Rosa Obregon Perez, Ricardo O. Perez, Individually and as Next Friend of Rosa Elia Perez, Maria Perez Jalomus, Juan Jose Perez, Julio Perez, Jr., and Fernando Perez v. the Goodyear Tire & Rubber Company ( 2015 )


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  •                                                                                           ACCEPTED
    04-14-00620-CV
    FOURTH COURT OF APPEALS
    SAN ANTONIO, TEXAS
    2/23/2015 11:52:30 AM
    KEITH HOTTLE
    CLERK
    NO.04-14-00620-CV
    FILED IN
    4th COURT OF APPEALS
    SAN ANTONIO, TEXAS
    02/23/2015 11:52:30 AM
    IN THE COURT OF APPEALS              KEITH E. HOTTLE
    Clerk
    FOR THE FOURTH DISTRICT OF TEXAS
    AT SAN ANTONIO, TEXAS
    ROSA OBREGON PEREZ, ET AL
    Appellants
    v.
    THE GOODYEAR TIRE & RUBBER COMPANY
    Appellee
    AMENDED BRIEF OF APPELLEE
    THE GOODYEAR TIRE & RUBBER COMPANY
    J. Michael Myers
    State Bar Number 14760800
    James M. "Jamie" Parker, Jr.
    State Bar Number 15488710
    ~AMAN HOWELL SMITH & LEE, PLLC
    Union Square II
    10001 Reunion Place, Suite 600
    San Antonio, Texas 78216
    (210) 731-6364
    Fax (210) 785-2964
    Email: jparker@namanhowell.com
    ATTORNEYS FOR APPELLEE
    THE GOODYEAR TIRE & RUBBER
    COMPANY
    {03222971 .DOCX J}
    Identity of Parties and Counsel
    Appellants:              Rosa Obregon Perez (wife of decedent); Ricardo
    O. Perez (adult son), Rosa Elia Perez (adult
    daughter), Maria Perez lalomus (adult daughter;
    Juan Jose Perez (adult son); Julio Perez (adult son)
    and Fernando Perez (adult son)
    Appellant's Counsel:     William G. Neumann, Jr.
    Hagood & Neumann
    1520 E. Highway 6
    Alvin, Texas 77511
    281-331-5757
    281-331-1105 (fax)
    Appellee:                The Goodyear Tire & Rubber Company
    Appellee's Counsel:      J. Michael Myers
    James M. "Jamie" Parker, Jr.
    NAMAN HOWELL SMITH & LEE, PLLC
    Union Square II
    10001 Reunion Place, Suite 600
    San Antonio, Texas 78216
    (210) 731-6364
    Fax (210) 785-2964
    Email: jparker@namanhowell.com
    Former Parties in the    Hermann Richter, Medical Transport of Texas, Inc.
    trial court but not to   Orlando Garcia, Ford Motor Company
    this appeal:
    (03222971 .DOCX I)
    ii
    Record References
    Appellee will refer to the Clerk's initial record as "(CR.   ~,"   the First
    Supplemental Clerk's Record as "(CRI       ~",    the Second Supplemental Clerk's
    Record as "(CR2         ~",     to the sealed record as   "(SR~"        and to the
    Supplemental Sealed record as ("SSR __").
    {03222971 .DOCX I}
    iii
    Table of Contents
    Page
    Identity of Parties and Counsel ................................................................................. ii
    Index of Authorities .................................................................................................. vi
    Statement of the Case ............................................................................................. viii
    Response to the Issues Presented .............................................................................. x
    Statement of Facts ..................................................................................................... 1
    Summary of Argument .............................................................................................. 5
    Argument ................................................................................................................... 6
    Response Point 1 ............................................................................. 6
    The court should carefully examine the orders entered by the trial court to
    determine whether or not it has jurisdiction to reach Appellants' claims here.
    Response Point 2 ... ............. .... ...... .. ................... .. ........................... .. 9
    The Standard of Review in this case requires a two-fold analysis: abuse of
    discretion standard to assess the exclusion of Woehrle as an expert, then review of
    the summary judgments themselves.
    Response Point 3 .. .. .. .......... ... .................. ... ......................... ... ........ 11
    The trial court did not abuse its discretion in excluding Woehrle, as he was
    unqualified to provide the testimony he sought to provide, used unsupported
    methodology, based his opinions on incorrect factual premises, and has been
    excluded for espousing the same opinions he attempted to foist on the trial court
    here.
    (03222971 .DOCX J)
    iv
    Response Point 4 . .......... ....... ................. .......... ... ..... ... ......... ........ . .
    A review of the Robinson factors along with the analytical gap problems show that
    the trial court did not abuse its discretion in excluding Woehrle.
    Response Point 5 ....... ......... .. ........ ..... ......... ............... .... .... .... ..... 27
    Having correctly exercised its discretion in excluding Woehrle, the summary
    judgments in favor of Goodyear were also proper, as Plaintiffs had no other
    evidence of a defect in the tire in question which could support any of their design,
    manufacturing or marketing claims.
    Response Point 6 .. .............. ...................... ................. . ................ 29
    Summary judgment was proper even if Woehrle had not been excluded as his
    testimony cannot meet the standard under Texas law for showing that either a
    manufacturing or design defect existed, much less a marketing defect.
    Response Point 7 ...... .......... ................................................. ....... 32
    Appellant's statements and arguments about Goodyear's experiences with other
    Load Range E tires is contrary to the actual testimony in the case, and, in any
    event, does not create a fact issue as to this tire.
    Prayer .......... .......... .......... ................... .. ........ .. ........ .. ....... ... ........ .35
    Certificate of Compliance ............... .................... ........... ................. 36
    Certificate of Service .. ..... . .... ... ..... ... ...... ... .. .... ... .. ....... ... . ... ... .... .. .... .36
    {03222971 .DOCX I}
    v
    Index of Authorities
    Federal Cases                                                                                      Pages
    Kumho Tire Co. Ltd v. Carmichael,
    
    526 U.S. 137
    , 
    119 S. Ct. 1167
    (1999) ...... ...... .. .. .. .... ......... .......... .... .... .. 25
    Casey v. Toyota Motor Engineering MgfCo North America,
    
    770 F.3d 322
    (Fifth Cir. 2014) ...................... .......... .. ...... .. .. .. ...... ........ 30
    Green v. R.J. Reynolds Tobacco Co. , 
    274 F.3d 263
    ,
    (5th Cir.2001) ............ ... ......... .... ......... .. ............. ....................... .. .. .31
    Hodges v. Mack Trucks, Inc.,
    
    474 F.3d 188
    (5th Cir.2006)) ...... .. ....................... ................ .. .... ...... .. 30
    Melinda Ho v. Michelin North America, Inc.,
    
    2011 WL 3241466
    (D. Kan. 2011) ............................ ...... 17, 18,20,21 , 31
    Melinda Ho v. Michelin North America, Inc.,
    520 Fed. Appx. 658 (lOth Cir. 2013) ..... ... ...... ..... .... .............. .. .. . 18, 21 , 31
    Smith v. Goodyear Tire & Rubber,
    
    495 F.3d 224
    (5 th Cir. 2007) ........ ... ............................................... ..... 17
    Texas Cases
    Brandon v. American Sterilizer Co.,
    
    880 S.W.2d 488
    (Tex. App. - Austin 1994, no pet.) ....... .. .......... ............... 27
    Cooper Tire & Rubber Co. v. Mendez,
    
    204 S.W.3d 797
    (Tex.2006) ........ .. ........... .. .......................... 11,25,27,28
    E.I DuPont de Nemours & Co. v. Robinson,
    
    923 S.W.2d 549
    (Tex. 1995).......... ... ......... .. ......... .. .. .. .. ... ......... 11, 14, 25
    Ford Motor Co. v. Ledesma,
    242 S.W.3d. 32 (Tex. 2007) ......... .. ........... ............... ............ ........... ... 32
    {03222971 .DOCX I}
    vi
    Ford Motor Co. v. Ridgway,
    
    135 S.W.3d 598
    (Tex. 2004) ........ ........ .... .. ............. ............. .......... 10, 28
    Gammill v. Jack Williams Chevrolet, Inc.,
    
    972 S.W.2d 713
    (Tex.1998) ......... ................. .................................. 9,12
    Goodyear v. Rios,
    
    143 S.W.3d 107
    (Tex. App. - San Antonio 2004, pet. den.) .......................... 25
    Helena Chem. Co. v. Wilkins,
    
    47 S.W.3d 486
    (Tex. 2001) ............... ................................................. 12
    Heritage Manor, Inc. v. Tidball,
    
    724 S.W.2d 952
    (Tex. App. - San Antonio 1987, no pet) .............. .............. 27
    King Ranch, Inc. v. Chapman,
    
    118 S.W.3d 742
    (Tex.2003) .......................................... .. ................... 10
    Mack Trucks, Inc. v. Tamez,
    
    206 S.W.3d 572
    (Tex.2006) ............................................................. .12
    Merrell Dow Pharms. Inc. v. Havner,
    
    953 S.W.2d 706
    (Tex. 1997) ........ ............. .. ...... ................... ..............24
    Provident Life & Acc. Ins. Co. v. Knott,
    
    128 S.W.3d 211
    (Tex.2003) .............................................................. 10
    Strandberg v. Spectrum Office Bldg. ,
    
    293 S.W.3d 736
    (Tex.App.-San Antonio 2009, no pet.) .. .......................... .. 10
    Quanaim v. Frasco Restaurant & Catering,
    
    17 S.W.3d 30
    (Tex.App.-Houston [14th Dist.] 2000, pet. denied) ............. .. ... 6,7
    Vause v. Liberty Ins. Co., --- S.W.3d ---, 
    2014 WL 6687598
    (Tex. App.-San Antonio, November 26, 2014, n.p.h.) ................. ... ........... 10
    Volkswagen ofAmerica, Inc. v. Ramirez,
    
    195 S.W.3d 897
    (Tex. 2004) .... .. ........................................................ 19
    {D3222971 .DOCX I ,
    vii
    Whirlpool Corp. v. Camacho,
    
    298 S.W.3d 631
    (Tex.2009) .................... ................... ... ................ .. 9, 12
    Texas Statutes                                                                             Page
    Tex. Civ. Prac. & Rem.Code Ann. § 82.005(b)(1) ............ .. ...... . ................. 29
    {03222971 .DOCX I}
    viii
    Statement of the Case
    Nature of Underlying proceeding:   This case arises from a single
    vehicle rollover accident in which the
    71-year old decedent was killed when
    returning from his thrice-weekly
    dialysis. Appellants brought suit
    against several defendants raising
    negligence and product liability
    claims. Appellants resolved their
    issues with the other Defendants and
    proceeded solely against Appellee,
    The Goodyear Tire & Rubber
    Company.
    Trial Court:                       83 nl District Court of Val Verde
    County, the Honorable Robert E.
    Cadena, Presiding
    Orders appealed from:              After pending 8 years in the trial
    court, new appointee Judge Cadena
    entered an order excluding
    Appellants' sole expert on product
    defect under Goodyear's
    Daubert/Robinson challenge, and
    thereafter granted Goodyear
    summary judgment on all issues in
    two partial summary judgment orders.
    The court later entered a "final
    judgment" in favor of Goodyear.
    {03222971 .DOCX I}
    ix
    STATEMENT REGARDING ORAL ARGUMENT
    Goodyear believes that the jurisdictional issues can be decided without oral
    argument, as the critical facts on those issues cannot be in dispute under the record
    before the Court. Goodyear agrees that if the Court reaches the merits of the
    appeal, oral argument would assist the Court in resolving the underlying issues.
    {03222971 .DOCX I}
    x
    Response to tbe Issues Presented
    Response Point 1: Tbe court sbould carefully examine tbe orders entered by
    tbe trial court to determine wbetber or not it bas jurisdiction to reacb
    Appellants' claims bere.
    Response Point 2: Tbe Standard of Review in tbis case requires a two-fold
    analysis: abuse of discretion standard to assess tbe exclusion of Woebrle as an
    expert, tben review of tbe summary judgments tbemselves.
    Response Point 3: Tbe trial court did not abuse its discretion in excluding
    Woebrle, as be was unqualified to provide tbe testimony be sougbt to provide,
    used unsupported metbodology, based bis opinions on incorrect factual
    premises, and bas been excluded for espousing tbe same opinions be
    attempted to foist on tbe trial court bere.
    Response Point 4: A review of tbe Robinson factors along witb tbe analytical
    gap problems sbow tbat tbe trial court did not abuse its discretion in
    excluding Woebrle.
    Response Point 5: Having correctly exercised its discretion in excluding
    Woebrle, tbe summary judgments in favor of Goodyear were also proper, as
    Plaintiffs bad no otber evidence of a defect in tbe tire in question wbicb could
    support any of tbeir design, manufacturing or marketing claims.
    Response Point 6: Summary judgment was proper even if Woebrle bad not
    been excluded as bis testimony cannot meet tbe standard under Texas law for
    sbowing tbat eitber a manufacturing or design defect existed, mucb less an
    marketing defect.
    Response Point 7: Appellant's statements and arguments about Goodyear's
    experiences witb otber Load Range E tires is contrary to tbe actual testimony
    in tbe case, and, in any event, does not create a fact issue as to tbis tire.
    {03222971 .DOCX I }
    xi
    STATEMENT OF FACTS
    This case arises out of a tire disablement that occurred on or about February
    14,2006. Herman Richter was driving a 1998 Ford E-350 vehicle which had been
    converted into an ambulance, and was being operated on behalf of Medical Transport
    of South Texas, Inc. The ambulance, which was not on an emergency run, was
    transporting Mr. Julio Perez, age 71, for one of his dialysis treatments that he
    received three times a week. A light truck Load Range E tire mounted on the left
    rear wheel position of the ambulance became disabled through a treadlbelt
    separation. The vehicle ultimately rolled over, and Mr. Perez passed away at the
    scene of the accident.
    The Appellants, who are the surviving spouse and adult children of Mr. Perez,
    brought this lawsuit in March 2006 against Richter, Medical Transport of Texas and
    its owner (Orlando Garcia), Ford Motor Company and Goodyear. (CR 0016). The
    defendants answered, and written discovery was exchanged between the parties (CR
    0075). Goodyear moved for a protective order relating to some written discovery
    (CR 0099), including filing several affidavits relating to the tire in question. (CR
    0138, 0171, 0656, 0786, 0853). Plaintiffs responded by filing the affidavit of a
    purported tire expert, Dennis Carlson, in support of their request for documents.
    Goodyear objected to Carlson's involvement with its trade secret documents due to
    Carlson's well-documented failure to abide by previous protective orders. (CR 0184).
    1
    {03222971.DOCX I}
    The trial court agreed with Goodyear, and entered a protective order in March 2008
    barring Carlson from having access to Goodyear privileged documents (CR 0765).
    In 2010, Plaintiffs resolved their claims against the other defendants, sought
    and were granted non-suits against all defendants other than Goodyear (CR 1206,
    1210, 1212, 1215). In January 2011, the trial court adopted the parties' Rule 11
    discovery and docket control order, which provided for plaintiffs' testifying experts
    to be designated by September 1, 2011, their final pleadings to be filed by January
    16, 2012, and all discovery to be completed by February 17, 2012. (CR 1216).
    Pursuant to the docket control order entered by the trial court, Plaintiffs designated
    their expert witnesses on September 1, 2011. The only expert witness that they
    designated with regard to the tire was William Woehrle, who was ostensibly retained
    to testify about design, manufacturing and marketing issues.
    Plaintiffs filed no amended petition prior to the pleading deadline, and
    therefore their live pleading was their Eighth Amended Original petition of July
    2009 (CR 1590).1 The claims contained in the live pleading before the trial court
    were that Goodyear: (l) failed to properly design the tire in question (2) failed to
    properly manufacture the tire in question; (3) failed to properly warn that tires six
    years or older should not be used regardless of tread life; (4) failed to properly
    design the tire in question to include nylon overlays on the tire; (5) failed to warn
    , Plaintiffs attempted to file a Ninth Amended Original Petition, but the request for leave to file an
    amended pleading was denied (CR 3184) . Appellants have not raised specific error from this denial.
    2
    {03222971.DOCX I}
    that tires six (6) years old or older should not be used regardless of tread life; and
    (6) failed to properly warn that the subject tire did not have nylon overlays and was
    at a high risk for tread separation. (CR 1592-93).
    Goodyear filed its motion to exclude Woehrle on December 28,2011, which
    was within the deadlines established by the scheduling order.                              (CR 1219).2
    Goodyear thereafter filed a no evidence motion for summary judgment on each of
    the liability theories contained in Plaintiffs' live pleadings. (CR 1583). Plaintiffs
    likewise moved to exclude several of Goodyear's experts on various grounds,
    leading to the filing of Goodyear's own expert affidavits. (CR 1676, 1718). Over
    the next three years/ the parties filed numerous supplements, responses, replies
    and objections relating to the pending motions to exclude and motions for
    summary judgment. (see e.g. CR 1671, 1675,2576,2577,2594,2638,2640,2646,
    264 7, 2648).
    In August 2013, Goodyear filed a second no evidence motion for summary
    judgment, primarily on the plaintiffs "marketing defect" claims. (CR 2649). This
    also brought a number of responses, replies and supplements before the trial court
    (see e.g. CR 2714, 2715, 2716, 3318, 3333, 3373, 3419, 3489). Two lengthy
    hearings were held before the trial court regarding the pending motions.
    2 Goodyear also moved to strike several other witnesses, but those motions were not ruled on by the trial
    court, likely because the ultimate rulings on the other motions made them moot. (CR 1389,1459)
    3 The lengthy process in the trial court was in part due to the disruption caused by the unfortunate illness
    and ultimate passing of Judge Carl Pendergrass, and the subsequent appointment of his successor,
    Judge Robert Cadena.
    3
    {03222971 .DOCX I}
    On May 7, 2014, Judge Cadena granted Goodyear's motion to exclude the
    testimony of William Woehrle (CR 3603).          The order is global and does not
    specify the exact grounds for his exclusion. On June 3, 2014, the trial court
    granted a partial no evidence motion for summary judgment to Goodyear on all
    alleged manufacturing defects and negligent manufacturing claims, as well as "all
    claims based upon tire aging and the failure to warn about the age of the tire," (CR
    3604). On July 11,2014, the trial court entered a second summary judgment order
    for Goodyear as to all design defect claims (CR 3606).
    The trial court thereafter entered a "final judgment" on July 31, 2014 (CR
    3607). The fmal judgment specifically references the previously granted partial
    summary judgments of June 2 and July 11, 2014. (CR 3613). The trial court
    further noted "that those two orders, collectively, dispose of all claims and parties
    before the Court ... " (CR 3613).
    Appellants filed their notice of appeal in this case on September 2, 2014 (CR
    3610)
    4
    {03222971.DDCX I}
    SUMMARY OF ARGUMENT
    At the time of the rulings in this case, the case had been pending for more
    than eight years in the trial court and all deadlines in the trial court's docket control
    order had long since passed, including those related to both pleadings and
    discovery.          It was with that backdrop that the trial court assessed William
    Woehrle's qualifications and proposed testimony as an expert, and found them
    wanting.            Even assuming this Court has jurisdiction over the appeal, and
    regardless of the precise standard used to assess the reliability of Woehrle's
    proposed testimony, the decision to exclude him was undoubtedly a discretionary
    decision by the trial court.        As Goodyear proved - and Woehrle repeatedly
    admitted -- that he was not an expert in the very areas upon which his testimony
    was sought, Appellants simply cannot show an abuse of discretion in the trial
    court's decision to exclude Woehrle. Likewise, although the issue in the appeal of
    a summary judgment is an evidentiary one, without expert testimony supporting
    their design, manufacturing or marketing defect claims, the trial court did not err in
    granting the summary judgments on each of those issues in favor of Goodyear.
    5
    {03222971.DOCX I}
    ARGUMENT
    Response Point 1: The court should carefuUy examine the orders entered by
    the trial court to determine whether or not it has jurisdiction to reach
    Appellants' claims here.
    Goodyear is concerned as to whether this Court has jurisdiction over the
    appeal due to the trial court's method of issuing separate orders addressing the
    motions for summary judgment.
    Specifically, in its 'Final Judgment" order of July 31, 2014, the trial court
    noted that it had previously granted two partial summary judgments on June 2 and
    July 11, 2014. (CR 3613). The trial court further noted "that those two orders,
    collectively, dispose of all claims and parties before the Court ... " (CR 3613).
    This necessarily means that although the trial court thereafter entered the document
    entitled "Final Judgment," it was not addressing any additional matters which were
    pending, because the previous two orders had already "disposed of' all parties and
    claims.     So, in essence, the "Final Judgment" of July 31 was like a second
    judgment which ostensibly attempts to dispose of all parties and claims when a
    previous judgment has already effectively done so. Such a second judgment is
    void.     See Quanaim v. Frasco Restaurant & Catering, 
    17 S.W.3d 30
    , 37-39
    (Tex.App.-Houston [14th Dist.] 2000, pet. denied).
    The Quanaim court correctly notes that where the trial court somehow
    modifies a previous otherwise final order it already entered, then the appellate
    6
    (03222971.DOCX I)
    timetable begins from the second order rather than the first. On the other hand,
    "where there are two final judgments in a case, only one can survive." Quanaim at
    37. The Quanaim court involved a situation - like here - where an interlocutory
    partial summary judgment order was followed by a second partial summary
    judgment order that effectively disposed of all parties and claims. See Quanaim at
    36-37 ("Upon the signing of the trial court's May 11 order, there remained nothing
    for the court to adjudicate. Therefore the May 11 order was a final judgment.").
    However, after that order was signed, the Quanaim trial court issued a new order
    changing the basis for its summary judgment ruling. 
    Id. Addressing the
    jurisdictional issues, the Fourteenth Court of Appeals noted
    that the trial court's order had been changed in a way which "inferred or
    presumed" an intent of the trial court to modifY its previous ruling, which would
    restart the appellate timetable. 
    Id. On that
    basis only, the court allowed the appeal
    to continue.
    Unlike Quanaim, however, there was no change whatsoever to the previous
    orders here. To the contrary, the trial court here specifically ruled that his previous
    orders had collectively already disposed of all parties and claims. There was also
    no post-judgment motion filed after the second summary judgment order of July 11
    which would otherwise have somehow extended the appellate deadlines.
    7
    {03222971.DDCX I}
    The September 3, 2014 notice of appeal here was filed within 30 days of the
    "Final Judgment" of July 31, 2014 under the rules. (CR 3610).           It was not,
    however, filed within 30 or even 45 days of the July 11, 2014 ruling of the trial
    court (which would have been no later than August 25,2014). (CR 3610).        Thus,
    if the Court concludes that the July 11 ruling -- which according to the trial court
    actually disposed of all parties and claims - was the final judgment, this court is
    without jurisdiction to consider this appeal.
    Counsel agrees that appeals should be addressed on their merits rather than
    on procedural issues, as has been repeatedly stressed in both the Appellate Rules,
    and by the Supreme Court. As officers of the Court, however, the jurisdictional
    question is not one that can simply be ignored, which is why it is pointed out. That
    having been said, Goodyear would prefer to prevail - as it should - on the merits
    for the reasons set forth below.
    8
    {03222971.DOCX I}
    Response Point 2: The Standard of Review in this case requires a two-fold
    analysis: abuse of discretion standard to assess the exclusion of Woehrle as an
    expert, then review of the summary judgments themselves.
    As noted above, the rulings in Goodyear's favor came in stages here. The
    trial court first excluded Plaintiff's sole tire expert at the time of trial, William
    Woehrle. (CR 3603). The court then granted Goodyear's no evidence motion for
    summary judgment on manufacturing and marketing issues (CR 3604). Finally,
    the court granted Goodyear's no evidence motion for summary judgment as to
    design issues (CR 3606). Although the orders are interrelated, the standards of
    review are different.
    This Court reviews a trial court's ruling on a motion to exclude an expert
    witness under an abuse of discretion standard. Gammill v. Jack Williams
    Chevrolet, Inc., 
    972 S.W.2d 713
    , 718-19 (Tex.1998); Camacho v. Whirlpool,
    298 S.W.3d 631
    , 638 (Tex. 2008). The Supreme Court has repeatedly pointed out that
    the appellate courts will not reverse a trial court's judgment even if it would have
    held differently, or even if the trial court made an error in judgment. Gammill at
    531-32. Instead, this Court may only reverse if the trial court acted without
    reference to any guiding rules or principles. !d. at 532 (emphasis added). Thus, a
    trial court enjoys wide latitude in determining whether expert testimony is
    admissible. 
    Id. 9 {03222971
    .DOCX I}
    On the other hand, when considering the motions for summary judgment
    granted in favor of Goodyear, this Court has noted that it will review the grant of
    summary judgment, both traditional and no-evidence, de novo. Vause v. Liberty
    Ins. Co., --- S.W.3d --, 
    2014 WL 6687598
    at *2 (Tex. App. - San Antonio,
    November 26, 2014, n.p.h.), citing Provident Life & Ace. Ins. Co. v. Knott, 
    128 S.W.3d 211
    , 215 (Tex.2003) and Strandberg v. Spectrum Office Bldg., 
    293 S.W.3d 736
    , 738 (Tex.App.-San Antonio 2009, no pet.).     Goodyear was entitled to a no-
    evidence summary judgment if, "[a]fter adequate time for discovery, ... there is no
    evidence of one or more essential elements of a claim or defense on which an
    adverse party would have the burden of proof at trial." See Vause at *2, citing
    Tex.R. Civ. P. 166a(i). As this Court said:
    The trial court "must grant" the motion unless the non-movant
    produces summary judgment evidence to raise a genuine issue of
    material fact on the issues the movant has raised. Tex.R. Civ. P.
    166a(i). "A genuine issue of material fact exists if more than a
    scintilla of evidence establishing the existence of the challenged
    element is produced." Ford Motor Co. v. Ridgway, 
    135 S.W.3d 598
    ,
    600 (Tex.2004). More than a scintilla of evidence exists when the
    evidence "rises to a level that would enable reasonable and fair-
    minded people to differ in their conclusions." King Ranch, Inc. v.
    Chapman, 
    118 S.W.3d 742
    , 751 (Tex.2003).
    See Vause at *2.
    Put simply, the trial court properly exercised its discretion in excluding
    Woehrle as an expert, and plaintiffs cannot show the decision was without
    reference to any guiding principles. Having correctly excluded the plaintiffs' sole
    10
    {03222971 .DOCX I}
    liability expert, the trial court thereafter properly granted summary judgment, as
    plaintiffs produced no evidence of either a product defect or causation of the
    supposed accident under the no evidence standard.
    Response Point 3: The trial court did not abuse its discretion in
    excluding Woehrle, as he was unqualified to provide the testimony he
    sought to provide, used unsupported methodology, based his opinions
    on incorrect factual premises, and has been excluded for espousing the
    same opinions he attempted to foist on the trial court here.
    This is not William Woehrle's first rodeo in a tire case. It is also not his first
    time to be excluded over his "pet theory" regarding the use of nylon overlays on
    tires.    The trial court could have used any number of reasons to exclude his
    testimony under the facts, and it clearly was not an abuse of discretion to do so.
    A.      Standardfor Expert Testimony
    Texas Rule of Evidence 702 governs the admissibility of expert testimony.
    Expert testimony is admissible if(l) the expert is qualified and (2) the testimony is
    relevant and based on a reliable foundation. Cooper Tire & Rubber Co. v. Mendez,
    
    204 S.W.3d 797
    , 800 (Tex.2006).              Once Goodyear objected to Woehrle's
    testimony, it was Appellants' burden to prove that the evidence is admissible. E. I
    DuPont de Nemours & Co. v. Robinson, 
    923 S.W.2d 549
    , 557 (Tex. 1995). "When
    expert testimony is involved, courts are to rigorously examine the validity of facts
    and assumptions on which the testimony is based, as well as the principles,
    research, and methodology underlying the expert's conclusions and the manner in
    11
    (03222971.DOCX I )
    which the principles and methodologies are applied by the expert to reach the
    conclusions."         Whirlpool   Corp.   v.    Camacho,   
    298 S.W.3d 631
    ,    637
    (Tex.2009)(emphasis added). In detennining whether expert testimony is reliable,
    a court may consider the non-exclusive factors set forth in Robinson. Whirlpool
    
    Corp., 298 S.W.3d at 638
    . The Robinson factors may not apply when testimony is
    not scientific, but, rather, involves technical or other specialized knowledge. Mack
    Trucks, Inc. v. Tamez, 
    206 S.W.3d 572
    , 578 (Tex.2006) (citing Gammill v. Jack
    Williams Chevrolet, Inc., 
    972 S.W.2d 713
    , 726 (Tex.1998)). However, there must
    still be some basis for the opinion offered to show its reliability, and the trial court
    must detennine how to assess reliability. Helena Chem. 
    Co., 47 S.W.3d at 499
    (citing 
    Gammill, 972 S.W.2d at 726
    ). In short, there cannot be '''too great an
    analytical gap between the data and the opinion proffered.'" 
    Gammill, 972 S.W.2d at 726
    .
    The Supreme Court's handling of the expert in Whirlpool is instructive here.
    The court noted that "[w]itnesses offered as experts in an area or subject will
    invariably have experience in that field. If courts merely accept "experience" as a
    substitute for proof that an expert's opinions are reliable and then only examine the
    testimony for analytical gaps in the expert's logic and opinions, an expert can
    effectively insulate his or her conclusions from meaningful review by filling gaps
    in the testimony with almost any type of data or subjective opinions." Whirlpool at
    12
    {03222971 .DOCX I }
    639, citing 
    Gammill, 972 S.W.2d at 722
    . Although some subjects might not fit
    neatly within the realm of "scientific" testimony such that the Robinson factors
    directly apply, such does not mean that those factors should be ignored in favor of
    the "analytical gap" analysis. See Whirlpool at 639-40. Rather, where scientific
    testing forms the basis of at least some part of the expert's analysis, the Robinson
    reliability factors - such as the extent to which a theory and its parts have been or
    could be subjected to testing and the nature of peer review of the opinions -- still
    should be considered along side the analytical gap analysis.         See 
    Id. Like Whirlpool,
    the present case:
    is not one of the few cases in which appellate review of expert
    evidence should be limited to either an analysis focused solely on
    Robinson-like factors or solely on an analytical gap test. We agree ...
    that proper appellate legal sufficiency review ... requires evaluating
    [the expert's] testimony by considering both Robinson-type factors
    and examining for analytical gaps in his testimony."
    See Whirlpool at 640. So this court should examine each of the Robinson
    factors, as well as the analytical gap issues in order to come to its conclusions in
    this case.
    In their brief, Appellants provide pages upon pages of purported facts
    (without reference to the record) and argument which they believe show that their
    expert was qualified, used the proper methodology, "filled" the analytical gap, etc.,
    etc. This is, however, no different than urging that the trial judge made a mistake
    in weighing the evidence in favor of and against their expert. Their burden is
    13
    (03222971.DOCX I)
    heavier than that. They must essentially show that based upon this record, the trial
    court could only have found Woehrle to be a qualified witness and his opinions on
    each of the key issues to be reliable. Anything else would simply be inviting this
    Court to substitute its judgment for the trial judge's on the reliability issue, which
    is not the proper standard. With that distinction in mind, the trial court clearly had
    sufficient information to exclude Woehrle.
    B.          The trial court could have reasonably concluded that Woehrle was
    not qualified to give the testimony sought by Plaintifft
    First, it is not as if Mr. Woehrle is some happy-go-lucky scientist who
    happened to be hired as an expert witness. In fact, he is just the kind of witness
    that the Supreme Court has repeatedly warned about: one who travels around the
    country providing expert witness testimony in tire cases, i.e. a "hired gun." See
    Gammill at 725 ("Whether the expert would opine on economic valuation,
    advertising, psychology, or engineering, application of the Daubert factors is
    germane to evaluating whether the expert is a hired gun or a person whose opinion
    in the courtroom will withstand the same scrutiny that it would among his
    professional peers."); E.I. DuPont de Nemours v. Robinson, 
    923 S.W.2d 549
    , 553
    (Tex. 1995)(warning of experts who are "more than willing to proffer opinions of
    dubious value for the proper fee"). That being the case, it was perfectly within the
    trial court's discretion to conclude that Woehrle's qualifications to give the
    14
    {03222971 .DOCX I}
    testimony in this case generally and specifically regarding his opinions in this case
    were lacking.
    For example, Woehrle has never designed or manufactured a steel belted
    radial tire like the one involved in this case (CR 1295-96)(Goodwill transcript at page
    14, I. 6-7), and has repeatedly testified that he would not hire himself to design or
    manufacture a steel belted radial tire (CR 1295-97XGoodwill trial transcript at p. 15,
    I. 11-16; p. 19, I. 22 -24). He is not a professional licensed engineer, has previously
    testified that he does not consider himself to be an expert in regard to tire
    manufacturing (CR 1346)(Gotthelf deposition at p. 51, I. 14 - 17), and that he is not a
    tire design engineer (CR 1295-96)(Goodwill trial transcript at p. 14, I. 25 - p. 15, I.
    2). So, right off the bat, the trial court was faced with an expert who was to testify on
    design and manufacturing issues who had never designed or been involved in the
    manufacture of such a tire and who agreed as to his own lack of expertise in those
    areas. Those factors alone could have supported the trial court's rejection of Woehrle
    as an expert in the case.
    Even if his general lack of qualifications did not doom him, the Court should
    remember that the claims in Plaintiffs' live pleading were fairly specific on what the
    defect in the tire was claimed to be: (1) the tire did not have a nylon overlay and was
    therefore defective in design, manufacturing and marketing; and (2) there was no
    warning about using a tire more than six years old regardless of its tread wear. There
    15
    {03222971 .DDCX I}
    is more than a scintilla of evidence showing that Woehrle was properly excluded on
    both of these issues by the trial court.
    1.          Woehrle was not qualified to testify regarding nylon overlays. and
    failed to fill the analytical gap between his theories and this tire
    According to the report and testimony of Mr. Woehrle, the absence of a nylon
    overlay is the alleged design defect in the subject steel belted radial tire. Of course,
    Mr. Woehrle has never designed a nylon overlay for a steel belted radial tire (CR
    1311) (Maria Pina, et al. v. BridgestoneiFirestone deposition dated May 18, 2009 at
    p. 161 , 1. 20 -22). He holds no patents of nylon overlays (CR 1294) (Goodwill trial
    transcript at 13, line 20). He has not published any scientific reliable peer reviewed
    literature that addresses the design or manufacture of nylon overlays. (CR 1348)
    (Gotthelf deposition at p. 64).            Woehrle has not published any peer reviewed
    literature that addresses the uses or benefits of nylon overlays (CR 1348) (Gotthelf
    deposition at p. 64). He is not aware of any scientific reliable peer reviewed
    publication that says that the absence of a nylon overlay is a design defect (CR 1351)
    (Gotthelf deposition at p. 159, 1. 2-9). He never specified a nylon overlay for use in a
    steel belted radial tire (CR 1352)(Gotthelfdeposition at p. 195, 1. 15-17). Moreover,
    he has never done any comparison testing on a Wrangler HT 245/75R16 tire with
    and without an nylon overlay. (SR2097)(perez deposition at p. 122, 1. 6-9). He has
    agreed under oath that there is no publication anywhere that states that tires must
    have nylon overlays to be adequate or non-defective (CR 1350) (Gotthelfdeposition
    16
    {03222971 .DOCX I}
    at p. 152,1. 25 - p. 153,1. 3). He has admitted that use of nylon overlays can cause
    adverse effects on the rolling resistance of a tire, affect fuel economy, add weight to a
    tire and create a flat spotting problem (CR 1350) (Gotthelfdeposition at p. 151 -152).
    He also testified in the Ho v. Michelin case that nylon overlays can cause issues
    regarding "passenger discomfort" and "costs". See Melinda Ho v. Michelin North
    America, Inc., 
    2011 WL 3241466
    *6 (D. Kan. 2011).4 In fact, Woehrle has testified
    that just because a tire does not have a nylon overlay does not mean that the tire is
    defective. (CR 2844)(Goodwill testimony at p. 27, 1. 16).
    If all of the above is not sufficient to show that the trial court had some
    reasonable basis for excluding Woehrle, this Court need only look at the district and
    appellate opinions in the Ho case. In Ho the district court found:
    Woehrle has also never designed a steel-belted radial tire, or any tire
    that has ever been placed in production (citation omitted). He has stated
    that he is not a qualified tire designer and would not hire himself to
    design a tire (Id. at 64). Given these admissions, Woehrle is not
    qualified to give testimony as to the claims of defective ... design ...
    Woehrle acknowledges in his deposition that nylon cap plies are simply
    one alternative available to tire designers to compensate for belt edge
    stress, and that nylon cap plies have significant disadvantages, including
    rolling resistance, flat spotting, passenger discomfort, fuel inefficiency,
    and cost. As noted earlier, Woehrle is not a tire designer, and his
    opinion does not rest on any attempt to rationally balance these
    competing values. Other courts have rejected under Daubert proposed
    expert testimony advancing the nylon theory. See Smith v. Goodyear
    Tire & Rubber, 
    495 F.3d 224
    , 227 (5 th Cir. 2007); Vigil v. Michelin N.
    4 Appellants' specific agreement that this Court's examination of the issues should be guided by federal
    Daubert law makes the federal district court rulings in the Ho case even more persuasive than it might
    otherwise be. See Appellant·s Brief at 8 (noting that Texas Rules 702 and 703 are based on the same
    federal rules "thus, case law construing the federal rules is instructive.").
    17
    {03222971.DOCX I }
    Am., Inc., 
    2007 U.S. Dist. LEXIS 72785
    at 17-18 (W.D. Tex. August
    24,2007).
    See Melinda Ho v. Michelin North America, Inc., 
    2011 WL 3241466
    at *6
    (D. Kan. 2011). On appeal in that case, the United States 10th Circuit Court of
    Appeals noted that "Woehrle's concession that he was not qualified to design a
    tire" and that his design theory had been ruled inadmissible in other cases were
    sufficient grounds on which to exclude his design theory.                 See Melinda Ho v.
    Michelin North America, Inc. , 520 Fed. Appx. 658, 665-66 (10tb Cir. 2013).                The
    Court of Appeals did find that it was important that "Woehrle was not qualified to
    design tires." 
    Id. Additionally, Woehrle
    has also testified that he has personally observed
    tires with nylon overlays that have sustained tread belt separations (CR 1318) (see
    Timothy Inman v. Bridgestone deposition at p. 155, 1. 9-12). He also agreed that
    nylon overlays are not a cure-all that one can guarantee will prevent tread belt
    separations (CR 1318)(Id. at p. 155, 1. 13-16). In fact, he has repeatedly agreed he
    has seen thousands of tires with nylon overlays that have had tread belt
    separations.         (CR   1318)(Id.   at   p.    155,   1.   17;   (CR     1311)   Pina    v.
    BridgestoneiFirestone deposition at p. 161). Finally, he has conceded that every
    major tire manufacturer in the United States makes tires without nylon overlays.
    (CR 1350)(See Gotthelf deposition at 153).
    18
    (03222971 .DOCX I)
    Woehrle has admitted under oath that the absence of a nylon overlay does
    not mean that a steel belted radial tire is defective in design.        (CR 1340)(Ho
    deposition testimony at 135, line 9). More importantly, he has agreed that nylon
    overlays do not prevent tread separations. (CR 1340) (Id. at p. 136, line 20). In
    fact, there was never a showing from Woehrle that the use of a nylon overlay in the
    subject tire would have prevented the tread belt separation in this case. This is the
    very type of "analytical gap" that has been pointed out by the Supreme Court of
    Texas. See Volkswagen of America, Inc. v. Ramirez, 
    195 S.W.3d 897
    , 906 (Tex.
    2004). In other words, there is nothing in this record which would demonstrate
    that a nylon overlay would have prevented the tread separation in this case, much
    less the accident itself. So, in addition to the qualification questions, the trial court
    could have easily also excluded Woehrle because of the analytical gap inherent in
    his nylon overlay conclusions.
    19
    {03222971.DOCX I }
    2.          Woehrle was not qualified to testify regarding any supposed
    marketing defect
    The second issue upon which Woehrle sought to testify was the alleged
    marketing defects in the tire relating to: (1) failing to warn that the tire did not have
    a nylon overlay and (2) failing to warn that all tires over 6 years old should not be
    used regardless of tread life. Setting aside for the moment the entire problem with
    the nylon overly theory addressed above, Woehrle was even less qualified to talk
    about any marketing defect.
    The Ho case, standing alone, shows why the trial court could have easily
    concluded that Woehrle was not qualified to testify as to a marketing defect. The
    Ho district court opinion found that "Woehrle has admitted in other lawsuits that
    he is not a warnings expert". See Melinda Ho v. Michelin North America, Inc.
    
    2011 WL 3241466
    at *7 (D. Kan) and at 520 Fed Appx. at 662 (10 th Cir.).
    Woehrle has testified that he does not hold himself out as an expert in the
    effectiveness of warnings (CR 2893) (deposition in Jennifer Leann Myers v.
    Paccar, Inc. at p. 69) and he does not hold himself out as an expert on sizing,
    lettering, how human beings may react to certain warnings in terms of their
    apparent size or wording. (CR 2983)(Id. at p. 69). He has never published in the
    area of tire warnings or labeling. (SR 3943)(Gotthelf deposition at p. 97). He has
    testified that he does not hold himself as a warnings expert. (CR 2880) (deposition
    in Deborah Sparks v. Metzler Motorcycle Tire North America Corp., et al. at p.
    20
    {03222971 .DOCX I}
    171).      Clearly, the trial court could not have abused its discretion in the face of
    such facts in excluding opinions relating to warnings.
    3.          Woehrle was not Qualified to Testify Regarding any Supposed
    Manufacturing Defects
    In regard to tire manufacturing, Woehrle has testified under oath that he does
    not consider himse1fto be an expert in tire manufacturing. (CR 1346)(See Gotthelf
    deposition at p. 51, 1. 14-22). He testified that he had "no background" in tire
    manufacturing. (CR 1346)( Jd.). He also testified that he would not hire himse1fto
    manufacture a steel belted radial tire. (CR 1295-96)(Goodwill trial transcript at p.
    15, 1. 11-16; p. 19, 1. 22-24). Woehrle never had any work assignment in a tire
    manufacturing facility (CR1325) (Urbina deposition at p. 99, 1. 10-12), he has
    never built a production tire (SR 2097-98)(Perez deposition at p. 221, 1. 21-25) and
    he has never been involved in overseeing the tire manufacturing or building
    process (CR 1346)(Gotthelf deposition at p. 50, 1. 3-5). He also never worked in
    the product analysis or technical analysis department at the only tire company for
    which he was ever employed. (CR 1315)(Inman deposition at p. 28). Woehrle is
    also not a professional licensed engineer (CR 1294) (Goodwill trial transcript at p.
    13,1. 17-19) and has no degree in any field of engineering. (CR 1294)(Id. at p. 13,
    1. 14-16).
    In the Ho case Woehrle also wanted to claim that there were manufacturing
    defects in the Michelin tire. Once again, Woehrle was unable to cite any peer
    21
    {03222971 .DOCX I}
    reviewed literature supporting his theory, which, of course plagues his manufacturing
    defect theories in this case. &e Melinda Ho v. Michelin North America, Inc. 
    2011 WL 3241466
    at *7 (D. Kan) and at 520 Fed Appx. at 662 (10 th Cir.). Since
    Woehrle does not consider himself to be an expert in regard to tire manufacturing
    (CR 1346) (See Gotthelf deposition at p. 51, 1. 14-17), would not hire himselfto be a
    tire manufacturing engineer (CR 1296)(Goodwill trial transcript at p. 19, 1. 22 -24)
    and has taken no courses or published in the area of tire manufacturing (CR
    1347)(Gotthelfdeposition at p. 58-59), it was certainly not an abuse of discretion for
    the trial court to find that he does not possess the necessary knowledge, skill,
    experience or training to testifY in regard to tire manufacture.
    As in his Ho testimony, Woehrle does not identifY any published scientific
    study or text which support his claim regarding a thin innerliner in this case. He has
    never designed an innerliner for any steel belted radial tire (CR 1317XSee Inman
    deposition at p. 150). He also provides no test data regarding an innerliner, even
    though he agrees that the real measure of an innerliner is not its dimension but its
    perfonnance. (CR 1308)(See deposition in Pina v. Lopez at p. 152). He has no
    evidence that the tire in question had a history of flats or a need for additional air
    pressure, which would be the example of lack of "perfonnance" of the inner liner of
    the tire.
    22
    {03222971.DOCX I}
    4.         Woehrle's ipse dixit problem
    While all of the above manifestly shows why the trial court did not abuse its
    discretion, there is a final, perhaps more subtle, point that could also have informed
    the trial court's decision.
    The courts have continuously pointed out that an expert cannot rely on their
    own "say so" or "ipse dixit" to support their opinions.         Throughout the brief,
    Appellants tout Woehrle's "experiences" at Uniroyal (albeit 30 years ago) and the
    supposed wealth of knowledge gained there. They likewise continually call him an
    "engineer" even though he has no engineering degree or license, and cite to tests he
    conducted more than 30 years ago as the basis for his opinions. On the other hand,
    he has refused to talk about that experience because if he did so he would violate
    his agreement with Uniroyal to not disclose trade secrets. (SSR 0043-45)(Gotthelf
    deposition at p. 94-95, 100; (SR 2098)(Perez deposition at 225). What we do
    know is that he was terminated by Michelin in 1991 (CR 1295XGoodwili transcript
    at 14).
    It is well settled that there must be objective, independent validation of the
    expert's methodology. 
    Havner supra
    at p. 712. As noted by our Supreme Court:
    Similarly, to say that the expert's testimony is some evidence under
    our standard of review simply because the expert testified that the
    underlying technique or methodology supporting his or her opinion is
    generally accepted by the scientific community is putting the cart
    before the horse. As we said in Robinson, an expert's bald assurance
    of validity is not enough.
    23
    {03222971 .DOCX I}
    
    Havner supra
    at p. 712.
    Woehrle's defect theories cannot pennissibly be based upon any testing he
    performed at Uniroyal because he does not have that testing and he cannot disclose
    the details of that testing because it would violate his confidentiality agreement
    with Uniroyal. Further, the trial court was not required to rely upon Woehrle's
    "say so" as to the results of any experience he had with nylon overlays or the other
    issues at Uniroyal because the "underlying data should be independently evaluated
    in determining if the opinion itself is reliable." Merrell Dow Pharms. Inc. v.
    Havner, 
    953 S.W.2d 706
    ,712-713 (Tex. 1997). Woehrle has not - and could not
    consistent with his confidentiality agreements - brought forward the results from
    any testing that was performed at Uniroyal regarding nylon overlays.
    As Woehrle has admitted and been adjudicated as not qualified to be a tire
    design expert, and because he cannot disclose details of testing that he performed
    at Uniroyal because this would violate his confidentiality agreements, he is
    necessarily relying on his own "say so" to claim his opinions are reliable. Merrell
    Dow Pharms. Inc. v. Havner at p. 713. Essentially, he is saying "trust me, I did the
    testing when I was with Uniroyal, so 1 know what 1 am talking about." Of course
    at the same time he is saying "I can't give you details about the testing 1 did or the
    results achieved because that would get me in trouble with my former employer."
    That is the epitome of an ipse dixit issue. There is no way for either Goodyear or
    24
    {03222971 . DOCX I }
    the trial court to assess the underlying data to see if Woehrle is being accurate or is
    making up his opinions out of whole cloth. Given his "hired gun" status, this
    inability (or unwillingness) to support his "say so" with facts is also fatal to his
    opinions, and the trial court could not have erred in excluding them on that ground,
    even ifhe were otherwise qualified to testify.
    Response Point 4: A review of the Robinson factors along with the
    analytical gap problems show that the trial court did not abuse its
    discretion in excluding Woehrle.
    Appellants' arguments to the contrary notwithstanding, cases involving tire
    disablement have historically been assessed under the Daubert/Robinson standards
    as a part of the determination of reliability.        See Kumho Tire Co. Ltd v.
    Carmichael, 
    526 U.S. 137
    , 
    119 S. Ct. 1167
    , 1177-78 (1999)(excluding Dennis
    Carlson, Appellants' first expert here, for lack of reliability);     Cooper Tire &
    Rubber Co. v. Mendez, 
    204 S.W.3d 797
    , 801 (Tex. 2006)(reversing court of
    appeals judgment finding Rex Grogan reliable); Goodyear v. Rios, 
    143 S.W.3d 107
    (Tex. App. - San Antonio 2004, pet. den.).
    In Robinson, the Texas Supreme Court identified six non-exclusive factors
    to consider in determining whether scientific evidence is reliable, and thus,
    admissible under Rule 702. See 
    Robinson, 923 S.W.2d at 557
    . These Robinson
    factors are: (1) the extent to which the theory has been or can be tested; (2) the
    25
    {03222971 .DOCX I}
    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 nonjudicial uses which have been made of the theory or
    technique. 
    Robinson, 923 S.W.2d at 557
    .
    Put simply, the trial court would not have abused its discretion in finding
    that Woehrle met none of the Robinson factors. There is no evidence in the record
    that Woehrle's theories are anything but subjective, he never tested anything, he
    has not had his theories regarding nylon overlays, "interlaminar shear" or "weak:
    boundary layers" (which appear to be the sum of his design and manufacturing
    opinions) to publication or peer review, and there is no showing that anything he
    says has been accepted within the relevant scientific community. To the contrary,
    ifhis theories were generally accepted, all tires would have a nylon overlay, which
    he admits is not the case.      His opinions were not developed in the course of
    scientific research or endeavor, but were handsomely compensated opinions for the
    purpose of this litigation.    When added to the lack of qualifications and the
    analytical gap demonstrated above and ipse dixit problem, the trial court was
    clearly well within its discretion in concluding that the testimony was unreliable
    under Robinson.
    26
    {03222971 .DOCX I}
    Response Point 5: Having correctly exercised its discretion in excluding
    Woehrle, the summary judgments in favor of Goodyear were also
    proper, as Plaintiffs had no other evidence of a defect in the tire in
    question which could support any of their design, manufacturing or
    marketing claims.
    A review of Appellant's brief does not appear to reveal an argument -- much
    less a record references - indicating that once Woehrle was properly excluded,
    there was any fact issue on a product defect. Appellants talk about Woehrle's
    findings on causation issues, autopsy results and the reports of their other experts
    as to how the accident happened. Without proper expert testimony about a defect,
    however, the causation of the accident is basically of no import under the no
    evidence summary judgment standard, as the existence of a product failure is not
    evidence of a product defect. In that regard, this case is similar to Mendez, in
    which the Texas Supreme Court rejected a manufacturing defect claim involving a
    tire manufactured by Cooper Tire that lost its tread. See Cooper Rubber Tire & Co.
    v. Mendez, 
    204 S.W.3d 797
    , 799 (Tex. 2006). The car rolled several times and four
    passengers died at the scene. 
    Id. After excluding
    expert testimony on the
    manufacturing defect issue, the Court held that the mere fact that the tire failed in
    these circumstances is insufficient to establish a defect of some sort because this
    5 The Court has probably noted that there is not a single record reference anywhere in the 14 pages of
    argument related to the summary judgment issues. See Appellants' Brief at 37-51. It is not incumbent on
    this Court to dig through the record to see where, if anywhere, the Appellants statements might find
    support in the record. See Heritage Manor, Inc. v. Tidball, 
    724 S.W.2d 952
    , 956 n.1 (Tex. App. - San
    Antonio 1987, no pet); Brandon v. American Sterilizer Co., 880 S.W .2d 488, 493 (Tex. App. - Austin
    1994, no pet.).
    27
    {03222971 .DOCX I }
    fact would amount to evidence of a defect so slight as to make any inference a
    guess [and] is in legal effect no evidence. See Cooper Rubber Tire & Co. v. Mendez,
    
    204 S.W.3d 797
    , 807 (Tex. 2006). Here too, the mere fact that the tire was
    allegedly the cause of the accident is insufficient evidence of a defect.
    Appellants presented no evidence (other than Woehrle's unreliable opinions)
    as to the reason why the tire failed, and it is not appropriate for Appellants to
    thereafter speculate as to the cause of the failure, much less the cause of the
    accident. 6 As the Texas Supreme Court held in Ford Motor Co. v. Ridgway,
    upholding summary judgment for the manufacturer on a manufacturing defect
    claim:
    The Ridgways produced no direct evidence of the fire's cause, and
    their circumstantial evidence that a manufacturing defect existed in
    the Ford F-150 when it left the manufacturer does not exceed a
    scintilla. Ridgway's affidavit establishes only that a fire occurred, and
    Greenlees could say no more than that he suspects the electrical
    system caused the fire.
    Ford Motor Co. v. Ridgway, 
    135 S.W.3d 598
    , 601 (Tex.2004). Without
    Woehrle's testimony, the only evidence the Appellants have is that a tread
    separation occurred, and not even a suspicion that this tire was somehow defective.
    6 Goodyear also put on ample evidence as to why the Appellants' causation arguments were incorrect,
    but those did not need to be reached by the trial court because of the exclusion of Woehrle. On that
    issue, it is important to note that Woehrle was excluded completely, and Appellants do not appear to
    have argued - and have certainly not directed the Court to anything in the record - that would show
    Woehrle's exclusion was incorrect regarding his supposed "accident reconstruction" or causation
    testimony. If anything, his qualifications as a supposed causation expert were even weaker than those
    related to his other proposed areas of testimony.
    28
    {03222971. DOCX I }
    As tread separations can occur due to conditions unrelated to tire design or
    manufacturing, such as impact damage, overdeflection, underinflation, overload
    and other abuse (CR 1680, et seq., 1722, et. seq), Appellants' conjecture is not
    enough to bear their burden of proof.
    As such, the trial court did not err in granting the summary judgments in
    Goodyear's favor, as there was - under the record before the trial court - no
    evidence of a defect that caused this accident.
    Response Point 6: Summary judgment was proper even if Woehrle had
    not been excluded as his testimony cannot meet the standard under
    Texas law for showing that either a manufacturing or design defect
    existed, much less a marketing defect.
    It was part of Appellants' burden in responding to the no evidence motion
    for summary judgment to demonstrate that an alternative design would have
    prevented or significantly reduced the risk of the claimant's personal injury,
    property damage, or death. Tex. Civ. Prac. & Rem.Code Ann. § 82.005(b)(1).
    Woehrle's testimony --even if credited - falls short of the necessary factual basis to
    support any of the Appellants' claims.
    Specifically, over the years Woehrle has repeatedly agreed that a nylon
    overlay - the centerpiece of both his design and marketing opinions - does not
    prevent tread belt separations from occurring, as he has seen thousands of tires
    with nylon overlays which had such separations.          (CR 1311).     So, his only
    "alternative design" (and the apparent sole basis for the alleged failure to warn
    29
    {03222971.DOCX I}
    claim)? would not necessarily have prevented the accident made the basis of this
    suit. Even the best spin Appellants can put on it was that it would "make the tire
    more robust and enhance the tire' s performance." See Appellants ' Brief at 33. A
    "design is not a safer alternative if, under other circumstances, [it would] impose
    an equal or greater risk of harm than the design at issue." See Casey v. Toyota
    Motoer Engineering Mgf Co North America, 
    770 F.3d 322
    , 331-32 (Fifth Cir.
    2014)(citing Hodges v. Mack Trucks, Inc., 
    474 F.3d 188
    , 196 (5th Cir.2006)).
    Similarly, "the plaintiff must show the safety benefits from [the] proposed design
    are foreseeably greater than the resulting costs, including any diminished
    usefulness or diminished safety." 
    Id. Even accepting
    the statement as true, the simple fact that the tire might
    (arguably) have been made more "robust" does not demonstrate that it would have
    "prevented" or even "significantly reduced" the risk to this tire in this accident.
    The expert in Casey testified that had Toyota used an alternative airbag designed
    by Toyota, the plaintiff there would not have been ejected from the vehicle. See 
    id. at 331.
    As the Fifth Circuit noted in Casey, however, "[t]his statement is not
    sufficient evidence that the alternative design would have prevented or reduced the
    risk ofinjury because [the expert] did no testing to suggest that the presence of the
    7 Although it is difficult to tell given the nature of the Appellant's brief, it does not appear that they have
    attempted to bring forward the warnings claim related to "age" of the tires. This is not surprising, as
    Woehrle has repeatedly been forced to admit that there is absolutely no support in the reliable peer
    reviewed literature for such claims, and his lack of evidence also caused dismissal of the similar claim in
    Ho. See Ho at 668 (1r1' Cir.)
    30
    {03222971.DOCX I}
    alternative airbag would have changed the result in this case."          
    Id. at 331-32
    (emphasis added). That is exactly the problem with Woehrle's testimony here.
    Assuming everything in his favor, the best he can say is that the nylon overlay
    would have made the tire more robust, not that it would have prevented the result
    here and he did not perform testing to quantify anything related to this accident.
    Likewise, for the same reasons set forth in Casey, Appellants cannot meet
    the standard for showing a manufacturing defect.
    Manufacturing defect cases involve products which are flawed, i.e.,
    which do not conform to the manufacturer's own specifications, and
    are not identical to their mass-produced siblings. The flaw theory is
    based upon a fundamental consumer expectancy: that a mass-
    produced product will not differ from its siblings in a manner that
    makes it more dangerous than the others ....
    See Casey at 329, citing Green v. RJ Reynolds Tobacco Co., 
    274 F.3d 263
    ,
    268 (5th Cir.2001).     A manufacturing defect claim is based on a claim that the
    allegedly defective product differs from other products in the same product line.
    See 
    id. Thus, in
    order to prove a manufacturing defect in this case, Appellants were
    required to show that the tire in this case differs from the other tires that Goodyear
    produced in the same time period. One of Woehrle's opinions was that there was a
    "dog ear" and a "step off" in the belts of the subject tire. It will come as no surprise
    to this Court that this was a theory that the Court of Appeals for the Tenth Circuit
    rejected due to an "impermissible analytical gap" existing between premise and
    conclusion. In the Ho opinion the Court noted that Woehrle had admitted there was a
    31
    {03222971 .DOCX I}
    tolerance for step off variation and Woehrle conceded that the peer-reviewed
    literature "suggests that step-offs and dog ears do not cause belt separations, and he
    was unable to cite any peer-reviewed literature supporting his contrary theory" . &e
    Ho, 520 Fed. Appx. at 661 (10th Cir. 2013).     In this case, however, Woehrle went
    one step further and conceded that none of those alleged conditions caused the tread
    separation/detachment event in question. (SSR 0033)(Perez depo at 201, 202, 203,
    204).      Put simply, Plaintiffs have not shown, even were Woehrle qualified as an
    expert, that a reasonable jury could find a manufacturing defect here. See 242
    S.W.3d. 32, 41-42 (Tex. 2007Xrequiring that the product deviate from
    specifications or planned output).
    Response Point 7: Appellant's statements and arguments about
    Goodyear's experiences with other Load Range E tires is contrary to the
    actual testimony in the case, and, in any event, does not create a fact
    issue as to this tire.
    lbroughout the fact section and then again towards the end of the brief,
    Appellants set forth a number of purported facts (unsupported by record citations)
    relating to Load Range E tires. Contrary to Appellants' pronouncements, however,
    no one at Goodyear ever said that this tire, much less all Load Range E tires
    contained a design defect if they did not contain a nylon overlay. While it is true
    that in late 1995 Goodyear observed a slight increase in crown area separations on
    some Load Range E tires (SR0090)(see oral deposition of Richard Olsen dated
    February 19, 2009 at p. 19, 1. 13), Goodyear never found the root cause of that
    32
    (03222971 .DOCX I)
    condition. (SSR0136)(see oral deposition of Joseph Zekoski dated February 18,
    2009 at p. 52, I. 11). The investigation seeking to identify the root cause of the
    increase in crown area separations began in late 2005 and continued well into
    2008. The concept of a "weak boundary layer" was a hypothesis presented in 1996
    which was later ruled out as a root cause. (CR 3395). Likewise, in addition to the
    fact that it is undisputed that all tires have interlaminar shear, (SSR0097), it was
    determined that the level of interlaminar shear was not a problem either and it was
    ultimately ruled out as a hypothesis. (SSR0097).
    In other words, the hypotheses of both a "weak boundary layer" and an
    "interlaminar shear" were simply two of many ways that Goodyear was trying to
    look at the condition, all of which were ultimately ruled out. There is nothing in the
    record suggesting that Woehrle performed any testing on any Goodyear Load
    Range E tire to address the already rejected hypothesis of "weak boundary layer"
    or "interlaminer shear," and therefore his opinions - even if he was qualified to
    give them - are pure speculation.      Moreover, nylon overlays did not solve a
    "problem" as urged by Appellant's brief, as even Woehrle admits that even a nylon
    overlay does not prevent tread belt separations. Even if the tire was made "more
    robust" that does not mean it was defective without the nylon overlay in the first
    place, which again, is an analytical gap that Woehrle was never able to bridge.
    33
    {03222971 .DOCX I}
    CONCLUSION
    It is hard to imagine a less qualified hired witness than William Woehrle on
    design, manufacturing or marketing matters.          He has never designed any
    component of a steel belted radial tire and has testified under oath that he would
    not hire himself to design a steel belted radial tire. The Appellants, in essence,
    were paying him to redesign a steel belted radial tire, a task for which he was
    woefully unready. He likewise has never manufactured a steel belted radial tire
    and would not hire himself to manufacture a steel belted radial tire, but the
    Appellants hired him to claim that there are manufacturing defects in the subject
    tire even though he does not know that those alleged defects deviate from the
    specifications or the planned output for the subject tire. The Appellants hired Mr.
    Woehrle to testify regarding warnings even though he has testified that he is not a
    warnings expert and there is no showing that he has ever prepared a warning that
    was ever used on any product ever sold in the market place. The moving target
    that is his sworn testimony is calculated to make a mockery of Daubert, Robinson
    and their progeny. Just as the trial court saw right through his charade, the "hired
    gun" nature of his testimony should be read in light of the Ho case which excluded
    him on each of the grounds on which he sought to testify here. The trial court
    properly exercised its discretion and excluded Woehrle, and as there was no other
    evidence in the record supporting Goodyear's liability in the case, the trial court
    34
    {03222971.DDCX I}
    did not err in granting summary judgments in Goodyear's favor. Even if the Court
    has jurisdiction to consider the claims, the court should affirm the trial court in all
    respects.
    Prayer
    For all the reasons set forth above, The Goodyear Tire & Rubber Company
    s. respectfully requests that the Court affirm the trial court's granting of the motion
    to exclude, and the summary judgments in its favor, grant it all costs of appeal, and
    for such other and further relief to which it may be entitled.
    J. Michael Myers
    State Bar Number 14760800
    NAMAN HOWELL SMITH & LEE, PLLC
    Union Square II
    10001 Reunion Place, Suite 600
    San Antonio, Texas 78216
    (210) 731-6364
    Fax (210) 785-2964
    Email: jparker@namanhowell.com
    ATTORNEYS FOR APPELLEE
    THE GOODYEAR TIRE &
    RUBBER COMPANY
    35
    {03222971.DOCX I}
    CERTIFICATE OF SERVICE
    This is to certify that a true and correct copy of the foregoing document has
    been sent on the 23rd day of February 2015, to the following, as shown below:
    William G. Neumann, Jr.
    Hagood & Neumann
    1520 E. Highway 6
    Alvin, Texas 77511
    281-331-5757
    281-331-1105 (f: ><3.-- ......
    CERTIFICATE OF COMPLIANCE
    yeHipl.i·1es with the type-face and
    xas Rules of Appellate
    ended rule 9.4(9)(1), the
    tt-"" rd, the program used to
    36
    {03222971 .DOCX I}