J. MICHELLE CHILDS, District Judge.
This matter is before the court pursuant to Defendants Goodyear Dunlop Tires North America, Ltd. and The Goodyear Tire and Rubber Company's ("Goodyear") (collectively "Defendants") Motion to Exclude Testimony of Plaintiffs' Expert Witness, Dennis P. Carlson, Jr. (ECF No. 100). Plaintiff Devon Davenport ("Plaintiff") filed a response in opposition to Defendants' Motion (ECF No. 119). For the reasons set forth below, the court
On September 18, 2015, Plaintiffs Maria Davenport, Arnold Davenport, and Demorio Davenport filed a Complaint against Defendants. (ECF No. 1.) Plaintiff Maria Davenport alleged she suffered injuries while she was driving a 1996 Ford Explorer when the tread on the left rear tire ("Subject Tire") separated from the car, causing it to overturn. (Id.) Plaintiff Demorio Davenport was a passenger in the car and he also alleges that he suffered injuries during the incident. (Id.) Plaintiff Arnold Davenport alleges loss of consortium. (Id. at 2.)
Plaintiffs Maria Davenport, Arnold Davenport, and Demorio Davenport initially filed a Complaint in the Aiken County Court of Common Pleas ("Aiken County"). (ECF Nos. 34-1, 34-3.) Plaintiff Devon Davenport filed a separate Complaint relating to the alleged incident in Aiken County. (Id.) These Plaintiffs voluntarily dismissed the Aiken County Complaints on September 10, 2015, and re-filed their Complaints in this court on September 18, 2015, with Plaintiffs Maria Davenport, Arnold Davenport, and Demorio Davenport joined in one Complaint. (ECF No. 34-4.) Plaintiff Devon Davenport individually filed a second Complaint in this court (Devon Davenport v. Goodyear Dunlop Tires North America, Ltd. and The Goodyear Tire and Rubber Company, Civil Action No.: 1:15-cv-03752-JMC). (Id.) On August 2, 2016, Defendants filed a Motion to Consolidate both cases. (ECF No. 34.) On October 25, 2016, the court granted Defendants' Motion to Consolidate for all purposes, including trial. (ECF No. 46 at 5.)
In the present Motion, Defendants contend that Mr. Carlson's testimony should be excluded because his testimony lacks the requisite reliability and relevance required under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).
(ECF No. 73-3 at 14-17; ECF No. 73-2 at 24, 28, 29, 30, 34, 38, 42.) Defendants espouse that Mr. Carlson is not qualified to render these opinions "as they are the result of unsupported assumptions and insufficient facts and data, making them inherently speculative and failing to comport with the mandatory threshold for admissibility of expert testimony." (ECF No. 100 at 3.) On December 1, 2017, Plaintiffs filed a joint response positing that each of Mr. Carlson's opinions indeed satisfy the Daubert standard. (ECF No. 119.)
Pursuant to Federal Rule of Evidence ("Fed. R. Evid.") 104(a), the court must determine "[p]reliminary questions concerning the qualification of a person to be a witness . . . or the admissibility of evidence," including the admissibility of expert testimony under Fed. R. Evid. 702. Daubert, 509 U.S. at 587-88. A party offering an expert's opinion "bears the burden of establishing that the `pertinent admissibility requirements are met by a preponderance of the evidence.'" Cantrell v. Wirtgen Am., Inc., No.: CCB-07-2778, 2011 WL 915324, at *2 (D. Md. Mar. 15, 2011) (quoting Fed. R. Evid. 702 advisory committee notes (citing Bourjaily v. United States, 483 U.S. 171, 107 (1987))). In determining the admissibility of an expert's opinion, the court must reconcile the intent for Rule 702 "to liberalize the introduction of relevant expert testimony" with "the high potential for expert opinions to mislead, rather than enlighten, a jury." Id.
The admissibility of expert witness testimony is specifically governed by Fed. R. Evid. 702, which provides that an expert may offer an opinion if:
In determining whether expert witness testimony is admissible, the court evaluates whether it is relevant and reliable. Daubert, 509 U.S. at 589. Under Fed. R. Evid. 401, evidence is relevant if (1) "it has a tendency to make a fact more or less probable than it would be without the evidence" and (2) "the fact is of consequence in determining the action."
In making an assessment of relevance and reliability, courts acting as a "gatekeeper" in determining the admissibility of expert testimony, may consider a number of factors, including: (1) "whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community." Daubert, 509 U.S. at 589, 592-595. Daubert's list of factors is "meant to be helpful, not definitive" and "do not all necessarily apply even in every instance in which the reliability of scientific testimony is challenged." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151 (1999). The United States Court of Appeals for the Fourth Circuit adopted this standard for the admissibility of expert witness testimony. Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999). The Fourth Circuit stated that "the touchstone of admissibility is whether the testimony will assist the trier of fact." Wehling v. Sandoz Pharm. Corp., 162 F.3d 1158, 1998 WL 546097, at *3 (4th Cir. 1998) (table decision).
Mr. Carlson intends on testifying that the Subject Tire was defective in that it failed to incorporate a full nylon cap ply. (ECF No. 100 at 7.) Defendants contend that Mr. Carlson's nylon cap theory is unreliable and must be excluded because: (1) Mr. Carlson improperly relies on postmanufacture evidence and on evidence regarding tires not substantially similar to the Subject Tire, and (2) Mr. Carlson has no additional support for his defect theory regarding the absence of a nylon cap ply. (Id. at 8-13.) Plaintiffs respond by stating that Mr. Carlson's nylon cap defect opinion is reliable and admissible because: (1) Mr. Carlson properly references a shearography study on other tires, and (2) Mr. Carlson provides ample support for his nylon cap ply defect opinion. (ECF No. 119.)
As an initial matter, the court notes that Goodyear overstates the holding of the South Carolina court in Branham v. Ford Motor Co., 390 S.C. 203 (2010). The Supreme Court did not hold, as Goodyear advances, that all post-distribution evidence is inadmissible. The Court specifically held the contrary:
Id. at 227 n.17 (emphasis added).
Mr. Carlson's reference materials, relied upon by him and cited in his expert report, contain documents attesting to the validity and reliability of his nylon cap ply design defect theory. Significantly, two of the reference materials are deposition transcripts of Goodyear tire engineers who testified that Goodyear used nylon cap plys prior to the manufacture of the Subject Tire and that nylon cap plys reduce tread separation:
(ECF No. 85-4 at 14, 50-51, 99-100.) Similarly, a second Goodyear employee testified:
(ECF No. 101-1 at 14.) In addition to Goodyear's own words, Mr. Carlson relies on numerous publications to support his theory. An article in
(ECF No. 101-2 at 2-3) (emphasis added). A December 2000
A
Further, Goodyear misstates the law on the substantial similarity requirement. Defendants present the argument that Mr. Carlson is using the other tires he references to show that those tires caused an accident and, therefore, the Subject Tire caused the accident at issue in this case. (ECF No. 100 at 6.) Mr. Carlson uses other tires to compare tire "construction in three areas. I'm looking at whether they have a nylon, full nylon cap plies, whether they have a sufficient wedge, and the innerliner thickness." (ECF No. 73-2 at 16.) He is comparing the construction of the tires, and presents no evidence of any incident or injury caused by any of these tires. See Branham, 390 S.C. at 203 ("[I]f the cause of an accident is known and the cause is not substantially similar to the accident at issue, evidence of the other accident should be excluded. Yet, where the precise cause of an accident is not known, [] data has relevance when compared to [] data of other vehicles."). The evidence of other tires is not subject to the substantial similarity requirement.
The first table of tires in Goodyear's Motion is a shearography study conducted by Paul Maurer, an independent contractor who performs tire cuts and x-rays. (ECF No. 73-2 at 5.) The table "shows the presence or absence of nylon cap plies, and [Mr. Maurer] provided the study that he did previously, which correlates [tread] separations and cap ply usage." (Id. at 11.) Mr. Carlson testified the study is relevant to this case to show that Goodyear knew how to design tires with a full nylon cap but did not do so in the Subject Tire. (Id. at 16.) The study also supports a direct relationship between an absence of a full nylon cap ply and tread separation:
(Id. at 20.)
Finally, this testimony is not subject to the post-distribution evidence rule because "postdistribution evidence is evidence of facts neither known nor available at the time of distribution." Branham, 390 S.C. at 227. It is undisputed that the nylon cap ply design existed at least by 1969 and Goodyear used it at least by the mid-1990s. Therefore, evidence of tires with and without a nylon cap ply is evidence of facts known or available to Goodyear at the time of distribution of the Subject Tire in 2001. Therefore, the evidence is not "post-distribution evidence" and may be properly relied upon and used by Mr. Carlson.
As discussed previously, Mr. Carlson provides adequate support for his nylon cap ply defect opinion. He reviewed dozens of reference materials cited in his expert report, including deposition testimony of Goodyear's own employees, industry publications, and manufacturer documents, which support his theory. Further, Mr. Carlson conducted a physical examination of the tire and reviewed xrays of the Subject Tire.
Goodyear misstates Mr. Carlson's testimony as "a conclusory statement that because the Subject Tire did not have a nylon cap ply, it was defective." (ECF No. 100 at 13.) Mr. Carlson plainly testified at his deposition that he evaluates each tire individually:
(ECF No. 73-2 at 9.) (emphasis added). Mr. Carlson follows a reliable and widely used methodology in examining the tire and reaching his opinions. Therefore, the court finds that Mr. Carlson's qualifications, analysis, methodology, and nylon cap ply opinion are reliable.
Mr. Carlson has offered the opinion in his deposition and expert report that the Subject Tire is defective due to a lack of adhesion of the second belt to the rubber, and a defective belt joint, caused by lack of "antiozonants" and inadequate aging resistance. (ECF No. 100 at 13.) Defendants argue that Mr. Carlson fails to: (1) provide any explanation as to what specific aspect of the design of the tire, and/or the specific act within the manufacturing process of the tire, affected the adhesion of the belt to rubber; (2) identify how the tire aging properties of the tire were deficient; and (3) provide evidence as to how this alleged manufacturing defect occurred. (Id. at 14-16.) Plaintiffs disagree stating that Mr. Carlson's improper adhesion, inadequate aging resistance and defective joint belt theories are supported by ample and reliable evidence. (ECF No. 119 at 14.)
Mr. Carlson's improper adhesion, inadequate aging resistance, and defective joint belt opinions are supported by the evidence and are reliable. He explains the following in his expert report:
(ECF No. 73-3 at 5, 7, 14.) In his expert report, Mr. Carlson cites to over twenty reference materials regarding adhesion. (Id. at 35-37.) Mr. Carlson explained the basis for his improper adhesion opinion in his deposition:
(ECF No. 73-2 at 8, 38, 45.) Mr. Carlson identified the defects, explained them, provided alternative designs, and identified specific products on the market at the time of manufacture of the Subject Tire that had alternative designs and correct manufacturing.
Further, and contrary to Goodyear's assertions, Mr. Carlson cites to reference materials containing the compounds for the adhesion process and detailed explanations for the process. (ECF No. 119-5.) He also cites to reference materials discussing the science of aging resistance. (ECF No. 73-3 at 26-29; ECF No. 119-6.) This demonstrates his knowledge of and reliance on scientific publications regarding the subject defects. Mr. Carlson's opinions are supported by the evidence and he used reliable methodology to reach his opinions, which are supported by his knowledge and experience as well as widely accepted scientific publications.
As to the defective joint belt theory, Mr. Carlson testified the defective belt joint occurred "almost certainly [due to] him making the joint and letting it not be a butt joint in the belt." (ECF No. 73-2 at 37.) The majority of Goodyear's argument on this issue focuses on Mr. Carlson's use of the word "almost" before the word "certainly" when explaining in his deposition how the defective belt joint occurred. (ECF No. 100 at 16.) There is no authority stating that an expert must state his opinions with 100% certainty. "`Rule 702 does not require that an expert's opinion testimony be expressed in terms of a reasonable scientific certainty in order to be admissible . . . An expert's lack of absolute certainty goes to the weight of that testimony, not its admissibility'" Samuel v. Ford Motor Co., 112 F.Supp.2d 460, 472 n.16 (D. Md. 2000) (quoting Stutzman v. CRST, Inc., 997 F.2d 291, 296 (7th Cir. 1993)) (internal quotation marks omitted). An expert opinion is reliable when "it is supported by adequate validation to render it trustworthy." Westberry v. Gislaved Gummi AB, 178 F.3d 257, 260 (4th Cir. 1999). "[T]he court need not determine that the expert testimony a litigant seeks to offer into evidence is irrefutable or certainly correct." Id. at 261.
Finally, Goodyear's argument that Mr. Carlson "ignores authoritative research" that supports Goodyear's position is an argument proper for cross-examination but not for exclusion of an expert's opinion. See Westberry, 178 F.3d at 261 ("As with all other admissible evidence, expert testimony is subject to being tested by vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.") (internal quotation marks omitted). Mr. Carlson's testimony is sufficiently reliable expert opinion testimony under Fed. R. Evid. 702 and the cases interpreting the Rule.
Mr. Carlson intends to opine that the Subject Tire was designed defectively as it had an inadequate wedge. (ECF No. 100 at 17.) Defendants contend, however, that "Mr. Carlson: (1) does not articulate what exactly is defective regarding the wedge or what the characteristics of a nondefective wedge would be; (2) has failed to provide any support for this assertion; (3) has not conducted any applicable testing; and (4) has failed to provide any support for his opinion, other than the opinion itself." (Id.) Plaintiffs respond by stating that Mr. Carlson's inadequate wedge opinion is supported by the evidence and will assist the jury; Goodyear "merely ignores that testimony." (ECF No. 119 at 19.)
Mr. Carlson provided ample explanation and support for his opinion regarding the Subject Tire's inadequate wedge:
(ECF No. 73-2 at 17, 33, 47.) This testimony shows Mr. Carlson explained the defectiveness of an inadequate wedge—pinching that occurs where the tire separations start—and identified specific tires that had safe wedge designs at the time of manufacture. In his expert report, Mr. Carlson explained as follows:
(ECF No. 73-3 at 3, 7, 16-17.) Mr. Carlson explained the purpose of the wedge in the design and overall safety of the tire, as well as his experience spending 10 years testing wedge designs for Michelin tires.
Goodyear appears to challenge Mr. Carlson's qualifications to testify about wedges by asserting that he does not provide enough detail about the wedge testing he conducted while at Michelin. (ECF No. 100 at 18.) This is inaccurate. Mr. Carlson explained he conducted testing on tire wedge designs from 1977-1987 at Michelin, thus providing a time and place of testing. (ECF No. 73-3 at 16-17.) Mr. Carlson's CV contains further explanation of his experience at Michelin from 1977-1987: "Four years in truck and light truck tire design including concept, testing and evaluation at MARC. Developed and put into production the XDA and XDL tires, the XM+S4 in pilot sizes and several light truck tires. Experience in cold and hot recapping procedures." (ECF No. 73-1). This testing experience is sufficient.
Mr. Carlson's opinion is supported by the x-rays and photographs of the Subject Tire in which he identifies the inadequate wedges, as well as his knowledge and experience working on and testing wedge designs at Michelin, and the numerous wedge scientific reference materials cited in his expert report. Therefore, the court finds his opinion will assist the jury on this issue.
Mr. Carlson states that practical and safer alternative designs were available at the time this tire was made, and which included "adequate wedging." (ECF No. 73-3 at 17.) However, Defendants believe that because Mr. Carlson cannot provide specific information as to what tires, if any, existed that in his opinion would be alternative and non-defective designs to the Subject Tire, Mr. Carlson's opinion must be excluded as unreliable and not based on sufficient evidence. (ECF No. 100 at 21.) Plaintiffs oppose Defendants' statements and espouse that the fact that "Goodyear [does] not want testimony that the alternative designs have been known to and used in the tire industry for decades is not a basis for exclusion." (ECF No. 119 at 21.)
Mr. Carlson identified manufacturers and tires that employed feasible alternative designs:
(ECF No. 73-2 at 33, 45.) Mr. Carlson specifically testified that the difference in the tire size does not make a difference in his testimony because "it is the same load rating and is virtually the same size." (ECF No. 73-32 at 45.) See Marshall v. Lowe's Home Ctrs., LLC, No. 4:14-cv-04585-RBH, 2016 WL 4208090, at *5 (D.S.C. Aug. 10, 2016) (holding that a plaintiff must "present evidence of a reasonable alternative design, which includes consideration of the (1) costs, (2) safety, and (3) functionality associated with the alternative design.").
Identification of the alternative design used by another manufacturer is sufficient proof of feasible alternative design. See Wickersham v. Ford Motor Co., 194 F.Supp.3d 434, 439 (D.S.C. 2016) (stating plaintiff's expert's "testimony clearly indicates that other manufacturers have utilized the raised threshold approach [alternative design] in the past. See Caruso Depo. 137:19-138:24 (explaining that designs created by Delco—Caruso's former employer— incorporated such a system and would not have deployed the airbag if used in this case). The fact that this approach was used in the past certainly suggests that it is feasible from a cost, safety, and functional perspective.")). Further, in Wickersham, the design was used in other vehicles and this did not render it insufficient. The relevant point is that the design and technology existed at the time of manufacture and other manufacturers used it. Accordingly, the court finds that this refutes Goodyear's argument that Mr. Carlson's opinion is insufficient because it does not identify the alternative design used in the same tire size. Mr. Carlson's opinion on this subject is admissible.
Mr. Carlson intends to offer the opinion that the Subject Tire was not run in an underinflated or overloaded state (i.e., over-deflection). (ECF No. 100 at 21.) Defendants contend, however, that Mr. Carlson has no evidence as to the weights of the occupants of the vehicles or the weight of the vehicle at the time of the accident, performed no testing to determine the weight of the vehicle at the time of the accident or before, has no record of the historical tire pressure of the tire on the Subject Vehicle, and possessed no other evidence to indicate whether the vehicle was overloaded and/or if the tire were run underinflated. (Id.) Plaintiffs discredit this argument by stating that Mr. Carlson's physical examination of the Subject Tire in conjunction with scientific publications and studies that over-deflection does not cause tread-belt separations renders his opinion admissible. (ECF No. 119 at 24.)
The court acknowledges the scientific publication presented to the court by Plaintiffs which states that "over-deflection does not produce tread-belt separation failures even in aged tires." (ECF No. 119 at 24.) However, it also acknowledges the article presented by Defendants which states "overdeflection. . . can be evidenced by conditions such as balance weight impressions." (ECF No. 100 at 23.) Mr. Carlson testified that "there are wheel weight marks (also referred to as balance weight impressions) on the tire . . . which do not indicate over-deflection." (ECF No. 119 at 25.) While the court understands that wheel weight impressions don't always indicate over-deflection, Mr. Carlson's testimony is clearly at odds with other interpretations on this matter.
The court notes that Plaintiffs' challenge to the conflicting scientific authority on the subject of over-deflections' effect on tread-belt separation can be cross examined during trial. See Daubert, 509 U.S. at 596 ("[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."); see also McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995) ("[d]isputes as to . . . faults in [the expert's] use of differential etiology as a methodology, or lack of textual authority for his opinion, go to the weight, not the admissibility, of his testimony."). The plausibility of alternative explanations of an expert's testimony is a weight issue that should go to the jury and not the admissibility. Westberry, 178 F.3d at 265. The court need not determine that a proffered expert's testimony is irrefutable or certainly correct. See Cavallo v. Star Enter., 100 F.3d 1150, 1158-59 (4th Cir. 1996). However, a trial court must mind the high potential for expert opinions to mislead, rather than enlighten, a jury. Westberry, 178 F.3d at 261. Therefore, because the court finds that Mr. Carlson's testimony consists of scientific knowledge and will assist the jury in determining a fact in issue, Mr. Carlson's opinion regarding the effects of over-deflection on treadbelt separation has met the requirements set forth by Daubert.
However, because Mr. Carlson has no evidence as to the weights of the occupants of the vehicles or the weight of the vehicle at the time of the accident, performed no testing to determine the weight of the vehicle at the time of the accident or before, has no record of the historical tire pressure of the tire on the Subject Vehicle, and possessed no other evidence to indicate whether the vehicle was overloaded and/or if the tire were run underinflated, the court finds that Mr. Carlson's opinion as to whether the Subject Tire itself was over-deflected would not be reliable and therefore may not be admitted.
Defendants contend that Mr. Carlson's opinion that the presence of tires of a different size on the Subject Vehicle than that recommended for use by the Owner's Manual "made no difference" is unsubstantiated and should be excluded. (ECF No. 100 at 25.) Plaintiffs respond by stating that Mr. Carlson testimony is supported by his knowledge and experience, common practice in the industry, and the testimony of the owner of H&B tires who sold Mr. Davenport the tire who also commented that the different size tires "made no difference." (ECF No. 119 at 28.)
Pursuant to Fed. R. Evid. 702's requirements, the expert testimony must be "based on sufficient facts or data," "the product of reliable principles and methods," and that the expert "reliably appl[y] the principles and methods to the facts of the case." Mr. Carlson does not produce sufficient facts or data for his contention that the varying sizes of tires on the Subject Vehicle "made no difference." Mr. Carlson has not performed on-vehicle testing and does not cite any authority to support this opinion besides that "manufacturers provide procedures for how to use different size tires than those originally provided with the car and that the size difference in this case was minimal." (ECF No. 119 at 27.) As such, the court cannot allow testimony that amounts to personal speculation. See In re Bausch & Lomb Contact Lens Sol. Prods. Liab. Litig., No. 1785, 2009 WL 2750462, at *9 (D.S.C. Aug. 26, 2009) ("An expert's subjective, personal beliefs or speculation fail to satisfy the requirement of reliability.").
Mr. Carlson proposes to offer the opinion that the pounds per square inch (PSI) in the Subject Tire before the Subject Accident was over 20 PSI ten milliseconds. (ECF No. 100 at 26.) Defendants argue that this opinion is speculative and not supported by data or evidence requiring exclusion. (Id.) However, Plaintiffs counter that Mr. Carlson's testimony is supported by scientific principles, industry tire pressure specifications, and his education and knowledge. (ECF No. 119 at 28.)
Under Fed. R. Evid. 702, the court's role in considering the admissibility of expert testimony is to assess whether the evidence is sufficiently reliable and relevant. Kumho Tire Co., 526 U.S. at 152. The court finds that Mr. Carlson's opinion on this issue achieves both aims of reliability and relevancy. Mr. Carlson explained in his report that "tire companies know that their tires are frequently subject to under-inflation in highway use and build a safety factor of approximately 20% into their tires over the published load-inflation tables." (ECF No. 73-3 at 6.) He further explained in his deposition that:
(ECF No. 73-2 at 28.) This testimony explains that, in the tire industry, manufacturers build in an inflation safety margin of six PSI. Mr. Carlson then explains that the Subject Tire had a maximum PSI of 35, but based on his testing calculations on Explorers, the rear tire loading does not get to low pressure until about 20 PSI. Based on this industry knowledge and testing calculations of an Explorer, Mr. Carlson testified the Subject Tire PSI was more than 20. This is not personal speculation, but is supported by the industry science and design, as well as Mr. Carlson's calculations and observations. Consequently, Mr. Carlson's opinion on this matter is admissible.
Mr. Carlson intends to offer an opinion regarding the meaning of the lack of "road rash" on the wheel. (ECF No. 100 at 27.) However, because Mr. Carlson is not an expert in accident reconstruction, Defendants state that he is not qualified to render this opinion and thus it should be excluded. (Id.) Plaintiffs assert that whether or not road rash exists on the wheel is a fact based on physical observation, not opinion, and therefore Mr. Carlson is qualified to analyze the absence or presence of physical marking and characteristics of a wheel and any implications of such. (ECF No. 119 at 29.)
Mr. Carlson offered the following opinion in his deposition:
(ECF No. 73-2 at 42) (emphasis added).
The United States Supreme Court held that the trial court's gatekeeping function applies to all kinds of specialized knowledge, not only scientific knowledge. See Daubert, 509 U.S. 579. The trial court must "make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co., 526 U.S. at 152. As Mr. Carlson himself admitted, Mickey Gilbert, Plaintiffs' designated accident reconstruction expert, is better suited to testify regarding the accident sequence. Mr. Carlson did not reconstruct this accident (ECF No. 73-2 at 23) regarding the sequence of events occurring during the accident. In addition, in Mr. Carlson's deposition, he went on to say that "[I]f you got an accident recon guy, they may be able to tell you from the evidence on the road. I can't tell you from the tire when it deflated." (ECF No. 73-2 at 42.) Mr. Carlson admits that he is unable to conclude with any certainty when the tire deflated. Accordingly, this opinion will be excluded as unreliable and based on insufficient facts and evidence.
Mr. Carlson plans to opine that, at the time Arnold Davenport purchased the Subject Tire, it likely had some cracking present, but that the cracking would not have been as noticeable as it was at the time of Mr. Carlson's deposition. (ECF No. 100 at 28.) Defendants contend, however, that Mr. Carlson has no evidence to support this opinion. (Id.) Plaintiffs invalidate this argument by stating that Mr. Carlson's knowledge and experience in the tire industry, along with his personal testing experience, qualify him to testify about when the cracking appeared. (ECF No. 119 at 30.) Further, they argue that his testimony is supported by other evidence in the record that the cracking, at the time Mr. Davenport purchased the Subject Tire, was not of the magnitude as it was when Mr. Carlson examined the tire. (Id.)
At his deposition, Mr. Carlson testified as follows:
(ECF No. 73-2 at 29) (emphasis added). Mr. Carlson concedes that he does not have an opinion to offer within his field of expertise and does not present information or testing to support this contention. While Mr. Carlson has tested tire cracking, his opinion that the cracking on the tire at the time Mr. Davenport purchased it was less than the cracking on the tire when he examined it is not supported with any facts or evidence, and is therefore excluded from trial.
Based on the foregoing, the court
