                                                                                          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

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{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




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{03222971 .DOCX I}
