Ipse Dixit Fails Daubert in US 7th Circuit
Testifying as an expert witness outside of one's area of expertise, or without a solid methodology, is like walking through a cow pasture blindfolded — one's bound to step in it.
In Timm v. Goodyear Dunlop Tires North America, Ltd., et al., No. 18-2641 (7th Cir. 2019), Donald and Mary Timm appealed a summarily dismissed product liability claim brought against Harley-Davidson, Goodyear Dunlop, and the vendors of their helmets, claiming that their motorcycle crash was the result of a defective tire and motorcycle and that their injuries were made worse because of their defective helmets.
They had been riding their Harley-Davidson Ultra Classic on a highway in Nebraska when the rear tire went flat. Donald Timm lost control and they crashed into a concrete median barrier at 55 — 65 miles per hour. Both were seriously injured, including Donald Timm suffering a traumatic brain injury.
The trial court granted summary judgment on the defective helmet claim as the Timms no evidence or expert witness to show how their injuries were enhanced by the defective helmets.
To support their other claims of tire and motorcycle defects, the Timms proposed two experts: William Woehrle, a tire expert witness, and Dr. Daniel Lee, an accident reconstructionist. It was undisputed that the rear tire, manufactured by Goodyear Dunlop and branded Harley-Davidson, was punctured by a road hazard, began to deflate, eventually unseating from its rim. The Timms argued that the tire unseated almost instantly after the puncture because of defects, and that unseating caused the loss of control of the motorcycle and the crash. Goodyear et al. argued that the motorcycle crash itself is what caused the tire to unseat from the rim.
Dr. Lee, a former police officer with a doctorate in Driver and Traffic Safety, provided several accident reconstruction opinions, but the critical opinion was his finding that Donald Timm lost control because the rear tire started to “hop”, and that the hopping was the result of the tire unseating from the rim.
Woehrle, a former Director of Product Evaluation at Uniroyal Goodrich, examined the tire and wheel and found the tire punctured but no other abuse. He also found “excess ‘flash' in the bead area (the edge of the tire that sits on the wheel rim) and insufficient rubber covering the chafer strip (a reinforcement of the bead area), which weakened the fit between the tire and the rim.” The motorcycle accident, Woehrle concluded, was the result of the tire unseating from its rim, which occurred because of these defects.
To support their opinions, Dr. Lee and Woehrle referred to a static stage exhibition test they completed in another case where they had “a motorcycle with one side of the tire debeaded to show the lean angle from a debeaded tire on the rear.”
As for the motorcycle, both Dr. Lee and Woehrle opined that it did not have a tire pressure monitoring system (TPMS) which would have made it safer. They supported their conclusion, the trial court noted, with an experiment in which they purchased an aftermarket TPMS device, installed it on a motorcycle, and drove the motorcycle with the TPMS device around, and found that it worked correctly.
Dr. Lee concluded that every motorcycle should be equipped with TPMS, and cited a USA Today article on Goodyear's testing of smart tires that could relay pressure and temperature, supporting his opinion that Goodyear was aware that tire pressure was a critical element.
Woehrle similarly opined:
If either Harley Davidson or Goodyear Dunlop truly believe that a flat tire that has not yet catastrophically failed, with its beads that remain seated, on a motorcycle traveling on a smooth, straight roadway at normal highway speeds, poses a severe motorcycle control issue, then both defendants are negligent in not having Tire Pressure Monitoring Systems (TPMS) installed as standard equipment on such motorcycles.
Harley Davidson and Goodyear Dunlop filed motions to exclude both opinions, arguing they lacked the reliability required under Daubert. Accordingly, the trial court held a Daubert hearing, starting with Woehrle's defective tire opinion:
Woehrle admitted in his deposition that he has not tested his opinion that excess flash can cause rubber to pull away from the chafer strip or that flash affects bead seat retention. [DE 297-1 at 24.] Instead, he conceded that identifying how much rubber was pulled away from the chafer strip in the Timms' tire, as a result of bead flash, is not capable of objective ascertainment. [DE 297-1 at 22, 24.] What's more, he agreed that even if he were to test his theory, any test would produce a high rate of error.
The trial court noted as well that Woehrle was unable to point to any scientific studies, literature or experiments that would support his opinion, with the exception of one paper that did not mention flash being related to the issue of bead fit. Instead of finding some scientific support, the court said, Woehrle simply testified that his opinion was a “fundamental principle” and is “just straightforward and intuitive.”
The trial court found Woehrle's tire opinion failed to adhere to any of the Daubert guideposts and excluded it as an opinion “ipse dixit — it's so because he says it's so.”
As for Dr. Lee's tire opinion, the trial court was unconvinced that Dr. Lee was qualified to render opinions about tires and how they can unseat from a rim, and even if Dr. Lee was qualified, he, like Woehrle, failed to identify any scientific literature, or point to any test replicating the conditions to support his theory that bead unseating would cause a motorcycle to hop. The one test Dr. Lee presented to support his opinion was made “purely for the purpose of testifying in another case. This cuts against the reliability of the proposed testimony.” The trial court found Dr. Lee's tire opinion based at least in part on “common sense” — ipse dixit and excluded it.
As for the motorcycle defect claim and the TPMS, the trial court noted that Dr. Lee offered no support, evidence or methodology to support his conclusion beyond the aftermarket TPMS experiment. The trial court was equally unconvinced of Woehrle's expertise in motorcycles and found his opinion equally dubious since he testified that he was not an expert in the design of TPMS for motorcycles and had conducted no research into the scientific literature on the topic.
In excluding Woehrle and Lee's TPMS opinions, the trial court noted that even if they met the Daubert standard, both experts declined to say that a motorcycle without TPMS was defective, unsafe or unreasonably dangerous.
Having excluded the experts' opinions on the motorcycle defect and on the tire defect, the trial court granted summary judgement to Goodyear et al.
The Timms appealed to the Seventh Circuit, which affirmed the trial court's decision.
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