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Theis v. Goodyear

Court of Appeals of Texas, Third District, Austin

November 3, 2017

T. J. Theis, Appellant
v.
Goodyear in its assumed or common name including The Goodyear Tire & Rubber Company, Appellee

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT NO. D-1-GN-10-001511, HONORABLE KARIN CRUMP, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Pemberton and Goodwin

          MEMORANDUM OPINION

          Jeff Rose, Chief Justice

         Appellant T.J. Theis appeals from the district court's directed verdict in favor of Goodyear Tire and Rubber Company. Theis sued Goodyear on a product-liability claim in connection with injuries he sustained in a single-car automobile accident. During the jury trial, the district court granted Goodyear's motion to strike the testimony of Theis's tire-manufacturing expert, William Woehrle, and then issued a directed verdict in favor of Goodyear. On appeal, Theis challenges the timeliness of Goodyear's objection and the exclusion of Woehrle's testimony as unreliable and baseless. We will affirm.

         Background

         Theis sustained severe injuries in May 2008 when the Chevrolet Suburban he was a passenger in slid across the road, crashed through a guardrail, and landed in a ditch. The driver of the SUV veered off the pavement to the right and then put the SUV in a counterclockwise spin while steering left to regain the road surface, ultimately crashing in the ditch. At some point during these events, the Suburban's right rear tire came off the rim.

         The Suburban's right rear tire, manufactured by Goodyear six months before the accident, had been installed on the Suburban two months before the accident. The driver stated that he had checked the tire's air pressure two days before the crash and that, before the accident, had not experienced any problems with the tire.

         Theis sued Goodyear on a product-liability claim, asserting that a manufacturing defect caused the tire to suddenly lose air pressure and unseat from the rim, causing the accident. More specifically, Theis's tire-manufacturing expert, William Woerhle, contended that the tire was defective because it had too much flash (excess rubber) on the tire bead (the edge of the tire that touches the rim and keeps the tire seated in the rim).[1] According to Woerhle, the excess flash interfered with the tire's ability to fit on the rim to create an airtight seal and caused the tire to become unseated from the rim. Goodyear, in turn, maintains that the tire became unseated because of the lateral and vertical forces imposed on the tire during the counterclockwise spin and return to pavement.

         Goodyear filed a motion to exclude Woehrle's testimony, arguing that his opinions were not based on scientifically reliable foundation. See E.I. Du Pont De Nemours & Co. v. Robinson, 923 S.W.3d 549, 557 (Tex. 1995). The trial court denied Goodyear's motion at a pre-trial admissibility hearing, so Woehrle testified to the jury at trial. Goodyear did not reassert its objections during Woehrle's testimony, but on the same day that Woehrle had finished testifying and been excused by the trial court, Goodyear moved for a directed verdict "on the fact that there is no evidence of a tire defect that caused the crash . . . and the record is completely devoid of anything scientific that could ever support a . . . defective opinion causing a bead unseat." And the next morning, Goodyear moved to strike Woehrle's testimony, arguing that, based on the evidence adduced at trial, there was no scientific evidence to support Woehrle's opinions that the tire was defective and that the existence of the flash on the tire caused the tire to unseat from the rim. The trial court held a second admissibility hearing and then struck Woehrle's testimony, determining that "the opinions offered in Mr. Woehrle's trial testimony that the subject tire was defective and caused the accident are not reliable and not grounded in methods and procedures of science and amount to no more than a subjective belief or unsupported speculation." At that point, Theis's attorney explained to the trial court that he had no additional tire-defect evidence to present to the jury and was, as a result, conditionally resting his case. The trial court then directed a verdict in Goodyear's favor, rendering judgment that Theis take nothing on his claims against Goodyear. Theis appeals from the directed verdict.

         Discussion

         Theis challenges the directed verdict in three issues, arguing that the trial court erred by (1) considering Goodyear's untimely objection to Woehrle's expert testimony; (2) excluding Woehrle's expert testimony as unreliable; and (3) resolving a factual dispute regarding whether the tire's defect was outside factory tolerances.

         Timeliness of Goodyear's objection

         We begin by addressing Theis's argument that Goodyear's objection to Woehrle's testimony was not timely. Theis maintains that because Goodyear did not object during or immediately after Woehrle's testimony-but instead waited until the day after to assert its motion to strike Woerhle's testimony-Goodyear failed to preserve error regarding the reliability of Woerhle's testimony. We disagree.

         A party can "preserve a complaint that the scientific evidence is unreliable [by objecting] to the evidence before trial or when the evidence is offered." Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998). Here, Goodyear objected to the reliability of Woerhle's opinion testimony in a pretrial motion to strike and then later-on the same day as, but after a different witness testified-moved for a directed verdict. And then the next morning, Goodyear moved to strike Woehrle's testimony on various reliability grounds. See General Motors Corp. v. Iracheta, 161 S.W.3d 462, 471 (Tex. 2005) (explaining that objection following expert's cross-examination was not too late because "unreliability of expert opinions may be apparent as early as the discovery process but may also not emerge until trial, during or after the expert's testimony, or even later"). Under these circumstances, we cannot say that Goodyear's objection came too late.

         Theis argues that Goodyear's objection needed to be contemporaneous to Woehrle's testimony, citing to the supreme court's admonition that "[w]ithout requiring a timely objection to the reliability of the scientific evidence, the offering party is not given an opportunity to cure any defect that may exist, and will be subject to trial and appeal by ambush." Maritime, 971 S.W.2d at 409. But the court did not hold in Maritime that an objection has to be contemporaneous with the testimony; it held that a party can "preserve a complaint that the scientific evidence is unreliable [by objecting] to the evidence before trial or when the evidence is offered." Id. And here, Theis was not ambushed by the objection-he was aware of it from Goodyear's pretrial motion to exclude. Further, there is nothing in the record to suggest that Theis was disadvantaged by the fact that the second objection came after Woerhle had been excused as a ...


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