Rosa Obregon Perez, Ricardo O. Perez, Individually and as Next Friend of Rosa Elia Perez, Maria Perez Jalomus, Juan Jose Perez, Julio Perez, Jr., and Fernando Perez v. the Goodyear Tire & Rubber Company

ACCEPTED
04-14-00620-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
10/23/2015 11:17:39 AM
KEITH HOTTLE
CLERK

NO. 04-14-00620-CV
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
10/23/2015 11:17:39 AM
KEITH E. HOTTLE
IN THE COURT OF APPEALS Clerk
FOR THE FOURTH DISTRICT OF TEXAS
AT SAN ANTONIO, TEXAS

ROSA OBREGON PEREZ, ET AL

Appellants

THE GOODYEAR TIRE & RUBBER COMPANY

Appellee

MOTION FOR REHEARING EN BANG OF APPELLEE
THE GOODYEAR TIRE & RUBBER COMPANY

J. Michael Myers
State Bar Number 14760800
JamesM. "Jamie"Parker, Jr.
State Bar Number 15488710
NAMAN HOWELL SMITH & LEE, PLLC
Union Square II
10001 Reunion Place, Suite 600
San Antonio, Texas 78216
(210)731-6364
Fax (210) 785-2964
Email: jparker@namanhowell. com
ATTORNEYSFOR APPELLEE
THE GOODYEARTIRE & RUBBER
COMPANY

{01677854. DOCX/4}
 Record References

Appellee will refer to the Clerk's initial record as "(CR. _), " the First

Supplemental Clerk's Record as "(CR1 _)", the Second Supplemental Clerk's
Record as "(CR2 _)", to the sealed record as "(SR )" and to the

Supplemental Sealedrecord as ("SSR_").

{03605513.DOCX/}
 Table of Contents

Page

Index of Authorities............................................................................. .................... iv

Summary ofRehearing Argument ............................................ .............................. 1

Rehearing Argument................................................................................................. 2

Rehearine En Banc Point 1 .......... ............................................................................ 2

Thepanel incorrectly determined that it hadjurisdiction over the appeal
Rehearing En Banc Point 2 ....................................................................................... 4

The panel improperly substituted its opinion for that ofthe trial court on the trial
court's discretionary decision to exclude plaintiffs expert Woehrle.

Rehearing En Banc Point 3 ....................................................................................... 9

The panel's opinion ignores the Robinson factors andalsothe analytical gaps in
Woehrle's testimony in deciding his reliability.
Rehearing En Banc Point 4 ......................................... ........................................... 10

Having improperly substituted its opinion for the trial court's discretion, the panel
also erred in overturning the trial court's judgment on supposed design defects as
Plaintiffs hadno evidence ofa defect in thetire in question whichcould support
any of their claims.

Prayer..... . .
13

Certificate of Compliance . ,
14

Certificate of Service..... ...... .
14

{03605513.DOCX/}
 Index of Authorities

Federal Cases Pages

Casey v. Toyota Motor Engineering Mfg. Co North America,
770 F. 3d 322 (Fifth Cir. 2014). .
11

Melinda Ho v. Michelin North America, Inc.,
2011 WL 3241466 (D. Kan. 2011). ....7

Melinda Ho v. Michelin North America, Inc.
520 Fed. Appx. 658 (10th Cir. 2013) .

Texas Cases

E. I. DuPont de Nemours & Co. v. Robinson,
923 S.W.2d 549, (Tex. 1995). ..5

Ernst & Young, LLPv. Pacific Mut. Life Ins. Co.,
51 S. W. 3d 573 (Tex. 2001).
Gharda USA, Inc. v. Control Solutions, Inc.,
2015 WL 2148058 (Tex. 2015). .5

Green v. State,
124 S.W.Sd 789 (Tex. App. - Houston [lstDist. ] 2003

Lehmann v. Har-Con Corp.,
39S. W. 3dl91(Tex. 2001).....

Lopez v. Munoz, Hockema & Reed, LLP,
22 S. W. 3d 857 (Tex. 2000)

IV
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 SUMMARY OF ARGUMENT

The panel deciding this case has made two fundamental mistakes that the

entire Court should address. The first is deciding a case in which the Court has no

jurisdiction in the first place. The second is in patently using the wrong standard
ofreview in addressing the trial court's actions.

The trial court here signed a summary judgment order that addressed all of

the issues and disposed of all ofthe plaintiffs' claims. If, as the panel concluded,

that judgment actually granted more relief than Goodyear was entitled to (i. e.,

granted summary judgment on unaddressed claims), that would do nothing more
than make the summary judgment order erroneous. It does not salvage a late
notice of appeal from any such erroneous judgment, which is what - at best -

occurred here.

Furthermore, the very language chosen by the panel shows that it used the

wrong standard for assessment of the trial court's actions. Instead of giving the

trial court's ruling the required deference, the panel reviewed the same evidence

that was before the trial court and unapologetically substituted its own opinions as
to Woehrle's supposed credentials and credibility. It further ignored Woehrle's

failure to meet any of the Robinson criteria, and the analytical gap that exists in

both his opinions and in his purported experience.

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 REHEARING ARGUMENT

Rehearine Point 1: The panel improperly determined that it had jurisdiction
over the appeal

The trial court in this case issued three separate orders relating to
Goodyear's motions for summary judgment. The panel concluded that it had

jurisdiction because it disagreed that "the second summary judgment order

disposed of all outstanding claims. " See Opinion at Fn 2. Specifically, the court

concluded that the first two summary judgment orders had not specifically

addressed one of plaintiffs' the warning claims in the Eighth Amended petition/

and therefore the "Final Judgment" of July 31 was actually the final appealable
order in the case. This conclusion is demonstrably wrong for at least two reasons.

First, the trial court's own words belie the conclusion. In its 'Final

Judgment" order of July 31, 2014, the trial court noted that it had previously
granted two partial summary judgments on June 2 and July 11, 2014. (CR 3613).
The trial court further noted "that those two orders, collectively, dispose of all

claims and parties before the Court... " (CR 3613)(emphasis added). So, unlike

in many cases where the trial court's intent regarding multiple orders is unknown,

there is no doubt whatsoever what the trial court intended here.

Ironically, the panel thereafterconcluded thatthere was no evidenceof such marketing defectanyway
and affirmed the summaryjudgment on that ground.

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 In determining whether an order is final for purposes ofappeal, the appellate
court must look to "the intention of the court as gathered from the language of the

decree and the record as a whole, aided on occasion by the conduct cf the parties."

Lehmannv. Har-Con Corp., 39 S. W.3d 191, 203, 205-06 (Tex. 2001). The record

in this case clearly shows that Goodyear moved for summary judgment on all

causes of action and that the trial court specifically indicated what order was

intended to dispose of all causes of action. The panel completely ignored the trial

court's own words in its ruling with no explanation whatsoever

More importantly, Appellants never raised any error that there was an

unaddressed claim in the Eighth Amended petition until oral argument in this case,

andthen it was only after havingto concede that his briefwascompletely wrong in

citing to the Ninth Amended petition and the claims therein. In short, the very
argument upon which the panel based itsjurisdictional conclusions was waived.

Finally, the panel completely ignored that the single "failure to warn" claim

could not have survived the dismissal of the design defect claim on which it was

based. Lopez v. Munoz, Hockema &. Reed, L. L. P., 22 S.W.3d 857, 862

(Tex. 2000)(failure of a breach of contract claim necessarily defeated a claim for

breach of fiduciary duty that depended on the breach of contract); Ernst & Young,
LLP v. Pacific Mut. Life Ins. Co, 51 S. W. 3d 573, (Tex. 200l)(summary judgment

motion encompassed dependent claims, and summary judgment on fraud issues

{03605513.DOCX/}
 necessarily disposed of conspiracy and aiding and abetting claims based on those

fraud claims). The sole claim the panel felt was "unaddressed" by the previous
summary judgment orders inherently depended on the supposed "defect" of the

lack of a nylon overlay. After the trial judge granted the second summary
judgment on the design claims, there was nothing left for the trial court to address

on the warning issue, which, again, was why the ta-ial court specifically and

unambiguously indicated that it had previously granted summary judgment on all
issues in the July 3 1 order.

As such, the second summary judgment order of July 1 1 was actually the

final order disposing of all claims, and the appeal was (admittedly) impermissibly
late. As such, the panel erred in concluding that it hadjurisdiction, and the entire

court should rule that there is nojurisdiction here.

Rehearine Point 2 The panel has improperly substituted its opinion for that
of the trial court on the discretionary decision to exclude Woehrle.

The question presented to the trial court, and left to its discretion, was

whether Appellants' designated expert was qualified to provide the testimony he
sought to give, and whether his opinions were reliable under the Daubert/Robinson

standards. The trial court was presented with thousands of pages of evidence on

both side of the issues, and concluded - as had the United States 10 Circuit Court

of Appeals on the same issues - that Appellants' expert should not be allowed to

4
{03605513.DOCX/}
testify as to the sole remaining issue in this case. The panel cited to the proper

standard of review, but the opinion shows that it has undertaken an improper re-
weighing ofWoehrle's qualifications and credibility.

As pointed out most recently in the Supreme Court's opinion in Gharda

USA, Inc. v. Control Solutions, Inc., 464 S.W.Sd 338 (Tex. 2015), the review of a

trial court's decision to exclude an expert is based on the abuse of discretion

standard. Id. at 347-48. That means the panel was not supposed to reverse the trial

court's discretionary ruling regarding an expert unless the trial court acted -without

reference to any guiding rules or principles. E. I DuPont de Nemours & Co. v

Robinson, 923 S.W.2d 549, 558 (Tex. 1995)(emphasis added).

In Gharda, as here, the trial court had found the experts unreliable, but the

court of appeals reversed. The Supreme Court found that the trial court had not

abused its discretion, and that ruling demonstrates that the Supreme Court

continues to carefully guard against improper expert testimony and overreach by

reviewing courts on discretionary calls by the trial court. Unfortunately, the same

overreach has occurred by the panel here in its review of the facts underlying the
exclusion of Woehrle.

In reaching its conclusion that he "was qualified, " the panel essentially

blindly accepted only the evidence from Woehrle's self-serving affidavit, and

passed over the literally hundreds of pages of evidence that Goodyear presented

{03605513.DOCX/}
 including the rulings from other cases based upon his testimony - which showed

that he specifically admitted that he was not qualified to design a tire. In fact, it

appears that the panel simply adopted Appellant's brief wholesale in its description

of the facts which the trial court had before it. The panel was not supposed to

weigh the evidence and decide whether the trial court was correct or not. Rather,

the review was supposed to be whether there was any support whatsoever for the

trial court's decision regarding the expert. Rather than detail what Goodyear

showed, and expressing how that evidence could not support the trial court's

ruling, the panel essentially turned the abuse of discretion process on its head, and

reweighed what it believed the trial court should have done under the facts.

Reweighing was not the panel's job. See Green v. State, 124 S.W.3d 789, (Tex.

App. - Houston [1stDist.] 2003, pet. refd)("under an abuse ofdiscretion standard,

it is not our role to reweigh the factors but to determine whether the trial court

could reasonably have balanced them" and reached the conclusion it did). If this

type of reweighing is allowed, the abuse of discretion standard will become

meaningless, as the result will always become what a particular panel of the

reviewing court feels the trial court should have done under the facts.

Goodyear supported its motion with numerous facts, any combination of

which could have supported the trial court's exercise of discretion, and none of

which appear to factor in the panel's opinion. The reason, of course, is that once

6
{03605513.DOCX/}
those facts are pointed out, the decision of the panel to ignore them shows that the

panel replaced its opinion as to the reliability of the expert for that of the trial

judge.

For example, Goodyear showed that Woehrle has never designed a steel

belted radial tire like the one involved in this case (CR 1295-96) and has repeatedly

testified that he would not hire himselfto design a steel belted radial tire (CR 1295-

97). Moreover, the panel specifically ruled that Woehrle was qualified to testify
regarding the nylon overlay issue, which was the only issue that the panel found

survived summary judgment. Mr. Woehrle, however, has never designed a nylon

overlay for a steel belted radial tire (CR 1311), holds no patents on nylon overlays

(CR 1294), has not published any scientific reliable peer reviewed literature that

addresses the design ofnylon overlays or their uses and benefits (CR 1348). He also

specifically admitted that he is not aware of any scientific reliable peer reviewed

publication that says the absence ofa nylon overlay is a design defect in any tire (CR

1351). He has admitted that use of nylon overlays can cause adverse effects on the

rolling resistance of a tire, affect fuel economy, add weight to a tire and create a flat

spotting problem (CR 1350). He also testified in the Ho v. Michelin case that nylon

overlays can cause issues regarding "passenger discomfort" and "costs". See Melinda

Ho v. Michelin North America, Inc., 2011 WL 3241466 *6 (D. Kan. 2011). How

are these facts not "some evidence" m support of the trial court's finding?

{03605513. DOCX/}
 In fact, the panel's complete disregard of the Ho case is telling. In Ho, the

United States 10thCircuit Court ofAppeals noted that "Woehrle's concession that
he was not qualified to design a tire" and that his design theory had been mled

inadmissible in other cases were sufficient grounds on whichto exclude his nylon
overlay design theory there. See Melinda Ho v. Michelin North America, Inc., 520

Fed. Appx. 658, 665-66 (10th Cir. 2013). The Court ofAppeals did find that it
was important that "Woehrle was not qualified to design tires. " Id. To reach the

conclusions it has here, the panel effectively found that the trial court could not

have reasonably relied on exactly the same grounds that the 10th Circuit

specifically found were sufficient to uphold a Daubert challenge against the same

witness who ^was asserting the same opinion.

One need only look at the panel's choice of words to see its mistake. The

panel examined Appellant's version ofWoehrle's qualifications and determined he

was "qualified to testify as an expert" and that his testimony was "reliable. " See

Op. at 5, 7. Respectfully, that is not the panel's job. It is the trial court's job to

determine if an expert is qualified and his testimony is reliable, and this Court's to

determine whether there is any reasonable evidence to support the trial court's

decision, whatever it might be. The panel here looked only to the evidence that

weakened the trial court's decision, not that which supported it. In short, the panel

did not conduct an abuse of discretion review; it disregarded Goodyear's evidence

8
{03605513.DOCX/}
 that supported the trial court's mling, and substituted its own conclusions regarding
the evidence instead. In other words, it is following the same trail that the court of

appeals did in Gharda, which led to a reversal by the Supreme Court.

Rehearine Point 3 The panel's opinion completely ignores the "trust me, I'm
the expert" problem inherent in Woehrle's testimony.
As noted above, the panel essentially adopted Woehrle's affidavit as the

basis ofits opinion, despite its self-serving and one-sided nature. Specifically, the

panel cited to his claims that he has "direct experience" with tire durability
performance and his "supervision over" testing while at Uniroyal as the basis for

its favorable ruling as to his credibility. See Opinion at 5. The problem with this

reliance is that it is based solely on Woehrle's ipse dixit. The panel accepted his

statements without question, and completely ignored the fact that he steadfastly

refuses to describe the supposed tests he did or the specifics of his "involvement"

with the testing because of confidentiality agreements. His opinion is that "based

on my experiences [which I can't fully describe] and the testing that I did [which I

can't talk about] it is my expert opinion that a nylon overlay should have been

addedto this tire. " Sothe panel relied solely on his "say so" instead ofrejecting it
like every single court addressing the issue says you must do. In fact, this factor

alone could have supported the trial court's ruling as to lack of reliability, yet the
panel does not even mention it.

{03605513.DOCX/}
 Rehearine Point 4 The panel's opinion effectively ignores the Robinson
factors and also the analytical gaps in Woehrle's testimony.
Worse still, the panel ignored that even Woehrle does not go so far as to say

that a nylon overlay would have prevented the tread separation that occurred in this

case. All he could ever say was that it would make the tire "more robust" not that

it would have prevented the separation in this tire. He could not do so, because he

repeatedly admitted that even tires with nylon overlays experience tread

separations. Appellants never cited to anywhere in the record where Woehrle

made any statement such as the one appearing in the Court's opinion (that "the

addition of a nylon overlay was necessary to solve the tread separation defect in

the tire at issue. "). See Op at 6. In other words, rather than look through the
record for any support for the trial court's decision to strike him (which Woehrle's

own testimony above surely does) the panel found an abuse of discretion on

arguments that Appellants never made (much less supported).

There is nothing in this record which would demonstrate that a nylon

overlay would have prevented the tread separation in this tire, much less the

accident itself. So, in addition to the qualification questions, the trial court could

have easily also excluded Woehrle because of the analytical gap inherent in his

nylon overlay conclusions.

It was part of Appellants' burden in responding to the no-evidence motion

for summary judgment to demonstrate that an alternative design would have

10
{03605513. DOCX/}
prevented or significantly reduced the risk of the claimant's personal injury,
property damage, or death. Casey v. Toyota Motor Engineering Mgf Co North

America, 770 F. 3d 322 (Fifth Cir. 2014). Appellants never did this here. In fact,

the Gharda court specifically rejected the very analysis the panel has made here.

Noting that the expert's testimony established only that the "manufacturing process

could have resulted in a contaminated product does not establish that it did in this

case. " See Gharda at 349 (emphasis added). Assuming everything in his favor,

the best Woehrle could say is that the nylon overlay would have made the tire more

robust, not that it would have prevented the result here, and he did not perform

testing to quantify anything related to this accident anyway. Even assuming that it

"could have" prevented the tread belt separation, even Woehrle does not say that it

"would have. " As such, his testimony failed for the same reason as did that of the

indisputably qualified experts in Gharda. In other words, even completely
ignoring the multitude of problems with his qualifications, Woehrle's opinions do

not meet the Gharda standards, and the panel here is ignoring the Supreme Court's

recent ruling in Gharda to reach the result it does.

Taking the issue to its core, this Court need only ask itself what supposed

defect in the tire caused this tread separation event? Appellants agreed that they

had no manufacturing defect claim. See Opinion, Fn 1. Their only design claim

related to the nylon overlay, not to anything that actually caused the separation

11
{03605S13.DOCX/}
 event. Yet, Woehrle agreed that nylon overlays do not prevent tread separations.

The analytical gap - here an actual chasm - is that Woehrle does not, and cannot

establish that the supposed defect made any difference at all in this case under

Gharda. The trial court properly recognized this analytical gap in the Appellants'

claims, which was amply supported by the evidence before him. The panel's
decision to completely ignore the issue simply cements that the abuse of discretion

review was secondary to the panel's own "finding" that the expert should be

allowed to testify. This Court, as a whole group, should reconsider whether the

panel's re-weighing of the evidence should be allowed to stand.

CONCLUSION

Goodyear hopes that this Court as a whole takes the opportunity to revisit

the panel's mistakes in this case. Put simply, the court had no jurisdiction to

address this case. In any event, if it examines the evidence that supported the trial

court s exercise of discretion instead of that which allegedly undermined it, it is

clear that there was no abuse of discretion here and the trial court's decision should

be affinned.

12
{03605513. DOCX/}
 Prayer

For all the reasons set forth above. The Goodyear Tire & Rubber Company
respectfully requests that the Court grant this motion for rehearing and for such

other and further relief to which it may be entitled.

e^ectfully S

Jan^es M. "Jamie" Parker, Jr.
Stj^te Bar Number 154887 10
J. (/Michael Myers
State Bar Number 14760800
NAMAN HOWELL SMITH & LEE, PLLC
Union Square II
10001 Reunion Place, Suite 600
San Antonio, Texas 78216
(210)731-6364
Fax (210) 785-2964
Email: iparker(5)namanhowell.com

ATTORNEYS FOR APPELLEE
THE GOODYEAR TIRE &
RUBBER COMPANY

13
{03605513.DOCX/}
 CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing document has
beensentonthe'^73ayofOctober2015,tothefollowing,asshownbelow
William G. Neumann, Jr.
Hagood & Neumann
1520 E. Highway 6
Alvin, Texas 77511
281-331-5757
281-331-1105 (fax)

S M. PARKER, J

CERTIFICATE OF COMPLIANCE

The undersigned certifies that this brief complies with the type-face and
length requirements of amended rule 9. 4 of the Texas Rules of Appellate
Procedure. Exclusive of exempted portions stated in amended rule 9.4(i)(l), the
brief contains 2, 949 words, as calculated by Microsoft Word, the program used to
prepare this document. This an^oy^t, when ^de9\to the previous briefing in the
case, does not exceed the mayfhum l|mits unde\Ru)e 9.4(i)(2)(B).
^ \J^
JAMES M. R, JR

14
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