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Davenport v. Goodyear Dunlop Tires North America Ltd.

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

February 22, 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. (“Mr. Carlson”). (ECF No. 100). Plaintiffs Maria Davenport, Arnold Davenport, Demorio Davenport, and Devon Davenport (collectively “Plaintiffs”) 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.) Plaintiffs Maria and Demorio Davenport seek damages for their claims of negligence, strict liability, and breach of warranty. (Id.) Plaintiff Arnold Davenport alleges loss of consortium. (Id. at 2.) On August 2, 2016, Defendants filed a Motion to Consolidate both cases. (ECF No. 41.) On October 25, 2016, the court granted Defendants' Motion to Consolidate for all purposes, including trial. (ECF No. 59 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 4 n.5.) Defendants request that the court exclude:

1. reference to tires that are not substantially similar;
2. reference to the Goodyear GTS 235/75R15 tire and other “Goodyear-like truck tires” for any purpose;
3. general reference to other tires in general without substantial similarity to the Subject Tire;
4. reference to separation events in other Goodyear tires;
5. reference to problems with the companion tires;
6. reference to how the right rear tire became unseated;
7. statements that people are not able to read Department of Transportation (“DOT”) tire codes;
8. testimony that it is not reasonable to expect a civilian to be concerned if a companion tire began to leak air within a week of purchase;
9. suggestion that because Arnold and Maria Davenport had commercial driver's licenses, they checked their tires regularly;
10. reference to a “bead heel defect” or any other defect not included in Mr. Carlson's report;
11. statement that cold set marks formed post-accident; and
12. statement that the presence of weights inside the rim indicate the tire is not made well.[2]

(ECF No. 100.) On October 13, 2017, Plaintiffs filed a joint response, invalidating each piece of evidence Defendants aim to exclude and adding that Defendants' present Motion is voluminous and the issues presented are more appropriately decided at trial. (ECF No. 119.) On December 15, 2017, Defendants filed a reply in large part reasserting their position in their Motion in Limine. (ECF No. 132.)


         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

         1. Reference to Tires that are Not Substantially Similar

         Defendants posit that the “exemplar tires” that were provided for comparison to the Subject Tire to Mr. Carlson by his consultant, Paul Maurer, should be excluded because there is no showing that these tires are substantially similar to the Subject Tire. (ECF No. 100 at 3) (citing Branham v. Ford Motor Co., 390 S.C. 203, 225 (2010) (“Evidence of similar accidents, transactions, or happenings is admissible in South Carolina where there is some special relation between the accidents tending to prove or disprove some fact in dispute.”). Defendants made this same argument in a prior Motion in Limine to Exclude Testimony of Mr. Carlson. (See ECF No. 114 at 8-11.) The court already ruled that this evidence is admissible in its prior Order:

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. 90-2 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.

(ECF No. 160 at 5-9.)

         2. Reference to the Goodyear GTS 235/75R15 Tire and Other “Goodyear-Like Truck Tires” For Any Purpose

         Defendants seek to exclude reference to the Goodyear GTS 235/75R15 Tire and other “Goodyear-like truck tires” as it “lacks foundation and a showing of substantial similarity, and is misleading and prejudicial.”[3] (ECF No. 100 at 4.) Defendants made this same argument in a prior Motion in Limine to Exclude Testimony of Mr. Carlson. (See ECF No. 114 at 20-21.) The court already ruled this evidence is admissible in its prior Order. (See ECF No. 160 at 17-18.)

         3. General Reference to Other Tires in General Without Substantial Similarity to the Subject Tire

         In Mr. Carlson's deposition and expert report, he discusses various other tires including but not limited to the Michelin LTS series, the Goodyear GTS system in general, the Michelin Tire in general, radial tires from the 1960's, and other general categories of tires. (ECF No. 100 at 4.) Defendants posit that all such references should be excluded as they “lack foundation and a showing of substantial similarity, and are misleading and prejudicial.” (Id. at 5.) The court has touched on this substantial similarity argument in regard ...

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