United States District Court, D. South Dakota, Southern Division
JUDITH McALLISTER-LEWIS, individually, and as Special Administrator of the Estate of Robert L. Lewis, Deceased, Plaintiffs,
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
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.
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.
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).
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
(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.
initial question is whether the testimony of each of these
four expert witnesses is reliable.
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.
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).
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.
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