Cooper Tire & Rubber Co. v. Mendez

• Decision Date: 16 June 2006
• Docket Number: No. 04-1039.,04-1039.
• Citation: 204 S.W.3d 797
• Parties: COOPER TIRE & RUBBER COMPANY, Petitioner, v. Oscar MENDEZ, Jr., et al., Respondents.
• Court: Texas Supreme Court

Page 797

204 S.W.3d 797

COOPER TIRE & RUBBER COMPANY, Petitioner, v. Oscar MENDEZ, Jr., et al., Respondents.

No. 04-1039.

Supreme Court of Texas.

Argued January 24, 2006.

Decided June 16, 2006.

Rehearing Denied December 1, 2006.

COPYRIGHT MATERIAL OMITTED

Ruth G. Malinas, J. Michael Myers, Ball & Weed, P.C., W. Wendell Hall, Rosemarie Kanusky, Fulbright & Jaworski L.L.P., San Antonio, James O. Darnell, Law Office of James O. Darnell, James R. Dennis, Soctt, Hulse, Marshall, Feuille, El Paso, for Petitioner.

Mary A. Keeney, John J. McKetta III, Boyce C. Cabaniss, Graves, Dougherty, Hearon & Moody, P.C., Austin, Grant Kaiser, The Kaiser Law Firm, Houston, James F. Scherr, Scherr Legate Ehrlich & Kennedy PLLC, El Paso, Hugh N. Smith, Smith & Fuller, P.A., Tampa, FL, Brian Philip Falbo, Fernando Chacon, Ken Coffman, Robles Bracken Coffman & Hughes LLP, El Paso, John Robert King, M. Steven Deck, Law Office of John King, McAllen, Ronald J. Stading, Stading & Associates, Ltd., El Paso, for Respondents.

William A. Worthington, Strasburger & price, Houston, for Amicus Curiae.

Justice WILLETT delivered the opinion of the Court.

In this products liability case, we hold that plaintiffs' expert testimony was legally insufficient to establish a manufacturing defect, and accordingly reverse and render judgment in favor of petitioner Cooper Tire & Rubber Company.

I. Background

In June 1997, Oscar Mendez was driving a Mazda minivan carrying six passengers down Interstate 25 in New Mexico. The left rear tire, a steel-belted radial tire manufactured by Cooper Tire, lost its tread. Mendez lost control of the vehicle, and it rolled several times, ejecting all six passengers. Mendez, the only occupant wearing a seat belt, was not ejected. Four of the passengers died at the scene or shortly thereafter. When the tire was examined a nail hole was found in the tread. The nail had penetrated completely through the tire.

Mendez and the survivors and estate administrators of three of those killed in the accident were plaintiffs below. They sued Cooper Tire and proceeded to trial on the theory that the tire tread separated due to a manufacturing defect, and the tread separation in turn caused the rollover and the resulting deaths and injuries. The jury found a manufacturing defect and awarded over $11 million in damages. The trial court entered judgment on this verdict. The court of appeals affirmed. 155 S.W.3d 382.

II. Discussion

Cooper Tire argues that the evidence of a manufacturing defect was legally insufficient to support the judgment. We agree.

A. Expert Testimony and Proof of Manufacturing Defect

In products liability cases, we have recognized three types of defect: marketing, design, and manufacturing. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 426 (Tex.1997). "A manufacturing defect exists when a product deviates, in its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous." Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). "A plaintiff must prove that the product was defective when it left the hands of the manufacturer and that the defect was a producing cause of the plaintiff's injuries." Id.

To establish proof of a manufacturing defect that caused the tread separation, plaintiffs relied on the expert testimony of Richard Grogan, and to a lesser extent on the expert testimony of Alan Milner and Jon Crate.¹ The theory presented by this trio was that the tire failed because the "skim stock" was contaminated with hydrocarbon wax at the plant where it was manufactured, causing the belts to separate. "Skim stock is a specially formulated rubber compound that coats the steel belts in a steel-belted radial tire and through vulcanization holds them together." In re Bridgestone/Firestone, Inc., 106 S.W.3d 730, 731 (Tex.2003). Cooper Tire complains that the testimony of all three experts was inadmissible.

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." TEX. R. EVID. 702.

Expert testimony is admissible if (1) the expert is qualified, and (2) the testimony is relevant and based on a reliable foundation. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995). "If the expert's scientific evidence is not reliable, it is not evidence." Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 713 (1997). The trial court's determination that these requirements are met is reviewed for abuse of discretion. Wilkins, 47 S.W.3d at 499. "The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles." Robinson, 923 S.W.2d at 558. Admission of expert testimony that does not meet the reliability requirement is an abuse of discretion. Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 810 (Tex.2002).

In deciding whether an expert is qualified, the trial court must "ensur[e] that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion." Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex.1998) (quoting Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996)). Scientific testimony is unreliable if it is not grounded "in the methods and procedures of science," and amounts to no more than a "subjective belief or unsupported speculation." Robinson, 923 S.W.2d at 557 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). We have also recognized that expert testimony is unreliable if "there is simply too great an analytical gap between the data and the opinion proffered." Gammill, 972 S.W.2d at 727 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)). "We are not required . . . to ignore fatal gaps in an expert's analysis or assertions that are simply incorrect." Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 912 (Tex. 2004). "A flaw in the expert's reasoning from the data may render reliance on a study unreasonable and render the inferences drawn therefrom dubious. Under that circumstance, the expert's scientific testimony is unreliable and, legally, no evidence." Havner, 953 S.W.2d at 714.

In Robinson, we identified six factors that trial courts may consider in determining whether expert testimony is reliable:

1. the extent to which the theory has been or can be tested;

2. the extent to which the technique relies upon the subjective interpretation of the expert;

3. whether the theory has been subjected to peer review and/or publication;

4. the technique's potential rate of error;

5. whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and

6. the non-judicial uses which have been made of the theory or technique.

Robinson, 923 S.W.2d at 557. We emphasized in Robinson that these factors are non-exclusive and that Rule 702 contemplates a flexible inquiry. Id.

In Gammill, we recognized that the Robinson factors cannot always be used in assessing an expert's reliability, but "there must be some basis for the opinion offered to show its reliability." 972 S.W.2d at 726. We further made clear in Gammill that the Robinson relevance and reliability requirements apply to all expert testimony. Id.

The trial court is not required "to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert." Id. at 727 (quoting Joiner, 522 U.S. at 146, 118 S.Ct. 512). If the expert brings only his credentials and a subjective opinion, his testimony is fundamentally unsupported and therefore of no assistance to the jury. Havner, 953 S.W.2d at 712. Rule 702, by its terms, only provides for the admission of expert testimony that actually assists the finder of fact.

Under these well-established standards, we review the testimony of plaintiffs' experts Grogan, Milner, and Crate.

B. Grogan

Richard Grogan conceded that he is not a chemist, an engineer, or a tire designer. He obtained an ordinary national certificate, the British equivalent of a high school diploma, and holds no post-secondary degrees. He does not consider himself an expert in accident reconstruction. He worked for many years for the Dunlop Tire Company in England, in its technical department, tire examination lab, and technical service section, where he examined tires including tires that had failed. He left Dunlop in 1980. He has taught courses to police departments and independent accident investigators on tire failures. In 1987 he published a book entitled An Investigator's Guide to Tire Failures. This book was revised and expanded in 1999. He has also written many articles on tire failures.

Grogan opined that the tire separated because the skim stock was contaminated. He believed hydrocarbon wax was the contaminant. He testified that the tread separation did not originate at the nail hole because he detected "polishing" in other portions of the tire's layers, indicating that the separation started elsewhere. He described his observation of polishing at one point in his testimony as seeing "how the rubber has been removed from the cords and then left quite bright and clean." He also asserted that the presence of "liner marks," left by the canvas or other material on which rubber is placed before vulcanization, was further visual proof of his theory.² The presence of these marks, in his opinion, indicated faulty adhesion. Grogan also offered reasons that the tire did not fail due to the nail, excessive vehicle weight, under-inflation, or ordinary wear.

Assuming that Grogan was generally qualified to testify on the subject of tire failures, he presented a theory of wax...