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McAllister-Lewis v. Goodyear Dunlop Tires North America, Ltd.

United States District Court, D. South Dakota, Southern Division

May 19, 2017

JUDITH McALLISTER-LEWIS, individually, and as Special Administrator of the Estate of Robert L. Lewis, Deceased, Plaintiffs,
v.
GOODYEAR DUNLOP TIRES NORTH AMERICA, LTD., an Ohio limited liability company; and THE GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation, Defendants.

          MEMORANDUM OPINION AND ORDER RE MOTIONS TO EXCLUDE OPINIONS, DOCS. 66, 68, 70, 79

          Cawrence L. Piersol, United States District Judge

         Pending before the Court are four Motions to preclude the testimony of various proposed expert witnesses. Doc. 66, and related pleadings, moves to Strike and Exclude Opinions of Defendants' Expert, Kevin Breen. Doc. 68, and related pleadings, is Plaintiffs' Motion to Strike and Exclude the Opinions of Defendants' Expert, Joseph Dancy. Mr. Dancy is also the Rule 30(b)(6) representative for Defendants. Next, Plaintiffs move to Exclude Opinions of Defendants' Expert, Chuck Patrick, Doc. 70, an employee of Defendants. Finally, Defendants in Doc. 79 and related documents move to Exclude the Opinion of one of Plaintiffs' experts, William Woehrle.

         A summary of the facts is that Plaintiff Judith McAllister-Lewis was a passenger on the 2003 Harley-Davidson Ultra Classic Electra Glide Motorcycle being driven by her husband, the decedent, Robert L. Lewis. While traveling west on Interstate 90 in South Dakota on August 7, 2010, the rear tire failed. The tire was manufactured by Goodyear Dunlop Tires France O'GDTF"), a non-party. The decedent lost control of the motorcycle and died as a result of the injuries from the resulting crash. Judith McAllister-Lewis also suffered injuries from the crash. Ms. McAllister-Lewis and her husband were traveling to the Sturgis Motorcycle Rally in western South Dakota and were pulling a two wheel trailer that had a cooler affixed to the tongue of the trailer ahead of the box on the trailer.

         LEGAL STANDARD

         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, 113 S.Ct. 2786, 125 L.Ed.2d469 (1993) andKumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (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, 119 S.Ct. 1167 (quoting Daubert, 509 U.S. at 589, 113 S.Ct. 2786). 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 that it deserves." DePaepe v. General Motors Corp., 141 F.3d 715, 720 (7th Cir. 1998).

         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 facts 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, 113 S.Ct. 2786. 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, 119 S.Ct. 1167.

         The initial question is whether the testimony of each of these four expert witnesses is reliable.

         In analyzing the reliability of proposed expert testimony, the role of the court is to first determine whether the expert is qualified in the relevant field and if so, only then the Court examine the methodology used by the expert in reaching his conclusions. Kumho, 526 U.S. at 153, 119 S.Ct. 1167.

         The qualifications of these four experts do vary. All are in one way or another qualified by experience and training to testify as experts in this case. Witnesses Breen and Woehrle do not have work experience in the actual manufacture of tires. That experience is not necessary in order to testify in this case as there is other training and experience which qualifies those experts to testify. Witness Woehrle has adequate tire training and experience to testify as an expert on tires as well as on accident reconstruction. William Woehrle was also found to be qualified to testify in another motorcycle bias ply tire blow out case. McLoud v. Goodyear Dunlop Tires North America, Ltd., 479 F.Supp.2d. 882 (CD. II. 2007).

         The tire in question was a bias ply tire as opposed to a radial tire. It has not been shown that general bias ply tire considerations differ significantly from motorcycle bias ply tire application. Accordingly, the Court finds that Woehrle, Patrick and Dancy are qualified by training and experience to give expert opinion regarding the tire involved in bias ply tire failure that is the subject of this lawsuit. Mr. Woehrle and Mr. Breen are both qualified to testify as accident reconstruction expert witnesses.

         None of the four experts in question are qualified to nor claim to give adequacy of warning opinions. In most instances, including this case, under applicable South Dakota law, expert opinion is required for negligent failure to warn and strict liability failure to warn cases. Donat v. Trek Bicycle, 2016 WL 297436 (D.S.D. 2016). In cases where there is no warning of danger at all, or the warning is patently inadequate, expert testimony on failure to warn might not be necessary. That is not the case here as there are warnings in this case that are not clearly or patently inadequate. There is some question as to what exactly the warnings were, although the substance of either version is do not pull a trailer behind your motorcycle and pay attention to tire condition and inflation with the tires fully inflated to 40 p.s.i. if heavily loaded and that maximum load is indicated on the sidewall of the tire. There would have to be ...


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