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Timm v. Goodyear Dunlop Tires North America Ltd.

United States District Court, N.D. Indiana, Hammond Division

March 30, 2018

DONALD TIMM; MARY TIMM, Plaintiffs,
v.
GOODYEAR DUNLOP TIRES NORTH AMERICA LTD, et al., Defendants.

          OPINION AND ORDER

          PHILIP P. SIMON, JUDGE

         Mr. and Mrs. Timm were seriously injured in a motorcycle accident and bring this products liability action against Harley-Davidson, the motorcycle manufacturer, and Goodyear Dunlop, the tire manufacturer. Harley-Davidson and Goodyear Dunlop contend that the experts identified by the Timms are not qualified to give the proposed testimony pursuant to Daubert. They have also moved for summary judgment. Because the experts's opinions are not reliable, I will grant the defendants' Daubert motions, and as a consequence, will also grant summary judgment in favor of Harley-Davidson and Goodyear.

         Background

         On July 10, 2013, the Timms embarked on a cross-country trip from their home in Dyer, Indiana on their Harley-Davidson Ultra Classic. Mr. Timm was driving; Mrs. Timm was his passenger. [DE 305-7 at 5-6.] While driving through Nebraska on Interstate 80, and traveling approximately 70 to 75 miles per hour, the tire on the Timms' motorcycle suddenly went flat. [DE 288-4 at 6, 16.] Everyone agrees that the tire was punctured, likely by a road hazard, which caused the tire to lose pressure. [DE 297-2 at 6.] Mrs. Timm noticed that the back end of the motorcycle began “hopping.” She asked her husband what was happening, and he responded that he couldn't control the back end. [DE 288-4 at 6-8; DE 305-7 at 6.] Tragically, Mr. Timm lost control of the motorcycle, and the Timms crossed two lanes of traffic, eventually crashing into a concrete median barrier.

         An eyewitness to the crash estimated that the Timms struck the median while traveling somewhere between 55 and 65 miles per hour. [DE 288-3 at 6-9.] The same witness also reported that Mrs. Timm came off the motorcycle and landed on the ground, while Mr. Timm slid along the concrete shoulder lane, still connected to the motorcycle, and came to rest along the barrier. [DE 288-3 at 5-9.]

         The Timms' injuries were severe. Mrs. Timm was treated after the accident for a head injury, consisting of a loss of consciousness and hemotoma. In addition to the head injury, she suffered a fracture of her right humerus, a laceration to her left knee, and road rash abrasions. [DE 305-9; DE 288-2 at 9-10, 17-18.] Mr. Timm suffered a traumatic brain injury, significant facial fractures, and other head injuries, such as scalp lacerations and swelling. He also suffered a cervical spine injury. [DE 305-8.]

         The Timms were riding their 2006 Harley-Davidson Ultra Classic motorcycle on this trip. The rear tire was a Goodyear Dunlop D402 MU8516, M/C 77H tire manufactured by Goodyear and branded with the name Harley-Davidson. [DE 297-2 at 6; DE 110 at 19.] The Timms had purchased the tire in November 2012, as a replacement tire. The Timms allege that Harley-Davidson sells and distributes the Goodyear tire, but it's not clear from whom the Timms actually purchased their replacement tire. [See DE 110 at 19.]

         This case involves some nitty-gritty details about tires and motorcycles, and the mechanics are not exactly straightforward. In layman's terms, what happened is the motorcycle's rear tire was punctured by a road hazard, it began to deflate and eventually became unseated from its rim. The key question is whether the tire became unseated from the rim thus causing the accident, or vice versa, whether the crash of the motorcycle is what caused the tire to unseat from the rim. As one might imagine this is a difficult and technical question to answer, requiring expert testimony.

         Before getting into the details it's necessary to understand a little bit about motorcycle and tire terminology. (For a good description of the construction of a radial ply tire, albeit a car tire not a motorcycle tire, see Kumho Tire Ltd. v. Carmichael, 526 U.S. 137, 142 (1999).) The D402 tire at issue in this case is a bias ply tire constructed of three polyester plies and two fiberglass belts beneath the tread. The inner liner holds the air within the tire. The bead is the edge of the tire that sits on the bead seat on the wheel rim. The bead of the tire is made of steel bands woven together in a hoop, and components of the tire are wrapped around the bead. The chafer strip reinforces the beads and protects the cord body plies. Here is a drawing of the tire:

         (Image Omitted)

         The D4702 is a tubeless tire. It sits, and stays, on the wheel rim by what's called an interference fit. The diameter of the bead base on the tire is slightly smaller than the diameter of the bead seat on the rim. This interference fit, in combination with the air pressure in the tire, holds the tire in place on the rim. The dimensions of the bead base on the tire and the bead seat on the rim are critical, and the tolerances are tight. Here are additional drawings of the tire components and the interference fit described above:

         (Image Omitted)

         And here is the actual tire taken from the Timms' motorcycle showing it unseated from the rim.

         (Image Omitted)

         The Timms' theory of the defect in this case is that there was excess “flash” in the bead area and too thin rubber covering the chafer strip which, in combination with the rim, resulted in an insufficient amount of rubber in the bead area, weakening the interference fit between the tire and the rim. This, the Timms say, allowed the bead on one side of the tire to unseat - or, come free - from the rim when the tire lost its pressure after it was punctured. Bead flash is a very thin layer of rubber that is created when the tire is cured or vulcanized into its final shape. Goodyear considers the condition cosmetic and often shaves the excess flash off of the tires before distributing them.

         There is a second and somewhat unrelated issue in this case. The Timms also claim that the Harley-Davidson motorcycle should have been equipped with a tire pressure monitoring system (“TPMS”). TPMS is an electronic system designed to monitor the air pressure inside tires. It reports this information in real time to the driver through a number of possible different methods, including a gauge, pictogram display, or warning light.

         In support of their theory, the Timms have proposed two experts - William Woehrle, a tire expert, and Dr. Daniel Lee, an accident reconstructionist. Woehrle seeks to offer a number of opinions that are relevant to the Timms' claims. First, if allowed, Woehrle will testify as to the cause of the accident. He says that Mr. Timm lost control of the motorcycle as a result of “a sudden and total deflation of the rear tire.” [DE 297-2 at 5.] According to Woehrle, the tire was punctured in the tread region, which led to “a steady and relatively controllable loss of inflation pressure.” [DE 297-2 at 5.] As the pressure dropped, “at some point, while still traveling straight ahead, the right side bead became unseated.” [DE 297-2 at 5.] This caused a very severe vibration and “violent distortions of the tire on the wheel, ” creating a situation in which “it would not be reasonable to expect the operator to maintain control of the motorcycle.” [DE 297-2 at 5.]

         Woehrle opined that the bead unseating was caused by three independent conditions, which “combined to create an unacceptably low resistance to dynamic bead unseating for the subject tire/wheel assembly.” [DE 297-2 at 5.] According to Woehrle:

The subject tire bead on the right side was made more vulnerable to unseating from the rim flanges as a result of very severe toe ring flash between the bead heel and top of the bead face. This is a manufacturing defect, which would have been readily visible during the final visual inspection of the finished tire in the factory.
In addition, the subject tire has an extremely thin layer of skim rubber over the chafer strip in the bead region. This reduces the margins for any deviation in dimensions and contour in this critical bead region, in order to achieve satisfactory bead fitment to the rim flange.
The situation was further exasperated by the fact that the subject rim was at the very minimum value of the allowable and standardized tolerance for rim bead seat diameter.

[DE 297-2 at 5.]

         Woehrle arrived at this conclusion by conducting a physical examination of the tire and wheel. He analyzed the tire to determine whether there was any “abuse on the part of the owner, ” and in particular looked for tire impact damage, punctures and repairs, age, excessive tread wear, and rim deformities. He found that the tire had been punctured but not repaired, which he ruled was the proximate cause for the pressure loss in the tire. There were no other abuse issues identified in his examination. [DE 297- 2 at 6.] His physical examination also revealed a “very severe toe ring flash on the SS bead face.” [DE 297-2 at 7.] He further observed that the “skim rubber over the square woven chafer fabric in both beads was so thin that the fabric was nearly protruding through the skim rubber.” [DE 297-2 at 7.] Woehrle found that the motorcycle rim's dimensions were within the standardized tolerances set forth by the Tire and Rim Association, which he identifies as the applicable standardizing body in the United States. [DE 297-2 at 8.]

         His other opinion concerns Harley-Davidson's failure to equip the Timms' motorcycle with TPMS. Woehrle opined that Harley-Davidson should have installed a TPMS on the motorcycle because it would have made the motorcycle safer. In particular, Woehrle's opines that:

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.

[DE 297-2 at 16.] He further stated that the “TPMS technology and availability existed long before the subject tire and motorcycle were made.” [DE 306-1 at 38.] Woehrle stated that it is reasonable to conclude that the accident would not have happened if the motorcycle had been equipped with TPMS. [DE 306-1 at 38.]

         In support of his opinion that the motorcycle should have had TPMS, Woehrle describes how he conducted an experiment by purchasing an aftermarket TPMS and installing it on a Harley-Davidson motorcycle. He stated that it worked “flawlessly.” [DE 300-3 at 4.] Woehrle compares the availability and safety of TPMS on motorcycles to that of passenger cars and trucks, which he says have been regulated for nearly a decade. Finally, he notes that “[n]umerous motorcycle manufacturers offer TPMS today.” [DEE 300-3 at 4.]

         Dr. Lee is an accident reconstructionist who opined that the Timms' tire hopped due to bead unseating and this caused the loss of control. [DE 301-2 at 10, 12.] He concluded that “Donald Timm did not contribute to the crash.” [DE 301-2 at 12.] According to Dr. Lee, the “initial wobble, fishtailing, and hops” as reported by Mrs. Timm, were “due to a rear tire failure which made the Harley uncontrollable and resulted in the crash and the related injuries.” [DE 301-2 at 3.] His position is evidenced, he says, by the marks on the roadway and the condition of the tire and wheel combination. [DE 301-2 at 10.]

         In addition to his “hopping” and bead seating opinion, Dr. Lee offered several opinions related to the conditions of the roadway and the Timms' motorcycle on the day of the accident. For example, he opined that the Timms' motorcycle was in “sound mechanical condition, ” that there were good weather conditions on the day of the accident, and the roadway was in “a reasonably safe condition.” [DE 301-2 at 12.]

         Dr. Lee bases all of these “opinions” on his review of the police report, the Timms' and a witness' deposition, Woehrle's report, and the tire, as well as discussions with Woehrle and the Timms' attorney. [DE 301-2 at 5.] At the time he issued his expert report, Dr. Lee had not inspected the accident scene or the motorcycle [DE 298-1 at 11], though by the time he testified, he had visited the accident scene.

         At his deposition, but not in his initial expert report, Dr. Lee also offered his opinion as to TPMS, and though he initially testified that he did not know what TPMS was, he later opined that “every manufacturer should have [TPMS] but they don't.” [DE 301-1 at 5.] Then, in an affidavit sworn to and submitted after the defendants' motions for summary judgment and motions to exclude his testimony, Dr. Lee added to his conclusions, stating that “Goodyear is aware that tire pressure and temperature are critical elements. A good starting point would be for Harley Davidson and Goodyear to require existing pressure monitoring systems to be installed on all motorcycles equipped with Goodyear tires.” Dr. Lee notes that he has purchased five new Harley-Davidson Ultra motorcycles, and not one has been equipped with TPMS, even though his current vehicles - not motorcycles - have it. He also cites a USA Today article discussing Goodyear's testing of smart tires that could potentially relay condition information, such as pressure and temperature, in support of his opinion that Goodyear is aware that tire pressure is a critical element. [DE 308-1.]

         Before me are a slew of motions, including two motions for summary judgment filed by both Goodyear and Harley-Davidson, as well as motions to exclude both experts' testimony and motions to strike several of the Timms' filings. After receiving the parties' briefing related to the Timms' experts, I held a Daubert hearing, in which I heard testimony directly ...


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