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McCloud v. Goodyear Dunlop Tires North America

June 3, 2008


The opinion of the court was delivered by: Joe Billy McDade United States District Judge


Before the Court is Defendant's Renewed Motion for Judgment as a Matter of Law [Doc. 390] and accompanying updated Memorandum [Doc. 412]. This Court allowed for additional briefing after the parties received the official Court transcript. Under the Motion, Defendant seeks Judgment as a Matter of Law under Federal Rule of Civil Procedure 50(b), or alternatively a New Trial under Federal Rule of Civil Procedure 59 or a Remittitur of damages. Plaintiff has filed a revised Response [Doc. 415] to Defendant's Motion. For the following reasons, Defendant's Motion is DENIED.


This case arises out of a motorcycle accident that occurred on Interstate 55 in Livingston County, Illinois. Plaintiff, Trish McCloud was riding on the back of a motorcycle driven by William Booker ("Booker"). Together they were returning to Benton Harbor, Michigan from a "blessing of the bikes" event in East Saint Louis, Illinois. (Doc. 224 at 8.)

The motorcycle they were riding on was a 1985 Honda Goldwing with tires that were manufactured by Defendant, Goodyear Dunlop Tires of North America, Ltd. ("Dunlop"). While traveling Northbound on Interstate 55, the rear tire of the motorcycle suffered a blow-out and the couple crashed. As a result of the accident, Plaintiff was permanently and severely disabled. Plaintiff then brought this product liability action against Defendant.

Prior to trial, this Court made several rulings that Defendant re-raises in their current motion. First, this Court denied Defendant's Daubert motion and held that Plaintiff's expert witnesses were qualified to testify regarding the defectively manufactured rear tire. (Doc. 210, March 5, 2007.) Next, this Court denied Defendant's choice of law motion and ruled that Illinois rather than Michigan law applied to this case. (Doc. 276, July 30, 2007.) Finally, during trial it came to light that Defendant had provided a blatantly misleading response to one of Plaintiff's interrogatory questions during discovery. Specifically, Defendant stated in an interrogatory answer that there was no way to discern who inspected the subject tire. In reality, there was a stamping system whereby each tire inspector placed an ink stamp on the subject tire. This number corresponded with the identity of the tire inspector and could be used to trace who inspected the subject tire. Defendant's deceptive answer effectively stopped Plaintiff from conducting a search for the actual individual who inspected the subject tire. Because of this misleading answer during discovery, this Court sanctioned Defendant with a modified missing witness instruction based upon Illinois Pattern Civil Jury Instruction 5.01. This instruction allowed Defendant to explain their misleading interrogatory answer but also allowed Plaintiff to argue to the jury that they had effectively been denied access to a witness who could have provided damaging testimony. (Doc. 373, August 23, 2007.) This Court issued written orders explaining each of these rulings and Defendant has now re-raised each of these issues in their current motion.

At trial, there were two main countervailing themes addressed by the parties. Defendant's primary focus was on the misuse of the tire, and it made the argument that the subject tire was "overdeflected" - a term meaning that the tire was overloaded and under-inflated. To support this position, Defendant presented evidence that Booker's Honda Goldwing had numerous accessories on it that caused the motorcycle to be over the recommended weight. In addition, there was conflicting evidence concerning how often the tire pressure was checked on the subject tire.

Plaintiff challenged this theory on several levels but particularly emphasized that the front tire on the motorcycle did not show any of the signs of overdeflection. (Tr. Vol. IV at 613.) The premise: if the cause of the accident was overdeflection, then both tires would show signs that they had been misused in a similar manner.

Plaintiff's main theme for her case focused on the manufacturing of the tire. A tire is generally composed of reinforcing layers of material or plies. In this case, the layers of the subject tire are as follows: An "innerliner" ply serves as the functional equivalent of an inner tube and is the first ply placed on a tire-building drum. The innerliner ply should not have any cords embedded in it. The next two plies are carcass plies, which have nylon cords embedded in the rubber. These carcass plies help to give the tire strength and shape. The edges of the carcass plies and the innerliner ply are wrapped around beads, which in the finished tire are pressed against a flange on the vehicle wheel rim so the tire can be inflated. After the assembly of the innerliner and carcass plies, two belt plies are added and then two sidewall plies -- the edges of which are also turned up around the beads. The last layer of the tire is the tread ply. The tread ply, as one would expect, is the outer layer of tread which contacts with the road. These plies together are the primary components of a "green tire." During manufacturing, this green tire is then placed in a mold and vulcanized, or subjected to pressure and heat, to produce the finished tire.

Plaintiff's primary liability expert, William Woehrle, concluded that the cords became embedded in the innerliner during manufacturing due to a manufacturing defect known as a "tight tire" or "tight carcass." Essentially, Woerhle concluded that during the manufacturing process, the cords from the carcass plies became embedded in the tire's innerliner. Over time, air was able to migrate from the inner chamber through the layers of the tire out to the sidewall. While the sidewall was able to hold the air for a time, it was not designed to hold air. A bubble formed in this rubber layer which eventually burst, causing the accident. (Tr. Vol. IV at 510-540.)

Defendant challenged this theory with its own experts who not only talked about overdeflection, but also talked extensively about the tire's manufacturing process. Defendant emphasized that because of the mechanized process, if one tire had such a defect, then numerous other tires would have had a similar defect. It emphasized that it had not been contacted by customers who had any similar problems with any other tires that had been distributed around that time. Therefore, it argued, such a defect was highly unlikely. Instead, Defendant's experts pointed to the subject tire and opined that a forensic analysis revealed that due to overdeflection, the cord plies had become embedded in the innerliner causing the leak and the ultimate blow out.

Plaintiff challenged Defendant's theory that the accident was caused by overdeflection with rebuttal expert testimony. Plaintiff called a rebuttal expert, Alan Kasner, who specializes in the chemical reactions that create rubber and polymers. The expert testified that once rubber is vulcanized, it is in a permanent solid state. Therefore, if the cords became embedded in the innerliner after manufacturing by overdeflection, there would be tears or trails in the subject tire from the cords pushing into the inner liner. These trails or tears, according to Kasner, did not exist on the subject tire. As a result, Plaintiff argued that Defendant's theory that the damage was the result of post-manufacturing overdeflection was impossible.

After three weeks of testimony and two days of deliberation, the jury sent out several questions concerning the second page of the jury form. On the second page of the jury form, the jury was asked to assign a percentage of fault to either Defendant or Booker. Despite agreeing to this form, neither party fully explained this page of the verdict form during their closing arguments. The jury first asked for instructions explaining this section, then asked whether this section needed to be completed, and finally asked what the legal consequences were to Booker for assigning him a percentage of fault. In connection with each inquiry from the jury, the Court met with the parties and counsel, sought their recommendation and approval of the Court's response. After the first question, this Court instructed the jury that they have all of their instructions and should decide the case based upon the evidence and the instructions already given. After the second question, the Court told the jury that this portion of the instruction needed to be completed. And finally, after the third question, the Court told the jury to determine the facts and apply the law given by the Court. Specifically, the Court stated that "[t]he consequences, if any, to Mr. Booker, is a question of law for the Court to decide and is not your concern."

After these instruction were given, the jury then returned the following verdict: Plaintiff was awarded $1,500,000.00 for disfigurement and scarring; $4,869,141.50 for mental, physical, and emotional pain and suffering in the past and reasonably likely in the future; $4,869,141.50 for loss of a normal life as experienced in the past and reasonably likely in the future; $472,794.14 for the reasonable value of necessary medical care, treatment, services, and life care needs spent so far; and $3,288,923.00 for the reasonable value of necessary medical care, treatment, services, and life care needs that would reasonably be required. In total, Plaintiff's award was $15,000,000.14.

On the page which apportioned fault between Booker and Goodyear, the jury decided that Booker was five percent at fault for the injuries suffered and Defendant was ninety-five percent at fault for the damages.


Defendants have now filed a Motion asking for judgment as a matter of law, a new trial, or, in the alternative a remittitur. Rather than focus and fully develop a few convincing issues, Defendant has chosen instead to re-raise every major issue previously addressed by the Court and has shot-gunned a plethora of new issues to support its request for relief. See Gagan v. American Cablevision, Inc., 77 F.3d 951, 955 (7th Cir. 1996) (noting that an appellant is much better off fully fleshing out a single issue than adopting the "shotgun approach" in the hope that one of many poor arguments will prevail.) This Court will not rehash Defendant's old arguments. Neither a motion for judgment as a matter of law nor a motion for a new trial can be used as a vehicle to relitigate old matters. Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996). Specifically, this Court will not reconsider arguments that were already addressed regarding Defendant's Daubert motion, Defendant's choice of law motion, and the discovery sanction.

A. Request for Judgment as a Matter of Law

Defendant argues that it is entitled to judgment as a matter of law because Plaintiff failed to prove that a defect existed in the subject tire at the time the subject tire left Defendant's control.

Judgment as a matter of law is appropriate only "[i]f during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue...." Fed.R.Civ.P. 50. When considering a Rule 50 motion, a court must view the evidence in the light most favorable to the non-moving party and must draw all reasonable inferences in that party's favor. Zimmerman v. Chicago Bd. of Trade, 360 F.3d 612, 623 (7th Cir. 2004). A court should disregard any evidence that was favorable to the moving party that the jury was not required to believe, but it must give credence to evidence that was uncontradicted and comes from disinterested witnesses. Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150-51 (2000). The verdict should be overturned only if no reasonable jury could have found in the non-moving party's favor. Erickson v. Wis. Dep't of Corrs., 469 F.3d 600, 601 (7th Cir. 2006).

In the case at bar, Defendant argues that Plaintiff's experts were not able to explain where in the manufacturing process the defect was created. Such a specific explanation is not needed for Plaintiff to have a viable claim. In Welge v. Planters Lifesavers Co., 17 F.3d 209 (7th Cir. 1994), our Appellate Court addressed a product liability claim under Illinois' strict liability law. The Court held that the plaintiff only needed to demonstrate that the product was in a defective condition when it left the defendant's control. The plaintiff in Welge did not need to detail where in the manufacturing process ...

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