United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
matter is before the Court on HANKOOK TIRE COMPANY
LIMITED'S AND HANKOOK TIRE AMERICA COMPANY'S MOTION
TO EXCLUDE TESTIMONY OF PLAINTIFF'S EXPERT DAVID
SOUTHWELL (ECF No. 54). The Court previously denied the
motion, with one minor exception, by ORDER (ECF No. 221)
dated November 27, 2017. This Memorandum Opinion sets out the
reasoning for that decision.
products liability action, Robert Benedict sues Hankook Tire
Company Limited ("HTCL") and Hankook Tire America
Corporation ("HTAC") for the production and
distribution of an allegedly defective tire. Defendants seek
to exclude the testimony of Benedict's tire expert, David
detailed overview of the facts of this case appears in the
Court's Opinions resolving Benedict's and
Defendants' motions for summary judgment (ECF Nos. 341,
343) . In short, however, this action involves a
single-vehicle accident that occurred when the front right
tire (the ""subject tire") of a cement truck
driven by Benedict experienced a tread separation, after
which the truck collided with an embankment on the side of
the road. First Am. Compl. 2-3. The subject tire was a
Hankook Aurora TH08 Radial 425/65 R22.5 manufactured by HTCL
in South Korea in 2005. Defs.' Br. 2; First Am. Compl. 2.
Benedict alleges that the subject tire's failure was
caused by manufacturing defects, and he relies on the expert
testimony of Southwell to substantiate his claim. First Am.
Compl. 2-9; Nov. 20, 2017 Hr'g Tr. 4; Pl's Opp'n
Ex. C 4.
initially asserted three claims: (1) products liability
negligence (including manufacturing defect, design defect,
and failure to warn); (2) breach of the implied warranty of
merchantability; and (3) breach of the implied warranty of
fitness for a particular purpose. First Am. Compl. 5-11. He
is now pursuing only the negligent manufacturing and implied
warranty of merchantability claims. Nov. 20, 2017 Hr'g
sides moved for summary judgment. Benedict sought summary
judgment as to Defendants' contributory negligence
defense. Defendants sought summary judgment as to
Benedict's active claims. Related to their motion,
Defendants sought exclusion of the testimony of Southwell.
The Court ruled on these three motions during a hearing held
on November 20, 2017, Nov. 20, 2017 Hr'g Tr. 152, and
issued an ORDER (ECF No. 221) on November 27, 2017
formalizing that decision. This Opinion is thus one of three
detailing the Court's reasoning in this matter. (ECF Nos.
Southwell's Testimony and Qualifications
examine whether Southwell's testimony should be excluded,
it is necessary first to examine what his testimony is and
what qualifications he possesses.
Southwell's Defect Theory
tire expert, Southwell, posits that the subject tire failed
for two primary reasons: (1) the subject tire's
components did not sufficiently adhere to each other; and (2)
excessive oxidation led to degradation of the subject tire.
Pl's Opp'n Ex. C 11, 25, 38-39. Each will be
discussed in turn.
first theory, in essence, is that the subject tire's
components were "not properly 'stuck
together.'" Pl's Opp'n Ex. C 11. Tires
generally contain several rubber components. See
Pl's Opp'n Ex. C 11-13, 17-19. In a finished tire,
these components adhere to each other through, at least as
relevant here, interdiffusion and sulphur cross linking.
See Pl's Opp'n Ex. C 11-13.
first of these processes, interdiffusion, involves "the
spontaneous movement of [rubber molecule] chains across the
interface of two adjoining components." Pl's
Opp'n Ex. C 12. This means that, when two rubber
components come into contact, the rubber molecules within
each component begin to migrate across the physical boundary
between them. Pl's Opp'n Ex. C 12-14. This process
"causes the interface between the two components to in
effect disappear, " thereby binding them together.
Pl's Opp'n Ex. C 12-13.
second process, sulphur cross linking, further strengthens
the bonds between components. See Pl's Opp'n
Ex. C 12-13. During tire production, sulphur is typically
added to the rubber used to create the tire's components.
See Pl's Opp'n Ex. C 11-12. Once these
components are assembled, they are subjected to heat and
pressure over time, which causes the sulphur to form
molecular "bridges" or cross links between the
rubber molecule chains. See Pl's Opp'n Ex. C
11-13. If there is sufficient interdiffusion and cross
linking, the rubber components of a tire should be
"indistinguishable." See Pl's
Opp'n Ex. C 12-13.
are, however, factors that can limit the component adhesion
created by these processes. See Pl's Opp'n
Ex. C 14-15, 19-20. For example, it is possible that the
surface of a compound can be become contaminated. Pl's
Opp'n Ex. C 14. If it does, interdiffusion will be
inhibited at the contamination site, "given the
extremely small lengths of the chains crossing the
interface." See Pl's Opp'n Ex. C 14.
Likewise, after sulphur has been added to the rubber, but
before the rubber components come into contact with one
another, cross links will begin forming within each
component. See Pl's Opp'n Ex. C 13, 19-20.
If too many appear, this premature cross linking will reduce
interdiffusion "because the cross-linked polymer chains
are far less mobile and therefore less able to move across
the interface." Pl's Opp'n Ex. C 20. It also
reduces the extent to which further cross linking can occur
between components "because some of the sulphur
molecules at the surface have been consumed." Pl's
Opp'n Ex. C 20. The susceptibility of rubber components
to these and other issues that reduce bond strength results
in a definite "shelf life" of pre-assembly
components. See Pl's Opp'n Ex. C 20.
asserts that there was "incomplete interdif fusion and
component adhesion" in the subject tire. Pl's
Opp'n Ex. C 20. He concludes that this is because
"[t]he subject tire displays multiple areas of liner
imprint." Pl's Opp'n Ex. C 20.
"liner imprint" conclusion is based on the fact
that rubber tire materials are often initially covered by a
liner to guard against layers of the same compound adhering
to each other "and to reduce the possibility of
contamination." Pl's Opp'n Ex. C 18. When this
liner is removed, it can create a visible
"impression" on the rubber. Pl's Opp'n Ex.
C 19. After tire production is complete, this "residual
liner impression is normally obliterated as the adjacent
components are chemically bonded." Pl's Opp'n
Ex. C 19. Where there has been "a lack of complete
interdiffusion and cross-linking across the interfaces,
" however, the liner imprint may remain. See
Pl's Opp'n Ex. C 19-20. Thus, Southwell concludes,
"pervasive liner imprint in a finished tire is clear
evidence of compromised component bonding that is highly
likely to result in mechanical separation of the components
when in service." Pl's Opp'n Ex. C 20.
second theory is that the subject tire permitted too much air
to permeate its components and therefore prematurely
oxidized, thereby causing the tire to become brittle and
weak. Pl's Opp'n Ex. C 23, 25, 38-39. In general,
exposure of a tire's rubber components "to oxygen in
sufficient concentration will, with time, [cause them to]
undergo changes . . . that impact their physical and
mechanical properties" and "inevitably reduce the
overall durability of [the] tire, making it susceptible to
component separation." Pl's Opp'n Ex. C 21.
Internal components of a tire can come into contact with
oxygen when air permeates through the "inner liner,
" which is situated between these components and a
tire's "inner cavity." See Pl's
Opp'n Ex. C 21.
opines that, here, the inner liner was too thin to prevent
excessive oxidation. Pl's Opp'n Ex. C 22-23, 25,
38-39. Specifically, he asserts that the subject tire's
inner liner varied from "1.6mm to 2.2mm, with an average
of 1.8mm" and that "an average inner liner gauge of
1.8mm in a truck or bus tire is - regardless of compound -
highly inadequate." Pl's Opp'n Ex. C 22. He also
maintains that the subject's tire's inner liner gauge
was below Defendants' own specifications and that
"Hankook can provide no confirmation that they were
regularly checking the inner liner gauge of cured
tires." Pl's Opp'n Ex. C 22.
concludes, moreover, that "the subject tire exhibits
clear signs of oxidation." Pl's Opp'n Ex. C 23.
This conclusion is based on his tactile and visual inspection
of the subject tire's physical properties. Pl's
Opp'n Ex. C 23; Defs.' Br. Ex. E 95-98.
Southwell's Other Testimony
also opines on several other relevant matters.
Southwell considers and dismisses alternative explanations
for the subject tire's failure. Specifically, he
evaluates the chronological age of the subject tire, its
load, inflation pressure, and speed, whether the subject tire
was appropriate for the purposes for which it was used,
whether there were cuts to the subject tire that could have
led to its failure, whether an impact to the subject tire
could have resulted in its failure, and whether the subject
tire suffered from "compression set, "
i.e., "the tendency of the material to fail to
return entirely to its original size following a period of
sustained compression." Pl's Opp'n Ex. C 25-29.
In addition, Southwell concludes that service conditions did
not contribute to the failure. Pl's Opp'n Ex. C
25-26, 29, 38. Finally, he bolsters his defect findings and
undermines alternative explanations by pointing to
"detachment textures" in the subject tire,
i.e., polished areas indicative of long-term
component separation. See Pl's Opp'n Ex. C
Southwell testifies to the sufficiency of Defendants'
quality testing procedures. Pl's Opp'n Ex. C 30-36.
This opinion involves several subparts. He first asserts that
Defendants' own technical standards suggest awareness
"of the importance of limiting the age of unassembled
components in order to minimise the probability of producing
a tire with poor adhesion." Pl's Opp'n Ex. C 30.
However, he claims that Defendants "have been unable to
provide production records to confirm that they actually had
in place processes to detect and track compliance" with
these standards. Pl's Opp'n Ex. C 30. He believes
that such records "would in fact be kept for a period
well in excess of the possible operating life of the tires .
. . and [is] therefore surprised that they could not be
produced." Pl's Opp'n Ex. C 30.
subpart contends that Defendants' quality testing regime
in general was insufficient. Pl's Opp'n Ex. C 30-31.
He reviews results of Defendants' testing and concludes
that these results "can in no way be represented to
indicate the manufactured durability level of the subject
tire." Pl's Opp'n Ex. C 30-31. He observes that
the "manufacturers with whom [he has] worked"
employed more rigorous practices, and he determines that had
Defendants adopted a "more stringent" testing
program, "it would have been far more likely than not
that the defects in the subject tire would have been
detected." Pl's Opp'n Ex. C 31.
subpart evaluates Defendants' reliance on "indoor
test wheel durability testing." Pl's Opp'n Ex. C
31-34. Southwell explains that regulations require durability
testing but that the tests they require are useful for
examining "design durability" or "manufactured
short-term durability, " not "long term structural
integrity." See Pl's Opp'n Ex. C 32-34.
He asserts that, during his time in the industry, tire
production lots that had "easily passed the legislated
minimum requirement" contained a "significant
portion of tires" that "failed in service, "
and he claims that several tires have been recalled despite
passing the required tests. Pl's Opp'n Ex. C 33-34.
Furthermore, he notes that the manufacturers with whom he has
worked never "relied solely on these tests as an
indicator of market suitability." Pl's Opp'n Ex.
C 33. He maintains that Defendants "relied solely on
wheel test data" and that "if more thorough,
longitudinal monitoring processes were in place, and the
results used appropriately, (a) the [test] data would have
been retained, and (b) it is far more likely than not that
the defects in the subject tire would have been
avoided." Pl's Opp'n Ex. C 34. A fourth subpart
claims that Defendants did not test enough tires to ensure
statistical effectiveness. Pl's Opp'n Ex. C 35-36. He
asserts that the size of a production run only has a small
impact on the number of tires that must be tested to detect
durability problems. Pl's Opp'n Ex. C 35. He observes
that the 425/65 R22.5 TH08 seems to have been a low volume
product, based on the North American sales data provided by
Defendants. See Pl's Opp'n Ex. C 35-36.
Accordingly, he indicates that a fairly large proportion
would need to be evaluated for testing to be statistically
sufficient to find defects. See Pl's Opp'n
Ex. C 35-36. He then performs an illustrative statistical
analysis, relying on the sales data, to demonstrate his
conclusion (i.e., assuming a 5% proportion of
defective tires, a sample of 70 out of 1325 tires would need
to be tested "to achieve results that are accurate to
within 5%, " and reducing the sample to just 2 tires
would create results only "accurate to within
24%"). See Pl's Opp'n Ex. C 36. After
reviewing the testing-related information shared by
Defendants, he concludes that Defendants' testing regime
"was highly unlikely to be effective in detecting either
of the manufacturing defects" at issue here, as they
"simply did not test samples from their production often
enough." See Pl's Opp'n Ex. C 30-31,
Southwell's Other Documents
addition to his report and deposition testimony, Southwell
has submitted two other documents worth mentioning.
Southwell authored a rebuttal report, which responds to the
opinion of Defendants' expert Joseph Grant. Pl's
Opp'n Ex. AA 1-9. In response to Grant, Southwell further
substantiates his own opinions and offers commentary on the
articles upon which Grant relies. Pl's Opp'n Ex. AA
Southwell executed a declaration on November 5, 2017 that
largely responds to Defendants' arguments in support of
the motion to exclude his testimony. See Pl's
Opp'n Ex. T. It contains a fair amount of new
information, such as details about Southwell's work
experience and qualifications as well as a tire study
conducted at Bridgestone. See Pl's Opp'n Ex.
has spent several decades in the business of inspecting,
studying, analyzing, and recommending improvements to tires.
See Pl's Opp'n Ex. C 4-5, 77-79. For
example, he worked for Bridgestone Australia from 1987 to
1999 and, while there, " [t]est[ed] new and revised
truck tire designs, " " [i]nspect[ed] hundreds of
tires each year to determine reasons for removal [and]
propose and implement countermeasures,
"'[c]onduct[ed] and analyse[d] large-scale
longitudinal surveys of truck tires, "
"contribute[d] to the design of new truck tires, "
"[p]rovide[d] training and advice on truck tire
inspection and maintenance practices, " had
"responsibility for all Bridgestone tire technical
matters within SA/NT, " served as "Director of the
Tire and Rim Association of Australia, " which
"formulates and publishes engineering standards for the
design, manufacture and fitment of [tires], "
"prepare[d] compound and construction specifications for
new and revised products, " "plan[ned] and
manage[d] new product development programmes, " and
"design[ed] and conduct[ed] extensive field trials to
assess/confirm suitability of new products and/or
specification changes, " among other things. Pl's
Opp'n Ex. C 4-5, 77-79.
leaving Bridgestone, Southwell served as the proprietor of
"The Tyreman" from 1999 to 2000. Pl's Opp'n
Ex. C 5, 77. In this position, he sold truck tires, provided
"inspection and maintenance services, " and acted
as an "[independent consultant to transport and tire
industry bodies on a range of tire quality and maintenance
matters." Pl's Opp'n Ex. C 5.
2001 to 2004, Southwell worked as Technical Manager for
Bridgestone Corporation of Japan. There, he implemented in
various regions "the tire technical service procedures
[he] developed" previously and trained "Bridgestone
and other staff" from various regions on, inter
alia, "tire design, development and production
processes, " "production quality systems, "
"tire materials, " "assessment of tire designs
for market suitability, " "international
regulations, design standards & test methods, " and
"tire performance monitoring and measurement."
Pl's Opp'n Ex. C 5, 77.
next worked as New Product Manager for South Pacific Tires, a
"[m]anufacturer of Goodyear, Dunlop and related brands,
" from 2004 to 2005. Pl's Opp'n Ex. C 77. In
this role, he had " [r]esponsibility for new product
design and development processes, " "[m]anag[ed]
indoor and outdoor tire test activities, "
"[r]ecommend[ed] and implement[ed] construction and
compound specifications, " and "[e]nsur[ed] product
compliance with all necessary legislative requirements."
Pl's Opp'n Ex. C 77.
from 2005 to the present, Southwell has served as an
"[i]ndependent tire industry consultant and failure
analyst, " providing services to "manufacturers,
importers, Government and industry bodies, lawyers, insurers
etc." Pl's Opp'n Ex. C 5.
additionally possesses a variety of relevant educational
credentials. For example, he studied at "Firestone
University, " where he learned about "[t]ire design
factors, " "[p]erformance measurement and analysis,
" "[c]onstruction, " "[c]ompounding,
" etc. Pl's Opp'n Ex. C 76. Likewise, he
received training from the Stahlgruber Foundation in,
inter alia, "[r]epair failure analysis"
and "[d]amage and failure modes." Pl's
Opp'n Ex. C 76. He also has a Master of Engineering
degree, a Bachelor of Management degree, and a trade
certificate in automotive mechanics. Pl's Opp'n Ex. C
STANDARDS GOVERNING ADMISSION OF EXPERT EVIDENCE
of expert testimony is governed by Federal Rule of Evidence 7
02, which states:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if: (a) the expert's scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue; (b) the testimony is based on sufficient facts or
data; (c) the testimony is the product of reliable principles