Kumho Tire Company: the Expansion of the Court's Role in Screening Every Aspect of Every Expert's Testimony at Every Stage of the Proceedings

• Publication year: 1998
• Citation: Vol. 33

33 Creighton L. Rev. 525. KUMHO TIRE COMPANY: THE EXPANSION OF THE COURT'S ROLE IN SCREENING EVERY ASPECT OF EVERY EXPERT'S TESTIMONY AT EVERY STAGE OF THE PROCEEDINGS

Creighton Law Review

Vol. 33

RICHARD COLLIN MANGRUM(fn*)

INTRODUCTION

The allocation of power between judge and jury has changed dramatically in recent years as a consequence of the Supreme Court's entry into the battle over the admissibility of expert testimony. Until recently, the balance of power rested with the jury who, in most cases, was vested with weighing the credibility of competing expert testimony. Foundational questions to expert testimony did arise, but with the exception of opinions resting upon truly novel theories or methodologies, which were excluded under the "generally accepted" Frye standard,(fn1) most courts were inclined to admit most expert testimony. The rationale for the broad admission of expert testimony was the assumption that the jury could ferret out unreliable expert testimony, which has been subjected to a vigorous cross-examination, the presentation of contrary expert testimony, and an effective closing argument.

In 1993, the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.(fn2) sent shock waves through the legal profession by announcing that the courts had been misinterpreting the key evidentiary provision governing the admissibility of expert testimony, Rule 702 of the Federal Rules of Evidence. According to the Court, Frye's common-law "generally accepted in the scientific community" standard had not survived the codification of the Federal Rules of Evidence. Instead, Rule 702 dramatically expanded the trial court's "gate keeping" responsibility over scientific evidence. Contrary to the preceding two decades of experience applying Frye under the Federal Rules of Evidence, the Court held that, under Rule 702 of the Federal Rules of Evidence, the trial judge, as the "gate keeper" of scientific evidence, "must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."(fn3)

As guidelines for the courts' administering this enhanced screening role over scientific evidence, the Court offered several "general observations" which have become known as the Daubert tests for the relevance and reliability of scientific evidence. These tests examine whether the theory or methodology: (1) has been tested; (2) has been the subject of peer-reviewed analysis or publication; (3) has an established rate of error; and (4) is generally accepted within the relevant scientific community.(fn4)

Armed with the Daubert standard, courts began exercising this newly-announced "gate-keeping" responsibility over scientific evidence. Of course, the effect of their Daubert ruling often was the displacement of the jury. Concerned with a trial court in a Daubert hearing displacing the jury, the United States Court of Appeals for the Eleventh Circuit in Joiner v. General Electric Company(fn5) applied a "particularly stringent standard of review to the trial judge's exclusion of expert testimony."(fn6) On review, the United States Supreme Court in General Electric Company v. Joiner(fn7) held that notwithstanding the potentially outcome-determinative nature of a court's Daubert ruling, a court's Daubert determination should be subject to an abuse of discretion standard; whether the decision is to admit or exclude the expert testimony.(fn8)

Following Joiner, if a trial court's outcome-determinative decision to exclude expert testimony is premised upon a "scientific" foundation and subject to an abuse of discretion standard, the question remained whether the trial court's broad discretion extended to nonscientific expert testimony? Did engineers, physicians, bee-keepers and all other experts, whether qualified by education, training, or experience, all have to run through the Daubert gauntlet before they could be heard by the jury? If so, the "gate keeping" responsibility of the court, backed by an abuse of discretion standard of review, would loom large as an evidentiary barrier for many cases. This unanswered question - raising the reality of a potentially dramatic shift of power between judge and jury - is the question addressed by the Supreme Court in Kumho Tire Co. v. Carmichael.(fn9)

I. KUMHO TIRE CO. V. CARMICHAEL

A. LOWER COURT HISTORY

1. District Court Decision

In Carmichael v. Samyang Tires, Inc.,(fn10) a products liability case arising out of a blown automobile tire, Chief Judge Charles Butler, pursuant to a Daubert hearing, granted defendants' motion to exclude the testimony of plaintiff's engineering expert and motion for summary judgment.(fn11) The underlying facts involved a single-vehicle crash of a minivan that occurred when the driver lost control after the right rear tire of the van failed. Plaintiff had purchased the used minivan "as is" with 88,997 miles on it. The right rear tire that failed was a Hercules Superior XII Steel Belted Radial tire that was designed and manufactured by Kumho & Company and produced in South Korea. Although the tire failed two months and 7,011 miles after plaintiff's purchase of the used minivan, the actual service history of the tire was unknown. What was known was that the original tire depth of 10/32" to 11/32" had been reduced to between 0/32" and 3/32", and that a previous tire puncture had not been adequately repaired. The issue in the case was whether the tire had blown as a consequence of tire abuse or as a consequence of a manufacturing or design defect.

To support a manufacturing or design defect, the plaintiffs offered the testimony of one expert witness, Dennis Carlson. In support of Carlson's qualifications to testify regarding tire design and manufacturing defects, plaintiffs offered evidence that Carlson had a master degree in mechanical engineering. He also had ten years of experience with Michelin America in the field of tire design. Additionally, he was employed by George R. Edwards and Associates as a tire consultant and had previously testified as a tire consultant in another case on tire design defect.

Based upon his education, experience, and training, the plaintiffs offered Carlson's expert opinion testimony "that the tire failed because of poor or insufficient adhesion between the rubber, steel, and nylon components of the tire."(fn12) According to Carlson's deposition testimony, the insufficient adhesion "caused the tire components to separate from each other, resulting in the flapping of the tread and the sudden, catastrophic loss of air pressure in the tire."(fn13)

The critical issue in the case was whether the loss of adhesion that caused the tire to fail was the consequence of tire defect or tire abuse. Carlson admitted that, in theory, the loss of adhesion he believed caused the blowout could have been the consequence of either tire defect or tire abuse. However, he suggested that the only relevant form of abuse at issue would have been "overdeflection, which may occur when a tire is underinflated, overloaded, or both."(fn14) The controversial part of Carlson's testimony involved the manner in which he ruled out abuse by overdeflection in support of his opinion that the tire blew because of a tire defect.

According to Carlson, in considering whether a tire had been abused by overdeflection, an expert would expect to see four signs indicative of overdeflection: "(1) greater tread wear on the shoulder than in the center of the tire; (2) sidewall deterioration or discoloration; (3) abnormal bead grooving on the tire; and (4) rim flange impressions."(fn15) According to Carlson's expert testimony, insufficient evidence of at least two of these factors "rules out overdeflection as a cause of the tire failure and, barring other evidence of abuse, [supports the conclusion] that the loss of adhesion was prompted by a manufacturing or design defect."(fn16)

In applying these overdeflection tests to the tire at issue and finding insufficient evidence to support a finding of overdeflection, Carlson relied heavily upon the opinion of plaintiff's original expert, George Edwards, Carlson's employer who became too ill to testify in the case. Edwards had examined the tire at issue and found insufficient evidence to indicate overdeflection. Rather than doing his own tests, Carlson formed an opinion that the tire at issue was defective merely by adopting Edwards' findings.(fn17) While Carlson visually inspected the tire for the first time an hour before his deposition, he had much earlier formed his opinion regarding the tire defect. Although he discovered some of the signs and testified that these were indicative of overdeflection,(fn18) he concluded that the evidence with respect to each factor was insufficient to demonstrate overdeflection despite the fact that he performed no tests on the tire.(fn19) Once he determined that there existed a "paucity of evidence of overdeflection or other abuse,"(fn20) he concluded that the tire must have failed because of a defect, despite the absence of "any affirmative evidence of a defect in the tire."(fn21)

The defendants moved for a summary judgment based upon the unreliability of Carlson's expert testimony under the Daubert standard.(fn22) In fulfilling his "gatekeeping" responsibility, the trial judge applied the four Daubert factors for assessing the admissibility of expert testimony:

(1) whether the technique

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