Opinion
NO. 03-16-00266-CV
11-03-2017
T. J. Theis, Appellant v. Goodyear in its assumed or common name including The Goodyear Tire & Rubber Company, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-10-001511 , HONORABLE KARIN CRUMP, JUDGE PRESIDING MEMORANDUM OPINION
Appellant T.J. Theis appeals from the district court's directed verdict in favor of Goodyear Tire and Rubber Company. Theis sued Goodyear on a product-liability claim in connection with injuries he sustained in a single-car automobile accident. During the jury trial, the district court granted Goodyear's motion to strike the testimony of Theis's tire-manufacturing expert, William Woehrle, and then issued a directed verdict in favor of Goodyear. On appeal, Theis challenges the timeliness of Goodyear's objection and the exclusion of Woehrle's testimony as unreliable and baseless. We will affirm.
Background
Theis sustained severe injuries in May 2008 when the Chevrolet Suburban he was a passenger in slid across the road, crashed through a guardrail, and landed in a ditch. The driver of the SUV veered off the pavement to the right and then put the SUV in a counterclockwise spin while steering left to regain the road surface, ultimately crashing in the ditch. At some point during these events, the Suburban's right rear tire came off the rim.
The Suburban's right rear tire, manufactured by Goodyear six months before the accident, had been installed on the Suburban two months before the accident. The driver stated that he had checked the tire's air pressure two days before the crash and that, before the accident, had not experienced any problems with the tire.
Theis sued Goodyear on a product-liability claim, asserting that a manufacturing defect caused the tire to suddenly lose air pressure and unseat from the rim, causing the accident. More specifically, Theis's tire-manufacturing expert, William Woerhle, contended that the tire was defective because it had too much flash (excess rubber) on the tire bead (the edge of the tire that touches the rim and keeps the tire seated in the rim). According to Woerhle, the excess flash interfered with the tire's ability to fit on the rim to create an airtight seal and caused the tire to become unseated from the rim. Goodyear, in turn, maintains that the tire became unseated because of the lateral and vertical forces imposed on the tire during the counterclockwise spin and return to pavement.
Flash occurs when the rubber material that is inserted into a tire mold to make the tire gets squeezed out from edges of the mold.
Goodyear filed a motion to exclude Woehrle's testimony, arguing that his opinions were not based on scientifically reliable foundation. See E.I. Du Pont De Nemours & Co. v. Robinson, 923 S.W.3d 549, 557 (Tex. 1995). The trial court denied Goodyear's motion at a pre-trial admissibility hearing, so Woehrle testified to the jury at trial. Goodyear did not reassert its objections during Woehrle's testimony, but on the same day that Woehrle had finished testifying and been excused by the trial court, Goodyear moved for a directed verdict "on the fact that there is no evidence of a tire defect that caused the crash . . . and the record is completely devoid of anything scientific that could ever support a . . . defective opinion causing a bead unseat." And the next morning, Goodyear moved to strike Woehrle's testimony, arguing that, based on the evidence adduced at trial, there was no scientific evidence to support Woehrle's opinions that the tire was defective and that the existence of the flash on the tire caused the tire to unseat from the rim. The trial court held a second admissibility hearing and then struck Woehrle's testimony, determining that "the opinions offered in Mr. Woehrle's trial testimony that the subject tire was defective and caused the accident are not reliable and not grounded in methods and procedures of science and amount to no more than a subjective belief or unsupported speculation." At that point, Theis's attorney explained to the trial court that he had no additional tire-defect evidence to present to the jury and was, as a result, conditionally resting his case. The trial court then directed a verdict in Goodyear's favor, rendering judgment that Theis take nothing on his claims against Goodyear. Theis appeals from the directed verdict.
Discussion
Theis challenges the directed verdict in three issues, arguing that the trial court erred by (1) considering Goodyear's untimely objection to Woehrle's expert testimony; (2) excluding Woehrle's expert testimony as unreliable; and (3) resolving a factual dispute regarding whether the tire's defect was outside factory tolerances.
Timeliness of Goodyear's objection
We begin by addressing Theis's argument that Goodyear's objection to Woehrle's testimony was not timely. Theis maintains that because Goodyear did not object during or immediately after Woehrle's testimony—but instead waited until the day after to assert its motion to strike Woerhle's testimony—Goodyear failed to preserve error regarding the reliability of Woerhle's testimony. We disagree.
A party can "preserve a complaint that the scientific evidence is unreliable [by objecting] to the evidence before trial or when the evidence is offered." Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998). Here, Goodyear objected to the reliability of Woerhle's opinion testimony in a pretrial motion to strike and then later—on the same day as, but after a different witness testified—moved for a directed verdict. And then the next morning, Goodyear moved to strike Woehrle's testimony on various reliability grounds. See General Motors Corp. v. Iracheta, 161 S.W.3d 462, 471 (Tex. 2005) (explaining that objection following expert's cross-examination was not too late because "unreliability of expert opinions may be apparent as early as the discovery process but may also not emerge until trial, during or after the expert's testimony, or even later"). Under these circumstances, we cannot say that Goodyear's objection came too late.
Theis argues that Goodyear's objection needed to be contemporaneous to Woehrle's testimony, citing to the supreme court's admonition that "[w]ithout requiring a timely objection to the reliability of the scientific evidence, the offering party is not given an opportunity to cure any defect that may exist, and will be subject to trial and appeal by ambush." Maritime, 971 S.W.2d at 409. But the court did not hold in Maritime that an objection has to be contemporaneous with the testimony; it held that a party can "preserve a complaint that the scientific evidence is unreliable [by objecting] to the evidence before trial or when the evidence is offered." Id. And here, Theis was not ambushed by the objection—he was aware of it from Goodyear's pretrial motion to exclude. Further, there is nothing in the record to suggest that Theis was disadvantaged by the fact that the second objection came after Woerhle had been excused as a witness. Woehrle testified on direct, cross, redirect, and re-cross, including on the bases for his opinions, and Theis does not suggest what, if any, additional testimony could be adduced from Woehrle to change the bases of his opinion.
Theis also relies heavily on State v. Stockton Bend 100 Joint Venture, in which the Fort Worth Court of Appeals held that the appellant's motion to exclude and strike damage evidence was untimely, and thus had failed to preserve error regarding that evidence's admission, "because [the motion] came well after the basis for the objection became apparent." No. 02-14-00307-CV, 2016 WL 3198960, *13 (Tex. App.—Fort Worth June 9, 2016, pet. denied) (mem. op.). But Theis's reliance is again misplaced. In Stockon Bend, the appellant's motion to exclude and strike was its first objection to the evidence at issue and it was lodged as to the three previous witnesses who had all testified regarding the objected-to evidence; the appellant had not filed a pretrial motion objecting to the evidence as Goodyear did here. See id.
We overrule Theis's first issue.
Reliability of Woehrle's opinion testimony
In his second appellate issue, Theis challenges the trial court's decision to exclude Woehrle's testimony on the grounds that Woehrle's manufacturing-defect and causation opinions were unreliable. See Robinson, 923 S.W.2d at 556 (expert's testimony must be reliable).
We review a trial court's exclusion of expert testimony for an abuse of discretion. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex. 1998). "The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles." Robinson, 923 S.W.3d at 558. For an expert's opinion to be reliable, the opinion must be based on sound reasoning and methodology. State v. Central Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009); Robinson, 923 S.W.2d at 557. Expert testimony is unreliable if it is no more than subjective belief or unsupported speculation. TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 239 (Tex. 2010); Robinson, 923 S.W.2d at 557. "Unreliable evidence is of no assistance to the trier of fact and is therefore inadmissible under Rule 702." Robinson, 923 S.W.2d at 557.
The Texas Supreme Court has articulated six non-exclusive factors appellate courts may consider in determining whether scientific evidence is reliable:
(1) the extent to which the theory has been or can be tested;Id. at 557 (internal citation omitted). The approach to assessing reliability must be flexible depending on the nature of the evidence. Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 216-17 (Tex. 2010). One additional factor that has been held to be of particular significance is whether the expert has ruled out alternative causes of injury; failure to do so may render the opinion unreliable. See Robinson, 923 S.W.2d at 559 (holding expert's testimony was not based upon reliable foundation where he failed to conduct testing to exclude other possible causes of damage); Martinez, 40 S.W.3d at 593. Another is whether the expert's research and opinions were conducted and formed solely for the purpose of litigation. See Robinson, 923 S.W.2d at 559.
(2) the extent to which the technique relies upon the subjective interpretation of the expert;
(3) whether the theory has been subjected to peer review and/or publication;
(4) the technique's potential rate of error;
(5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and
(6) the non-judicial uses that have been made of the theory or technique.
To support Theis's assertion that the Suburban crashed because of a defective tire, Woehrle testified, among other things, that flash on the bead of a tire is a manufacturing defect that can interfere with the seal and cause low air pressure and that the flash on the Suburban's right rear tire did cause the tire to lose air pressure. He also testified that flash on a tire's bead can cause the tire to unseat and that the flash on the Suburban's right rear tire did cause the tire to become unseated. The trial court determined that these opinions were "not reliable and not grounded in methods and procedures of science and amount to no more than a subjective belief or unsupported speculation." Based on our own review of the record, we agree.
In support of his opinions, Woehrle explained that tires are precision products and, in that vein, that the bead of a tire is "very unforgiving of the slightest imperfections," such as flash. He explained that because flash constitutes a disruption of the surface of the tire, the flash interferes with the seal, thus potentially causing an air leak and that air leakage in the tire, in turn, causes the tire to unseat. Regarding the Suburban's right rear tire, Woehrle stated that he had examined it and found that it had flash on the bead toe (the very edge of tire where the bead meets the air chamber of the tire) and also on the bead ring (higher up on the tire from the edge). He agreed that the flash measurement on the Suburban's right rear tire was at the limit of Goodyear's tolerances for flash, but disagreed that being at the limit was within those tolerances, i.e., acceptable. Woerhle then testified that the flash on the Suburban's right rear tire prevented a smooth seal that caused the sudden loss of air pressure in the tire, which in turn caused the Suburban's right rear tire to unseat.
But on extensive cross-examination, Woehrle acknowledged that, although it is possible to test whether flash causes low air pressure or leads to bead unseat, neither he nor anyone else had conducted such tests, either specifically for this case or just generally. He testified that he was not aware of any testing conducted by anyone anywhere that supports these opinions. He also agreed that he was not aware of, and could not find, any peer-reviewed publications that state that flash can cause low air pressure in tires or that it can cause the tire to unseat, nor had he ever attempted to publish such theories or hypotheses. Likewise, he acknowledged that there had been no testing of whether flash that was within or right at tolerance specifications for the tire at issue here could cause the tire to lose air pressure. In sum, Woehrle agreed that there were no tests of any kind that support his opinions regarding the effect of flash.
Woehrle did testify that, while employed at Uniroyal, he performed three types of tests that allow him to draw conclusions that support his opinions here. The first test, called a J-turn test, involves driving straight and then quickly turning the steering wheel while the vehicle is moving. Woehrle explained that his experience with this test shows that "a bead will not unseat on a normally inflated tire at normal load at reasonable highway speed." The second test involved shooting a tire with a shotgun to see whether the tire would remain seated in the rim. But neither of these tests involve flash and its effect on tire inflation and unseating and, as such, are not relevant here. At the very least there is an analytical gap between the results of these tests and Woehrle's opinions here. And while Woerhle's third test, called a nibbling test, is arguably somewhat more relevant—it involves having a driver steer the tires off pavement onto gravel and then back on the pavement to test the tire's resistance to lateral forces—the gravel shoulder in the tests that he performed was nearly flush with the pavement, and was not an "eroded gravel shoulder where the drop-off is three, four inches," like the highway and shoulder involved in this crash. Further, the purpose of a nibbling test is to make a subjective assessment of the tires' ride, handling, and comfort as they come back on to the pavement. It is not safety testing. Woehrle himself acknowledged that he has never performed any tests specifically on bead flash or its potential to cause sudden and extreme air loss.
Woehrle explained that he reached his opinion that flash caused the Suburban's right rear tire to suddenly lose air pressure by eliminating other possibilities. Specifically, Woehrle stated that there are four potential causes for sudden loss of air pressure in a tire—permeation/diffusion (gradual loss of air molecules over time); puncture; an air-valve issue; and a bead-area defect (a manufacturing defect in the bead of the tire or in the rim). Woehrle's examination of the tire at issue here revealed no evidence of a puncture; and his pressure test of the air valve showed that it did not leak. He testified that here, with no air-valve or puncture issues, a manufacturing defect was the only possibility for the Suburban's tire because permeation would not cause a sudden loss of air pressure. But even assuming that the Suburban's right rear tire experienced sudden loss of air pressure, Woehrle's "process of elimination" technique of proving the existence of a defect was deemed unsuitable for tire-defect cases by the supreme court in Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 802 (Tex. 2006) (determining that alternative-cause analysis does not work in tire manufacturing defect cases because "universe of potential causes for tire failure is simply too large and too uncertain to allow an expert to prove a manufacturing defect merely by the process of elimination").
Theis attempts to distinguish Cooper Tires from the case at hand by noting that the expert in Cooper Tires used alternative-cause analysis to prove the existence of a defect, while Woehrle used the method to demonstrate the ramifications of a "known defect," the rubber flash. We disagree. The holding in Cooper Tires established that alternative-cause analysis should not be used to "prove a manufacturing defect" in tire-failure cases. See id. Cooper Tire leads us to conclude that a plaintiff may not prove any element of his claim of a manufacturing defect, be it the actual existence of a defect or its ramifications, merely by the process of elimination. Further, as Goodyear correctly points out, Woehrle's analysis failed to account for all of the potential causes of air loss, including lateral forces imposed on the tire during the crash sequence. Theis asserts that Goodyear's expert concurred with Woehrle's statements regarding lateral forces and ruling them out as a potential cause for air loss, but he based this on the deposition testimony by Goodyear's expert and that testimony did not apply to the crash sequence here.
Woehrle also offered two published articles in support of his opinions. The first, a 1978 article by Frank Herzegh, entitled "Evolution of the Tubeless Tire," explains that, relevant here, "rough, pitted rubber at the bead face of a tire created sealing problems." According to Woehrle, "Just like a rough or pitted surfaces [sic] on the rubber can explain a leak, so can disruptions created by excess flash." The second article is a 1975 article by J.D. Walter, entitled "Bead Contact Pressure Measurements at the Tire-Rim Interface," which references "rough, pitted rubber at the bead face" and "disturbances in the bead" creating a sealing problem. But neither of these papers mentions anything about bead unseat, flash, or air loss due to flash. Further, the 1978 article by Herzegh, which Woehrle stated was written "like a memoir," chronicles the development of the tubeless tire until its invention in 1948. It is not an empirical study of any sort, and it does not address modern steel-belted radial tries. And although the 1975 article by Walter references "rough, pitted rubber at the bead face" and "disturbances in the bead" creating a sealing problem, there is no indication that the "disturbances" Walter references are flash, or that the "sealing problem" could result in the extreme loss of air pressure that Woehrle claims caused this accident.
Theis argues that Goodyear "affirm[ed]" the admissibility of his testimony. But our review of the comments on which Theis relies indicates that Goodyear's counsel was simply acknowledging that, because the trial court had overruled Goodyear's pretrial objection to Woerhle's testimony, Woerhle was testifying to the jury. Goodyear's counsel's comments did not in any way agree that his testimony was reliable.
Based on our review of the record, the trial court did not abuse its discretion in determining that Woehrle's testimony and opinions were not reliable. Not only did Woehrle not conduct any testing to support his theories, there have been no tests and no scientific studies that lend any support to his opinions. Likewise, there are no peer-reviewed publications that support his opinion that flash can cause sudden low air pressure, and Woerhle has not attempted to publish his theory. The absence of testing and peer-reviewed literature is strong evidence that the scientific community does not at this time accept his theories. See Cooper Tire, 204 S.W.3d at 803 (counting this factor against plaintiff's tire expert because "record is devoid of proof that [the expert's] theory has achieved such general acceptance"). Further, Woerhle did not consider and rule out other issues, including the effect of lateral and vertical forces imposed on the tire during the crash sequence. Accordingly, the trial court did not abuse its discretion in excluding Woehrle's testimony.
Finally, we note that even if Goodyear had not timely objected and even if the trial court erred in excluding Woerhle's testimony, such error would be harmless because, as explained above, Woerhle's opinions are unreliable and, as such, constitute no evidence. See Houston Unltd., Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 835 (Tex. 2014) (noting that unreliable expert testimony is no evidence). Whether his opinions were struck for unreliability or constitute no evidence because of unreliability, the result is the same—i.e., there is no evidence in the record that the Suburban's tire was defective and caused the accident and, thus directed verdict was proper. See, e.g., Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000) ("A court may instruct a verdict if no evidence of probative force raises a fact issue on the material questions in the suit.").
We overrule Theis's second issue.
No evidence of tire's defect
After striking Woehrle's testimony and directing a verdict, the trial court noted on the record that it would have directed the verdict "even if" Woehrle's testimony remained in the record because there was no evidence that the flash on the Suburban's tires exceeded Goodyear's tolerances. Theis challenges this observation in his third issue, arguing that there is such evidence. Having overruled Theis's first two issues, we need not address this alternative issue.
Conclusion
We affirm the trial court's judgment.
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Pemberton and Goodwin Concurring Opinion by Justice Pemberton Affirmed Filed: November 3, 2017