                     REVISED October 11, 2016

       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                   Fifth Circuit

                                                                    FILED
                                                                October 5, 2016
                                No. 15-10636
                                                                 Lyle W. Cayce
                                                                      Clerk
HENRY LEE SIMS, JR., individually and as legal heir to the Estate of Henry
Lee Sims, Sr.; TIMOTHY EVERETT SIMS, individually and as legal heir to
the Estate of Henry Lee Sims, Sr.; WILLIE EARL SIMS, individually and as
legal heir to the Estate of Henry Lee Sims, Sr.; SHAMIKA RAE SIMS,
individually and as legal heir to the Estate of Henry Lee Sims, Sr.;
KATHLYN LENETTA SIMS, individually and as legal heir to the Estate of
Henry Lee Sims, Sr.; BRENCE ERIC SIMS, individually and as legal heir to
the Estate of Henry Lee Sims, Sr.; MICHAEL ANDRE SIMS, individually
and as legal heir to the Estate of Henry Lee Sims, Sr.; SARAH DENISE
SIMS, individually and as legal heir to the Estate of Henry Lee Sims, Sr.;
PAMELA RACHAEL SIMS, individually and as legal heir to the Estate of
Henry Lee Sims, Sr.,

            Plaintiffs - Appellants

v.

KIA MOTORS OF AMERICA, INCORPORATED; KIA MOTORS
CORPORATION,

            Defendants - Appellees



               Appeal from the United States District Court
                    for the Northern District of Texas


Before HIGGINBOTHAM, PRADO, and GRAVES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
                                 No. 15-10636

      Family members of decedent Henry Sims, Sr. filed this products liability
suit against Defendants-Appellees Kia Motors of America (KMA) and Kia
Motors Corporation (KMC) stemming from a tragic car accident, in which Mr.
Sims, a passenger in a 2010 Kia Soul, died. Among other claims, they alleged
that the Soul’s fuel tank was defectively designed. After determining that
Texas law applied and excluding testimony from two of their experts, the
district court granted summary judgment in favor of Defendants. We AFFIRM.


                                       I.

      Henry Sims, Sr. died in the back seat of a 2010 Kia Soul after a traffic
accident in Tarrant County, Texas. The initial impact occurred when the Soul
collided with another car in an intersection, causing the Soul to spin and to
strike various objects. One of those items was the immovable base of a yield
sign, the “flange,” the top of which had disconnected as it was designed to do
upon contact. The flange was 3.25 inches tall. As the Soul continued forward,
the base of the sign passed beneath the front bumper and continued along the
underside of the vehicle before impacting the fuel tank. The sign base tore a
large hole in the fuel tank, causing gasoline to leak onto the roadway. When
the Soul eventually came to rest, the driver and passenger riding in the front
seats safely exited the vehicle. The three passengers in the back, however,
including Mr. Sims, were stuck inside when both rear doors wouldn’t open.
Because the fuel tank of the Soul had ruptured during the crash sequence, the
car became engulfed in flames. Mr. Sims died in the fire.
      Plaintiffs, Mr. Sims’ children and grandchild, sued Defendants for
products liability. They allege that “[g]iven the hazards posed by a vehicle’s
gas tank, vehicle manufacturers must take reasonable steps to design and
manufacture a gas tank that is not susceptible to failure in collisions and that,



                                       2
                                     No. 15-10636

if fire in the gas tank does result, the fire does not immediately explode into
the passenger cabin of the vehicle so that occupants have an opportunity to
escape the burning car.” They argue that Defendants should have utilized fuel
tank fastening straps or a fuel tank shield or both in the 2010 Kia Soul, and
that their failure to do so rendered the vehicle unreasonably dangerous and
contributed to Mr. Sims’s death. Plaintiffs retained two engineers as experts:
Michael McCort, who was to investigate how the flange struck the fuel tank,
and Jerry Wallingford, who was to testify that feasible, safer alternative
designs would have prevented the fuel tank rupture.
      Plaintiffs originally filed this action in the Central District of California
against KMA. It was transferred to the Northern District of Texas due to the
location of evidence and convenience of witnesses relevant to Plaintiffs’ claims.
With agreement of the parties, the complaint was amended to add KMC as an
additional defendant. 1
      Defendants moved for partial summary judgment, arguing that one of
the Plaintiffs, Mr. Sims’s granddaughter, “has no cause of action as wrongful
death statute beneficiary.” Applying Texas law, the district court granted the
motion since Texas law does not allow grandchildren to recover for wrongful
death claims. Defendants also sought and received leave to designate
responsible third parties to whom the jury may assign responsibility at trial,
as is permitted under Texas law. Finally, Defendants moved to have Texas law
apply to all claims, and the district court granted this motion.
      Defendants then sought to exclude some or all of the Plaintiffs’ expert
testimony. The district court granted these motions, concluding that the
testimony was unreliable. Defendants moved for summary judgment on all
claims, arguing that – without expert testimony – the Plaintiffs raised no


      1   KMC is headquartered in South Korea.


                                           3
                                     No. 15-10636

genuine dispute as to the material facts of their claims. The district court
granted the motion, and Plaintiffs timely appealed.


                                           II.

      Plaintiffs first challenge the district court’s determination that Texas’s
substantive law – not California’s – should apply. Our review is de novo. 2
      The parties do not dispute that California’s “governmental interest
approach” 3 controls our analysis of which state’s substantive law applies. 4
Under this approach, courts take up to three steps to determine which state’s
law applies.
      First, the court determines whether the relevant law of each of the
      potentially affected jurisdictions with regard to the particular
      issue in question is the same or different. Second, if there is a
      difference, the court examines each jurisdiction’s interest in the
      application of its own law under the circumstances of the
      particular case to determine whether a true conflict exists. Third,
      if the court finds that there is a true conflict, it carefully evaluates
      and compares the nature and strength of the interest of each
      jurisdiction in the application of its own law to determine which
      state’s interest would be more impaired if its policy were
      subordinated to the policy of the other state, and then ultimately
      applies the law of the state whose interest would be the more
      impaired if its law were not applied. 5

      There is no dispute that the applicable laws in Texas and California are
different. In Texas, grandchildren cannot recover in a wrongful death suit; in
California, they can. 6 And under Texas’s law but not California’s, Defendants

      2  Ellis v. Trustmark Builders, Inc., 625 F.3d 222, 225 (5th Cir. 2010).
      3  Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914, 922 (Cal. 2006).
       4 In diversity cases, when the initial forum selected by a plaintiff is proper, the

transferee court must apply the same state law and choice of law rules that the transferor
court would have applied but for the transfer. Van Dusen v. Barrack, 376 U.S. 612 (1964).
       5 Kearney, 137 P.3d at 922 (citations omitted).
       6 Compare TEX. CIV. PRAC. & REM. CODE § 71.004(a), with CAL. CIV. PROC. CODE

§ 377.60.


                                            4
                                       No. 15-10636

are permitted to designate a responsible third party to whom a jury may assign
responsibility during trial. 7 Finally, Texas, unlike California, requires
plaintiffs in design defect cases to show that there was a safer alternative
design that Defendants could have used. 8
       Since California and Texas law differ, we consider whether there is a
“true conflict.” A true conflict arises when both states have a legitimate
interest in applying their own laws. Texas’s interests are legitimate. The Soul
was sold in Texas, both drivers and all plaintiffs are Texans, and the accident
occurred in Texas. 9 California’s interest in applying its law is more tenuous.
On appeal, the parties dispute whether the Soul was designed in California or
Korea, a factual question that the district court did not explicitly answer. The
record suggests that, despite some indications to the contrary in Kia’s
advertising materials, the parties originally agreed that the 2010 Kia Soul was
designed in Korea, not California. 10 The district court implicitly agreed, noting
that “[t]here is no nexus to California other than the fortuity that one of the
defendants is a citizen of California.”




       7  Compare TEX. CIV. PRAC. & REM. CODE § 33.004(e), with CAL. CIV. PROC. CODE
(lacking an equivalent provision).
        8 TEX. CIV. PRAC. & REM. CODE § 82.005(b); Barker v. Lull Eng’g Co., 20 Cal. 3d 413,

423-26 (1978).
        9 Texas probably also has an interest in enacting legislation to attract businesses like

Kia to the state. Plaintiffs contend that under California’s governmental interest approach,
states have no interest in limiting the recovery of their own residents where the tortfeasors
are not residents of that state. See Hurtado v. Superior Court, 522 P.2d 666, 670 (Cal. 1974).
But Hurtado and similar cases may be limited to situations wherein the out-of-state
defendants are individuals, not corporations. In fact, the California Supreme Court has since
recognized that “nothing . . . suggests that a state’s interest in the application of a statute
limiting liability for specified commercial activity carried on within the state applies only to
local companies and not equally to out-of state companies doing business within the state.”
McCann v. Foster Wheeler LLC, 48 Cal. 4th 68, 93 (2010).
        10 The Joint Pretrial Order submitted by both parties included as a fact “established

by pleadings, by stipulations, and/or by admissions” that the 2010 Kia Soul was “designed,
tested, and manufactured by Defendant Kia Motors Corporation,” which is in Korea.


                                               5
                                       No. 15-10636

       Plaintiffs counter that California has a legitimate interest because KMC
and KMA “put themselves at the heart of California’s regulatory interest” by
engaging in business there. But while KMC and KMA have enjoyed the
benefits of doing business with California residents, they also have done
business in Texas. At best, this argument suggests that both California and
Texas have an interest in applying their laws in this case.
       Assuming without deciding that California has a legitimate interest in
applying its laws under the second step of the governmental interest approach,
we turn to the third step. We conclude that Texas’s interests would be more
impaired if California law applied than California’s would be by the application
of Texas law. Under California choice-of-law rules, “with respect to regulating
or affecting conduct within its borders, the place of the wrong has the
predominant interest.” 11 California considers the “‘place of the wrong’ to be the
state where the last event necessary to make the actor liable occurred.” 12 The
last event here – the accident – took place in Texas. 13 Therefore, the district
court did not err in applying Texas law to all claims in the suit.


                                             III.

       The Plaintiffs next challenge the district court’s decision to exclude part
of expert Michael McCort’s testimony and all of Jerry Wallingford’s. McCort
investigated the mechanics of how the fuel tank struck the flange and



       11 See Hernandez v. Burger, 102 Cal. App. 3d 795, 802 (1980).
       12 Mazza v. Am. Honda Motor Co., 666 F.3d 581, 593 (9th Cir. 2012); cf. Zinn v. Ex–
Cell–O Corp., 148 Cal. App. 2d 56, 80 n.6 (1957) (concluding in a fraud case that the place of
the wrong was the state where the misrepresentations were communicated to the plaintiffs,
not the state where the intention to misrepresent was formed or where the misrepresented
acts took place).
       13 See Hill v. Novartis Pharm. Corp., No. 1:06-CV-00939-AWI, 2012 WL 967577, at *7

(E.D. Cal. Mar. 21, 2012) (holding that the last event necessary to make defendant liable in
products liability case took place at the scene of injury).


                                              6
                                       No. 15-10636

Wallingford analyzed whether safer alternative designs existed. Because
Plaintiffs intended to rely on experts to establish each of the essential elements
of products liability claims, 14 the exclusion of their testimony was fatal to
Plaintiffs’ case.
       We review a district court’s decision to exclude expert testimony for
abuse of discretion. 15 “A trial court abuses its discretion when its ruling is
based on an erroneous view of the law or a clearly erroneous assessment of the
evidence.” 16 “In conducting our review, ‘[w]e are mindful that under Daubert 17
and Fed. R. Evid. 702, 18 a district court has broad discretion to determine
whether a body of evidence relied upon by an expert is sufficient to support




       14  These elements include that (1) there was a safer alternative design, and (2) the
defect was a producing cause of the personal injury, property damage, or death for which the
claimant seeks recovery. TEX. CIV. PRAC. & REM. CODE § 82.005(b).
        15 Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-43 (1997).
        16 Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).
        17 In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993) the Supreme

Court offered a list of factors that district courts may use in evaluating the reliability of
expert testimony. These factors include whether the expert’s theory or technique: (1) can be
or has been tested; (2) has been subjected to peer review and publication; (3) has a known or
potential rate of error or standards controlling its operation; and (4) is generally accepted in
the relevant scientific community. Later, in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150
(1999), the Supreme Court emphasized that the Daubert analysis is a “flexible” one, and that
“the factors identified in Daubert may or may not be pertinent in assessing reliability,
depending on the nature of the issue, the expert’s particular expertise, and the subject of his
testimony.”
        18 Rule 702 provides that “[a] witness who is qualified as an expert by knowledge,

skill, experience, training, or education may testify in the form of an opinion or otherwise if:
        (a) the expert’s scientific, technical, or other specialized knowledge will help
        the trier of fact to understand the evidence or to determine a fact in issue;
        (b) the testimony is based on sufficient facts or data;
        (c) the testimony is the product of reliable principles and methods; and
        (d) the expert has reliably applied the principles and methods to the facts of
        the case.”


                                               7
                                       No. 15-10636

that expert’s opinion.’” 19 The proponent of expert testimony bears the burden
of establishing the reliability of the expert’s testimony. 20


                                              A.

       We begin with Plaintiffs’ first expert, engineer Michael McCort.
Plaintiffs hired McCort to investigate how the fuel tank was able to contact the
flange. 21 McCort traveled to the crash site to collect evidence, studied law
enforcement documents about the crash, and inspected both the damaged Soul
and an undamaged model. He determined that for the fuel tank to contact the
flange, one of two events necessarily occurred: either (1) the entire car lost
ground clearance, or (2) the fuel tank dropped independently from the vehicle.
He ran several computer simulations, and determined that the body of the car
could not have lowered far enough to allow the fuel tank to hit the flange.
Therefore, McCort concluded that the fuel tank dropped independently of the
vehicle’s body. He did not, however, “know the precise mechanism” of how the
fuel tank lowered, nor did he recreate this occurrence in a simulation.
       The district court excluded the portion of McCort’s testimony that argued
that the fuel tank moved downward during the crash sequence. The court
reasoned that “McCort’s proffered expert opinions and related testimony
regarding the ‘downward displacement theory’ were unreliable and thus,
inadmissible for the lack of reliance on sufficient facts or reliable underlying



       19  Johnson v. Arkema, Inc., 685 F.3d 452, 458-59 (5th Cir. 2012) (quoting Knight v.
Kirby Inland Marine Inc., 482 F.3d 347, 354 (5th Cir. 2007)); see also Rider v. Sandoz Pharm.
Corp., 295 F.3d 1194, 1197 (11th Cir. 2002) (“[J]udges have considerable leeway in both how
to test the reliability of evidence and determining whether such evidence is reliable.” (citing
Kumho, 526 U.S. at 151-53)).
        20 Johnson, 685 F.3d at 458.
        21 McCort’s declaration is in the record. There is no dispute about his qualifications,

which include an engineering background and several years of experience in accident
reconstruction.


                                              8
                                       No. 15-10636

data and do not satisfy any of the requirements of the standards set forth in
parts (a) – (d) of Rule 702 of the Federal Rules of Evidence.”
       McCort employed a “differential diagnosis approach,” a scientific
technique that essentially involves the process of elimination. 22 This Court has
previously found a similar methodology to be reliable under Daubert when
used by medical experts. 23 In Pipitone v. Biomatrix, Inc., for example, an expert
witness, a doctor, used process of elimination to conclude with “99.9%”
certainty that the defendant’s drug caused plaintiff’s infection. 24 The district
court excluded his testimony, but this Court reversed. We explained that the
doctor had satisfied Daubert by “eliminat[ing] . . . all other likely alternatives”
using “generally accepted diagnostic principles.” 25 Plaintiffs point to Pipitone
as evidence of the reliability of differential diagnosis.
       But this Court has cautioned that “the results of a differential diagnosis
are far from reliable per se.” 26 In Pipitone, the doctor did not merely “rule out”
alternative causes of infection. He also “ruled in” defendant’s drug as the cause
by evaluating “the timeliness of the infection (symptoms of which began to
appear hours after the [drug] injection), the source of the [drug], [and] the type
of organism (salmonella) that infected [plaintiff].” 27 Other courts have
explicitly cautioned that merely “ruling out” other possible explanations is not
enough to establish reliability; experts must also have some scientific basis for




       22 See Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248, 252-53 (1st Cir. 1998).
       23 See Pipitone v. Biomatrix, Inc., 288 F.3d 239 (5th Cir. 2002).
       24 Id. at 248.
       25 Id. at 248, 246.
       26 Johnson., 685 F.3d at 468; see also Moore v. Ashland Chem. Inc., 151 F.3d 269, 278-

79 (5th Cir. 1998) (affirming the district court’s exclusion of an expert who performed
differential diagnosis of possible causes of plaintiff’s illness, but failed to present reliable
evidence otherwise supporting his opinion defendant’s chemical was the cause).
       27 Id.




                                               9
                                        No. 15-10636

“ruling in” the phenomenon they allege. 28 This Court has not held – and does
not here hold – that differential diagnosis may never satisfy Daubert. Rather
we observe that the district court has broad discretion to make the fact-specific
inquiry in a given case as to whether such an approach is sufficiently reliable,
especially in the absence of evidence “ruling in” an expert’s conclusion. 29
       The parties dispute whether McCort in fact “ruled in” his downward
displacement theory using scientifically reliable methodology. In his initial
expert report, McCort indicated that after the accident, the tank “was found to
be approximately the same vertical height” as it normally is on an undamaged
vehicle. He speculated that although the tank “had displaced downward” prior
to impacting the flange, the “significant forces” from the impact had returned
the tank to its normal height. The report did not point to any physical evidence
that “ruled in” the theory that the tank had initially displaced downward.
       McCort later offered two pieces of evidence to “rule in” his conclusion
that the tank displaced downward. First, he observed that the mounting
brackets of the fuel tank were “bent” upwards. When deposed, McCort
conceded that the bending “probably” was the result of the flange contacting
the fuel tank; that is, the mounting brackets did not bend before the fuel tank
hit the flange, causing the tank to drop, but rather after the tank hit the


       28  See Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 254 (2d Cir. 2005) (“Where an
expert employs differential diagnosis to ‘rule out’ other potential causes for the injury at
issue, he must also ‘rule in’ the suspected cause, and do so using ‘scientifically valid
methodology’”) (citations omitted); Buck v. Ford Motor Co., 810 F. Supp. 2d 815, 830 (N.D.
Ohio 2011) (“[W]here an expert employs differential diagnosis to ‘rule out other potential
causes for the injury at issue, he must also rule in the suspected cause, and do so using
scientifically valid methodology’”); Fireman’s Fund Ins. Co. v. Tecumseh Prods. Co., 767 F.
Supp. 2d 549, 555 (D. Md. 2011) (expert must show that “objects and materials are capable
of behaving in the manner [he] hypothesize[d] under the conditions of the event in question”).
        29 See Ruggiero, 424 F.3d at 254 (“We cannot say that a differential diagnosis may

never provide a sufficient basis for an opinion as to general causation. . . . The district judge
has broad discretion in determining whether in a given case a differential diagnosis is enough
by itself to support such an opinion”).


                                              10
                                       No. 15-10636

flange. 30 McCort reasoned that the bend was nonetheless probative of his
downward displacement theory because the fact that the brackets “bent in one
direction” suggested that “[t]here’s no reason they couldn’t bend in another
direction” – downwards.
       Second, McCort’s declaration states that “Kia’s own testing shows that
the tank displaces downward several inches during normal acceleration and
deceleration events, even without the vehicle sustaining any collision-related
damage.” McCort did not mention this testing in his original report, nor did he
reference it during his deposition. Plaintiffs have not pointed to any source in
the record substantiating that claim. When mentioning Kia’s internal testing
in their briefing, Plaintiffs cite only to McCort’s declaration.
       McCort’s claim about Kia’s internal test could help “rule in” his theory,
especially if it were otherwise substantiated in the record. 31 The only evidence
we found in the record concerning McCort’s theory – besides his own
declaration – is in the deposition of Plaintiffs’ other expert, Wallingford, and
he appears to undermine McCort’s position. Defense counsel asked Wallingford
about the “sled test” that formed the basis for “[his] opinion that the bottom of
the tank bulges.” Wallingford responded that the test appeared “in the . . .
documentation [that] came from Kia” and begins to concede that he was not




       30 “Q: And – but that bending could be in conjunction with the slip base interacting
with the fuel tank? A: I agree, and I think it probably is.”
       31 See generally First United Fin. Corp. v. U.S. Fid. & Guar. Co., 96 F.3d 135, 141 (5th

Cir. 1996) (Garza, J., concurring) (discussing the tension between FED. R. EVID. 703, which
allows experts to state opinions based on facts or data outside the record, and FED. R. CIV. P.
56(e), which requires affidavits to set forth specific facts establishing a genuine issue of
material fact). This Court has not yet resolved the apparent inconsistency between the leeway
given experts under Rule 703 and the specificity requirements of Rule 56. Stagliano v.
Cincinnati Ins. Co., 633 F. App’x 217, 220 n.2 (5th Cir. 2015). We need not resolve the issue
here, but we note that McCort’s claim that Kia’s testing showed downward displacement
would be stronger if there were documentation of such testing in the record.


                                             11
                                      No. 15-10636

familiar with the precise parameters of the testing. 32 The next three pages of
the deposition, including the rest of Wallingford’s answer to the question about
the particulars of the test, are absent from the record. On the next page of the
deposition in the record, Wallingford continued to discuss Kia’s internal
testing. He stated that “[i]t shows and should have showed the Kia engineers
the tank will significantly swell.” But when asked, “[D]idn’t you just tell us
that the swelling of the tank is not a factor in this accident, this tank rupture?”
Wallingford replied in the affirmative. 33
       The record is not wholly clear whether Wallingford was discussing the
same internal testing referenced in McCort’s declaration. In their briefing,
Defendants argue that Wallingford was indeed referring to the same testing
as McCort. They maintain that Wallingford’s concession that the swelling was
not a factor in this accident undermines McCort’s theory; that Kia’s testing
cannot “rule in” the downward displacement theory if the swelling played no
role in this accident. Plaintiffs, given the opportunity to clarify that
Wallingford was talking about a different phenomenon, did not. Instead,
Plaintiffs wrote that:
       Defendants’ own testing confirms that the Kia Soul’s fuel tank
       moves down several inches during normal driving, even when the
       vehicle is not involved in a crash [citing McCort’s declaration].
       Defendants complain that this testimony is irrelevant because this
       tank “swelling” did not contribute to the crash [citing Defendant’s
       brief]. This misses the point. Defendants’ contention that it was
       impossible for the tank to drop during this crash ignores that the
       tank does drop several inches, under normal driving conditions,
       even when the vehicle is not damaged.




       32 “Q: What were the parameters of this test? What was the speed, direction, et
cetera? A: I have not looked at in particularly [sic] to see what the . . . .”
       33 “This particular one, but it’s extremely poor engineering design . . . .”




                                            12
                                       No. 15-10636

This language does not reject Defendants’ assertion that the internal testing
referenced by McCort is the same internal testing that Wallingford explained
was not a factor in this accident. And if Kia’s internal testing showed a
phenomenon that, although dangerous, did not play a role in this accident, the
probative value of that testing in “ruling in” the downward displacement
theory is minimal. Therefore, McCort’s unsubstantiated reference to Kia’s
testing is not a reliable basis for his downward displacement theory.
       Because the record does not reflect any reliable facts or data “ruling in”
McCort’s downward displacement theory, the district court did not abuse its
discretion in excluding it.
                                             B.

       The district court also did not abuse its discretion in excluding engineer
Jerry Wallingford’s testimony. Wallingford’s initial report argued, inter alia,
that the Soul was unreasonably dangerous and that there were safer
alternative designs that Kia could have used. 34 Texas law defines a “safer
alternative design” as a design “other than the one actually used” that in
reasonable probability:
       (a) would have prevented or significantly reduced the risk of the
       claimant's personal injury, property damage, or death without
       substantially impairing the product’s utility and
       (b) was economically and technologically feasible at the time the
       product left the control of the manufacturer or seller by the
       application of existing or reasonably achievable scientific
       knowledge. 35

       Plaintiffs argue on appeal that Wallingford should have been permitted
to testify about two safer alternative designs: a fuel tank shield and fuel tank


       34 Wallingford also originally intended to testify as to the vehicle’s crashworthiness.
The district court excluded this testimony, a decision which Plaintiffs have not appealed.
       35 TEX. CIV. PRAC. & REM. CODE § 82.005(b).




                                             13
                                     No. 15-10636

fastening straps. 36 According to Plaintiffs, Wallingford would have shown that
a fuel tank shield, made of either plastic or metal, would have prevented the
fuel tank from dropping in the crash, or would have prevented rupture by
“absorb[ing] or redirect[ing] the energy from the impact.” Similarly, they
maintain that Wallingford could have shown that fuel tank fastening straps
would have prevented the tank from moving, or would have raised the tank
higher into the cavity of under the vehicle, avoiding contact with the flange. In
his investigation, Wallingford reviewed photographs and law enforcement
reports from the scene of the accident, Kia’s internal documents about the Soul,
and depositions from other parties, including Kia’s experts. He also employed
“the laws of physics” and his own experience and education.
      The district court excluded his testimony, writing that:

      Mr. Wallingford’s proffered expert opinions and related testimony
      regarding the fuel tank straps and fuel tank shield are unreliable
      and thus, inadmissible for the lack of reliance on sufficient facts or
      reliable underlying data, and do not satisfy any of the
      requirements of the standards set forth in parts (a) – (d) of Rule
      702 of the Federal Rules of Evidence.

      The district court’s order also indicates that its exclusion was, at least in
part, due to Wallingford’s dependence on McCort’s theory that the tank
displaced downwards during the accident. The court wrote that “[i]n
particular, Wallingford’s opinions are based on the premise [from McCort’s
report] that ‘following the initial crash, the fuel tank deformed downward.’”
Since the court had already deemed McCort’s testimony inadmissible, it
concluded that Wallingford’s testimony about safer alternative designs was
also inadmissible.


      36 Wallingford originally argued that a different fuel tank service cover would have
also prevented Mr. Sims’s death, but Plaintiffs do not argue on appeal that he should have
been allowed to testify about that alternative design.


                                           14
                                       No. 15-10636

       Plaintiffs argue that this conclusion rested upon “a clearly erroneous
assessment of the evidence,” 37 because Wallingford only partially incorporated
McCort’s theory into his. Indeed, Wallingford’s report concluded that a shield
would have protected the fuel tank from rupture upon contact with the flange,
whether the tank dropped or not. In this regard, the record shows that
Wallingford’s conclusions were, at least in part, independent from McCort’s
inadmissible theory. To the extent the district court’s exclusion of Wallingford’s
testimony about the shields rested upon its understanding to the contrary, the
court erred. 38
       On the other hand, the district court correctly determined that
Wallingford’s fuel tank straps theory necessarily rested upon McCort’s
inadmissible downward-displacement theory. Wallingford reasoned that using
straps to raise the tank would have “maximize[d] the ground clearance” such
that the tank avoided contact with the flange. He substantiated this theory by
looking to the measurements of the flange, the Soul’s ground clearance, and
the height at which the flange contacted the tank. It is undisputed that the
flange was 3.25 inches in height. Wallingford provided varying measurements
for the ground clearance of the Kia Soul, depending on the occupancy of the
vehicle. He first reported that the fuel tank “has a ground clearance of
approximately 210 millimeters (slightly more than 8 inches)” and later
explained that “the gas tank rides about 6 inches off of the ground when
carrying five passengers.” Wallingford also observed that the top of the flange




       37 Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir.2003).
       38 However, the district court’s exclusion of Wallingford’s testimony did not rest
entirely upon its view that Wallingford’s testimony built upon McCort’s. As excerpted above,
the court also cited to Rule 702 generally. The record provides ample support for the position
that Wallingford’s shield theory cannot satisfy Daubert even assuming it did not build upon
McCort’s theory.


                                             15
                                       No. 15-10636

contacted the front of the fuel tank approximately two inches above the bottom
of the tank.
       Wallingford’s theory must account for the gap between the top of the
flange – 3.25 inches off the ground – and the height at which Wallingford
asserts it contacted the tank – approximately 8 inches off the ground. McCort’s
theory about tank displacement is not the only way to account for the closing
of this gap. For instance, the wheels could have deflated, sinking the entire car
lower to the ground. But that was not Wallingford’s theory. 39 Instead, he relied
on McCort’s theory, writing that “[h]ad Kia used fuel mounting straps, rather
than direct mounting of the fuel tank, the downward deformation of the fuel
tank would have been minimalized preserved [sic] the ground clearance of the
fuel tank.”
       On appeal, Plaintiffs argue that “Wallingford’s opinions regarding the
use of the fuel tank straps are not reliant upon the opinions of Mr. McCort.”
They reason that McCort analyzed mounting bolts, “a completely different
technology” than straps. This distinction bears no logical relevance to whether
Wallingford relied on McCort’s theory that the tank displaced downwards.
Plaintiffs also insist that “the use of fuel tank straps would have increased the
ground clearance of the fuel tank sufficiently to avoid contact with the signpost
base regardless of how the tank ultimately dropped.” That may be true, but
nothing in Wallingford’s report, testimony, or declaration explains how lifting
the tank would have prevented the rupture here without assuming the tank
was already lower to the ground than usual. Therefore, the district court
properly excluded Wallingford’s theory about fuel tank straps, because it relied
on McCort’s inadmissible downward displacement theory.



        In fact, Plaintiffs’ other expert, McCort, insisted that the body of the car could not
       39

have sunk low enough to cause the fuel tank to contact the flange.


                                              16
                                       No. 15-10636

       Turning to the court’s exclusion of Wallingford’s shield theory, we again
conclude that the district court did not abuse its discretion. After briefing from
both parties, the court held a Daubert hearing concerning the admissibility of
Wallingford’s proffered testimony. Defendants raised essentially the same
arguments they do on appeal. Specifically, they argued that Wallingford’s
proposed fuel tank shield (i) would not have made a difference in this accident;
(ii) had not been subject to risk-utility analysis; and (iii) had not been shown
to be technologically or economically feasible.
       Some of these arguments are without merit. For instance, under Texas
law, a claimant can establish the technical feasibility of a safer alternative
design by showing its use by others in the industry. 40 Wallingford’s report
indicated that at least some kinds of tank shields were widely used by car
manufacturers – including Kia – well before this accident. Defendants’ experts
also indicated that fuel shields were commonly used in the industry. Therefore,
Wallingford likely met his burden of demonstrating technical feasibility.
       Wallingford also offered some evidence that the alternative designs were
possible from a risk-utility perspective. In Texas, “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.” 41
The burden is minimal: plaintiffs need only offer “some evidence that their
alternative design . . . would not have introduced other dangers of equal or
greater magnitude.” 42 Here, Wallingford initially reported that “the use of a


       40  See Goodner v. Hyundai Motor Co., Ltd., 650 F.3d 1034, 1043-44 (5th Cir. 2011)
(citing Honda of Am. Mfg. Inc. v. Norman, 104 S.W.3d 600, 607 (Tex. App. 2003)).
        41 Hodges v. Mack Trucks Inc., 474 F.3d 188, 196 (5th Cir. 2006) (internal quotations

omitted).
        42 Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 337-38 (Tex. 1998)

(emphasis added); cf. Smith v. Louisville Ladder Co., 237 F.3d 515, 520 (5th Cir. 2001)
(reversing verdict where plaintiff “conceded . . . he made no risk-benefit analysis, including
what additional hazards” his new design would have caused).


                                             17
                                       No. 15-10636

fuel tank shield would not have hindered the performance of the vehicle.” He
later added, “I have concluded that the benefits far outweigh any impairment
in utility,” but noted additional weight as one potential minor impairment. 43
Those assertions probably meet his minimal burden to show the risk-utility of
the alternative designs.
       On the other hand, Defendants have a strong argument that Wallingford
did not show that shields would have made a difference in this case. That is,
they argue that Wallingford cannot establish that the absence of a shield
caused the fuel tank to rupture here. The record shows, and the district court
agreed, that this argument was central to Wallingford’s testimony. During the
Daubert hearing, the court said that “[t]he causation issue, what caused it to
rupture is, to me, the most important thing here.”
       Plaintiffs argue that Wallingford met his burden to establish causation.
In his report, he indicated that a “fuel tank shield would have absorbed or
redirected the energy from the impact,” preventing the rupture. Plaintiffs note
that Wallingford was not required under Texas law to actually “build and test”
a model of the shield in order to establish that it is a safer alternative design. 44
The proposed design need only be “capable of being developed.” 45 As
Wallingford stated during his deposition, “from a monetary standpoint” he


       43  Wallingford provided this additional information through a declaration submitted
after his initial report and deposition. Defendants note that Wallingford had the opportunity
to disclose the information contained in the declaration earlier, but they have not explicitly
argued that the information cannot be considered because of its alleged untimeliness.
Instead, Defendants argue that the declaration is a “sham” because it is inconsistent with
Wallingford’s deposition. Even if this inconsistency is a “sham,” the proper remedy is not
striking the entire declaration but rather the inconsistent part. See Cole v. Frank’s Casing
Crew & Rental Tools, Inc., No. CIV.A.H-04-2566, 2005 WL 2647966, at *5 (S.D. Tex. Oct. 17,
2005).
        44 See Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 592 (Tex. 1999); see also Genie

Indus., Inc. v. Matak, 462 S.W.3d 1, 7 (Tex. 2015).
        45 Gen. Motors Corp., 997 S.W.2d at 592; see also Genie Indus., 462 S.W.3d at 7;

Boatland of Hous., Inc. v. Bailey, 609 S.W.2d 743 (Tex. 1980).


                                             18
                                     No. 15-10636

could not justify building a full-size prototype to test whether his proposed
design would withstand recreated crash conditions.
      However, as this Court explained in Casey v. Toyota, “Texas law expects
that an alternative design be tested before a jury can reasonably conclude that
the alternative would prevent or reduce the risk of injury.” 46 This testing need
not entail actually constructing a model shield; testing can be as simple as
applying math and physics to establish the viability of a design. In General
Motors v. Sanchez, for instance, the Supreme Court of Texas explained that
plaintiffs in design defect cases do not have to “build and test” a prototype “to
prove a safer alternative design.” But the expert in Sanchez relied on more
than his own conclusory testimony. As the court emphasized, the Sanchez
expert used “engineering principles” to “support his conclusion” that his
proposed design would lower the risk of accident from ten percent to one
percent. 47 Wallingford offered no such figures.
      Plaintiffs also point to a recent Supreme Court of Texas case, Genie
Industries v. Matak, in which the court reiterated that a safer alternative
design “need not be actually built and tested.” 48 There, the court reviewed
plaintiff’s expert’s testimony about possible safer alternative designs, and
found only “weak” and conclusory evidence that the proposed designs would
have prevented the accident. 49 However, concluding that there was more “than
a scintilla” of evidence, the court upheld the jury’s determination that there
were safer alternative designs. 50 Genie Industries does little to help Plaintiffs
here. The Genie court was reviewing a jury’s judgment in favor of the plaintiff,



      46 Casey v. Toyota Motor Eng’g & Mfg. N. Am., Inc., 770 F.3d 322, 332 (5th Cir. 2014).
      47 Sanchez, 997 S.W.2d at 591.
      48 462 S.W.3d 1 (Tex. 2015).
      49 Id. at 9.
      50 Id. at 9, 12.




                                           19
                                       No. 15-10636

necessitating a deferential standard of review. 51 The Genie court’s description
of the expert’s evidence suggests that the testimony would not have survived a
more stringent review. 52 Here, we review the district court’s exclusion of an
expert for an abuse of discretion.
       Finally, Plaintiffs argue that Defendants’ expert provided testimony
supporting Wallingford’s causation argument. Specifically, Defense expert
Jack Ridenour testified that Ford built its Panther Platform vehicles with fuel
tank shields as “part of the solution” to the problem of fuel tanks rupturing.
Since Panther Platforms were used as law enforcement vehicles, they were
often involved in collisions involving speeds in excess of 100 miles per hour.
Ridenour testified that the shields, along with “other upgrades,” “improved the
performance of the vehicle [but] [t]hey did not eliminate the risk.” Ford “felt
that they were effective upgrades.” Since it is undisputed that the collision here
involved speeds of less than 100 miles per hour, Plaintiffs argue that
Ridenour’s testimony shows that a fuel tank shield would have prevented the
rupture of the Kia Soul’s tank.
        This conclusion requires quite a leap. Ridenour stated that Ford “felt”
that the fuel tanks shields – in conjunction with trunk packs and other changes
not named in the record 53 – were effective. He also said they improved the
vehicle’s performance, although he did not specifically say in what regard.
Ridenour also noted that the changes did not eliminate “the risk,” presumably



       51   Id. at 3.
       52   See id. at 8 (“Absent more, [the expert’s] testimony is the mere ipse dixit of a
credentialed witness”); id. (“[The expert’s] conclusion that the design would have been safer
. . . has little support in the evidence”); id. (“The obvious flaw in the [proposed alternative]
design is that it would do little to prevent misuse”).
         53 Further obscuring Ridenour’s testimony is the fact that Plaintiffs only provided

select excerpts from the deposition. For instance, pages 75-77 of his testimony are absent
from the record, despite being right in the middle of his testimony concerning fuel tank
shields.


                                              20
                                     No. 15-10636

of tank rupture. Reviewing for abuse of discretion, we cannot conclude that
Ridenour’s testimony provided a reliable basis for Wallingford to conclude that
a fuel tank shield would have prevented rupture in this case.
       Wallingford also failed to establish the economic feasibility of the
alternative designs. In Texas, experts testifying about safer alternative
designs must establish that the designs were economically feasible. 54
Wallingford did not discuss the issue in his report. After the Defendants moved
to exclude his testimony, arguing inter alia that he failed to show economic
feasibility, Plaintiffs submitted a sworn declaration, in which Wallingford
described the cost of shields and straps. 55
       At the Daubert hearing, the court expressed some concern that
Wallingford had not provided any information about economic feasibility in his
original report. Defense counsel stated that Plaintiffs “[were] trying to fill that
gap up now,” with the declaration, to which the court responded, “[w]ell, is that
something beyond his report?” After defense counsel explained that it was, the
court replied that it would “think some more about that.”
       Plaintiffs argue that Wallingford implicitly showed the alternative
designs’ economic feasibility by noting that the designs are widely used in the
automobile industry. But “[w]hile the use of an alternative design by another
manufacturer may establish technological feasibility, [Texas courts] have held
that, as a matter of law, it does not establish economic feasibility.” 56 On appeal,
Plaintiffs do not mention Wallingford’s sworn declaration about costs,


       54 TEX. CIV. PRAC. & REM. CODE § 82.005(b).
       55 The declaration explained that fuel tank shields cost between $40 and $300, and
fuel tank straps cost $25 to $85.
       56 Honda of Am. Mfg., Inc. v. Norman, 104 S.W.3d 600, 607 (Tex. App. 2003); see also

Goodner v. Hyundai Motor Co., 650 F.3d 1034, 1043-44 (5th Cir. 2011) (“A few Texas
appellate courts have found that the use of an alternative design by another manufacturer
alone cannot establish economic feasibility.”); Smith v. Aqua-Flo, Inc., 23 S.W.3d 473, 477
(Tex. App 2000); Jaimes v. Fiesta Mart, 21 S.W.3d 301, 306 (Tex. App. 1999).


                                            21
                                      No. 15-10636

apparently abandoning the argument that it serves to “fill a gap” in his original
report.
       Finally, Plaintiffs insist that Defendants created the gap in Wallingford’s
theories by failing to ask him relevant questions during his deposition and by
cutting him off when he was starting to provide more thorough explanations of
his theory. This argument misconstrues the burden of proof in matters of
expert testimony. It is Plaintiffs who bear the burden of establishing the
reliability of the expert’s testimony. 57 Defendants are not obligated to help
Plaintiffs meet that burden during depositions.
       Because the district court did not abuse its discretion in determining
that Plaintiffs’ experts did not rely on sufficiently reliable methods and data,
we affirm its exclusion of some of McCort’s testimony and all of Wallingford’s.


                                            IV.

       Finally, Plaintiffs argue that the district court should not have granted
summary judgment in favor of Defendants. We disagree. Summary judgment
is proper if “the movant shows that there is no genuine dispute as to any
material fact.” 58 Our review of the district court’s grant of summary judgment
is de novo. 59
       Under Texas law, “expert testimony is generally encouraged if not
required to establish a products liability claim.” 60 In particular, expert
testimony is crucial in establishing that the alleged design defect caused the
injury. 61 As the district court correctly concluded, without admissible expert

       57 Johnson, 685 F.3d at 458.
       58 FED. R. CIV. P. 56(a).
       59 Tiblier v. Dlabal, 743 F.3d 1004, 1007 (5th Cir. 2014).
       60 Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 42 (Tex. 2007).
       61 See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006) (holding that

expert testimony was required to establish causation in products liability case, because “[a]
lay juror’s general experience and common knowledge do not extend to whether design


                                             22
                                       No. 15-10636

testimony, the plaintiffs cannot raise a genuine issue of material fact
concerning key elements of their products liability claim. It follows that the
court properly granted summary judgment in favor of the defendants.


       We AFFIRM the judgment of the district court.




defects such as those alleged in this case caused releases of diesel fuel during a rollover
accident”); Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 137 (Tex. 2004) (holding, in a
case where the plaintiff alleged and the jury found design, manufacturing, and marketing
defects, that “[i]n [prior] cases, it was not enough that a vehicle accelerated when claimants
swore they had done nothing. Instead, we have consistently required competent expert
testimony and objective proof that a defect caused the acceleration. . . . These requirements
are not peculiar to unintended acceleration cases.”).


                                             23
