Cone et al v. Hankook Tire Company, Ltd., et al

Filing 268

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 ). Signed by Chief Judge J. Daniel Breen on 1/19/17. (Breen, J.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
LISA C. CONE, attorney in fact and next friend of
TIMOTHY H.L. FRAZIER, and TIMOTHY H.L.
FRAZIER, individually,
Plaintiffs,
v.

No. 14-1122

HANKOOK TIRE COMPANY, LTD.,
Defendants.
_____________________________________________________________________________
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.

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Defendant filed the instant motions on June 22, 2016, (D.E. 204 & 205), and Plaintiffs
filed responses on July 6, 2016 (D.E. 219 & 221). On January 13, 2017, Hankook filed a motion
requesting leave to file a consolidated reply to Cone and Frazier’s responses. (D.E. 267.)
Defendant did not explain its gross delay in seeking to file a reply, and the Court sees no reason
to grant the untimely request. Accordingly, that motion is DENIED.

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 and

2

methodology 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 whether

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the 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 or
2

The “companion tire” was on the right, front wheel at the time of the accident. The tire
that suffered the tread separation was in the left, front position.
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rubber 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 crossexamine 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 premature

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structural 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 belt could lead to tire failure. Hankook
takes issue with the fact that there is no publicly available testing that supports his theory. But,
as the United States Supreme Court recognized in Kumho,
Engineering testimony rests upon scientific foundations, the reliability of
which will be at issue in some cases. In other cases, the relevant reliability
concerns may focus upon personal knowledge or experience. . . . [T]here are
many different kinds of experts, and many different kinds of expertise.
526 U.S. at 150. An expert can “draw a conclusion from a set of observations based on
extensive and specialized experience,” and “tire abuse may often be identified by qualified
experts through visual or tactile inspection of the tire.” Kumho, 526 U.S. at 156. Southwell
6

based his opinion on his observation of the tire along with his experience in the tire industry,
including time spent studying the cause of tire failures. The expert’s methodology appears to be
similar to that employed by other experts in the field. See Whitten v. Michelin Am. Research &
Dev. Corp, No. 05-2761-JPM/TMP, 2008 WL 2943391, at *4 (W.D. Tenn. July 25, 2008)
(accepting expert’s tire failure analysis opinion based on general industry experience and
inspection of subject tire); Cunningham v. Michelin N. Am., Inc., No. 04-1144-T/An., 2006 WL
5499281, at *4 (W.D. Tenn. Aug. 17, 2006) (finding tire expert’s method of visual inspection
coupled with industry experience was reliable). Accordingly, this opinion is admissible and
Hankook’s motion is DENIED on this ground.
b. Skim coat gauge
Southwell also attributed the tire’s failure in part to an inadequate skim coat gauge. The
expert explained that the skim coat is the rubber layer into which steel cords are embedded. As it
rolls, components within a tire move and cause stress and strain, which is deflected within the
rubber skim coat. Thus, ensuring that the coat has the correct gauge is important—if the gauge is
too thin, there is insufficient material to disburse the energy, but if the gauge is too thick, more
heat is generated and contained in the tire, affecting its durability. Southwell opined that the
skim coat gauge in the subject tire was insufficient. However, he admitted in his report that the
nature of the tire’s failure “preclude[d] the possibility of measuring with anywhere near the
required degree of accuracy the gauge of belt skim coat in the failed tire” or identifying “the
degree of skim coat gauge variation that may have existed in the tire from the time it was
manufactured.” (D.E. 221-1 at PageID 6714.) Nevertheless, he opined that there were “signs
that the belt skim coat may have been of insufficient gauge.” (Id.) Southwell based this

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conclusion on observations that there were exposed cords adjacent to areas of covered cords,
changes in “fracture surface texture,” and isolated patches of exposed cords. (Id.) But, he
concluded that “it [was] difficult on this basis alone to be totally confident that skim coat
inadequacy was in fact evident in the tire prior to its failure.” (Id. at PageID 6715.)
When questioned about this particular opinion in his deposition, Southwell testified that
he could not quantify what the skim coat gauge should have been or what it actually was. He
agreed that, of the several defect theories offered, he was least confident in his opinion about the
skim coat gauge. The expert estimated there was “at least a [fifty] percent probability that” the
defect existed in the tire. (D.E. 221-4 at PageID 7060.)
Hankook argues that this opinion should be excluded because it is not supported by
sufficient evidence. The Court agrees with Defendant. An expert’s opinion must “rest[] upon a
reliable foundation, as opposed to . . . unsupported speculation.” Visteon Global Techs., Inc. v.
Garmin Int’l, Inc., Case No. 10-cv-10578, 2016 WL 5956325, at *14 (E.D. Mich. Oct. 14, 2016)
(quoting In re Scrap Metal Antitrust Litig., 527 F.3d 517, 529-30 (6th Cir. 2008)). In both his
report and deposition, Southwell stated that it was not possible to measure the gauge of the skim
coat on the subject tire or even to say what it should have been. Although he identified several
“signs” that supported this defect theory, he noted that it was “difficult on this basis alone to be
totally confident” that the skim coat gauge was inadequate. (D.E. 221-1 at PageID 6715.)
Despite this, he ultimately opined that the gauge was insufficient.
Plaintiffs aver that Southwell’s opinion “is based on his experience and observations of
thousands of tires over the past [twenty-five] years in the tire industry.” (D.E. 221 at PageID
6695.) Cone and Frazier contend that this defect is one of many, which “tends to show that there

8

were serious errors made in the overall construction of the tire . . .” and “bolsters his conclusions
in this case.” (Id. at PageID 6696.) The Court does not doubt that Southwell has extensive
knowledge of tires, but his opinion about the skim coat gauge in this case is simply too
speculative. The expert candidly, and repeatedly, stated that he could not measure the skim coat
gauge in the subject tire and that he was not “totally confident” that this defect existed prior to
the tire’s failure. (D.E. 221-1 at PageID 6715.) Although he identified “signs” that he said
supported his theory, he acknowledged it was “difficult” to opine on the gauge of the skim coat
based only on those signs. (D.E. 221-1 at PageID 6714.) Accordingly, the motion to exclude
Southwell’s opinion in this respect is GRANTED.
c. Component adhesion
Southwell also offered an opinion that the tire was manufactured with “excessively aged
components,” which led to “reduced tack and component adhesion.” (D.E. 221-1 at PageID
6735.) He based this conclusion on the appearance of liner pattern marks on the tire’s skim coat.
Southwell explained that a liner is placed between rolls of uncured rubber to keep the
components from adhering. The liner is removed before the tire undergoes the vulcanization
process. During this process, heat and pressure are applied, causing the rubber to soften, and
“any residual liner impression is normally obliterated as the adjacent components are chemically
bonded.” (Id. at PageID 6722.) According to the expert, liner pattern marks that appear in a
fully vulcanized tire indicate that the components were subjected to improper “storage duration
and conditions.” (Id. at PageID 6723.) This alleged defect ultimately resulted in “substandard
adhesion between the [tire’s] belts,” which, the expert opined, contributed to the tread belt
separation. (D.E. 221-4 at PageID 7073.)

9

Southwell testified in his deposition that he conducted testing on the correlation between
liner pattern marks and tire failure while he worked at Bridgestone. He explained that a “peel
test” was used to measure the force required to peel the components in a tire apart, which
allowed him to “evaluate[] the adhesion between the components . . . .”

(Id. at PageID

7073,7074.) The “peel strength” of tires with liner pattern marks was then compared to those
without marks, and the expert determined that the peel strength of the tires with liner marks was
reduced by seventy percent. (Id. at PageID 7074.)
Defendant seeks to exclude this opinion on the basis that it is “at odds with peer-reviewed
literature” and is unsupported “by reliable testing or objective data.” (D.E. 204-1 at PageID
3690.) Plaintiffs respond that the expert relied on his engineering background and extensive
knowledge of the tire manufacturing process. They note that Southwell personally conducted
testing related to this defect while employed by Bridgestone and that his report cited “numerous”
authorities on the importance of proper bonding. (D.E. 221 at PageID 6688.)
Again, the Court concludes that Plaintiffs have met their burden of showing this evidence
is admissible. Southwell has provided a detailed explanation of the process that leads to liner
pattern marks and tied that to his theory that this was a defect that led to the tread separation by
identifying areas of the subject tire where marks are apparent. While employed by a tire
manufacturer, he conducted testing that he says supports his theory. Defendant may be able to
point to sources that disagree with the expert’s conclusions, and Hankook will have an
opportunity to cross-examine him in that regard, but the opinion is admissible. Therefore, the
motion is DENIED in this respect.

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d. Belt misalignment
In his report, Southwell stated that “[a]chieving accurate placement of each of the steel
belts when building a tire is essential to its durability when placed into service.” (D.E. 221-1 at
PageID 6726.) He reviewed x-ray images of the tire, which “reveal[ed] significant visible
variation in belt alignment.” (Id. at PageID 6727.) In his experience, the variation was “outside
reasonable manufacturing quality assurance limits and would most certainly have contributed to
non-uniform stress distributions” in the tire. (Id.) Southwell opined that this “substantial stress
concentration” led to “accelerated fatigue” of the tire’s components and “ultimately contributed
to its catastrophic failure.”

(Id. at PageID 6729.)

According to the expert, the failure

“commenced between the second and third belts but was initiated by the . . . misplacement of the
first belt on the body ply.” (D.E. 221-4 at PageID 7057.)
Defendant objects to the expert’s testimony regarding belt misalignment, arguing that
Plaintiffs’ other tire failure expert, Troy Cottles, did not observe a belt defect in the same area as
Southwell. Thus, says Hankook, “it is possible that Mr. Southwell misinterpreted this x-ray and
that his opinion regarding the main cause of the accident, therefore, is incorrect.” (D.E. 204-1 at
PageID 3693.) However, this is not a proper ground for challenging an expert’s opinion.
Whether Southwell’s opinion is correct is a matter to be resolved by the jury. The fact that Cone
and Frazier’s experts disagree on this point goes to the weight, not the admissibility, of their
respective opinions.
Defendant also takes issue with the methodology employed by Southwell. Hankook
contends that x-rays have “limitations as analytical tools,” a fact it says the expert

11

acknowledged,3 and suggests that this explains the difference of opinion between Cottles and
Southwell.

(D.E. 204-1 at PageID 3693.)

Southwell based his opinion regarding the

misalignment of the belt on “an understanding of the stresses that are introduced into a rolling
tire and how they[ are] distributed through the crown of the tire.” (D.E. 221-4 at PageID 7058.)
In his report, the expert provided a detailed explanation of the role of belt placement in the tire’s
long-term durability accompanied by graphics, x-rays, and photographs of the subject tire. (See
D.E. 221-1 at PageID 6725-29.) As noted above, experience can serve as an adequate basis for
an expert opinion. After careful review, the Court concludes that Cone and Frazier have shown
that Southwell’s opinion is reliable in this regard and will aid the jury in its understanding of this
particular issue. Accordingly, Hankook’s motion in limine is DENIED on this ground.
e. Alternative causes of tire’s failure
Finally, Defendant requests exclusion on the basis that Southwell did not rule out
alternative causes for the tire’s failure. A failure to consider alternative causes may be grounds
for declining to certify an expert. Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521,
527 (6th Cir. 2012). However, the expert’s report reflects that he considered “cut/chip damage
and ‘stone drilling’ that [was] evident on both” the subject tire and its companion. (D.E. 221-1 at
PageID 6734.) He acknowledged that manufacturing defects are not the sole cause of all tire
failures, but he ruled other causes out in this present case, finding that “no service condition
anomalies [could] account for the very clear evidence borne by the subject tire that indicate[d]

3

The Court reviewed the portion of the transcript cited by Hankook on this point, (see
D.E. 204-5 at PageID 3829), but did not find any discussion of x-ray methodology or its
limitations.
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very clearly a range of defects in its manufacture . . . .”

(Id.)

Accordingly, Southwell

appropriately considered other causes of the tire’s failure. This argument is without merit.
2. Opinion of Troy Cottles
Hankook also seeks exclusion of Troy Cottles’s expert opinion regarding the cause of the
subject tire’s failure. (D.E. 205.) Cottles obtained a degree in mathematics with a minor in
physics. After working in the tire and rubber industry for seventeen years, he was promoted to
technical director of tire development for Goodyear-Dunlop Tires. He has been employed as a
forensic tire failure analyst and tire design and manufacturing consultant since 2005. Cottles has
previously been admitted as an expert in tire failure analysis in a number of cases. See, e.g.,
Vega v. Ford Motor Co., No. EP-11-CA-450-FM, 2013 WL 6147558, at *1-2 (W.D. Tex. Mar.
27, 2013); Stallings v. Michelin Am. Research & Dev. Corp., No. 1:07-CV-2497-RWS, 2010 WL
966865, at *2-4 (N.D. Ga. Mar. 12, 2010); Whitten, 2008 WL 2943391, at *2-4.
In the present case, Cottles has offered his opinion that the following three manufacturing
defects led to a tread separation in the subject tire: inadequate bonding, oxidative degradation of
the belt skims, and belt defects. In rendering these opinions, he relied upon the incident report,
shearography of the companion tire, x-rays and photographs of the tire, discovery materials, and
relevant reference materials.
Hankook first contends that Cottles is not qualified to offer an opinion on medium truck
tires because his industry experience was limited to passenger and light truck tires. In his report,
the expert acknowledged that medium truck tires included additional components and required
substitution of materials. However, he stated that he had observed the manufacturing process for
medium truck tires and that it was substantially the same as for passenger and light truck tires.

13

At his deposition, he testified that the size of the tire was relevant to a consideration of how it
was used and whether external factors may have contributed to its failure. However, he asserted
that size was not a relevant concern when determining whether a manufacturing defect caused
the failure. After reviewing his qualifications, expert report, and deposition testimony, the Court
concludes that Cottles is qualified to testify as an expert on medium truck tires. See Great N.
Ins. Co. v. BMW of N. Am. LLC, 84 F. Supp. 3d 630, 639-40 (S.D. Ohio 2015) (rejecting
contention that expert must have “specialized knowledge” and noting that “scope of expertise”
goes to the weight of an opinion, not its admissibility).

He has demonstrated a sound

understanding of the components in the failed tire and may offer an opinion about the defects
that he alleges existed at the time the product was manufactured. Next, Hankook questions the
reliability underlying each of the expert’s manufacturing defect opinions.
a. Inadequate bonding
According to Cottles, the subject tire’s rubber skim material was “poorly bonded”
between the skim belts. (D.E. 219-7 at PageID 6644.) He based this conclusion on the presence
of liner pattern marks on the belt skim material. In his expert report, Cottles cited multiple
publications that have connected liner impressions to tire failure. During his deposition, he
testified that liner pattern marks indicated that the tire was not cured properly, and he said this
affected the product’s ability to “perform for its foreseeable useful life.” (D.E. 205-2 at PageID
4309.) According to Cottles, this defect was not the cause of the initial tread separation, but once
the tread began to separate, the weakened bond hastened the tire’s failure.
Defendant opposes the admission of the expert’s inadequate bonding theory on the basis
that it is at odds with peer-reviewed studies and was not derived from a reliable methodology.

14

According to Hankook, many experts disagree that liner pattern marks indicate a defect that can
lead to tire failure. Plaintiffs respond that Cottles cited to several publications in his expert
report that support his theory that liner pattern marks are evidence of poor adhesion and may lead
to failure of the tire. Further, while working for a tire manufacturer, his examination of failed
tires led him to conclude that liner pattern marks were often present in tires that were not
properly bonded. (D.E. 221-4 at PageID 7073-74.)
The Kumho Court was careful to stress that although the Daubert factors may help
determine an expert’s reliability, those factors are not a checklist and the inquiry is a flexible
one. Kumho, 526 U.S. at 150. Defendant places undue emphasis on the lack of peer-reviewed
publications supporting the expert’s opinions. Tire failure analysis is highly dependent upon
visual and tactile investigation, id. at 156, and Cottles’s failure to cite to scientific testing that
supports his theory is not fatal to its admission. See First Tenn. Bank Nat. Ass’n, 268 F.3d at
334-35 (rejecting idea that opinions derived from practical experience must be subjected to
scholarly review or scientific evaluation in order to be reliable).

He has explained his

methodology in arriving at his inadequate bonding opinion and tied it to his knowledge of tire
manufacturing gained through industry experience. Of course, Hankook is free to challenge
Cottles’s conclusions with countervailing opinions and evidence and may subject him to
vigorous cross-examination, see Daubert, 509 U.S. at 596, but the Court concludes that the
opinion is reliable, and Defendant’s motion is DENIED in this respect.
b. Oxidative degradation
Cottles also offered his opinion that oxidative degradation of the tire’s rubber contributed
to the tread separation. In his report, the expert explained that belt skim rubber is enriched with

15

antioxidants in the manufacturing process. These antioxidants “chemically link to any oxygen
attacking the rubber,” which “maintains the original properties of the rubber until the
antioxidants are depleted.” (D.E. 219-7 at PageID 6646.) Once depleted, the rubber may show
signs of cracking, polishing, and a loss in elasticity. Cottles opined that “[a] lack of adequate
antioxidant remaining in the skim stock and/or in the original compounding of the skim stock
rubber” resulted in accelerated oxidative degradation of the tire. (Id.)
In his deposition, Cottles stated that oxidation occurred “in the hottest areas [of the tire]
due to stresses and strains that occur[ed] at the belt edges . . . .” (D.E. 205-2 at PageID 4320.)
Thus, he said that the tire “wasn’t oxidized when it left the plant . . . . But all the weaknesses
otherwise were, the liner imprints or the irregular belt issues, which contribute[d] to the stress
and strain.” (Id.) According to Cottles, he was able to identify this defect based upon the
presence of bonds that were “broken apart from each other from one layer of the belts to another
layer of the belts.” (D.E. 205-2 at PageID 4323.) The expert said that oxidation caused rubber in
the tire to become brittle, causing “wire strike through as a result of the wires breaking down
from the bonds with the rubber itself.” (Id. at PageID 4324.) This breakdown led to “rigid
channels” and “[c]racking at the base of the rubber.” (Id.) He further identified “polishing,”
which showed that there was “enough separation on surfaces like that that ha[d] actually allowed
them to move against each other.” (Id. at PageID 4325.) Cottles cited to an article which
described the oxidation process, although he acknowledged that source did not include a
“pictorial demonstration” of the defect. (Id.)
Defendant contends that Cottles’s oxidative degradation opinion is not properly
supported, pointing out that he did not attempt to measure the elasticity in areas where he

16

allegedly found oxidation. Also, Hankook notes that Southwell opined that laboratory testing
was required to measure oxidation, which was not performed in this case, and he concluded that
oxidation did not play a significant role in the tread separation. In his deposition, Cottles
admitted that he did not assess the elasticity of areas where he found oxidation. (D.E. 205-2 at
PageID 4320.) He said that he did not attempt to “quantify” the oxidation in the subject tire
because he “knew what [he] was looking at.” (Id. at PageID 4323.) He explained that in an
unrelated case, he had consulted with a chemist who evaluated a tire and confirmed that there
was oxidative breakdown. (Id.) By visually comparing the subject tire to the tire he examined in
that case, Cottles said he could confirm the presence of oxidation without performing chemical
analysis on the tire. (Id.) He also stated that he had regularly worked with and managed
chemists on his design teams while working in the manufacturing industry.
When asked to identify testing that supports his theory that oxidative degradation can
lead to a tread separation, he answered, “[I]t’s universally understood that if you oxidize the belt
skim that then you’re going to fail the bonds in the belts.” (D.E. 205-2 at PageID 4321.) Cottles
further testified that “bonds [were] broken apart from each other from one layer of the belts to
another layer of the belts,” which was “the ultimate indication” of how oxidation “progressed
along the belt edges . . . .” (Id. at PageID 4323.)
Cottles has adequately explained the basis for his oxidative degradation opinion and tied
his conclusion to his relevant experience. He admitted that chemical analysis was not performed
on the tire, and Hankook may exploit that fact. However, he also detailed his visual inspection
of the tire and compared his findings to other instances where oxidative degradation was
confirmed through more extensive testing. The Court concludes that any weaknesses in the

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expert’s opinion go to its weight, not its admissibility. The Defendant’s motion is DENIED on
this ground.
c. Belt defects
Finally, Cottles opined that the subject tire contained belt defects. According to the
expert, the belts showed “evidence of irregular wire spacing, snaking, scalloping, gapped and
dog-eared splices.”

(D.E. 219-7 at PageID 6647.)

Cottles said that these irregularities

“contribute[d] to heat generation and [an] increase in stresses and strains . . . .” (Id.) He testified
in his deposition that the belt irregularities existed throughout the tire. Additionally, he stated
that the irregular wire spacing was especially problematic near the edge of the tire’s belt because
as the tire rotates, its ability to manage its load was affected.
Hankook challenges the expert’s conclusions that the tire showed belt irregularities, again
contending that peer-reviewed literature does not support his theory. Defendant asserts that
Cottles’s inability to point to research that supports his theory creates an analytical gap between
the evidence in the present case and his proffered opinion. Cone and Frazier admit that Cottles
did not conduct independent testing to verify his theory regarding belt irregularities, but they
point out that Defendant’s own tire failure expert opined that this defect can lead to tread
separation and that Cottles’s opinion is based on “years of direct experience” rather than test
results. (D.E. 219 at PageID 6186.)
As noted above, an expert can “draw a conclusion from a set of observations based on
extensive and specialized experience,” and “tire abuse may often be identified by qualified
experts through visual or tactile inspection of the tire.” Kumho, 526 U.S. at 156. Again,
Hankook’s challenge to this testimony goes more to the weight of the evidence than its

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admissibility. Like his other defect theories, Cottles relied on his experience manufacturing and
analyzing tires when formulating his opinion regarding belt irregularities.

To the extent

Defendant finds flaws in his methodology or authorities that question the expert’s conclusions,
“[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the
burden of proof . . . are the traditional and appropriate means of attacking [allegedly] shaky but
admissible evidence.” Daubert, 509 U.S. at 596.
d. Alternative causes of tire’s failure
Finally, Hankook contends that Cottles failed to rule out other causes of the tire’s failure,
undermining the reliability of his opinions.

However, a section of the expert’s report is

dedicated to his consideration and ultimate rejection of other causes of the product’s failure.
First, Cottles opined that the tread separation was not caused by an impact, noting it was
“generally accepted in the tire community” that impact damage would not cause a tread
separation. (D.E. 219-7 at PageID 6648.) He stated that his observation of “rim grooving in the
bead flange area” led him to conclude that under-inflation, over-inflation, and over-loading did
not contribute to the tire’s failure. (Id. at PageID 6649.) He further testified in his deposition
that the tire had an adequate tread depth and “still had plenty of serviceable life in the treads.”
(D.E. 205-2 at PageID 4287.) According to the expert, inspection of a vehicle was not a normal
practice in tire failure analysis. This evidence belies Defendant’s contentions and demonstrates
that Cottles considered a variety of other factors that may have led to the tire’s failure.
3. Opinions Not in Expert Report and Request for Daubert Hearing
Defendant is also concerned that Plaintiffs will elicit opinions from Southwell and Cottles
at trial that were not included in their expert reports. As Cone and Frazier point out, their experts

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have not opined on design defects, breach of warranty, or failure to warn, and they do not intend
to question either expert about these topics. If they should attempt to introduce such testimony at
trial, Hankook may lodge the appropriate objections at that time.
Hankook also requested that the Court hold Daubert hearings to assess the experts’
opinions. However, the Court does not find that necessary and the request is therefore DENIED.
III. CONCLUSION
Based upon the foregoing and the record as a whole, Defendant’s motion to exclude
expert testimony of Southwell, (D.E. 204), is GRANTED with respect to his opinion on the tire’s
skim coat gauge and DENIED in all other respects. Hankook’s motion to exclude the testimony
of Cottles, (D.E. 205), is DENIED in its entirety.
IT IS SO ORDERED this 19th day of January 2017.
s/ J. DANIEL BREEN
CHIEF UNITED STATES DISTRICT JUDGE

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