Preview
Filed 09J une 29 P6:42
LorenJ ackson - District Clerk)
Harris Coun!
ED101) 015445089
By: Furshilla Brantley
CAUSE NO. 2007-75537
BILLY JACK McDANIEL, A’LETA IN THE DISTRICT COURT
MeDANIEL INDIVIDUALLY AND AS
NEXT FRIEND OF CARNEY
McDANIEL, A MINOR
VS. 615" JUDICIAL DISTRICT
SMITH INTERNATIONAL, INC., SONERRA
RESOURCES CORPORATION, HARBOR
PRODUCTS, INC., KIRKHTLL 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 RONALD FRISHMUTH, PH.D
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
Ronald Frishmuth, Ph.D. The Court should limit the scope of the expected trial
testimony and/or limit the trial testimony of Ronald Frishmuth, Ph.D., because his
hypotheses/theories regarding misalignment as a potential cause of the failure of the
stripper rubber on March 3, 2006 are beyond the scope of his expertise, unsupported by
any reference or scientific literature reviewed by this consultant and inherently unreliable
and objectionable.
I
BACKGROUND
A. The Occurrence
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 RCD 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
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 Chemlok system is a contested issue between the parties in this
litigation.
B Frishmuth’s Involvement and Opinions/Observations
Smith International, Inc. designated Ronald Frishmuth, Ph.D. (hereinafter
“Frishmuth”) as an expert witness to defend certain claims regarding the Finite Element
Analysis! created by Steve Roensch as part of the Plaintiffs’ multidisciplinary evaluation
of the stripper clement’s design. Frishmuth was first contacted regarding his potential
involvement in this matter to counter the design defect analysis provided by the
Plaintiffs’ retained expert witness Randall King, Ph.D. of Bison Engineering, Inc.
Initially, Frishmuth attempted to model a three dimensional, non-linear Ogden three
parameter but those efforts failed. Frishmuth then attempted to model a two dimensional,
non-linear Ogden one parameter but he was unable to achieve the results comparable to
the drilling rig environment on March 3, 2006 immediately prior to the failure of the
subject stripper clement and the explosion, Frishmuth then attempted to model a two
dimensional, non-linear Ogden one parameter but he then decided to add an off-set pipe
‘ Finite Element Analysis is computer modeling designed to simulate a piece of equipment or
structure. Once crafted, the FEA can be used to predict the behavior of the sections of the piece
of equipment or structure in the expected environment of use. This modeling also allows
designers to evaluate design proactively and retrospectively where there are failures. In this case,
numerous FEAs have been created by Smith international Inc. after the subject incident. The
Plaintiffs have provided an FEA in the Bison Engineering report and supplement regarding the
design of the incident stripper element.
to the modeling. Again, Frishmuth was unable to complete this modeling. To date,
Frishmuth has not produced any FEA which achieves pressures approximating the
accepted environment of use on March 3, 2006, From his admittedly unsuccessful
computer modeling, Frishmuth offers a number of theories regarding the misalignment of
the drill string. See Exhibit “A” which is the Expert of Dr. Ronald E, Frishmuth, P.E.
dated April 3, 2009 and Exhibit “B” which is the Addendum to said Report dated May 8,
2009. The Plaintiffs deposed Frishmuth on May 12, 2009 in an effort to determine the
opinions and bases of those opinions. While the Plaintiffs do not adopt or concur with
any of the hypothesis/theories provided by Frishmuth, there was one specific
hypothesis/theory which should be denied admissibility pursuant to Daubert v. Merrill-
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), its progeny and the Texas Rules of
Civil Evidence. Frishmuth wrote and testified that the drill pipe was off center and that
was a cause of the failure to a reasonable degree of engineering probability.
The Court should exclude this opinion for multiple reasons. First, Frishmuth is
not qualified to render such an opinion. Second, his computer modeling docs not support
this hypothetical as the pressures identified and accepted by the parties herein were never
even approximated in the modeling.. Third, Frishmuth has clearly relied upon others to
advocate this hypothetical without any attempt to confirm and/or challenge the necessary
assumptions for the theory to be valid. In fact Frishmuth admitted that he had not read
any depositions nor discussed this theory with the operations expert at the time of his
report or prior to his testimony in this matter. Absent some demonstration of reliability,
objectivity or personal knowledge, the Frismuth references to misalignment are erroneous
inadmissible and a potential source of confusion for the fact finder.
IL.
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 y. Merrill-Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993). The
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 seeks to offer.” General Electric Co. v. Joiner, 522 U.S. 136, 147 (1997) (Breyer,
J, concurring). The Court’s gate keeping function applies to all expert testimony,
whether based on scientific, technical or other specialized knowledge. See Kumho Tire
Co, Lid. v. Carmichael, 526 U.S. 137, 142 (1999), As the Supreme Court explained:
[W]hether 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 on Cir. 1998), cert. denied, 526 U.S. 1064 (1999); see also Dart v.
Kitchens Bros. Mfg. Co., 253 Fed. Appx. 395, 398 (st Cir. 2007) (citing Moore), In the
instant case, there is no demonstration that the testimony by Frishmuth is reliable with
respect to misalignment (not qualified to render such opinions) or even Finite Element
Analysis (unable to reereate the environment of use in his computer models), Frishmuth
testified to this specific issue as follows”:
“I let the experts in rig operations worry about how such a thing (misalignment)
might happen”
Then it would follow that those experts qualified by experience, knowledge and training
should be permitted to testify on this specific, complicated issue and Frishmuth’s
testimony should be limited necessarily to those topics with which, he has demonstrated
some degree of familiarity.
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
? The deposition of Ronald Frishmuth, Ph.D. is voluminous. The specific excerpts of the
depositions testimony will be identified and provided at or prior to the expected pretrial hearings
on the expert challenges.
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
USS. 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 ¢.g., Moore v. Ashland Chem., Inc., 151 F.3d 269 os
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 RR. Yard PCB Litigation, 35 ¥.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. U.S. 422 F.3d 221, 227 o" 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.
See e.g., Black v. Food Lion, Inc., 171 F.3d 308, 311 cst 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 U.S. at 150.
In the subject case, there is barely an attempt to comply with the requirements of
expert testimony on the misalignment theory. From his deposition, it appears that
Frishmuth relied upon the information provided to him in a telephone call and little else.
There was no scientific investigation of the misalignment theory nor any effort to
reconstruct the theory to determine the viability of the theory. Further, the computer
modeling, which Frishmuth has at least demonstrated some degree of ability to complete,
was unable to provide the predictive data that Smith International, Inc. sought. When
questioned specifically, the inadmissibility of the Frishmuth theory is readily apparent:
Q. Your analysis in this case and testing to support your analysis was not done to
advance a theory as to what took place on March the 3", 2006, when this stripper
rubber failed, was it?
A. That’s correct.
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
“scrutinize” 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 ob"
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 expett evidence, must evaluate whether there is
an adequate ‘fit? between the data and the opinion proffered”). As indicated above,
Frishmuth’s made no effort to confirm or validate his theory regarding misalignment
When he attempted to validate his theory with computer modeling, he failed to achieve or
3 Frishmuth has testified that he has modeled or attempted to madei an offset pipe passing
through a stripper rubber but that modeling does not incorporate pressures approaching the 1195
psi.
recreate the accepted environment of use for the subject stripper rubber?, Frishmuth’s
opinions fail under a variety of these requirements. Absent some degree of scientific
accountability, the hypothesis is misleading, confusing and inadmissible.
Il.
No Demonstration of Reliability
Frishmuth’s opinions regarding misalignment are patently unreliable as there was
no attempt to validate the theory through knowledgeable investigation of the evidence or
computer modeling, There is no evidence to indicate that this theory is based upon
anything more than conjecture and hypothesis. There has not been a reliable testing
method or exemplar test which sought to recreate the events described by this witness in
his theory. Further, there is no evidence that the Frishmuth’s theory has been either
tested, subjected to peer review or publication, or that it is generally accepted by the
“relevant scientific” community. See Kumho Tire, 526 U.S. at 149-50 (citing Daubert,
509 U.S. at 592-94), 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 analytical gap between the data and the
opinion proffered." Burleson v. Tex. Dept. of Crim, Justice, 393 F.3d $77, 587 6" 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
‘ The stripper rubber failed as the drill string was being “tripped” under 1195 psi according to one
measuring device. Frishmuth testified that his FEA achieved 500 psi and 150 psi. He readily
admitted that he was unable to achieve anything beyond 500 psi.
leaps which should render the proffered concept inadmissible due to its inherent
subjectivity and unreliability.
VV.
OPINIONS THAT SPEAK ONLY
TO POSSIBILITY AND NOT PROBABULTY 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, v. Grinnell, 951 8.W.2d 420, 434 (Tex. 1997); Armstrong Rubber Co. y. 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 §,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., Lid., 896
S.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.
Frishmuth’s hypothetical misalignment without any supporting computer modeling
approximating the accepted environment of use should be denied admissibility.
V
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs and Intervenor
respectfully request that the Court grant their Motion to Exclude and/or Limit the
Opinions and Testimony of Ronald Frishmuth, PH.D, Plaintiffs further request any
additional relief to which they are entitled.
Respectfully submitted,
Hortman Harlow Bassi Robinson
& McDaniel
P.O. Drawer 1409
Laurel, MS 39441-1409
Ph; (601) 649-8611
Fax: (601) 649-6062
By: WTbg
CHRISTOPHER B. MCDANIT
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; Telephon
(210) 490- 2; Facsimi!
B
DOUGLAS D. KETTERMAN
State Bar No, 11362950
BRIAN C. STEWARD
State Bar No. 19201100
ATTORNEYS FOR PLAINTIFFS
&
firs
By:
EWA 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
hereby certify that a true and correct copy of the above and foregoing has been
served via facsimile, on this the 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
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. C
BRIAN C. STE RD
CAUSE NO. 2007-75537
BILLY JACK McDANIEL, A’LETA IN THE DISTRICT COURT
McDANIEL INDIVIDUALLY AND AS
NEXT FRIEND OF CARNEY
McDANIEL, A MINOR
Vv. 615" JUDICIAL DISTRICT
SMITH INTERNATIONAL, INC., AND
SONERRA RESOURCES CORPORATION HARRIS COUNTY, TEXAS
EXPERT REPORT OF DR. RONALD E, FRISHIMUTH, P.E.
1.0.0 INTRODUCTION
1.1.0 I, Ronald E. Frishmuth, hereby submit this report in reference to the above-
captioned action. Attached to this report are my curriculum vitae (Exhibit 1) and a list of cases
that I have testified in court or in a deposition as an expert (Exhibit 2).
1.2.0 Attached as Exhibit 3 is a list of materials and documents that I have relied upon
to form my opinions and conclusions presented herein.
1.3.0 Tam currently the President and founder of Frishmuth Consulting Services, LLC,
The company was incorporated in Texas on January 1, 2005, Prior to that time, I was operating
as a sole proprietor as R. E. Frishmuth, P.E., Consulting Engineer. This former operation was
begun in June of 1996.
14.0 Ihave been performing stress analyses, fatigue and fracture evaluations, and finite
element analysis (FEA) on mechanical systems for over 35 years. I am familiar with (FEA) and
the ANSYS software program. I currently use the ANSYS FEA program in Frishmuth
Consulting Services, LLC.
15.0 I am being compensated for my consulting time on this case at a rate of $250.00
per hour.
1
EXHIBIT
3
3 A
2.0.0 INCIDENT DISCRIPTION
2.1.0 I have reviewed the documents listed in Exhibit 3 and the documents contained in
the attached list of references and have extracted the following summary information regarding
the incident under investigation and reported herein.
2.2.0 On March 3, 2006, a stripper rubber on an RCD (rotating control device) became
detached from its support frame and extruded through the annulus space between the drill pipe
and the RCD support frame and rose above the RCD housing. This released high pressure gas
from the well because the well seal was broken as a result of the failure. The released gas caught
fire severely injuring Mr. Billy Jack McDaniel who was working on the dagger board above the
rig floor while racking pipe. aay.
2.3.0 The rig under investigation was being operated by a Helmerich and Payne (H &
P) drilling crew. The rig was identified as Rig #226. The well site was Two Moons #2 being
drilled for Sonerra Resources and located in Nacogdoches County, Texas (1-4).
2.4.0 The rig was making use of an underbalanced drilling operation at the time of the
incident. This means that there was gas pressure in the well being sealed by the stripper rubber in
the RCD at the time of the incident. The contained pressure was reported to be between 1100 and
1200 pounds per square inch (1-4).
2.5.0 The incident occurred while pipe was being tripped out of the well after a fishing
operation had been concluded. There was an estimated 9,500 feet of the drill string remaining in
the well when the failure of the stripper rubber occurred (4).
‘ Numbers in parenthesis are reference numbers, See reference list at end of this report.
2
3.0.0 DISCUSSION OF PLAINTIFF EXPERT’S REPORTS
3.1.0 Mr. Joseph Kinder (1)
3.41 Mr. Joseph Kinder (1) claims in paragraph 3 on his page 4 that the bond between
the rubber and the steel insert was defective in this product. In paragraph 2 on page 6 of his
report, he claims that it is his “belief” the stripper rubber #6221 found in the incident product
contained “a gross manufacturing defect”. Mr. Kinder provides precious little in the way of
evidence and foundation for this argument that there was a defective bond in the incident
product. At best his argument is an unsupported and incomplete observation,
3.1.2 Mr. Joseph Kinder (1) describes the wear pattern found in the incident stripper
tubber and compares this to an exemplar rubber from the same well site and one previously used
in this well. Mr. Kinder points out the obvious difference in wear pattern between these two
objects and claims “the bond failure allowed the inadequately supported rubber to be forced into
the path of the tool joint, thereby suffering excess and unreasonable damage”. Mr. Kinder does
not explain nor does he provide any calculations about how this process is even possible
considering that the contained pressure is also pushing the rubber against the pipe from the
opposite side. He also does not explain how the “inadequately supported rubber” could wear as
hown in his Figure 3 near the bottom of the rubber where there is clearly more wear on the left
side in his photo than on the right side. For the convenience of the reader, his Figure 3 has been
included here as Exhibit 4. The bottom area referenced is shown in this exhibit as is the area
referred to by Mr. Kinder.
3.1.3 If, in fact, Mr. Kinder were correct that the rubber had been unbonded on the right
side of his Figure 3 (Exhibit 4) and projected into the path of the pipe as he claims, the rubber
would have shown a smooth rubber surface from the pipe rubbing against the rubber. Instead, as
shown in his Figure 3 (Exhibit 4), the rubber surface appears chewed up and heavily damaged.
By contrast, the left side of his Figure 3 (Exhibit 4) shows a smoother rubbed surface indicating
that the pipe was rubbing against the left side of the rubber in this figure. It is also noted that the
bottom cornet of the rubber where the pipe was running through is much more heavily worn on
the left bottom than the right bottom.
3.1.4 Mr. Kinder states in his paragraph 5 on page 4 that “The form of the memory set
is clear evidence that the rubber to metal bond was not intact in the area of heavy damage”. He
provides no evidence regarding his “memory set” concept. He provides no reference articles in
the technical literature supporting this concept. He provides no distinction between his “memory
set” concept and the obvious wear of the rubber. In short, there is no foundation constructed by
Mr. Kinder for this argument.
3.2.0 Mr. Richard Shepherd (2)
3.2.1 Figure 5 of Mr. Shepherd’s report, included here as Exhibit 5, shows clear
damage from the drill pipe rubbing against the edge of the stripper rubber steel insert. Mr.
Shepherd agrees with this assessment in his caption for this figure.
3.2.2 Figures 8 and 9 of Mr. Shepherd’s report, included here as Exhibit 6, show the
region of steel insert to rubber bond claimed by Mr. Shepherd to show evidence of an unbonded
adhesive joint betwcen the two parts based on examination performed by McSwain Engineering,
Inc, and reported in Section 4.3 of Mr. Shepherd’s report. At no point in Mr. Shepherd's
discussion did he raise the possibility of another explanation of the observed separation region
shown in Exhibit 6. For example, another reasonable explanation for this observation is a slip-
stick type bond separation between steel and rubber. Exhibit 7 (5) shows an example of this type
of bond separation in the middle photograph on this page from the MERL website. MERL is
well known to Mr. Shepherd since, according to his Curriculum Vitae, he was the Operations
Director of MERL from 1999 to 2007. Therefore, he is certainly aware of this possible
explanation of the appearance of the surfaces in his Figures 8 and 9 and yet did not investigate
nor discuss this mechanism for production of the observed surface.
3.2.3 In Mr. Shepherd’s report, Figures 19 and 20 (included here as Exhibit 8), he
shows how he believes the lack of a bond on one side of the rubber to insert interface would
cause the rubber to bulge out thus pushing the pipe to the side and causing the damage to the
insert ring shown in his Figure 5 (Exhibit 5 herein). In these Figures, Mr. Shepherd illustrates the
pipe as being at an angle to a vertical line through the center of the stripper rubber. Using red
outlines, he shows contact of the deflected rubber with the pipe near the bottom and part way
through the stripper at a location about opposite the lower end of the steel insert. It is noted in
these figures that the opposite side of the pipe is in intimate contact with the rubber along nearly
the entire inside length of the stripper from the bottom of the top taper angle to just near the
bottom of the stripper, Thus, the two contact points shown in Mr. Shepherd’s red outline in
Figures 19 and 20 are pushing against a pipe that is fully supported along the length as shown on
the left of these figures between the two contact points shown on the right in the figures. A
simple engincering diagram of this loading arrangement on the pipe as shown in Exhibit 9 shows
that it would be impossible for a pipe initially running through the center of the stripper rubber to
be pushed off at an angle as portrayed in Mr. Shepherd’s drawings in Figures 19 and 20 if the
same pressure is applied ail around the outside rubber surface.
3.2.5 Based on Mr. Shepherd’s drawings in Figures 19 and 20 (Exhibit 8), it is easy to
sec how some high pressure gas could escape from the well bore along the right side of pipe in
these figures. There is little contact between the right side rubber and the pipe and as every joint
passes through the stripper, some gas would be pulled along with the pipe, especially at the pipe
size groove on the tool joint outside surface. This high pressure gas could aid in the erosion of
the rubber on the right side of the stripper to produce the type of damage observed in Exhibit 8.
On the other hand, the left side of the stripper is in intimate contact with the pipe for several
inches and the pressure seal would be much better than that shown on the right in these figures.
3.2.6 Following Mr. Shepherd’s theory of a rubber bulge a bit further, his theory would
require that the pipe would be pushed to the side by the bulge. He states “The bulging is of such
an extent that when tripping out the string is forced over in the bore of the stripper to the extent
that individual joints are now striking the edge of the partially bonded insert creating the damage
observed, Figure 20.” This theory is not supported by any calculations and ignores two major
factors. First, there is substantial rubber in contact with the pipe below the insert on the left in
Figures 19 and 20 and the same pressure applying force to the right side of the rubber as applied
to the left side as well. The system is basically pressure balanced from left to right and, in fact ail
around the circumference of the pipe and the outside surface of the rubber, Thus, to push the pipe
to the side as proposed requires a pressure change (differential) from one side to the other around
the outside surface of the stripper rubber. (See previous discussion above.) No attempt was made
to calculate what the magnitude of this pressure must be to push the pipe to the side. However,
anyone who has ever strummed a stringed instrument would know that pushing a string onto a
fret close to a support bridge on a string can require some considerable side force. The string in
this case is an estimated 9,500 feet long and stripper is only 90 feet from one end. That is, the
stripper is 0.9 % from the top drive unit on the end of the string. Since the pipe weight is reported
to be 13.3 pounds per foot not including the extra weight of the bottom hole assembly, the static
string tension is at least 126,350 pounds (63,175 tons). Since the pipe is prevented from
horizontal and rotational motion by the top drive unit and by the side of the hole and casing
string at some distance below the surface, the side load required to move the pipe to the side
would need to be significant. Mr. Shepherd did not attempt to calculate the amount of force
required to achieve his proposed pipe motion in the stripper rubber nor did he propose any
alternative theories to the bulge theory he supports.
3.2.7 Mr. Shepherd did not account for all the observed evidence available in this case.
He selectively found evidence to support his rubber bulge theory and ignored other obvious facts
in contradiction of reasonable scientific methodology.
3.3.0 Dr. Alan Kasner (3)
3.3.1 At the bottom of Page 6 in Dr. Kasner’s report, the following statement is made:
“Machining marks that had not been removed by grit blasting are visible on the surface. Rubber
is adhoring to the raised areas between the grooves, but not at the bottom of the grooves. This
indicates poor surface preparation.” Dr. Kasner provides no evidence to show that the machining
marks he found in any way compromise the integrity of the bond. In fact, most engineers know
that a rough surface helps adherence by providing a “tooth” for paint, glue or adhesives to grab
on to when doing any type of bonding. Dr. Kasner also does not address the issue of a possible
slip-stick mechanism as an explanation of the ridged pattern observed in his study, (sce Exhibit 7
for an example of a slip-stick bond failure).
3.3,2 In Dr. Kasner’s first conclusion on page 10 of his report, he again makes
reference to a postulated bad bond. There is no explanation here or elsewhere in his report about
how it would be possible to prepare a segment of the steel insert inside diameter differently from
other areas of the insert. That is, he did not address the question of how it would be possible to
have a supposed poor bond in one area but not all the way around,
3.4.0 Dr. Randall King (4)
3.4.1 On page 6 of Dr. King’s report he makes the following statement: “There were
areas on the fracture surface near the lower tip of the steel insert which were quite smooth, as
seen in Figure 5 (attached here as Exhibit 10). These locations appear {o have fractured some
time before the final fracture and been polished smooth during operation of the RCD before the
final failure.” [ agree with Dr. King that there is evidence of cyclic loading and progressive
failure in the features he has identified. In the remainder of this paragraph at the top of page 6,
Dr. King goes on to discuss what he calls “an area of unsound rubber / metal bond on the ID of
the steel insert”. He refers to his Figure 6 included here as Exhibit 11. Dr, King provides no
technical resource references for this statement and provides no foundation for this conclusion of
an unsound bond. He also makes no reference and provides no alternative cause of the
observation that the machining grooves are visible on the fracture surface in this region. That is,
the possibility of a slip-stick type failure of the bond in this region as illustrated in Exhibit 4
included herein is not acknowledged nor discussed, In fact, no alternative theories for the cause
of this failure are presented in any form,
3.4.2 On page 8, Dr. King states: “This reliance on the rubber/metal bond, with no
redundant fail-safe method to guarantee safe operation in case the bond fails is a design defect of
the RCD”. Back on page 6 of his report in the first paragraph under “Discussion”, Dr. King
discusses the history of this RCD design starting with a Grant Tool product designed in 1984.
While he does not go into prior RCD history, these type of devices have been in field service for
many years and prior to 1984, Dr. King does not acknowledge in his statement that the RCD
units in general have a long service history and this particular Smith International design has
been in service at least since 1984. Dr. King’s statement of a design defect claim also ignores the
fact the stripper rubber previously used on this well and also examined by Dr. King provided
satisfactory service.
3.4.3 Beginning on page 8 of Dr. King’s report, he discusses a finite clement analysis
that has apparently been performed by another party and included as Appendix A to Dr. King’s
report. I could find no reference in Dr. King’s report nor in Appendix A regarding the individual
who performed this analysis.
344 In Appendix A of Dr. King’s report on page 31 in the 3° paragraph, the author of
Appendix A discusses choosing a modulus of elasticity obtained from plotted and analyzed
rubber experimental data. The author discusses how they used a modulus of 700 psi as shown in
Figure Al of the report (Included here as Exhibit 12), A linear material model was used and the
author states “The linear approximation of the stress-strain data was judged to be acceptable for
the purposes of this analysis”. Thus, Dr. King is claiming that it is perfectly acceptable to assume
that rubber is a soft metal with a low modulus of elasticity. I disagree with this statement. In fact,
this leap to a soft steel to model a rubber is not at all correct and generates models, analysis and
results that do not fit the facts of this case and that are unreliable, A rubber is simply not like a
steel, and Dr. King fails to cite any technical references that support his contention that a soft
steel can be used in place of a rubber as he has done. There are continuity of volume and strain
rate effects that must be considered in rubber and which are not germane to analysis of steel
products. One commercial finite element code (ANSYS) has at least six different material
formulations for hyperelastic materials (i.e. rubber) properties in order to provide the user of the
code with suitable options for modeling this type material behavior. Because.of this one major
assumption at the outset of the analysis presented, none of the data presented is reliable nor
should any results be considered.
9
3.4.5 Dr. King proceeds with the FEA results describing the maximum principal stress
results for the rubber, While maximum principal stress has meaning in a steel, this parameter,
while interesting, has litte meaning in rubber failure that is much more closely related to strain
limits than stress limits. To show an example, using the data provided in Figure Al of Dr. King’s
report, and considering the blue line in the figure (see Exhibit 12), it is observed that a stress
change from 3,000 psi to 3,500 psi (a 16.6% increase in stress) corresponds to a change in strain
in the rubber (for the blue line in the stress versus strain plot) from 425% strain to approximately
475% strain or a change of 50%. Hence, strain is a more meaningful quantity to consider in
rubber than stress, Furthermore, it is my understanding from discussions with Mr. Jerry Leyden
of Akron Rubber Development Laboratory (ARDL), another consultant in this case, that typical
failure strains for the rubber used in this RCD are on the order of 700%.
3.4.6 In paragraph 2 on page 10 of Dr. King’s report, he discusses Figure 10 of his
report. This Figure is included here as Exhibit 13, In this text paragraph related to this figure, Dr.
King points out the deformed geometry of the rubber. He says: “On the original design, the
tubber is deformed upward substantially by the wellbore pressure, and the entire mass of rubber
is seen to flow up into the annular space between the element's steel insert and the drill pipe.” It
is standard analysis procedure to perform some type of check on an FEA model and analysis.
This is typically done by hand calculations using accepted analytical methods different from
FEA or performing a confirming laboratory test. Since no confirmation has been performed in
any manner on the accuracy of the FEA model and its predictions of stress, strain or deformation,
any discussion of the FEA results is unwarranted and unsupported, and the FEA results are
unreliable. In fact, the gross deformation of the rubber shown by the yellow profile on the left
figure in Exhibit 13 is grossly excessive and unreasonable. Dr. King has made no attempt to
10
confirm these predictions by visual observation of an actual operating stripper in field operation
or any confirmation checks of the FEA model. Since the FEA model has not been confirmed as
accurate, any conclusions based on this model are unsupported and unreliable.
3.5.0 Mr. Terry Brittenham
3.5.1 Mr. Brittenham states on page 6 of his report dated March 25, 2009: “The forensic
evidence by Plaintiffs experts demonstrates that inadequate bonding between the rubber and the
bottom portion of the steel insert was the root cause of the failure that led to Billy Jack
McDaniel’s injuries.” Mr. Brittenham appears to be simply restating what other Plantiff experts
have told him or he read from their reports. He has not undertaken any independent study of the
bonding issue and has no justification for making this statement and blindly agreeing with the
other expert opinions.
3.5.2 At the bottom of page 6, Mr. Britlenham states: “The number of stress cycles can
ultimately cause a stripper rubber to fatigue, but Sonerra’s prior use of the product and forensic
evidence show that the gross failure on the Two Moon #2 was not caused by fatigue of an
otherwise defect-free rubber.” This statement conflicts with the findings of Dr. Randall King as
discussed in paragraph 3.4.1 above. Dr. King clearly states that he did find evidence of cyclic
damage and that “These locations appear to have fractured some time before the final fracture
and been polished smooth during operation of the RCD before the final failure.” Hence, Mr.
Brittenham’s contention that stripper rubber failure was “not caused by fatigue” is not supported
by the evidence and at least one other Plaintiff expert.
3.5.3 In the first paragraph on the top of his page 7, Mr. Brittenham discusses the issue
of rig alignment and mentions the formation of a “keyseat” when drilling with an off-center
pipe. It appears that Mr. Brittenham has not seen the photos included here as Exhibit 14 and 15
Al
and discussed in more detail below. The photos in these exhibits show clearly that the drill pipe
was not in the center of the hole shortly after the accident and that the rubber in question does
indeed have evidence of a “keyscat” caused by an off-center pipe. His conclusion that the rig was
not mis-aligned is not supported by the evidence as I discuss in more detail below,
4.0.0 OBSERVATIONS OF THE FAILED PARTS BY DR. R. E. FRISHMUTH, P.E.
4.1.0 I first observed the remains of this failure during a visit to Mohr Engineering on
Monday, March 16" 2009.
4.2.0 During my visit to review the failed parts, I noted the worn and damaged region
of the steel insert as well as the region of the steel to rubber bond separation located 180 degrees
from the damaged inner tip of the inserl. This observation has been made by others and was
confirmed by my personal! observations.
4.3.0 Subsequent to my visit to Mohr Engineering, I visited with the Smith
International’s attorneys at their offices and reviewed several books of photographs taken by
various parties in this suit. The following are the observations I have made and the support for
these observations and comments.
43.1 Two bottom views of the stripper rubber removed from the pipe and photos taken
prior to cutting of the sample are shown in Exhibit 14, These photos indicate that the pipe had
been running through the rubber off center
Preview
Filed 09J une 29 P6:42 LorenJ ackson - District Clerk) Harris Coun! ED101) 015445089 By: Furshilla Brantley CAUSE NO. 2007-75537 BILLY JACK McDANIEL, A’LETA IN THE DISTRICT COURT MeDANIEL INDIVIDUALLY AND AS NEXT FRIEND OF CARNEY McDANIEL, A MINOR VS. 615" JUDICIAL DISTRICT SMITH INTERNATIONAL, INC., SONERRA RESOURCES CORPORATION, HARBOR PRODUCTS, INC., KIRKHTLL 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 RONALD FRISHMUTH, PH.D 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 Ronald Frishmuth, Ph.D. The Court should limit the scope of the expected trial testimony and/or limit the trial testimony of Ronald Frishmuth, Ph.D., because his hypotheses/theories regarding misalignment as a potential cause of the failure of the stripper rubber on March 3, 2006 are beyond the scope of his expertise, unsupported by any reference or scientific literature reviewed by this consultant and inherently unreliable and objectionable. I BACKGROUND A. The Occurrence 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 RCD 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 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 Chemlok system is a contested issue between the parties in this litigation. B Frishmuth’s Involvement and Opinions/Observations Smith International, Inc. designated Ronald Frishmuth, Ph.D. (hereinafter “Frishmuth”) as an expert witness to defend certain claims regarding the Finite Element Analysis! created by Steve Roensch as part of the Plaintiffs’ multidisciplinary evaluation of the stripper clement’s design. Frishmuth was first contacted regarding his potential involvement in this matter to counter the design defect analysis provided by the Plaintiffs’ retained expert witness Randall King, Ph.D. of Bison Engineering, Inc. Initially, Frishmuth attempted to model a three dimensional, non-linear Ogden three parameter but those efforts failed. Frishmuth then attempted to model a two dimensional, non-linear Ogden one parameter but he was unable to achieve the results comparable to the drilling rig environment on March 3, 2006 immediately prior to the failure of the subject stripper clement and the explosion, Frishmuth then attempted to model a two dimensional, non-linear Ogden one parameter but he then decided to add an off-set pipe ‘ Finite Element Analysis is computer modeling designed to simulate a piece of equipment or structure. Once crafted, the FEA can be used to predict the behavior of the sections of the piece of equipment or structure in the expected environment of use. This modeling also allows designers to evaluate design proactively and retrospectively where there are failures. In this case, numerous FEAs have been created by Smith international Inc. after the subject incident. The Plaintiffs have provided an FEA in the Bison Engineering report and supplement regarding the design of the incident stripper element. to the modeling. Again, Frishmuth was unable to complete this modeling. To date, Frishmuth has not produced any FEA which achieves pressures approximating the accepted environment of use on March 3, 2006, From his admittedly unsuccessful computer modeling, Frishmuth offers a number of theories regarding the misalignment of the drill string. See Exhibit “A” which is the Expert of Dr. Ronald E, Frishmuth, P.E. dated April 3, 2009 and Exhibit “B” which is the Addendum to said Report dated May 8, 2009. The Plaintiffs deposed Frishmuth on May 12, 2009 in an effort to determine the opinions and bases of those opinions. While the Plaintiffs do not adopt or concur with any of the hypothesis/theories provided by Frishmuth, there was one specific hypothesis/theory which should be denied admissibility pursuant to Daubert v. Merrill- Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), its progeny and the Texas Rules of Civil Evidence. Frishmuth wrote and testified that the drill pipe was off center and that was a cause of the failure to a reasonable degree of engineering probability. The Court should exclude this opinion for multiple reasons. First, Frishmuth is not qualified to render such an opinion. Second, his computer modeling docs not support this hypothetical as the pressures identified and accepted by the parties herein were never even approximated in the modeling.. Third, Frishmuth has clearly relied upon others to advocate this hypothetical without any attempt to confirm and/or challenge the necessary assumptions for the theory to be valid. In fact Frishmuth admitted that he had not read any depositions nor discussed this theory with the operations expert at the time of his report or prior to his testimony in this matter. Absent some demonstration of reliability, objectivity or personal knowledge, the Frismuth references to misalignment are erroneous inadmissible and a potential source of confusion for the fact finder. IL. 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 y. Merrill-Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93 (1993). The 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 seeks to offer.” General Electric Co. v. Joiner, 522 U.S. 136, 147 (1997) (Breyer, J, concurring). The Court’s gate keeping function applies to all expert testimony, whether based on scientific, technical or other specialized knowledge. See Kumho Tire Co, Lid. v. Carmichael, 526 U.S. 137, 142 (1999), As the Supreme Court explained: [W]hether 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 on Cir. 1998), cert. denied, 526 U.S. 1064 (1999); see also Dart v. Kitchens Bros. Mfg. Co., 253 Fed. Appx. 395, 398 (st Cir. 2007) (citing Moore), In the instant case, there is no demonstration that the testimony by Frishmuth is reliable with respect to misalignment (not qualified to render such opinions) or even Finite Element Analysis (unable to reereate the environment of use in his computer models), Frishmuth testified to this specific issue as follows”: “I let the experts in rig operations worry about how such a thing (misalignment) might happen” Then it would follow that those experts qualified by experience, knowledge and training should be permitted to testify on this specific, complicated issue and Frishmuth’s testimony should be limited necessarily to those topics with which, he has demonstrated some degree of familiarity. 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 ? The deposition of Ronald Frishmuth, Ph.D. is voluminous. The specific excerpts of the depositions testimony will be identified and provided at or prior to the expected pretrial hearings on the expert challenges. 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 USS. 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 ¢.g., Moore v. Ashland Chem., Inc., 151 F.3d 269 os 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 RR. Yard PCB Litigation, 35 ¥.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. U.S. 422 F.3d 221, 227 o" 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. See e.g., Black v. Food Lion, Inc., 171 F.3d 308, 311 cst 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 U.S. at 150. In the subject case, there is barely an attempt to comply with the requirements of expert testimony on the misalignment theory. From his deposition, it appears that Frishmuth relied upon the information provided to him in a telephone call and little else. There was no scientific investigation of the misalignment theory nor any effort to reconstruct the theory to determine the viability of the theory. Further, the computer modeling, which Frishmuth has at least demonstrated some degree of ability to complete, was unable to provide the predictive data that Smith International, Inc. sought. When questioned specifically, the inadmissibility of the Frishmuth theory is readily apparent: Q. Your analysis in this case and testing to support your analysis was not done to advance a theory as to what took place on March the 3", 2006, when this stripper rubber failed, was it? A. That’s correct. 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 “scrutinize” 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 ob" 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 expett evidence, must evaluate whether there is an adequate ‘fit? between the data and the opinion proffered”). As indicated above, Frishmuth’s made no effort to confirm or validate his theory regarding misalignment When he attempted to validate his theory with computer modeling, he failed to achieve or 3 Frishmuth has testified that he has modeled or attempted to madei an offset pipe passing through a stripper rubber but that modeling does not incorporate pressures approaching the 1195 psi. recreate the accepted environment of use for the subject stripper rubber?, Frishmuth’s opinions fail under a variety of these requirements. Absent some degree of scientific accountability, the hypothesis is misleading, confusing and inadmissible. Il. No Demonstration of Reliability Frishmuth’s opinions regarding misalignment are patently unreliable as there was no attempt to validate the theory through knowledgeable investigation of the evidence or computer modeling, There is no evidence to indicate that this theory is based upon anything more than conjecture and hypothesis. There has not been a reliable testing method or exemplar test which sought to recreate the events described by this witness in his theory. Further, there is no evidence that the Frishmuth’s theory has been either tested, subjected to peer review or publication, or that it is generally accepted by the “relevant scientific” community. See Kumho Tire, 526 U.S. at 149-50 (citing Daubert, 509 U.S. at 592-94), 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 analytical gap between the data and the opinion proffered." Burleson v. Tex. Dept. of Crim, Justice, 393 F.3d $77, 587 6" 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 ‘ The stripper rubber failed as the drill string was being “tripped” under 1195 psi according to one measuring device. Frishmuth testified that his FEA achieved 500 psi and 150 psi. He readily admitted that he was unable to achieve anything beyond 500 psi. leaps which should render the proffered concept inadmissible due to its inherent subjectivity and unreliability. VV. OPINIONS THAT SPEAK ONLY TO POSSIBILITY AND NOT PROBABULTY 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, v. Grinnell, 951 8.W.2d 420, 434 (Tex. 1997); Armstrong Rubber Co. y. 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 §,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., Lid., 896 S.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. Frishmuth’s hypothetical misalignment without any supporting computer modeling approximating the accepted environment of use should be denied admissibility. V PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffs and Intervenor respectfully request that the Court grant their Motion to Exclude and/or Limit the Opinions and Testimony of Ronald Frishmuth, PH.D, Plaintiffs further request any additional relief to which they are entitled. Respectfully submitted, Hortman Harlow Bassi Robinson & McDaniel P.O. Drawer 1409 Laurel, MS 39441-1409 Ph; (601) 649-8611 Fax: (601) 649-6062 By: WTbg CHRISTOPHER B. MCDANIT 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; Telephon (210) 490- 2; Facsimi! B DOUGLAS D. KETTERMAN State Bar No, 11362950 BRIAN C. STEWARD State Bar No. 19201100 ATTORNEYS FOR PLAINTIFFS & firs By: EWA 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 hereby certify that a true and correct copy of the above and foregoing has been served via facsimile, on this the 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 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. C BRIAN C. STE RD CAUSE NO. 2007-75537 BILLY JACK McDANIEL, A’LETA IN THE DISTRICT COURT McDANIEL INDIVIDUALLY AND AS NEXT FRIEND OF CARNEY McDANIEL, A MINOR Vv. 615" JUDICIAL DISTRICT SMITH INTERNATIONAL, INC., AND SONERRA RESOURCES CORPORATION HARRIS COUNTY, TEXAS EXPERT REPORT OF DR. RONALD E, FRISHIMUTH, P.E. 1.0.0 INTRODUCTION 1.1.0 I, Ronald E. Frishmuth, hereby submit this report in reference to the above- captioned action. Attached to this report are my curriculum vitae (Exhibit 1) and a list of cases that I have testified in court or in a deposition as an expert (Exhibit 2). 1.2.0 Attached as Exhibit 3 is a list of materials and documents that I have relied upon to form my opinions and conclusions presented herein. 1.3.0 Tam currently the President and founder of Frishmuth Consulting Services, LLC, The company was incorporated in Texas on January 1, 2005, Prior to that time, I was operating as a sole proprietor as R. E. Frishmuth, P.E., Consulting Engineer. This former operation was begun in June of 1996. 14.0 Ihave been performing stress analyses, fatigue and fracture evaluations, and finite element analysis (FEA) on mechanical systems for over 35 years. I am familiar with (FEA) and the ANSYS software program. I currently use the ANSYS FEA program in Frishmuth Consulting Services, LLC. 15.0 I am being compensated for my consulting time on this case at a rate of $250.00 per hour. 1 EXHIBIT 3 3 A 2.0.0 INCIDENT DISCRIPTION 2.1.0 I have reviewed the documents listed in Exhibit 3 and the documents contained in the attached list of references and have extracted the following summary information regarding the incident under investigation and reported herein. 2.2.0 On March 3, 2006, a stripper rubber on an RCD (rotating control device) became detached from its support frame and extruded through the annulus space between the drill pipe and the RCD support frame and rose above the RCD housing. This released high pressure gas from the well because the well seal was broken as a result of the failure. The released gas caught fire severely injuring Mr. Billy Jack McDaniel who was working on the dagger board above the rig floor while racking pipe. aay. 2.3.0 The rig under investigation was being operated by a Helmerich and Payne (H & P) drilling crew. The rig was identified as Rig #226. The well site was Two Moons #2 being drilled for Sonerra Resources and located in Nacogdoches County, Texas (1-4). 2.4.0 The rig was making use of an underbalanced drilling operation at the time of the incident. This means that there was gas pressure in the well being sealed by the stripper rubber in the RCD at the time of the incident. The contained pressure was reported to be between 1100 and 1200 pounds per square inch (1-4). 2.5.0 The incident occurred while pipe was being tripped out of the well after a fishing operation had been concluded. There was an estimated 9,500 feet of the drill string remaining in the well when the failure of the stripper rubber occurred (4). ‘ Numbers in parenthesis are reference numbers, See reference list at end of this report. 2 3.0.0 DISCUSSION OF PLAINTIFF EXPERT’S REPORTS 3.1.0 Mr. Joseph Kinder (1) 3.41 Mr. Joseph Kinder (1) claims in paragraph 3 on his page 4 that the bond between the rubber and the steel insert was defective in this product. In paragraph 2 on page 6 of his report, he claims that it is his “belief” the stripper rubber #6221 found in the incident product contained “a gross manufacturing defect”. Mr. Kinder provides precious little in the way of evidence and foundation for this argument that there was a defective bond in the incident product. At best his argument is an unsupported and incomplete observation, 3.1.2 Mr. Joseph Kinder (1) describes the wear pattern found in the incident stripper tubber and compares this to an exemplar rubber from the same well site and one previously used in this well. Mr. Kinder points out the obvious difference in wear pattern between these two objects and claims “the bond failure allowed the inadequately supported rubber to be forced into the path of the tool joint, thereby suffering excess and unreasonable damage”. Mr. Kinder does not explain nor does he provide any calculations about how this process is even possible considering that the contained pressure is also pushing the rubber against the pipe from the opposite side. He also does not explain how the “inadequately supported rubber” could wear as hown in his Figure 3 near the bottom of the rubber where there is clearly more wear on the left side in his photo than on the right side. For the convenience of the reader, his Figure 3 has been included here as Exhibit 4. The bottom area referenced is shown in this exhibit as is the area referred to by Mr. Kinder. 3.1.3 If, in fact, Mr. Kinder were correct that the rubber had been unbonded on the right side of his Figure 3 (Exhibit 4) and projected into the path of the pipe as he claims, the rubber would have shown a smooth rubber surface from the pipe rubbing against the rubber. Instead, as shown in his Figure 3 (Exhibit 4), the rubber surface appears chewed up and heavily damaged. By contrast, the left side of his Figure 3 (Exhibit 4) shows a smoother rubbed surface indicating that the pipe was rubbing against the left side of the rubber in this figure. It is also noted that the bottom cornet of the rubber where the pipe was running through is much more heavily worn on the left bottom than the right bottom. 3.1.4 Mr. Kinder states in his paragraph 5 on page 4 that “The form of the memory set is clear evidence that the rubber to metal bond was not intact in the area of heavy damage”. He provides no evidence regarding his “memory set” concept. He provides no reference articles in the technical literature supporting this concept. He provides no distinction between his “memory set” concept and the obvious wear of the rubber. In short, there is no foundation constructed by Mr. Kinder for this argument. 3.2.0 Mr. Richard Shepherd (2) 3.2.1 Figure 5 of Mr. Shepherd’s report, included here as Exhibit 5, shows clear damage from the drill pipe rubbing against the edge of the stripper rubber steel insert. Mr. Shepherd agrees with this assessment in his caption for this figure. 3.2.2 Figures 8 and 9 of Mr. Shepherd’s report, included here as Exhibit 6, show the region of steel insert to rubber bond claimed by Mr. Shepherd to show evidence of an unbonded adhesive joint betwcen the two parts based on examination performed by McSwain Engineering, Inc, and reported in Section 4.3 of Mr. Shepherd’s report. At no point in Mr. Shepherd's discussion did he raise the possibility of another explanation of the observed separation region shown in Exhibit 6. For example, another reasonable explanation for this observation is a slip- stick type bond separation between steel and rubber. Exhibit 7 (5) shows an example of this type of bond separation in the middle photograph on this page from the MERL website. MERL is well known to Mr. Shepherd since, according to his Curriculum Vitae, he was the Operations Director of MERL from 1999 to 2007. Therefore, he is certainly aware of this possible explanation of the appearance of the surfaces in his Figures 8 and 9 and yet did not investigate nor discuss this mechanism for production of the observed surface. 3.2.3 In Mr. Shepherd’s report, Figures 19 and 20 (included here as Exhibit 8), he shows how he believes the lack of a bond on one side of the rubber to insert interface would cause the rubber to bulge out thus pushing the pipe to the side and causing the damage to the insert ring shown in his Figure 5 (Exhibit 5 herein). In these Figures, Mr. Shepherd illustrates the pipe as being at an angle to a vertical line through the center of the stripper rubber. Using red outlines, he shows contact of the deflected rubber with the pipe near the bottom and part way through the stripper at a location about opposite the lower end of the steel insert. It is noted in these figures that the opposite side of the pipe is in intimate contact with the rubber along nearly the entire inside length of the stripper from the bottom of the top taper angle to just near the bottom of the stripper, Thus, the two contact points shown in Mr. Shepherd’s red outline in Figures 19 and 20 are pushing against a pipe that is fully supported along the length as shown on the left of these figures between the two contact points shown on the right in the figures. A simple engincering diagram of this loading arrangement on the pipe as shown in Exhibit 9 shows that it would be impossible for a pipe initially running through the center of the stripper rubber to be pushed off at an angle as portrayed in Mr. Shepherd’s drawings in Figures 19 and 20 if the same pressure is applied ail around the outside rubber surface. 3.2.5 Based on Mr. Shepherd’s drawings in Figures 19 and 20 (Exhibit 8), it is easy to sec how some high pressure gas could escape from the well bore along the right side of pipe in these figures. There is little contact between the right side rubber and the pipe and as every joint passes through the stripper, some gas would be pulled along with the pipe, especially at the pipe size groove on the tool joint outside surface. This high pressure gas could aid in the erosion of the rubber on the right side of the stripper to produce the type of damage observed in Exhibit 8. On the other hand, the left side of the stripper is in intimate contact with the pipe for several inches and the pressure seal would be much better than that shown on the right in these figures. 3.2.6 Following Mr. Shepherd’s theory of a rubber bulge a bit further, his theory would require that the pipe would be pushed to the side by the bulge. He states “The bulging is of such an extent that when tripping out the string is forced over in the bore of the stripper to the extent that individual joints are now striking the edge of the partially bonded insert creating the damage observed, Figure 20.” This theory is not supported by any calculations and ignores two major factors. First, there is substantial rubber in contact with the pipe below the insert on the left in Figures 19 and 20 and the same pressure applying force to the right side of the rubber as applied to the left side as well. The system is basically pressure balanced from left to right and, in fact ail around the circumference of the pipe and the outside surface of the rubber, Thus, to push the pipe to the side as proposed requires a pressure change (differential) from one side to the other around the outside surface of the stripper rubber. (See previous discussion above.) No attempt was made to calculate what the magnitude of this pressure must be to push the pipe to the side. However, anyone who has ever strummed a stringed instrument would know that pushing a string onto a fret close to a support bridge on a string can require some considerable side force. The string in this case is an estimated 9,500 feet long and stripper is only 90 feet from one end. That is, the stripper is 0.9 % from the top drive unit on the end of the string. Since the pipe weight is reported to be 13.3 pounds per foot not including the extra weight of the bottom hole assembly, the static string tension is at least 126,350 pounds (63,175 tons). Since the pipe is prevented from horizontal and rotational motion by the top drive unit and by the side of the hole and casing string at some distance below the surface, the side load required to move the pipe to the side would need to be significant. Mr. Shepherd did not attempt to calculate the amount of force required to achieve his proposed pipe motion in the stripper rubber nor did he propose any alternative theories to the bulge theory he supports. 3.2.7 Mr. Shepherd did not account for all the observed evidence available in this case. He selectively found evidence to support his rubber bulge theory and ignored other obvious facts in contradiction of reasonable scientific methodology. 3.3.0 Dr. Alan Kasner (3) 3.3.1 At the bottom of Page 6 in Dr. Kasner’s report, the following statement is made: “Machining marks that had not been removed by grit blasting are visible on the surface. Rubber is adhoring to the raised areas between the grooves, but not at the bottom of the grooves. This indicates poor surface preparation.” Dr. Kasner provides no evidence to show that the machining marks he found in any way compromise the integrity of the bond. In fact, most engineers know that a rough surface helps adherence by providing a “tooth” for paint, glue or adhesives to grab on to when doing any type of bonding. Dr. Kasner also does not address the issue of a possible slip-stick mechanism as an explanation of the ridged pattern observed in his study, (sce Exhibit 7 for an example of a slip-stick bond failure). 3.3,2 In Dr. Kasner’s first conclusion on page 10 of his report, he again makes reference to a postulated bad bond. There is no explanation here or elsewhere in his report about how it would be possible to prepare a segment of the steel insert inside diameter differently from other areas of the insert. That is, he did not address the question of how it would be possible to have a supposed poor bond in one area but not all the way around, 3.4.0 Dr. Randall King (4) 3.4.1 On page 6 of Dr. King’s report he makes the following statement: “There were areas on the fracture surface near the lower tip of the steel insert which were quite smooth, as seen in Figure 5 (attached here as Exhibit 10). These locations appear {o have fractured some time before the final fracture and been polished smooth during operation of the RCD before the final failure.” [ agree with Dr. King that there is evidence of cyclic loading and progressive failure in the features he has identified. In the remainder of this paragraph at the top of page 6, Dr. King goes on to discuss what he calls “an area of unsound rubber / metal bond on the ID of the steel insert”. He refers to his Figure 6 included here as Exhibit 11. Dr, King provides no technical resource references for this statement and provides no foundation for this conclusion of an unsound bond. He also makes no reference and provides no alternative cause of the observation that the machining grooves are visible on the fracture surface in this region. That is, the possibility of a slip-stick type failure of the bond in this region as illustrated in Exhibit 4 included herein is not acknowledged nor discussed, In fact, no alternative theories for the cause of this failure are presented in any form, 3.4.2 On page 8, Dr. King states: “This reliance on the rubber/metal bond, with no redundant fail-safe method to guarantee safe operation in case the bond fails is a design defect of the RCD”. Back on page 6 of his report in the first paragraph under “Discussion”, Dr. King discusses the history of this RCD design starting with a Grant Tool product designed in 1984. While he does not go into prior RCD history, these type of devices have been in field service for many years and prior to 1984, Dr. King does not acknowledge in his statement that the RCD units in general have a long service history and this particular Smith International design has been in service at least since 1984. Dr. King’s statement of a design defect claim also ignores the fact the stripper rubber previously used on this well and also examined by Dr. King provided satisfactory service. 3.4.3 Beginning on page 8 of Dr. King’s report, he discusses a finite clement analysis that has apparently been performed by another party and included as Appendix A to Dr. King’s report. I could find no reference in Dr. King’s report nor in Appendix A regarding the individual who performed this analysis. 344 In Appendix A of Dr. King’s report on page 31 in the 3° paragraph, the author of Appendix A discusses choosing a modulus of elasticity obtained from plotted and analyzed rubber experimental data. The author discusses how they used a modulus of 700 psi as shown in Figure Al of the report (Included here as Exhibit 12), A linear material model was used and the author states “The linear approximation of the stress-strain data was judged to be acceptable for the purposes of this analysis”. Thus, Dr. King is claiming that it is perfectly acceptable to assume that rubber is a soft metal with a low modulus of elasticity. I disagree with this statement. In fact, this leap to a soft steel to model a rubber is not at all correct and generates models, analysis and results that do not fit the facts of this case and that are unreliable, A rubber is simply not like a steel, and Dr. King fails to cite any technical references that support his contention that a soft steel can be used in place of a rubber as he has done. There are continuity of volume and strain rate effects that must be considered in rubber and which are not germane to analysis of steel products. One commercial finite element code (ANSYS) has at least six different material formulations for hyperelastic materials (i.e. rubber) properties in order to provide the user of the code with suitable options for modeling this type material behavior. Because.of this one major assumption at the outset of the analysis presented, none of the data presented is reliable nor should any results be considered. 9 3.4.5 Dr. King proceeds with the FEA results describing the maximum principal stress results for the rubber, While maximum principal stress has meaning in a steel, this parameter, while interesting, has litte meaning in rubber failure that is much more closely related to strain limits than stress limits. To show an example, using the data provided in Figure Al of Dr. King’s report, and considering the blue line in the figure (see Exhibit 12), it is observed that a stress change from 3,000 psi to 3,500 psi (a 16.6% increase in stress) corresponds to a change in strain in the rubber (for the blue line in the stress versus strain plot) from 425% strain to approximately 475% strain or a change of 50%. Hence, strain is a more meaningful quantity to consider in rubber than stress, Furthermore, it is my understanding from discussions with Mr. Jerry Leyden of Akron Rubber Development Laboratory (ARDL), another consultant in this case, that typical failure strains for the rubber used in this RCD are on the order of 700%. 3.4.6 In paragraph 2 on page 10 of Dr. King’s report, he discusses Figure 10 of his report. This Figure is included here as Exhibit 13, In this text paragraph related to this figure, Dr. King points out the deformed geometry of the rubber. He says: “On the original design, the tubber is deformed upward substantially by the wellbore pressure, and the entire mass of rubber is seen to flow up into the annular space between the element's steel insert and the drill pipe.” It is standard analysis procedure to perform some type of check on an FEA model and analysis. This is typically done by hand calculations using accepted analytical methods different from FEA or performing a confirming laboratory test. Since no confirmation has been performed in any manner on the accuracy of the FEA model and its predictions of stress, strain or deformation, any discussion of the FEA results is unwarranted and unsupported, and the FEA results are unreliable. In fact, the gross deformation of the rubber shown by the yellow profile on the left figure in Exhibit 13 is grossly excessive and unreasonable. Dr. King has made no attempt to 10 confirm these predictions by visual observation of an actual operating stripper in field operation or any confirmation checks of the FEA model. Since the FEA model has not been confirmed as accurate, any conclusions based on this model are unsupported and unreliable. 3.5.0 Mr. Terry Brittenham 3.5.1 Mr. Brittenham states on page 6 of his report dated March 25, 2009: “The forensic evidence by Plaintiffs experts demonstrates that inadequate bonding between the rubber and the bottom portion of the steel insert was the root cause of the failure that led to Billy Jack McDaniel’s injuries.” Mr. Brittenham appears to be simply restating what other Plantiff experts have told him or he read from their reports. He has not undertaken any independent study of the bonding issue and has no justification for making this statement and blindly agreeing with the other expert opinions. 3.5.2 At the bottom of page 6, Mr. Britlenham states: “The number of stress cycles can ultimately cause a stripper rubber to fatigue, but Sonerra’s prior use of the product and forensic evidence show that the gross failure on the Two Moon #2 was not caused by fatigue of an otherwise defect-free rubber.” This statement conflicts with the findings of Dr. Randall King as discussed in paragraph 3.4.1 above. Dr. King clearly states that he did find evidence of cyclic damage and that “These locations appear to have fractured some time before the final fracture and been polished smooth during operation of the RCD before the final failure.” Hence, Mr. Brittenham’s contention that stripper rubber failure was “not caused by fatigue” is not supported by the evidence and at least one other Plaintiff expert. 3.5.3 In the first paragraph on the top of his page 7, Mr. Brittenham discusses the issue of rig alignment and mentions the formation of a “keyseat” when drilling with an off-center pipe. It appears that Mr. Brittenham has not seen the photos included here as Exhibit 14 and 15 Al and discussed in more detail below. The photos in these exhibits show clearly that the drill pipe was not in the center of the hole shortly after the accident and that the rubber in question does indeed have evidence of a “keyscat” caused by an off-center pipe. His conclusion that the rig was not mis-aligned is not supported by the evidence as I discuss in more detail below, 4.0.0 OBSERVATIONS OF THE FAILED PARTS BY DR. R. E. FRISHMUTH, P.E. 4.1.0 I first observed the remains of this failure during a visit to Mohr Engineering on Monday, March 16" 2009. 4.2.0 During my visit to review the failed parts, I noted the worn and damaged region of the steel insert as well as the region of the steel to rubber bond separation located 180 degrees from the damaged inner tip of the inserl. This observation has been made by others and was confirmed by my personal! observations. 4.3.0 Subsequent to my visit to Mohr Engineering, I visited with the Smith International’s attorneys at their offices and reviewed several books of photographs taken by various parties in this suit. The following are the observations I have made and the support for these observations and comments. 43.1 Two bottom views of the stripper rubber removed from the pipe and photos taken prior to cutting of the sample are shown in Exhibit 14, These photos indicate that the pipe had been running through the rubber off center