United States Court of Appeals

Fifth Circuit

FILED

August 2, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

06-60373

JIMMY CHARLES SMITH,

Plaintiff-Appellant,

v.

THE GOODYEAR TIRE & RUBBER COMPANY; ET AL.

Defendants,

THE GOODYEAR TIRE & RUBBER COMPANY

Defendant-Appellee.

Appeal from the United States District Court 

for the Southern District of Mississippi

Before JONES, Chief Judge, and BENAVIDES and STEWART, Circuit

Judges.

BENAVIDES, Circuit Judge:

The question before us is whether the district court abused

its discretion by rejecting the expert testimony of a polymer

scientist regarding the cause of a particular tire’s failure. The

scientist had no expertise in tire design, manufacture, or

malfunction. We find that the district court was within its

discretion to limit the polymer scientist’s testimony, and preclude
2

him from testifying as to the cause of the subject tire’s failure.

We AFFIRM the district court’s evidentiary ruling and its summary

judgment.

I. FACTS

In 2004, Jimmy Smith was driving a 1994 pickup when a rear

tire burst, leading to a collision that caused significant damage.

The subject tire was a Load Range E (“LRE”) manufactured by

Goodyear. While the tire was seven years old and 25% of its tread

life was worn at the time of the accident, Smith had purchased the

tire used just over a year before the accident. He kept it as a

spare until, a week before the accident, he mounted it on his

truck.

Smith sued Goodyear and several other defendants, alleging

that the defective design and/or manufacture of the tire caused its

tread to separate, thereby directly causing his accident. To

substantiate his claim, Smith retained Dr. Robert B. Moore, a

polymer scientist, to testify that the tire’s design or manufacture

was faulty. Moore had never worked in or studied the tire industry

in any capacity, nor had he ever testified as a tire expert.

Indeed, he did not claim to be a tire expert. He stated that his

expertise was limited exclusively to the study of polymers and

their adhesive properties. Having done a brief “touch and feel”

test of the tire and some internet research involving tires, Moore

concluded that the tire’s tread separated due to “improper bonding

of the rubber skim layer to the steel belts,” which could have been
3

avoided with the addition of a “nylon cap overlay.” He based this

conclusion almost entirely on one article he found during several

hours of online research. See J.W. Daws, Failure Analysis of Tire

Tread Separations, 3 PRAC. FAILURE ANALYSIS 73 (October, 2003).

Goodyear moved to strike Moore’s testimony. While the

district court would have allowed Moore to offer testimony

regarding polymer fibers and their adhesive properties, insofar as

that became relevant, it would not allow Moore to give any

testimony regarding (1) the cause of the tire’s failure, and (2)

the proper design or manufacture of tires generally. Following

that ruling, Goodyear moved for summary judgment and its motion was

granted. 

II. DISCUSSION

Smith appeals the court’s order to limit Moore’s testimony.

Smith also argues that, Moore’s testimony aside, there was a

genuine issue of material fact sufficient to survive summary

judgment.

A. Was Moore’s Testimony Properly Limited?

The exclusion of expert testimony is reviewed for an abuse of

discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142–43

(1997). “District courts enjoy wide latitude in determining the

admissibility of expert testimony, and the discretion of the trial

judge and his or her decision will not be disturbed on appeal

unless manifestly erroneous.” Watkins v. Telsmith, Inc., 121 F.3d
1 Moore presumably was unfamiliar with the existence of

nylon cap overlays in tires until he read the Daws article, 3

PRAC. FAILURE ANALYSIS 73, but his background in polymer science

4

984, 988 (5th Cir. 1997) (internal quotations and citations

omitted).

When evaluating expert testimony, the overarching concern is

whether or not it is relevant and reliable. See Daubert v. Merrell

Dow Pharm., Inc., 509 U.S. 579 (1993). A party seeking to

introduce expert testimony must show “(1) the testimony is based

upon sufficient facts or data, (2) the testimony is the product of

reliable principles and methods, and (3) the witness has applied

the principles and methods reliably to the facts of the case.” FED.

R. EVID. 702. 

Moore is not a tire expert. He has never been employed in any

capacity dealing with the design or manufacture of tires. He has

never published any articles regarding tires nor has he ever

examined a tire professionally prior to this litigation. His only

experience with tires is as a consumer. Cf. Hammond v. Coleman

Co., Inc., 61 F. Supp. 2d 533, 541 (S.D. Miss. 1999) (opining in

lantern defect case, expert “probably should be excluded simply

because he has had no experience in manufacturing, designing, or

testing lanterns, has conducted no tests on this lantern or any

other lantern, and has never testified in a lantern case.”). At

most, Moore is qualified to testify that the tire’s wire bonding

could have been stronger with a “nylon cap overlay,”1 but that does
probably qualified him to talk about how nylon overlays might

affect the bonding of a tire’s components. Accordingly, the

district court’s ruling would have allowed him to testify to that

extent. 

2 While Moore added that his “inspection did not reveal any

defects that could be caused by use and abuse of the tire over

time,” we have already discussed why he was unqualified to render

that opinion.

5

not answer the pertinent questions: Was the tire defective without

one, or, was the lack of the nylon overlay the likely cause of this

particular tread separation? 

Nonetheless, Smith insists that “[a] tire is simply an

application of the fundamental issues of polymer science.” That is

true in some sense, just as it is true that asbestos, heart valves,

and cupcakes can all be broken down into their basic atomic

particles; but that does not mean an atomic physicist is qualified

to testify regarding any asbestosis, medical malpractice, or

confectionary issue. It’s the science’s application to tires that

concerns us here, and Moore has absolutely no experience applying

polymer science to tires. 

The relevant question in this case is whether this tire’s

failure was a result of a manufacture or design defect, as Smith

claims, or of abuse and misuse of the tire, as Goodyear claims.

See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 154 (1999)

(“The relevant issue was whether the expert could reliably

determine the cause of this tire’s separation.”). Moore is not

qualified to answer that question.2
3 Smith offered documents from the National Highway Traffic

Safety Administration (NHTSA) regarding an investigation of LRE

tires to substantiate his claim that the model was defective. 

While the district court excluded those documents, we do not

address whether that ruling was proper because the NHTSA

documents alone would not save this case from summary judgment. 

Even if those documents were admissible to show that LRE tires

generally are defective, Smith still presented no admissible

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The district court was well within its discretion to exclude

Moore’s testimony regarding the cause of the tire’s failure. 

B. Absent Moore’s Testimony, Did a Genuine Issue of Material

Fact Remain?

Moore’s testimony aside, Smith argues that the district court

erred in finding that there was no genuine issue of material fact

sufficient to survive summary judgment. We review that

determination de novo. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). 

Under the Mississippi Products Liability Act, applicable

because this is a diversity action, Smith must show that, (1) the

tire was defective at the time it left the control of the

manufacturer or seller; (2) the defective condition rendered the

product unreasonably dangerous to the consumer; and (3) the

defective and unreasonably dangerous condition of the product

proximately caused the damages for which recovery is sought. Miss.

Code Ann. § 11-1-63(a); see also Austin v. Will-Burt Co., 361 F.3d

862, 866–67 (5th Cir. 2004). 

Even if we assume the subject tire was defective and

unreasonably dangerous when it left Goodyear’s control,3 we find no
evidence suggesting that this particular tire’s failure in this

instance was due to such a defect. 

7

proof of proximate cause in the record. Smith has not shown that,

seven years after the tire left Goodyear’s control, the failure of

his tire resulted from a manufacturing and/or design defect. Under

Mississippi law, “the burden of proving that when the accident

occurred there had been no substantial change in the condition in

which the product left the manufacturer is upon the plaintiff.”

BFGoodrich, Inc. v. Taylor, 509 So.2d 895, 903 (Miss. 1987). Smith

had no knowledge of whether or how the subject tire had been driven

on or used during the six years before he purchased it. Given the

age of the tire and its extensive wear, the court found that Smith

could not carry his burden on causation. 

Without Moore’s testimony as to causation, which was properly

excluded, we agree with the district court. Goodyear’s expert

testimony, that the failure was caused by underinflation or

overloading, is essentially uncontroverted. The grant of summary

judgment was proper. 

III. CONCLUSION

We AFFIRM the district court’s evidentiary ruling and its

grant of summary judgment.