United States District Court, W.D. Tennessee, Eastern Division
LISA C. CONE, attorney in fact and next friend of TIMOTHY H.L. FRAZIER, and TIMOTHY H.L. FRAZIER, individually, Plaintiffs,
HANKOOK TIRE COMPANY, LTD., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTIONS IN LIMINE (D.E. 204 & 205) &
DENYING DEFENDANT'S MOTION FOR LEAVE TO FILE REPLY (D.E.
DANIEL BREEN CHIEF UNITED STATES DISTRICT JUDGE
the Court are two motions in limine filed by Defendant,
Hankook Tire Company, Limited (“Hankook”).
(Docket Entry (“D.E.”) 204 &
205.) In their complaint, Plaintiffs, Lisa C.
Cone and Timothy H.L. Frazier, aver that Frazier was driving
a concrete mixer truck when a tire manufactured by Hankook
suffered a tread separation. (D.E. 1.) The truck overturned,
and Frazier suffered serious injuries as a result.
(Id.) Cone and Frazier have offered two experts in
tire failure analysis to support their claims that the
tire's tread separation resulted from manufacturing
defects, the testimony of which Hankook now seeks to exclude.
proponent of expert testimony has the burden of showing that
the evidence is admissible. Fed.R.Evid. 104(a); E.E.O.C.
v. Tepro, Inc., 133 F.Supp.3d 1034, 1040 (E.D. Tenn.
Sept. 28, 2015), recons. denied 2015 WL 12658237
(E.D. Tenn. Oct. 21, 2015). Such evidence is governed by Rule
702 of the Federal Rules of Evidence, which provides that
[a] witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the
form of an opinion or otherwise 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
addition, the court has the authority under Fed.R.Evid. 403
to “exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues[ or] misleading the
jury[.]” The court's determination whether expert
testimony is admissible under the rule proceeds in three
steps: (1) “the witness must be qualified, ” (2)
“the testimony must be relevant, ” and (3)
“the testimony must be reliable.” United
States v. Rios, 830 F.3d 403, 413 (6th Cir. 2016),
reh'g en banc denied (Sept. 27, 2016).
district court is granted “considerable leeway in
deciding in a particular case how to go about determining
whether particular expert testimony is reliable, provided
that the gatekeeping mandate of Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579');">509 U.S. 579,  (1993), is followed
to ensure the reliability and relevancy of expert
testimony.” Rios, 830 F.3d at 413 (internal
quotation marks omitted). The reliability inquiry focuses on
the principles and methodology that underlie the evidence
more than the conclusions it generates. Vaughn v.
Konecranes, Inc., 642 F. App'x 568, 577 (6th Cir.
Daubert, the Court identified a nonexhaustive list
of factors to assist courts in assessing the reliability of
an expert opinion, including (1) “whether a theory or
technique can be (and has been) tested, ” (2)
“whether the theory has been subjected to peer review
and publication, ” (3) whether the technique has
“a high known or potential rate of error, ” and
(4) “whether the theory or technique enjoys
‘general acceptance' within a ‘relevant
scientific community.'” Johnson v. Manitowoc
Boom Trucks, Inc., 484 F.3d 426, 429 (6th Cir. 2007)
(citing Daubert, 509 U.S. at 592-94) (alterations
& some internal quotation marks omitted). Whether the
court applies these factors depends “on the nature of
the issue, the expert's particular expertise, and the
subject of his testimony.” Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 150 (1999). As the Sixth
Circuit has recognized, “the fact that [an
expert's] opinions may not have been subjected to the
crucible of peer review, or that their validity has not been
confirmed through empirical analysis, does not render them
unreliable and inadmissible.” First Tenn. Bank Nat.
Ass'n v. Barreto, 268 F.3d 319, 334 (6th Cir. 2001).
“‘The distinction between scientific and
non-scientific expert testimony is a critical one[, ]'
and . . . Daubert is ‘only of limited
help' in assessing technical or experiential
expertise.” Id. (quoting Berry v. City of
Detroit, 25 F.3d 1342, 1349 (6th Cir. 1994).
of expert testimony is the exception, not the rule.
United States ex rel. Tenn. Valley Auth. v. 1.72 Acres of
Land in Tenn., 821 F.3d 742, 749 (6th Cir. 2016). Any
weakness in the underlying factual basis goes to the weight
of the evidence, not its admissibility. Daubert, 509
U.S. at 596. “Accordingly, Rule 702 should be broadly
interpreted on the basis of whether the use of expert
testimony will assist the trier of fact.” 1.72
Acres of Land in Tenn., 821 F.3d at 749 (internal
quotation marks omitted).
OPINIONS AND ANALYSIS
Opinion of David Southwell
Defendant requests exclusion of David Southwell's opinion
that the subject tire had manufacturing defects. (D.E. 204.)
Southwell has a master's degree in engineering, a
certificate in automotive mechanics, and extensive experience
working for tire manufacturers in various capacities,
including inspecting tires, investigating tire failures, and
recording and analyzing data about tire failures and
warranties. His work in tire failure analysis at Bridgestone
involved collecting failed tires and conducting testing to
identify “how [each] tire was manufactured and what had
gone wrong in the manufacture of that tire to cause the
separation.” (D.E. 221-4 at PageID 7089.) The expert
also completed training at “Firestone University,
” which included instruction in tire design,
compounding, construction, and field engineering.
examined the subject tire along with the accident report,
photographs from the scene and of the tire, x-rays of the
tire, and shearographic images of the “companion
tire.” He identified several causes for the tread
separation, which he attributed to manufacturing defects,
including distorted belt cords, insufficient gauge of the
belt skim coat, “reduced tack and component
adhesion” caused by the use of “excessively aged
components, ” and “substantial belt
first attacks Southwell's qualifications, noting that he
works part-time as a tire failure analyst, “has no
publications or patents, ” and is not an expert in
accident reconstruction or rubber chemistry. (D.E. 204-1 at
PageID 3681.) Defendant did not explain what relevance these
purported limitations have to the expert's opinion in
this case, and Hankook does not question Southwell's
background as an engineer and vocational experience in the
tire industry. Thus, these facts do not disqualify him from
testifying. See Benton v. Ford Motor Co., 492
F.Supp.2d 874, 877 (S.D. Ohio 2007) (noting that “where
the opposing side has the opportunity to cross-examine an
expert regarding his qualifications and where the jury is
properly instructed to determine for itself the weight and
credibility to be given to the expert's testimony, an
argument opposing admissibility of the testimony on the
grounds that it is outside the witness's area of
expertise must fail”) (citing Morales v. Am. Honda
Motor Co., Inc., 151 F.3d 500, 515 (6th Cir. 1998)).
Also, Defendant has alleged that an Australian court rejected
the expert's opinion in a 2010 case. However, this Court
is unaware of the standard applied in that case or even
whether that court rejected admission of the expert's
opinions completely or instead disagreed with his ultimate
conclusions. Thus, it has no bearing on the admissibility of
his proffered opinions in this case. The Court finds that
Southwell is qualified to testify as an expert in tire
failure analysis. Next, Defendant lodges objections to the
reliability of each defect opinion offered by the expert,
which the Court will address in turn.
Belt cord straightness
to Southwell, there were defects in the placement of the
steel cords within the skim coat. He opined that steel cords
should “be arranged straight and parallel.” (D.E.
221-1 at PageID 6730.) Based on his review of photographs of
the tire, the expert identified distortion of the
“[fourth] belt ply cords, ” which he said would
result in increased stress on certain areas of the tire,
“increasing the overall component fatigue load and
potentially contributing to premature structural failure of
the tire.” (Id. at PageID 6731.) He explained
that the distorted cords caused unequal stress concentrations
in particular areas of the tire, increasing the potential for
tread separation. The expert averred that he conducted
testing while working for Bridgestone, which demonstrated
that this defect could lead to tread separation. In the
course of this testing, tires were subjected to
“durability testing on a test wheel” and after
the tires failed, they were evaluated and a “wavy
belt” was determined to be the cause of failure. (D.E.
221-4 at PageID 7062.) Southwell said that he led the team
that conducted this testing and that both he and other team
members agreed on the cause of failure. The expert admitted
that, in the present case, there was “a small area of
separation” where the wavy belt was located and that it
was not responsible for “the catastrophic failure of
the tire.” (Id.)
challenges admission of this opinion on the basis that the
expert admitted this defect did not initiate the tread
separation. Although true, Southwell distinguished the
initial site of tread separation from other
weaknesses in the tire which exacerbated the situation and
led to the tire's catastrophic failure. Further, the
expert testified that, while working at Bridgestone, he
conducted testing that supported his theory that a wavy belt
could lead to tire failure. Hankook takes issue with the fact
that there is no publicly available testing that supports his
theory. But, as the United States Supreme Court recognized in
Engineering testimony rests upon scientific foundations, the
reliability of which will be at issue in some cases. In other
cases, the relevant reliability concerns may focus upon
personal knowledge or experience. . . . [T]here are many
different kinds of experts, and many different kinds of
526 U.S. at 150. An expert can “draw a conclusion from
a set of observations based on extensive and specialized
experience, ” and “tire abuse may often be
identified by qualified experts through visual or tactile
inspection of the tire.” Kumho, 526 U.S. at
156. Southwell based his opinion on his observation of the
tire along with his experience in the tire industry,
including time spent studying the cause of tire failures. The
expert's methodology appears to be similar to that
employed by other experts in the field. See Whitten v.
Michelin Am. Research & Dev. Corp, No.
05-2761-JPM/TMP, 2008 WL 2943391, at *4 (W.D. Tenn. July 25,
2008) (accepting expert's tire failure analysis opinion
based on general industry experience and inspection of
subject tire); Cunningham v. Michelin N. Am., Inc.,
No. 04-1144-T/An., 2006 WL 5499281, at *4 (W.D. ...