Housley v. Orteck Intern., Inc.

• Decision Date: 06 June 2007
• Docket Number: No. 4:05-cv-00531-JEG.,4:05-cv-00531-JEG.
• Citation: 488 F.Supp.2d 819
• Parties: Lloyd HOUSLEY, Plaintiff, v. ORTECK INTERNATIONAL, INC., Defendant.
• Court: U.S. District Court — Southern District of Iowa

488 F.Supp.2d 819

Lloyd HOUSLEY, Plaintiff, v. ORTECK INTERNATIONAL, INC., Defendant.

No. 4:05-cv-00531-JEG.

United States District Court, S.D. Iowa, Central Division.

June 6, 2007.

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James L. Sayre, James L. Sayre, PC, Clive, IA, for Plaintiff.

Brent B. Green, Duncan Green Brown Langeness & Eckley PC, Des Moines, IA, Thomas R. Woodrow, Holland & Knight LLP, Chicago, IL, for Defendant.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT and MOTION TO EXCLUDE EXPERT WITNESS TESTIMONY

GRITZNER, District Judge.

This matter comes before the Court on Defendant's Motion to Exclude Expert Testimony (Clerk's No. 17) and Defendant's Motion for Summary Judgment (Clerk's No. 16). Plaintiff Lloyd Housley is represented by James Sayre. Defendant Orteck International, Inc., is represented by Brent Green and Thomas Woodrow. Both motions came on for hearing April 9, 2007. The matter is fully submitted and ready for ruling.

SUMMARY OF MATERIAL FACTS¹

Housley owns and operates a tire sales and repair business known as "Housley Tire" in Allerton, Iowa. Orteck is a Maryland corporation in the business of selling tires to distributors for resale. On September 25, 2003, Housley purchased an Indus 11.00-16 8-ply tire from American Tire Distributors, Inc. ("American"), of Des Moines, Iowa. American had obtained this tire with Orteck's assistance. Defendant claims that Orteck, upon receiving the order from American, contacted Malhotra Rubbers Ltd. ("Malhotra"), an Indian company, located in New Dehli, to order the tire. The tire was then shipped directly from Malhotra to American, which then sold it to Housley. Defendant claims Orteck never possessed, stored, controlled, or saw the tires because they were shipped directly to American. Housley claims American represented to him the tire was a product of Orteck, but Housley is unable to dispute these facts as stated by Orteck.

Later on September 25, 2003, Housley attempted to install that tire on a tractor owned by Ronald Wilson. During the installation and inflation process, the tire exploded and caused injuries to Housley.

Following September 25, 2003, Housley sent a claim to Orteck and received, in response, a letter from Orteck stating that his claim was being processed. Enclosed with the letter was a warranty claim form and a check payable to Housley for the $74.22 replacement cost of the tire. Housley claims that no denial of responsibility was made by Orteck in this letter. Orteck responds that the letter merely documented Orteck was investigating the claim in order to determine its responsibility.

Also following September 25, 2003, American's insurance carrier, Universal Underwriters Group, requested that the tire be inspected by Illinois Iowa Claim Services. This inspection was done by Craig Krapfl, who concluded in his adjuster's report that there was a split in the bead of the tire and that this split likely caused the accident. Mr. Krapfl offered no opinion in his report as to what actually caused the bead split and what cause was responsible for the explosion. Mr. Krapfl stated that he could not determine why the tire failed but that the warnings on the tire were adequate. Mr. Krapfl was retained by Housley as an expert in this case and designated as an expert on May 25, 2006.

Housley had filed a Complaint in this court on September 22, 2005, and an Amended Complaint on October 4, 2005, alleging the Defendant was negligent in failing to properly inspect the tire, in improperly manufacturing the tire, in improperly assembling the tire, in improperly designing the tire, in failing to warn potential users of possible defects in the tire, in failing to provide proper instructions for the safe installation of the tire, and in failing to provide proper instruction for the safe use of the tire. Housley's Complaint alleged that Defendant's negligence was the proximate cause of the damages sustained by him. Housley also included causes of action for res ipsa loquitur and breach of implied warranty of merchantability.

Orteck filed a Motion for Summary Judgment on October 2, 2006. Therein, it alleges that Housley has no proof linking Orteck to the cause of this accident but that the facts demonstrate beyond dispute that Orteck did not manufacture the tire at issue in this dispute. Orteck alleges that because it had no duty to inspect the tire and did not manufacture the tire and that Housley failed to provide expert testimony, Orteck is entitled to summary judgment on the negligence claims. Orteck also alleges it is entitled to summary judgment on the res ipsa loquitur claim because Orteck never had exclusive control of the tire, and it is entitled to summary judgment on the breach of implied warranty of merchantability claim.

Orteck filed a Motion to Exclude the Expert Testimony of Craig J. Krapfl on October 5, 2006. Therein, it alleges that Housley's retained expert is an insurance adjuster and not a forensic tire expert and, thus, lacks the qualifications, experience or credentials to testify as an expert in this case.

APPLICABLE LAW AND DISCUSSION

Motion to Exclude Expert

The nature of the claims asserted by Housley and the circumstances of the underlying incident illustrate the pivotal importance of expert testimony offered by Housley. Accordingly, while the motions were filed in reverse order, the Court first addresses whether Housley is in position to present necessary expert evidence.

The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., developed what has now become known as the Daubert Standard. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Daubert discussed Federal Rule of Evidence 702 and the trial court's role as evidentiary "gatekeeper." Id. at 589, 113 S.Ct. 2786. The Supreme Court stated that expert testimony must be good science, and the findings should be sufficiently "derived by the scientific method" or otherwise "supported by appropriate validation." Id. at 590, 113 S.Ct. 2786.

Kumho Tire Co. v. Carmichael, decided by the Supreme Court in 1999, removed the distinction between scientific expert testimony and technical expert testimony. 526 U.S. 137, 147-48, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In Kumho, the Court found the opinions of a tire expert should be subjected to Rule 702 scrutiny. Id. at 157-58, 119 S.Ct. 1167. The Court in Kumho also listed out what are known as the four Daubert factors, which are "(1) whether the theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; whether the theory or technique has a known or potential error rate and standards controlling the technique's operation; (4) whether the theory or technique is generally accepted in the scientific community." Craftsmen Limousine, Inc. v. Ford Motor Co., 363 F.3d 761, 776-77 (8th Cir.2004) (citing Daubert, 509 U.S. at 590, 113 S.Ct. 2786). Kumho holds that these factors are not a definitive list and that the trial judge may use the factors when they are a reasonable measure of reliability in that expert's field. Kumho, 526 U.S. at 150-52, 119 S.Ct. 1167. Another element that Kumho states a trial judge may focus on is the proposed expert's personal knowledge or experience, which make him an expert. Id. at 150, 119 S.Ct. 1167.

These factors and others like them are to be used by the trial court to determine whether the proposed expert testimony is both reliable and relevant. Wagner v. Hesston Corp., 450 F.3d 756, 758 (8th Cir.2006); Daubert, 509 U.S. at 589, 113 S.Ct. 2786. The expert testimony will be "inadmissible if it is speculative, unsupported by sufficient facts, or contrary to the facts of the case." Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 757 (8th Cir.2006). The Court is to separate expert evidence that is based on "`good grounds' from subjective speculation that masquerades as scientific knowledge." Glastetter v. Novartis Pharms. Corp., 252 F.3d 986, 989 (8th Cir.2001).

Housley bases his argument on Iowa law and the refusal of the Iowa Supreme Court to adopt Daubert as its definitive rule regarding expert testimony. However, Iowa law is not applicable here, as this case is in federal court and the admission of expert testimony evidence is governed by the Federal Rules of Evidence. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In federal diversity lawsuits, "the question of whether expert testimony is admissible is a matter governed by federal, rather than state, law." McGuire v. Davidson Mfg. Corp., 238 F.Supp.2d 1096, 1099 (N.D.Iowa 2003) (citing Clark v. Heidrick, 150 F.3d 912, 914 (8th Cir.1998)).

Housley cites Bastow v. General Motors Corp. for the proposition that the jury is to decide whether an expert witness is credible and believable. 844 F.2d 506, 511 (8th Cir.1988). This case was decided before Daubert, and the text of the opinion does not support the wide proposition Housley seeks. Bastow actuality addresses the much more narrow proposition that it is for the jury to decide if a `normal' witness is credible and that an `expert' witness, such as a psychiatrist, should not testify as to the witness' credibility or character for truthfulness. Id. at 511. Thus, the general rule from that case is that expert testimony regarding credibility is inadmissible. Bastow is not helpful to the Plaintiff here. It is Mr. Krapfl's ability to offer expert opinion evidence, not his credibility, that is at issue here.

Housley further argues that Federal Rule of Evidence 702 and Daubert are not the applicable test, but rather Federal Rule of Evidence 403 should control. Rule 403 requires the trial judge to weigh the evidence to determine whether its probative value is outweighed by its prejudicial effect. Housley cites Williams v. Hedican, 561 N.W.2d 817, 831 (Iowa 1997), which in turn cites Daubert. The portion of Daubert that Williams cites states that the trial judge, when...