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Click here for the full text of this decision FACTS:In June 1997, Oscar Mendez was driving a Mazda minivan carrying six passengers down Interstate 25 in New Mexico. The left rear tire, a steel-belted radial tire manufactured by Cooper Tire, lost its tread. Mendez lost control of the vehicle, and it rolled several times, ejecting all six passengers. Mendez, the only occupant wearing a seat belt, was not ejected. Four of the passengers died at the scene or shortly thereafter. When the tire was examined a nail hole was found in the tread. The nail had penetrated completely through the tire. Mendez and the survivors and estate administrators of three of those killed in the accident were plaintiffs below. They sued Cooper Tire and proceeded to trial on the theory that the tire tread separated due to a manufacturing defect, and the tread separation in turn caused the rollover and the resulting deaths and injuries. The jury found a manufacturing defect and awarded over $11 million in damages. The trial court entered judgment on this verdict. The court of appeals affirmed. HOLDING:Reversed and judgment rendered in favor of Cooper Tire & Rubber Co. The Supreme Court holds that the plaintiffs’ expert testimony was legally insufficient to establish a manufacturing defect. In products liability cases, the court has recognized three types of defect: marketing, design and manufacturing. “A manufacturing defect exists when a product deviates, in its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). “A plaintiff must prove that the product was defective when it left the hands of the manufacturer and that the defect was a producing cause of the plaintiff’s injuries.” Id. To establish proof of a manufacturing defect that caused the tread separation, plaintiffs relied on the expert testimony of Richard Grogan, and to a lesser extent on the expert testimony of Alan Milner and Jon Crate. Their theory was that the tire failed because the rubber compound that holds steel belts in steel-belted radial tires together was contaminated with hydrocarbon wax at the plant where it was manufactured, causing the belts to separate. Expert testimony is admissible if 1. the expert is qualified, and 2. the testimony is relevant and based on a reliable foundation. Scientific testimony is unreliable if it is not grounded “in the methods and procedures of science,” and amounts to no more than a “subjective belief or unsupported speculation.” E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). Robinson identified nonexclusive six factors that trial courts may consider in their flexible inquiry to determine whether expert testimony is reliable: 1. the extent to which the theory has been or can be tested; 2. the extent to which the technique relies upon the subjective interpretation of the expert; 3. whether the theory has been subjected to peer review and/or publication; 4. the technique’s potential rate of error; 5. whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and 6. the nonjudicial uses which have been made of the theory or technique. If the expert brings only his credentials and a subjective opinion, his testimony is fundamentally unsupported and therefore of no assistance to the jury. Rule 702, by its terms, only provides for the admission of expert testimony that actually assists the finder of fact. The court first examines Richard Grogan’s testimony and finds its lacking under a number of the Robinson factors. Looking at the first and third Robinson factors testability and peer review the record is devoid of any scientific testing or peer-reviewed studies confirming the hypothesis that wax contamination causes radial tire belts to separate. As to the fourth Robinson factor, the court finds that the technique’s potential rate of error is unknown because no testing of Grogan’s wax contamination theory has been done. The fifth factor asks whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community. The record is devoid of proof that Grogan’s theory has achieved such general acceptance. The sixth factor looks to the nonjudicial uses which have been made of the theory or technique. Plaintiffs offered no proof that, outside of the world of litigation, the industry and expert community have recognized wax contamination as a cause of belt separation. Grogan’s theory was also deficient because it postulated that the inner surfaces of the tire had been contaminated with wax, but the foundational proof of such contamination was lacking. Further, Grogan offered no theory as to how the tire could be used for 30,000 miles, and suffer a nail puncture at some point, without failing if wax was improperly deposited on the skim stock during the manufacturing process and the tire was defective when it left Cooper Tire’s plant. The court finds that Alan Milner’s testimony, which was devoted to explaining why he did not believe the nail hole or under-inflation had caused the tire failure, was legally insufficient to establish, by a process of elimination, the existence of a manufacturing defect that caused the failure. The court finds his testimony to have been subjective and unsupported by any measurements, testing, references to peer-reviewed studies, proof that Milner’s observational techniques are generally accepted in the relevant scientific community as a valid method of identifying a manufacturing defect, or evidence that his techniques are employed in non-judicial contexts. About expert witness Jon Crate, the court concludes that he was qualified to testify on the subject of wax migration and contamination in tires and their effect on tire adhesion. The trial court should have excluded his testimony. Without reliable expert testimony establishing these essential elements of a manufacturing defect claim, plaintiffs’ proof was legally insufficient to establish liability. The court also concludes that the mere fact that the tire failed in these circumstances is insufficient to establish a manufacturing defect of some sort. Such a failure could have been caused by design defect. A design defect claim requires proof and a jury finding of a safer alternative design. The jury was not asked to make and did not make such a finding. Moreover, the court says it has noted that Texas law does not generally recognize a product failure standing alone as proof of a product defect. The court adds that it does not think that plaintiffs’ expert testimony attempting to eliminate other causes of the tire failure is legally sufficient to establish a manufacturing defect. The universe of possible causes for the tire failure is simply too large and too uncertain to allow an expert to prove a manufacturing defect merely by the process of elimination OPINION:Willett, J., delivered the opinion of the court.

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