McAllister-Lewis v. Goodyear Dunlop Tires North America, LTD. et al

Filing 144

MEMORANDUM OPINION AND ORDER (replacing The Court's Order Document 124 ) Granting The Goodyear Tire & Rubber Company's Motion for Summary Judgment, Doc 80; Granting in Part and Denying in part Defendant Goodyear Tires North America, Ltd. a/k/a Sumitomo Rubber USA, LLC's, Motion for Summary Judgment, Doc. 83. Signed by U.S. District Judge Lawrence L. Piersol on 7/27/2017. (MWT)

JUL 2 7 2017
UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

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JUDITH McALLISTER-LEWIS,

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individually, and as Special Administrator

CIV 14-4103

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ofthe Estate of Robert L. Lewis, Deceased, *
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Plaintiffs,

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vs.

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MEMORANDUM OPINION ON

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DEFENDANTS' MOTIONS

GOODYEARDUNLOP TIRES

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FOR SUMMARY

NORTH AMERICA,LTD., an Ohio

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JUDGMENT,Doc. 80, 83

limited liability company; and

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THE GOODYEAR TIRE & RUBBER

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COMPANY,an Ohio corporation,

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Defendants.

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The Court's Order, Document 124, is withdrawn and replaced by this Memorandum Opinion.

Defendants have moved for summary judgment on seven claimed causes of action. The eight
claimed causes of action are: First, Strict Products Liability - DesignDefect; Second, Strict Products

Liability - Manufacturing Defect; Third,Negligence; Fourth, Failure to Warn - Strict Liability; Fifth,
Negligent Failure to Warn; Sixth, Breach of Implied Warranty of Merchantability; Seventh, Breach
of Implied Warranty of Fitness; and Eighth, Loss of Consortium.

A summary of the facts is that Plaintiff Judith McAllister-Lewis was a passenger on the 2003
Harley-DavidsonUltra Classic Eleetra Glide Motorcycle being driven by her husband, the decedent,
Robert L. Lewis. While traveling west on Interstate 90 in South Dakota on August 7,2010, the rear
tire failed. The tire was manufactured by Goodyear Dunlop Tires France, a non-party. The decedent

lost control of the motorcycle and died as a result of the injuries from the resulting crash. Judith
McAllister-Lewis also suffered injuries from the crash. Ms. McAllister-Lewis and her husband were

pulling a two wheel trailer that had a cooler affixed to the tongue of the trailer ahead of the box on
the trailer.

The relationship of the non-party manufaeturer of the tire to the Defendants is as follows:

Defendant The Goodyear Tire & Rubber Company(Goodyear Tire & Rubber)in Document 32-1
submitted sworn information eonceming the ownership ofGoodyear Dunlop Tires France(Goodyear
Dunlop France),the manufacturer ofthe tire in question. The result after going through ownership
eonceming Goodyear Dunlop Tires France is that Defendant The Goodyear Tire & Rubber
Company, through other companies owns 75% of Goodyear Dunlop Tires France and Defendant

Goodyear Dunlop Tires North America,Ltd.,(Goodyear Dunlop)now Sumitomo Rubber Industries,
Ltd. owns25% ofGoodyear Dunlop Tires France. The intervening holdings that result in Defendant
The Goodyear Tire & Rubber Company OAvning 75% of Goodyear Dunlop Tires France involved:
Property Leasing S.a.r.l.; Goodyear S.A. in Luxembourg; and Goodyear Canada Inc.

DISCUSSION

Even though 75% of Goodyear Dimlop France is ultimately oAvned by Defendant Goodyear

Tire & Rubber, the evidence in the case is that Goodyear Tire & Rubber did not design, import,
distribute or sell the tire in question that says"Dunlop"on the sidewall as does the limited warranty
card accompanying the sale ofthe tire. 75% ultimate OAvnership ofanother company,standing alone,
does not without other factors, warrant a piercing ofthe corporate veil to bring potential liability to
the parent company.

The Court will separately consider each claim for summaryjudgment as to each Defendant.

Defendant Goodyear Dunlop had been purchased by Sumitomo Rubber USA,LLC. The operative
facts of this case all took place while it was still Goodyear Dunlop, and for clarity the Court will
continue to refer to the corporation by that name.

The fust claimed cause of action is strict liability for design defect. Defendants argue
Plaintiffs do not present evidence of a claim on that basis. Plaintiffs agree and that claim will be
dismissed as to both Defendants.

The second claimed cause ofaction is for strict liability for a manufacturing defect. Neither
of the Defendants manufactured the tire in question. The two Defendants do ultimately own the
manufacturer ofthe tire, Goodyear Dunlop France,75% being owned by Goodyear Tire & Rubber,

and 25% being owned by Goodyear Dunlop. Goodyear Tire & Rubber did not import,distribute or
sell the tire while Goodyear Dunlop did import, distribute and sell this tire at wholesale. SDCL 209-9 in many situations precludes strict liability claims for a middleman,referred to in SDCL 20-9-9

as a distributor, dealer, wholesaler or retail seller. Plaintiffs urge the adoption of the apparent
manufacturer doctrine as stated in Restatement(Second)of Torts § 400(1965). That statement

has been superseded by RESTATEMENT (Third) of Torts: Products Liability § 14 (1998). The
doctrine as now stated in § 14 is that "One engaged in the business of selling or otherwise

distributing products who sells or distributes as its own a product manufactured by another is subject
to the same liability as though the seller or distributor were the product's manufacturer." The South

Dakota Supreme Court has not ruled upon the conflict between SDCL 20-9-9 and the apparent
manufacturer common law doctrine. SDCL 20-9-9 was enacted in 1979. It provides that a product's
distributors, wholesalers,dealers or sellers are immune from strict liability exceptfor manufacturers
or those who knew, or in the exercise of ordinary care, should have known, ofthe latent defective

condition ofthe product.' The Courtfinds that SDCL 20-9-9 is with regard to strict liability contrary
to the apparent manufacturer doctrine and thus the apparent manufacturer doctrine with regard to
strict liability would likely not be adopted if and when that issue is presented to the South Dakota

'SDCL 20-9-9 provides:No cause ofaction based on the doctrine ofstrict liability in tort may
be asserted or maintained against any distributor, wholesaler, dealer, or retail seller of a product
which is alleged to contain or possess a latent defective condition unreasonably dangerous to the
buyer, user, or consumer unless said distributor, wholesaler, dealer, or retail seller is also the

manufacturer or assembler ofsaid proc^et or the maker ofa component part ofthe final product, or
unless said dealer, wholesaler, or retail seller knew,or, in the exercise of ordinary care,should have
known,ofthe defective condition ofthe final product. Nothing in this section shall be construed to
limit any other cause of action from being brought against any seller of a product.

The statute presents some questions with regard to strict liability design and strict liability
warning claims. See Dugan,"Reflections on South Dakota's Trifurcated Law ofProducts Liability",
28 S.D. L. Rev.259,271-276(Spring, 1983). The strict liability design and strict liability warning
claims are dismissed for lack of evidence so those conceptual difficulties are not presented in this
case.

Supreme Court. The apparent manufacturer doetrine is set forth in the South Dakota Pattern Jury
Instruction No.20-130-90.^ The South Dakota Pattern instructions do not have the force oflaw but

are helpful and persuasive and all commonly used by this Court and the state courts. There is no
South Dakota statutory or ease law to support the application ofthe apparent manufacturer doctrine
in South Dakota, nor is there any law indicating it should not be applied other than SDCL 20-9-9.

ThePattem Jury Instruction for support only states"Reference:EngZjergv. FordMotor Co.,87 S.D.
196,205 N.W.2d 104(1973)RESTATEMENT of tede Law(Second)Torts,§ 400." In Engberg v.
Ford Motor Co. the South Dakota Supreme Court only recognized for the first time a strict liability
cause of action. The 1979 enactment of SDCL 20-9-9 was clearly a legislative response and a

limiting ofthe strict liability doctrine in South Dakota.

Plaintiffs did not sue the manufacturer ofthe tire in question. Plaintiffs now urge that this

Court should apply the apparent manufacturer doetrine to the current Defendants, neither of whom
manufactured the tire. The South Dakota Supreme Court has never considered whether the apparent
manufacturer doctrine is a part ofthe common law of South Dakota. It is clear that SDCL 20-9-9

in many instances precludes the existence of an apparent manufacturer doctrine when considering
strict liability claims against a middleman. In the present ease, this Coiut in a previous Order, now
-withdrawn, assumed the claimed defect was a latent defect and dismissed the strict liability against
manufacturer claim. Under reconsideration, the Court recognized that whether or not the claimed

defect was "latent" within the meaning ofSDCL 20-9-9 was ajury question. Whether the claimed
defect is "latent" within the meaning of SDCL 20-9-9 depends upon the situation presented to the
middleman distributor, Goodyear Dunlop, when the tire was in its possession, not the situation at

the time of manufacturer by Goodyear Dunlop France. See Lindholm v. BMW ofNorth America,

LLC,2011WL 2838215, at*3(8th Cir. July 3, 2017).^ Plaintiffs argue on the basis ofthe apparent

^Thejury instruction provides:"One who represents as the person's o-wn product, a product
manufactured by another, has the same duty of care as that ofthe manufacturer."
^Discussing SDCL 20-9-9, the Eighth Circuit stated:

As an independent ground for granting summary judgment on the strict-liability claim, the
district court relied on a South Dakota statute that provides that a product distributor cannot be held

manufacturer doctrine that whether or not the claimed defect was "latent" should be decided based

on the situation at the time ofmanufacture. There is expert opinion as to the manufacturing process
that would support a conclusion that at the time of manufacture the claimed defect was not latent.
There is, however,no expert opinion to support a conclusion that the defect was other than latent at

the time the tire was with the middleman, Goodyear Dunlop. In fact. Plaintiffs' expert testified:
Q:

Okay. And [what] you're telling me is: You wouldn't have expected
Lewis or Rosholt or anyone else in the chain, the distribution chain, to
have detected the cord shadows, correct?

A.

Correct.

Statement of Undisputed Facts 119(Docket #85).

strictly liable unless the distributor "knew,or, in the exercise ofordinary care, should have known,
ofthe defective condition ofthe final product." S.D. Codified Laws § 20-9-9. The time for assessing
knowledge that a product is defective is the time that the product was first sold; knowledge acquired
, later is irrelevant. First Premier Bank v. Kolcraft Enters., Inc., 686 N.W.2d 430,452(S.D. 2004),
superseded on other grounds by rule. Supreme Court Rule 06-67, as recognized in Karst, 878
N.W.2dat610n.4.

The Lindholms point out that BMW had received two reports of their jacks failing and
injuring others, giving BMW either knowledge or constructive knowledge that they were defective.
Butthese incidents occurred after the car here was sold in 1997,so they do not reveal anything about
BMW's knowledge atthe relevanttime. The Lindholms also maintain thatBMW should have known

that the jack was defective for the reasons given by the Lindholms' expert. We reject their attempt
to circumvent § 20-9-9; a claimant cannot prove that a distributor knew or should have known that

a product was defective just by proving that the product was defective. Otherwise the application of
the statute would rise and fall with the plaintiffs proof on defectiveness, relegating the statute to
superfluity. If the expert had identified some relevant event that occurred before the sale of the

product, or explained howfhe jack was so manifestly defective that anyone (or any manufacturer)
would have to realize that it was,then maybe the Lindholms' approach would work. But where the

expert merely states reasons why he concludes that a product is defective, we cannot simply impute
the substance ofthe opinion to the distributor. We therefore agree with the district court that § 20-9-9
provides an independent ground for summaryjudgment on the strict-liability claim. Since the record
taken as a whole could not lead a rational jury to find for the Lindholms on this claim, summary
judgment was appropriate.
Lindholm, 2017 WL 2838215, at *3.

There is therefore no jury question to present as to whether the tire had a non-latent defect when it
was in the possession ofthe middleman, Goodyear Dunlop.

There is still another way that Plaintiffs could proceed in strict liability against the
middleman, Goodyear Dunlop. SDCL 20-9-9 goes on to provide that even ifthe claimed defect is

latent, the strict liability claim can still proceed if"said dealer, wholesaler, or retail seller knew,or,
in the exercise ofordinary care,should have known,ofthe defective condition ofthe final product."
There is no evidence that Goodyear Dunlop knew ofany defective condition ofthe tire. Nor is there
any evidence that Goodyear Dunlop should have known of the claimed defective condition ofthe

tire. Accordingly, this exception in the application of SDCL 20-9-9 is not available to Plaintiffs.

A third exception to the application ofSDCL 20-9-9 is ifthe "distributor, wholesaler,dealer,

or retail seller is also the manufacturer or assembler ofsaid product or the maker ofa component part
of the final product." Goodyear Dunlop is not the manufacturer or assembler nor the maker of a

component part of the tire unless it "becomes" the manufacturer by virtue of the apparent
manufacturer doctrine. To make a distributor, wholesaler,dealer,or retail seller into a manufacturer

ofthe product for purposes ofstrict liability by application ofthe apparent manufacturer doctrine is
directly contrary to the intent ofSDCL 20-9-9. Accordingly, under the facts ofthis case, Count II,
strict liability of manufacturer, will not be presented to the jury and Count II is dismissed.

North Dakota also has statutes which more leniently treat the middleman in products liability
cases. The North Dakota statutes, unlike SDCL 20-9-9, are not limited to strict liability product
liability cases but instead are broader in scope and apply to any product liability claim that meets the

broader definitions within the North Dakota statutes. See Bornsen v. Pragotrade,LLC,804 N.W.2d
55(N.D.2011)(holding North Dakota does not recognize apparent manufacturer doctrine given the

North Dakota Product Liability Act and its statutory history). There is no informative legislative

history concerning SDCL 20-9-9. See generally, Spurlin, The Basics ofLegislative History in South
Dakota, 56 S.D. L.Rev. 114(2011).

It is important to note that when the First Restatement was published, setting forth the
apparent manufacturer doetrine,the doctrine ofstrict liability had not yet been adopted by most state

eourts, and non-manufacturer sellers of defeetive products were held to a lesser duty than

manufaeturers ofthose products. See Stein v. Pfizer Inc., 137 A.3d 279,286-292(Md.App. 2016)
(discussing history of the apparent manufacturer doetrine). When striet products liability was

adopted,imposing liability on all entities in the distribution ehain ofa defective product,including
the seller, "some courts and commentators" believed it was questionable whether the apparent
manufacturer doctrine "retained any relevanee." Id. at 290. The authors ofthe Third Restatement

aeknowledge the apparent manufaeturer doctrine has limited application in today's products liability
landscape:

[a]fter inclusion of § 402A in the Restatement, Second, imposing strict liability on
all commercial sellers of defective products for harm caused by product defects, it
was questionable whether § 400 remained relevant in the context of produets
liability. Onee § 402A imposed strict liability on all product sellers it made little, if
any, difference whether the seller of a defective product was a retailer or a
manufacturer.

Id. at 292(quoting Restatement(Third) ofTorts: Products Liability, § 14, cmt. a(1998)).

Punitive damages are also claimed in this lawsuit. There is a coneeptual problem with

awarding punitive damages against a non-manufacturing defendant who is deemed an apparent
manufacturer. The non-manufacturer has no eontrol over manufacturing the produet, so the
imposition ofpunitive damages against a non-manufacturer does not deter the actual manufacturer

from producing defective products, and the fairness and utility of pimishing a non-manufaeturer to
the same extent as the manufaeturer of the defective product is questionable. On the other hand,

punitive damages may bejustified ifa middleman markets defective products in disregard ofknown
dangers to eonsumers. But a punitive damage award in that situation would be based on the

middleman's own misconduct and not based on the manufacturer's misconduct. As a result, if
punitive damages do go to the jury at the end ofthe trial, the apparent manufacturer instruction will
be altered to provide that the doctrine is not applicable to any consideration of whether or not to
award punitive damages as well as what punitive damages, if any, should be awarded.

The Court considered referring the question ofthe interrelationship ofSD.CL 20-9-9 and the
apparent manufacturer doctrine to the South Dakota Supreme Court as can be done pursuant to
SDCL Ch. 15-24A. A similar question was certified by the United States District Court for the

District ofNorth Dakota and resulted in the Bornsen decision,supra. The question was dispositive
of the lawsuit that was pending in Federal District Court in North Dakota. As can be seen by the
analysis in this opinion, the application of the apparent manufacturer doctrine is still not

determinative of all ofthe present claims. As a result, the answer to the question of whether South

Dakota would have a limited apparent manufacturer doctrine which excluded strict liability would
be asking for a decision from the South Dakota Supreme Court that would not be determinative of

this lawsuit. The issue must be determinative to be certified to the South Dakota Supreme Court.
SDCL 15-24A-1.

Defendant Goodyear Tire & Rubber has not been shown to have done or failed to do anything

with the tire in question that would subject it to strict liability. As for Goodyear Dunlop, the strict
liability claim will not be presented to thejury because there is no evidence to present ajury question
on any ofthe exceptions to SDCL 20-9-9 as explained above.

The third cause of action is for negligence. The last sentence in SDCL 20-9-9 provides:
"Nothing in this section shall be construed to limit any other cause of action from being brought
against any seller ofa product." Goodyear Dunlop held the tire out as its "Dunlop" tire and sold the

tire as such. Normally the same model tire would have been produced at a New York state plant of
Goodyear Dunlop. In anticipation of a production disruption in New York, Goodyear Dunlop
secured this and other tires from the manufacturer, Goodyear Dunlop France that had similar but not

identical production methods. Goodyear Dunlop not only held the tire in question out as its own tire

and sold it as its own, but also sought "to limit its liability for defects in the produet." Micjan v.
Wal-MartStores, Inc.,2016 WL 4141085(W.D.Pa. 2016). Accordingly,the negligence claim will
be presented to the jury as to Goodyear Dunlop.

The record shows that Goodyear Tire & Rubber ultimately owns 75% of Goodyear Dunlop
France. Goodyear Tire & Rubber could ultimately exercise control by virtue of its majority
ownership through the other wholly owned corporations, but there is no showing that the subsidiary
is a dummy or a sham corporation or undercapitalized. No basis for piereing the corporate veil has
been shown. Yoder v. Honeywell,Inc., 104 F.3d 1215,1222(10th Cir. 1997). As aresult Goodyear
Tire & Rubber is not estopped from denying that it was the manufaeturer as there has been no

showing warranting the piercing ofthe corporate veil. There may have been reliance upon a name
in purehasing the "Dunlop"tire, but Dunlop is a name that was associated with the other Defendant,
Goodyear Dunlop. The negligence claim against Goodyear Tire & Rubber will be dismissed as

Goodyear Tire & Rubber did not import, distribute, sell or represent the tire as its own produet.
Accordingly, the negligence claim against Goodyear Tire & Rubber must be dismissed.

The fourth claimed cause of action is the strict liability claim for failure to warn. There is

no failure to warn expert testimony. In this case expert testimony on failure to warn is neeessary as
explained in the following negligent failure to warn discussion. The fourth cause of action is
dismissed against Goodyear Dunlop and Goodyear Tire & Rubber.

The fifth elaimed cause of action is for negligent failure to warn. None of the expert
witnesses are qualified to nor claim to give adequacy of warning opinions. In most instances,
including this case, under applicable South Dakota law, expert opinion is required for negligent
failure to warn and strict liability failure to warn cases. Donat v. Trek Bicycle, 2016 WL 297436

(D.S.D. 2016). In cases where there is no warning of danger at all, or the warning is patently
inadequate, expert testimony on failure to warn might not be necessary. That is not the case here as

there are warnings in this case that are not clearly or patently inadequate. There is some question
as to what exactly the warnings were, although the substance ofeach claimed version is do not pull
a trailer behind your motorcycle and pay attention to tire condition and inflation with the rear tire
fully inflated to 40 p.s.i. if heavily loaded and the maximum load is indicated on the sidewall ofthe

tire. There would have to be testimony from a qualified expert explaining how each ofthe warnings
or inadequate warnings included with the tire was the legal cause ofthe death and injuries. Burley
V. Kytec Innovative Sports Equipment,737 N.W.2d 397,411 (S.D. 2007). There is no evidence to
support the claim that there was a negligent failure to warn and that such failure to warn caused the

crash and the resulting death and injuries. Accordingly, the fifth cause of action as to both
Defendants is dismissed.

The sixth and seventh causes ofaction are breach ofimplied warranty as to merchantability
as to the sixth claimed cause of action and as to breach of implied warranty of fitness as to the
seventh cause ofaction. Goodyear Tire & Rubber is not an importer, distributor or seller ofthe tire.

As a result, counts six and seven as against Goodyear Tire & Rubber are dismissed. Even though
Goodyear Dunlop was not the actual manufacturer it was the importer, distributor and wholesale

seller ofthe tire in question, and it need not be the manufacturer to make the implied warranties of
fitness and merchantability. There is an attempt in the Motorcycle Tires Limited Warranty to limit
personal injury damages and dismissing any negligence claims. Those limitations are prima facie
unconscionable SDCL 57A-2-719(3), and the Court under these circumstances finds them to be

unconscionable. In addition,the same limited warranty document in whichever version attempts in
small print to exclude all implied and express warranties except for limited tire replacement. The
attempted exclusions are not conspicuous and they must be conspicuous. SDCL 57A-2-316(2).
Those attempted exclusions are therefore unenforceable. Also, the exclusion of any claim for
damages arising from the negligence ofDunlop is unconscionable. SDCL 57A-2-302. See Durham

V. Ciba-Geigy Corp.,315 N.W.2d 696(S.D. 1982)(disclaimer and exculpatory clause on farm crop
pesticide held unconscionable). Accordingly, the claims against Goodyear Dunlop for breach of

implied warranty ofmerchantability and breach ofimplied warranty as to fitness will proceed to trial.

10

The eighth claimed cause of action is that of Judith McAllister-Lewis for her loss of

consortium. Under South Dakota law as to damages, "loss of consortium pertains to the time
between the accident and death, and no such time existed in this case." as apparently is true in the
present case. Zoss v. Dakota Truck Underwriters, 590 N.W.2d 911,913 (S.D. 1999). The Court
went on to state:

This Court has long recognized that "there is no right ... to a loss of consortium
action, derivative or independent,for the wrongful death ofone's spouse." Selchert
V. Lien, 371 N.W.2d 791 (794(S.D. 1985); see also Hoekstra v. Helgeland, 78 S.D.
82, 111, 98 N.W.2d 669, 684(1959)(stating that the wrongful death statute is an

exclusive remedy). However, in a wrongful death action "the jury may give such
damages as they may think proportionate to the pecuniary injury resulting from such
death to the persons respectively for whose benefit such action shall be brought."
SDCL 21-5-7. Moreover, this Court has consistently held that
pecuniary injury encompasses more than strictly economic losses in

that it includes "the loss ofdecedent's companionship and society as
expressed by, but not limited to,the words 'advice,''assistance,' and
protection," but without consideration for the grief and mental
anguish suffered by the beneficiaries because ofthe wrongful death."

Plaintiffs have now made a pre-trial showing that there is sufficient evidence to present the loss of
consortium damage claim to the jury. This is a damage claim and not a separate cause of action
under South Dakota law. Accordingly,
IT IS ORDERED:

1.

That Plaintiffs' First Cause of Action, Strict Products Liability - Design
Defect, is dismissed as to both Defendants.

2.

That Plaintiffs' Second Cause of Action, Strict Products Liability Manufacturing Defect,is dismissed both as to The Goodyear Tire & Rubber
Company and Goodyear Dunlop Tires North America, Ltd.

3.

That Plaintiffs' Third Cause of Action, Negligence, is dismissed as to The

Goodyear Tire & Rubber Company and that claim will proceed to trial
against Goodyear Dunlop Tires North America, Ltd.
-11

4.

That Plaintiffs' Fourth Cause ofAction, Failure to Warn - Strict Liability, is
dismissed as to both Defendants.

5.

That Plaintiffs' Fifth Cause of Action, Negligent Failure to Warn, is
dismissed as to both Defendants.

6.

That Plaintiffs' Sixth Cause of Action, Breach of Implied Warranty of
Merchantability, is dismissed as to Defendant The Goodyear Tire & Rubber
Company and that claim will proceed to trial against Goodyear Dunlop Tires
North America, Ltd.

7.

That Plaintiffs' Seventh Cause of Action, Breach of Implied Warranty of
Fitness,is dismissed as to Defendant The Goodyear Tire & Rubber Company
and that claim will proceed to trial against Goodyear Dunlop Tires North
America, Ltd.

8.

That the individual claim ofJudith McAllister-Lewis,the Eighth claim. Loss
of Consortium, will proceed to trial not as a separate cause of action but as
a part of the damages claimed against only Goodyear Dunlop Tires North
America, Ltd.

9.

That Defendant The Goodyear Tire'& Rubber Company's Motion for
Summary Judgment, Doc. 80, is granted.

10.

That Defendant Goodyear Dunlop Tires North America, Ltd., a/k/a
Sumitomo Rubber USA,LLC's,Motion for Summary Judgment,Doc. 83,is
granted in part and denied in part.

Dated this

day of July, 2017.
BY THE COURT:

CUSQ
awrence L. Piersol

ATTEST:

United States District Judge

JOSEPH HAAS,CJ^RK

BY:^ ^ ,
Deputy