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McCloud v. Doodyear Dunlop Tires North America

March 5, 2007


The opinion of the court was delivered by: Joe Billy McDade United States District Judge


Before the Court is Defendant's Motion to Bar Testimony [Doc. 163] and Defendant's Motion to Strike [Doc. 199]. For the following reasons, Defendant's Motion to Bar is DENIED and Defendant's Motion to Strike is GRANTED.


On May 26, 2002, Plaintiffs Trish McCloud and William Booker were riding on Booker's motorcycle when the rear tire (the "subject tire") suffered a blow out. The crash resulted in minor injuries to Booker and serious injuries to McCloud. On April 4, 2004, McCloud brought this diversity suit against Goodyear Dunlop and Goodyear Tire & Rubber Co. claiming that the tire was defective. On May 18, 2004, Booker filed his own suit against Defendants, also alleging a manufacturing defect. Both suits have now been consolidated.

The subject tire was a bias ply motorcycle tire, called a Dunlop Qualifier K627B. A tire is generally composed of reinforcing layers of material or plies. The layers of the subject tire are as follows: An "innerliner" ply serves as the functional equivalent of an inner tube, and is the first ply placed on a tire-building drum. The innerliner ply does not have any cords embedded in it. The next two plies are carcass plies, which have nylon cords embedded in the rubber. These carcass plies help to give the tire strength and shape. The edges of the carcass plies and the innerliner ply are wrapped around beads, which in the finished tire are pressed against a flange on the vehicle wheel rim so the tire can be inflated. After the assembly of the innerliner and carcass plies, two belt plies are added, and then two sidewall plies -- the edges of which are also turned up around the beads. The last layer of the tire is the tread ply. The tread ply, as one would expect, is the outer layer of tread which contacts with the road. These plies together are the primary components of a "green tire." During manufacturing, this green tire is then placed in a mold and vulcanized, or subjected to pressure and heat, to produce the finished tire.

Both sides agree that the failure of the tire occurred because the innerliner of the tire was compromised by the nylon cords. However, they disagree as to how and when this occurred. Plaintiffs' experts conclude that the cords became embedded in the innerliner during manufacturing, due to a manufacturing defect known as a "tight tire" or "tight carcass". Essentially, Plaintiffs argue that during the manufacturing process, the cords from the carcass plies became embedded in the tire's innerliner. Over time, air was able to migrate from the inner chamber through the lays of the tire out to the sidewall. While the sidewall was able to hold the air, it was not designed to hold air so it eventually burst causing the accident. On the other hand, Defendant's experts conclude that the tire was run "overdeflected" for a long period of time. "Overdeflection" of a tire is when a tire is under-inflated and/or overloaded.*fn1

Defendant believes that overdeflection in this case caused "bending compression" in the cords, which in turn resulted in the cords pulling through the innerliner leading to the blowout.

Plaintiffs plan to call two expert witnesses as part of their case-in-chief -- Gary Derian and William Woehrle. Plaintiffs also plan to call one expert witness, Alan Kasner, as a rebuttal witness. Defendant is now seeking to bar Plaintiffs experts based upon Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals Co., 509 U.S. 579 (1993).

A hearing was held on this matter on July 11 and 12, 2006 ("Daubert hearing") and upon receipt of the transcripts from that hearing, the parties filed post hearing briefs. (Def. Brief, Doc. 108; Plaint. Brief, Doc. 209.) At the hearing, this Court ruled that certain parts of Kasner's testimony were stricken and Kasner cannot testify as to plaintiff's theory of a manufacturing defect. That is to say, Kasner cannot testify that the subject tire was manufactured as a tight carcass. The Court stated at the time that such testimony duplicates the testimony by Plaintiff's other experts. However, the Court allowed Plaintiff to proceed on his testimony that it is physically impossible for the blow-out to be caused in a manner as described by Defendant's expert.

Finally, in their post hearing brief there are several facts emphasized by Defendant to dissuade this Court from allowing the Plaintiffs' experts to testify. Those facts center on testing performed by Plaintiffs' expert Woerhle. Woerhle performed tests on a tire ("test tire") that was the same make and model as the subject tire. The test tire was run for 3,246 miles when fully inflated.*fn2 Woerhle then measured the test tire against the subject tire and found that the overall diameter of the subject tire was one inch smaller than the test tire. Also, the test tire had a contact patch*fn3 of only three inches wide while the subject tire had worn down further and had a contact patch of 4.5 inches wide. With these facts in mind, Defendant now seeks to bar Plaintiffs' experts.


The admission of expert testimony is governed by Rule 702 of the Federal Rules of Evidence and the principles set forth by the Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). As such, a district court is required to determine, as a threshold matter, whether the expert would testify to valid scientific knowledge, and whether that testimony would assist the trier of fact with a fact at issue. Rule 702 "imposes a special obligation upon a trial judge to 'ensure that any and all scientific testimony . . . is not only relevant but reliable.'" Kumho, 526 U.S. at 147 (quoting Daubert, 509 U.S. at 589). When applying Rule 702, the trial court functions as a "gatekeeper" whose role is "to keep experts within their proper scope, lest apparently scientific testimony carry more weight with the jury than it deserves." DePaepe v. General Motors Corp., 141 F.3d 715, 720 (7th Cir. 1998).*fn4

To determine the admissibility of expert testimony pursuant to Rule 702, the Daubert Court suggested four non-exclusive factors that can be used to assess the relevancy and reliability of an expert's testimony. The factors include:

(1) whether the theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error and the existence and maintenance of standards controlling the technique's operation; and (4) whether the technique has achieved general acceptance in the relevant scientific or expert community.

Daubert, 509 U.S. at 593-94. The list of factors "is not considered to be definitive nor exhaustive, but rather flexible to account for the various types of potentially appropriate expert testimony." Kumho, 526 U.S. at 137.

The issue at hand is whether the testimony of Plaintiffs' three expert witnesses is reliable. In analyzing the reliability of proposed expert testimony, the role of the court is to determine whether the expert is qualified in the relevant field and to examine the methodology the expert has used in reaching his conclusions. See Kumho, 526 U.S. at 153.


Under a Daubert inquiry, a district court must first analyze whether an expert is qualified in the relevant field and only then does the Court examine the methodology used by the expert. Kumho, 526 U.S. at 153. Accordingly, the Court will first discuss Woehrle and Derian, the two experts who are part of Plaintiff's case in chief. Next, the Court will look at Kasner, Plaintiff's rebuttal witness. With each expert the Court will first cover their qualifications and only then will the Court look to their methodology. Lastly, the Court will address Defendant's pending Motion to Strike.

A. Admissibility of Woehrle and Derian

i. Qualifications

An expert may be qualified by "knowledge, skill, experience, training, or education." Fed. R. Evid. 702. While "extensive academic and practical expertise" in an area is sufficient to qualify a potential witness as an expert, Rule 702 "specifically contemplates the admission of testimony by experts whose knowledge is based on experience." Walker v. Soo Line R. Co., 208 F.3d 581, 591 (7th Cir. 2000). Thus, a court should consider a proposed expert's full range of practical experiences as well as academic or technical training when determining whether that expert is qualified to render an opinion in a given area. Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).

Woehrle and Derian both have extensive experience in tire manufacturing and tire failure analysis. Woehrle has a B.S. in Physics; has taken twenty courses in tire testing, quality, and management; is the current Chairman of the Highway Tire Committee of Society of Auto Engineers; is the past President of the Tire & Rim Association; and past Chairman of the Tire Engineering Policy Committee for Rubber Manufacturing. Woehrle also ...

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