Amicus Curiae Brief — Kumho Tire Co. v. Carmichael

FILED

* OCT 20 1996

OFFICE OF THE CLERK

SUPREME COURT, U.S.

No. 97-1709

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

KUMHO TIRE COMPANY, LTD., et ai.,

Petitioners,

v.

Patrick CARMICHAEL, et al.,

Respondents.

On Writ Of Certiorari to the

United States Court Of Appeals for the Eleventh Circuit

BRIEF AMICI CURIAE OF THE NATIONAL

ACADEMY OF FORENSIC ENGINEERS

IN SUPPORT OF RESPONDENTS

Alvin S. Weinstein, Ph.D., P.E.*

8 Lincoln Street

Brunswick, ME 04011

(207) 725-2111

* Counsel of Record

(Additional Attorneys Listed on Inside Cover)

October 19, 1998

LARRY E. COBEN

8710 East Vista Bonita Drive

Scottsdale, 4 4 85255

(602) 515-4745

JERRY J. PHILLIPS

University of Tennessee

College of Law

151 West Cumberland Ave.

Knoxville, TN 37996-1800

(423) 874-6813

DAVID V. SCOTT

P.O. Box 785

409 Bank St.

New Albany, IN 47150

(812-945-9151)

Counsel

!

QUESTIONS PRESENTED

1. Whether all expert testimony is subject to

the same four “general observations” that dicta in

Daubert suggested should be applied to novel

scientific testimony?

2. Whether expert testimony based ona

“generally accepted” methodology that would be

admissible under Frye should be excluded under

Fed.R.Evid. 702, as interpreted by Daubert?

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IDENTITY AND INTEREST OF AMICUS CURIAE ........ l

SUMMARY OF THE ARGUMENT ...................... 2

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Il THE DAUBERT FACTORS SHOULD NOT

RIGIDLY BE APPLIED TO ALL ASPECTS OF

EE eGGeniehobcebeccetedssdcicsecs 4

lil. RIGID APPLICATION OF THE DAUBERT FACTORS

TO ENGINEERING TESTIMONY FAILS TO GIVE

SUFFICIENT WEIGHT TO THE IMPORTANCE OF

lil THE METHODOLOGY EMPLOYED BY THE

PLAINTIFFS’/RESPONDENTS’ EXPERT

DEMONSTRATED ITS RELIABILITY WHEN

VIEWED IN THE CONTEXT IN WHICH IT WAS

GPOEE . (00 eneccdendddhtedincedatdncddbuens 13

IV. TESTIMONY THAT WOULD HAVE BEEN

ADMISSIBLE UNDER A FRYE ANALYSIS SHOULD

NOT BE EXCLUDED UNDER A DAUBERT ANALYSIS

iSncesUeddabeateadenwedasecesdaceschesd ses 17

Vv. THE MISAPPLICATION OF THE DAUBERT

STANDARD TO ENGINEERING TESTIMONY .. 20

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TABLE OF AUTHORITIES

CASES

Ambrosini v.

101 F.3d 129 (D.C. Cir. Dn: svrecetsueacatqncutes 17

Carmichael v. Samyang Tires, Inc.,

923 F. Supp. 1514, 1521 (S.D.Ala. 1996) . PONT OCT Tt 13

Carmichael v. Samyang Tire, Inc.,

131 F.3d 1433, 1436 (11" Cir. 1997) 2.22... eae, 14

Compton v. Subaru of America, Inc.,

82 F.3d 1513, 1515, 1519 (10th Cir.), cert. denied, 117 S. Ct.

SERGE adhd Vat tedodpdatdbiae cbacdesebasvess 21

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

PEED Se ocawa¥ os Sides Codes cece passim

Frye v. United States,

Es on neds hd wecsictbedheeet passim

General Electric Company v. Joiner,

ED 6 ernie cucyetsksetecwnen’s 4, 5,21

McKendall v. Crown Corporation,

re ss win ct waesacete Sans 21

United States v. Jones,

107 F.3d 1147, 1158 (6th Cir.), cert. denied, 117 S. Ct. 2527

DE cb euch sts ackedcsdeaunenssbadusnedseoune 17

I i 13

EE i006 d obbwe highs conibead 4&6 cist dinne’ 2

EE cheenl . wdecebe tude dunhen pcevadhees ex 2

niin king bebttdudensesseseéhee passim

OTHER AUTHORITIES

Ronald W. Clark, EINSTEIN: THE LIFE AND TIMES (1971) . 6,7, 8

Stephen A. Saltzburg, Daniel J. Capra, and Michael M. Martin,

Commentary, U.S.C.S. Fed. R. Evid. 702 (1998) ......... 17

IDENTITY AND INTEREST OF THE AMICUS CURIAE

The National Academy of Forensic Engineers (NAFE), founded

in 1982, is a Section 501(c)6 non-profit organization of individual

engineering practitioners, who are engaged in all fields of

engineering.' Membership is highly selective and is open only to

individual engineers who have demonstrated mastery and

maintenance of the highest standards of professional education,

training, knowledge, competence, and deportment. Memberships are

not available on a corporate, organizational, or governmental basis.

Saccenantidenmudabeasthane-curebenpientoesen

engineer. Many have advanced academic degrees. Each NAFE

member is required to be both licensed under the laws of the state in

which he practices and registered as a Professional Engineer (PE).

Most members are licensed in more the one state and have

multi-state PE registrations. Each member must belong to the

National Society of Professional Engineers (NSPE) and to a national

engineering technical society such as the American Society of Civil

Engineers (ASCE), the American Society of Mechanical Engineers

(ASME), or the Institute of Electrical and Electronics Engineers

(IEEE). In addition to considerable engineering experience past the

attainment of the PE license (which typically occurs in the fifth year

after the B.Sc. level of engineering education), candidates for NAFE

membership are required to demonstrate substantial experience in

the application of their engineering knowledge in the jurisprudence

system and to provide written recommendations from attorneys or

judges familiar with their service to the courts, including their

testimony subject to adversary cross examination.

The NAFE is formally affiliated with the NSPE and with the

Council of Engineering and Scientific Specialty Boards (CESB),

which itself is sponsored by the major interdisciplinary engineering

! Pursuant to Rule 37.6, Amicus states that no counsel for a party

authored this brief in whole or in part, and that no person or entity other than

The parties have granted blanket consent to the filing of briefs by amici

supporting either party. The letters granting this consent are attached to this brief.

organizations of the United States: the NSPE; the Accreditation

Board for Engineering Technologies (ABET), which reviews and

accredits curricula in university schools of engineering; the National

Council of Examiners for Engineering and Surveying (NCEES),

which is the umbrella organization for state PE licensing boards and

the PE license examination process; and the American Council of

Consulting Engineers (ACEC), a multi-discipline trade organization

of engineer designer/consultants. The NAFE is a charter member of

CESB and, as authorized by CESB, certifies the individual members

of NAFE as Diplomates in Forensic Engineering.

The purpose of the NAFE is to provide continuing education

and encourage its members to provide objective, unbiased service

and ethical practice to the courts and the legal profession. The

NAFE does not favor defendants nor plaintiffs. NAFE believes that

competent engineering analysis can often be of assistance to the trier

of fact and can assist in the work of the legal system. Significantly,

NAFE members work for -- and testify on behalf of -- corporations

and defendants as often as do for individuals and plaintiffs.

Dennis Carlson, the engineering expert whose testimony was

deemed unreliable and inadmissible by the District Court in the case

at bar, is not and has not been a member or NAFE, nor is he or has

he been a candidate for membership in NAFE. To the best of

Amicus ' knowledge, information, and belief, no NAFE member has

any direct economic interest in the outcome of these proceedings.

Nonetheless, Amicus is very concerned with the petitioner's

thesis that the Daubert criteria should be generally or broadly

applied to the practice of engineering in the legal system.

SUMMARY OF THE ARGUMENT

This Court showed great faith in the adversary system when it

struck down the “general acceptance” requirement for the

admissibility of scientific testimony. The use of the trial judges’

power under Fed.R.Evid.104 (a) and (b) to act as a gatekeeper

applying the criteria of admissibility set forth in Daubert was

necessary to monitor expert testimony which did not meet the

general acceptance requirement as set forth in Frye v. United States,

293 F. 1013 (1923) and its progeny. This Court's decision Daubert

was intended to expand, not limit, admissibility of expert testimony.

Criteria for admissibility of expert testimony crafted to insure

reliability for scientific testimony addressed to issues not yet settled

in the scientific community are not applicable to engineering and

other practice-based disciplines. Where the expert testir.ony offered

meets the more restrictive “general acceptance” criteria, a Daubert

type analysis is neither necessary nor applicable. There are

considerable differences between testimony addressing unresolved

issues in epidemiology and an analysis ofa tire to determine whether

it failed due to a road hazard, misuse, or a manufacturing defect.

_ The Daubert criteria cannot easily be applied to engineering

testimony and other practice based disciplines because they fail to

give proper weight to the importance of experience and engineering

judgment. In the instant case, the trial court disallowed expert

engineering testimony based on a visual analysis to determine defect

because it felt the opinion subjective and unreliable. The deductive

process-of-elimination analysis used by Dennis Carlson,

plaintiffs’/respondents’ expert, utilized to determine the tire failed

due to a manufacturing defect was little different from a differential

diagnosis utilized with great success in the medical profession. The

methodology used by Mr. Carlson in his engineering analysis was

the same used by others experienced in the analysis of tire failures,

including the experts employed by the defendants.

It is ironic that this Court’s effort to break the shackles of Frye

is now used as a basis to exclude testimony that would have been

admissible under Frye. When the trial judge is required to rule on

the merits of expert testimony he supplants the role of the trier of

fact and places on the parties a burden of proof higher that required

in civil cases. In the case at bar, Mr. Carlson, through a deductive

process, determined that the most likely cause of tire failure was a

manufacturing defect. He gave that opinion based on his training

(he had a bachelor’s and a master’s degree in mechanical

engineering from Georgia Tech), and his experience (he was a

designer in the tire industry, and had investigated numerous tire

failures as a consultant after he left the tire industry). The

methodology he utilized for his analysis was the same as that used

by engineers and others in the tire industry.

3

The Eleventh Circuit’s decision that the criteria for admission

of scientific evidence should not apply to appl ‘co Upinion testimony

that is based on skill- or experience-based observations is correct

and should be affirmed.

ARGUMENT

I. THE DAUBERT FACTORS SHOULD NOT RIGIDLY BE

APPLIED TO ALL ASPECTS OF ENGINEERING

NAFE members are proud of their academic awards,

professional accomplishments, and high standards. Nevertheless,

they do not believe that the reliability of all aspects of their work are

properly measured by the four “general observations” suggested by

this Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993). Indeed, NAFE members are concerned that the so-

called “Daubert factors” are being rigidly and inflexibly applied to

areas of “scientific, technical, and specialized knowledge,”

Fed.R.Evid. 702, where they do not fit.

Let us be clear. Members of NAFE have no quarrel with the

Daubert Court’s articulation of the now-famous “general

observations” for assessing the reliability of scientific testimony.

And NAFE members believe that it is entirely appropriate for courts

to apply those criteria to the kinds of cutting scientific theories and

methodologies that were at issue in Daubert and General Electric

Company v. Joiner, 118 S.Ct. 512 (1997). Both cases involved

complex questions of epidemiology in which experts used animal

studies to extrapolate a causal relationship between exposure to

substances’ and certain physical conditions suffered by the

respective plaintiffs. But such advanced research is only a very

small part of the practice of engineering and a very much smaller

part of the practice of engineering that ends in litigation. The

members of NAFE investigate tens of thousands of cases involving

: In Daubert, it was the relationship between Bendectin and birth

defects; in Joiner, the relationship between PCB and its derivatives and cancer.

4

questions of the application of engineering technology. Products

liability cases are only a small fraction of the totality of engineering

related cases.

Although the Daubert factors are suitable for some scientific

testimony -- particularly the kind of novel scientific testimony at

issue in Daubert and Joiner -- those factors are not suitable to all

kinds of knowledge and in all cases and certainly should not be

applied rigidly in every case and to all types of knowledge.

Although petitioners and their amici urge this Court to hold that the

Daubert factors should be applied across the board to all types of

scientific, technical, and specialized knowledge, NAFE members

think that such a ruling would impose a higher standard on the

reliability of testimony than is often used in the actual practices of

most professions and intellectual disciplines, particularly

engineering. As a result, the application of the Daubert factors to all

sorts of testimony in all kinds of cases would lead to the exclusion

of valuable, valid, and reliable insights.

NAFE members do not know how the framers of Fed.R.Evid.

702 would have defined “scientific, technical, and specialized

knowledge” or how they would have defined any one of those terms.

Amicus suggests, however, that there is no one right answer, no

single definition, that describes all scientific enterprises, and no

simple interpretation that fits all cases.

Put simply, there is Science and there is science. There is

Engineering and there is engineering. Scientists and engineers do

not apply the same yardstick in measuring the quality, validity, and

reliability of all work that scientists and engineers do. Amicus

suggests that it would be folly for the Court to impose a universal

standard when scientists and engineers use different ones, and folly

for the Court to impose higher standards than scientists and

engineers do in a particular instance or case.

Although petitioners and their amici suggest that all knowledge

and all science is a single, gigantic, undifferentiated mass and that

one standard does, can, and should be applied to testing the

reliability of all testimony proffered under Fed.R.Evid. 702 -- in

brief, that “one size fits all” — scientists and engineers everyday

apply different standards to different aspects of their work. Indeed,

the same scientist may often apply different standards to different

aspects of his or her work, even on the same day.

Albert Einstein illustrates this point very well. Although

Einstein is today renowned as the century’s most accomplished

theoretical physicist, it is generally forgotten that “his first regular

job” was much more prosaic: he was an “engineer, Class II at the

[Swiss] Federal Patent Office,” Ronald W. Clark, EINSTEIN: THE

LIFE AND TIMES 68 (1971), a position he held from 1902 to 1908,

after he had “completed [his doctoral] thesis” in physics, and while

he was “‘looking for a position as an assistant lecturer at some

university,” and before he became world-famous. /d. at 68, 69

(citation omitted).

During these seven years Einstein led two very different

scientific lives. As he described it contemporaneously to a friend,

the patent job gave him “‘eight hours of work’” and “eight hours of

idleness’” everyday. /d. at 75 (citation omitted). He characterized

his daytime work as a “‘practical profession, *” id.; his biographer

said that Einstein “saw it mainly as a useful base from which he

could begin the self-imposed task of exploring the nature of the

physical world.” Jd. at 71.

“Each morning” Einstein “unobtrusively trott[ed] . . . to the

Patent Office,” where he examined, tested, and analyzed

“inventions, ideas, and proposals [which] consisted largely of

suggestions for practical, utilitarian, basically simple, and often

homely applications of technology to the mundane affairs of

everyday life,” such as innovations for “typewriters and cameras

[and] engineering devices... .” Jd. at 76, 74-75.

“Each evening” Einstein unobtrusively “return[ed] to his

lodgings,” where he “set{ ] himself down in a quiet corner to

discover the laws of nature.” Jd. at 76.

The standards Einstein employed in his vocation and avocation

were as different as day and night. By day, at the Patent Office,

Einstein was “required to form an immediate opinion” on new

patents. /d. at 70 (emphasis added). “Success was the yardstick and

if success were attained by a leavening of by-guess-and-by-God to

formal scientific work, [the Patent Office’s Chief Engineer] saw

little harm in that.” Jd. at 69.

At night, in his lodgings, Einstein undertook Gedanken

Untersuchungen — “Thought Experiments” -- using nothing more

than pencil and paper, while he ruminated over and over on a few

deceptively simple questions. Indeed, one such question had

preoccupied him for more than ten years, i.e., since 1894, when he

was sixteen: what would the world look like, he wondered, if one

could travel through space and time while riding on a beam, and at

the speed of, light. Jd. at 41-42. Although he answered that

question, at least to his own satisfaction, by devising the Special

Theory of Relativity, he did not publish that theory until 1905, id. at

74, 113-14, 116-17, and that theory did not receive its first,

provisional scientific validation through experimental testing until

1919. Jd. at 263-64, 284-89. Developing the Special Theory, which,

of course, contains the celebrated equation E=mc’, “required”

Einstein to do the opposite of what he did during his daytime,

“practical profession,’” that is, not to “form an immediate opinion”

on the usefulness of “mundane” things,” id. at 75,70,74, but to

analyze and resolve seemingly and hitherto irreconcilable

contradictions among fundamental principles of physics, as

exemplified by Newton’s Laws of Motion and Lord James Clerk

Maxwell's equations of electromagnetism. Jd. at 101-137.

It seems obvious to NAFE members that Einstein judged the

work of theoretical physicists, like Newton and Maxwell, on the one

hand, and the work of inventors who sought patents on the basis of

their practical application of well-established physical theories, on

the other hand, by vastly different standards. He subjected the

former to endless and exacting scrutiny. He measured the latter more

quickly and more leniently: as noted above, “[s]uccess was the

yardstick and if success were attained by a leavening of by-guess-

and-by-God to formal scientific work, [the Patent Office’s Chief

Engineer] saw little harm in that.” /d. at 69.

It also seems obvious that the different types of work that

Einstein undertook also were tested by different standards. His

superiors at the Patent Office assayed his work for speed and

“useful[ness],” id. at 73, not for deliberation and thoroughness. By

contrast, his fellow theoreticians assayed his equations and proofs

for their accuracy, predictive value, and completeness. Although,

Einstein’s Special Theory received initial experimental confirmation

7

in 1919, fourteen years after Einstein published it, that theory

remains controversial to this day, at least as to its completeness.

Indeed, Einstein devoted the final four decades of his life

unsuccessfully trying to devise a more accurate and complete

Unified Field Theory, one that would “‘connect{ } gravitation and

electricity.’” Jd. at 493 (citation omitted). See id. at 491-96, 742-45.

It is obvious that not every scientist or engineer is an Einstein.

It is equally obvious that almost any scientist or engineer can and

often does wear different hats at different times or even at the same

time. Thus, although as the National Academy of Engineering and

the Rubber Manufacturers Association are correct in explaining that

tire failures can be subject to very sophisticated, comprehensive, and

time-consuming forms of analysis, this hardly means that all such

failures either routinely are or routinely should be subjected to the

most exacting scrutiny. Nor does the fact that tire failures can be

tested by the gold standard mean that anything less than the gold

standard is beyond the scientific pale.

The experience of NAFE members shows that the kind and

level of engineering/scientific analysis undertaken by a given

professional at a given time varies, necessarily, with the question he

is asked to answer. As Carlson explained, when he was employed

at Michelin he was asked different types of questions and given

different types of assignment at different times. Sometimes he was

asked to discover and explain why a particular tire, such as one that

had been returned to a dealer by a disgruntled customer, had failed.

At other times, he was given the task of analyzing why a particular

brand, model, or design of tire was repeatedly failing. The stakes,

for the company, were usually much greater for the latter than for

the former and, understandably called for a different, higher, more

sophisticated, lengthier, and more expensive level of testing and

analysis.

A. The Daubert Court Limied Its Analysis of Fed.R.Evid.

702 to a “Scientific” Context

In Daubert, this Court limited its analysis of Fed.R.Evid. 702

to that portion that refers to “scientific” knowledge: “Rule 702

applies to ‘technical, or other specialized knowledge.’ Our

)

discussion is limited to the scientific context because that is the

nature of the expertise offered here.” Daubert, 509 U.S. at 590, n.

8 (emphasis added). “In a case involving scientific evidence,

evidentiary reliability will be based upon scientific validity.” Id., 509

U.S. at 590, n. 9 (emphasis in the original).

Amicus respectfully submits that in cases involving engineering

evidence, evidentiary reliability should be based on engineering

validity. There is a significant difference between expert testimony

concerning matters not yet settled in the scientific community and

testimony concerning the cause of a tire failure. The Daubert

analysis, incorporates the basic elements of the scientific method.

Daubert, 509 U.S. at 542-43. The scientific method is used to prove

conclusive facts by reproducible experimentation. A party’s burden

in a civil case is considerably less than that. Additionally, such

experimentation and the review process attendant thereto is not

feasible in most engineering cases.

II. RIGID APPLICATION OF THE DAUBERT FACTORS

TO ENGINEERING TESTIMONY FAILS TO GIVE

SUFFICIENT WEIGHT TO THE IMPORTANCE OF

EXPERIENCE AND THE ENGINEERING JUDGMENT

BASED ON THAT EXPERIENCE.

An engineer's ability to apply his or her education comes with

experience. Basic academic knowledge becomes useful to an

engineer through an understanding, gained by experience, of the

relationships between materials as they act in the real world, and the

interplay of energies and forces as they actually govern the

performance of devices and processes. It is no accident that

alike prefer to hire engineers who have received only baccalaureate

degrees, rather than advanced degrees, not because the private and

governmental organizations that hire new engineers discount the

value of advanced academic training, but rather because they believe

such training is useful only if newly-minted engineers have been

“seasoned” with experience. Thus, these organizations hope and

expect (even where they do not require) that engineers with B.Sc.

degrees will earn advanced degrees through part-time “after work"

9

studies. The competent practice of engineering, the art of

engineering, is largely dependent upon experience gained in the

practice of engineering and should not be excluded from expert

testimony. In many respects it is the most valuable information that

the engineer can bring to the courtroom.

To mandate a single set of overriding criteria (devised as test

standards for acceptance of novel theories related to

biological/medical research) and to require the application of those

criteria to engineering testimony would deny the trier of fact in

engineering related cases the competent judgment of engineers

engaged in the actual practice of engineering. NAFE opposes the

application of Daubert to engineering testimony, excepting those

very few matters which involve new and novel theory orginally

researched. In the vast majority of engineering cases the testing

process mandated in original or novel research is simply not

feasible, because the object at issue is unique or has failed or been

impaired or is incidental to some process leading to accident or

failure and is not reasonably reproducible. Double blind

experiments followed by peer-reviewed publication and verification

by other researchers is an admirable process for testing of novel

scientific/medical theory, but unrelatable to the real would of

accidents and material or system failures where most engineers

work. Also, such extensive experimentation, if required within the

time strictures and economic limitations of the legal system as a sine

qua non for engineering testimony, simply would prevent the

availability of competent testimony to assist the trier of fact. It

appears that this would subvert and defeat the intent of Fed.R.Evid.

702.

The courts, by applying sensible constraints on engineering

testimony in accord with the more restrictive Frye doctrine, would

be able to provide the trier of fact with the engineering assistance

that they need and can best use. That some individual expert might

seek to venture beyond his competence is a failing not to be denied,

but is probably less (not more) prevalent in the domain of

engineering testimony in the courts than by others elsewhere in our

society. However, the engineering profession through professional

licensing (State PE registration) which is revocable for violation of

legally mandated codes of conduct and by exposition and peer

pressures tends strongly to minimize improper actions by engineers.

The engineering profession looks with pride and respect to the

“Code of Ethics for Engineers” of the National Society of

Professional Engineers (NSPE), the “Code of Ethics” of the

American Society of Civil Engineers (ASCE), and numerous such

codes set forth by literally hundreds of disciplines and specialty-

specific engineering societies.

A. ENGINEERING CONSIDERATION IN DESIGN

Although there is no question that in many, if not most, design

considerations, the engineer may or will make use of well-

established analytical techniques, methods, tests, and mathematical

tools to determine certain physical characteristics of a product,

device, or structure, that is not the end of the design process. It is

usually only the beginning.

Unlike science, engineering always involves (except for a few

instances not relevant here) a balance of competing trade-offs that

are essential in order to complete the design of the product, the

device, or the structure.

Design constraints, such as usefulness, weight, strength, cost,

manufacturability, serviceability, safety, foreseeabilty of misuse, and

intended uses, can be incompatible requirements of a component.

For example, not only will adding more safety devices increase the

cost of the item, but the utility of the product may be eroded or the

serviceability may be compromised. If the strength is increased to

accommodate a greater range of foreseeable misuses, the cost and

usefulness may be compromised or additional hazards may be

introduced.

Thus the design process ends only when and if the engineer has

reached a balance of these competing considerations using, perhaps,

reduction of hazards from all reasonably foreseeable use situations,

as the premise for completing the design. Alternatively, the engineer

may be constrained to design at the lowest possible cost or the least

possible weight, or complete the design using some other constraint.

Regardless of the constraint the engineer chooses or is required

to use to complete the design, it is not based on a “scientific”

methodology. And when the allegation is that of a design defect or

iW

a manufacturing defect, the battleground between opposing experts

is not the “scientific” principles used to calculate the strength of a

critical component, for example, but, rather the constraint chosen to

complete the design, e.g. the cost of the item or, perhaps, the failure

to address an appropriate range of foreseeable uses or the product's

failure to meet design specifications. There are no "peer-reviewed"

publications that discuss the “proper” means of balancing

completing design constraints. It is a matter of postulating the

characteristics of the product users, together with the uses and

misuses to which they put the product within the environments that

the product foreseeably will be used, so as to reduce or eliminate the

resultant risks of injury.

The plaintiff's expert will argue for a different balance of those

competing considerations that leads to that expert's proposed

alternative to the existing design. The ability of a plaintiff's expert

to answer relevant questions regarding such matters as altered cost,

utility, or marketability, associated with the proposed design

alternatives, are most appropriately the subject for cross-

examination, not for barring the testimony in the first place. As long

as the expert has satisfied the court that she/he has the appropriate

qualifications to address the relevant issues and that he/she employs

the standard methodologies used in the field to answer the particular

question posed in the case, the expert should be permitted to testify.

Engineering judgment always plays an importz-* role in

engineering design and analysis. Two engineers with similar

training and backgrounds can look at the same problem, apply the

same methodology, and have different opinions as to the solution.

When that occurs in a litigation context, the best solution is the one

espoused by this Court in Daubert: “Vigorous cross-examination,

presentation of contrary evidence, and careful instruction on the

burden of proof are the traditional and appropriate resns of

attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596.

The adversarial system is better equipped today to deal with

experts who offer questionable testimony than it ever has been. This

is the information age. With a key stroke one can find an immense

amount of information about a potential expert witness. Listing of

prior testimony and prior publications are part of the required

disclosure of expert witnesses under Fed.R.Civ.P. 26(a). Access to

12

transcripts, patent searches, literature searches, and other

background investigation is as close as the computer on a counsel's

or consultant's desk.

lil. THE METHODOLOGY EMPLOYED BY THE

PLAINTIFFS’/RESPONDENTS’ EXPERT

DEMONSTRATED ITS RELIABILITY WHEN VIEWED

IN THE CONTEXT IN WHICH IT WAS GIVEN.

This case exemplifies the problems that can be created when a

court attempts to analyze a particular method of analysis without

adequate knowledge of the methodologies utilized in the particular

field in which the opinion is being offered. Amicus shares Chief

Justice Rehnquist's view that Rule 702 “imposes on [trial judges]

neither the obligation nor the authority to become amateur scientists

in order to perform that role.” Daubert, 509 U.S. at 600-01.

Here the methodology employed by Mr. Carlson was the same

as employed by others in his field. In the case at bar, the expert,

through a deductive process, determined that the most likely cause

of a tire failure was a manufacturing defect. He gave that opinion

based on his training (he had a bachelor’s and a master’s degree in

mechanical engineering from Georgia Tech), and his experience (he

was a designer in the tire industry, and had investigated numerous

tire failures as a consultant after he left the tire industry). The

methodology he utilized for his analysis was the same as that used

by engineers and others in the tire industry, including the

defendant's own experts. The trial court approved of Carlson’s

“process-of-elimination form of proof,” recognized that he employed

a methodology to reach his conclusions, but simply did not believe

the method was reliable. Carmichael v. Samyang Tires, Inc., 923

F. Supp. 1514, 1521 (S.D.Ala. 1996). Conversely, the Eleventh

Circuit approved of the same methodology:

Carlson rests his opinion on his experience in

analyzing failed tires. After years of looking at the

mangled carcasses of blown-out tires, Carlson

claims that he can identify telltale markings

revealing whether a tire failed because of abuse or

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defect. Like a beekeeper who claims to have

learned through years of observation that his

charges always take flight into the wind, Carlson

maintains that his experiences in analyzing tires

have taught him what "bead grooves" and “sidewall

deterioration" indicate as to the cause of a tire's

failure.

Carmichael v. Samyang Tire, Inc., 131 F.3d 1433, 1436 (11® Cir.

1997).

The Eleventh Circuit came to its conclusion based on its

observation that the petitioners’ experts had relied on the same

markings and analytical methodology for their analysis as Mr.

Carlson did for his. 131 F.3d at 1436 n. 8.

Thomas M. Dodson, Samyang’s expert, 923 F. Supp. at 1524,

has made it quite clear that the tools used to determine why a tire

failed are not sophisticated, “tread measuring device, hand held

magnification, cameras and things of that nature for documentation

purposes. Nothing terribly sophisticated.” Deposition of Thomas

M. Dodson, Vasquez v. Uniroyal Goodrich Tire Co.,Jnc., 138

Judicial Dist. Ct, Cameron County, Tex., Cause No. 96-02-694-B

(jet. 15, 1997) at 6. (A true and correct copy of this deposition has

been lodged with the Clerk of the Court has Exhibit A to this Brief).

A: Well, I can't speak for the whole tire industry, but for

anybody I've ever come in contact with, the

visual/tactile examination is usually the technique of

choice.

And it is accepted as a reliable and accurate way to

determine?

Depends on who’ $ doing the examining, sir.

That's right.

If used properly I think it is a valid technique.

So if a person is qualified, has the experience such

as your experience, the technique certainly can be

reliable and accurate in determining the causes of a

tire failure?

QrROP

14

A: I think the- technique, if used properly,

comparison/observation to conclusion technique is a

valid technique. I can’t address any particular individual

using that technique without some knowledge of who

that individual is. You know, some people take the too!

and use them totally inappropriately, doesn’t make the

tools bad.

Id. at 21-22.

Tellingly, neither at trial, before the Eleventh Circuit, or before

this Court, have petitioners’ (or their amici) controverted Carlson’ s

assertion that their experts used the same methodology that he did.

The most they have said is that other, better, more accurate, more

reliable tests are available — not that such tests are ever used in the

context of the question to experts for both parties in this case: what

caused the failure of the particular tire that exploded on the

Carmichael van — customer abuse or a design or manufacturing

defect?

The fact is that the methodology Mr. Carlson used is identical to

that used in the tire industry generally to analyze tire failures.

Amicus has lodged with the Clerk of Court affidavits, and trial and

deposition transcripts providing the sworn testimony of individuals

from the tire industry, experts testifying on behalf of the tire industry

and other tire failure experts, all indicating that they use a visual

technique and the process-of-elimination as their primary method to

determine whether a tread separation and resulting tire failure

occurred do to defects in manufacture or design verses consumer

abuse or a road hazard.

In addition, Amicus has also lodged with the Clerk, as Exhibit B,

the affidavit of Mr. H. R. Baumgardner. Mr. Baumgardner spent

twenty-seven years of his professional life as a tire engineer at

Firestone Tire and Rubber Company. He has considerable

experience in tire design, industry-based analysis of tire failures in

both a test environment and field environment, and forensic analysis

of tire failures in a litigation setting. According to Mr.

Baumgardner’s affidavit:

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7. A determination of whether

tread separation or tread belt separation in a

steel belted radial tire is due to

manufacturing, design defects, or abuse is a

relatively simple undertaking for

experienced tire engineers that is

accomplished primarily by visual and tactile

inspection. Infrequently x-ray examination

of a tire is utilized to confirm findings on a

visual examination.

8. Tire engineers and tire

rubber chemists, when analyzing the results

of their own experimental test tires run on

laboratory and fleet tests, rely almost entirely

on visual examination of the failed surfaces

for determination of the cause of the failure.

I was present for thousands of reports by

Firestone engineers and chemists who

reported to management regularly at Fleet

Meetings. Virtually none of these reports

required more extensive analysis or

examination. The criterion was usually did

the tire perform as expected and if it failed,

where did it fail and was a construction

weakness evident.

Baumgardner Aff., at 1-2 (emphasis added).

As Mr. Baumgardner indicates, determining the exact nature of

manufacturing defect can be elusive for several reasons.

Conversely, the lack of adhesion resulting in tread and outer belt

separation of radial tires is a “manufacturing defect that has caused

many serious and fatal accidents.”

12. This manufacturing defect

can most often be determined by the process

of elimination whereby the potential causes

of tread separation are systematically

eliminated by visual examination. If an

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examiner finds no evidence of external

damage or other external causes of tread

separations, such as problems of extreme

overloading or under inflation, etc., and

evidence is present of propagation of the

separation in the normal service one can

conclude that such tread separation is the

result of improper adhesion as a result of a

manufacturing defect.

Baumgardner Aff., at 2.

One characteristic Mr. Carlson, Mr. Baumgardner, and Mr.

Dodson have in common is that they are well qualified. Mr.

Carlson’s qualifications are not questioned here. An expert’s

outstanding qualifications provide “circumstantial evidence” that the

expert has employed a sound methodology. Ambrosini v.

Labarraque, 101 F.3d 129 (D.C. Cir. 1996)

The Official Comments to Fed.R.Evid.702, at page 13 makes the

pragmatic observation that the lesson to be learned from the cases

following Daubert is: “If the methodology is good enough for the

real world, it is good enough for a trial.” Stephen A. Saltzburg,

Daniel J. Capra, and Michael M. Martin, Commentary, U.S.C.S. Fed.

R. Evid. 702 (1998), at 13.

IV. TESTIMONY THAT WOULD HAVE BEEN

ADMISSIBLE UNDER A FRYE ANALYSIS

SHOULD NOT BE EXCLUDED UNDER A

DAUBERT ANALYSIS.

It is ironic that testimony which would have met the test in Frye

v. United States, 293 F. 1013 (1923), should be excluded under a

Daubert analysis. The rules for admissibility set forth in Frye differ

from Rule 702 only to the extent Frye requires that the proffered

testimony represent deductions made from principles which had

“gained general acceptance” in a particular field.

The rule is that the opinions of

experts or skilled witnesses are admissible in

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evidence in those cases in which the matter

of inquiry is such that inexperienced persons

are unlikely to prove capable of forming a

correct judgment upon it, for the reason that

the subject-matter so far partakes of a

science, art, or trade as to require a previous

habit or experience or study in it, in order to

acquire a knowledge of it. When the

question involved does not lie within the

range of common experience or common

knowledge, but requires special experience

or special knowledge, then the opinions of

witnesses skilled in that particular science,

art, or trade to which the question relates are

admissible in evidence.

Numerous cases are cited in support

of this rule. Just when a scientific principle

or discovery crosses the line between the

experimental and demonstrable stages is

difficult to define. Somewhere in this

twilight zone the evidential force of the

principle must be recognized, and while

courts will go a long way in admitting expert

testimony deduced from a well-recognized

scientific principle or discovery, the thing

from which the deduction is made must be

sufficiently established to have gained

general acceptance in the particular field in

which it belongs.

Frye, 293 F. at 1014.

If Mr. Carlson’s opinions are analyzed in the context of the field

of mechanical engineering and the analysis of tire failures, it is quite

clear that Mr. Carlson’s opinions were made by “deductions” based

on principles that find “general acceptance” in the field of

mechanical engineering. The trial court failed to give sufficient

weight to the ability of an expert to express an opinion to a

reasonabie engineering probability based solely of the use of his

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senses. Mr. Carlson’s methodology to determine whether tire failure

was caused by a manufacturing defect verses a road hazard or abuse

is little different from the differential diagnoses utilized by

physicians.

It does not make sense that a rule that was intended to expand the

admissibility of expert testimony is now being used to exclude

testimony that would never have been challenged under Frye. The

irony, that parties would claim that Daubert “raised the bar of

admissibility,” was specifically addressed by the Sixth Circuit in

United States v. Jones, 107 F.3d 1147, 1158 (6th Cir.), cert. denied,

117 S. Ct. 2527 (1997).

As we implicitly recognized in Berry [v. City

of Detroit, 25 F.3d 1342, 1349-50 (6th

Cir.1994)], Daubert does not create a new

framework for analyzing proffered expert

testimony based upon “technical, or other

specialized knowledge.” Daubert provides a

"flexible" framework to aid district courts in

determining whether expert scientific

testimony is reliable. If that framework were

to be extended to outside the scientific realm,

many types of relevant and reliable expert

testimony -- that derived substantially from

practical experience -- would be excluded.

Such a result truly would turn Daubert, a

case intended to relax the admissibility

requirements for expert scientific evidence,

on its head.

Jones, 107 F.3d at 1158 (emphasis supplied.)

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V. THE MISAPPLICATION OF THE DAUBERT STANDARD

TO ENGINEERING TESTIMONY

Amicus’ concern about the rigid application of the Daubert

principles to engineering testimony is best evidenced by the result

in a case not currently before the court. In McKendall v. Crown

Corporation, 122 F.3d 803 (9th Cir. 1997), the trial court had, based

on a Daubert challenge, excluded the testimony of a mechanical and

metallurgical engineer who had been working in the field of product

design, product development, and product safety for over 50 years

and had been a professor of mechanical engineering for 33 years.

The case did not concern any novel scientific issue. It was a

products liability case involving a specialized version of an

industrial forklift truck called a “stockpicker.” The engineer had

offered the opinion that the stockpicker was defectively designed

because it did not adequately protect the operator. He proposed an

interlock barrier to be installed between the operator and the load.

The engineer’s testimony was excluded by the trial court because the

court felt that the engineer had not sufficiently demonstrated that the

proposed gate was feasible, that it would not impede the pickers

proposed use, and that it would increase the overall safety of the

vehicle. McKendall, 122 F.3d at 805.

The Ninth Circuit correctly reversed the trial court, finding the

principles of Daubert inapplicable to the proffered testimony:

McKendall does not contend that

Siegel's testimony would withstand an

application of the Daubert factors. Rather,

he argues that the district court erred in

applying the Daubert factors to Siegel's

testimony since Siegel's testimony was not

based on "scientific" knowledge. McKendall

asserts that Siegel's testimony is based on his

experience as a mechanical engineer who has

investigated hundreds of forklift accidents.

He argues that Siegel has "technical, or other

specialized knowledge” described-in Rule

702, and to which the Daubert factors,

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applicable to scientific knowledge, do not

apply. Thus, he proposes that Siegel's

testimony should have been admitted under

Rule 702, as Siegel demonstrated through

experience, training, and education his

familiarity with forklifts. Furthermore, he

argues, this technical or other specialized

knowledge would have assisted the trier of

fact to understand the evidence and to

determine facts in issue, consistent with Rule

702.

McKendall, 122 F.3d at 806.

Significantly, unlike the testimony of the plaintiffs’ experts in

Daubert and Joiner, the engineering testimony offered in McKendall

involved basic principles of mechanical engineering design that were

neither novel nor untried. See also Compton v. Subaru of America,

Inc., 82 F.3d 1513, 1515, 1519 (10th Cir.), cert. denied, 117 S. Ct.

611 (1996) (defendant manufacturer tried unsuccessfully to use

Daubert criteria to exclude clearly competent expert testimony

submitted by an aerospace and mechanical engineer who had 22

years experience in automotive design, where the issue was the

design of the roof and its failure to provide acceptable occupant

protection). McKendall and Compton are but a few of the many

instances trial judges have struggled trying to apply a standard

developed to monitor novel scientific evidence to real world every

day use of engineering experience and judgment. The analysis

should fit the discipline from which the opinions are drawn.

CONCLUSION

This Court should affirm the decision of the Eleventh Circuit

Court of Appeals concluding that the Daubert factors do not form an

appropriate basis for evaluating the admissibility of opinion

testimony that is based on skill or experience based observations.

Engineering testimony which would been admissible under the more

restrictive Frye standard should not be excluded. Amicus

respectfully urges this Court to recognize the important role that

experience and engineering judgment play in opinion testimony

21

concerning engineering matters. In cases involving engineering

evidence, evidentiary reliability should be based on engineering

validity.

Respectfully submitted,

Alvin S. Weinstein, Ph.D., P.E.

COUNSEL OF RECORD

for Amicus Curiae National

Association of Forensic

Engineers

8 Lincoln Street

Brunswick, ME

(207) 725-2111

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