THE GOODYEAR TIRE AND RUBBER COMPANY V. DENNIS THOMPSON AND CIGNA INSURANCE COMPANY
Annotate this Case
Download PDF
RENDERED: FEBRUARY 24,200O
TO BE PUBLISHED
V.
ON REVIEW FROM COURT OF APPEALS
96-CA-2 176-MR
MADISON CIRCUIT COURT NO. go-Cl-814
DENNIS THOMPSON AND
CIGNA INSURANCE COMPANY
APPELLEES
OPINION OF THE COURT BY JUSTICE JOHNSTONE
REVERSING
The Goodyear Tire and Rubber Company (Goodyear) appeals from a decision of
the Court of Appeals, which reversed the trial court’s granting of a directed verdict in a
products liability case. We reverse and reinstate the judgment of the Madison Circuit
court.
The principal question raised on appeal is whether a trial court may apply the
factors for determining the admissibility of expert scientific testimony set forth in
Daubert v. Merrell Dow Pharmaceuticals. Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993), and Mitchell v. Commonwealth, Ky., 908 S.W.2d 100 (1995),
overruled on other arounds, Fuaate v. Commonwealth, Ky., 993 S.W.2d 931 (1999) to
the testimony of engineers and other experts who are not scientists.
Appellee, Dennis Thompson, was injured in the course of his employment while
changing a multi-piece tire rim manufactured by Goodyear. In addition to bringing a
workers’ compensation claim, he filed a products liability suit against Goodyear. In the
suit, he alleged that Goodyear negligently designed the rim in question and that
Goodyear failed to warn of dangers inherent in changing tires with multi-piece rims.
Appellee, Cigna Insurance Company (Cigna), the workers’ compensation carrier for
Thompson’s employer, intervened in the suit to recover by way of subrogation the
benefits it paid Thompson.
Prior to trial, Goodyear moved for a hearing pursuant to KRE 104(a) to assess
the qualifications of Thompson’s proffered expert, Dr. 0. J. Hahn, to testify concerning
Goodyear’s liability for negligent design and failure to warn. The trial court granted the
motion and a hearing was held on the matter on May 7,1996. Dr. Hahn was present at
the hearing, was questioned by Thompson’s counsel, and was cross-examined by
counsel for Goodyear. At the conclusion of the hearing, the trial court excluded Dr.
Hahn as an expert witness.
Subsequently, Thompson informed the trial court that, if Dr. Hahn was not
allowed to testify as an expert witness, he had no other evidence to present. Goodyear
moved for a directed verdict. A recess was called, after which the trial court denied
Thompson’s motion to continue. Thompson then moved to place Dr. Hahn’s testimony
into the record by avowal. The motion was granted. At the conclusion of Dr. Hahn’s
avowal testimony, the trial court granted Goodyear’s motion for a directed verdict.
-2-
In his appeal to the Court of Appeals, Thompson argued that, in the hearing to
determine whether Dr. Hahn was qualified to testify as an expert, the trial court
misapplied the standard set forth in Dauber-t, supra. The Court of Appeals disagreed
with this argument. Nonetheless, it reversed the trial judge and held that the trial court
abused its discretion in excluding Dr. Hahn as witness. Relying on case law from the
Ninth Circuit, the Court of Appeals held that Dauber-t and Mitchell only applied to
testimony that is based on scientific knowledge and, thus, the trial court erred as a
matter of law in applying the Daubert factors to Dr. Hahn’s testimony which was based
on his engineering knowledge.
WHETHER THE TRIAL COURT ERRED IN APPLYING DAUBERT AND MITCHELL
TO DETERMINE THE ADMISSIBILITY OF DR. HAHN’S TESTIMONY
Subsequent to the rendition of the Court of Appeals’ opinion in this case, the
United States Supreme Court granted certiorari in a case to address the issue of
whether Dauber-t was limited to testimony based on scientific knowledge. We abated
oral argument in this case until the Supreme Court rendered its opinion, which it did on
March 23, 1999. See Kumho Tire Companv v. Carmichael, -U.S.-, 119 s. ct.
1167, 143 L. Ed. 2d 238 (1999). After careful review of the additional briefing on the
issue, review of the Kumho decision itself, and consideration of the oral arguments
presented, we adopt the reasoning of Kumho and hold that Dauber-t and Mitchell apply
not only to testimony based on “scientific” knowledge, but also to
testimony based on “technical” and “other specialized” knowledge. [See
KRE 7021. We also conclude that a trial court may consider one or more
of the more specific factors that Dauber-t [and Mitchell] mention[] when
doing so will help determine that testimony’s reliability. But . . . the test of
reliability is “flexible,” and Daubert’s [and Mitchell’s] list of specific factors
neither necessarily nor exclusively applies to all experts or in every case.
Rather, the law grants [the trial] court the same broad latitude when it
decides how to determine reliability as it enjoys in respect to its ultimate
reliability determination. See General Electric Co. v. Joiner, 552 U.S. 136,
143, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997) ([a trial courts reliability
determination is reviewed for abuse of discretion]).
Kumho , -U.S. at -, 119 S. Ct. at 1171, 143 L. Ed. 2d at 246-47. Therefore, the
Court of Appeals’ central holding that Dauber-t and Mitchell only apply to testimony
based on scientific knowledge is in error.
Next, we note that abuse of discretion is the proper standard of review of a trial
court’s evidentiary rulings. See Tumev v. Richardson, Ky., 437 S.W.2d 201, 205
(1969); Transit Authority of River Citv (TAR0 v. Vinson, Ky. App., 703 S.W.2d 482, 484
(1985). The same standard applies under the Kentucky Rules of Evidence, including
KRE 702. Mitchell, 908 S.W.2d at 102; accord United States v. Abel, 469 U.S. 45, 54,
105 S. Ct. 465, 470, 83 L. Ed. 2d 450, 459 (1984). While the Kentucky Rules of
Evidence allow a trial court “to admit a somewhat broader range of scientific testimony
than would have been admissible under m,’ they leave in place the ‘gatekeeper’ role
of the trial judge in screening such evidence.” General Electric Company v. Joiner, 522
U.S. 136, -, 118 S. Ct. 512, 517, 139 L. Ed. 2d 508, 516 (1997). A trial court’s ruling
on the admission of expert testimony is reviewed under the same standard as a trial
courts ruling on any other evidentiary matter. Comoare Fuaate, KY., 993 S.W.2d at
935 (the decision as to the qualifications of an expert rests in the sound discretion of
the trial court and will not disturb such ruling absent an abuse of discretion) with Justice
v. Commonwealth, KY., 987 S.W.2d 306, 314-15 (1998) (a trial court’s ruling on
relevancy under KRE 403 is reviewed under an abuse of discretion standard). Thus,
we are left with the question of whether the trial court abused its discretion in excluding
Dr. Hahn’s testimony.
‘Frve v. United States, 293 F. 1013 (D.C. Cir. 1923).
-4-
KRE 702
For the sake of clarity, we begin with a brief review of the application of Daubert
and Mitchell to a proffer of expert testimony pursuant to KRE 702.
“If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in the
form of an opinion or otherwise.” KRE 702.
When faced with a proffer of expert testimony, the trial judge must determine at
the outset of trial, pursuant to KRE 104, “whether the expert is proposing to testify to (1)
scientific [, technical, or other specialized] knowledge that (2) will assist the trier of fact
to understand or determine a fact in issue.” Daubert, 509 U.S. at 592, 113 S. Ct. at
2796, 125 L. Ed. 2d at 482. In order to meet the above standard, proffered expert
testimony, which is based on “scientific, technical, or other specialized knowledge,”
must be both relevant and reliable. Id. at 589, 113 S. Ct. at 2795, 125 L. Ed. 2d at
480.
The consideration of relevance has been described as one of “fit.”
“Fit” is not always obvious, and scientific validity for one
purpose is not necessarily scientific validity for other,
unrelated purposes. . . . The study of the phases of the
moon, for example, may provide valid scientific [, technical,
or other specialized] “knowledge” about whether a certain
night was dark, and if darkness is a fact in issue, the
knowledge will assist the trier of fact. However, (absent
creditable grounds supporting such a link), evidence that the
moon was full on a certain night will not assist the trier of
fact in determining whether an individual was unusually likely
to have behaved irrationally on that night.
Daubert, 509 U.S. at 591, 113 S. Ct. at 2796, 125 L. Ed. 2d at 481-82 (internal citation
omitted).
-5-
The consideration of reliability entails an assessment into the validity of the
reasoning and the methodology upon which the expert testimony is based. It is the
inquiry into the reasoning and methodology where application of the Daubert and
Mitchell factors comes most into play. We emphasize that the inquiry into reliability and
relevance is a flexible one. The factors enumerated in Daubert and Mitchell are neither
exhaustive nor exclusive. A trial court may apply any or all of these factors when
determining the admissibility of any expert testimony.
The factors set forth in Daubert and adopted in Mitchell that a trial court may
apply in determining the admissibility of an expert’s proffered testimony include, but are
not limited to: (1) whether a theory or technique can be and has been tested; (2)
whether the theory or technique has been subjected to peer review and publication; (3)
whether, with respect to a particular technique, there is a high known or potential rate of
error and whether there are standards controlling the technique’s operation; and (4)
whether the theory or technique enjoys general acceptance within the relevant
scientific, technical, or other specialized community. Daubert, 509 U.S. at 592-94, 113
S. Ct. at 2796-97, 125 L. Ed. 2d at 482-83.
Finally, we address the impact of Johnson v. Commonwealth, Ky., - S.W.2d
- (1999), on the Daubert and Mitchell analysis. We stated in Johnson that trial courts
in the Commonwealth may take judicial notice of methods and techniques which
already have been recognized by existing case law as reaching the status of scientific
reliability, u, analysis of fibers, ballistics, and fingerprints. Id. at -. However, we
noted that “judicial notice does not preclude proof to the contrary.” Id. at -.
Judicially noticed reliability shifts the burden to the opponent of the method or technique
to prove to the trial judge’s satisfaction that the method or technique no longer meets
-6-
KRE 702’s standard of reliability. Id. at -. The proponent may rely entirely on the
judicially noticed method or technique or may “introduce extrinsic evidence as additional
support or in rebuttal.” Id. at -. Thus, while Daubert and Mitchell apply to all expert
testimony pursuant to KRE 702, the application is markedly different depending on
whether the. method or technique, upon which the testimony is based, has been
recognized as reliable by existing case law.
This difference is exemplified in the
evolution of the reliability of certain methods of DNA analysis.
In Mitchell, supra, we held that the trial court did not abuse its discretion in
admitting DNA evidence in that particular case. Mitchell, 908 S.W.2d at 102. However,
we also held that the admissibility of all DNA evidence would continue to be determined
on a case-by-case basis. Id. at 101. In Fuaate, supra, we overruled that portion of
Mitchell which retained the case-by-case basis for the admissibility of DNA evidence
derived from the PCR and RFLP methods of analysis. Fuaate, 993 S.W.2d at 937-38.
Under Fuoate, the PCR and RFLP methods of DNA analysis are no longer subject to a
pre-trial Dauber-t hearing. In other words, a trial court may take judicial notice of the
reliability of these methods of analysis. However, Johnson, supra, makes clear that
these two methods of DNA analysis are not forevermore beyond the reach of the
application of Daubert and Mitchell. Rather, a party still may challenge the reliability of
the PCR and/or RFLP methods of DNA analysis, though he or she bears the burden of
’
proving that the methods of analysis are not, or are no longer, reliable under KRE 702.
This would result in a reverse Dauber-t hearing where the party moving to exclude the
evidence tries to prove that the challenged expert testimony is based on “scientific,
technical, or other specialized knowledge” that is not reliable.
-7-
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN EXCLUDING
DR. HAHN’S TESTIMONY
In his complaint, Thompson alleged that he was injured when he was struck by
an FL type lock ring from a wheel assembly which exploded while he was in the process
of mounting the assembly to the axle of a trailer. He alleged that Goodyear was
“negligent in the design, manufacture, testing, and inspection of the lock ring” which
injured him. Further, he alleged that Goodyear was negligent in failing to warn him
about the inherent dangers associated with the lock ring.
Multi-piece rims are used in conjunction with tubetype tires, most frequently on trucks . . . . Multi-piece rims
consist of two or more components which, when assembled
and the tire inflated, are held together by the force of the air
pressure in the tire. . . .
A multi-piece rim consists of a rim base, the largest
part of the metal structure supporting the tire, and one or
more detachable side rings serving as a flange to keep the
inflated tire on the rim base. The rim base, side ring, lock
rings, and tire are collectively referred to as a “wheel.”
For multi-piece rims, the rim base and the side or
locking rings are the primary components which support the
tire’s bead. This is referred to as a split side ring in two
piece assemblies . . . . In the case of two piece assemblies,
the circumferentially continuous outer small component is
termed a side ring. . . .
There are basically four multi-piece wheel
designs. . . . The third type rim (exemplified by Goodyear’s
“LW’ type rim) is a two piece assembly composed of a
demountable rim base and a split side ring. . . .
Servicina Multi-Piece Rim Wheels, 45 Fed. Reg. 6706 (1980)--Plaintiffs Exhibit #8.
The subject matter of Dr. Hahn’s proffered testimony had two components: (1)
the type of multi-piece tire rim, which was involved in the explosion that injured
Thompson, was negligently designed; and (2) Goodyear failed to warn Thompson
-8-
concerning the dangers inherent in changing a tire with the type of multi-piece tire rim
involved in the explosion. Upon review of the record of the preliminary hearing which
was held to determine the admissibility of Dr. Hahn’s proffered testimony, we conclude
that the trial court did not abuse its discretion in excluding Dr. Hahn as a witness.
NEGLIGENT DESIGN
The essence of Dr. Hahn’s testimony concerning negligent design was that there
was a safer design. Dr. Hahn testified that the multi-piece wheel assembly at issue in
this case relies on a tongue and groove system for securing its components. However,
he testified that it is impossible to perform a visual inspection to determine whether the
components were properly assembled after inflation. This, he alleged, was a design
defect.
He stated that the only way to ensure that the component pieces are properly
assembled is to bolt them together. He also stated that the problem could be
eliminated by employing a single piece rim.
As to his theory that the components of the wheel assembly should have been
bolted together, Dr. Hahn testified that Goodyear experimented in the 1970’s with
bolting the pieces together, but the experiments failed. He testified:
It [(bolting the pieces together)] didn’t work because they did
not use the technology. If they had used the technologies
from the 30’s they would have been successful or if they had
used the technology which they used in our aerospace
division for aircraft it would have worked also.
If they had used the 30’s technology they would have
succeeded. You see the bolt system was too weak and they
claim it didn’t stand up in use and in the bolt system they
used in the B-52’s was satisfactory so a bolt system of the
same strength and type as used in the B-52 would have
been satisfactory.
-9-
Dr. Hahn’s theory that the 1930’s technology would work was based on his
review of patents for rim components. He explained, in “1938 there is a proposal to tie
the ends of the side ring together so it cannot slip off. That is recognized in 1938 as
very important.” He also referred to a 1953 patent which emphasized the advantages
of a single piece design. In explaining why he believed that the technology used in the
wheel assemblies of B-52’s* would work in the trucking industry, Dr. Hahn testified:
The weight process of the B-52 is larger. The air pressure is
larger. The loadings of turning and downward pressure is
larger so all the key elements . . . are exceeded in the
aircraft tire compared to the truck tire so the conditions for
severity of service are exceeded. So the truck tire is not
seeing the loads of pressure and the size forces [the B-521
that system sees.
On cross-examination, Dr. Hahn was directly asked, “[Hlave you ever used a B52 bolting system and tried it in the multi-piece trucking industry?”
Dr. Hahn replied that he had not.
Dr. Hahn was then asked whether he submitted his theory concerning the
feasibility of the B-52 bolting system to any tire manufacturer, to OSHA, or subjected
the theory to any sort of peer review to see if the theory would work. Again, Dr. Hahn
stated that he had not. He was asked if he had published any articles concerning his
theory on the B-52 bolting theory. He stated that he had not. Additionally, he stated
that he had never participated in the design of the Goodyear FL ring, that he had never
designed a side ring or designed a tire, and that he had never participated in the
process of manufacturing tires.
‘The B-52 is a long-range, heavy bomber which is capable of flying at high
subsonic speeds at altitudes up to 50,000 feet.
-lO-
In excluding Dr. Hahn’s testimony concerning Goodyear’s alleged negligent
design, the trial court stated in pertinent part:
[Tlhe court finds the proffered expert lacking. . . . The
problem I have with the testimony that is proffered by the
plaintiffs [sic] can Dr. Hahn’s theory or technology be tested?
Apparently it can. Has it been subject to peer review and
publication? It has not. Further, Dr. Hahn offered no proof
of any widespread acceptance of his theory or technology.
An inference or assertion in a design case it seems to this
court must be derived by some kind of scientific
methodology. Engineering is not an art. It is a science. It
involves principles of physics. It involves high mathematics.
It involves scientific testing methodology. None of that was
offered with respect to the inquiry today regarding either the
expert or his theory and technology in this case.
The test for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v.
English, Ky., 993 S.W.2d 941, 945 (1999). Applying this standard, it is clear that the
trial judge did not abuse her discretion in excluding Dr. Hahn’s testimony.
The trial judge expressly found that the proffered testimony did not satisfy three
of the Dauber-t and Mitchell factors. The only other factor, the potential rate of error of
using the B-52 locking technology in the trucking industry, had no application in this
case because Dr. Hahn had not performed any tests using the technology. Moreover,
Dr. Hahn’s assertion that Goodyear could have made a safer wheel assembly using
1930’s technology or the technology used on B-52’s was founded only on his bare
assertion that this was so. As noted by the Kumho Court, neither Daubert nor the rules
of evidence require a trial court “to admit opinion evidence that is connected to existing
data only by the - dixit of the expert.” Kumho,
ipse
U.S. at -, 119 S. Ct. at 1179,
143 L. Ed. 2d at 256. Finally, the trial judge found that Dr. Hahn’s theory was not based
on any viable methodology. As stated in Dauber-t, the central inquiry into the
-ll-
admissibility of testimony pursuant to FRE 702 (identical to KRE 702) is an
“assessment of whether the reasoning or methodology underlying the testimony is
scientifically valid and of whether that reasoning or methodology properly can be
applied to the facts in issue.” Daubert, 509 U.S. at 592, 113 S. Ct. at 2796, 125 L. Ed.
2d at 482.
FAILURE TO WARN
Dr. Hahn’s proffered testimony that Goodyear should have warned Thompson
about the inherent dangers of changing the wheel assembly in question was based on
his theory that there was a safer method of changing multi-piece tires. In explaining,
Dr. Hahn testified:
The only warning is essentially to assemble these
components, add air to them in a small amount, such as 3
p.s.i., to seat them and then mount them on the axle. Inflate
them on the axle so there is . . . no more handling of the
components after they have been inflated. The handling of
the components after inflation in a[n] unprotected manner is
the core problem which the industry has to warn about. The
industry has to say the only safe way where you cannot be
hurt is if you mount the wheels in dual application or if you
take a demountable one on the front, air out, lugs out, which
covers the side ring to preventit from leaving the axle.
Dr. Hahn testified that the warning outlined above was not required by OSHA
regulations, which were admitted into evidence as an exhibit. He further testified that
the warning provided by Goodyear in connection with changing the wheel assembly at
issue did not violate OSHA regulations. In response to a question from the trial judge,
Dr. Hahn stated that no company recommends or uses his proposed method of
assembly and attachment of multi-piece rims. Also, he testified that he had not written
about his method, nor had it otherwise been submitted to any kind of peer review.
Finally, in response to a question by the trial judge as to whether he had ever tested his
-12-
method of changing multi-piece tires, Dr. Hahn stated that he was a Scout Master and
was responsible for a scout bus when a tire blew out in a “dual setting.” He testified
that while using his method to change the tire on the scout bus, the inner dual tire blew
out. He testified that the resulting explosion was fully contained and did not damage
the dual sets.
In excluding Dr. Hahn’s testimony concerning Goodyear’s alleged failure to warn,
the trial court stated in pertinent part:
Clearly in Kentucky . . . recovery may be had for inadequate
warning as a separate and distinct cause of action. The
issue here is whether or not Dr. Hahn may testify as an
expert to prove inadequate warning or to prove that
Goodyear in this case breached its duty to adequately warn.
Dr. Hahn offers antidotal [sic] testimony with respect to what
he calls a warning. However, . . . the only industry standards
that are offered at this time by the plaintiffs are the OSHA
standards and Dr. Hahn concurs that Goodyear is in
compliance with the OSHA standards on the warning issue.
It is the courts ruling that [the] offered proof. . . of a better
or safer way to install in this particular case is not sufficient
evidence to prove breach of duty to warn. Dr. Hahn . . . can
offer no industry involvement with respect to looking at what
he calls reverse installation. . . . . No companies are
currently using this reverse method of assembly and
attachment and he has not himself formally tested that. He
does provide antidotal [sic] testimony that it worked on his
boy scout bus but certainly not in the same situation and the
circumstances that the plaintiff alleges here. So, absent any
definable testimony or qualification on Dr. Hahn’s part, the
court finds that he is not an expert witness.
Once again, we cannot say that the trial judge abused her discretion in excluding
Dr. Hahn as an expert witness concerning the allegation that Goodyear breached its
duty to warn. Dr. Hahn had not formally or rigorously tested his reverse installation
procedure. In fact, he only offered a single instance in which he had used this method
of reverse installation. Obviously, he did not testify as to the error rate associated with
-13-
his reverse method of installation. He had not submitted his reverse installation to any
sort of peer review. Finally, Dr. Hahn did not demonstrate any acceptance of his
procedure either in the industry or through OSHA standards. Thus, none of the
Dauber-t and Mitchell factors favor admissibility of Dr. Hahn’s testimony.
SUMMARY
The principles established in Daubert and Mitchell concerning the admissibility of
expert testimony apply not only to expert testimony based on scientific knowledge, but
are equally applicable to expert testimony based on technical or other specialized
knowledge. In assessing the admissibility of expert testimony pursuant to KRE 702, a
trial court, pursuant to KRE 104, must determine at a preliminary hearing whether the
expert is proposing to testify to (1) scientific, technical, or other specialized knowledge
that (2) will assist the trier of fact to understand or determine a fact in issue. In making
this determination, the trial court must ensure that any and all expert testimony that is
admitted is both relevant and reliable.
KRE 702 gives the trial court the discretionary authority, reviewable for its abuse,
to determine admissibility of expert testimony in light of the particular facts and
circumstances of the particular case. The discretion given to a trial court in determining
the admissibility of expert testimony “is discretion to choose among reasonable means
of excluding expertise that is fausse and science that is junky. . . . jTjhe Daubert
factors are not holy writ, in a particular case the failure to apply one or another of them
may be unreasonable, and hence an abuse of discretion.” Kumho, -U.S. at -,
119 S. Ct. at 1179, 143 L. Ed. 2d at 256-57 (Scalia, J., concurring).
We conclude that the trial court employed reasonable means to determine the
admissibility of Dr. Hahn’s testimony, and we hold that the trial court did not abuse its
-14-
discretion in excluding his testimony. Therefore, the decision of the Court of Appeals is
reversed and the judgment of the Madison Circuit Court is reinstated.
Cooper, Keller, and Wintersheimer, JJ., concur. Stumbo, J., concurs in part and
dissents in part by separate opinion. Lambert, C.J., dissents by separate opinion, with
Graves, J., joining that dissent.
COUNSEL FOR APPELLANT:
John M. Famularo
Daniel E. Danford
Stites & Harbison
250 West Main Street, Suite 2300
Lexington, KY 40507
COUNSEL FOR APPELLEE,
DENNIS THOMPSON:
Carl R. Clontz
Clontz & Cox
P. 0. 1350
Mt. Vernon, KY 40456
COUNSEL FOR APPELLEE,
CIGNA INSURANCE COMPANY:
Randall L. Hardesty
Richard M. Joiner
Mitchell, Joiner, Hardesty & Lowther
113 East Center Street
P. 0. Drawer 659
Madisonville, KY 42431-0659
-15-
RENDERED: FEBRUARY 24,200O
TO BE PUBLISHED
1998-SC-0054-DG
THE GOODYEAR TIRE AND RUBBER COMPANY
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
96-CA-2 176-M R
MADISON CIRCUIT COURT NO. go-Cl-814
DENNIS THOMPSON AND
CIGNA INSURANCE COMPANY
APPELLEES
OPINION BY JUSTICE STUMBO
CONCURRING IN PART AND DISSENTING IN PART
I concur with that part of the majority opinion which adopts the Kumho Tire
decision and thereby applies the Dauber-t analysis to the testimony of engineers and
other “non-scientific” expert witnesses. However, I believe that Hahn’s proposed
testimony satisfied Dauber% requirements of reliability and relevance and that the trial
court abused its discretion in excluding his testimony. I therefore join the dissent to the
extent that it objects to the exclusion of Hahn’s testimony.
RENDERED: FEBRUARY 24,200O
TO BE PUBLISHED
1998-SC-0054-DG
THE GOODYEAR TIRE AND RUBBER COMPANY
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
96-CA-2 176-M R
MADISON CIRCUIT COURT NO. go-Cl-814
DENNIS THOMPSON AND
CIGNA INSURANCE COMPANY
APPELLEES
DISSENTING OPINION BY CHIEF JUSTICE LAMBERT
In the case at bar, the expert whose testimony was excluded was Dr. O.J.
Hahn. From the record, it appears that Dr. Hahn is at least sixty years of age and the
holder of a B.S. degree in engineering physics, an M.S. in nuclear engineering, an M.A.
in mechanical engineering, and a Ph.D. in mechanical engineering from Princeton
University. Since 1973 he has taught engineering at the University of Kentucky
and
since 1984 has been a professor of mechanical engineering at UK. Among the courses
he has taught at UK are engineering safety and engineering experimentation. He is a
member of the Society of Automotive Engineers, American Society for Quality Control,
American Nuclear Society, American Society of Mechanical Engineers, American
Chemical Society, and Kentucky Health Physics Society. He has authored or co-
authored many published articles in various areas of engineering and is a member of
several honorary societies for engineers. He has research specialization in safety of
mechanical systems. He has testified as an expert witness on multi-piece rims in over
one hundred cases in forty-nine states and has studied such rims for over twenty-six
years. Despite the foregoing qualifications, the trial court found that “he is not an expert
witness” and excluded his proffered testimony.
The only discernable basis for the majority opinion upholding the ruling of
the trial court is trial court discretion: “KRE 702 gives the trial court the discretionary
authority, reviewable for its abuse, to determine admissibility of expert testimony in light
of the particular facts and circumstances of the particular case.” ’
In effect, the
majority holds that there is no rule of law with respect to the admissibility of scientific
evidence -- that only the view of the trial judge matters. Manifestly, such an approach
will lead to inconsistent, unpredictable and perhaps arbitrary decision-making that no
appellate court will be empowered to correct.
The trial court and this Court’s majority have confused the concept of
admissibility of evidence with the concept of weight and credibility of evidence. As
shown by the quotation from the trial court in the majority opinion at page 12, the trial
court was pre-occupied with industry practices and virtually disregarded the education,
training and experience of the witness. The trial court appears to have confused its role
as gatekeeper with the jury’s role in determining the weight evidence should have. In
contrast, the view of the Court of Appeals was as follows: “The Court [in McKendall*]
explained that because testimony from such a witness would be helpful and relevant,
‘Majority opinion at page 13.
* McKendall v. Crown Control Corn, 122 F.3d 803, 807 (gth Cir. 1997).
-2-
he was qualified as an expert witness, and it would be for the jury to determine the
weight to be accorded his testimony. Moreover, it is the role of cross-examination to
discredit the expert’s testimony by raising points such as his failure to have tested or
created the safety device he espoused.“3
The Court of Appeals summarized Dr. Hahn’s avowal testimony as
follows: “Dr. Hahn testified that when using a multi-piece locking system, like the FLtype lock, a bolting system like that used on B-52 bombers is safer than that used by
Thompson in this case. He explained that since the system works on B-52 bombers,
and all the key elements are exceeded in aircraft tires as compared to truck tires, it
would obviously work with a truck tire.‘14 Any flaw in the foregoing analysis would have
been revealed in cross-examination. Dr. Hahn’s testimony should have gone to the jury
where a proper assessment of weight would have been made.
Upon reading the majority opinion, one is left to ponder an extraordinary
incongruity.
Recently, this Court has authorized the per se admission of expert
scientific evidence relating to DNA identification on the view that the basic science was
sufficiently reliable that Daubert hearings need not occur.!j Less than twenty years ago,
the use of human DNA for the purpose of identification was unknowr?, but this Court is
now entirely comfortable with its use to prove the identity of perpetrators of crime. In
this case, however, we have declared our lack of confidence in basic mechanical
engineering, a discipline which has been known and widely accepted for a century or
3 Court of Appeals opinion page 6.
4 Court of Appeals opinion page 7.
5Fuaate v. Commonwealth, Ky., 993 S.W.2d 931, 937 (1999).
‘Harris v. Commonwealth, Ky., 846 S.W.2d 678, 680 (1992).
-3-
more. The admissibility issue in this case did not concern DNA identification, brain
surgery or rocket science. It concerned a wheel. Despite this, however, we have held
that a Ph.D. mechanical engineering professor with many years of teaching and other
professional experience may be prevented from testifying because the trial judge did
not have confidence in his methodology and did not believe that his testimony satisfied
the Dauber? test.
Graves, J., joins this dissenting opinion.
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.