for determining "when to use what features." ECF No. [325] at ¶¶ 71, 73.

18
See also
ECF No. [325] at ¶ 74 (Plaintiffs' expert explaining "that drivers are responsible to make decisions consistent with their obligation to drive safely on the roadways even when ADAS features are engaged").

10

[318-1] at 10). "When McGee received a strikeout, he frequently pulled over, placed the [V]ehicle in Park and back into Drive, then continued the trip with Autopilot back in use. On the final drive cycle, on which the collision occurred, McGee had already received one strikeout and a total of five audible warnings. He was [one] chime away from another strikeout prior to impact." ECF No.

[351] at ¶ 108 (quoting ECF No. [318-1] at 10.) "Although Tesla recorded McGee's abuse and misuse of the Autopilot system, [Tesla] did not change his behavior, provide additional training, or significantly restrict his use of the feature." ECF No. [351] at ¶ 133. Plaintiffs' expert, Alan Moore, acknowledges that "drivers get distracted using cell phones all the time[,]" and "driving while using a cellphone is not limited to Tesla drivers who use Autopilot." ECF No. [325] at ¶¶ 51-52.
19
Moore concedes that "using cell phones or taking one's eyes off the road while driving occurred before [the invention of] Autopilot."
Id.
at ¶ 53.
20
Therefore, "McGee could still have been distracted by his phone and crashed into the Tahoe [even] if Autopilot was unavailable" in the Vehicle.
Id
. at ¶¶ 55, 61.
21
In fact, other drivers still "crash and run the stop sign at the Card Sound Road intersection without Autopilot."
Id.
at ¶ 54. Moore further acknowledges he never conclusively "opined that automatic emergency braking should have triggered in this case."
Id.
at ¶ 76 (quoting ECF No. [318-3] at 108:15-110:12 and citing ECF No. [318-2] at 246:23-247:6).

19 The National Highway Traffic Safety Administration has identified "cell phone use as a source of distraction for all drivers regardless of ADAS technology." ECF No. [325] at ¶ 60.

20 The Parties dispute whether drivers who operate vehicles without Autopilot engage in such behavior more frequently than drivers without the Autopilot function.
See
ECF No. [351] at ¶ 62.

21 Plaintiffs' Expert, Dr. Mary Cummings also admitted during her deposition that there was no way she could know for certain that "if Autopilot was not available to Mr. McGee in his Model S on the date of the accident, Mr. McGee would not have used his cell phone in his hand while approaching the intersection of Card Sound Road and 905." ECF No. [318-6] at 245:9-15. She conceded such an opinion would be "speculative."
Id.
Cummings also conceded it was "possible" [McGee] would have still been "distracted" if Autopilot was not in the Vehicle.
Id.
at 245:24-25;
see also
ECF No. [325] at ¶¶ 63-65.

11

Plaintiffs' experts
22
also testified "that disabling Autopilot or designing Autopilot to not engage outside of its [Operational Design Domain] ["ODD"]
23
would not have prevented McGee from accelerating the [V]ehicle," and ultimately, the collision resulted from McGee's complacency and confusion about Autopilot's capabilities.
Id.
at ¶¶ 57-58.
24
According to Plaintiffs' expert, Dr. Mary Cummings, although McGee did not testify as such, "McGee '[thought] this car [wa]s gonna pick up his slack . . .. And he fe[lt] like [if] he drop[ped] his phone, what's the big deal? My car's got it[.]"'
Id.
at ¶ 66 (quoting ECF No. [318-6] at 246:21-247:1, 247:16-248:15). Notwithstanding her conclusion that the collision was a result of McGee's confusion about Autopilot, Cummings acknowledged she had "no scientific study" or "empirical data" to support the opinion that "Tesla's Autosteer Beta message" or "Tesla's use of the term Autopilot was confusing to users."
Id.
at ¶¶ 68-69.

v. Investigation into Tesla and Recall

"In 2016, the National Transportation Safety Board ('NTSB') launched an investigation into a fatal crash involving a [different] Tesla [vehicle] that was operating under Autopilot at the

22 Alan Moore testified about the impacts of disengaging the Autopilot, and Dr. Mary Cummings testified that McGee's complacency and confusion about Autopilot resulted in the crash.
See
ECF No. [318-2] at 53:19-54:4; and ECF No. [318-6] at 42:19-43:1, 253:6-8.

23 Plaintiffs contend that "[a]n ODD is the 'operating conditions under which a given driving automation system or feature thereof is specifically designed to function, including, but not limited to, environmental, geographical, and time-of-day restrictions, and/or the requisite presence or absence of certain traffic roadway characteristics."' ECF No. [351] at ¶ 113 (quoting ECF No. [318-1] at 4; ECF No. [318-2] at 46:5- 9). Tesla argues that while this definition is accurate, it is incomplete. According to Tesla, Plaintiffs' definition fails to acknowledge that in a Level 2 ADAS system, unlike a Level 3 system, "the driver 'determines whether/when engagement and disengagement of the driving automation system is appropriate."' ECF No. [379] at ¶ 113 (quoting ECF No. [318-1] at 4). Moreover, while "a given driving automation system feature may ha[ve] only one ODD, that ODD may be quite varied and multi-faceted."
Id.
(internal quotations omitted).

24 While Cummings "opined that Tesla's Recall 23-838 'recall remedy' would 'probably' have prevented the accident because McGee would 'probably' have been suspended from using Autopilot on the day of the crash," Moore did not rely on the recall to give his opinion. ECF No. [325] at ¶¶ 67, 82 (quoting ECF No. [318-6] at 244:22-245:16 and citing ECF No. [318-2] at 146:1-148:20).

12

time of the collision." ECF No. [351] at ¶ 83. In the report, "NTSB issued various recommendations for manufacturers of vehicles equipped with Level 2 automation systems such as:

[1] Incorporate system safeguards that limit the use of automated vehicle control systems to those conditions for which they were designed; and

[2] Develop applications to more effectively sense the driver's level of engagement and alert the driver when engagement is lacking while automated vehicle control systems are in use.

Id.
at ¶ 85.
25
NTSB's report and recommendations were sent to six automakers, including Tesla. However, Tesla did not respond to the report.
See
ECF No. [379] at ¶ 85 (citing ECF No. [380] at 2-4).

Even though Tesla contends the National Highway Traffic Safety Administration ("NHTSA") ultimately rejected NTSB's recommendations,
26
NHTSA initially launched an investigation into Tesla's Autopilot system in 2017 and eventually expanded the investigation to

"understand how Tesla's Autopilot system 'may exacerbate human factors or behavioral safety risks by undermining the effectiveness of the driver's supervision."' ECF No. [351] at ¶¶ 88-89 (quoting ECF No. [252] at 3; ECF No. [252-2] at 1-2). NHTSA concluded that Tesla's "Autopilot controls did not sufficiently ensure driver attention and appropriate use," but at the same time, invited "greater confidence via its higher control authority and ease of engagement."
Id.
at ¶ 90 (quoting ECF No. [252-2] at 2). According to NHTSA, this "mismatch of weak usage controls and high control authority" indicated driver disengagement.
Id.
at ¶ 91.

25 The chair of NTSB, Robert Sumwalt, III, also acknowledged "that highly automated systems can lead to operator or driver complacency due to the perception of high reliability." ECF No. [351] at ¶ 86.

26
See
ECF No. [379] at ¶ 85 (citing ECF No. [380-2] (6.22.20 NHTSA Response Letter to NTSB at 2)).

13

NHTSA reported "that 'drivers involved in the crashes were not sufficiently engaged in the driving task and the warnings provided by Autopilot when Autosteer was engaged did not adequately ensure that drivers maintained their attention on the driving task[,]' [and a]s a result,

"crashes with no or late evasive action attempted by the driver were found across all Tesla hardware versions and crash circumstances."
Id.
at ¶ 92 (quoting ECF No. [252-2] at 2). Furthermore, NHTSA determined "that the use of the term 'Autopilot' is itself misleading, because it 'elicits the idea of drivers not being in control.'"
Id.
at ¶ 93 (quoting ECF No. [252-2] at 7). Consequently, the NHTSA suggested that using the term "Autopilot" "may lead drivers to believe that the automation has greater capabilities than it does and invites drivers to overly trust the automation."
Id.
Because of these risks, NHTSA noted that "non-TESLA vehicles using similar technology 'generally use more conservative terminology like assist . . . to imply that the driver and automation are intended to work together, with the driver supervising the automation."'
Id.
In response to NHTSA's preliminary findings, Tesla initiated a voluntary recall of vehicles with the SAE Level 2 advanced driver-assistance feature.
Id.
at ¶ 94. "Despite the recall, Tesla did not restrict or 'geofence' Autopilot and Autosteer to the kinds of roads on which the technology was designed to operate."
Id.
at ¶ 96. Following the recall, NHTSA opened a new investigation to determine the adequacy of the recall. In a letter to Tesla related to the investigation, NHTSA noted that "there had been 20 post recall crashes, 14 of which involved front end crashes or inadvertent disengagement[.]"
Id.
at ¶ 97.

vi. Tesla's Representations Before and After McGee Purchased the Vehicle

Prior to the collision, Tesla and its CEO, Elon Musk ("Musk"), made several representations about Tesla's Autopilot system and autonomous vehicles. Approximately three and a half years before the subject collision, Musk stated that:

14

The forward-facing camera [in Tesla vehicles] is able to determine where the lanes are, where the cars are ahead of it, and it's also able to read signs. It's been able to read speed signs for a while, for example but it's able to read pretty much any sign. Then that's combined with the forward radar. The radar is very good at detecting fast moving large objects, and it can actually see through fog, rain, snow, and dust. So the forward radar gives the car superhuman sensors. It can see through things that are close to the car.

ECF No. [351] at ¶ 188 (quoting ECF No. [350-2] at 10). Musk later emphasized the safety benefits of Autopilot, claiming "approximately half a million people would have been saved if the Tesla['s] [A]utopilot was universally available."
Id.
at ¶ 189. Regarding the improvements to braking technology, Musk made the following statement in September 2016:

[P]articularly anything large, or metallic, or anything that's dense, the radar system in the car we're confident will be able to detect that and initiate a braking event. Both when the Autopilot is active and when it is not active. When the Autopilot is not active, not activated, it will operate in an emergency braking mode. So, in that case, it's more likely to mitigate the impact speed because if Autosteer is not on, it doesn't know whether the driver is actually going to turn out-of-the-way of an obstacle or not. So, it will only brake at the very last second. If Autosteer is turned on, the car computer knows what its probable path is and whether it will actually turn in time or not. And so, it will be a much more comfortable braking experience as opposed to the last-minute and in that case, we think most likely we will be able to brake to a complete stop instead of simply mitigating the impact velocity. So, we think it probably works better with Autopilot on than off.

…

The exciting thing is that even if the vision system doesn't recognize what the object is because it could be a very strange-looking vehicle, it could be a multi-car pileup, it could be a truck crossing the road, it really could be anything - an alien spaceship, a pile of junk metal that fell off the back of a truck. It actually doesn't matter what the object is[,] it just knows that there's something dense that it is going to hit - and it should not hit that.

ECF No. [351] at ¶ 190 (quoting ECF No. [350-2] at 12).
27

On October 19, 2016, Musk insisted "that Tesla vehicles driven on Autopilot were already safer than human drivers."
Id.
at ¶ 193.
28
He also claimed around the same time that he "would

27 "Elon Musk [also] admitted that Tesla's customers are providing the data that Tesla used to improve its Autopilot software." ECF No. [351] at ¶ 171.

28 Tesla also "posted a Vehicle Safety Report ('VSR') on its website that purported to show that its cars

15

consider autonomous driving to be basically a solved problem."
Id.
(quoting ECF No. [350-2] at

13). Musk's proclamations continued as late as two days before the collision when he claimed that Tesla's Autopilot was so advanced that Autopilot did not require driver monitoring, and that in the immediate future "having a human co-pilot intervene in the driving task would decrease safety."
29
In light of Musk's statements and Tesla's advertising, FTC Chairman Joseph Simon ("Simon") urged the FTC to investigate "Tesla's deceptive and unfair practices" asserting that

"[t]he marketing and advertising practices of Tesla combined with Elon Musk's public statements, have made it reasonable for Tesla owners to believe, and act on that belief, that a Tesla with Autopilot is an autonomous vehicle capable of 'self-driving.'" ECF No. [351] at ¶ 198 (emphasis using Autopilot were far safer than cars operating without Autopilot." ECF No. [351] at ¶ 200.

29 Musk specifically stated: In fact, I think it will become very, very quickly, maybe even towards the end of this year, but I would say, I'd be shocked if it's not next year, at the latest, that
having a human

intervene will decrease safety. Decrease.
Like imagine if you're in an elevator. Now, it used to be that there were elevator operators. And you couldn't go on an elevator by yourself and work the lever to move between floors. And now nobody wants an elevator operator because the automated elevator that stops at the floors is much safer than the elevator operator. And in fact, it would be quite dangerous to have someone with a lever that can move the elevator between floors. ….
I think [Autopilot] will require detecting hands-on wheel for at least six months or

something like that from here, really, it's a question of like, from a regulatory

standpoint, what - how much safer than a person does auto-pilot need to be for it to

be OK to not monitor the car?
…. If you have a system that's at or below human level reliability, then driver monitoring makes sense. But
if your system is dramatically better, more reliable than a human,

then driving, monitoring is not - does not help much.
And, like I said, just like you wouldn't want someone - if you're in an elevator, do you really want someone with a big lever, some random person operating the elevator between floors? I wouldn't trust that. I would rather have the buttons. ECF No. [351] at ¶ 195 (quoting [350-2] at 6-7) (emphasis added by Plaintiffs).

16

removed) (quoting ECF No. [205] at ¶ 38; ECF No. [350-4]. Simon stated that such advertisements

"are likely to deceive even diligent consumers, who would act reasonably in believing them, and are likely to use Autopilot differently than they would if Tesla employed more honest and transparent marketing and advertising strategies."
Id.
(emphasis removed). Not only did Simon believe the advertising was confusing, "Tesla commissioned a survey in Germany about possible driver confusion with Autopilot—and [found] 47 out of 675 drivers thought the car could drive itself."
Id.
at ¶ 168.

B. The Parties' Motions

Tesla seeks to exclude Plaintiffs' expert witnesses pursuant to
Daubert
, arguing that their proposed testimony is speculative and unreliable and such testimony will not assist the jury in deciding the merits of Plaintiffs' claims. ECF No. [318]. Plaintiffs argue that their experts rely on sound methods to reach their opinions, and that those opinions will be helpful to the jury in resolving critical issues in this case. ECF No. [347].

Plaintiffs have also filed a
Daubert
Motion of their own, which seeks to exclude Tesla's expert, Ryan Harrington's testing and testimony. ECF No. [322]. Plaintiffs argue that Harrington's crash testing should be excluded as unduly prejudicial because the testing conditions were not substantially similar to those of the subject collision.
See id.
at 1. Tesla disagrees that Harrington's first two phases of crash testing were attempts to recreate the collision. ECF No. [349] at 11. Therefore, the first two phases of the crash testing and the accompanying testimony are admissible because the testing need only be relevant, not substantially similar, before it may be presented to the jury.
See id.
at 11-12. Tesla concedes that the third phase of testing was an attempted recreation of the crash; however, Tesla maintains the recreation conditions were substantially similar to those of the subject collision.
See id.
at 12-13.

17

In addition to the
Daubert
Motions, Tesla also seeks summary judgment as to Plaintiffs' design defect, manufacturing defect, failure to warn, and negligent misrepresentation claims as well as Plaintiffs' request for punitive damages.
See
ECF No. [326]. Tesla contends all four counts and the request for punitive damages must be dismissed because there is no evidence demonstrating that Tesla proximately caused Plaintiffs' injuries. Tesla argues Plaintiffs' claims are also deficient as there is no evidence: (1) that Autopilot was defective; (2) that Tesla's warnings were inadequate; (3) that Tesla owed Plaintiffs a duty to make truthful representations or warn of the product's known or foreseeable dangers; (4) or that McGee ever read the warnings.
30
Plaintiffs maintain there is more than sufficient evidence that Autopilot and the associated warnings were defective and that these defects proximately caused Plaintiffs' injuries. ECF No. [352]. Plaintiffs also contend that Tesla owed a duty to warn and make truthful representations, and because Tesla's failure to do so caused Plaintiffs' injuries, they have a viable failure to warn and negligent misrepresentation claim.
See id.

II. LEGAL STANDARD

A.
Daubert
Standard

Federal Rule of Evidence 702 governs the admissibility of expert testimony. When a party proffers the testimony of an expert under Rule 702, the party offering the expert testimony bears the burden of laying the proper foundation, and that party must demonstrate admissibility by a preponderance of the evidence.
See Rink v. Cheminova, Inc.
, 400 F.3d 1286, 1291-92 (11th Cir. 2005);
Allison v. McGhan Med. Corp.
, 184 F.3d 1300, 1306 (11th Cir. 1999). To determine whether expert testimony or any report prepared by an expert may be admitted, the Court engages in a three-part inquiry, which requires the Court to consider whether: (1) the expert is qualified to

30 As will be discussed below, Tesla further argues that even if the warnings were inadequate, McGee's failure to read the warnings defeats Plaintiffs' failure to warn claim.

18

testify competently regarding the matters the expert intends to address; (2) the methodology by which the expert reaches his or her conclusions is sufficiently reliable; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
See City of Tuscaloosa v. Harcros Chems.,

Inc.
, 158 F.3d 548, 562 (11th Cir. 1998) (citing
Daubert v. Merrell Dow Pharms., Inc.
, 509 U.S. 579, 589 (1993)). The Court of Appeals for the Eleventh Circuit refers to each of these requirements as the "qualifications," "reliability," and "helpfulness" prongs.
United States v.

Frazier
, 387 F.3d 1244, 1260 (11th Cir. 2004). While some overlap exists among these requirements, the Court must individually analyze each concept.
See id.
Under
Daubert
, a district court must take on the role of gatekeeper, but this role "is not intended to supplant the adversary system or the role of the jury."
Quiet Tech. DC-8, Inc. v. Hurel-

Dubois UK Ltd.
, 326 F.3d 1333, 1341 (11th Cir. 2003) (citations and quotation marks omitted). Consistent with this function, the district court must "ensure that speculative, unreliable expert testimony does not reach the jury."
McCorvey v. Baxter Healthcare Corp.
, 298 F.3d 1253, 1256 (11th Cir. 2002). "[I]t is not the role of the district court to make ultimate conclusions as to the persuasiveness of the proffered evidence."
Quiet Tech.
, 326 F.3d at 1341 (citations and quotation marks omitted). Thus, the district court cannot exclude an expert based on a belief that the expert lacks credibility.
Rink
, 400 F.3d at 1293 n.7. On the contrary, "vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."
Quiet Tech.
, 326 F.3d at 1341 (quoting
Daubert
, 509 U.S. at 596). "Thus, '[o]n cross-examination, the opposing counsel is given the opportunity to ferret out the opinion's weaknesses to ensure the jury properly evaluates the testimony's weight and credibility.'"
Vision I Homeowners Ass'n, Inc. v. Aspen Specialty Ins. Co.
,

19

674 F. Supp. 2d 1321, 1325 (S.D. Fla. Dec. 15, 2009) (quoting
Jones v. Otis Elevator Co.
, 861 F.2d 655, 662 (11th Cir. 1988)). Ultimately, "a district court enjoys 'considerable leeway' in making" evidentiary determinations such as these.
Cook ex rel. Est. of Tessier v. Sheriff of Monroe

Cnty., Fla.
, 402 F.3d 1092, 1103 (11th Cir. 2005) (quoting
Frazier
, 387 F.3d at 1258).

B. Rule 56(a)—Summary Judgment Standard

A court may grant a motion for summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(a). The parties may support their positions by citations to materials in the record, including depositions, documents, affidavits, or declarations.
See
Fed. R. Civ. P. 56(c). "A factual dispute is 'material' if it would affect the outcome of the suit under the governing law, and 'genuine' if a reasonable trier of fact could return judgment for the non-moving party."
Miccosukee

Tribe of Indians of Fla. v. United States
, 516 F.3d 1235, 1243 (11th Cir. 2008) (citing
Anderson

v. Liberty Lobby, Inc
., 477 U.S. 242, 247-48 (1986)). A court views the facts in the light most favorable to the non-moving party, draws "all reasonable inferences in favor of the nonmovant and may not weigh evidence or make credibility determinations[.]'"
Lewis v. City of Union City, Ga.
, 934 F.3d 1169, 1179 (11th Cir. 2019);
see

also Crocker v. Beatty
, 886 F.3d 1132, 1134 (11th Cir. 2018) ("[W]e accept [the non-moving party's] version of the facts as true and draw all reasonable inferences in the light most favorable to him as the non-movant." (citation omitted)).

"The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which a jury could reasonably find for the [non-moving party]."
Anderson
, 477 U.S. at 252. The moving party shoulders the initial burden of showing the absence of a genuine issue of material fact.
Shiver v. Chertoff
, 549 F.3d 1342, 1343 (11th Cir. 2008). Once this burden is satisfied, "the nonmoving party 'must do more than simply

20

show that there is some metaphysical doubt as to the material facts.'"
Ray v. Equifax Info. Servs.,

L.L.C.
, 327 F. App'x 819, 825 (11th Cir. 2009) (quoting
Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp
., 475 U.S. 574, 586 (1986)). Instead, "the non-moving party 'must make a sufficient showing on each essential element of the case for which he has the burden of proof.'"
Id
. (quoting
Celotex Corp. v. Catrett
, 477 U.S. 317, 322 (1986)). Accordingly, the non-moving party must produce evidence, beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts to suggest that a reasonable jury could find in the non-moving party's favor.
Shiver
, 549 F.3d at 1343. Even "where the parties agree on the basic facts but disagree about the factual inferences that should be drawn from those facts," summary judgment may be inappropriate.
Warrior Tombigbee Transp. Co., Inc. v. M/V Nan

Fung
, 695 F.2d 1294, 1296 (11th Cir. 1983).

"If more than one inference could be construed from the facts by a reasonable fact finder, and that inference introduces a genuine issue of material fact, then the district court should not grant summary judgment."
Bannum, Inc. v. City of Fort Lauderdale
, 901 F.2d 989, 996 (11th Cir. 1990) (citation omitted).

III. DISCUSSION

A. Tesla's
Daubert
Motion

Tesla contends that Plaintiffs' experts have not provided competent or reliable testimony that any of the alleged defects existed or that the defects proximately caused Plaintiffs' injuries. ECF No. [318] at 6. Accordingly, Tesla seeks to preclude Alan Moore's and Dr. Mary Cummings' expert testimony from being presented to the jury.

i. Admissibility of Alan Moore's Expert Testimony

Tesla asserts that Plaintiffs' expert, Alan Moore, has offered the following opinions:

21

(1) Tesla's Driver Monitoring System ("DMS") failed to sufficiently monitor driver awareness while Autopilot was engaged;

(2) Tesla failed to restrict the use of Autopilot to its "Operational Design Domain" ("ODD");

(3) Autopilot should have warned the driver or applied the brakes when it detected obstacles;

(4) Tesla provided insufficient training on the use of Autopilot; and

(5) Tesla created a significant level of risk by using beta software. ECF No. [318] at 10. Based on those opinions, Moore ultimately concludes that "the accident would not have occurred but for McGee's use of Autopilot."
Id.
at 11. However, Tesla argues that Moore's opinions are not "supported by sound, scientific data, or methodology."
Id.
According to Tesla, Moore fails to offer any facts or data to support his conclusion and fails to "outline a reliable methodology explaining how he arrived at the opinion."
Id.
Instead, Tesla contends Moore relies exclusively on speculation to conclude that the Autopilot system is defective.
Id.
Tesla insists that Moore has never identified any facts or data that establish that "Autopilot was the deciding factor in causing this exact crash," nor could he.
Id.
(emphasis removed). However, even if there is causation evidence, Tesla challenges whether Moore's defect opinions are reliable enough to be presented to the jury.

Plaintiffs argue that the fact that Moore "admitted it was 'possible' that McGee could have crashed even if his car had not been equipped with Autopilot" is rather unremarkable and does not impact the reliability of his proximate cause determination. ECF No. [347] at 14. According to Plaintiffs, as an expert, Moore need not rule out all possible explanations or causes of the injuries for his testimony to be reliable. An expert opinion will only be excluded pursuant to
Daubert
where the opposing party offers an alternative explanation for the cause of the injury, and the expert fails to explain why that alternative explanation is not the sole cause.

22

Moreover, Plaintiffs argue that under Florida law, "a plaintiff is not required to prove that a particular outcome would have been different if the defendant had not committed misconduct in order to prove causation."
Id.
at 16. Accordingly, Plaintiffs insist that neither proximate causation nor '"but for' causation [ ] require Plaintiffs [ ] to prove that McGee would have acted different if his car had not been equipped with Autopilot" as there is no requirement to prove causation with absolute certainty.
Id.
at 16. Furthermore, Plaintiffs contend that Moore's defect opinions are not only reliable but well supported by the facts in the record.

Because the admissibility of expert testimony requires the Court to determine whether (1) the expert is qualified; (2) the expert's methodology is sufficiently reliable; and (3) the testimony is helpful to the jury, the Court addresses each requirement in turn.

a. Moore's Qualifications

The Parties do not dispute that Moore is qualified to testify on the subject matter at issue, and the Court finds that Moore has the requisite qualifications.

b. Reliability of Moore's Methods

In determining whether an expert's testimony is reliable, "the trial judge must assess whether the reasoning or methodology underlying the testimony is scientifically valid and . . . whether that reasoning or methodology properly can be applied to the facts in issue."
Frazier
, 387 F.3d at 1261-62 (citation and internal quotation marks omitted). To make this determination, the district court typically examines: "(1) whether the expert's theory can be and has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of the particular scientific technique; and (4) whether the technique is generally accepted in the scientific community."
See id.
(citing
Quiet Tech.
, 326 F.3d at 1341). The Eleventh Circuit has emphasized that these four factors are not exhaustive, and a court may need to conduct

23

an alternative analysis to evaluate the reliability of an expert opinion depending "on the nature of the issue, the expert's particular expertise, and the subject of his testimony."
United States v.

Brown
, 415 F.3d 1257, 1268 (11th Cir. 2005);
see also Frazier
, 387 F.3d at 1262 ("These factors are illustrative, not exhaustive; not all of them will apply in every case, and in some cases other factors will be equally important in evaluating the reliability of proffered expert opinion."). Consequently, trial judges are afforded "considerable leeway" in ascertaining whether a particular expert's testimony is reliable.
See id.
at 1258 (citing
Kumho Tire Co.
, 526 U.S. at 152).

"Although an opinion from a non-scientific expert should receive the same level of scrutiny as an opinion from an expert who is a scientist, some types of expert testimony will not naturally rely on anything akin to the scientific method, and thus should be evaluated by other principles pertinent to the particular area of expertise."
Washington v. City of Waldo, Fla.
, No. 1:15CV73- MW/GRJ, 2016 WL 3545909, at *3 (N.D. Fla. Mar. 1, 2016) (citing Fed. R. Evid. 702, Advisory Committee Notes (2000)). However, an expert who offers opinions or testimony "based primarily on his experience, . . . must be able to explain 'how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.'"
Id.
(quoting Fed. R. Evid. 702, Advisory Committee Notes (2000)). '"An expert's unexplained assurance that [his] opinions rest on accepted principles' is not enough."
Clena

Invest., Inc. v. XL Specialty Ins. Co.
, 280 F.R.D. 653, 663 (S.D. Fla. 2012) (quoting
Furmanite

Am., Inc. v. T.D. Williamson, Inc.
, 506 F. Supp. 2d 1126, 1130 (M.D. Fla. 2007));
Hudgens v. Bell

Helicopters/Textron
, 328 F.3d 1329, 1344 (11th Cir. 2003) ("[A]n expert's failure to explain the basis for an important inference mandates exclusion of his or her opinion.").

24

The Court finds that while some of Moore's opinions rely on sound and reliable methodologies, others do not.
31

i. Moore's Opinion Regarding the DMS Defect

Tesla argues that Moore's opinion on the Driving Monitoring System ("DMS") is entirely speculative and unreliable. According to Tesla, the DMS feature of Autopilot was just like every other hands-off SAE Level 2 ADAS in 2019 in that it "included technology to monitor driver attentiveness by gauging torque applied to the steering wheel" while also providing "audible and visual reminders to the driver to put their hand on the wheel if their hands were not detected." ECF No. [318] at 13. If the driver failed to provide sufficient torque on the wheel after multiple warnings,
32
Autosteer would eventually disengage (i.e., "strikeout").
Id.
at 14. Once disengaged, the driver was then prevented from using the Autopilot function for the remainder of the drive cycle.

Tesla contends Moore's opinion is speculative because he relies on the fact that McGee had a prior strikeout during the drive to conclude that Autopilot would have been disabled if Tesla had utilized a system with a one-week suspension period for drivers misusing the Autopilot technology. However, because "the cadence of strike-outs would have been different depending upon the timing of prior strikeouts," Tesla contends there is no reasonable method for determining or otherwise proving that the Autopilot would have been suspended leading up to the collision.
See id.

31 In its
Daubert
Motion, Tesla frequently conflates its causation and defect arguments. Therefore, the Court addresses whether the opinions as to each issue adequately support proximate cause.

32 The warnings included a large red image on the screen directing the driver to take over immediately, along with a loud, audible, escalating chime. ECF No. [318] at 14.

25

Tesla also disputes the foundation for Moore's conclusion that a longer suspension period would have altered McGee's behavior even if Autopilot had otherwise been operable at the time of the collision. While Moore relied on an empirical study to support this contention, Tesla argues that it is unreliable because the '"study' consisted of random, unidentified, unquantified, and undocumented happenstance conversations [Moore] claims to have had with Tesla owners" and otherwise lacked dates, names, vehicle identities, or any other substantive information that would allow researchers to cross-examine the evidence.
Id.
at 15.

Plaintiffs respond that Moore's opinion "that a one-week disablement of Autosteer would have prevented the subject accident makes perfect sense" because McGee was a serial abuser of Autopilot who would respond to temporary disablement by overriding the system by simply turning off the car and restarting it. ECF No. [347] at 17. Plaintiffs concede that "Moore acknowledged that the cadence of strike-outs would have been different depending upon the timing of prior strike-outs," and therefore, could not say with certainty that Autopilot would have been disabled on the date of the crash. ECF No. [347] at 18 (quoting ECF No. [318] at 12). Nevertheless, Plaintiffs contend Moore is not required to testify with that level of certainty for his testimony to be admissible.

Plaintiffs also defend Moore's alternative argument that "even if a suspension had not been in effect on the day of the crash," McGee's knowledge that a strikeout would trigger a suspension would likely have encouraged more responsible driving on [McGee's] part." ECF No. [318] at 19. Plaintiffs argue that Moore need not have relied on scientific data or more formal research methods because an "expert may be qualified on the basis of experience."
Id.
(quoting Committee Notes to the 2000 amendments to Fed. R. Evid. 702) (internal quotations omitted). Accordingly, Moore's

26

experience talking to other Tesla drivers about the impact of suspension policies and how they impacted their driving behavior is "more than sufficient" to support his opinion.
Id.
Moore's opinion regarding the defect in Autopilot's DMS is reliable. In reaching the conclusion that Tesla's DMS fails to adequately ensure driver attentiveness, Moore reviewed the Vehicle's car log data, which shows that by Tesla's own measures, McGee was frequently distracted while using Autopilot. Moore noted that during the three months McGee owned the Vehicle, McGee experienced twenty-three total strikeouts,
33
or approximately one strikeout every commute,
34
and a warning about inattentive driving every 10 miles. ECF No. [318-1] at 11. Thus, there is a reasonable basis for Moore to conclude that McGee was likely more distracted while using Autopilot, given that without Autopilot, McGee would have necessarily been required to put his hands on the wheel more often or risk significantly increasing the likelihood of a lane departure or some other accident prior to the collision.

Furthermore, the methodology Moore used to form his opinion that a one-week disablement period for each strikeout would have prevented the subject collision is not "so unreliable to warrant exclusion."
Ohio State Troopers Ass'n, Inc. v. Point Blank Enters., Inc.
, No. 18-CV-63130, 2020 WL 1666763, at *4 (S.D. Fla. Apr. 3, 2020). Moore relies on the Vehicle's log data to show that on the date of the collision, McGee had already had a strikeout and was only one warning away from having a second strikeout before the collision.
See
ECF No. [318-1] at 11; ECF No. [318-2] at 133:10. Based on that data, there is a reasonable basis for Moore to infer that if the strikeout earlier in the drive was accompanied by a one-week disablement of Autopilot,

33 A strikeout disables Autopilot for the length of the drive cycle and will occur after three warnings to the driver. ECF No. [318-1] at 8 (citing ECF No. [285-4] at 171).

34 When the Court refers to McGee's "commute," it is referring to McGee's regular 100-mile trip two to three times a week from Boca Raton, Florida, to Ocean Reef, Florida.
See
ECF No. [318-1] at 7.

27

McGee would have been required to be more engaged during the drive, which would have meant McGee would have been more likely to be paying attention and prepared to intervene as he approached the intersection of Card Sound Road and ultimately would have avoided the crash. The Court recognizes Tesla has a persuasive argument that a one-week disablement period would have altered "the cadence of strike-outs" depending upon the timing of prior strikeouts, and therefore, Moore cannot conclude with
certainty
that Autopilot would have been disabled in the moments leading up to the crash. However, certainty is not required to provide expert testimony and the Court "must remain mindful of the delicate balance between its role as a gatekeeper and the jury's role as the ultimate factfinder."
In re Abilify (Aripiprazole) Prods. Liab. Litig.
, 299 F. Supp. 3d 1291, 1305 (N.D. Fla. 2018) (citing
Frazier
, 387 F.3d at 1272);
see Hendrix ex rel. G.P.

v. Evenflo Co.
, 609 F.3d 1183, 1198 n.10 (11th Cir. 2010) (explaining that the trial court must remain mindful that "
Daubert
does not require certainty; it requires only reliability."). Accordingly, the Court finds the alleged deficiency in Moore's reasoning goes to the weight to be given to the testimony rather than its admissibility.
See Carideo v. Whet Travel, Inc.
, No. 16- 23658, 2018 WL 1367444, at *11 (S.D. Fla. Mar. 16, 2018) ("[T]he Court must be careful not to conflate questions of admissibility of expert testimony with the weight appropriately to be accorded to such testimony by the fact finder.");
Quiet Tech.
, 326 F.3d at 1345 (parenthetically quoting
In re TMI Litig.
, 193 F.3d 613, 692 (3d Cir. 1999) ("So long as the expert's testimony rests upon 'good grounds,' it should be tested by the adversary process—competing expert testimony and active cross-examination—rather than excluded from jurors' scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies.") (additional layer of citations and quotations omitted)).

28

Even if Moore's reliance on the Vehicle's log data was unreliable, the Court still finds that Moore has offered adequate alternative grounds for his opinion that a defect in the DMS's design caused the collision. Moore asserts that even if the implementation of a one-week disablement period would not have meant Autopilot was disabled on the date of the collision, McGee's knowledge that a strikeout would trigger a weeklong suspension would likely have encouraged McGee to be more engaged and drive more responsibly.
See
ECF No. [318-2] at 134:6-25. To form his opinion, Moore relies on his training and expertise to reason that McGee clearly wanted to use the Autopilot system as much as possible, as evidenced by how often McGee used Autopilot and how quickly he would pull over to reset the Autopilot system following a strikeout.
35
See Maiz

v. Virani
, 253 F.3d 641, 669 (11th Cir. 2001) ("Although
Daubert
applies to all expert testimony, not just 'scientific' testimony, [ ] there is no question that an expert may still properly base his testimony on 'professional study or personal experience.'") (quoting
Kumho Tire Co., Ltd. v.

Carmichael
, 526 U.S. 137, 151 (1999)). Therefore, because McGee's past conduct indicates he would not want to be without Autopilot for any significant amount of time, ECF No. [318-1] at 11, Moore reasonably concludes that McGee would likely alter his driving behavior to avoid a weeklong strikeout to ensure that Autopilot was available for as much of his commute as possible. ECF No. [318-2] at 135:10-136:25.

Moore also relied on an "empirical study of Full Self-Driving [Tesla owners]," which had similar lockout parameters to the weeklong lockout proposed here, to buttress his conclusion that a weeklong disablement of Autopilot would have altered McGee's behavior. ECF No. [318-2] at 137:10-12. According to Moore, his study indicated that drivers were consistently concerned about being locked out of their self-driving system and thus were more likely to stay more engaged to

35 According to the log data, "84-91% of [McGee's] drive time was on Autopilot, with the average reset time following a strikeout being 2.5 minutes." ECF No. [318-1] at 11.

29

avoid a significant lockout. While Tesla correctly challenges Moore's contention that undocumented conversations with an unidentified group of Tesla owners could reasonably constitute an "empirical study," the fact that Moore does not rely on a formal, scientific, or peer- reviewed study does not necessarily render the source, or the inference made therefrom, unreliable. Federal courts have made clear that non-scientific opinions, such as an opinion from an engineer,
36
need not be based on empirical testing.
See Simmons v. Ford Motor Co.
, 576 F. Supp. 3d 1136, 1146 (S.D. Fla. 2021) ("To suggest that a lack of empirical testing is automatic grounds for exclusion is directly contradicted by
Daubert
's treatment in the Eleventh Circuit."). Indeed, engineers and design experts may give opinions based on their "knowledge, experience, and education" alone.
Simmons
, 576 F. Supp. 3d at 1146;
see also Schenone v. Zimmer Holdings, Inc.
, No. 12-1046-J-39MCR, 2014 WL 9879924, at *5-8 (M.D. Fla. July 30, 2014) ("[T]he expert's experience in conjunction with knowledge, skill, training or education alone may provide a sufficient basis to the reliability of the expert's opinion."). Here, the conversations Moore had with Tesla drivers about a seven-day suspension policy simply show that Moore has direct knowledge and experience regarding this issue and is not merely relying on his expertise to form his opinion.
37
Although Moore's "testing" and "studies" may not be as thorough as would be expected for a scientific journal,
38
that is not a basis for the exclusion of Moore's opinion given that Moore has

36 As noted earlier, Moore is a "Board Certified Forensic Engineer." ECF No. [318-3] at 250.

37 Unlike his opinion on inadequate training, Moore explains how his interviews with other Tesla drivers supports his conclusion that a more punitive disablement policy would improve Autopilot user engagement and attentiveness.

38 The Court agrees that, while Tesla contends there is no evidence that a seven-day suspension policy would alter behavior, that argument is directly undermined by the fact that Tesla has since implemented such a policy. Tesla would be hard-pressed to argue that it implemented such a policy without any consideration of the safety benefit or that it found no evidence such a policy would have an impact on driver behavior.

30

sufficient knowledge, education, and experience to give such an opinion.
39
See Daubert
, 509 U.S. at 596 ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.").

ii. Moore's Opinion Regarding the ODD Defect

Tesla contends that simply because a collision occurred does not render the Autopilot system defective. Moreover, even if Tesla had confined Autopilot to its ODD, rendering Autopilot unavailable at the time of the collision, Moore admitted he would be "reaching [ ] into hypotheticals and possibilities" in guessing what McGee would have done. ECF No. [318] at 14. As such, Tesla maintains there is no reasonable evidentiary basis to support Moore's opinion that the use of Autopilot outside of the ODD was a substantial contributing factor to the collision.
See

id.
Plaintiffs respond that Moore's opinion is "unassailable," given that the opinion is supported by Cummings' testimony that "other manufacturers of driving-assist systems like GM and Ford do not allow their autopilot systems to operate in ODDs outside of their capabilities[.]" ECF No.

[347] at 20 (quoting ECF No. [318-2] at 1-2). Plaintiffs also disagree that Moore's ODD opinion is inconsistent with the guidance issued by the Society of Automotive Engineers. Although the guidance states that drivers alone should determine when to use driving assist technology in Level 2 vehicles like the Model S, Plaintiffs point out that the guidance also indicates "only Level 5 operation is possible without ODD limitation."
Id.
(quoting ECF No. [318-1] at 5-6) (internal quotations omitted).

39 The Court also disagrees with Tesla that Moore's opinions about the Autopilot's DMS are inherently inconsistent.
See
ECF No. [318] at 15. Either McGee would be deterred by the increased suspension period and improve his driving behavior, or he would continue to misuse and abuse Autopilot, significantly increasing the likelihood that Autopilot would have been disabled on the day of the collision.

31

The Court finds Moore's opinion that Autopilot was defective because it could be used outside of its ODD does not depend on methods so unreliable that the opinion should be excluded.
See Ohio State Troopers Ass'n, Inc.
, 2020 WL 1666763, at *4. Moore relies on Tesla's Owner's Manual, Tesla's own statements, and records from Tesla employees to show that Tesla permitted drivers to utilize Autopilot in areas where it was not designed to function.
40
Tesla has stated that, in 2019, Autopilot, specifically Autosteer, was "[i]ntended for use only on highways and limited- access roads," that "ha[d] a center divider and clear lane markings," and was "[u]nlikely to operate as intended when driving on hills, approaching a toll booth, or driving on a road that has sharp curves." ECF No. [318-1] at 6-7. Therefore, Moore reasonably concluded that Card Sound Road was not the type of road on which Tesla's Autopilot system was designed to operate.
41
However, Moore does not conclude there was a design defect simply because Tesla drivers were capable of misusing the product in a manner Tesla had not intended. Moore determined there was a design defect because, in 2019, the evidence indicated that Tesla had the means to easily limit the misuse of Autopilot but elected not to do so. Moore first pointed to record evidence demonstrating that, as of 2019, at least two other manufacturers had limited their ADAS

40 "The Operational Design Domain, or ODD, is defined as "operating conditions under which a given driving automation system or feature thereof is specifically designed to function, including, but not limited to, environmental, geographical, and time-of-day restrictions, and/or the requisite presence or absence of certain traffic or roadway characteristics." ECF No. [318-1] at 5.

41 Moore noted that Card Sound Road has several features that placed it outside of Tesla's ODD at the time of the collision: Not a limited access road[,] Contains winding roads with sharp curves[,] Sight distance limitations[,] Cross traffic[,] Vehicles stopped on road edge[,] Occasional water over roadway[,] Presence of bicyclist and pedestrians[,] No center divider[,] Hills (at overpasses)[,] Toll Booth[,] Residence along roadway. ECF No. [318-1] at 10.

32

technology to its ODD and, therefore, Tesla could not argue that its technology was state of the art.
42
Moore further explained that in 2019:

Tesla had available technology to restrict Autopilot use outside of its ODD,
43
and on the subject road. In particular, Autosteer state "Unavailable" was a possible state given available information about the subject road. Tesla chose to support [the] operation of Autopilot outside of its ODD, increasing the risk of an accident as compared to a choice of preventing use outside of its ODD.

ECF No. [318-1] at 10.
44

Tesla attempts to undermine Moore's findings by focusing on the fact that the 2019 Tesla Model S was a SAE Level 2 vehicle that lacked any ODD requirement and required that the driver be responsible for the vehicle, including determining whether the use of the vehicle's ADAS was appropriate. ECF No. [318] at 15-16. However, the fact the driver is responsible for the vehicle does not undermine the reasonable inference that it is likely more dangerous for a driver to utilize driver assistance technology in a location where the technology is not designed to operate, particularly if the driver is not fully aware of the risks.
45
As Moore sufficiently explains in his report, a user's discretion is not, and often cannot, always be the sole means of user safety.

42 Tesla disputes that the other manufacturers' designs undermine its contention that Autopilot was state of the art because, unlike Tesla cars, those vehicles used hands-off technology, which requires more safety measures.
See
ECF No. [318] at 27. However, this distinction goes to the weight of the evidence, not to its admissibility. For the Court to conclude that the other manufacturers' ADAS and geofencing technology are not relevant because they involve different technology would result in the Court reaching beyond its traditional gatekeeping function.

43 Autopilot had the ability to not only determine the Vehicle's location, but the Vehicle's GPS system also could "determine road class, road curvature, lanes and exists," "the speed limit of the current road," and "restrict speed" based on the road class and other relevant factors. ECF No. [318-1] at 8.

44 Prior to 2019, NTSB recommended that all manufacturers of cars with Level 2 automated systems "incorporate system safeguards that limit the use of automated vehicle control systems to those conditions for which they were designed." ECF No. [318-5] at 43.

45 The Court further notes that despite Tesla's argument to the contrary, the SAE report in effect at the time of the collision indicated that "only Level 5 operation is possible without ODD limitation." ECF No. [318- 1] at 5-6. Therefore, Tesla's argument regarding the reliability of Moore's ODD opinion is unpersuasive.

33

Otherwise, Tesla would not have prevented drivers from using "Autosteer or TACC with the seatbelt unfastened, a door or trunk open, in trailer mode, over 90 mph, or with the headlights off[.]" ECF No. [318-1] at 16.

To the extent Tesla argues Moore is purely speculating that the crash would not have happened if Tesla had limited Autopilot to its ODD, the Court disagrees. Just as Moore may use his knowledge and experience to reasonably conclude that certain modifications to Tesla's DMS technology would have prevented the collision, he may also conclude that limiting Autopilot to its ODD would have prevented the collision as well, given that both conclusions apply the same reasoning.
Simmons
, 576 F. Supp. 3d at 1146;
Schenone
, 2014 WL 9879924, at *8 ("[T]he expert's experience in conjunction with knowledge, skill, training or education alone may provide a sufficient basis to the reliability of the expert's opinion."). Because limiting Autopilot to its ODD would have disabled the system while McGee was driving on Card Sound Road, Moore reasonably concludes that McGee would have been manually driving his Vehicle on the date of the collision and, therefore, he would likely have been more engaged and more responsive to the issues that arose.
See Hendrix ex rel. G.P.
, 609 F.3d at 1198 n.10 ("
Daubert
does not require certainty; it requires only reliability."). Moore does not have to completely rebut alternative possibilities. He need only provide a sound reason for his conclusion that it is more likely than not Tesla's conduct rendered the product defective and caused Plaintiffs' injuries.
See 325 Goodrich Ave., LLC v. Sw.

Water Co.
, 891 F. Supp. 2d 1364, 1381-82 (M.D. Ga. 2012) (explaining that the causation expert was not required to "definitely conclude" the cause of the damage for the opinion to be reliable, nor did he have to exclude all other "potential sources of causation"). Accordingly, based on the record evidence Moore relied upon, the Court finds that the grounds for Moore's conclusions on the ODD defect are reliable.

34

iii. Moore's Opinion Regarding the TACC Defect

Tesla argues that Moore's opinion regarding the TACC defect is unreliable and unsupported by the record because Autopilot, and specifically the TACC system, was not designed to prevent the collision that occurred here. ECF No. [318] at 17. Plaintiffs respond that Tesla's argument hinges on the assumption that McGee overrode the Autopilot in the seconds leading up to the collision but ignores "that Autopilot was still controlling the vehicle's movement despite McGee's acceleration." ECF No. [347] at 21 (emphasis removed). Given that the Parties' dispute appears to be largely a question of fact, Plaintiffs argue the question should be a question for the jury and cannot serve as a basis for excluding Moore's testimony.

The Court agrees with Plaintiffs that the basis for Moore's opinion regarding Autopilot's failure to timely warn or deploy the brakes is reliable. In reaching his conclusion, Moore relied on the Vehicle's log data as well as the Vehicle's augmented video to show that notwithstanding the detection of obstacles in the roadway, there was no Automatic Emergency Braking or Forward Collision Warning issued by the Vehicle prior to the collision. ECF No. [318-1] at 11. No additional evidence is needed to reasonably infer that the triggering of either of these systems following the detection of the obstacles would have made it more likely than not that the collision would never have occurred. Tesla attempts to challenge Moore's conclusion by arguing that McGee overrode the Autopilot system and, therefore, Autopilot's failure to issue a warning or trigger the automatic brakes could not reasonably be the cause of the collision. However, whether Autopilot was activated and to what extent it was activated leading up to the collision is a material fact in dispute and is not a basis for excluding Moore's opinion.
Cf. Rappuhn v. Primal Vantage

Co., Inc.
, No. 23-10050, 2024 WL 2930448, at *4-5 (11th Cir. June 11, 2024) ('"The inquiry under
Daubert
is not whether the expert's assessment is incontrovertible. '
Daubert
does not require that a party who proffers expert testimony carry the burden of proving to the judge that the expert's

35

assessment of the situation is correct."' (quoting
Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling

Co.
, 161 F.3d 77, 85 (1st Cir. 1998))).

Tesla's argument that its Autopilot system was not designed to issue a warning or trigger the automatic braking system also does not undermine the reliability of Moore's opinion to the extent he is arguing there is a design defect.
46
Indeed, the fact that the Autopilot system was not designed to utilize either of these safety features under the circumstances is precisely why Moore concluded the product was dangerously defective.
47

Furthermore, it is not dispositive that "Moore has not, and cannot, point to another vehicle which would have done what he alleges Autopilot failed to do here." ECF No. [318] at 17. In Florida, a Plaintiff need only satisfy the consumer expectation test to prove a design defect claim.
See Aubin v. Union Carbide Corp.
, 177 So. 3d 489, 510-11 (Fla. 2015). Neither Plaintiffs nor their experts must establish a reasonable alternative design, so long as they demonstrate that a reasonable consumer in McGee's shoes would have expected the Vehicle to either give an audible warning of obstacles in the road or trigger the automatic brakes with sufficient time to avoid the collision.
Id.
("[W]e conclude that the Third Restatement's risk utility test and establishment of a reasonable alternative design mandate are not requirements for finding strict liability[.]"). Because Tesla fails to point to any record evidence that conclusively undermines the theory that a reasonable consumer would have expected a warning or for the Vehicle to deploy its automatic

46 While Tesla's argument could theoretically undermine Moore's opinion to the extent he relies on the failure to warn and brake to assert a manufacturing defect, the Court need not consider the issue since the Court finds that Moore has relied on reasonable methods to conclude there was a design defect.

47 Because Moore's TACC opinion supports a claim of defective design, it is ultimately not material for the purpose of the Court's
Daubert
analysis that Moore admitted the reason there was not an "Automatic Emergency Braking or Forward Collision Warning event" was likely because of "the target vehicle orientation, visual noise, lighting, lack of free space and lane information, and Tesla vehicle speed." ECF No. [318-1] at 11.

36

brakes under the circumstances, the Court finds no basis to exclude Moore's testimony on this issue.

iv. Moore's Opinion Regarding Insufficient Training

Tesla argues that Moore's opinion, finding Tesla's Autopilot training for new owners insufficient, is an unreliable "
ipse dixit
" opinion. ECF No. [318] at 17. According to Tesla, Moore's opinion ignores the record evidence that shows not only did Tesla provide Autopilot training to customers, but McGee also confirmed that he had educated himself about the system and "was confident in how to operate Autopilot." ECF No. [347] at 17.
48
Plaintiffs contend the record reflects that McGee "received no training . . . that over 50 other Tesla customers Moore had spoken with received no training, . . . and Moore himself received no training on the Tesla his company owns."
Id.
at 22 (emphasis removed). Although Tesla challenges the basis of Moore's opinion since he did not rely on a formal study, Plaintiffs reiterate that "expert testimony based on experience is permissible under
Daubert
."
Id.

The Court finds Moore's opinion that Tesla's "training and familiarization with Autopilot for new owners was insufficient" and therefore "increased the risk of the subject accident" is unreliable and not sufficiently supported by the record.

Moore's opinion fails to explain what matters on which McGee and other Tesla drivers were inadequately trained, what information and training should have been provided that would have decreased the risk of injury in this case, or even generally accepted standards for such training.
See Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty., Fla.
, 402 F.3d 1092, 1112 (11th Cir. 2005) (finding the inadequate training opinion was "without foundation, since Dr. Maris

48 Tesla further argues that there is insufficient record evidence and data for Moore to opine that McGee's self-education was inadequate. ECF No. [318] at 17. McGee could not point to which YouTube videos he watched or other resources he used to train himself, and therefore, Tesla argues that Moore's opinion that such training was insufficient is pure guesswork.
See id.
at 17-18.

37

ha[d] articulated neither a generally accepted standard for [the] training . . . nor an explanation of how or why he believe[d] the MCDC's training to be inadequate." Thus, th[e]opinion [w]as connected to existing data only by the
ipse dixit
of the expert.") (quoting
Michigan Millers Mut.

Ins. Corp. v. Benfield
, 140 F.3d 915, 921 (11th Cir. 1998)). While Tesla may certainly have "had infinitely more information regarding the risk of Autopilot" than McGee did, Moore fails to articulate the basis for his belief that more training on the system would have decreased the possibility of the collision.
See United States v. Frazier
, 387 F.3d 1244, 1266 (11th Cir. 2004) (observing that an expert's "imprecise opinion easily could serve to confuse the jury, and might well have misled it").

The Court therefore agrees that Moore's opinion constitutes the classic
ipse dixit
fallacy as it fails to rely on data, evidence, or Moore's knowl

[The evaluation harness truncated this reference: showing the first 120000 of 256639 characters.]
</reference>

<statements>
1. To establish manufacturer liability in tort, plaintiffs bring claims under the Restatement (Second) of Torts § 402A or the Restatement (Third) of Torts: Products Liability § 2, asserting design defect, failure to warn, or manufacturing defect claims
2. However, actionable manufacturing claims can arise when a plaintiff demonstrates physical sensor assembly flaws, such as misaligned radar brackets, out-of-spec camera lens focal planes, or improper electronic transceiver calibrations that degrade object detection below the manufacturer's own engineering baselines
3. Neima Benavides v. Tesla, Inc. (2024–2025) was a case in the U.S. District Court, S.D. Florida, involving Tesla Autopilot in a 2019 Model S
4. In Neima Benavides v. Tesla, Inc. (2024–2025), the OEM defense strategy was that the driver was the sole proximate cause and included Daubert challenges against the plaintiff's human-factors expert witnesses
5. In Neima Benavides v. Tesla, Inc. (2024–2025), pre-trial rulings addressed the admissibility of human factors testimony regarding complacency and punitive damages thresholds
6. Once this presumption attaches, the burden shifts to the manufacturer to prove that the crash was caused entirely by the driver's gross negligence or intentional intervention
</statements>

Begin the assessment now. Output only the JSON list, without any conversational text or explanations.