United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
August 2, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
06-60373
JIMMY CHARLES SMITH,
Plaintiff-Appellant,
v.
THE GOODYEAR TIRE & RUBBER COMPANY; ET AL.
Defendants,
THE GOODYEAR TIRE & RUBBER COMPANY
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit
Judges.
BENAVIDES, Circuit Judge:
The question before us is whether the district court abused
its discretion by rejecting the expert testimony of a polymer
scientist regarding the cause of a particular tire’s failure. The
scientist had no expertise in tire design, manufacture, or
malfunction. We find that the district court was within its
discretion to limit the polymer scientist’s testimony, and preclude
him from testifying as to the cause of the subject tire’s failure.
We AFFIRM the district court’s evidentiary ruling and its summary
judgment.
I. FACTS
In 2004, Jimmy Smith was driving a 1994 pickup when a rear
tire burst, leading to a collision that caused significant damage.
The subject tire was a Load Range E (“LRE”) manufactured by
Goodyear. While the tire was seven years old and 25% of its tread
life was worn at the time of the accident, Smith had purchased the
tire used just over a year before the accident. He kept it as a
spare until, a week before the accident, he mounted it on his
truck.
Smith sued Goodyear and several other defendants, alleging
that the defective design and/or manufacture of the tire caused its
tread to separate, thereby directly causing his accident. To
substantiate his claim, Smith retained Dr. Robert B. Moore, a
polymer scientist, to testify that the tire’s design or manufacture
was faulty. Moore had never worked in or studied the tire industry
in any capacity, nor had he ever testified as a tire expert.
Indeed, he did not claim to be a tire expert. He stated that his
expertise was limited exclusively to the study of polymers and
their adhesive properties. Having done a brief “touch and feel”
test of the tire and some internet research involving tires, Moore
concluded that the tire’s tread separated due to “improper bonding
of the rubber skim layer to the steel belts,” which could have been
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avoided with the addition of a “nylon cap overlay.” He based this
conclusion almost entirely on one article he found during several
hours of online research. See J.W. Daws, Failure Analysis of Tire
Tread Separations, 3 PRAC. FAILURE ANALYSIS 73 (October, 2003).
Goodyear moved to strike Moore’s testimony. While the
district court would have allowed Moore to offer testimony
regarding polymer fibers and their adhesive properties, insofar as
that became relevant, it would not allow Moore to give any
testimony regarding (1) the cause of the tire’s failure, and (2)
the proper design or manufacture of tires generally. Following
that ruling, Goodyear moved for summary judgment and its motion was
granted.
II. DISCUSSION
Smith appeals the court’s order to limit Moore’s testimony.
Smith also argues that, Moore’s testimony aside, there was a
genuine issue of material fact sufficient to survive summary
judgment.
A. Was Moore’s Testimony Properly Limited?
The exclusion of expert testimony is reviewed for an abuse of
discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142–43
(1997). “District courts enjoy wide latitude in determining the
admissibility of expert testimony, and the discretion of the trial
judge and his or her decision will not be disturbed on appeal
unless manifestly erroneous.” Watkins v. Telsmith, Inc., 121 F.3d
3
984, 988 (5th Cir. 1997) (internal quotations and citations
omitted).
When evaluating expert testimony, the overarching concern is
whether or not it is relevant and reliable. See Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579 (1993). A party seeking to
introduce expert testimony must show “(1) the testimony is based
upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.” FED.
R. EVID. 702.
Moore is not a tire expert. He has never been employed in any
capacity dealing with the design or manufacture of tires. He has
never published any articles regarding tires nor has he ever
examined a tire professionally prior to this litigation. His only
experience with tires is as a consumer. Cf. Hammond v. Coleman
Co., Inc., 61 F. Supp. 2d 533, 541 (S.D. Miss. 1999) (opining in
lantern defect case, expert “probably should be excluded simply
because he has had no experience in manufacturing, designing, or
testing lanterns, has conducted no tests on this lantern or any
other lantern, and has never testified in a lantern case.”). At
most, Moore is qualified to testify that the tire’s wire bonding
could have been stronger with a “nylon cap overlay,”1 but that does
1
Moore presumably was unfamiliar with the existence of
nylon cap overlays in tires until he read the Daws article, 3
PRAC. FAILURE ANALYSIS 73, but his background in polymer science
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not answer the pertinent questions: Was the tire defective without
one, or, was the lack of the nylon overlay the likely cause of this
particular tread separation?
Nonetheless, Smith insists that “[a] tire is simply an
application of the fundamental issues of polymer science.” That is
true in some sense, just as it is true that asbestos, heart valves,
and cupcakes can all be broken down into their basic atomic
particles; but that does not mean an atomic physicist is qualified
to testify regarding any asbestosis, medical malpractice, or
confectionary issue. It’s the science’s application to tires that
concerns us here, and Moore has absolutely no experience applying
polymer science to tires.
The relevant question in this case is whether this tire’s
failure was a result of a manufacture or design defect, as Smith
claims, or of abuse and misuse of the tire, as Goodyear claims.
See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 154 (1999)
(“The relevant issue was whether the expert could reliably
determine the cause of this tire’s separation.”). Moore is not
qualified to answer that question.2
probably qualified him to talk about how nylon overlays might
affect the bonding of a tire’s components. Accordingly, the
district court’s ruling would have allowed him to testify to that
extent.
2
While Moore added that his “inspection did not reveal any
defects that could be caused by use and abuse of the tire over
time,” we have already discussed why he was unqualified to render
that opinion.
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The district court was well within its discretion to exclude
Moore’s testimony regarding the cause of the tire’s failure.
B. Absent Moore’s Testimony, Did a Genuine Issue of Material
Fact Remain?
Moore’s testimony aside, Smith argues that the district court
erred in finding that there was no genuine issue of material fact
sufficient to survive summary judgment. We review that
determination de novo. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
Under the Mississippi Products Liability Act, applicable
because this is a diversity action, Smith must show that, (1) the
tire was defective at the time it left the control of the
manufacturer or seller; (2) the defective condition rendered the
product unreasonably dangerous to the consumer; and (3) the
defective and unreasonably dangerous condition of the product
proximately caused the damages for which recovery is sought. Miss.
Code Ann. § 11-1-63(a); see also Austin v. Will-Burt Co., 361 F.3d
862, 866–67 (5th Cir. 2004).
Even if we assume the subject tire was defective and
unreasonably dangerous when it left Goodyear’s control,3 we find no
3
Smith offered documents from the National Highway Traffic
Safety Administration (NHTSA) regarding an investigation of LRE
tires to substantiate his claim that the model was defective.
While the district court excluded those documents, we do not
address whether that ruling was proper because the NHTSA
documents alone would not save this case from summary judgment.
Even if those documents were admissible to show that LRE tires
generally are defective, Smith still presented no admissible
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proof of proximate cause in the record. Smith has not shown that,
seven years after the tire left Goodyear’s control, the failure of
his tire resulted from a manufacturing and/or design defect. Under
Mississippi law, “the burden of proving that when the accident
occurred there had been no substantial change in the condition in
which the product left the manufacturer is upon the plaintiff.”
BFGoodrich, Inc. v. Taylor, 509 So.2d 895, 903 (Miss. 1987). Smith
had no knowledge of whether or how the subject tire had been driven
on or used during the six years before he purchased it. Given the
age of the tire and its extensive wear, the court found that Smith
could not carry his burden on causation.
Without Moore’s testimony as to causation, which was properly
excluded, we agree with the district court. Goodyear’s expert
testimony, that the failure was caused by underinflation or
overloading, is essentially uncontroverted. The grant of summary
judgment was proper.
III. CONCLUSION
We AFFIRM the district court’s evidentiary ruling and its
grant of summary judgment.
evidence suggesting that this particular tire’s failure in this
instance was due to such a defect.
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