Moore et al v. Refugio Auto Repair et al

Filing 111

Memorandum Opinion and Order -granting in part and denying in part 56 Motion for Partial Summary Judgment (Ordered by Judge John McBryde on 6/2/2011) (wrb) Modified on 6/2/2011 (wrb).

IN THE UNITED STATES DISTRICT COUR'lJ.S. DISTSRTICRTICCTOOUFRTTE'X \S
NORTHERN D1
":
NORTHERN DISTRICT OF TEXl ~;.'
FIL~D
FORT WORTH DIVISION..!

LINDSAY MOORE, INDIVIDUALLY
AND AS INDEPENDENT EXECUTRIX
OF THE ESTATE OF ZACHARY RAY
MOORE, ET AL. ,

I ,.III _; ~lIi

lL------------,. . ;

§

, CLERK, U.S. DISTRIC r COl'RT

§

by ____~~~-----

§

Deputy

§

§

Plaintiffs,

§
§

VS.

§

NO. 4:10-CV-372-A

§

THE GOODYEAR TIRE & RUBBER
COMPANY,

§

§
§

Defendant.

§

MEMORANDUM OPINION
and
ORDER
Before the court for decision is the motion for partial
summary judgment filed by defendant, The Goodyear Tire & Rubber
Company,

("Goodyear") on March 23, 2011.

After having considered

such motion, the response of plaintiffs thereto, Goodyear's
reply, the other items that have been filed in the abovecaptioned action, and pertinent legal authorities, the court has
concluded that such motion should be granted in part and denied
in part.

I

I.

Nature of the Action
By this action, plaintiffs, H. R. Moore, Jr., Trena Moore,
and Lindsay Moore, individually and as independent executrix of
the estate of Zachary Ray Moore, who are the survivors and the
personal representative of the estate of Zachary Ray Moore
("Zachary"), sued Goodyear to recover damages allegedly resulting
from the failure of a tire on a vehicle Zachary was operating
that led to Zachary's loss of control of the vehicle, causing his
death.

Plaintiffs alleged that the tire was originally designed,

manufactured, and placed into the stream of commerce by Goodyear
several years prior to the accident.

Causes of action are

alleged by plaintiffs against Goodyear based on manufacturing,
marketing, and design defect, breach of warranty, and negligence
theories.
II.

The Grounds of the Motion
Goodyear asserts in its motion that:
1.

There is no evidence to support Plaintiffs' claim
for malice and exemplary damages;

2.

There is no evidence that Zachary Ray Moore
experienced conscious pain and suffering;

2

3.

Mot. at 2.

There is no evidence that the absence of a nylon
overlay is a design defect.
Goodyear seeks summary adjudications in its favor on

plaintiffs' claims that Goodyear was guilty of malice and is
subject to an award of exemplary damages in favor of plaintiffs;
that Zachary experienced conscious pain and suffering for which
the personal representative of his estate is entitled to make a
recovery from Goodyear; and, that the failure of Goodyear to
design the tire in question with a nylon overlay was a causative
design defect.l
III.

Analysis
A.

The Ground of the Motion as to Plaintiffs' Claim that
Goodyear Was Guilty of Malice for Which Exemplary
Damages Should be Awarded
Plaintiffs do not provide a response to the first ground of

Goodyear's motion other than to state that plaintiffs do not
oppose Goodyear's motion for summary judgment on punitive
damages.

Br. in Supp. of Resp. at 1 n.l & 5.

The court takes

this concession, combined with plaintiffs' failure to make

IThe "nylon overlay" design defect theory was not specifically alleged in plaintiffs' pleading, but
became a part of plaintiffs' claims through a witness hired by plaintiffs as an expert by the name of
Dennis Carlson, who opined for plaintiffs that absence of a nylon overlay in the design of the tire was a
causative design defect. Resp., App. at 20-23.
3

further response on the subject, to be a concession that the
first ground of Goodyear's motion should be granted.

Therefore,

the court is granting Goodyear's motion as to malice and
exemplary damages by ruling that plaintiffs' claims that Goodyear
was guilty of malice and that plaintiffs should recover exemplary
damages from Goodyear are without merit and no longer will be
issues in this case.
B.

The Conscious Pain and Suffering Ground of the Motion
The second ground of the motion is based on Texas case law2

that only pain and suffering that is consciously experienced is
compensable.

See Casas v. Paradez, 267 S.W.3d 170, 185 (Tex.

App.--San Antonio 2008, pet. denied) i Southern Pac. Transp. Co.
v. Luna, 730 S.W.2d 36, 38 (Tex. App.--Corpus Christi 1987, no
writ)

i

Russell v. Ramirez, 949 S.W.2d 480, 491 (Tex. App.--

Houston [14th Dist.] 1997, no writ) i Canales v. Bank of Cal., 316
S.W.2d 314, 317-18 (Tex. Civ. App.--Eastland 1958, writ ref'd
n.r.e.).

While the court's decision on this ground is a close

call, the court has decided to deny the motion as to this ground
on the assumption that the matter can be dealt with in the
court's charge to the jury if there is no trial evidence that

2The occurrence in question happened in Texas, with the consequence that Texas substantive law
governs.
4

:l

Zachary had any conscious pain or suffering.

The court is

inclined to agree with plaintiffs that even if there is no
evidence of physical pain and suffering, there undoubtedly will
be circumstantial evidence that would support an award of mental
anguish damages for whatever mental turmoil zachary might have
experienced from the time he lost control of the vehicle until it
crashed.
C.

The "Nylon Overlay" Design Defect Theory
The only evidence adduced by plaintiffs in support of their

theory that absence of a nylon overlay in the design of the tire
in question was a causative design defect are the opinions
advanced by Dennis Carlson ("Carlson"), an engineer who
plaintiffs have retained as an expert in this action.

Carlson's

opinions favorable to plaintiffs on this subject are found in his
declaration, which is under tab D of plaintiffs' appendix to
their brief in response to the motion.
App. at 20-23,

~~

15-25.

Br. in Supp. of Resp.,

The parties seem to be in agreement

that the merit of this third ground of the motion depends on the
validity of Carlson's opinions.

If plaintiffs are to satisfy

their summary judgment burden, they must do so through the
evidence provided by Carlson.

5

: !..

In deciding whether Carlson's opinions constitute probative
summary judgment evidence that would raise a genuine issue of
fact that absence of a nylon overlay was a causative design
defect, the court has given significant attention to the Supreme
Court decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S.
137 (1999)

,3

which put meat on the bones of Rule 702 of the

Federal Rules of Evidence. 4

While the substantive law of Texas

is applicable to this case, the Federal Rules of Evidence control
the admission of expert testimony.
F.3d 448, 459 (5th Cir. 2002).

Mathis v. Exxon Corp., 302

"The admissibility of expert

testimony is governed by the same rules, whether at trial or on
summary judgment."

First United Fin. Corp. v. U.S.F. & G. Co.,

96 F.3d 135, 136-37 (5th Cir. 1996).

3In a sense, Kumho is particularly pertinent since Carlson was the witness whose opinion was at issue.
In Kumho, the Court gave the following explanation of the issue confronting it: "The question was not
the reliability of Carlson's methodology in general, but rather whether he could reliably determine the
cause of failure of the particular tire at issue." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 139 (1999).
4The text of Rule 702 ofthe Federal Rules of Evidence is as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in the
form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of the case.
6

All expert testimony is filtered through Rule 702.
302 F.3d at 459.

Mathis,

Whether a person is qualified to testify as an

expert is a question of law.

Id.

liThe party offering the expert

must prove by a preponderance of the evidence that the proffered
testimony satisfies the rule 702 test.

II

Daubert and Kumho are taken into account,

Id. at 459-60.

When

lithe party seeking to

have the district court admit expert testimony must demonstrate
that the expert's findings and conclusions are based on the
scientific method, and, therefore, are reliable.

II

Moore v.

Ashland Chern. Inc., 151 F.3d 269, 276 (5th Cir. 1998).

That

"requires some objective, independent validation of the expert's
methodology.

Id. at 276.

II

liThe expert's assurances that he has

utilized generally accepted scientific methodology is
insufficient.

II

Id.

In the final analysis, the court is tasked

in determining admissibility of expert opinion testimony with an
evaluation of whether the relevance and reliability requirements
of Rule 702, Daubert, and Kumho have been satisfied.
In the instant action, so far as the court can tell the only
thing in the record bearing on whether absence of a nylon overlay
in the tire was causative is Carlson's own ipse dixit that it
was.

Resp., App. at 22-23,

~~

23 & 25.

There is no summary

judgment evidence that would provide the element of reliability
7

to Carlson's bare conclusions that "the absence of a nylon
overlay was a producing cause of the tread separation in the
accident that occurred on May 28, 2009, and the loss of control
of the vehicle in question resulting in the accident," and his
opinion that "based upon reasonable engineering probability, that
this design defect (the absence of a nylon overlay) was a
producing cause of the accident that resulted in the death of
Zachary Moore on May 28, 2009."

Id. at 23.

Moreover, Carlson admitted in his deposition that absence of
such a nylon overlay is not a design defect per set and that
there have been many successful tires that have not had the
overlays.

Mot., App. at 130.

Carlson made a similar admission

when giving his deposition in a case pending in the United States
District Court for the District of Connecticut in March 2006.
Mot., App. at 146 (dep. pp. 143-44).

The court notes that in

that testimony Carlson said that "if you do have a separation, it
will certainly stop it from growing and delay it a great number
of miles."

Id.

(dep. p. 144).

There is no indication that

Carlson has done, or is acquainted with, any testing to evaluate

.

how much delay, if any, might be expected with or without a nylon
overlay.

In March 2010 Carlson testified in a deposition he gave

in a case pending in a Florida state court that he does not know
8

of any manufacturer in this country that uses the nylon overlay
in medium truck tires.

Mot. to Exclude Test. of Carlson, App. at

78.

The explanations Carlson gave for his opinions that the
absence of a nylon overlay caused the tire to be defective and to
fail do not include anything that would cause the court to
believe that his opinions are reliable in a Daubert or Kumho
sense.

His mere assurances that absence of a nylon overlay was a

causative design defect is not enough.

Plaintiffs have failed to

persuade the court that Carlson's opinions are based on sound
science having some objective, independent validation in an
acceptable methodology.

The bases for his opinion on this

subject are summed up in five paragraphs of his declaration, as
follows:
15. Nylon overlays, or cap plies, were first
incorporated in a Pirelli tire used as original
equipment on a Fiat 2.4L Dino in the late 1960s. They
quickly became ubiquitous on performance vehicles,
European vehicles and non u.s. tires.
They have been
used by nearly every manufacturer on nearly every type
of tire.
Today, they are used on approximately 50% of
u.s. light truck tires, almost all non U.S. passenger
and light truck tires and, tellingly, on all run flat
tires.
There have been several medium truck tires
including a Goodyear tire which use either nylon or
steel to reinforce the shoulders. Goodyear has used
this construction in a European heavy truck tire for
many years.

9

16. There is ample evidence that nylon overlays
prevent tread-belt separations.
Firestone proposed
nylon overlay versions of its ATX and Wilderness AT
tires to prevent separations shortly before the tires
were first recalled in 2000. During the recalls and
subsequent litigation, Firestone produced a list of
hundreds of its tire designs that used nylon overlays,
many of which were not high speed or heavy tread and
belt tires (Exhibit 2) .
17. Goodyear used nylon overlays to control its
tread-belt separation problem that surfaced in 1995 in
its light truck tires.
That same year, a Goodyear
design for a medium truck tire with a nylon overlay was
patented which plainly states:
This invention relates to a pneumatic truck tire
having belt-edge reinforcement which prevents
belt-edge separation ... " (Exhibit 3).
In an earlier patent by Goodyear, its design includes a
"pair of nylon overlays ... for reinforcement and to
prevent tread separation" (Exhibit 4).
Several
Goodyear engineers have testified as to the
effectiveness of nylon overlays in preventing tread
separations (Exhibit 5) .
18. Nylon overlays reduce the centrifugal forces
on the tread-belt package where separations form.
This
stress occurs every time a tire is used.
Centrifugal
forces increase with speed and heavier belt packages,
thus they are frequently used in higher speed tires and
those with heavier belt packages such as light truck
and traction tires.
Every tire experiences centrifugal
forces so nylon overlays benefit separation resistance
in all tires.
19. It is my opinion that the subject tire was
defective in design because Goodyear failed to design
adequate separation countermeasures in this area by
failing to use the technologically feasible, reasonable
and economically feasible component known as nylon
overlays. The subject tire was designed and
10

, t

,

:

i!,
'i
i:

manufactured and placed into the stream of commerce by
Goodyear in the second week of January 2002.
As set
forth above, the nylon overlays were both
technologically feasible, reasonable and economically
feasible well before January 2002.
As set forth above,
Goodyear also used nylon overlays on tires before
January 2002 to prevent tread separations.
Resp., App. at 20-21.
Boiled down to their essentials, the bases for Carlson's
design defect theory are that since the 1960s certain tire
manufacturers, including Goodyear, have designed a nylon overlay
in certain types of tires they manufactured for certain classes
of vehicles, that their reason for doing so was to reduce the
frequency of tread separations on those types of tires used on
those types of vehicles.

He opines that, therefore, the design

of the subject tire was defective because Goodyear failed to
include in it a nylon overlay.

A less scientific approach to

arriving at a design defect opinion would be hard to imagine.
Kumho is not the only tire-failure case in which an "expert"
opinion of Carlson has been found wanting.

In Prapha-Phatana v.

Cooper Tire & Rubber Co., No. 03-1089-PHX-ROX, 2006 WL 2683629,
*4

(D. Ariz. Sept. 19, 2006), the court, in rejecting a "nylon

overlay" contention, noted that the contention was not supported
by expert testimony.

The expert was Carlson.

The Prapha-Phatana

court noted that in his deposition Carlson "stated that the
11
I

Ii

,:I
, I

absence of a nylon overlay is not necessarily a defect and that
90% of comparable tires do not have a nylon overlay."

Id.

In

his deposition in the instant case, Carlson acknowledged that
there was no methodology that would support his nylon overlay
opinion.

Mot, App. at 137.

Carlson's opinions are not supported by any references to
scientifically reliable peer review literature, test results, or
research.

The court has not been provided information that would

cause the court to believe that the opinions of Carlson, and the
methods he used in arriving at those opinions, find general
acceptance in the relevant scientific-technical community.
Plaintiffs simply have failed to provide the court probative
evidence that Carlson's nylon overlay design defect theory is
relevant to this particular case or is reliable.

Therefore, the

court is ruling that plaintiffs shall not offer evidence from
Carlson in support of such a theory, and that plaintiffs' claim
of a causative design defect because of absence of a nylon
overlay is without merit.

12

IV.
ORDER

i i

For the reasons given above,
The court ORDERS that plaintiffs' claims that Goodyear was
guilty of malice and that plaintiffs are entitled to recover
exemplary damages from Goodyear are without merit, and shall no
longer be pursued in this action.
The court further ORDERS that defendant's motion as to the
conscious pain and suffering issue be, and is hereby, denied.
The court further ORDERS that plaintiffs' claims that the
:

.,
t,

tire in question had a design defect because of absence of a
nylon overlay in the design and that the absence of such an
overlay caused the accident in question are without merit, and
that such claims shall no longer be pursued in this action.
SIGNED June

~,

2011.

13
,

.. '