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Davenport v. Goodyear Dunlop Tires North America, Ltd.

United States District Court, D. South Carolina, Aiken Division

January 23, 2018

Devon Davenport, Plaintiff,
Goodyear Dunlop Tires North America, Ltd. and the Goodyear Tire and Rubber Company, Defendants.


         This matter is before the court pursuant to Defendants Goodyear Dunlop Tires North America, Ltd. and The Goodyear Tire and Rubber Company's (“Goodyear”) (collectively “Defendants”) Motion to Exclude Testimony of Plaintiffs' Expert Witness, Dennis P. Carlson, Jr. (ECF No. 100). Plaintiff Devon Davenport (“Plaintiff”) filed a response in opposition to Defendants' Motion (ECF No. 119). For the reasons set forth below, the court GRANTS IN PART and DENIES IN PART Defendants' Motion to Exclude Testimony of Dennis P. Carlson, Jr. (ECF No. 100).


         On September 18, 2015, Plaintiffs Maria Davenport, Arnold Davenport, and Demorio Davenport filed a Complaint against Defendants. (ECF No. 1.) Plaintiff Maria Davenport alleged she suffered injuries while she was driving a 1996 Ford Explorer when the tread on the left rear tire (“Subject Tire”) separated from the car, causing it to overturn. (Id.) Plaintiff Demorio Davenport was a passenger in the car and he also alleges that he suffered injuries during the incident. (Id.) Plaintiff Arnold Davenport alleges loss of consortium. (Id. at 2.)

         Plaintiffs Maria Davenport, Arnold Davenport, and Demorio Davenport initially filed a Complaint in the Aiken County Court of Common Pleas (“Aiken County”). (ECF Nos. 34-1, 34- 3.) Plaintiff Devon Davenport filed a separate Complaint relating to the alleged incident in Aiken County. (Id.) These Plaintiffs voluntarily dismissed the Aiken County Complaints on September 10, 2015, and re-filed their Complaints in this court on September 18, 2015, with Plaintiffs Maria Davenport, Arnold Davenport, and Demorio Davenport joined in one Complaint. (ECF No. 34-4.) Plaintiff Devon Davenport individually filed a second Complaint in this court (Devon Davenport v. Goodyear Dunlop Tires North America, Ltd. and The Goodyear Tire and Rubber Company, Civil Action No. 1:15-cv-03752-JMC). (Id.) On August 2, 2016, Defendants filed a Motion to Consolidate both cases. (ECF No. 34.) On October 25, 2016, the court granted Defendants' Motion to Consolidate for all purposes, including trial. (ECF No. 46 at 5.)

         In the present Motion, Defendants contend that Mr. Carlson's testimony should be excluded because his testimony lacks the requisite reliability and relevance required under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).[1] (ECF No. 100 at 1.) Mr. Carlson intends to offer the following opinions:

1. the Subject Tire was defectively designed due to a lack of a full nylon cap ply;
2. the Subject Tire was defectively designed due to inadequate aging resistance, and was defectively manufactured as there was reduced adhesion between the wire and rubber and a defective belt joint;
3. the Subject Tire was defectively designed due to an inadequate wedge;
4. alternative designs existed for the Subject Tire at the time of its manufacture that were “practical and safer;”
5. wheel weight clip marks on the Subject Tire do not indicate over-deflection;
6. Plaintiffs' use of tires on the Subject Vehicle other than as recommended by the Owner's Manual “made no difference;”
7. the pounds per square inch of pressure in the Subject Tire was over 20 ten milliseconds prior to the Subject Accident;
8. the amount of road rash on the wheel is insignificant for purposes of accident reconstruction; and
9. the cracking seen on the Subject Tire at the time of the accident was not of the same magnitude at the time of its purchase by Plaintiff Arnold Davenport.

(ECF No. 73-3 at 14-17; ECF No. 73-2 at 24, 28, 29, 30, 34, 38, 42.) Defendants espouse that Mr. Carlson is not qualified to render these opinions “as they are the result of unsupported assumptions and insufficient facts and data, making them inherently speculative and failing to comport with the mandatory threshold for admissibility of expert testimony.” (ECF No. 100 at 3.) On December 1, 2017, Plaintiffs filed a joint response positing that each of Mr. Carlson's opinions indeed satisfy the Daubert standard. (ECF No. 119.)


         Pursuant to Federal Rule of Evidence (“Fed. R. Evid.”) 104(a), the court must determine “[p]reliminary questions concerning the qualification of a person to be a witness . . . or the admissibility of evidence, ” including the admissibility of expert testimony under Fed.R.Evid. 702. Daubert, 509 U.S. at 587-88. A party offering an expert's opinion “bears the burden of establishing that the ‘pertinent admissibility requirements are met by a preponderance of the evidence.'” Cantrell v. Wirtgen Am., Inc., No. CCB-07-2778, 2011 WL 915324, at *2 (D. Md. Mar. 15, 2011) (quoting Fed.R.Evid. 702 advisory committee notes (citing Bourjaily v. United States, 483 U.S. 171, 107 (1987))). In determining the admissibility of an expert's opinion, the court must reconcile the intent for Rule 702 “to liberalize the introduction of relevant expert testimony” with “the high potential for expert opinions to mislead, rather than enlighten, a jury.” Id.

         The admissibility of expert witness testimony is specifically governed by Fed.R.Evid. 702, which provides that an expert may offer an opinion 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 determining whether expert witness testimony is admissible, the court evaluates whether it is relevant and reliable. Daubert, 509 U.S. at 589. Under Fed.R.Evid. 401, evidence is relevant if (1) “it has a tendency to make a fact more or less probable than it would be without the evidence” and (2) “the fact is of consequence in determining the action.”

         In making an assessment of relevance and reliability, courts acting as a “gatekeeper” in determining the admissibility of expert testimony, may consider a number of factors, including: (1) “whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.” Daubert, 509 U.S. at 589, 592-595. Daubert's list of factors is “meant to be helpful, not definitive” and “do not all necessarily apply even in every instance in which the reliability of scientific testimony is challenged.” Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151 (1999). The United States Court of Appeals for the Fourth Circuit adopted this standard for the admissibility of expert witness testimony. Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999). The Fourth Circuit stated that “the touchstone of admissibility is whether the testimony will assist the trier of fact.” Wehling v. Sandoz Pharm. Corp., 162 F.3d 1158, 1998 WL 546097, at *3 (4th Cir. 1998) (table decision).

         III. ANALYSIS

         A. Subject Tire: Lack of Full Nylon Cap Ply

         1. The Parties' Arguments

         Mr. Carlson intends on testifying that the Subject Tire was defective in that it failed to incorporate a full nylon cap ply. (ECF No. 100 at 7.) Defendants contend that Mr. Carlson's nylon cap theory is unreliable and must be excluded because: (1) Mr. Carlson improperly relies on post-manufacture evidence and on evidence regarding tires not substantially similar to the Subject Tire, and (2) Mr. Carlson has no additional support for his defect theory regarding the absence of a nylon cap ply. (Id. at 8-13.) Plaintiffs respond by stating that Mr. Carlson's nylon cap defect opinion is reliable and admissible because: (1) Mr. Carlson properly references a shearography study on other tires, and (2) Mr. Carlson provides ample support for his nylon cap ply defect opinion. (ECF No. 119.)

         2. The Court's Review

         As an initial matter, the court notes that Goodyear overstates the holding of the South Carolina court in Branham v. Ford Motor Co., 390 S.C. 203 (2010). The Supreme Court did not hold, as Goodyear advances, that all post-distribution evidence is inadmissible. The Court specifically held the contrary:

The dissent asserts that our opinion “may be read as barring any evidence created after the date of manufacture.” We do not intend our holding to reach that far. As defined above, post-distribution evidence is “evidence of facts neither known nor available at the time of distribution.” The RESTATEMENT (THIRD) of TORTS: Products Liability section 2, cmt. a speaks in terms of “reasonably attainable” knowledge at the time of distribution. If information on a product is reasonably attainable, then a manufacturer is charged with such knowledge at the time of manufacture. The rule prohibiting the introduction of post-distribution evidence does not permit a manufacturer to turn a blind eye to reasonably available information regarding the safety or danger of its product.

Id. at 227 n.17 (emphasis added).

         Mr. Carlson's reference materials, relied upon by him and cited in his expert report, contain documents attesting to the validity and reliability of his nylon cap ply design defect theory. Significantly, two of the reference materials are deposition transcripts of Goodyear tire engineers who testified that Goodyear used nylon cap plys prior to the manufacture of the Subject Tire and that nylon cap plys reduce tread separation:

Q. . . . and specifically for one type of tire, a nylon overlay was being used to try and reduce tread separations, correct?
A. Right.
. . .
Q. . . . Did the application of nylon overlays to these tires across the Load Range E allow you to reduce the tread throw problem significantly?
A. You're backing up taking a macro view of this whole issue?
Q. Right.
A. Yes, it does.
Q. So would it be fair to say that the ultimate ability of the tires to withstand stresses from whatever conditions, including their manufacture and their use, has improved significantly with the use of the nylon overlay?
A. Yes.
. . .
Q. . . . is it correct that you did recognize that the nylon overlays provided reinforcement and helped prevent tread separation?
A. We know that was a benefit of overlays, yes.

(ECF No. 85-4 at 14, 50-51, 99-100.) Similarly, a second Goodyear employee testified:

Q. As a matter of fact, tread belt separations on Kelly-Springfield and Goodyear tires have been substantially reduced as a result of double nylon overlays on light truck tires, is that correct, sir?
A. Yes, that's true.

(ECF No. 101-1 at 14.) In addition to Goodyear's own words, Mr. Carlson relies on numerous publications to support his theory. An article in Modern Tire Dealer of an interview of Jacques Bajer, who worked at Ford from 1955 to 1970, and later formed Tire Systems Engineering, Inc., discusses nylon overlays:

The primary role of the nylon overlay is to improve the tires resistance to belt-edge separation, a condition that can develop from the effects of a combination of adverse tire operational factors such as flexural strains, stresses, intra-carcass pressure and heat build-ups concentrated at the tire belt-edge zones, the most vulnerable part of a radial-ply tire. This important tire construction detail should be incorporated into all radial-ply tires produced.

(ECF No. 101-2 at 2-3) (emphasis added). A December 2000 Los Angeles Times article entitled “Proven Safety Features Not Used on Many Tires; Automobiles: Devices known as Wraps Can Prevent Belt Separation, The Industry Says They're Not Necessary” states: “The devices are designed to prevent the steel belts in radial tires from separating, which can lead to the treads peeling off. Most prominent among them are cap plies made of nylon or other materials, which are stretched like a tourniquet over the top of the belts to keep them in place . . . Manufacturers know the safety wraps are effective, records show. But they add cost and weight to tires, and tire makers in most cases have done without them.” (ECF No. 119-4 at 1.)

         A Modern Tire Dealer article discusses the fact that Pirelli used nylon cap plies as early as 1969 and that “radial-ply tires with the [nylon cap ply] design feature experienced much less tread/belt separations, and were working more coherently, as they should.” (ECF No. 119-4 at 2.) Further, an article entitled “Design Elements of Steel Belted Radial Tires to Improve Belt Durability” contains a finite element analysis conducted by three experts. (ECF No. 100-2.) The article discusses using full nylon cap plies and belt edge strips to improve belt durability. (Id. at 1.) It states: “Nylon edge covers overlay the edge of the belts with minimum width covering belt end steps, while a nylon full cover covers the entire belt and is more effective in retarding crack propagation in the belt width direction.” (Id. at 4) (emphasis added). The article is not subject to the post-distribution evidence rule because, as the article expressly states, that design element has existed “since the late 1960s, ” decades before the manufacture of the Subject Tire. (ECF No. 100-2 at 4 ¶ 1.) See Branham, 390 S.C. at 227 (“[P]ost- distribution evidence is evidence of facts neither known nor available at the time of distribution.”). These articles demonstrate the nylon cap ply theory is widespread in the tire industry, and has been since at least 1969. Additionally, it is reliable based on the numerous publications and references cited by Mr. Carlson as well as his own experience in tire design and testing.

         Further, Goodyear misstates the law on the substantial similarity requirement. Defendants present the argument that Mr. Carlson is using the other tires he references to show that those tires caused an accident and, therefore, the Subject Tire caused the accident at issue in this case. (ECF No. 100 at 6.) Mr. Carlson uses other tires to compare tire “construction in three areas. I'm looking at whether they have a nylon, full nylon cap plies, whether they have a sufficient wedge, and the innerliner thickness.” (ECF No. 73-2 at 16.) He is comparing the construction of the tires, and presents no evidence of any incident or injury caused by any of these tires. See Branham, 390 S.C. at 203 (“[I]f the cause of an accident is known and the cause is not substantially similar to the accident at issue, evidence of the other accident should be excluded. Yet, where the precise cause of an accident is not known, [] data has relevance when compared to [] data of other vehicles.”). The evidence of other tires is not subject to the substantial similarity requirement.

         The first table of tires in Goodyear's Motion is a shearography study conducted by Paul Maurer, an independent contractor who performs tire cuts and x-rays. (ECF No. 73-2 at 5.) The table “shows the presence or absence of nylon cap plies, and [Mr. Maurer] provided the study that he did previously, which correlates [tread] separations and cap ply usage.” (Id. at 11.) Mr. Carlson testified the study is relevant to this case to show that Goodyear knew how to design tires with a full nylon cap but did not do so in the Subject Tire. (Id. at 16.) The study also supports a direct relationship between an absence of a full nylon cap ply and tread separation:

Q: What is the significance of this study for the purposes of the Davenport case?
A: Well, talking about cap ply - it's a comparison of tires with cap ply and no cap ply and whether they had separation in the shearography. And we are - here we have no cap ply and the belt has separations, no belt edge separations, two with cap plies with no separations, or three, and then no with separations. Yes, with no separation, and four with no, and we have some separations. So it is a one-to-one correlation between putting the cap lie [sic] in there and having separations as shown by the shearography.

(Id. at 20.)

         Finally, this testimony is not subject to the post-distribution evidence rule because “post-distribution evidence is evidence of facts neither known nor available at the time of distribution.” Branham, 390 S.C. at 227. It is undisputed that the nylon cap ply design existed at least by 1969 and Goodyear used it at least by the mid-1990s. Therefore, evidence of tires with and without a nylon cap ply is evidence of facts known or available to Goodyear at the time of distribution of the Subject Tire in 2001. Therefore, the evidence is not “post-distribution evidence” and may be properly relied upon and used by Mr. Carlson.

         As discussed previously, Mr. Carlson provides adequate support for his nylon cap ply defect opinion. He reviewed dozens of reference materials cited in his expert report, including deposition testimony of Goodyear's own employees, industry publications, and manufacturer documents, which support his theory. Further, Mr. Carlson conducted a physical examination of the tire and reviewed x-rays of the Subject Tire.

         Goodyear misstates Mr. Carlson's testimony as “a conclusory statement that because the Subject Tire did not have a nylon cap ply, it was defective.” (ECF No. 100 at 13.) Mr. Carlson plainly testified at his deposition that he evaluates each tire individually:

Q. Is it your opinion that any passenger or light truck tire from the time frame of the Subject Tire, which is 2001 up until the time we sit here today, unless it has a ...

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