Products Liability Law Daily Decision to bar expert testimony in Michelin tire defect action upheld on appeal
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Friday, September 11, 2020

Decision to bar expert testimony in Michelin tire defect action upheld on appeal

By Robert B. Barnett Jr., J.D.

Jury’s exoneration of Michelin and finding of zero damages in tire tread separation case affirmed.

After a jury rendered a verdict in favor of Michelin North America, Inc. in a defective tire suit, the Texas Court of Appeals affirmed the decision, ruling that the lower court did not err when it refused to allow an expert’s opinion on two of his five theories of liability because the expert’s "experience" was not a sufficient justification by itself for allowing opinions that were contrary to the great weight of scholarship and evidence on the subject. In addition, the lower court did not err in granting a directed verdict to Michelin on the plaintiffs’ gross negligence claim because, while evidence of defects may have existed, no evidence existed that Michelin had any knowledge of those defects. Also, a Michelin lawyer’s comment in closing arguments that the other side’s lawyer was "dishonest as the day is long" was curable error that did not justify a new trial. The jury’s finding of liability by the owner of the truck which had the allegedly defective tire for poor tire maintenance without awarding damages for personal injuries also was not error as it applied to Michelin because the jury found that Michelin was not liable for the deaths that resulted from the accident in the case. Finally, the lower court did not err by agreeing to seal the record to protect Michelin’s trade secrets, with the exception of documents filed around one motion to exclude because the sensitive information had already been redacted (Witt v. Michelin North America, Inc., September 10, 2020, Birdwell, W.).

Background. Two vehicle occupants were killed in an accident after being struck by a truck on a highway. The tread on the Michelin tire on the truck had separated, causing the truck to swerve across the median into oncoming traffic, hitting the vehicle which resulted in the two deaths. The decedents’ survivors and their estates sued the driver of the truck; Morgans of Briar Oaks, LLC, the driver’s employer and the truck’s owner; and Michelin North America, Inc., the tire manufacturer, in Texas state court. The complaint alleged that Michelin designed, manufactured, and marketed the failed tire and that the company was grossly negligent in the design and manufacture of the tire.

At trial, the court directed a verdict for Michelin on the plaintiffs’ gross negligence claim. The jury returned a verdict that the tire was not defective, but that Morgans of Briar Oaks had been negligent in maintaining it. The jury ordered Briar Oaks to pay damages of $9,569.94 for one of the decedents and $1,922 for the other for funeral expenses. The two estates and their family members appealed to the Second Appellate District of Texas, making the following assertions: (1) the trial court erred when it excluded expert testimony on two of the five alleged tire defects, (2) the court erred when it granted Michelin a directed verdict on the gross negligence claim, (3) the court erred when it refused to grant a new trial because of caustic comments by Michelin’s lawyer, (4) the jury’s finding of no damages was against the great weight and preponderance of the evidence, and (5) the court erred when it agreed to seal the record.

Expert testimony. The estates used the same expert witness to support all five theories of liability. The expert’s qualifications were beyond dispute. The issue, instead, was whether he could support his opinions on two of the five theories: (1) belt irregularities and (2) liner pattern marks. The trial court ruled that he could not, and it would not allow the estates to pursue the two theories of liability. The court did, however, allow his testimony on the other three theories.

Belt irregularities. The expert’s belt irregularity theory was that manufacturing defects created belt irregularities that contributed to heat generation and stress within the failed tire. To support his theory, the expert cited only one source article, and the expert did not know whether or not the author was an engineer, what her qualifications were, or whether the article was peer reviewed. The expert also testified that he was not aware of any peer-reviewed literature that supported his theory. In fact, the literature that does exist on the subject has rejected that theory. Instead, the expert said that he was relying on his "training and experience in the industry."

Perhaps most importantly, the expert acknowledged that the belt irregularities that he found in the tire were within Michelin’s specifications. In addition, the U.S. Court of Appeals for the Tenth Circuit had disallowed an expert opinion on this same theory in another case (Ho v. Michelin N. Am., Inc., 520 Fed. App’x 658, 665 (10th Cir. 2013)). Because the theory ran counter to the "majority of established literature and testing" and because the irregularities remained within specifications, the appellate court concluded that the lower court did not err in excluding the expert testimony on belt irregularities.

Liner pattern marks. The expert’s liner pattern marks theory was that Michelin’s production process caused delays, which allowed the raw rubber to dry out and impede the bonding that was supposed to occur when the various parts were cured together. The liner marks should have been obliterated. When the expert saw them, he concluded that the proper bonding never occurred. The expert’s cited sources in support of this theory were stronger than for the belt irregularities theory, but not by much. One source, for example, was from a defunct trade magazine. The Texas Supreme Court had directly questioned the validity of another source in a separate case. A third source gave only indirect support. Once again, however, the bulk of the literature on the subject was contrary to his theory. On the liner pattern marks theory, the appellate court acknowledged, the question was "a close one." Ultimately, the appellate court concluded that no error occurred in excluding the testimony because the trial court has broad discretion to exclude testimony.

Gross negligence. To establish gross negligence, a party must prove both that a defect existed and that the other party was subjectively aware of that defect, which posed an extreme degree of risk. The appellate court agreed that the estates had established evidence of defects, using the three theories that the expert witness was allowed to pursue. The gross negligence claim, however, failed on the second requirement. The estates offered no evidence that Michelin was aware of the defects. In fact, as the court noted, a lot of evidence existed that the opposite was true, with multiple Michelin employees testifying that they did not know about the defect’s existence and that their manufacturing process used every possible effort to ensure that such defects did not arise. Thus, the lower court did not err in directing the verdict for Michelin.

Improper argument. The estates asserted that Michelin’s lawyer’s comment during closing argument that the estates’ lawyer was "dishonest as the day is long" was reversible error. Over the years, Texas courts have ruled on whether various comments by lawyers constituted reversible error or curable harm. The most similar case was a decision finding that the comment "That’s dishonest" was curable harm (Hopkins v. Phillips (Tex. App. 2019)). Applying the guidelines from Hopkins, the appellate court agreed with the lower court that the lawyer’s comments were curable harm, particularly given the huge record that existed in the case to offset any possible error. The appellate court, therefore, rejected the appellants’ contention that the comment was incurable harm.

Damages evidence. The estates argued that the jury decision that liability existed, but no damages were warranted, other than funeral costs, could not be supported by the evidence. The appellate court noted, however, that the estates had settled with the truck owner after the verdict, leaving only Michelin as a defendant. Given that no liability was found against Michelin, no damage award was warranted. Thus, no error occurred with the jury’s finding of zero damages.

Sealed record. The lower court agreed to seal the record to protect Michelin’s trade secrets. The appellate court affirmed that decision with a couple of minor exceptions. The estates’ response to Michelin’s motion to exclude the expert’s testimony, the estates’ motion to reconsider the exclusion of the expert witness’s testimony, and the proof attached to those two filings should not have been sealed. The appellate court concluded that sealing those documents was unnecessary because the sensitive information already had been redacted. The basic decision to seal the record, however, was upheld.

The Texas appellate court, therefore, ordered those few documents unsealed, but it otherwise affirmed the lower court decision in full.

The case is No. 02-18-00390-CV.

Attorneys: John Gsanger (The Ammons Law Firm, LLP) and Soraya Joslin (Soraya Joslin, P.C.) for Kimberly Witt. Thomas M. Bullion III (Germer Beaman & Brown PLLC) for Michelin North America Inc. and BF Goodrich.

Companies: Michelin North America Inc.; BF Goodrich

MainStory: TopStory EvidentiaryNews JuryVerdictsNewsStory ExpertEvidenceNews DesignManufacturingNews DamagesNews MotorEquipmentNews TexasNews

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