Preview
Filed 09J une 30 P4:45
LorenJ ackson -District Clerk
Harris Coun!
ED101) 015446146
By: Furshilla Brantley
CAUSE NO. 2007-75537
BILLY JACK McDANIEL, A?7LETA IN THE DISTRICT COURT
McDANIEL INDIVIDUALLY AND AS
NEXT FRIEND OF CARNEY
McDANIEL, A MINOR
VS. 615? JUDICIAL DISTRICT
SMITH INTERNATIONAL, INC., SONERRA
RESOURCES CORPORATION, HARBOR
PRODUCTS, INC., KIRKHILL MANUFACTURING
COMPANY A/K/A KMC RUBBER PRODUCTS,
ADVANCED POLYMER TECHNOLOGIES, LLC HARRIS COUNTY, TEXAS
BRIEF IN SUPPORT OF
MOTION TO EXCLUDE AND/OR LIMIT THE
OPINIONS AND TESTIMONYOF WALTER HALL
NOW COME Plaintiffs and Intervenor and submit this Brief in Support of the
contemporaneously filed Motion to Exclude and/or Limit the Opinions and Testimony of
Walter Hall. The Court should exclude the opinions, testimony and/or limit the trial
testimony of Walter Hall he does not possess the requisite knowledge, training or
expertise to express opinions regarding the manufacturing of the stripper element
involved in the event made the basis of this litigation.
L
BACKGROUND
A The Failure
This product liability action arises from an oilfield explosion on March 3, 2006
near Nacogdoches, Texas. At that time, a component part of a Smith RDH 2500 failed
allowing hydrocarbons to escape to the rig floor where it ignited and caused catastrophic
injuries to BILLY JACK MCDANIEL. The component part in question is further
identified as the Smith International, Inc. natural rubber stripper element which is
2
designed and manufactured to act as a seal around the drill pipe during drilling and
associated operations. The Smith International, Inc. natural rubber element contains a
metal insert to which the natural rubber is molded. The bond between the metal insert and
the rubber utilizing the Chemlock system is a contested issue between the parties in this
litigation. Harbor Products, Inc. prepared the metal inset, applied primer and adhesive
and molded the metal insert into natural rubber to create the subject stripper rubber.
Walter Hall has been at various times an employee and/or consultant for Harbor Products,
Inc, Walter Hall has been designated by Harbor Products, Inc. as a retained expert
witness on the manufacturing processes of that entity. His opinions, testimony and
expected trial testimony should be excluded or limited to those areas where he has some
demonstrable expertise.
B Walter Hall’s Involvement and Opinions/Observations
Harbor Products, Inc. designated Walter Hall of Walter Hall & Associates
(hereinafter “Hall”) as an expert witness with knowledge and experience regarding the
manufacturing processes utilized in the crafting of the subject stripper element. Hall
prepared his unsigned opinion letter on or about March 24, 2009. That letter and his
Confidential Resume are attached hereto as Exhibit “A”. Harbor Products, Inc. provided
that report on March 27, 2009 in the Defendant Harbor Products, Inc,’s Designation of
Expert Witnesses. The parties deposed Walter Hall on April 28, 2009 in an effort to
determine the opinions and bases of those opinions. While the Plaintiffs and the
Intervenor do not adopt or concur with the validity of any of the observations, hypotheses
or theories provided by Walter Hall, there are a few theories which should be denied
admissibility pursuant to Daubert v. Merrill-Dow Pharmaceuticals, Inc., 509 U.S. 579
3
(1993), its progeny and the Texas Rules of Civil Evidence. Walter Hall attempts to
express opinions on the following: quality of the bond (if any) before the failure; the
presence of some evidence of the degree of bond after the failure and explosion; and
misalignment.
The Court should exclude these theories for multiple reasons. Hall was not
present during the molding of the subject stripper rubber so he is not a fact witness. Hall
is also constrained by the fact that he does not have the demonstrable expertise in the
mixing and molding of stripper rubbers to testify to a reasonable degree of engineering
probability, 'He cannot deduce that fact from the diagnostic tools which have been
utilized to assess and evaluate the success or failure of the bonding system because he
was not provided that information by Harbor Products, Inc. or Smith International, Inc.
even if he was provided with that information, there is no indication that he has the
requisite knowledge and training to interpret that data. Finally, the Hall theory of
misalignment is based upon his laymen’s interpretation of certain photographs without
any drilling or operations experience. Further, these photographs were taken after the
event without any effort to indicate that the photographs accurately depicted the
alignment of the drill string prior to the explosion.
I.
RULES GOVERNING THE ADMISSIBILITY OF EXPERT TESTIMONY
The Texas Rules of Evidence assign to the trial judge the task of ensuring that an
expert’s reasoning and methodology is scientifically reliable and relevant to the facts in
issue. Daubert v. Merrill-Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993). The
‘wr. Hall has audited several classes at the University of Southern California but holds not
degree in engineering.
4
Supreme Court is clear that judges must undertake this gate-keeping obligation with
diligence, even though it “will sometimes ask judges to make subtle and sophisticated
determinations about scientific methodology and its relation to the conclusions an expert
witness secks to offer.” General Electric Co. v. Joiner, 522 U.S. 136, 147 (1997) (Breyer,
J., concurring), The Court’s gate keeping function applies to al/ expert testimony,
whether based on scientific, technical or other specialized knowledge. See Kumho Tire
Co, Lid. y, Carmichael, 526 U.S. 137, 142 (1999). As the Supreme Court explained:
[Whether the specific expert testimony focuses upon specialized
observations, the specialized translation of those observations into
theory, a specialized theory itself, or the application of such a
theory in a particular case, the expert's testimony often will rest
"upon an experience confessedly foreign in kind to [the jury's]
own." The trial judge's effort to assure that the specialized
testimony is reliable and relevant can help the jury evaluate that
foreign experience, whether the testimony reflects scientific,
technical, or other specialized knowledge.
Kumho Tire, 526 U.S. at 149 (quoting Hand, L., Historical and Practical Considerations
Regarding Expert Testimony, 15 Harv. L, Rev. 40, 54 (1901).
The party offering the expert testimony bears the burden to demonstrate that the
testimony is reliable by a preponderance of the evidence. Moore v. Ashland Chem., Inc.,
151 F.3d 269, 276 (5"" Cir. 1998), cert. denied, 526 U.S. 1064 (1999); see also Dart v.
Kitchens Bros. Mfg. Co., 253 Fed. Appx. 395, 398 (5"" Cir, 2007) (citing Moore). In the
instant case, there is no demonstration that the testimony by Walter Hall is reliable with
respect to the molding, the presence or absence of evidence regarding the rubber to metal
bond on the subject stripper rubber or misalignment is reliable.
Texas Rules of Evidence 702, 703, 704 and 705(a) and(c) govern the admissibility
of expert opinion testimony and provide as follows:
RULE 702. TESTIMONY BY EXPERTS
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.
RULE 703. BASES OF OPINION TESTIMONY
The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by, reviewed by, or
made known to the expert at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or data need not
be admissible in evidence.
RULE 705(c). DISCLOSURE OF FACTS OR DATA
UNDERLYING EXPERT OPINION
(c) Admissibility of Opinion. If the court determines that the
underlying facts or data do not provide a sufficient basis for the
expert’s opinion under Rule 702 or 703, the opinion is
inadmissible.
A An Expert’s Opinions Must Be Relevant and Reliable or They
Must Be Excluded.
In order to be admissible, expert testimony must be “not only relevant, but
reliable.” Daubert, 509 U.S. at 597; see also Kumho Tire, 526 U.S, at 141; Joiner, 522
U.S. at 142. More specifically, in Daubert, the Court held an expert’s opinion must be
grounded in scientific method, must constitute more than a mere subjective belief, and
must be relevant to and fit the facts of the case in question. Id., 509 U.S. at 590-591.
Courts since Daubert have subjected expert testimony to strict scrutiny, making a
preliminary assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and whether that reasoning or methodology properly can
be applied to the facts in issue. See e.g., Moore v. Ashland Chem., Inc., 151 F.3d 269 (5""
Cir, 1998), cert. denied, 526 U.S. 1064 (1999).
The Daubert Court specifically stated that an expert’s opinion must be based on
“methods and procedures of science” rather than “subjective belief or unsupported
speculation.” Daubert, 509 U.S. at 590, If the data does not have sufficient probative
force and reliability such that a reasonable expert could rely upon it, the opinions must be
excluded. Jn re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 748 3" Cir, 1994)
(quoting In re Agent Orange Prod. Liab. Litig, 611 F.Supp. 1223, 1245 (E.D.N.Y.
1985)). Furthermore, an expert’s bare opinion will not suffice. The Court must examine
the data and testing upon which the opinion is allegedly based to determine its reliability.
Guile v. US. 422 F.3d 221, 227 (5" Cir. 2005); see also Smelser v. NorfolkS. Ry Co., 105
F.3d 299, 303 (6" Cir. 1997).
Often, the Daubert inquiry is performed. with reference to the traditional Daubert
“factors” including: (1) Whether a “theory or technique ... can be (and has been) tested”;
(2) whether it “has been subjected to peer review and publication”, (3) whether, in
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 a “relevant scientific
community.” Kumho Tire, 526 U.S. at 149-50 (citing Daubert, 509 U.S. at 592-94).
However, with some types of specialized testimony, a strict application of these factors
cannot be accomplished and the Court must look to expert’s application of methodology
and logic to determine whether the conclusions can follow from the facts relied upon.
7
See e.g., Black v. Food Lion, Inc., 171 F.3d 308, 311 ou Cir. 1999). In Kumho Tire, the
Supreme Court emphasized that the test of reliability is “flexible” and that Daubert's list
of specific factors does not necessarily nor exclusively apply to every expert in every
case. Kumho Tire, 526 US. at 150. Under the applicable scrutiny, Walter Hall’s
hypotheses regarding the bonding on the subject stripper element, the results of any
diagnostic testing as well as misalignment of the drill string are inadmissible without a
demonstration that Hall is qualified to render such an opinion.
B. The Expert’s Opinions Must Be Reliably Based On, And Tied
To, The Facts Of The Case — No “Analytical Gaps”
Even if the expert is qualified to render an opinion regarding a particular subject,
the opinion must nevertheless be based on a reliable foundation, including accurate and
relevant facts, in order to be admissible. While Daubert’s focus is primarily on principles
and methodology, “conclusions and methodology are not entirely distinct from one
another.” Joiner, 522 U.S. at 146; Kumho Tire, 526 U.S. at 157 (district courts must
“sorutinize” whether the principles and methods used by the expert have properly been
applied to the facts of the case). The district court must examine the expert’s conclusions
in order to determine whether they could reliably follow from the facts known to the
expert and the methodology used.” Heller v. Shaw Indus., Inc., 167 F.3d 146, 153 3B"
Cir. 1999), If the court concludes that there is simply too great an “analytical gap”
between the facts and the expert’s conclusion from those facts, the opinion should be
excluded. Joiner, 522 U.S. at 146; see also Moore, 151 F.3d at 276 (“a district court,
while acting as a gatekeeper for expert evidence, must evaluate whether there is
an adequate ‘fit? between the data and the opinion proffered”). Absent some degree of
scientific accountability, the hypotheses are misleading, confusing and inadmissible.
Unfortunately, Hall has not made any effort to conform his testimony to the rigorous
requirements of the Court and the testimony should be excluded and/or limited
accordingly.
Hil.
A. There is No Indication of Reliability
Walter Hall’s opinions regarding the quality of the pre-explosion bond, the
appropriateness of the manufacturing process are problematic because there is no
indication that the witness was present during the actual manufacture of the product.
Likewise, his expected testimony about the production of an exemplar stripper rubber in
2009 is potentially erroneous because there is no indication that he was aware of what the
process was like in 2005 when the subject stripper rubber was crafted. His opinions and
expected testimony are based upon assumptions and speculation, Because Defendant
cannot establish the reliability of the witness’s methodology or theory, his opinions on
this topic are unreliable, and the Court should exclude them at trial.
The Court may exclude expert testimony when it finds that an expert has
extrapolated data, and there is "too great an analylical gap between the data and the
opinion proffered." Burleson v. Tex. Dept. of Crim. Justice, 393 F.3d 577, 587 os" Cir.
2004) (quoting Moore v, Ashland Chem., Inc., 151 F.3d 269, 279 (5'" Cir, 1998)), In the
instant case, Frishmuth’s misalignment theory necessarily calls for certain theoretical
leaps which should render the proffered concept inadmissible due to its inherent
subjectivity and unreliability.
Iv.
MERE POSSIBILITIES ARE INADMISSIBLE
It is axiomatic that the Plaintiffs bear the burden of proof on all claims. Without
the appropriate scientific evidence and support, the Plaintiffs’ expert testimony will not
survive the scrutiny of the Court. It should also be appropriate to limit the hypothetical,
unsupported testimony of defendant’s experts where the experts speak to a myriad of
possibilities without any reference to scientific probabilities. See American Tobacco Co.,
Inc. y. Grinnell, 951 S.W.2d 420, 434 (Tex. 1997); Armstrong Rubber Co. v. Urquidez,
570 S.W.2d 374, 376 (Tex. 1978). Negligence requires a showing of proximate cause,
while producing cause is the standard in strict liability. See Hyundai Motor Co. v.
Rodriguez, 995 S.W.2d 661, 667 (Tex. 1999); Ford Motor Co, v. Cammack, 999 8.W.2d
1, 7 (Tex. App.—Houston [14" Dist] 1998, pet. denied). Common to both producing
cause and proximate cause is cause in fact. /d at 7. Cause in fact requires proof that an
act or omission was a substantial factor in bringing about an injury that would not
otherwise have occurred. See Prudential Ins. Co. of Am. v. Jefferson Assoc., Ltd., 896
$.W.2d 156, 161 (Tex. 1995). While it is the Plaintiffs’ burden to provide the requisite
evidence, the experts for the Defendants should be precluded from providing evidence of
mere theories and conjecture where there is no showing of a reasonable degree of
engineering probability. Absent such a demonstration, the theory is necessarily subjective
and prone to conjecture. Ultimately, it is confusing, misleading and inappropriate, In his
report, Hall uses terms like “firmly believe, quite possible and likely” as the predicate for
his alleged expert opinions. Neither is sufficient.
VI.
PRAYER
10
WHEREFORE, PREMISES CONSIDERED, Plaintiffs and Intervenor
respectfully request that the Court grant their Motion to Exclude and/or Limit the
Opinions and Testimony of Walter Hall. Plaintiffs and Intervenor further request any
additional relief to which they are entitled.
Respectfully submitted,
Hortman Harlow Martindale Bassi Robinson
& McDaniel
P.O. Drawer 1409
Laurel, MS 39441-1409
Ph; (601) 649-8611
Fax: (601) 649-6062
B rS8Seo
CHRISTOPHER B. MCD, EL
MS State Bar No. 10711
EUGENE M, HARLOW
MS State Bar No. 3086
APRIL C. LADNER
MS State Bar No. 101479
&
KETTERMAN ROWLAND &
WESTLUND
16500 San Pedro, Suite 302
San Antonio, Texas 78232
(210) 490-7402; Telephone
(210) 490-8372; Fagsimile
By:
DOUGLAS D. K TTERMAN
State Bar No. 11362950
BRIAN C. STEWARD
State Bar No. 19201100
ATTORNEYS FOR PLAINTIFFS
11
By: MIS Sie
E, WAYNE SHUFFIELD
State Bar No, 18316390
Adami, Shuffield, Scheihing & Burns
9311 San Pedro, Suite 900
San Antonio, Texas 78216
(210) 344-0500
(210) 344-7228 Facsimile
ATTORNEYS FOR INTERVENOR
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the above and foregoing has been
served via electronic mail, on this the 30" day of June 2009 to the following:
Mr. J. Chad Parker Mr. Andrew McKinney, Esq.
The Parker Firm, P.C. McKinney & Cooper, L.L.P.
3808 Old Jacksonville Road Three Riverway, Suite 500
Tyler, Texas 75701 Houston, Texas 77056
ATTORNEY FOR DEFENDANT, SONERRA RESOURCES CORPORATION
John C. Kilpatrick
Law Offices of Kilpatrick & White
2777 Allen Parkway, Suite 622
Houston, Texas 77019
ATTORNEY FOR DEEFNDANT, KIRKHILL MANUFACTURING COMPANY
aka KMC RUBBER PRODUCTS
Ronald Max Raydon
Law Offices of Ronald Max Raydon
1718 Fry Road, Suite 450
Houston, Texas 77084
ATTORNEY FOR DEFENDANT, ADVANCED POLYMER TECHNOLOGIES
Joe Grady Tuck Derek R. Van Gilder
Law Office of Joe Grady Tuck Law Office of Derek R. Van Gilder
1404 Pine Street 916 Main Street
Bastrop, Texas 78602 Bastrop, Texas 78602
ATTORNEYS FOR DEFENDANT, HARBOR PRODUCTS
Mr. Jeffrey S. Davis
Mr. T, Mike Wall
Gardere Wynne Sewell LLP
1000 Louisiana, Suite 3400
12
Houston, Texas 77002
ATTORNEY FOR DEFENDANT, SMITH INTERNATIONAL, INC.
Mr. E. Wayne Shuffield
Adami, Shuffield, Scheihing & Burns
9311 San Pedro, Suite 900
San Antonio, Texas 78216
ATTORNEY FOR INTERVENOR, NEW HAMPSHIRE INS. CO.
Mtr. Chris Evans
Mr. Michael N. Mire
Adams and Reese
One Houston Center
1221 McKinney, Suite 4400
Houston, Texas 77010
ATTORNEY FOR HELMERICH & PAYNE INTERNATIONAL DRILLING CO.
Emest P. Geiger, Jr.
Gieger, Laborde & Laperouse, L.L.C.
1177 West Loop South, Suite 750
Houston, Texas 77027
Forrest J, Wynn
Beirne, Maynard & Parsons, L.L.P.
1300 Post Oak Blvd., 25"" Floor
Houston, Texas 77056
BRIAN C. STEWARD
13
Preview
Filed 09J une 30 P4:45 LorenJ ackson -District Clerk Harris Coun! ED101) 015446146 By: Furshilla Brantley CAUSE NO. 2007-75537 BILLY JACK McDANIEL, A?7LETA IN THE DISTRICT COURT McDANIEL INDIVIDUALLY AND AS NEXT FRIEND OF CARNEY McDANIEL, A MINOR VS. 615? JUDICIAL DISTRICT SMITH INTERNATIONAL, INC., SONERRA RESOURCES CORPORATION, HARBOR PRODUCTS, INC., KIRKHILL MANUFACTURING COMPANY A/K/A KMC RUBBER PRODUCTS, ADVANCED POLYMER TECHNOLOGIES, LLC HARRIS COUNTY, TEXAS BRIEF IN SUPPORT OF MOTION TO EXCLUDE AND/OR LIMIT THE OPINIONS AND TESTIMONYOF WALTER HALL NOW COME Plaintiffs and Intervenor and submit this Brief in Support of the contemporaneously filed Motion to Exclude and/or Limit the Opinions and Testimony of Walter Hall. The Court should exclude the opinions, testimony and/or limit the trial testimony of Walter Hall he does not possess the requisite knowledge, training or expertise to express opinions regarding the manufacturing of the stripper element involved in the event made the basis of this litigation. L BACKGROUND A The Failure This product liability action arises from an oilfield explosion on March 3, 2006 near Nacogdoches, Texas. At that time, a component part of a Smith RDH 2500 failed allowing hydrocarbons to escape to the rig floor where it ignited and caused catastrophic injuries to BILLY JACK MCDANIEL. The component part in question is further identified as the Smith International, Inc. natural rubber stripper element which is 2 designed and manufactured to act as a seal around the drill pipe during drilling and associated operations. The Smith International, Inc. natural rubber element contains a metal insert to which the natural rubber is molded. The bond between the metal insert and the rubber utilizing the Chemlock system is a contested issue between the parties in this litigation. Harbor Products, Inc. prepared the metal inset, applied primer and adhesive and molded the metal insert into natural rubber to create the subject stripper rubber. Walter Hall has been at various times an employee and/or consultant for Harbor Products, Inc, Walter Hall has been designated by Harbor Products, Inc. as a retained expert witness on the manufacturing processes of that entity. His opinions, testimony and expected trial testimony should be excluded or limited to those areas where he has some demonstrable expertise. B Walter Hall’s Involvement and Opinions/Observations Harbor Products, Inc. designated Walter Hall of Walter Hall & Associates (hereinafter “Hall”) as an expert witness with knowledge and experience regarding the manufacturing processes utilized in the crafting of the subject stripper element. Hall prepared his unsigned opinion letter on or about March 24, 2009. That letter and his Confidential Resume are attached hereto as Exhibit “A”. Harbor Products, Inc. provided that report on March 27, 2009 in the Defendant Harbor Products, Inc,’s Designation of Expert Witnesses. The parties deposed Walter Hall on April 28, 2009 in an effort to determine the opinions and bases of those opinions. While the Plaintiffs and the Intervenor do not adopt or concur with the validity of any of the observations, hypotheses or theories provided by Walter Hall, there are a few theories which should be denied admissibility pursuant to Daubert v. Merrill-Dow Pharmaceuticals, Inc., 509 U.S. 579 3 (1993), its progeny and the Texas Rules of Civil Evidence. Walter Hall attempts to express opinions on the following: quality of the bond (if any) before the failure; the presence of some evidence of the degree of bond after the failure and explosion; and misalignment. The Court should exclude these theories for multiple reasons. Hall was not present during the molding of the subject stripper rubber so he is not a fact witness. Hall is also constrained by the fact that he does not have the demonstrable expertise in the mixing and molding of stripper rubbers to testify to a reasonable degree of engineering probability, 'He cannot deduce that fact from the diagnostic tools which have been utilized to assess and evaluate the success or failure of the bonding system because he was not provided that information by Harbor Products, Inc. or Smith International, Inc. even if he was provided with that information, there is no indication that he has the requisite knowledge and training to interpret that data. Finally, the Hall theory of misalignment is based upon his laymen’s interpretation of certain photographs without any drilling or operations experience. Further, these photographs were taken after the event without any effort to indicate that the photographs accurately depicted the alignment of the drill string prior to the explosion. I. RULES GOVERNING THE ADMISSIBILITY OF EXPERT TESTIMONY The Texas Rules of Evidence assign to the trial judge the task of ensuring that an expert’s reasoning and methodology is scientifically reliable and relevant to the facts in issue. Daubert v. Merrill-Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993). The ‘wr. Hall has audited several classes at the University of Southern California but holds not degree in engineering. 4 Supreme Court is clear that judges must undertake this gate-keeping obligation with diligence, even though it “will sometimes ask judges to make subtle and sophisticated determinations about scientific methodology and its relation to the conclusions an expert witness secks to offer.” General Electric Co. v. Joiner, 522 U.S. 136, 147 (1997) (Breyer, J., concurring), The Court’s gate keeping function applies to al/ expert testimony, whether based on scientific, technical or other specialized knowledge. See Kumho Tire Co, Lid. y, Carmichael, 526 U.S. 137, 142 (1999). As the Supreme Court explained: [Whether the specific expert testimony focuses upon specialized observations, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory in a particular case, the expert's testimony often will rest "upon an experience confessedly foreign in kind to [the jury's] own." The trial judge's effort to assure that the specialized testimony is reliable and relevant can help the jury evaluate that foreign experience, whether the testimony reflects scientific, technical, or other specialized knowledge. Kumho Tire, 526 U.S. at 149 (quoting Hand, L., Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L, Rev. 40, 54 (1901). The party offering the expert testimony bears the burden to demonstrate that the testimony is reliable by a preponderance of the evidence. Moore v. Ashland Chem., Inc., 151 F.3d 269, 276 (5"" Cir. 1998), cert. denied, 526 U.S. 1064 (1999); see also Dart v. Kitchens Bros. Mfg. Co., 253 Fed. Appx. 395, 398 (5"" Cir, 2007) (citing Moore). In the instant case, there is no demonstration that the testimony by Walter Hall is reliable with respect to the molding, the presence or absence of evidence regarding the rubber to metal bond on the subject stripper rubber or misalignment is reliable. Texas Rules of Evidence 702, 703, 704 and 705(a) and(c) govern the admissibility of expert opinion testimony and provide as follows: RULE 702. TESTIMONY BY EXPERTS 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. RULE 703. BASES OF OPINION TESTIMONY The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. RULE 705(c). DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION (c) Admissibility of Opinion. If the court determines that the underlying facts or data do not provide a sufficient basis for the expert’s opinion under Rule 702 or 703, the opinion is inadmissible. A An Expert’s Opinions Must Be Relevant and Reliable or They Must Be Excluded. In order to be admissible, expert testimony must be “not only relevant, but reliable.” Daubert, 509 U.S. at 597; see also Kumho Tire, 526 U.S, at 141; Joiner, 522 U.S. at 142. More specifically, in Daubert, the Court held an expert’s opinion must be grounded in scientific method, must constitute more than a mere subjective belief, and must be relevant to and fit the facts of the case in question. Id., 509 U.S. at 590-591. Courts since Daubert have subjected expert testimony to strict scrutiny, making a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue. See e.g., Moore v. Ashland Chem., Inc., 151 F.3d 269 (5"" Cir, 1998), cert. denied, 526 U.S. 1064 (1999). The Daubert Court specifically stated that an expert’s opinion must be based on “methods and procedures of science” rather than “subjective belief or unsupported speculation.” Daubert, 509 U.S. at 590, If the data does not have sufficient probative force and reliability such that a reasonable expert could rely upon it, the opinions must be excluded. Jn re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 748 3" Cir, 1994) (quoting In re Agent Orange Prod. Liab. Litig, 611 F.Supp. 1223, 1245 (E.D.N.Y. 1985)). Furthermore, an expert’s bare opinion will not suffice. The Court must examine the data and testing upon which the opinion is allegedly based to determine its reliability. Guile v. US. 422 F.3d 221, 227 (5" Cir. 2005); see also Smelser v. NorfolkS. Ry Co., 105 F.3d 299, 303 (6" Cir. 1997). Often, the Daubert inquiry is performed. with reference to the traditional Daubert “factors” including: (1) Whether a “theory or technique ... can be (and has been) tested”; (2) whether it “has been subjected to peer review and publication”, (3) whether, in 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 a “relevant scientific community.” Kumho Tire, 526 U.S. at 149-50 (citing Daubert, 509 U.S. at 592-94). However, with some types of specialized testimony, a strict application of these factors cannot be accomplished and the Court must look to expert’s application of methodology and logic to determine whether the conclusions can follow from the facts relied upon. 7 See e.g., Black v. Food Lion, Inc., 171 F.3d 308, 311 ou Cir. 1999). In Kumho Tire, the Supreme Court emphasized that the test of reliability is “flexible” and that Daubert's list of specific factors does not necessarily nor exclusively apply to every expert in every case. Kumho Tire, 526 US. at 150. Under the applicable scrutiny, Walter Hall’s hypotheses regarding the bonding on the subject stripper element, the results of any diagnostic testing as well as misalignment of the drill string are inadmissible without a demonstration that Hall is qualified to render such an opinion. B. The Expert’s Opinions Must Be Reliably Based On, And Tied To, The Facts Of The Case — No “Analytical Gaps” Even if the expert is qualified to render an opinion regarding a particular subject, the opinion must nevertheless be based on a reliable foundation, including accurate and relevant facts, in order to be admissible. While Daubert’s focus is primarily on principles and methodology, “conclusions and methodology are not entirely distinct from one another.” Joiner, 522 U.S. at 146; Kumho Tire, 526 U.S. at 157 (district courts must “sorutinize” whether the principles and methods used by the expert have properly been applied to the facts of the case). The district court must examine the expert’s conclusions in order to determine whether they could reliably follow from the facts known to the expert and the methodology used.” Heller v. Shaw Indus., Inc., 167 F.3d 146, 153 3B" Cir. 1999), If the court concludes that there is simply too great an “analytical gap” between the facts and the expert’s conclusion from those facts, the opinion should be excluded. Joiner, 522 U.S. at 146; see also Moore, 151 F.3d at 276 (“a district court, while acting as a gatekeeper for expert evidence, must evaluate whether there is an adequate ‘fit? between the data and the opinion proffered”). Absent some degree of scientific accountability, the hypotheses are misleading, confusing and inadmissible. Unfortunately, Hall has not made any effort to conform his testimony to the rigorous requirements of the Court and the testimony should be excluded and/or limited accordingly. Hil. A. There is No Indication of Reliability Walter Hall’s opinions regarding the quality of the pre-explosion bond, the appropriateness of the manufacturing process are problematic because there is no indication that the witness was present during the actual manufacture of the product. Likewise, his expected testimony about the production of an exemplar stripper rubber in 2009 is potentially erroneous because there is no indication that he was aware of what the process was like in 2005 when the subject stripper rubber was crafted. His opinions and expected testimony are based upon assumptions and speculation, Because Defendant cannot establish the reliability of the witness’s methodology or theory, his opinions on this topic are unreliable, and the Court should exclude them at trial. The Court may exclude expert testimony when it finds that an expert has extrapolated data, and there is "too great an analylical gap between the data and the opinion proffered." Burleson v. Tex. Dept. of Crim. Justice, 393 F.3d 577, 587 os" Cir. 2004) (quoting Moore v, Ashland Chem., Inc., 151 F.3d 269, 279 (5'" Cir, 1998)), In the instant case, Frishmuth’s misalignment theory necessarily calls for certain theoretical leaps which should render the proffered concept inadmissible due to its inherent subjectivity and unreliability. Iv. MERE POSSIBILITIES ARE INADMISSIBLE It is axiomatic that the Plaintiffs bear the burden of proof on all claims. Without the appropriate scientific evidence and support, the Plaintiffs’ expert testimony will not survive the scrutiny of the Court. It should also be appropriate to limit the hypothetical, unsupported testimony of defendant’s experts where the experts speak to a myriad of possibilities without any reference to scientific probabilities. See American Tobacco Co., Inc. y. Grinnell, 951 S.W.2d 420, 434 (Tex. 1997); Armstrong Rubber Co. v. Urquidez, 570 S.W.2d 374, 376 (Tex. 1978). Negligence requires a showing of proximate cause, while producing cause is the standard in strict liability. See Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 667 (Tex. 1999); Ford Motor Co, v. Cammack, 999 8.W.2d 1, 7 (Tex. App.—Houston [14" Dist] 1998, pet. denied). Common to both producing cause and proximate cause is cause in fact. /d at 7. Cause in fact requires proof that an act or omission was a substantial factor in bringing about an injury that would not otherwise have occurred. See Prudential Ins. Co. of Am. v. Jefferson Assoc., Ltd., 896 $.W.2d 156, 161 (Tex. 1995). While it is the Plaintiffs’ burden to provide the requisite evidence, the experts for the Defendants should be precluded from providing evidence of mere theories and conjecture where there is no showing of a reasonable degree of engineering probability. Absent such a demonstration, the theory is necessarily subjective and prone to conjecture. Ultimately, it is confusing, misleading and inappropriate, In his report, Hall uses terms like “firmly believe, quite possible and likely” as the predicate for his alleged expert opinions. Neither is sufficient. VI. PRAYER 10 WHEREFORE, PREMISES CONSIDERED, Plaintiffs and Intervenor respectfully request that the Court grant their Motion to Exclude and/or Limit the Opinions and Testimony of Walter Hall. Plaintiffs and Intervenor further request any additional relief to which they are entitled. Respectfully submitted, Hortman Harlow Martindale Bassi Robinson & McDaniel P.O. Drawer 1409 Laurel, MS 39441-1409 Ph; (601) 649-8611 Fax: (601) 649-6062 B rS8Seo CHRISTOPHER B. MCD, EL MS State Bar No. 10711 EUGENE M, HARLOW MS State Bar No. 3086 APRIL C. LADNER MS State Bar No. 101479 & KETTERMAN ROWLAND & WESTLUND 16500 San Pedro, Suite 302 San Antonio, Texas 78232 (210) 490-7402; Telephone (210) 490-8372; Fagsimile By: DOUGLAS D. K TTERMAN State Bar No. 11362950 BRIAN C. STEWARD State Bar No. 19201100 ATTORNEYS FOR PLAINTIFFS 11 By: MIS Sie E, WAYNE SHUFFIELD State Bar No, 18316390 Adami, Shuffield, Scheihing & Burns 9311 San Pedro, Suite 900 San Antonio, Texas 78216 (210) 344-0500 (210) 344-7228 Facsimile ATTORNEYS FOR INTERVENOR CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the above and foregoing has been served via electronic mail, on this the 30" day of June 2009 to the following: Mr. J. Chad Parker Mr. Andrew McKinney, Esq. The Parker Firm, P.C. McKinney & Cooper, L.L.P. 3808 Old Jacksonville Road Three Riverway, Suite 500 Tyler, Texas 75701 Houston, Texas 77056 ATTORNEY FOR DEFENDANT, SONERRA RESOURCES CORPORATION John C. Kilpatrick Law Offices of Kilpatrick & White 2777 Allen Parkway, Suite 622 Houston, Texas 77019 ATTORNEY FOR DEEFNDANT, KIRKHILL MANUFACTURING COMPANY aka KMC RUBBER PRODUCTS Ronald Max Raydon Law Offices of Ronald Max Raydon 1718 Fry Road, Suite 450 Houston, Texas 77084 ATTORNEY FOR DEFENDANT, ADVANCED POLYMER TECHNOLOGIES Joe Grady Tuck Derek R. Van Gilder Law Office of Joe Grady Tuck Law Office of Derek R. Van Gilder 1404 Pine Street 916 Main Street Bastrop, Texas 78602 Bastrop, Texas 78602 ATTORNEYS FOR DEFENDANT, HARBOR PRODUCTS Mr. Jeffrey S. Davis Mr. T, Mike Wall Gardere Wynne Sewell LLP 1000 Louisiana, Suite 3400 12 Houston, Texas 77002 ATTORNEY FOR DEFENDANT, SMITH INTERNATIONAL, INC. Mr. E. Wayne Shuffield Adami, Shuffield, Scheihing & Burns 9311 San Pedro, Suite 900 San Antonio, Texas 78216 ATTORNEY FOR INTERVENOR, NEW HAMPSHIRE INS. CO. Mtr. Chris Evans Mr. Michael N. Mire Adams and Reese One Houston Center 1221 McKinney, Suite 4400 Houston, Texas 77010 ATTORNEY FOR HELMERICH & PAYNE INTERNATIONAL DRILLING CO. Emest P. Geiger, Jr. Gieger, Laborde & Laperouse, L.L.C. 1177 West Loop South, Suite 750 Houston, Texas 77027 Forrest J, Wynn Beirne, Maynard & Parsons, L.L.P. 1300 Post Oak Blvd., 25"" Floor Houston, Texas 77056 BRIAN C. STEWARD 13