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Benedict v. Hankook Tire Co. Ltd.

United States District Court, E.D. Virginia, Richmond Division

February 6, 2018



          Robert E. Payne Senior United States District Judge.

         This 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.

         I. BACKGROUND

         In this 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 Southwell.

         A. Factual Context

         A 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.

         B. Procedural History

         Benedict 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 Tr. 4.

         Both 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. 341-43).

         C. Southwell's Testimony and Qualifications

         To examine whether Southwell's testimony should be excluded, it is necessary first to examine what his testimony is and what qualifications he possesses.

         1. Southwell's Defect Theory

         Benedict's 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.

         Southwell's 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.

         The 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.

         The 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.

         There 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.

         Southwell 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.

         Southwell's "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.

         Southwell's 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.

         Southwell 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.

         Southwell 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.

         2. Southwell's Other Testimony

         Southwell also opines on several other relevant matters.

         First, 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 24.

         Second, 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.

         Another 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.

         A third 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, 36.

         3. Southwell's Other Documents

         In addition to his report and deposition testimony, Southwell has submitted two other documents worth mentioning.

         First, 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 4-16.

         Second, 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. T 1-12.

         4. Southwell's Qualifications

         Southwell 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.

         After 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.

         From 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.

         Southwell 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.

         Lastly, 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.

         Southwell 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 76.


         Admission 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 ...

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