They have the power to turn lives upside down and affect the bottom lines of tire companies. Millions of dollars hang on how well so-called ``expert witnesses'' can persuade a jury to rule for or against a tire manufacturer in a product liability lawsuit.
In courtrooms across America, these experts appear as knowledgeable sources about tires-and what causes them to fail-to uninformed juries. Some have invested much of their lives in the development and construction of tires and now perform detailed forensic work on them. But even these experts question the credentials of other experts who testify for the opposing side.
Harold Herzlich of Las Vegas-based Herzlich Consulting Inc. recalled testifying in a tire failure lawsuit in New Jersey in which the court allowed the plaintiffs to call a metallurgist to the stand who was an expert in scuba tanks. The reason: both tires and scuba tanks are compressed air vessels.
``The defense blew them away, but that shouldn't have even gone to trial,'' he said.
Marvin Bozarth, a consultant for the Tire Industry Association, told Tire Business he's encountered a number of expert witnesses in liability cases who ``know nothing about tires'' but are called to testify because they are engineers. He recalled a truck tire explosion case where a former Ford Motor Co. employee held an engineering doctorate but had never mounted or demounted tires. Yet the former employee was testifying as an expert on tire explosions. The suit involved a lock ring that came off a multi-piece wheel of a truck tire, according to Mr. Bozarth.
The witness was asked if he had checked if the 10.00x22 tire made by Goodyear was tubeless or a tube-type, and he said he hadn't. Asked the same question, Mr. Bozarth replied that he didn't need to check because all Goodyear-made tires sized 10.00x22 historically have been tube-type tires.
``They asked him if he owned a truck, and he said, `Yeah, it's a Mercedes SUV,''' Mr. Bozarth said. ``They asked him if (his SUV) could use a multi-piece wheel, and he said, `Yeah, sure.'
``I see this all the time. It's really sad,'' Mr. Bozarth added.
Mr. Herzlich said he thinks some experts called to the stand are not so much unknowledgeable as they are slanted in their views and propose ``voodoo science'' in order to win a case. He claimed that often the plaintiffs introduce non-scientific theories into their testimonies.
``I've been in trials where experts have defied the laws of thermodynamics and the laws of chemistry,'' he said. ``Hopefully, the jury can sense some of that.... The court works hard to eliminate this kind of voodoo science, and they've been raising the standards to protect the experts and disqualify experts who really don't have the qualifications to be discussing certain subject areas.''
Ed Wagner, a consultant with Louisville, Ky.-based Tire Technical Services Inc., agreed that attorneys often call ``generalized expert witnesses'' to testify who are not necessarily schooled in the tire industry.
``They have a Ph.D., and they will testify to anything out there,'' Mr. Wagner said. ``They've had some articles they've written. They make a great front as far as the lawyers are concerned. But when you're talking about people who are specifically brought up and trained in the tire industry, there aren't too many of them out there.''
Those who are trained in tire knowledge and most often testify, according to Mr. Wagner, include the following experts, many of whom are consultants: Dick Baumgardner, Dennis Carlson, Charlie Gold, Tom Dotson, Bob Ochs, Jim Gardner, Max Nonnamaker and Donald Avila.
Messrs. Wagner and Bozarth both are retired executives of tire associations and now consult. Mr. Wagner served as managing director of the American Retreaders Association from 1968-1988 (forerunner to the International Tire & Rubber Association), and Mr. Bozarth served as executive director of ITRA from 1991-2001. Mr. Wagner concentrates his time on tire-failure analysis, while Mr. Bozarth also serves as a technical consultant to the Tire Industry Association and retreaders.
Mr. Herzlich worked in the research and development departments of Armstrong Tire Co. and later Pirelli Armstrong Tire Corp. before he retired in 1990 and began his consulting firm. His experience with product liability testimony dates back to 1985 when Armstrong asked him to be its in-house expert on liability litigation. Besides tire failure analysis, Mr. Herzlich also serves as technical editor for Rubber & Plastics News-a sister publication to Tire Business-and is manager of the biennial International Tire & Exhibition Conference and a consultant for trucking fleets.
Compensation for experts varies, but most charge a fee for tire examinations. If there is further research, depositions, court testimony or travel involved, the experts usually charge lawyers hourly for their services.
Attorneys usually find their experts through word of mouth, Internet searches and a database compiled by the Association of Trial Lawyers of America. In fact, attorneys can network easily and find witnesses from other product liability lawsuits, Mr. Herzlich said. He said he once testified for the defense in a Las Vegas case, then flew to Florida two days later to testify in a separate tire lawsuit and found the Florida attorney already had faxes detailing his testimony in Las Vegas.
Reputation and longevity also are important factors when attorneys are looking for experts, as is the case for Mr. Baumgardner, president of Atlanta-based Tire Consultants Inc. A former tire engineer and engineering manager with Firestone Tire & Rubber Co. for 27 years, Mr. Baumgardner retired from the company and went to work for Mr. Wagner. At that time, he probed 20-30 cases per year; today, he and his son Keith investigate 100-150 cases per year.
Mr. Baumgardner said when he first started investigating tire failures, Mr. Wagner advertised the business in a magazine every other month. He later purchased Tire Consultants from Mr. Wagner and increased the firm's advertising to draw more customers. It didn't take long, however, for Mr. Baumgardner to see that his reputation for handling plaintiffs' cases would establish his clientele.
``Once you testify against the tire companies, you're pretty well dead as far as any business from them again,'' he said, adding that it's pretty much understood in the business that a plaintiffs' expert will stay on that side and vice versa.
Tire experts tend to polarize and become witnesses for the plaintiffs or defense 100 percent of the time even though it doesn't have to be that way, according to Mr. Herzlich, who has testified for both sides. He noted that a ``legitimate argument'' usually ends in a settlement even if the firms being sued disagree with the testimony.
``I've testified against the tire companies that are my clients,'' he said. ``The tire company has got to have respect for your argument. Reasonable people can disagree, and many arguments have two legitimate sides....if (the tire companies) want to hold it against me, it's their privilege, and I'd rather not work for a tire company that operates on that basis.''
Noting he has turned down more than 70 percent of the plaintiffs' cases that have come to him because nothing was wrong with the tires in question, Mr. Baumgardner maintained he had cast his lot by taking so many plaintiffs' cases over the years-but he expressed no regrets. He said as a former engineer, he feels his first priority is to protect motorists' safety.
``I think representing people who have been injured by tires with obvious weaknesses and defects is a much better side to be on,'' Mr. Baumgardner said.
However, Messrs. Wagner and Bozarth, both primarily defense expert witnesses, gave differing opinions as to why they tend to favor one side.
``I do get tires from the plaintiffs' side, but very seldom do I find a justifiable plaintiffs' tire that I want to represent,'' Mr. Wagner explained. ``I have some, yes, but...for example, I had Bridgestone/Firestone's (tires) come in here, I didn't see a tire there that I wanted to defend. I had six or seven of them come in here, but these tires had 35,000-40,000 miles on them.''
Mr. Bozarth said he didn't want to be in a situation where he must testify against tire companies with which he's been affiliated for years, though he has been subpoenaed and questioned by plaintiffs' attorneys. But he said attorneys have tried to corner him as biased for the defense. Recently, he was questioned by plaintiffs' attorneys about previous cases where he had testified against the defense, but none of those lawsuits had involved tire companies.
``They made a point that I had not done a plaintiffs' case that was against a tire company,'' Mr. Bozarth said of the lawyers. ``I said, `You're right.' They said, `Well, would you ever do that?' I said, `Probably not.' ''
Mr. Herzlich said 80 percent of the lawsuit inquiries that come to him are from plaintiffs and of that caseload, he investigates only 20 percent-and he won't take a case where an attorney already has judged a tire defective. He said that occasionally a legitimate defect does cause a tire failure, though many times something observable is the culprit. And in his opinion, expert witnesses should be investigating claims as a ``labor of truth'' rather than for profit.
``If the expert witness is dependent on expert witnessing for his livelihood, it really erodes his objectivity,'' Mr. Herzlich said. ``I always look at objectivity as inversely proportional to overhead. If you have rent to pay and people to pay, you may be forced to take cases that have no merit.''