                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo
                              ________________________

                                   No. 07-16-00325-CV
                              ________________________

BRIAN JACKSON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF
           CHARLES WHERRY JACKSON, DECEASED, APPELLANT
                                V.

                    MICHELIN NORTH AMERICA, INC., APPELLEE



                          On Appeal from the 287th District Court
                                    Parmer County, Texas
                 Trial Court No. 10,603; Honorable Gordon Green, Presiding


                                     September 10, 2018

                             MEMORANDUM OPINION
                       Before CAMPBELL, PIRTLE, and PARKER, JJ.


       The ultimate issue in this case is whether the trial court properly excluded the

opinions of three expert witnesses in this products liability cause of action arising from the

failure of an eleven-year-old pneumatic tire. Appellant, Brian Jackson, individually and

as representative of the estate of Charles Wherry Jackson, appeals a summary judgment

rendered in favor of Appellee, Michelin North America, Inc., in his wrongful death and

survivorship products liability cause of action. By three issues, Jackson contends the trial
court erred in excluding the testimony of his (1) defects expert, (2) warnings expert, and

(3) accident reconstruction expert. By a fourth and final issue, he contends the trial court

erred in granting Michelin’s no-evidence summary judgment because the testimony of

those experts should not have been excluded. We affirm.


       BACKGROUND

       Charles Wherry Jackson was killed as the result of a single vehicle accident that

occurred on April 9, 2014. On that day, Charles was driving his employer’s 1998 Ford F-

150 pickup eastbound on Highway 60, in Parmer County, Texas, when the right rear tire

of the vehicle suddenly failed, causing Charles to steer the vehicle into the median where

it crashed and rolled over, causing his fatal injuries.


       The tire in question was an eleven-year-old Michelin Cross Terrain SUV tire that,

at the time of the accident, had an average tread depth of 2/32nds of an inch in the center

two grooves of the tire tread. Based on service records and tread depth, Michelin’s

expert, Joe Grant, opined that the tire had traveled over 78,000 miles. 1 Summary

judgment evidence also established that the tire had an unrepaired puncture that may

have led to it being driven while under-inflated.


       Jackson sued Michelin asserting claims for strict products liability (based on

allegations of design, manufacturing, and marketing defects), negligence, and gross

negligence. He subsequently designated three experts: William Woehrle, O.C. Ferrell,

and Curtis Flynn. In appropriately designated summary judgment evidence, Woehrle

opined that the tire in question failed due to defects in both design and manufacturing;


       1One of Jackson’s designated experts, William Woehrle, opined that the tire might have traveled
as much as 100,000 miles. Woehrle’s opinion was, however, excluded.
                                                  2
Ferrell provided an opinion that all tire manufacturers should provide an age warning on

the sidewall of each tire manufactured; and Flynn offered expert testimony regarding

accident reconstruction.    Michelin challenged the qualifications and reliability of the

opinion testimony of each of these witnesses and, subject to the exclusion of their

testimonies, moved for a no-evidence motion for summary judgment. In that motion,

Michelin contended Jackson had failed to establish any evidence on at least one essential

element of each of his alleged causes of action. The trial court heard evidence and

arguments of counsel regarding Michelin’s motions to exclude the expert testimony of

Jackson’s designated witnesses, and at the conclusion of that hearing, it excluded the

testimony of each witness and granted Michelin’s motion for summary judgment.


       STANDARD OF REVIEW—EXCLUSION OF EVIDENCE

       Rule 702 of the Texas Rules of Evidence provides that an expert may testify if

scientific, technical or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue. The expert’s opinion is, however,

inadmissible if the trial court determines that the underlying facts or data do not provide

a sufficient basis for the opinion. TEX. R. EVID. 705(c).


       To be admissible, an expert’s opinion must be both relevant and reliable. See E.I.

du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556-58 (Tex. 1995). See also

Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597, 113 S. Ct. 2786, 125 L. Ed. 2d 469

(1993).   The requirement that expert testimony be relevant incorporates traditional

relevancy analysis under Rules 401 and 402 of the Texas Rules of Evidence, and, in

order to be relevant, the proposed testimony must be “sufficiently tied to the facts of the

case that it will aid the jury in resolving a factual dispute.” Robinson, 923 S.W.2d at 556

                                             3
(quoting Daubert, 113 S. Ct. at 2796). Therefore, it is the burden of the proponent of any

expert opinion testimony to establish that the expert is qualified by way of specialized

knowledge as to the very issue upon which the testimony is being offered. Gammill v.

Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718-19 (Tex. 1998). In addition, in order

to be reliable, the expert must explain how the facts of the case support the conclusion.

See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 905-06 (Tex. 2004). Without

a substantial basis in fact, an expert’s bare opinion will not suffice. Id. Accordingly, an

expert’s opinion that is based on assumed facts that vary from the established facts is

“incompetent evidence,” without probative value, and such conclusory testimony cannot

support a judgment. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136

S.W.3d 227, 232 (Tex. 2004) (holding that “[o]pinion testimony that is conclusory or

speculative is not relevant evidence, because it does not tend to make the existence of a

material fact ‘more probable or less probable’”) (citing TEX. R. EVID. 401). See also

Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex. 1995).


       It is not the role of the trial court to determine the truth or falsity of an expert’s

opinion. See Robinson, 923 S.W.2d at 558. Rather, the trial court’s role regarding expert

opinion testimony is to serve as an evidentiary gatekeeper, making the initial

determination whether the expert’s opinion is relevant and whether the methods and

research upon which it is based are reliable. Id. As previously stated, it is the burden of

the proponent of the evidence to demonstrate that the expert’s opinion is both relevant

and reliable. Id. at 557. If the expert’s opinion is not relevant or reliable, it is not evidence




                                               4
and it will not serve to defeat a no-evidence motion for summary judgment.2 Merrell Dow

Pharmaceuticals v. Havner, 953 S.W.2d 706, 713 (Tex. 1997), cert. denied, 523 U.S.

1119, 118 S. Ct. 1799, 140 L. Ed. 2d 939 (1998). While an expert witness may be very

believable, his conclusions may not be based on irrelevant assumptions or unreliable

methodology. Robinson, 923 S.W.2d at 558.


        Although a trial court must act as an evidentiary gatekeeper by screening out

irrelevant and unreliable expert testimony; Enbridge Pipelines (E. Tex.) L.P. v. Avinger

Timber, LLC, 386 S.W.3d 256, 262 (Tex. 2012), it still has broad discretion to determine

the admissibility of evidence. See Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex.

2002). We may not disturb the trial court’s exercise of that discretion so long as it does

not abuse it. Gammill, 972 S.W.2d at 718-19. In that regard, a trial court abuses its

discretion if its decision is arbitrary and unreasonable without reference to any guiding

rules or principles.        Robinson, 923 S.W.2d at 558 (citing Downer v. Aquamarine

Operators, Inc. 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.

Ct. 2279, 90 L. Ed. 2d 721 (1986)).


        STANDARD OF REVIEW—NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

        In reviewing a no-evidence summary judgment, this court must apply well-

established standards. Under Texas Rule of Civil Procedure 166a(i), after an adequate

time for discovery, a party may move for summary judgment on the ground that there is

no evidence to support at least one of the essential elements of the non-movant’s claim

or defense. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). A no-

        2  If the trial court concludes that the “evidence presented supporting a position is insufficient to
allow a reasonable juror to conclude that the position more likely than not is true, the court remains free to
direct a judgment . . . and likewise grant summary judgment.” Daubert, 509 U.S. at 596.

                                                      5
evidence motion for summary judgment must specifically set forth the elements of the

non-movant’s claim or defense for which there is no evidence. Id. When properly raised,

the burden shifts and the trial court must grant summary judgment unless the adverse

party produces sufficient summary judgment evidence raising a genuine issue of material

fact. Forbes, Inc. v. Mem. Med. Ctr. of E. Tex., 105 S.W.3d 167, 172 (Tex. 2003);

Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002).


      Because a no-evidence summary judgment is essentially a pretrial directed verdict,

we apply the same legal sufficiency standard we apply in reviewing a directed verdict.

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Roth v. FFP

Operating Partners, 994 S.W.2d 190, 195 (Tex. App.—Amarillo 1999, pet denied.);

Jackson v. Fiesta Mart, Inc. 979 S.W.2d 68, 70 (Tex. App.—Austin 1998, no pet.).

Accordingly, we must ascertain whether the non-movant has produced any evidence of

probative force to raise a fact issue on a material issue and we must consider all the

evidence in the light most favorable to the party against whom the no-evidence summary

judgment was rendered, disregarding all contrary evidence and inferences. Havner, 953

S.W.2d at 711. A no-evidence summary judgment is not proper if the non-movant has

presented more than a scintilla of probative evidence to raise a genuine issue of material

fact. Fiesta Mart, Inc., 979 S.W.2d at 70-71. 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. Havner, 953 S.W.2d at 711. Therefore, a non-movant will

defeat a no-evidence summary judgment by presenting the court with some evidence on

each element of his claim or defense for which the movant asserts there is no evidence.

When an order granting summary judgment does not specify the grounds upon which it

was granted, we must affirm the trial court’s judgment if any of the theories advanced are
                                            6
meritorious. B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276, 281 n.3 (Tex.

2017); Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989).


      ANALYSIS

      ISSUE ONE—EXCLUSION OF W ILLIAM W OEHRLE’S TESTIMONY

      Jackson offered the expert testimony of William Woehrle on the question of tire

defects—both design and manufacture—to support his claim of liability on the part of

Michelin. Despite the lack of a formal engineering degree, Jackson maintains Woehrle is

qualified to offer expert opinions on tire design and manufacturing based on his many

years of experience in the tire industry as an employee of Uniroyal and Goodrich, as well

as service as a founder of Automotive Engineering Management Services, Inc., a

company dedicated to serving the automotive industry by focusing on tire testing services.


      Some courts have previously rejected Woehrle’s credentials as an expert. See Ho

v. Michelin N. Am., Inc., 520 F. App’x. 658, 665 (10th Cir. Mar. 29, 2013) (unpublished)

(concluding Woehrle’s “lack of a nylon cap ply design defect opinion” was unsupported

and inadmissible). Whereas, other courts have found his opinions to be admissible. See

Perez v. Goodyear Tire & Rubber Co., No. 04-14-00620-CV, 2016 Tex. App. LEXIS 3774,

at *12-13 (Tex. App.—San Antonio, April 13, 2016, pet. denied) (design defect opinion

based on Goodyear documents and Goodyear employee depositions that demonstrated

Goodyear had knowledge that “nylon overlay would have prevented tread separation” yet

choose not to implement fix, found to be admissible).


      In his deposition, which was offered as summary judgment evidence, Woehrle

opined that the tire in question failed because (1) the tire was not designed with a nylon



                                            7
cap ply and (2) its inner liner3 was thinner than allowed by Michelin’s original design

specifications. Michelin attacked the reliability of Woehrle’s opinions on the basis that his

opinions were not reliable because he was not qualified to render an opinion on these

alleged defects.


        Design Defect Theory - In order to establish liability based on a design defect, a

claimant must be able to establish that (1) the product in question (in this instance the tire

that actually failed) was unreasonably dangerous as designed, taking into consideration

the utility of the product and the risk involved in its use, (2) a safer alternative design was

practically available, and (3) the design defect was a producing cause of the personal

injury, property damage, or death for which the claimant seeks recovery. See TEX. CIV.

PRAC. & REM. CODE ANN. § 82.005(a) (West 2017); Timpte Indus., Inc. v. Gish, 286 S.W.3d

306, 311 (Tex. 2009); Hernandez v. Tokai Corp., 2 S.W.3d 251, 257 (Tex. 1999) (stating

that a claimant must not only meet the requirements of section 82.005, he must also

show, under common law, that the product was defectively designed so as to be

unreasonably dangerous, taking into consideration the utility of the product and the risk

involved in its use). Proof of a design defect requires competent expert testimony and

objective proof that the design defect itself caused the injury. Nissan Motor Co., Ltd. v.

Armstrong, 145 S.W.3d 131, 137 (Tex. 2004).


        Here, Woehrle opined that the tire in question was defectively designed because

it lacked a “nylon cap ply.” Michelin questions Woehrle’s qualifications to render that

opinion because he is not an engineer or a tire designer, by training, education, license,


        3  In the tire industry, an inner liner is an elastic layer bonded to the inner surface of a pneumatic
tire, designed to prevent or retard the permeation of air and moisture into the body of the tire from its inner
air chamber.
                                                      8
or experience. He has never designed a steel-belted radial tire and he has admitted he

is not qualified to design such tires. In essence, Woehrle’s expert testimony, as he sought

to support Jackson’s design defect theory, was that Michelin should have predicted that

the tire in question would have been used for more than ten years, and that the tire, as

designed, was unreasonably dangerous, taking into consideration the utility of the product

and the risk involved in its use. He offered no real opinions as to whether adding a nylon

cap ply would have been an economically practical, safer alternative.


       While Woehrle did admit that not all tires need a nylon cap ply, he opined that this

particular tire needed a nylon cap ply because it was reasonable to foresee that it could

be on the road for more than ten years. But, that statement could be true of many tires—

even the tires Woehrle admits do not need a nylon cap ply. That circuitous reasoning

defeats itself. Woehrle further postulates that the tire in question required a nylon cap ply

because that particular design of tire had “durability” problems. This conclusion was

based on twelve warranty claims and speculative development testing that “would have

predicted failures of the types identified in the complaints.” In this case, Woehrle did not

review the warranty claim tires, nor did he investigate the circumstances surrounding

those claims. He could not link the warranty claims to any “durability” issues and he had

no data upon which he could determine whether the number of warranty claims was

statistically significant based on the total number of tires manufactured and sold.


       In his report, Woehrle points to Michelin’s use of a nylon cap ply in the manufacture

of later-produced tire lines as proof of the design defect of the tire in question. Michelin

responds by pointing out that not every tire produced, even now, has a nylon cap ply, and

that a nylon cap ply can be added to a tire for a variety of reasons.

                                             9
       Manufacturers are not the absolute insurers of a consumer’s safety and the

question is not whether Michelin could have designed a safer tire. A nylon capped tire

might well have been a safer tire. But that is not the question. The question is—as

designed and manufactured, was the tire in question unreasonably dangerous; and, only

if so, considering its utility and the risk involved in its use, was the addition of a nylon cap

ply an economically feasible, practically available, safer alternative design that would

have reduced the risk of its use to an acceptable level? As to his claimed design defect,

Woehrle offers no analysis and relies on no data to establish that the tire as designed is

unreasonably dangerous. He does proffer an opinion regarding a nylon cap ply as a safer

alternative, but he fails to provide any analysis as to whether its use was economically

feasible or practically available, rendering any opinion about the reasonableness of the

“improvement” involved pure speculation. “[A] claim will not stand or fall on the mere ipse

dixit of a credientialed witness.” Coastal Transp. Co., 136 S.W.3d at 232. In order to

establish a design defect, plaintiffs must establish that the product in question, as

designed and manufactured, was unreasonably dangerous—not simply that they think

they could improve upon it.


       Manufacturing Defect Theory - Liability can also arise from a manufacturing defect

if the product, as manufactured, deviates from the specifications or planned output in a

manner that renders the product unreasonably dangerous.              See Ford Motor Co. v.

Ledesma, 242 S.W.3d 32, 42 (Tex. 2007) (finding a manufacturing defect to be a deviation

from the “specifications or planned output in a manner that renders the product

unreasonably dangerous”).




                                              10
       Woehrle’s manufacturing defect theory was that the tire’s inner liner was too thin

because body ply cord impressions could be seen and felt through the inner liner of the

tire—a phenomenon known as “cord shadowing.” Michelin points out several problems

with this theory: (1) cord shadowing is not, in and of itself, an indicator that the inner liner

does not meet design specifications, (2) even if cord shadowing was apparent when

examined, one could only speculate about the condition of the inner liner when the tire

was manufactured more than a decade earlier, before the tire was subjected to the stress

of years of normal use, road hazards, and the accident itself, and (3) no definitive testing

was conducted to determine whether the actual thickness of the inner liner of the tire in

question deviated from the design specifications. Because no measurements were ever

made, Woehrle’s opinion is purely speculative concerning whether the appearance of

cord shadowing establishes a deviation in the thickness of the inner liner from the original

specifications or planned output at the time of manufacture—constituting no evidence

whatsoever of a manufacturing defect. Issue one is overruled.


       ANALYSIS

       ISSUE TWO—EXCLUSION OF O.C. FERRELL’S TESTIMONY

       In addition to his claims regarding alleged design and manufacturing defects,

Jackson also asserted a claim for strict products liability based on marketing defects. To

prevail on a marketing defect claim, a plaintiff must establish, among other things, that

the alleged failure to warn was a “causative nexus” in the product user’s injury. Medina

v. Michelin N. Am., Inc., No. 05-16-00794-CV, 2018 Tex. App. LEXIS 804, at *11 (Tex.

App.—Dallas Jan. 39, 2018, no pet.) (mem. op.) (citing Goodyear Tire & Rubber Co. v.

Rios, 143 S.W.3d 107, 116 (Tex. App.—San Antonio 2004, pet. denied)). To perform a

proper warning analysis, an expert should understand the potential dangers associated
                                              11
with using a product, the likelihood and potential severity of injuries associated with a lack

of notice of those dangers, whether the dangers are generally known to the public, and

whether a given warning would reduce the risk of injury or death. Rios, 143 S.W.3d at

117-18.


          Jackson’s expert witness regarding Jackson’s marketing defect claim was O.C.

Ferrell. In his deposition testimony, Ferrell proffered his opinion that all tire manufacturers

should provide an age warning on the sidewall of each tire manufactured so that

consumers would be aware of the dangers associated with the use of a product based

upon its age and anticipated use. Ferrell, however, was not proffered as a products expert

or human factors expert concerning the interrelationship between a consumer and various

product warnings or how those interactions and warnings could make a product safer. In

fact, Ferrell could not even speculate at to what an “appropriate” warning, if given, might

say. Instead, he was proffered as an expert in marketing, public policy, and business

ethics.


          Because Ferrell admitted that he did not have a complete understanding of the

potential dangers associated with pneumatic tires, nor the potential risks associated with

a lack of notice of those dangers, that he did not know whether those risks were generally

known to the public, whether a given warning would reduce the risk of injury or death, or

whether a product lacking such warnings was unreasonably dangerous, we do not see

how his testimony could have been relevant or reliable on the issue of a marketing defect.

Furthermore, Ferrell could not even speculate on what would constitute an appropriate

warning, much less whether a product user aware of that warning would have heeded the

danger thereby reducing the risk of injury or death. Because we find expert testimony

                                              12
was necessary in order to support Jackson’s marketing defect claim and that a fact finder

simply could not have determined, without the benefit of expert testimony, whether any

warnings would have been effective in making the tire in question safer, we likewise find

the trial court did not err in excluding Ferrell’s testimony. Issue two is overruled.


       ANALYSIS

       ISSUE THREE—EXCLUSION OF CURTIS FLYNN’S TESTIMONY

       By his third issue, Jackson contends the trial court erred by excluding the testimony

of his accident reconstruction expert, Curtis Flynn. Here, the trial court did not exclude

Flynn’s testimony in its entirety. Instead, Michelin sought (and the trial court granted)

exclusion on the limited issue of vehicle handling and controllability, seeking to distinguish

issues of what happened during the accident (e.g., vehicle location, movement, and

speed) from issues of why the accident happened (e.g., the handling characteristics of

this type of vehicle when a rear tire blows out due to tread detachment).


       Flynn’s affidavit did not explain the basis for his controllability opinions other than

to say that tire tread detachments affect vehicle handling characteristics (an issue that is

not disputed). Significantly, he did not expressly state how the controllability of the type

of vehicle in question would be affected or that Jackson’s vehicle was not controllable.

By way of contrast, Michelin’s expert, Bob Rucoba, referred to specific controllability

testing on a similar Ford F-150 pickup. He explained the methodology and purpose of

controllability testing and he explained the basis for his conclusion that Jackson’s vehicle

was controllable following the tread separation.


       Because the trial court did not exclude Flynn’s accident reconstruction testimony

regarding what happened during the accident and because Flynn’s testimony regarding
                                             13
the handling characteristics and controllability of this type of vehicle was not reliable, the

trial court did not abuse its discretion in excluding that portion of Flynn’s testimony dealing

with controllability. Issue three is overruled.


       ANALYSIS

       ISSUE FOUR—SUMMARY JUDGMENT

       By his fourth and final issue, Jackson contends the trial court erred by granting

Michelin’s no-evidence motion for summary judgment. Jackson’s argument is based

solely upon his position that the trial court erred in excluding the expert testimonies of

Woehrle, Ferrell, and Flynn.


       In a product liability case, a defendant is entitled to a no-evidence summary

judgment if the plaintiff fails to produce evidence of sufficient probative force to raise a

fact issue on the issues of product defect and causation. Havner, 953 S.W.2d at 711.

Where, as here, by virtue of excluding the testimonies of Woehrle, Ferrell, and Flynn,

Jackson has failed to raise a fact issue on an essential element of his claim, the trial court

did not err in granting summary judgment in favor of Michelin. Issue four is overruled.


       CONCLUSION

       We affirm the judgment of the trial court.




                                                    Patrick A. Pirtle
                                                        Justice




                                              14
