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Davenport v. Goodyear Dunlop Tires North America, Ltd.

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

April 4, 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, Micky G. Gilbert, P.E. (“Mr. Gilbert”) (ECF No. 101). Plaintiffs Maria Davenport, Arnold Davenport, and Demorio Davenport (collectively “Plaintiffs”) filed a response in opposition to Defendants' Motion (ECF No. 120). For the reasons set forth below, the court GRANTS IN PART and DENIES IN PART Defendants' Motion to Exclude Testimony of Mr. Gilbert (ECF No. 101).


         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 (“Subject Vehicle”) 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. 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. Gilbert's testimony and opinions are the type of speculative, unfounded and unreliable opinions that Federal Rules of Evidence 403 and 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), are intended to prevent from being submitted to the jury as they would cause unfair prejudice, confuse the issues, mislead the jury and present cumulative evidence.” (ECF No. 101 at 4-5.) As such, Defendants move to exclude from evidence any testimony concerning: (1) crashworthiness or stability; (2) tire design and manufacture; (3) mechanism or cause of the alleged failure of the Subject Tire; (4) “tire aging;” (5) origin of objects in the Subject Vehicle; (6) seatbelt; (7) illustrations in Mr. Gilbert's expert report; (8) pre-accident condition of the Subject Tire; (9) effect of the size of the Subject Tire; and (10) the National Advanced Driving Simulator.[1] (ECF No. 101). On December 1, 2017, Plaintiffs filed a joint response positing that each of Mr. Gilbert's opinions indeed satisfy the Daubert standard. (ECF No. 120.) On December 15, 2017, Defendant filed a reply to Plaintiffs' response. (ECF No. 130.)


         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., No. 97-2212, 1998 WL 546097, at *3 (4th Cir. 1998).

         III. ANALYSIS

         A. Mr. Gilbert's Background

         The court must first determine whether Mr. Gilbert is qualified to present expert testimony in this case. Mr. Gilbert is a licensed engineer and received a B.S. degree in Mechanical Engineering from Colorado State University in 1993. (ECF No. 101-3 at 4.) He has been an active member of the Society of Accident Reconstructionists (“SOAR”), Accreditation Commission for Traffic Accident Reconstruction (“ACTAR”), Accident Reconstruction Communications Network (“ARC Network”), National Association of Professional Accident Reconstruction Specialists (“NAPARS”), Canadian Association of Road Safety Professionals (“CARSP”), and the Society of Automotive Engineers (“SAE”). (Id.) His company performed the first ever documented un-tripped rollover crash test of a SUV done with an automated system that steered, braked, and accelerated the vehicle by remote. (Id.) His company also performed a similar rollover test of a SUV with a tire tread separation for a police officer organization called MATAI in Iowa. (Id.) The test involved a tread separation of the left-rear tire, followed by a rollover to the driver's side. (Id.)

         Mr. Gilbert was granted a United States Patent for an anti-rollover design, “Method and Apparatus for Reducing Vehicle Rollover.” (Id.) In addition to investigating and performing a reconstruction of several hundred SUV, automobile, light truck, and heavy truck rollover accidents, he has also performed instrumented handling tests on vehicles with de-treaded and low tread tires mounted on front versus rear axles and published papers on the test results. (Id. at 4-5.)

         In addition to testing vehicles, Mr. Gilbert has also raced formula cars and won three series championships since 1991. (Id. at 5.) In 2006, he obtained his Indy Racing League (“IRL”) competition license and drove in his first two Firestone Indy Lights races. (Id.) Gilbert drove in the Firestone Indy Lights series during the ...

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