Hauck v. Michelin North America, Inc.

• Decision Date: 14 September 2004
• Docket Number: No. CIV.A.03-F-107 CBS.,CIV.A.03-F-107 CBS.
• Citation: 343 F.Supp.2d 976
• Parties: Mark HAUCK, Plaintiff, American Family Mutual Insurance Company, Intervenor Plaintiff, v. MICHELIN NORTH AMERICA, INC., a New York corporation, Defendant.
• Court: U.S. District Court — District of Colorado

343 F.Supp.2d 976

Mark HAUCK, Plaintiff, American Family Mutual Insurance Company, Intervenor Plaintiff, v. MICHELIN NORTH AMERICA, INC., a New York corporation, Defendant.

No. CIV.A.03-F-107 CBS.

United States District Court, D. Colorado.

September 14, 2004.

COPYRIGHT MATERIAL OMITTED

Howard Flicker, Frickey Law Firm, Aurora, CO, for plaintiff.

Colin C. Campbell, Campbell, Latiolais & Ruebel, P.C., Denver, CO, Thomas Dalton McFarland, Golden, Co, Jeffrey Ralph Pilkington, Davis, Graham & Stubbs LLP, Denver, CO, for defendant.

ORDER ON: (1) DEFENDANT'S MOTION IN LIMINE TO EXCLUDE TESTIMONY OF EXPERT WITNESS, and (2) DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

FIGA, District Judge.

This matter comes before the Court on Defendant's Motion In Limine to Exclude Testimony and Opinions of Robert Ziernicki (Dkt.# 53)("Defendant's Motion in Limine") and Defendant's Motion for Summary Judgment (Dkt.# 54).

BACKGROUND

This case arises from a multi-vehicle traffic accident which occurred on interstate 25 near milepost 231 on July 6, 2001. Plaintiff was injured in the accident, apparently caused when a northbound Jeep Cherokee driven by Dwayne Wise went out of control, crossed the median and collided with plaintiff's southbound 1996 Dodge Van. The plaintiff's Dodge Van in turn collided with a following tractor trailer driven by Jason Lee. Plaintiff's van came to rest on the right shoulder of the southbound lanes, and the Jeep Cherokee came to rest in the median. Plaintiff was treated at Denver Health Medical Center for serious injuries. Intervenor American Family Insurance, plaintiff's auto insurer, provided PIP benefits and property insurance to plaintiff, and by its intervention seeks reimbursement from Defendant Michelin (see Preliminary Pretrial Order, September 19, 2003, at 3).

The undisputed facts, based on a comparison of the parties' motions and briefs, appear to reflect that at the time of the accident the 1985 Jeep Cherokee driven by Mr. Wise had a 1985 Michelin X tire on the right rear wheel. Other evidence indicates that the three other tires on the car were Trail Cutter brand radial tires. (See Ziernicki preliminary report dated March 21 2002 at 3; Exhibit A1 to Defendant's Motion in Limine.) At some point during the accident, the tread of the Michelin tire separated from the tire. (Preliminary Pretrial Order at 2.)

PLAINTIFF'S THEORY OF LIABILITY

According to plaintiff's theory of the case, the tire tread separation caused the accident and plaintiff's resultant injuries. Plaintiff has asserted four claims for relief against defendant Michelin: a claim for strict liability which alleges manufacture of a defective tire; negligence in the manufacture of the tire; and breaches of warranties of merchantability and fitness for a particular purpose (Complaint, filed January 16, 2003).

In support of his theory, plaintiff has tendered Robert Ziernicki, Ph.D., as an expert witness on the cause of the failure of the tire on the Wise vehicle. From a review of the record it appears that Dr. Ziernicki tendered the written preliminary report of March 21, 2002 and gave his deposition on November 10, 2003. A brief summary of Dr. Ziernicki's opinion is that the tire delaminated due to an "adhesion defect," meaning something was wrong with the way the layers of the tire were "bonded" together. He admits in his deposition that he cannot specify the precise cause of the adhesion defect, but asserts that the defect was present at the time of manufacture, and was not due to later damage to the tire, misuse of the tire, or under- or over-inflation of the tire.

DEFENDANT'S MOTIONS TO STRIKE EXPERT WITNESS AND FOR SUMMARY JUDGMENT

On December 31, 2003, defendant Michelin filed the instant motion to strike Dr. Ziernicki's opinions based on the Supreme Court decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co., Ltd., v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). On the same day Michelin filed its motion for summary judgment.

In its Daubert motion Michelin essentially argues two points. First, Michelin argues that Dr. Ziernicki is not qualified to give an opinion in this case, as he admits that he is not an expert in tire design or tire manufacture. Second, Michelin argues that his opinion is not based on acceptable sound scientific methodology or reasoning. Michelin essentially contends that Dr. Ziernicki did not run any kind of tests on the tire, is not familiar with the manner in which the tire was manufactured, and has not properly eliminated other possible causes of the tire's delamination. Michelin also advances a related third point in its motion: that since Dr. Ziernicki cannot state the cause of the "adhesion defect" from which he claims this tire suffered, he has not provided evidence relevant to a claim for strict liability for a manufacturing or design defect.

This third point is also the basis for Michelin's motion for summary judgment. In that motion Michelin argues if Dr. Ziernicki's opinion is rendered inadmissible pursuant to its motion in limine, plaintiff has come forward with no admissible evidence of a defect in the manufacture or design of this Michelin tire, and therefore cannot prevail on any of the claims alleged in his complaint.

Plaintiff responded to both motions on February 10, 2004. In response to the motion for summary judgment, plaintiff argues that the motion depends on the outcome of the defendant's Daubert motion, but states that plaintiff's case is "founded upon the testimony of" Dr. Ziernicki (see Plaintiff's Objection to Summary Judgment, p. 2). Plaintiff separately filed an opposition to the motion to strike Dr Ziernicki's opinions, and attached to this opposition a lengthy affidavit by Dr. Ziernicki that appears to be a more detailed presentation of his opinions. It appears that there may well be additional opinions presented in that affidavit beyond what was contained in the preliminary report and the deposition testimony. However, defendant does not complain that such supplemental disclosures conflict with F.R.Civ.P. 26(a) and so this Court will not address that issue.¹

In its reply filed March 10, 2004, defendant maintains its position that Dr. Ziernicki is not qualified; has not properly eliminated other possible causes of this tire's failure, and instead has reached his position by a simple ipse dixit, contrary to the requirements set forth for an admissible expert opinion in Kumho Tire.

On September 1, 2004, this Court conducted a Daubert hearing on defendant's motion in limine. The Court heard the direct testimony and cross-examination of Dr. Ziernicki, received into evidence articles and information tendered by plaintiff, viewed the actual delaminated tire and its separated tread, and heard arguments of counsel for the plaintiff, the intervenor and the defendant both on the motion in limine and on the motion for summary judgment.

Based on all the information presented to it, this Court concludes that the motion in limine should be and hereby is GRANTED, and that the motion for summary judgment is also GRANTED, for the reasons set forth below.

ANALYSIS OF MOTION IN LIMINE AS TO THE TESTIMONY AND OPINIONS OF DR. ZIERNICKI

Federal Rule of Evidence 702 imposes upon the trial court a "gate-keeping" function with respect to the admissibility of expert opinions. Daubert, supra, 509 U.S. at 589-90, 113 S.Ct. 2786. To perform the gate-keeping function, the Court performs a two-step analysis, first determining whether the expert is qualified by "knowledge, skill, experience, training, or education" to render the opinion, and second to determine whether the opinion rendered is "reliable" under the principles set forth in Daubert and Kumho. See, e.g., Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir.2001).

When the factual basis, data, principles, methods or their application contained in an expert's opinion are sufficiently called into question, the trial court must determine whether the opinion has a "reliable basis in the knowledge and experience of [the relevant] discipline." Kumho Tire, supra, 526 U.S. at 149, 119 S.Ct. 1167. To be reliable under Daubert and its progeny, an expert's scientific testimony must be based on scientific knowledge, which "`implies a grounding in the methods and procedures of science' based on actual knowledge, not `subjective belief or unsupported speculation.'" Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir.), cert. denied, 540 U.S. 1003, 124 S.Ct. 533, 157 L.Ed.2d 408 (2003) quoting from Daubert, supra, 509 U.S. at 590, 113 S.Ct. 2786. As the Tenth Circuit has stated, the Daubert opinion identified four nonexclusive factors that may be considered by the trial court in assessing the reliability of the expert's opinion:

(1) whether the opinion at issue is susceptible to testing and has been subjected to such testing; (2) whether the opinion has been subjected to peer review; (3) whether there is a known or potential rate of error associated with the methodology used and whether there are standards controlling the technique's operation; and (4) whether the theory has been accepted in the scientific community.

Dodge, supra, 328 F.3d at 1222 citing to Daubert, supra, 509 U.S. at 593-94, 113 S.Ct. 2786. The list is not exclusive, and district courts applying Daubert have broad discretion to consider a variety of other factors. Dodge, supra, 328 F.3d at 1222. The particular circumstances of each case determine which of the factors are applicable. Id.

A summary of Dr. Ziernicki's opinions is necessary to determine whether he is qualified to render such opinions, as well as to determine whether the opinions are reliable in light of these identified factors.

In his preliminary report, Dr. Ziernicki states that he performed a "visual and tactile examination of the exposed portion of the tire and tread." (Ex. A1 to Defenda...