McAllister-Lewis v. Goodyear Dunlop Tires North America, LTD. et al

Filing 116

MEMORANDUM OPINION AND ORDER granting in part and denying in part 66 Motion to Exclude; granting in part and denying in part 68 Motion to Exclude; granting in part and denying in part 70 Motion to Exclude; denying 79 Motion to Exclude. Signed by U.S. District Judge Lawrence L. Piersol on 5/19/2017. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

may 1 9 2017

SOUTHERN DIVISION

JUDITH McALLISTER-LEWIS,

*

individually, and as Special Administrator

*

CIV 14-4103

ofthe Estate of Robert L. Lewis, Deceased, *
>|C

Plaintiffs,

*
MEMORANDUM OPINION
AND ORDER RE MOTIONS

GOODYEAR DUNLOP TIRES

TO EXCLUDE OPINIONS,
DOCS.66, 68, 70, 79

NORTH AMERICA,LTD., an Ohio

limited liability company; and
THE GOODYEAR TIRE & RUBBER

COMPANY,an Ohio corporation.
Defendants.
******************************************************************************

Pending before the Court are four Motions to preclude the testimony of various proposed

expert witnesses. Doc. 66, and related pleadings, moves to Strike and Exclude Opinions of
Defendants' Expert,Kevin Breen. Doc.68,and related pleadings,is Plaintiffs' Motion to Strike and
Exclude the Opinions of Defendants' Expert, Joseph Dancy. Mr. Dancy is also the Rule 30(b)(6)

representative for Defendants. Next, Plaintiffs move to Exclude Opinions of Defendants' Expert,
Chuck Patrick, Doc. 70, an employee of Defendants. Finally, Defendants in Doc. 79 and related
documents move to Exclude the Opinion of one of Plaintiffs' experts, William Woehrle.

A summary ofthe facts is that PlaintiffJudith McAllister-Lewis was a passenger on the 2003

Harley-Davidson Ultra Classic Electra Glide Motorcycle being driven by her husband,the decedent,
Robert L. Lewis. While traveling west on Interstate 90 in South Dakota on August 7,2010,the rear
tire failed. The tire was manufactured by Goodyear Dunlop Tires France ("GDTF"), a non-party.

The decedent lost control of the motorcycle and died as a result of the injuries from the resulting

crash. Judith McAllister-Lewis also suffered injuries from the crash. Ms. McAllister-Lewis and her

husband were traveling to the Sturgis Motorcyele Rally in western South Dakota and were pulling
a two wheel trailer that had a cooler affixed to the tongue ofthe trailer ahead ofthe box on the trailer.

LEGAL STANDARD

The admission ofexpert testimony is governed by Rule 702 ofthe Federal Rules ofEvidence
and the principles set forth by the Supreme Court in Daubert v. Merrell Dow Pharm., Inc. 509 U.S.
579,113 S.Ct.2786,125 L.Ed.2d469(1993)andKumho Tire Co. Ltd. v. Carmichael,526 U.S. 137,

119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). As sueh, a district court is required to determine, as a
threshold matter, whether the expert would testify to valid scientifie knowledge, and whether that

testimony would assist the trier offact with a fact at issue. Rule 702"imposes a special obligation
upon a trial judge to 'ensure that any and all scientifie testimony ... is not only relevant but
reliable.'" Kumho,526 U.S. at 147,119 S.Ct. 1167(quoting Daubert,509 U.S. at 589,113 S.Ct.

2786). When applying Rule 702, the trial court functions as a "gatekeeper" whose role is "to keep
experts within their proper seope,lest apparently scientific testimony carry more weight with thejury
that it deserves." DePaepe v. General Motors Corp., 141 F.3d 715, 720(7th Cir. 1998).

To determine the admissibility ofexpert testimony pursuant to Rule 702,the Daubert Court
suggested four non-exclusive factors that can be used to assess the relevancy and reliability of an
expert's testimony. The facts include:

(1) whether the theory or technique can be (and has been) tested;(2) whether the
theory or technique has been subjected to peer review and publication;(3)the known
or potential rate oferror and the existence and maintenance of standards controlling
the technique's operation; and (4) whether the technique has achieved general
acceptance in the relevant scientific or expert community.
Daubert,509 U.S. at 593-94,113 S.Ct. 2786. The list offactors "is not considered to be definitive

nor exhaustive, but rather flexible to account for the various types of potentially appropriate expert
testimony." Kumho,526 U.S. at 137, 119 S.Ct. 1167.

The initial question is whether the testimony ofeaeh ofthese four expert witnesses is reliable.

In analyzing the reliability of proposed expert testimony, the role of the court is to first determine
whether the expert is qualified in the relevant field and if so, only then the Court examine the

methodology used by the expert in reaching his conclusions. Kumho, 526 U.S. at 153, 119 S.Ct.
1167.

ARE THE EXPERTS QUALIFIED TO GIVE
ANY EXPERT TESTIMONY IN THIS CASE

The qualifications ofthese four experts do vary. All are in one way or another qualified by
experience and training to testify as experts in this case. Witnesses Breen and Woehrle do not have

work experience in the actual manufacture of tires. That experience is not necessary in order to
testify in this case as there is other training and experience which qualifies those experts to testify.
Witness Woehrle has adequate tire training and experience to testify as an expert on tires as well as
on accident reconstruction. William Woehrle was also found to be qualified to testify in another

motorcycle bias ply tire blow out case. McLoud v. Goodyear Dunlop Tires North America, Ltd.,479
F.Supp.2d. 882(C.D. 11. 2007).

The tire in question was a bias ply tire as opposed to a radial tire. It has not been shown that

general bias ply tire considerations differ significantly from motorcycle bias ply tire application.
Accordingly, the Court finds that Woehrle, Patrick and Dancy are qualified by training and
experience to give expert opinion regarding the tire involved in bias ply tire failure that is the subject
ofthis lawsuit. Mr. Woehrle and Mr. Breen are both qualified to testify as accident reconstruction
expert witnesses.

None ofthe four experts in question are qualified to nor claim to give adequacy of warning
opinions. In most instances,including this case, under applicable South Dakota law,expert opinion

is required for negligent failure to warn and strict liability failure to warn cases. Donat v. Trek
Bicycle, 2016 WL 297436(D.S.D. 2016). In cases where there is no warning ofdanger at all, or the
warning is patently inadequate, expert testimony on failure to warn might not be necessary. That is
not the case here as there are wamings in this case that are not clearly or patently inadequate. There

is some question as to what exactly the wamings were, although the substance of either version is
do not pull a trailer behind your motorcycle and pay attention to tire condition and inflation with the

tires fully inflated to 40 p.s.i. if heavily loaded and that maximum load is indicated on the sidewall
of the tire. There would have to be testimony from a qualified expert explaining how each of the
wamings or inadequate wamings included with the tire was the legal cause ofthe death and injuries.
Burley v. Kytec Innovative Sports Equipment, I'M N.W. 2d 397,411 (S.D. 2007).

METHODOLOGY USED BY THE WITNESSES

The Court will now comment upon the methodology used by each witness and also indicate
some areas in which a witness will be precluded from giving an expert opinion.

Dancy,Patrick and Woehrle each used a visual and tactile inspection ofthe failed tire as the
primary basis for his conclusions. This included measurements. An expert can "draw a conclusion
from a set of observations based on extensive and specialized experience." Kumho,526 U.S. 137,
156(1999).

As in Kumho, the trial court here has to decide whether these particular experts have

sufficient expert knowledge in assisting the jurors in deciding the specific issues in this case. Each
ofthese experts do have sufficient specialized knowledge to assist the jurors in deciding the issues
in this case. The Court does not have to determine which opinion is correct. The Court does
conclude that there is sound basis for each conclusion. The fact that the experts differ in some

conclusions is why we have jurors. The Court has to prevent "junk science" or inadequately

supported expert opinions from coming before thejury. Thejurors will make their own conclusions
as to conflicting facts as well as to conflicting opinions and thus be assisted in reaching their verdict.

Doc. 66. Plaintiffs' Motion to Strike and Exclude Opinions of Defendants' Expert. Kevin Breen.

Mr. Breen is qualified to state his opinions that are his findings as stated on the twelfth page
of his report. Although not a part of his Findings, Mr. Breen also stated at the top of page 12 of his
report,"In this crash event, the loss of air in the rear tire could have been controlled using proper

driving techniques." There has been an inadequate basis shown for Mr. Breen to state that opinion
if he would attempt to do so and he is preeluded from testifying to that opinion which the Court

views as speeulative given the addition of the trailer and its eontents in this incident.

In addition, there is an inadequate basis for Mr. Breen to state an opinion as to the adequacy
ofthe warnings as to motorcycles towing trailers. Accordingly,that portion ofthe motion to strike
his testimony is granted. However, what the Harley Davidson Owner's Manual for this motorcyele
and the literature for this tire states concerning towing a trailer are facts that can come into evidence.

Mr. Breen has tried to approximate the static weights that were involved. Plaintiffs urge this
his recreation is speculative. The attempted recreation is not exact, but that attempt at recreation of
the incident will be helpful to the jury. The fact that the weights are approximate and static as

opposed to dynamic and also involved estimation as to the amount and location of some of the
weights is fertile ground for cross-examination.

Doe.68. Plaintiffs' Motion to Strike and Exclude Opinions of Defendants' Expert. Joseph Dancv.

Joseph Dancy may state his opinions as expressed in his report. Joseph Dancy also testified
in his deposition that the tire in question was manufactured at a facility in France and that the
manufacturing process was somewhat different than the process used in Buffalo, New York. That
statement was not a part of Mr. Dancy's initial report. However, Mr. Dancy may testify to the

manufacturing process used on this tire in France and as a result, his opinion that this tire could not
be subject to the defect claimed by Plaintiffs' expert witnesses. Joseph Dancy has not and may not
offer any opinions concerning the adequacy of any warnings, no basis by either training or
experience having been shown for giving any such opinions.

Doc. 70. Plaintiffs' Motion to Strike and Exclude Opinions of Defendants' Expert. Chuck Patrick.

Plaintiffs object to Mr. Patrick's opinion claiming they are "entirely duplicative of Dancy's

opinion." There is a good deal of repetition and cumulative evidence should be avoided at trial.
There are other opinions of Mr.Patrick that are not duplicative ofJoseph Dancy's opinions and Mr.

Patrick can testify as to those opinions. However, Mr.Patrick has shown no basis by either training

or experience for providing opinions concerning the adequacy of any warnings and he has not and
may not offer expert opinions concerning the adequacy of any warnings.

Doc. 79. Defendants' Motion to Exclude Opinion of Plaintiffs' Expert William Woehrle.

Finally, with regard to Defendant's Motion to Exclude the Testimony of Plaintiffs' expert,
William Woehrle, the Motion is denied. Mr. Woehrle qualifies as a tire expert and an accident

reconstruction expert. The Motion is based in part upon the fact that Mr. Woehrle initially was not
aware that the tire in question was manufactured in a not insignificantly different method by the
French facility, Goodyear Dunlop Tires France. The factthat the tire was manufactured in a different

method by the French facility was made clear in Joseph Dancy's deposition. Defendants claim that
Woehrle should have been aware of that fact from previous discovery disclosures made by

Defendants. As a result of that claim by Defendants, they have moved to strike a supplemental

affidavit filed by William Woehrle. The Woehrle Affidavit deals with the different French

manufacturing process used on this tire. The French manufacturing process is different than the
process used to produce this same model tire at the Buffalo, New York plant of a Defendant. Due
to the fact that it is not clear to the Court that Mr. Woehrle should have been aware of that different

French manufacturing process prior to Joseph Dancy's deposition, the Court denies Defendants'
Motion to Strike Mr. Woehrle's Affidavit, which is Doc. 91-2, filed January 19, 2017.

Mr. Woehrle has not and may not offer any opinions concerning the adequacy of any

warnings, no basis by either training or experience having been shown for giving any such expert
opinions.

The Court recognizes that the rated load capacity for the tire is 908 pounds. FMVSS 119

requires that such a motorcycle tire be durability tested at loads that reach 117% of the rated load
capacity and not fail. Mr. Woehrle then opines that even with a load over the rated capacity of908
pounds, there should not have been a catastrophic failure of the tire. Defense witnesses opine
otherwise. The expression of and explanation of reasons supporting those conflicting expert

opinions will be helpful to the jury in deciding if Plaintiffs proved a tire defect that was the
proximate cause ofthe death and injuries.
Accordingly,
IT IS ORDERED:

1.

That Plaintiffs' Motion to Strike and Exclude Opinions of
Defendants' Expert, Kevin Breen, Doc. 66, is granted in part and
denied in part as stated above.

2.

That Plaintiffs' Motion to Strike and Exclude Opinions of
Defendants' Expert, Joseph Dancy, Doc. 68, is granted in part and
denied in part as stated above.

3.

That Plaintiffs' Motion to Strike and Exclude Opinions of
Defendants' Expert, Chuck Patrick, Doc. 70, is granted in part and
denied in part as stated above.

4.

That Defendants' Motion to Exclude Opinion of Plaintiffs' Tire
Expert William Woehrle, Doc.79, is denied.

lis l<?

Dated this \h day of May,2017.
BY THE COURT:

yXXihWUj-.
Cawrence L. Piersol

United States District Judge

ATTEST:

JOSEPH HAAS,CLERK

De^ty