Timm et al v. Goodyear Tire and Rubber Company et al

Filing 351

OPINION AND ORDER: For the reasons set forth in the opinion and order, summary judgment on all of the Timms' claims must be granted. Defendant Goodyear Dunlop Tires North America Ltd.'s Motion in Limine to Exclude Testimony of William Woe hrle 297 is GRANTED. Defendant Goodyear Dunlop Tires North America Ltd.'s Motion in Liminie to Exclude Testimony of Dr. Daniel Lee 298 is GRANTED. Defendant Goodyear Dunlop Tires North America Ltd.'s Motion for Summary Judgment 292 i s GRANTED. Defendant Harley-Davidson Motor Company Group LLC's Motion in Limine to Exclude Opinion Testimony of William Woehrle 300 is GRANTED. Defendant Harley-Davidson Motor Company Group LLC's Motion in Limine to Exclude Opinion Testi mony of Daniel Lee 301 is GRANTED. Defendant Harley-Davidson Motor Company Group LLC's Motion for Partial Summary Judgment 302 is GRANTED. Defendant Harley-Davidson Motor Company Group LLC's and Goodyear Dunlop Tires North America Ltd. 's Rule 56 Motions to Strike 317 , 321 are DENIED AS MOOT. Defendant Harley-Davidson Motor Company Group LLC's Motion to Strike Plaintiffs' Untimely Affidavit of Daniel Lee 323 is DENIED AS MOOT. Signed by Judge Philip P Simon on 3/29/2018. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DONALD TIMM; MARY TIMM,
Plaintiffs,
v.
GOODYEAR DUNLOP TIRES NORTH
AMERICA LTD, et al.,
Defendants.

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NO. 2:14CV232-PPS

OPINION AND ORDER
Mr. and Mrs. Timm were seriously injured in a motorcycle accident and bring
this products liability action against Harley-Davidson, the motorcycle manufacturer,
and Goodyear Dunlop, the tire manufacturer. Harley-Davidson and Goodyear Dunlop
contend that the experts identified by the Timms are not qualified to give the proposed
testimony pursuant to Daubert. They have also moved for summary judgment. Because
the experts’s opinions are not reliable, I will grant the defendants’ Daubert motions, and
as a consequence, will also grant summary judgment in favor of Harley-Davidson and
Goodyear.
Background
On July 10, 2013, the Timms embarked on a cross-country trip from their home in
Dyer, Indiana on their Harley-Davidson Ultra Classic. Mr. Timm was driving; Mrs.
Timm was his passenger. [DE 305-7 at 5-6.] While driving through Nebraska on
Interstate 80, and traveling approximately 70 to 75 miles per hour, the tire on the

Timms’ motorcycle suddenly went flat. [DE 288-4 at 6, 16.] Everyone agrees that the tire
was punctured, likely by a road hazard, which caused the tire to lose pressure. [DE 2972 at 6.] Mrs. Timm noticed that the back end of the motorcycle began “hopping.” She
asked her husband what was happening, and he responded that he couldn’t control the
back end. [DE 288-4 at 6-8; DE 305-7 at 6.] Tragically, Mr. Timm lost control of the
motorcycle, and the Timms crossed two lanes of traffic, eventually crashing into a
concrete median barrier.
An eyewitness to the crash estimated that the Timms struck the median while
traveling somewhere between 55 and 65 miles per hour. [DE 288-3 at 6-9.] The same
witness also reported that Mrs. Timm came off the motorcycle and landed on the
ground, while Mr. Timm slid along the concrete shoulder lane, still connected to the
motorcycle, and came to rest along the barrier. [DE 288-3 at 5-9.]
The Timms’ injuries were severe. Mrs. Timm was treated after the accident for a
head injury, consisting of a loss of consciousness and hemotoma. In addition to the
head injury, she suffered a fracture of her right humerus, a laceration to her left knee,
and road rash abrasions. [DE 305-9; DE 288-2 at 9-10, 17-18.] Mr. Timm suffered a
traumatic brain injury, significant facial fractures, and other head injuries, such as scalp
lacerations and swelling. He also suffered a cervical spine injury. [DE 305-8.]
The Timms were riding their 2006 Harley-Davidson Ultra Classic motorcycle on
this trip. The rear tire was a Goodyear Dunlop D402 MU8516, M/C 77H tire
manufactured by Goodyear and branded with the name Harley-Davidson. [DE 297-2 at
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6; DE 110 at 19.] The Timms had purchased the tire in November 2012, as a replacement
tire. The Timms allege that Harley-Davidson sells and distributes the Goodyear tire,
but it’s not clear from whom the Timms actually purchased their replacement tire. [See
DE 110 at 19.]
This case involves some nitty-gritty details about tires and motorcycles, and the
mechanics are not exactly straightforward. In layman’s terms, what happened is the
motorcycle’s rear tire was punctured by a road hazard, it began to deflate and
eventually became unseated from its rim. The key question is whether the tire became
unseated from the rim thus causing the accident, or vice versa, whether the crash of the
motorcycle is what caused the tire to unseat from the rim. As one might imagine this is
a difficult and technical question to answer, requiring expert testimony.
Before getting into the details it’s necessary to understand a little bit about
motorcycle and tire terminology. (For a good description of the construction of a radial
ply tire, albeit a car tire not a motorcycle tire, see Kumho Tire Ltd. v. Carmichael, 526 U.S.
137, 142 (1999).) The D402 tire at issue in this case is a bias ply tire constructed of three
polyester plies and two fiberglass belts beneath the tread. The inner liner holds the air
within the tire. The bead is the edge of the tire that sits on the bead seat on the wheel
rim. The bead of the tire is made of steel bands woven together in a hoop, and
components of the tire are wrapped around the bead. The chafer strip reinforces the
beads and protects the cord body plies. Here is a drawing of the tire:

3

The D4702 is a tubeless tire. It sits, and stays, on the wheel rim by what’s called
an interference fit. The diameter of the bead base on the tire is slightly smaller than the
diameter of the bead seat on the rim. This interference fit, in combination with the air
pressure in the tire, holds the tire in place on the rim. The dimensions of the bead base
on the tire and the bead seat on the rim are critical, and the tolerances are tight. Here
are additional drawings of the tire components and the interference fit described above:

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And here is the actual tire taken from the Timms’ motorcycle showing it unseated from
the rim.

The Timms’ theory of the defect in this case is that there was excess “flash” in the
bead area and too thin rubber covering the chafer strip which, in combination with the
rim, resulted in an insufficient amount of rubber in the bead area, weakening the
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interference fit between the tire and the rim. This, the Timms say, allowed the bead on
one side of the tire to unseat – or, come free – from the rim when the tire lost its
pressure after it was punctured. Bead flash is a very thin layer of rubber that is created
when the tire is cured or vulcanized into its final shape. Goodyear considers the
condition cosmetic and often shaves the excess flash off of the tires before distributing
them.
There is a second and somewhat unrelated issue in this case. The Timms also
claim that the Harley-Davidson motorcycle should have been equipped with a tire
pressure monitoring system (“TPMS”). TPMS is an electronic system designed to
monitor the air pressure inside tires. It reports this information in real time to the
driver through a number of possible different methods, including a gauge, pictogram
display, or warning light.
In support of their theory, the Timms have proposed two experts – William
Woehrle, a tire expert, and Dr. Daniel Lee, an accident reconstructionist. Woehrle seeks
to offer a number of opinions that are relevant to the Timms’ claims. First, if allowed,
Woehrle will testify as to the cause of the accident. He says that Mr. Timm lost control
of the motorcycle as a result of “a sudden and total deflation of the rear tire.” [DE 297-2
at 5.] According to Woehrle, the tire was punctured in the tread region, which led to “a
steady and relatively controllable loss of inflation pressure.” [DE 297-2 at 5.] As the
pressure dropped, “at some point, while still traveling straight ahead, the right side
bead became unseated.” [DE 297-2 at 5.] This caused a very severe vibration and
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“violent distortions of the tire on the wheel,” creating a situation in which “it would not
be reasonable to expect the operator to maintain control of the motorcycle.” [DE 297-2 at
5.]
Woehrle opined that the bead unseating was caused by three independent
conditions, which “combined to create an unacceptably low resistance to dynamic bead
unseating for the subject tire/wheel assembly.” [DE 297-2 at 5.] According to Woehrle:
The subject tire bead on the right side was made more vulnerable to
unseating from the rim flanges as a result of very severe toe ring flash
between the bead heel and top of the bead face. This is a manufacturing
defect, which would have been readily visible during the final visual
inspection of the finished tire in the factory.
In addition, the subject tire has an extremely thin layer of skim rubber
over the chafer strip in the bead region. This reduces the margins for any
deviation in dimensions and contour in this critical bead region, in order
to achieve satisfactory bead fitment to the rim flange.
The situation was further exasperated by the fact that the subject rim was
at the very minimum value of the allowable and standardized tolerance
for rim bead seat diameter.
[DE 297-2 at 5.]
Woehrle arrived at this conclusion by conducting a physical examination of the
tire and wheel. He analyzed the tire to determine whether there was any “abuse on the
part of the owner,” and in particular looked for tire impact damage, punctures and
repairs, age, excessive tread wear, and rim deformities. He found that the tire had been
punctured but not repaired, which he ruled was the proximate cause for the pressure
loss in the tire. There were no other abuse issues identified in his examination. [DE 297-

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2 at 6.] His physical examination also revealed a “very severe toe ring flash on the SS
bead face.” [DE 297-2 at 7.] He further observed that the “skim rubber over the square
woven chafer fabric in both beads was so thin that the fabric was nearly protruding
through the skim rubber.” [DE 297-2 at 7.] Woehrle found that the motorcycle rim’s
dimensions were within the standardized tolerances set forth by the Tire and Rim
Association, which he identifies as the applicable standardizing body in the United
States. [DE 297-2 at 8.]
His other opinion concerns Harley-Davidson’s failure to equip the Timms’
motorcycle with TPMS. Woehrle opined that Harley-Davidson should have installed a
TPMS on the motorcycle because it would have made the motorcycle safer. In
particular, Woehrle’s opines that:
If either Harley Davidson or Goodyear Dunlop truly believe that a
flat tire that has not yet catastrophically failed, with its beads that remain
seated, on a motorcycle traveling on a smooth, straight roadway at normal
highway speeds, poses a severe motorcycle control issue, then both
defendants are negligent in not having Tire Pressure Monitoring
Systems (TPMS) installed as standard equipment on such motorcycles.
[DE 297-2 at 16.] He further stated that the “TPMS technology and availability existed
long before the subject tire and motorcycle were made.” [DE 306-1 at 38.] Woehrle
stated that it is reasonable to conclude that the accident would not have happened if the
motorcycle had been equipped with TPMS. [DE 306-1 at 38.]
In support of his opinion that the motorcycle should have had TPMS, Woehrle
describes how he conducted an experiment by purchasing an aftermarket TPMS and

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installing it on a Harley-Davidson motorcycle. He stated that it worked “flawlessly.”
[DE 300-3 at 4.] Woehrle compares the availability and safety of TPMS on motorcycles
to that of passenger cars and trucks, which he says have been regulated for nearly a
decade. Finally, he notes that “[n]umerous motorcycle manufacturers offer TPMS
today.” [DEE 300-3 at 4.]
Dr. Lee is an accident reconstructionist who opined that the Timms’ tire hopped
due to bead unseating and this caused the loss of control. [DE 301-2 at 10, 12.] He
concluded that “Donald Timm did not contribute to the crash.” [DE 301-2 at 12.]
According to Dr. Lee, the “initial wobble, fishtailing, and hops” as reported by Mrs.
Timm, were “due to a rear tire failure which made the Harley uncontrollable and
resulted in the crash and the related injuries.” [DE 301-2 at 3.] His position is evidenced,
he says, by the marks on the roadway and the condition of the tire and wheel
combination. [DE 301-2 at 10.]
In addition to his “hopping” and bead seating opinion, Dr. Lee offered several
opinions related to the conditions of the roadway and the Timms’ motorcycle on the
day of the accident. For example, he opined that the Timms’ motorcycle was in “sound
mechanical condition,” that there were good weather conditions on the day of the
accident, and the roadway was in “a reasonably safe condition.” [DE 301-2 at 12.]
Dr. Lee bases all of these “opinions” on his review of the police report, the
Timms’ and a witness’ deposition, Woehrle’s report, and the tire, as well as discussions
with Woehrle and the Timms’ attorney. [DE 301-2 at 5.] At the time he issued his expert
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report, Dr. Lee had not inspected the accident scene or the motorcycle [DE 298-1 at 11],
though by the time he testified, he had visited the accident scene.
At his deposition, but not in his initial expert report, Dr. Lee also offered his
opinion as to TPMS, and though he initially testified that he did not know what TPMS
was, he later opined that “every manufacturer should have [TPMS] but they don’t.” [DE
301-1 at 5.] Then, in an affidavit sworn to and submitted after the defendants’ motions
for summary judgment and motions to exclude his testimony, Dr. Lee added to his
conclusions, stating that “Goodyear is aware that tire pressure and temperature are
critical elements. A good starting point would be for Harley Davidson and Goodyear to
require existing pressure monitoring systems to be installed on all motorcycles
equipped with Goodyear tires.” Dr. Lee notes that he has purchased five new HarleyDavidson Ultra motorcycles, and not one has been equipped with TPMS, even though
his current vehicles – not motorcycles – have it. He also cites a USA Today article
discussing Goodyear’s testing of smart tires that could potentially relay condition
information, such as pressure and temperature, in support of his opinion that Goodyear
is aware that tire pressure is a critical element. [DE 308-1.]
Before me are a slew of motions, including two motions for summary judgment
filed by both Goodyear and Harley-Davidson, as well as motions to exclude both
experts’ testimony and motions to strike several of the Timms’ filings. After receiving
the parties’ briefing related to the Timms’ experts, I held a Daubert hearing, in which I

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heard testimony directly from Mr. Woehrle, to address the reliability of his opinions.
All of these motions are now ripe for my decision.
Discussion
Motions to Exclude Expert Testimony
Harley-Davidson and Goodyear have moved to exclude the opinions of the
Timms’ two proposed experts, William Woehrle and Daniel Lee. Because the
admissibility of the experts’ testimony is pivotal to the viability of the Timms’ claims, I
will address it first.
Let’s start with some basics. Federal Rule of Evidence 702 governs the
admissibility of expert testimony. It states, in relevant part, 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 the expert’s scientific, technical or other
specialized knowledge will assist the trier of fact to understand the evidence or
determine a fact in issue.” Fed. R. Evid. 702. The Rule “also requires that: (1) the
testimony must be based upon sufficient facts or data; (2) it must be the product of
reliable principles and methods; and (3) the witness must have applied the principles
and methods reliably to the facts of the case.” Happel v. Walmart Stores, Inc., 602 F.3d
820, 824 (7th Cir. 2010). The district court must perform a “gatekeeping” function
before admitting scientific testimony in order to ensure that “all scientific testimony or
evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 589 (1993). As a threshold matter, the district court must determine

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(1) whether the expert would testify to valid scientific knowledge, and (2) whether that
testimony would assist the trier of fact with a fact at issue. Smith v. Ford Motor Co., 215
F.3d 713, 718 (7th Cir. 2000).
The first step is to analyze the reliability of the expert. In doing so, the role of the
court is to determine whether the expert is qualified in the relevant field and to examine
the methodology the expert has used in reaching his conclusions. Id. Rule 702
contemplates that an expert may be qualified by “knowledge, skill, experience, training,
or education.” Fed. R. Evid. 702. Thus, in determining whether a proposed expert is
qualified, a court may consider the proposed expert’s full range of practical experience,
as well as academic or technical training. Smith, 215 F.3d at 718. But “even a supremely
qualified expert cannot waltz into the courtroom and render opinions unless those
opinions are based upon some recognized scientific method.” Id. (internal quotation
marks and brackets omitted). This means that a court “must rule out subjective belief or
unsupported speculation.” Cummins v. Lyle Indus., 93 F.3d 362, 368 (7th Cir. 1996)
(internal quotation marks omitted).
In Daubert, the Supreme Court identified four factors that are pertinent to the
reliability inquiry: (1) whether the theory has been tested; (2) whether the theory has
been subjected to peer review and publication; (3) the known or potential rate of error;
and (4) whether it has been generally accepted within the relevant scientific community.
509 U.S. at 593-94. The inquiry is flexible and must focus solely on the principles and
methodologies, not the conclusions they generate. Id. at 594. No single factor is either
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required in the analysis or dispositive as to its outcome. See Kumho Tire Co., 526 U.S. at
141.
If the district court is satisfied that the expert’s testimony is reliable, the next step
is to determine whether the testimony is relevant. In making this determination, the
court must consider whether the testimony assists the trier of fact in understanding the
evidence or in determining a fact at issue. Cummins, 93 F.3d at 368.
William Woehrle
I’ll start with William Woerhrle. Goodyear and Harley-Davidson seek to exclude
two opinions of Woehrle’s: (1) his opinion as to how the tire became unseated from the
rim; and (2) his opinion concerning TPMS.
Woehrle’s first opinion concerns the cause of Mr. Timm’s losing control of the
motorcycle and the unseating of the tire from the rim. As explained above, Woehrle
concluded that the tire had been punctured, which caused the loss of air, but that after
the puncture occurred, while the Timms were still traveling straight ahead, the right
side bead became unseated from the rim. This unseating, Woehrle says, was caused by
very severe flash and an extremely thin layer of skim rubber over the chafer strip in the
bead region. The situation was made worse, according to Woerhle, by the fact that the
motorcycle rim was at the lowest allowable tolerance for bead seat diameter.
Goodyear and Harley-Davidson argue that each of Woehrle’s contributing
conditions opinion is not reliable for a multitude of reasons, and they point to his own
deposition testimony in support. Woehrle admitted in his deposition that he has not

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tested his opinion that excess flash can cause rubber to pull away from the chafer strip
or that flash affects bead seat retention. [DE 297-1 at 24.] Instead, he conceded that
identifying how much rubber was pulled away from the chafer strip in the Timms’ tire,
as a result of bead flash, is not capable of objective ascertainment. [DE 297-1 at 22, 24.]
What’s more, he agreed that even if he were to test his theory, any test would produce a
high rate of error. [DE 297-1 at 42.]
Woehrle is unable to point to any scientific studies, literature, or experiments
that support his opinion that excess flash in the bead area can pull rubber away from
the chafer strip and then lead to bead unseating. [DE 297-1 at 24.] The one paper he
cites to does not even mention flash as being related to the issue of bead fit. [DE 297-1 at
24.] Instead of pointing to a scientific study, Woehrle testified that his opinion is a
“fundamental principle” and is “just straightforward and intuitive.” [DE 297-1 at 24.]
Likewise, Woehrle acknowledges that his second opinion regarding the rubber in
the chafer strip as being too thin is not based on any testing he, or anyone else, has
done. Woehrle again is not aware of any scientific studies that support his opinion.
Rather, his opinion as to what thickness the chafer strip needs to be is “just based on
fundamental knowledge of the bead fitment and what would be reasonable rubber
thickness in the bead region.” [DE 297-1 at 27.] In other words, his opinion as to how
thick chafer rubber should be is based on what he thinks is reasonable. Woehrle could
not identify any scientific study or published material supporting his opinion as to how
thick the chafer strip rubber should be. [DE 297-1 at 27.] Woehrle also opines that thin
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rubber chafer can contribute to creating an unacceptable resistance to bead unseating,
but he concedes that this opinion is also not supported by any testing he has done. Nor
can he identify any scientific studies conducted by others that supports his theory. [DE
297-1 at 28.] It’s not even supported by his own personal experience with motorcycle
tires. [DE 297-1 at 28.]
With respect to Woehrle’s third contributing condition opinion, Goodyear and
Harley-Davidson challenge the basis for Woehrle’s opinion that the motorcycle rim,
which was at the minimum value of the allowable and standardized tolerance for rim
bead seat diameter, combined with the other two conditions to create an unacceptably
low resistance to dynamic bead unseating. To this point, Woehrle does not provide any
peer-reviewed publications, studies, or testing to support his theory. And he holds his
opinion despite acknowledging that the rim met the recognized industry standards.
[DE 297-2 at 8 (“The subject rim’s dimensions were found to be within the TRA [Tire &
Rim Association] standardized tolerance.”).]
These acknowledgments by Woehrle lead me to conclude that his testimony is
not admissible because, notwithstanding the flexibility of the Daubert analysis, it fails to
adhere to any of the Daubert guideposts. With due respect to Mr. Woerhle, his opinion
about how the tire became unseated from the rim is the epitome of an ipse dixit — it’s so
because he says it’s so.
First, Woehrle himself conceded that neither he nor anyone else has tested his
theory that excess flash can pull rubber away from the chafer strip, diminishing
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resistance to bead unseating, or that a rim within the industry standards could
contribute to bead unseating. Second, he is unable to point to any scientific literature
supporting – or even mentioning – his theory as to any one, let alone all three,
contributing conditions. Third, as to his opinion concerning excess bead flash, Woehrle
indicates that it is not capable of objective ascertainment and the known or potential
rate of error cannot be quantified. As to the combination of the three factors, Woehrle
conceded that he cannot quantify or test the impact each of the conditions had on bead
unseating. Finally, given all of the above, it’s clear that his theory is not generally
accepted in the community because no one else has thought to publish anything about
it.
Woehrle’s testimony at the Daubert hearing confirms my conclusion that his
opinions are not based on any reliable, valid scientific method. At the hearing, Woehrle
testified in great detail about what he thought had caused the Timms’ accident. But
when I asked him directly what he relied upon to arrive at his conclusion that excess
flash and thin chafer rubber caused the unseating, he replied that it was an intuitive
principle. I further asked if there was anything — a treatise, industry papers, a
controlled experiment, other experts, etc. — that he could point to that supports his
opinion. He replied that there was no empirical data or controlled experiments to
buttress his opinions. [See DE 336.]
In sum, Woerhle’s opinions appear to be based on nothing more than his
subjective belief and unsupported speculation. It goes without saying that intuitive
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principles are not enough to satisfy the strictures of Rule 702 and Daubert. Because
Woehrle’s testimony concerning the cause of the bead unseating does not meet the
requirements of Rule 702 and Daubert, it must be excluded.
Harley-Davidson also seeks to exclude Woehrle’s opinion regarding TPMS. It
argues that he has no specialized knowledge, skill, experience, training, or education
which would qualify him to offer opinion testimony regarding motorcycle TPMS. I
agree. Woehrle is a tire expert, but he has no design or manufacturing experience with
motorcycles. [DE 300-1 at 16.] From his resume, I can’t identify any motorcycle-related
training, education, or experience. [DE 306-2.] Woehrle has never tested any
component of a motorcycle other than tires. [DE 300-1 at 17.] Woehrle testified that he
also is not an expert in the design of TPMS for motorcycles, which is different than
TPMS for automobiles, and he has conducted no research into the scientific literature on
the topic. [DE 300-1 at 19.]
In addition to his lack of qualifications, Woehrle’s opinions regarding TPMS are
also not reliable because they are not based on scientifically valid methodologies.
Rather, it seems to me that they lack any basis beyond his own speculation. Woehrle’s
lack of knowledge and failure to learn any information that would be relevant to his
opinion tell the whole story. He admitted he didn’t know what challenges exist for
incorporating TPMS onto a motorcycle, and he didn’t conduct any research on the topic.
[DE 300-1 at 24.] He also didn’t conduct any research into the scientific literature on
TPMS for motorcycles. [DE 300-1 at 19.] He didn’t know the cost, and again he didn’t
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conduct any research to learn the answer. Woehrle knew that the National Highway
Traffic Safety Administration did not require TPMS to be installed on motorcycles.
However, he admitted that he did not know whether the NHTSA had ever looked into
this issue, and that he had “no idea” — beyond knowing that it wasn’t required —
“where they stand regarding their conclusions for regulation.” [DE 300-1 at 18.]
Incredibly, in a line of questioning seemingly directed at the feasibility of
Harley-Davidson including TPMS on a motorcycle in 2006, Woehrle stated that another
motorcycle manufacturer had included TPMS on its motorcycles for a few years. The
basis of this statement, however, was that someone (he couldn’t remember the name)
told him that. [DE 300-1 at 18.] Furthermore, when asked why there were no
motorcycles in 2006 that were equipped with TPMS, Woehrle replied “this is an
assumption on my part, but the issue was cost.” [DE 300-1 at 10 (emphasis added).] So he
effectively conceded that he was speculating. [DE 300-1 at 11.]
Most of the basis for his opinion is his assumption that, because cars have TPMS,
motorcycles should too. But this just conflates TPMS on motorcycles with TPMS on
automobiles — a topic that the Timms haven’t even argued that Woehrle is qualified to
testify about. For example, Woehrle couldn’t offer any information regarding what
device Harley-Davidson could have incorporated into the 2006 motorcycle. Instead, he
stated that his starting point, “without carefully examining it,” was to begin with what’s
on a passenger car. He testified “[l]ike I’ve had it on my passenger car for over a

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decade. And [] I would expect that to be a good starting point for someone like HarleyDavidson.” [DE 300-1 at 22.]
The fact that Woehrle drives a car that has been equipped with TPMS for decades
cannot possibly be a reliable way to know whether Harley-Davidson should have
installed TPMS on the Timms’ motorcycle or whether it was negligent for HarleyDavidson not to do so. Instead, taking all of this together, it strikes me that Woehrle is
offering “nothing but a bottom line,” which “supplies nothing of value to the judicial
process.” Zenith Elec. Corp. v. WHTV Broad. Corp., 395 F.3d 416, 419 (7th Cir. 2005).
The only other possible basis of his opinion is an experiment he conducted in
coordination with Dr. Lee. The details of this experiment are unclear, to say the least,
but I gather that they purchased an aftermarket TPMS device, installed it on a
motorcycle, and drove the motorcycle with the TPMS device around. [DE 300-3 at 4.]
This experiment shows only that an aftermarket TPMS device can work on a
motorcycle. This is clearly not relevant to the ultimate issue of whether HarleyDavidson should have equipped its motorcycle with TPMS, but I also don’t see how this
is relevant at all to any issue of fact presented in this case.
Based on Woehrle’s lack of qualifications related to motorcycles generally and
motorcycle TPMS in particular, and the lack of reliability in the methodologies he used
to form the basis of his opinion, Woehrle’s testimony regarding motorcycle TPMS fails
to meet the requirements of Rule 702 and the standard set forth in Daubert. It therefore
must be excluded.
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Dr. Daniel Lee
Goodyear has moved to exclude Dr. Lee’s opinion that the tire “hopped” due to
bead unseating, causing a loss of control, as well as his accident reconstruction
opinions, on the basis that these opinions are not reliable. The Timms notably did not
bother to respond to Goodyear’s motion. Instead, they responded only to HarleyDavidson’s motion to exclude Dr. Lee’s other opinion (related to TPMS), and they did
not address any of Goodyear’s arguments as to why Dr. Lee’s other opinions are
unreliable. I would be well within my discretion to exclude Dr. Lee on that basis alone,
as failure to respond to an argument typically results in waiver. See Bonte v. U.S. Bank
N.A., 624 F.3d 461, 466 (7th Cir. 2010). I will nonetheless consider Lee’s opinion.
Dr. Lee is a former police officer who has his doctorate degree in Driver and
Traffic Safety. For many years he was the Director of the Traffic Safety Program at
Michigan State University. Dr. Lee is also an accident reconstructionist, and he has a
number of opinions reconstructing the Timms’ accident. That’s all well and good, but
Dr. Lee strays well beyond his expertise when he starts talking about tires. Dr. Lee
opines that when a tire bead unseats, one half of the bead goes into the wheel well and
the other half of the bead extends upward above the wheel flange. According to Dr.
Lee, in our case, this is what caused the motorcycle to “hop” and Mr. Timm to lose
control.
In support, Dr. Lee points to a static stage exhibition test he and Woehrle
completed in another case. The details of this experiment are not entirely clear to me. In

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that test, Dr. Lee and Woehrle “had a motorcycle with [] one side of the tire debeaded to
show the lean angle from a debeaded tire on the rear.” [DE 298-1 at 35.] It was a static
test, meaning they were “moving forward at a slow speed to show the rise and fall of
the motorcycle in terms of going from the portion of the tire that’s in the wheel well.”
[DE 298-1 at 35.] But Woehrle and Dr. Lee did not have any photographs or
documentary evidence for this experiment. [DE 297-1 at 47-48.]
Apart from this one test, Dr. Lee has not performed or been involved in any
dynamic testing, i.e., a test replicating the actual conditions under which the bead
would have come unseated, and he cannot point to any dynamic testing performed by
anyone else, to identify what effect bead unseating would have on motorcycle
controllability. [DE 298-1 at 36]. He also can’t point to any other testing that supports
his opinion that bead unseating would cause a motorcycle to hop. [DE 298-1 at 36.] He
likewise cannot identify any scientific literature that supports his opinion [DE 298-1 at
36]; instead, his opinion is based, in part, on “common sense” [DE 298-1 at 48].
Even if I were convinced that Dr. Lee is qualified to render opinions about tires
and how they can unseat from a rim, his methodology fails to meet the Daubert
standard, in any event. The one test that Dr. Lee performed to validate his opinion was
developed purely for the purpose of testifying in another case. This cuts against the
reliability of the proposed testimony. See Fed. R. Evid. 702 Advisory Committee’s Note
(2000 Amendments) (suggesting another factor for courts to consider is whether the
testimony relates to matters growing naturally and directly out of research they have
21

conducted independent of litigation or developed expressly for purposes of testifying).
There also is no peer-reviewed or published material to support his theory that a bead
that unseats from the rim causes hopping, and this theory has apparently never been
tested.
I’ll move now to Dr. Lee’s opinions relating to TPMS which Harley-Davidson
seeks to exclude. It is telling that Dr. Lee’s original report makes no mention of TPMS
for motorcycles. [See DE 301-2.] What is even more striking is the fact that during his
deposition, he testified that he did not even know what TPMS is. [DE 301-1 at 3.] He
had heard of it before, but he could not say what it was. [DE 301-1 at 3-4.] He also did
not know whether the Federal Motor Vehicle Safety standards required TPMS on a
motor vehicle. [DE 301-1 at 4.] Yet, later in his deposition, Dr. Lee rendered the opinion
that motorcycles would be safer if they were equipped with TPMS and that every
manufacturer should have TPMS, but they don’t. [DE 301-1 at 5.] Despite this opinion,
Dr. Lee conceded he did not know of any particular motorcycle that was equipped with
TPMS, except he had “read somewhere where Honda’s coming out with – but I can’t
say for sure.” [DE 301-1 at 5.] He further testified that he had never seen a motorcycle
that had been equipped with TPMS. [DE 301-1 at 5.]
I am dubious of Dr. Lee’s qualifications on this topic. It is true that he has
significant experience with motorcycles in a general sense — he teaches civilian
motorcycle courses and courses concerning motorcycle accident reconstruction. He has
also helped develop courses and has provided motorcycle certification training related
22

to motorcycle operation. [DE 308-2, 308-3.] But he has no experience or training with
TPMS and none with motorcycle manufacturing or design. [DE 308-2.] It’s clear from
his deposition that he possesses no “scientific, technical, or other specialized
knowledge” relevant to TPMS. To the contrary, at one point, he admitted knowing
nothing about TPMS.
Harley-Davidson raised the issue of Dr. Lee’s qualifications regarding
motorcycle TPMS, but the Timms simply didn’t respond to those arguments, beyond
submitting Dr. Lee’s resume and another newly sworn affidavit, which HarleyDavidson has moved to strike. But even if I considered the affidavit, what it seems to
suggest is that Dr. Lee’s qualification is his ownership of several vehicles that are
equipped with TPMS. [DE 308-1.] Under that logic every single owner of a vehicle with
TPMS would be qualified to offer an expert opinion.
But even if his qualifications were sufficient, there are significant problems with
the reliability of his methodology. As with Woehrle, it’s not at all clear what the basis
of his opinion concerning TPMS is. Dr. Lee conducted one experiment that involved
TPMS on a motorcycle, which I explained above involved an aftermarket TPMS device
purchased from a retailer. There are a number of problems with this methodology, but
the biggest one is that even Dr. Lee admits that the purpose of this evaluation was not
to evaluate the TPMS. When asked “What tire pressure monitor did you evaluate in
conjunction with that lawsuit?”, Dr. Lee responded that “was not the purpose of
evaluating the monitoring system.” Rather, the TPMS was “there to warn us if we were
23

having a tire failure while we were testing. So no, I couldn’t even tell you the brand
name of it.” [DE 301-1 at 11.] Besides, this test was conducted for purposes of litigation,
a factor that again weighs against finding that his opinion is reliable. See Fed. R. Evid.
702 Advisory Committee’s Notes to 2000 Amendments; see also Smith v. I-Flow Corp.,
2011 WL 12556366, at *2 (N.D. Ill. May 3, 2011) (legitimate, preexisting research
unrelated to litigation provides “the most persuasive basis” for concluding that the
opinions the expert expresses were derived by the scientific method) (quoting Daubert v.
Merrell Dow Pharms., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995)).
Beyond this experiment, Dr. Lee offered absolutely no support, evidence, or
methodology to support his conclusion. His whole reasoning for his conclusion is that
because he owns several vehicles that have TPMS, the motorcycle should have it too. He
hasn’t pointed to any studies, scientific literature, experiments, or peer-reviewed
materials. This testimony is exactly the type of unsupported speculation that Rule 702
and Daubert is intended to protect against. Therefore, based on Dr. Lee’s lack of
motorcycle-related qualifications and the lack of reliability in his opinions, his
testimony as it relates to TPMS is not admissible.
Summary Judgment
With these rulings in mind, I turn now to the summary judgment motions filed
by Goodyear and Harley-Davidson. Summary judgment is proper if “there is no
genuine dispute as to any material fact and the movant is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute about a material fact exists only

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“if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this
determination, the Court construes “all facts and reasonable inferences from the record
in the light most favorable to [ ] the non-moving party.” Moser v. Ind. Dep’t of Corr., 406
F.3d 895, 900 (7th Cir. 2005).
The Indiana Products Liability Act (“IPLA”) governs all actions brought by a
user or consumer against a manufacturer for physical harm caused by a product,
regardless of the legal theory upon which the action is brought. Ind. Code. § 34-20-1-1;
Piltch v. Ford Motor Co., 778 F.3d 628, 632 (7th Cir. 2015). Under the IPLA, the plaintiff
must establish that “(1) he or she was harmed by a product; (2) the product was sold in
a defective condition unreasonably dangerous to any user or consumer; (3) the plaintiff
was a foreseeable user or consumer; (4) the defendant was in the business of selling the
product; and (5) the product reached the consumer or user in the condition it was sold.”
Bourne v. Marty Gilman, Inc., 452 F.3d 632, 635 (7th Cir.2006); see also Ind. Code §
34–20–2–1. The critical element is the second one — proving that the product is
unreasonably dangerous. A plaintiff can satisfy this element by showing a design
defect, a manufacturing defect, or a failure to warn. Piltch, 778 F.3d at 632.
Design Defect Claims
The Timms’ first claim is one for defective design. They allege that HarleyDavidson’s motorcycle is defectively designed because it lacked TPMS, and they allege

25

that the Goodyear tire is also defectively designed for reasons that are somewhat
unclear to me.1
Defective-design claims sound in negligence. Weigle v. SPX Corp., 729 F.3d 724,
734 (7th Cir. 2013). A party alleging design defect “must establish that the
manufacturer or seller failed to exercise reasonable care under the circumstances in
designing the product.” TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 209 (Ind.
2010) (quoting Ind. Code § 34–20–2–2). The “question is not whether it is possible for
something untoward to occur during an accident but whether the design creates
unreasonable danger according to general negligence principles.” Pries v. Honda Motor
Co., Ltd., 31 F.3d 543, 545 (7th Cir. 1994).
In addition to establishing that the product was defective, the plaintiff must also
establish that “the defective condition rendered the product ‘unreasonably dangerous.’”
Id. (citing Ind. Code § 34-20-2-1). “Unreasonably dangerous” is any situation in which
the product exposes the user to a risk of physical harm beyond that contemplated by
the ordinary consumer who purchases the product with the ordinary knowledge about
the product’s characteristics common to the community of consumers. Ind. Code § 346-2-146.
The Timms’ theory of defect, as it relates to the tire, is that excess flash and a thin
strip of chafer rubber caused the tire bead to become unseated. But these alleged

1

At the Daubert hearing, the Timms’ expert, Woehrle, acknowledged that, as
against Goodyear, this was really a case based on a manufacturing defect in the tire.
But the Timms’ complaint does allege design defect, so I will address that claim as well.
26

defects strike me as manufacturing defects, not design defects, because they are
departures from how the tire was designed. And the Timms don’t point to any
evidence to the contrary. Indeed, even the Timms’ own expert acknowledged this to be
the case. According to Woehrle’s testimony and report, the alleged defects – excess
flash and thin chafer rubber – are the results of the vulcanization process that occur
during the tire-making process. Woehrle stated that the bead flash “constitutes rubber
that did not end up where it was designed to be in this critical bead region of the tire.” [DE
306-1 at 36 (emphasis added)]. The excess flash is not supposed to be there and thus
has nothing to do with the design of the tire.
The Timms also claim that the Harley-Davidson motorcycle was defectively
designed and unreasonably dangerous because it should have been equipped with a
TPMS, which would have alerted Mr. Timm to the sudden loss of air in the tire. Their
theory is that, if he would have been alerted to the air loss, he could have immediately
and safely brought the motorcycle to a stop before he lost control. Thus, the Timms
have asserted a design defect claim against Harley-Davidson.
The Timms’ design defect claim against Harley-Davidson relies heavily on the
proposed testimony of its experts Woehrle and Lee. I have already excluded the
testimony of these experts as it relates to TPMS because it failed to comply the
requirements of Rule 702 and the Daubert standard. In light of this ruling, the record is
devoid of any expert evidence showing that the motorcycle was defectively designed.
Expert testimony is generally required where the issue is beyond the understanding of a
27

lay juror. Piltch, 778 F.3d at 632-34. Here, the issue of whether Harley-Davidson failed
to exercise reasonable care under the circumstances in designing the motorcycle
without TPMS is beyond the lay juror’s understanding because an ordinary juror would
have no knowledge as to the costs, benefits, and risks of developing and installing
TPMS on a motorcycle. They would be forced to rely upon pure speculation. Apart
from Woehrle and Lee’s testimony, there is no other evidence suggesting that the
motorcycle was defectively designed because it did not come with TPMS.
But let’s suppose that Woehrle and Lee’s testimony met the Daubert standard,
and I allowed this testimony. I would still find that the Harley-Davidson motorcycle
was not defectively designed simply because it did not have a TPMS. Just because the
inclusion of TPMS into the motorcycle would have made it safer does not mean that the
motorcycle was unreasonably dangerous or defectively designed without it. That’s
because “a manufacturer is under no duty to produce accident-proof products.” Short by
Southerland v. Estwing Mfg. Corp., 634 N.E.2d 798, 802 (Ind. Ct. App. 1994); Guerrero v.
Allison Engine Co., 725 N.E.2d 479, 482 (Ind. Ct. App. 2000). Rather, its duty is to
“design and build products which are reasonably fit and safe for the purpose for which
they are intended.” Short, 634 N.E.2d at 802. A product can often be made safer by the
introduction of some additional feature. Vehicles with rearview cameras and side
airbags are safer than those without them, much as bicycles with training wheels are
safer than those without. But it doesn’t necessarily follow that, because a product lacks
those additional safety features, it is necessarily unreasonably dangerous. Both Dr. Lee
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and Mr. Woerhle tacitly acknowledged this principle when they declined to say that a
motorcycle without TPMS was defective, unsafe or unreasonably dangerous. [DE 300-1
at 14; DE 301-1 at 709.]
There are also allegations that the motorcycle rim may have been defective. But
without Woehrle’s opinions, there is no evidence supporting this allegation. In all
events, Woehrle never actually opined that the rim was defectively designed. In fact, he
said the opposite. [DE 302-1 at 5.] Woehrle did not criticize Harley-Davidson for
selecting the Goodyear tire, and he stated that the rim and tire combination, setting
aside any alleged manufacturing defect in the tire, was actually a reasonably safe
combination. [DE 302-1 at 4.] He opined that it was reasonable for Harley-Davidson to
recommend the tire for the Timms’ motorcycle. [DE 302-1 at 7.] Woehrle also conceded
that the rim complied with specifications called for by the Tire and Rim Association [DE
302-1 at 3], and that the rim had been approved by the Tire and Rim Association for use
with the specific Goodyear tire at issue in this case. [DE 302-1 at 4.] So any claim of a
design defect in the motorcycle rim is simply unsupported by any evidence.
Failure to Warn Claim
The Timms next allege various claims of failure to warn against Harley-Davidson
and Goodyear. Claims of failure to warn are also evaluated under a negligence
standard. Under the IPLA, a product is defective “if the seller fails to: (1) properly
package or label the product to give reasonable warnings of danger about the product;
or (2) give reasonably complete instructions on proper use of the product; when the

29

seller, by exercising reasonable diligence, could have made such warnings or
instructions to the user or consumer.” Weigle, 729 F.3d at 731 (quoting Ind. Code
§ 34–20–4–2). “Under Indiana law, there is a duty to warn reasonably foreseeable users
of all latent dangers inherent in the product’s use.” First Nat. Bank & Trust Corp. v. Am.
Eurocopter Corp., 378 F.3d 682, 690 (7th Cir. 2004) (internal quotation marks and citations
omitted).
The IPLA does not require that the plaintiff show a design defect as a
prerequisite to establishing a duty to warn, Ritchie v. Glidden Co., 242 F.3d 713, 724 (7th
Cir. 2001), as a product may be defective because of the inadequate warnings, Natural Gas
Odorizing, Inc. v. Downs, 685 N.E.2d 155, 161 (Ind. Ct. App. 1997). The duty to warn is
twofold: “(1) to provide adequate instructions for safe use and (2) to provide a warning
as to dangers inherent in improper use.” Rushford, 868 N.E.2d at 810. “No additional
warnings need to be furnished where such warnings would not supplement the user’s
understanding of the nature and characteristics of the product.” Weigle, 729 F.3d at 733.
The Timms suggest that both Harley-Davidson and Goodyear should have
warned them about the alleged defects present in the tire, i.e., the excess flash and thin
strip of chafer rubber, and of the possibility that the bead could become unseated. With
or without an expert, the Timms offered no evidence or opinions as to what a warning
should have said, what format a warning should have taken, or where it should have
been placed. This type of evidence is indispensable to their claim. Nissen Trampoline Co.
v. Terre Huate First Nat’l Bank, 358 N.E. 2d 974, 978 (Ind. 1976). Woehrle himself
30

admitted that he was offering no opinions as to warnings in this case [DE 320-1 at 2], so
even if he had been permitted to testify, there is still is no evidence supporting a failure
to warn claim.
The Timms also claim that Harley-Davidson and Goodyear had a duty to warn
them about past catastrophic accidents wherein a Harley-Davidson motorcycle
equipped with a Dunlop D402 tire suddenly deflated, went out of control, and crashed,
resulting in serious injury or death to the motorcyclist. Mr. Timm claims that if he
would have known of these reported cases of the failure of the tire, he would have
chosen a different tire for his motorcycle. But Indiana law can’t possibly require a
manufacturer to warn consumers about every single accident or injury that’s ever
occurred in connection with the product. It’s well-established that there is no duty to
warn just because a product might conceivably cause injury. Ritchie, 242 F.3d at 724.
The duty under Indiana law is to warn of a product’s latent dangerous characteristics.
Id. Unsubstantiated allegations that some tires have suddenly deflated and caused
serious injury to motorcyclists – which it’s not even clear has anything to do with the
defects the Timms allege caused their accident – do not suffice to show a latent
dangerous characteristic present in the tire for which Goodyear and Harley-Davidson
had a duty to warn. In any event, the Timms again did not provide the indispensable
information as to what the warnings should have looked like.
Manufacturing Defect Claim

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Finally, the Timms claim that the tire was defectively manufactured. As I
previously explained, their theory is that there was excess flash in the bead area which
caused rubber to pull away from the chafer strip. The excess flash and the thin chafer
strip diminished the bead’s resistance to unseating, which caused the bead to unseat in
conditions in which one would normally expect the bead to stay put. When the bead
unseated, one half of the tire went into the wheel well and the other half of the bead
extended upward above the wheel flange. This caused Mr. Timm to lose control of the
motorcycle, resulting in the crash.
To demonstrate a manufacturing defect, the plaintiff must show that the product
deviates from its intended design. Piltch, 778 F.3d at 633. Expert testimony is often
required because the issue of whether a product deviates from its intended design is
typically outside of the understanding of a lay juror. Id.
As an initial matter, the Timms allege that both Goodyear and Harley-Davidson
are liable for this alleged manufacturing defect. Liability against Harley-Davidson
appears to be based on the fact that Harley-Davidson imprints its logo on the D402 tire.
The Timms do not allege that they purchased the tire through Harley-Davidson
(although, they do allege that Harley-Davidson offers the same tire for sale), and they
do not allege any facts, or present any evidence, suggesting that Harley-Davidson
manufactured the tire. In fact, they state that this tire was a replacement tire, not the
original one that came with the motorcycle they purchased.

32

All of this is neither here nor there because summary judgment is appropriate on
the Timms’ manufacturing defect claim anyway. As noted earlier, Woehrle’s opinions
as to the supposed manufacturing defect are unsupported by any indicia of reliability as
set forth in Daubert. Without expert testimony, the jury would be forced to speculate as
to what caused the accident and what may have been wrong with the tire – an issue
outside the understanding of an ordinary person. This is impermissible. See Piltch, 778
F.3d at 633. The Timms have no other evidence that there was a manufacturing defect
that proximately caused their injuries. So summary judgment is required on the
manufacturing defect claim as well.
Miscellaneous Other Claims
Finally, the Timms bring two additional claims against both Goodyear and
Harley-Davidson that fail for the same reason — they are not causes of action that are
recognized under Indiana law. First, the Timms allege that Goodyear and HarleyDavidson had a duty to cease manufacturing and distribution of the tires and to recall
the defective tires already sold. Relatedly, the Timms claim that the defendants
negligently failed to recall the tires. However, there is no cause of action under Indiana
law for failure to recall. See Tober v. Graco Children’s Prods., Inc., 2004 WL 1987239, at *9
(S.D. Ind. July 28, 2004) aff’d 431 F.3d 572, 579 (7th Cir. 2005); see also Fowler v. Werner
Co., 2014 WL 2605341, at *3 (N.D. Ind. June 10, 2014).
Second, they seem to allege that Goodyear and Harley-Davidson failed to
comply with regulatory requirements. As was the case with the claims against the

33

helmet defendants, the Timms cite to the IPLA as the basis for this claim. Although the
Timms don’t cite to it, it is true the IPLA contains a provision that provides a rebuttable
presumption that a product was not defective, and the manufacturer is not negligent, if
the product conformed with applicable codes, standards, and regulations. Ind. Code
§ 34-20-5-1. There is, however, no rebuttable presumption cutting the other way. In
other words, although a defendant gets a presumption when its product complies with
applicable standards, a plaintiff doesn’t get the benefit of a presumption when a
product doesn’t comply with an applicable standard. And anyways, the Timms also
haven’t produced any evidence that defendants didn’t in fact comply with the
regulations to which they are subject. Finally, to the extent that the Timms are alleging
this is a separate cause of action, they do not cite to any provision of law or any case
recognizing a private right of action.
For all of the foregoing reasons, summary judgment on all of the Timms’ claims
must be granted.
Conclusion
Defendant Goodyear Dunlop Tires North America Ltd.’s Motion in Limine to
Exclude Testimony of William Woehrle [DE 297] is GRANTED.
Defendant Goodyear Dunlop Tires North America Ltd.’s Motion in Limine to
Exclude Testimony of Dr. Daniel Lee [DE 298] is GRANTED.
Defendant Goodyear Dunlop Tires North America Ltd.’s Motion for Summary
Judgment [DE 292] is GRANTED.

34

Defendant Harley-Davidson Motor Company Group LLC’s Motion in Limine to
Exclude Opinion Testimony of William Woehrle [DE 300] is GRANTED.
Defendant Harley-Davidson Motor Company Group LLC’s Motion in Limine to
Exclude Opinion Testimony of Daniel Lee [DE 301] is GRANTED.
Defendant Harley-Davidson Motor Company Group LLC’s Motion for Partial
Summary Judgment [DE 302] is GRANTED.
Defendant Harley-Davidson Motor Company Group LLC’s and Goodyear
Dunlop Tires North America Ltd.’s Rule 56 Motions to Strike [DE 317, 321] are DENIED
AS MOOT.
Defendant Harley-Davidson Motor Company Group LLC’s Motion to Strike
Plaintiffs’ Untimely Affidavit of Daniel Lee [DE 323] is DENIED AS MOOT.
SO ORDERED.

ENTERED: March 29, 2018.

/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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