United States District Court, D. South Carolina, Aiken Division
ORDER AND OPINION
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).
I.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
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.)
II.
LEGAL STANDARD
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
...