Cone ex rel. Frazier v. Hankook Tire Co.

LISA C. CONE, attorney in fact and next friend of TIMOTHY H.L. FRAZIER,and TIMOTHY H.L. FRAZIER, individually, Plaintiffs, v. HANKOOK TIRE COMPANY, LTD., Defendants.

No. 14-1122

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION

January 19, 2017

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTIONS IN LIMINE (D.E. 204 & 205) & DENYING DEFENDANT'S MOTION FOR LEAVE TO FILE REPLY (D.E. 267)

Before the Court are two motions in limine filed by Defendant, Hankook Tire Company, Limited ("Hankook"). (Docket Entry ("D.E.") 204 & 205.)¹ In their complaint, Plaintiffs, Lisa C. Cone and Timothy H.L. Frazier, aver that Frazier was driving a concrete mixer truck when a tire manufactured by Hankook suffered a tread separation. (D.E. 1.) The truck overturned, and Frazier suffered serious injuries as a result. (Id.) Cone and Frazier have offered two experts in tire failure analysis to support their claims that the tire's tread separation resulted from manufacturing defects, the testimony of which Hankook now seeks to exclude.

I. LEGAL STANDARD

The proponent of expert testimony has the burden of showing that the evidence is admissible. Fed. R. Evid. 104(a); E.E.O.C. v. Tepro, Inc., 133 F. Supp. 3d 1034, 1040 (E.D. Tenn. Sept. 28, 2015), recons. denied 2015 WL 12658237 (E.D. Tenn. Oct. 21, 2015). Such evidence is governed by Rule 702 of the Federal Rules of Evidence, which provides that

[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if [ ] (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

In addition, the court has the authority under Fed. R. Evid. 403 to "exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues[ or] misleading the jury[.]"

The court's determination whether expert testimony is admissible under the rule proceeds in three steps: (1) "the witness must be qualified," (2) "the testimony must be relevant," and (3) "the testimony must be reliable." United States v. Rios, 830 F.3d 403, 413 (6th Cir. 2016), reh'g en banc denied (Sept. 27, 2016).

The district court is granted "considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable, provided that the gatekeeping mandate of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, [596] (1993), is followed to ensure the reliability and relevancy of expert testimony." Rios, 830 F.3d at 413 (internal quotation marks omitted). The reliability inquiry focuses on the principles andmethodology that underlie the evidence more than the conclusions it generates. Vaughn v. Konecranes, Inc., 642 F. App'x 568, 577 (6th Cir. 2016).

In Daubert, the Court identified a nonexhaustive list of factors to assist courts in assessing the reliability of an expert opinion, including (1) "whether a theory or technique can be (and has been) tested," (2) "whether the theory has been subjected to peer review and publication," (3) whether the technique has "a high known or potential rate of error," and (4) "whether the theory or technique enjoys 'general acceptance' within a 'relevant scientific community.'" Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 429 (6th Cir. 2007) (citing Daubert, 509 U.S. at 592-94) (alterations & some internal quotation marks omitted). Whether the court applies these factors depends "on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999). As the Sixth Circuit has recognized, "the fact that [an expert's] opinions may not have been subjected to the crucible of peer review, or that their validity has not been confirmed through empirical analysis, does not render them unreliable and inadmissible." First Tenn. Bank Nat. Ass'n v. Barreto, 268 F.3d 319, 334 (6th Cir. 2001). "'The distinction between scientific and non-scientific expert testimony is a critical one[,]' and . . . Daubert is 'only of limited help' in assessing technical or experiential expertise." Id. (quoting Berry v. City of Detroit, 25 F.3d 1342, 1349 (6th Cir. 1994).

Rejection of expert testimony is the exception, not the rule. United States ex rel. Tenn. Valley Auth. v. 1.72 Acres of Land in Tenn., 821 F.3d 742, 749 (6th Cir. 2016). Any weakness in the underlying factual basis goes to the weight of the evidence, not its admissibility. Daubert, 509 U.S. at 596. "Accordingly, Rule 702 should be broadly interpreted on the basis of whetherthe use of expert testimony will assist the trier of fact." 1.72 Acres of Land in Tenn., 821 F.3d at 749 (internal quotation marks omitted).

II. OPINIONS AND ANALYSIS

1. Opinion of David Southwell

First, Defendant requests exclusion of David Southwell's opinion that the subject tire had manufacturing defects. (D.E. 204.) Southwell has a master's degree in engineering, a certificate in automotive mechanics, and extensive experience working for tire manufacturers in various capacities, including inspecting tires, investigating tire failures, and recording and analyzing data about tire failures and warranties. His work in tire failure analysis at Bridgestone involved collecting failed tires and conducting testing to identify "how [each] tire was manufactured and what had gone wrong in the manufacture of that tire to cause the separation." (D.E. 221-4 at PageID 7089.) The expert also completed training at "Firestone University," which included instruction in tire design, compounding, construction, and field engineering.

Southwell examined the subject tire along with the accident report, photographs from the scene and of the tire, x-rays of the tire, and shearographic images of the "companion tire."² He identified several causes for the tread separation, which he attributed to manufacturing defects, including distorted belt cords, insufficient gauge of the belt skim coat, "reduced tack and component adhesion" caused by the use of "excessively aged components," and "substantial belt misalignments."

Hankook first attacks Southwell's qualifications, noting that he works part-time as a tire failure analyst, "has no publications or patents," and is not an expert in accident reconstruction orrubber chemistry. (D.E. 204-1 at PageID 3681.) Defendant did not explain what relevance these purported limitations have to the expert's opinion in this case, and Hankook does not question Southwell's background as an engineer and vocational experience in the tire industry. Thus, these facts do not disqualify him from testifying. See Benton v. Ford Motor Co., 492 F. Supp. 2d 874, 877 (S.D. Ohio 2007) (noting that "where the opposing side has the opportunity to cross-examine an expert regarding his qualifications and where the jury is properly instructed to determine for itself the weight and credibility to be given to the expert's testimony, an argument opposing admissibility of the testimony on the grounds that it is outside the witness's area of expertise must fail") (citing Morales v. Am. Honda Motor Co., Inc., 151 F.3d 500, 515 (6th Cir. 1998)). Also, Defendant has alleged that an Australian court rejected the expert's opinion in a 2010 case. However, this Court is unaware of the standard applied in that case or even whether that court rejected admission of the expert's opinions completely or instead disagreed with his ultimate conclusions. Thus, it has no bearing on the admissibility of his proffered opinions in this case. The Court finds that Southwell is qualified to testify as an expert in tire failure analysis. Next, Defendant lodges objections to the reliability of each defect opinion offered by the expert, which the Court will address in turn.

a. Belt cord straightness

According to Southwell, there were defects in the placement of the steel cords within the skim coat. He opined that steel cords should "be arranged straight and parallel." (D.E. 221-1 at PageID 6730.) Based on his review of photographs of the tire, the expert identified distortion of the "[fourth] belt ply cords," which he said would result in increased stress on certain areas of the tire, "increasing the overall component fatigue load and potentially contributing to prematurestructural failure of the tire." (Id. at PageID 6731.) He explained that the distorted cords caused unequal stress concentrations in particular areas of the tire, increasing the potential for tread separation. The expert averred that he conducted testing while working for Bridgestone, which demonstrated that this defect could lead to tread separation. In the course of this testing, tires were subjected to "durability testing on a test wheel" and after the tires failed, they were evaluated and a "wavy belt" was determined to be the cause of failure. (D.E. 221-4 at PageID 7062.) Southwell said that he led the team that conducted this testing and that both he and other team members agreed on the cause of failure. The expert admitted that, in the present case, there was "a small area of separation" where the wavy belt was located and that it was not responsible for "the catastrophic failure of the tire." (Id.)

Hankook challenges admission of this opinion on the basis that the expert admitted this defect did not initiate the tread separation. Although true, Southwell distinguished the initial site of tread separation from other weaknesses in the tire which exacerbated the situation and led to the tire's catastrophic failure. Further, the expert testified that, while working at Bridgestone, he conducted testing that supported his theory that a wavy...