# Amicus Curiae Brief — Kumho Tire Co. v. Carmichael

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0174%3A25

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 137

## Text

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?

ED: ea bdn cis devncdescesene apenca i
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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

SET dus cbcadbocosgekddutensecdbastedoanae 22

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

13

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

16

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

18

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,

20

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0174%3A25. Public record. Not legal advice.