Benedict v. Hankook Tire Company Limited et al

Filing 343

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 2/6/2018. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

ROBERT BENEDICT,
Plaintiff,

v.

Civil Action No. 3:17-cv-109

HANKOOK TIRE COMPANY
LIMITED, et al. ,
Defendants.
MEMORANDUM OPINION

This matter is before the Court on HANKOOK TIRE COMPANY
LIMITED'S AND HANKOOK TIRE AMERICA COMPANY'S MOTION FOR SUMMARY
JUDGMENT (ECF No. 62) . The Court previously denied Defendants' motion
in its ORDER (ECF No. 221) dated November 27, 2017. The following
Memorandum Opinion sets out the reasoning for having done so.
I .

BACKGROUND

In this products liability action, Robert Benedict sues Hankook
Tire Company Limited ("HTCL") and Hankook Tire America Corporation
("HTAC")

for

the

production and distribution

of an allegedly

defective tire. Defendants seek summary judgment as to Benedict's
active claims.
A.

Undisputed Relevant Facts

On November 14, 2014, Robert Benedict was driving a cement mixer
truck for his employer, Essex Concrete ("Essex"). While travelling

along

Route

288

in

Chesterfield

County,

Virginia,

Benedict's

front-right tire (the "subject tire") suffered a tread separation,
and his truck veered off the right-hand side of the road, struck an
embankment, and rolled over. Benedict was injured in the accident.
The subject tire was a Hankook Aurora TH08 Radial 425/ 65 R22. 5.
It was manufactured by HTCL in 2005 and then shipped to HTAC for
distribution in the United States.
Essex did not purchase the subject tire new or directly from
HTAC. Rather, the subject tire was one of three Hankook Aurora TH08
425/65 R22. 5 tires sold by Hankook tire dealer Old Dominion Tire ("Old
Dominion") to Metro Ready Mix ("Metro") between January 31, 2006 and
June 29, 2007. Essex then purchased the truck at issue from Metro
with the subject tire installed in May 2014.
Essex had no knowledge about the subject tire's history prior
to its acquisition. However, Essex performed an inspection of the
truck when it was purchased, conducted follow-up inspections every
300 hours, and required daily pre-trip inspections by drivers. A
state inspection was also completed in October 2014.
Two cuts extending to the belts have been found on the subject
tire. Federal regulations require removing tires from service if they
suffer cuts of a specified level of severity.
A 2006

Hankook Aurora

tire

catalogue

included a

limited

warranty, which purported to operate in lieu of other warranties.
2

The limited warranty covered tires for six years from the date of
manufacture or five years from the date of purchase, and, therefore,
if it applied to the subject tire it expired well before the accident.
B.

Defect Theory

A detailed description of Benedict's theory of the subject
tire's defects appears in the Court's Opinion addressing Defendants'
motion to exclude the testimony of David Southwell. (ECF No. 342).
In short, Benedict alleges that the subject tire was defective and
hence failed because its components were improperly bonded and had
degraded from oxidization due to an inner liner that was too thin.
See Defs.' Br. 14-15; Pl.'s Opp'n 16-17.
C.

Procedural History

Benedict
liability

initially

negligence

asserted

(including

three

(1)

claims:

manufacturing

defect,

products
design

defect, and failure to warn); (2) breach of the implied warranty of
merchantability; and (3) breach of the implied warranty of fitness
for a particular purpose. First Am. Compl. 5-11. He is now pursuing
only

his

negligent

manufacturing

and

implied

warranty

of

merchantability claims. Nov. 20, 2017 Hr'g Tr. 4.
Defendants raised several affirmative defenses in response,
including

contributory

negligence

and

exclusion

of

implied

warranties. HTCL's Answer to First Am. Compl. 9-10; HTAC's Answer
to First Am. Compl. 9-10.
3

Both sides then moved for summary judgment. Benedict sought
summary judgment as to Defendants' contributory negligence defense.
Defendants sought summary judgment as to Benedict's active claims.
Related to their motion, Defendants also asked this Court to exclude
the testimony of Benedict's tire expert, David Southwell. The Court
ruled on these three motions during a hearing held on November 20,
2017, Nov. 20, 2017 Hr'g Tr. 152, and issued an ORDER {ECF No. 221)
on November 27, 2017 formalizing its decision. This Opinion is thus
one of three detailing the Court's reasoning in this matter.

(ECF

Nos. 341-43).
II.

GOVERNING LEGAL STANDARDS
A.

Summary Judgment

Motions for summary judgment are governed by the following
well-established principles:
Federal Rule of Civil Procedure 56 (a)
instructs that a court "shall grant summary
judgment if the movant shows that there is no
genuine issue as to any material fact and the
movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). A genuine issue of
material fact exists under Rule 56 "if the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248

(1986).

When evaluating a motion for summary
judgment under Rule 56, any disputed "facts must
be viewed in the light most favorable to the
nonmoving party." Scott v. Harris, 550 U.S. 372,
380 (2007). In general, the "party seeking
4

summary judgment always bears the initial
responsibility of informing the district court
of
the
basis
for
its
motion"
and
"demonstrat [ing] the absence of a genuine issue
of material fact." Celotex Corp. v. Catrett, 4 77
U.S. 317, 323 (1986).
United States v. Woody, 220 F. Supp. 3d 682, 685-86 (E.D. Va. 2016).
"Once the moving party properly files and supports its motion for
summary judgment, the opposing party must show that a genuine issue
of fact exists." Milbourne v. JRK Residential Am., LLC, 92 F. Supp.
3d 425, 427 (E.D. Va. 2015).
B.

The Virginia Basic Products Liability Framework

The basic analytical framework applicable to products liability
claims in Virginia 1 is the same whether a plaintiff is bringing a
negligence or breach of implied warranty action. See Jeld-Wen, Inc.
v. Gamble by Gamble, 501 S.E.2d 393, 396 (Va. 1998). In general, a
products liability plaintiff must establish three elements: (1) the
product must contain a "defect which rendered it unreasonably
dangerous for ordinary or foreseeable use"; (2) the defect must have
"existed when it left the defendant's hands"; and (3) the defect must
have "actually caused the plaintiff's injury." Alevromagiros v.
Hechinger Co., 993 F. 2d 417, 420 (4th Cir. 1993) ; see also Jeld-Wen,

1

It is undisputed that Virginia law applies here, given that Virginia
is the state of the injury. See Norris v. Excel Indus., Inc., 139
F. Supp. 3d 742, 747 (W.D. Va. 2015); Sutherlin v. Lowe's Home Ctrs.,
LLC, 3:14-cv-368, 2014 WL 4748530, at *2 {E.D. Va. Sept. 23, 2014);
Ford Motor Co. v. Nat' 1 Indem. Co., 972 F. Supp. 2d 850, 855-56 (E. D.
Va. 2013).
5

501 S.E.2d at 396. 2
For a plaintiff to prove that an "unreasonably dangerous" defect
existed, "[h]e or she must establish the violation of industry or
government standards, or prove that consumer expectations have risen
above such standards." Alevromagiros,

993 F.2d at 422; see also

Sutherlin v. Lowe's Home Ctrs., LLC, 3:14-cv-368, 2014 WL 7345893,
at *8-9 (E.D. Va. Dec. 23, 2014)

(applying this standard in the

manufacturing defect context). Cf. Sutton v. Roth, L.L.C., 361 F.
App'x 543,

546-47

(4th Cir.

2010)

(similar).

These issues are

somewhat layered and, accordingly, the most appropriate approach is
to analyze them in succession. See, e.g., Norris v. Excel Indus.,
Inc., 139 F. Supp. 3d 742, 747-54 (W.D. Va. 2015); Lemons v. Ryder
Truck Rental, Inc., 906 F. Supp. 328, 331-33 (W.D. Va. 1995).
The first element is straightforward. It examines whether there
are government standards applicable to a given product and whether
those standards were violated. See Norris, 139 F. Supp. 3d at 748-49.
If there is no violation of government standards, the same
inquiry is conducted concerning industry standards. Norris, 139 F.
Supp. 3d at 749-51. There are two points worth highlighting at this
stage,

however.

First,

industry

2

standards

mean

"formally

Note that there are other ways to find a product unmerchantable.
See Va. Code § 8.2-314. In the dangerous defect context, however,
the most relevant ground is whether the product is "fit for the
ordinary purposes for which such goods are used," which triggers the
aforementioned test. See id.; Jeld-Wen, 501 S.E.2d at 396.
6

promulgated" standards, such as those adopted by official industry
organizations, not "mere ind us try custom. " See id. at 7 4 9-5 0; Tunne 11
v. Ford Motor Co., 4:03-cv-74, 2004 WL 1798364, at *3, 7 (W.D. Va.
June 21, 2004), adopted in relevant part, 2004 U.S. Dist. LEXIS 32435
(W.D. Va. Aug. 25, 2004). Second, an absence of such standards does
not end the analysis but rather triggers an "in-between" step (the
"expert safety" step) before consumer expectations are assessed.
See, e.g., Alevromagiros, 993 F.2d at 421; Blevins v. New Holland
N. Am., Inc., 128 F. Supp. 2d 952, 957-58 (W.D. Va. 2001); Lemons,
906 F. Supp. at 331-33.
This "expert safety" step authorizes courts to rely on expert
testimony to determine whether a product is unreasonably dangerous
when there is no "established norm in the industry," and that
assessment is made without evaluating what reasonable consumers
expect. See Alevromagiros, 993 F.2d at 421 (quoting Ford Motor Co.
v. Bartholomew, 297 S.E.2d 675, 679 (Va. 1982)); see also Blevins,
128 F. Supp. 2d at 957; Lemons, 906 F. Supp. at 331-32. In Bartholomew,
for instance, as described by the Fourth Circuit in Alevromagiros:
The [Supreme Court of Virginia] found that the
automobile industry had not yet promulgated
safety standards relating to this particular
problem. Consequently, the court admitted the
opinion of plaintiff's expert that the car's
design was unreasonably dangerous, based on
information
published
by
the
[NHTSA],
consultation
with
other
experts,
and
experiments with transmission systems . . . .
7

Alevromagiros, 993 F.2d at 421; Bartholomew, 297 S.E.2d at 679-80.
Likewise, in Lemons, the court held that: (1) "Virginia law permits
the admission of expert opinions on safety in the absence of an
industry standard";

and

(2)

only after

"fail [ing]

to prove a

violation of an industry or government safety standard, or . . . any
other safety standard, plaintiff must establish that reasonable
consumer expectations were violated." Lemons, 906 F. Supp. at 332.
Other courts have reached similar conclusions. See Wilder v. Toyota
Motor Sales, U.S.A., Inc., 23 F. App'x 155, 156-57 (4th Cir. 2001)
(per curiam)

(citing Lemons, 906 F. Supp. at 332-33); Hartnett v.

Globe Firefighter Suits, Inc., 155 F.3d 559, at *2 (4th Cir. June
29, 1998) (per curiam) (table) ; Freeman v. Case Corp., 118 F. 3d 1011,
1016-17 (4th Cir. 1997); Norris, 139 F. Supp. 3d at 750-51; Tunnell,
2004 WL 1798364, at *5-8; Blevins, 128 F. Supp. 2d at 957; Lamonds
v. Gen. Motors Corp., 96-0067-C, 1998 WL 372633, at *1-2 (W.D. Va.
June 25, 1998); Duncan v. Hyundai Motor Co., CLl0-0503, 2013 WL
9564176, at *4 (Va. Cir. Ct. Nov. 1, 2013), rev'd on other grounds
sub nom. Hyundai Motor Co., Ltd. v. Duncan, 7 66 S. E. 2d 8 93 (Va. 2015) . 3

3

Sometimes Fourth Circuit products liability opinions do not
evaluate the expert safety step. See, e.g., Sutton, 361 F. App'x at
547-48; Tunnell v. Ford Motor Co., 245 F. App'x 283, 286-88 {4th Cir.
2007) (per curiam); Lescs v. William R. Hughes, Inc., 168 F.3d 482,
at *11-13 (4th Cir. 1999) (per curiam) (table); Redman v. John D.
Brush & Co., 111F.3d1174, 1177-81 (4th Cir. 1997). Most do not do
so for good reason. In Sutton, for example, the court examined whether
the plaintiff had presented any evidence of a standard of care, and
8

Not just any expert testimony, however, will satisfy the expert
safety step. Rather, expert opinions must be analytically rigorous
and not merely "subjective." See Freeman,

118 F.3d at 1016-17;

Alevromagiros, 993 F.2d at 421. 4 An appropriate expert opinion will
be one that, for example, is based on "a review of the literature,
experiments and consultations with other experts." See Blevins, 128
it determined that he did so by satisfying the consumer expectations
element. See Sutton, 361 F. App' x at 54 7-48. In Redman, the plaintiff
had no qualified expert who could have satisfied the expert safety
step, so reaching that issue would have been unnecessary. See Redman,
111 F. 3d at 1179-80. In Tunnell, only the consumer expectations prong
appears to have been before the court, and, similar to Redman, the
court upheld exclusion of the plaintiff's expert. See Tunnell, 245
F. App'x at 286-88. And in Lescs, there likewise was no expert
testimony that could have supported an expert safety step argument.
See Lescs, 168 F.3d at *11-13; see also Lescs v. Dow Chem. Co., 976
F. Supp. 393, 400 (W.D. Va. 1997) ("In fact, her own expert has
testified that he is unable to give an opinion with regard to whether
or not Dursban is unreasonably dangerous.").
Furthermore, other Fourth Circuit opinions acknowledge the
existence of the expert safety step. See Wilder, 23 F. App'x at 157
(citing Lemons, 906 F. Supp. at 332-33); Hartnett, 155 F.3d at *2;
Freeman, 118 F.3d at 1016-17; Alevromagiros, 993 F.2d at 421. And
Virginia courts do as well. See Bartholomew, 297 S.E.2d at 679;
Duncan, 2013 WL 9564176, at *4.
Finally, because comprehensive analyses of the law in this area
are sparse, there seems to be some confusion as to the governing legal
framework. To decide this motion, it is necessary, therefore, to set
the framework as the Court understands it.
4

Alevromagiros's discussion of the expert opinion at issue in some
places combined the industry standards, expert safety, and consumer
expectations elements. See Alevromagiros, 993 F. 2d at 421. Its
message was that the expert failed to establish any of these grounds
for liability. Id. It is often cited, however, to inform the standard
of analytical rigor required at the expert safety step. See Freeman,
118 F.3d at 1016-17; Lamonds, 1998 WL 372633, at *2; Lemons, 906 F.
Supp. at 332; see also Blevins, 128 F. Supp. 2d at 957.
9

F. Supp. 2d at 957; see also Freeman, 118 F.3d at 1016-17 (holding
that an expert's opinion was adequate where he "clearly applied his
expertise and knowledge of the published sources and drew from his
detailed

inspection

of

the

product

itself

in

evaluating

the

configuration at issue"); Alevromagiros, 993 F.2d at 421 ("[T]here
is neither an absence of industry standards, nor an expert opinion
based on extensive testing and published reports."); Lamonds, 1998
WL 372633, at *2 (" [T] he Alevromagiros expert failed to conduct tests
on the allegedly defective product, did not refer to any literature
in the field, and did not consult industry standards. Conversely,
the expert in Freeman reviewed published reports,

inspected the

product at issue, and performed tests on the product." (citations
omitted)); Lemons, 906 F. Supp. at 332 (asserting that Alevromagiros
required "an expert opinion based on extensive testing and published
reports" and that Bartholomew held "that an expert opinion had proper
foundation where the expert studied relevant federal manuals and
data,

consulted with other experts,

and experimented with the

specific product alleged to have caused the accident as well as
several competing products" (citations omitted)).
Finally, if no defect can be established on the basis of industry
standards, the final step is to examine whether the product failed
to satisfy consumers' reasonable expectations. See, e.g., Norris,
139 F. Supp. 3d at 751. This element can be met through evidence of
10

"actual industry practices, knowledge at the time of other injuries,
knowledge of dangers, the existence of published literature, and from
direct evidence of what reasonable purchasers considered defective
at the time." Id. {citations omitted); see also Alevromagiros, 993
F.2d at 420-21. At this stage, although "conformity with industry
custom does not automatically absolve a manufacturer or seller of
a product from liability .
is

no

evidence

to

show

[it] 'may be conclusive when there
that

it

was

not

reasonably

safe.'"

Alevromagiros, 993 F.2d at 421 n.6 {citations omitted).
III. DISCUSSION
A.

The Expert Testimony Argument

Defendants'

first argument is that Benedict cannot survive

surrunary judgment without expert testimony. Defs.' Br. 11-13. Thus,
if this Court were to have granted Defendants' motion to exclude
Southwell's testimony, Benedict's claims should fail as a matter of
law. Defs.' Br. 13. Because the Court denied that motion, however,
it is not necessary to address what might have happened if Southwell' s
testimony had been stricken.
B.

The Negligent Manufacturing Claim
1.

The Applicable Legal Standards
Negligent Manufacturing Claim

Governing

the

The primary issue to be resolved is the extent to which, under
Virginia law, claims asserting negligent manufacturing necessitate
11

more proof than the basic products liability framework. Defendants
assert that Benedict must establish a distinct "standard of care"
against which Defendants' conduct can be measured. Defs.' Br. 13-22;
Defs.'

Reply Br.

2-5.

Benedict counters that no particularized

standard of care need be shown and that the inquiry instead should
"focus on the dangerous nature of the product." Pl.'s Opp'n 4-9,
16-17. Benedict is largely correct.
It is Defendants' view that not to require proof of a standard
of care would essentially transform negligent manufacturing claims
into breach of warranty or strict liability claims. See Defs.' Reply
Br. 2-5. Viewed as theory, that position is not an erroneous one.
However, Virginia largely has abandoned the distinctions between
negligence and non-negligence causes of action in products liability
actions. And Virginia decisional law has done so notwithstanding the
fact that Virginia officially does not recognize the doctrine of
strict products liability. See Harris v. T. I., Inc., 413 S. E. 2d 605,
609-10 (Va. 1992); Sensenbrenner v. Rust, Orling

&

Neale, Architects,

Inc., 374 S.E.2d 55, 57 n.4 {Va. 1988).
Virginia decisions have obtained this result by treating the
"negligence" and "standard of care" inquiries in such cases as
inextricably "bound up" with the question of whether the product at
issue

is

"unreasonably

dangerous."

In

essence,

Virginia

law

considers a defendant to be negligent and to have violated the
12

standard of care if it produces an unreasonably dangerous product
that causes injury.
This "bound up" principle is supported by a long line of
decisions that routinely cite the basic products liability inquiry
described above as the standard governing negligence actions, often
stating, for example: "[t]o prevail in a products liability case
under Virginia law, the plaintiff must prove": {1) "that the product
contained a defect which rendered it unreasonably dangerous for
ordinary or foreseeable use"; (2) "that the defect existed when it
left the defendant's hands"; and {3) causation. See Alevromagiros,
993 F.2d at 420 (emphasis added); see, e.g., Wilder, 23 F. App'x at
156-58; Redman v. John D. Brush & Co., 111F.3d1174, 1177 (4th Cir.
1997); Sutherlin, 2014 WL 7345893, at *7-8; Jeld-Wen, 501 S.E.2d at
396; Morgen Indus., Inc. v. Vaughan, 471 S.E.2d 489, 492 (Va. 1996);
Slone v. Gen. Motors Corp., 457 S.E.2d 51, 54 (Va. 1995); Logan v.
Montgomery Ward & Co., Inc., 219 S.E.2d 685, 687 (Va. 1975) . 5 This
standard governs, moreover, regardless of whether the claim sounds
in negligence or breach of warranty. See, e.g., Jeld-Wen, 501 S.E.2d
at 396; Morgen Indus., 471 S.E.2d at 492; Slone, 457 S.E.2d at 54;
Logan, 219 S.E.2d at 687; see also Musick v. Dorel Juvenile Grp.,
Inc., 847 F. Supp. 2d 887, 901 {E.D. Va. 2012), aff'd sub nom. S.L.M.

5

The causation element is not always separately mentioned. See,
~' Jeld-Wen, 501 S.E.2d at 395-97; Slone, 457 S.E.2d at 53-54;
Logan, 219 S.E.2d at 687.
13

ex rel. Musick v. Dorel Juvenile Grp., Inc., 514 F. App'x 389 (4th
Cir. 2013)

(per curiam) (rejecting an argument that the given jury

"instructions improperly collapsed [the plaintiff's warranty and
negligence]

theories . . . into

a

single

concept

of

'defect'"

because these claims essentially have the same elements). In fact,
the Supreme Court of Virginia has expressly held that asserting the
main elements of the basic products liability inquiry is sufficient
to sustain a claim. See Slone, 457 S. E. 2d at 54 (holding that summary
judgment was improper where the plaintiff "pled, in his negligence
and breach of warranty claims, that the truck cab was unreasonably
dangerous, that the unreasonably dangerous condition existed when
it left General Motors' possession, and that the possibility of a
'rollover,' a misuse, was reasonably foreseeable on the part of
General Motors." (emphasis added)).
Virginia's adherence to the "bound up" principle is underscored
by the fact that Virginia law still does treat negligence-based
products liability claims as governed by traditional negligence
concepts. For example, in Holiday Motor Corp. v. Walters, the Supreme
Court of Virginia observed that "[o]ur well-settled jurisprudence
establishes that the manufacturer of a product is only under a duty
'to exercise ordinary care to design a product that is reasonably
safe for the purpose for which it is intended. '" Holiday Motor Corp.
v. Walters, 790 S.E. 2d 447, 455 (Va. 2016) (quoting Turner v. Manning,
14

Maxwell & Moore, Inc., 217 S.E.2d 863, 868 {Va. 1975)); see also
Dameron v. Fort Worth Steel & Mach. Corp., LE 1626, 1985 WL 306781,
at *3-4 (Va. Cir. Ct. Mar. 26, 1985). This "duty" element, however,
adds little to the analysis beyond the basic products liability
framework and does not require further evidence of a standard of care.
First, when the issue of duty arises explicitly in Virginia
state courts, the question is typically whether the law imposes a
duty at all rather than how to define the standard of care delineating
the contours of that duty. See, e.g., Walters, 790 S.E.2d at 455-58;
Jeld-Wen, 501 S.E.2d at 396-97; Slone, 457 S.E.2d at 53-54; Turner,
217 S.E.2d at 868-69; Dameron, 1985 WL 306781, at *3-4, 7. Even in
this context, however, the inquiry is guided by the basic products
liability framework. The touchstone of the duty question is often
whether an

item has

foreseeable" way.

been used in an "intended or

See,

e.g.,

Walters,

reasonably

790 S.E.2d at 455,

458;

Jeld-Wen, 501 S.E.2d at 396-97; Slone, 457 S.E.2d at 53-54; Turner,
217 S.E.2d at 868; see also Morgen Indus., 471 S.E.2d at 492 (holding
that there was sufficient evidence that a particular use of a product
was foreseeable but attributing the analysis to the basic products
liability framework rather than the duty inquiry). And in Walters,
the court performed a duty analysis in part by examining whether there
were

government

standards,

industry

standards,

expectations on point. Walters, 790 S.E.2d at 455-58.
15

or

consumer

Second, the existence of a distinct duty does not meaningfully
differentiate negligence-based claims from warranty-based ones. In
Walters, for instance, the Supreme Court of Virginia treated the duty
elements of negligence and breach of warranty theories as largely
equivalent:
Our
well-settled
jurisprudence
establishes that the manufacturer of a product
is only under a duty "to exercise ordinary care
to design a product that is reasonably safe for
the purpose for which it is intended."
Similarly, "an implied warranty of general
merchantability [arises] when the product is
being used in the manner intended for it. The
implied warranty does not apply when the product
is being used in a manner or for a purpose for
which it was not intended." Thus, "the standard
of safety of goods imposed on . . . the
manufacturer of a product is essentially the
same whether the theory of liability is labeled
warranty or negligence. The product must be fit
for the ordinary purposes for which it is to be
used."
See Walters, 790 S.E.2d at 455 (emphasis added) (citations omitted).
Walters then explains that "the purpose of making the finding of a
legal duty as a prerequisite to a finding of negligence, or breach
of implied warranty, in products liability is to avoid the extension
of liability for every conceivably foreseeable accident, without
regard to common sense or good policy." Id. (emphasis added) (quoting
Jeld-Wen, 501 S.E.2d at 397). A footnote to this sentence then noted
that a breach of either duty is shown by proving that "the product
contained an unreasonably dangerous condition that existed when the
16

product left the defendant's hands." See id. at 455 n.14.
Third, when Virginia state court decisions do touch on the
breach of duty or standard of care issue, they reveal that the issue
is defined by the basic products liability test. In Walters, for
instance, the Supreme Court of Virginia observed that "[e]xistence
of duty," i.e., whether the law imposes a duty at all, "is an issue
that is separate and distinct from its breach." See Walters, 790
S. E. 2d at 455 n .14. It then noted that "to establish a breach of duty
in a product liability action," i.e., a violation of the standard
of care in the negligence context, a plaintiff must satisfy the basic
products liability inquiry. See id.
Likewise,

in Dameron,

a Virginia Circuit Court offered a

detailed description of the duty of care applicable to manufacturers:
It is a fundamental principle that the
manufacturer of a product is held to a standard
of reasonable care. The duty of reasonable care
is that care, skill, and diligence in and about
the process of manufacturing and preparing for
market that a reasonably skillful and diligent
person or a reasonably prudent person would use
under the same or similar circumstances. Thus,
a manufacturer of an article has the duty of
exercising reasonable care at least to see that
there is no risk of injury from negligent
manufacture where the article is used in the
ordinary manner for which it is intended. The
manufacturer has the duty to see that the
article is free of any potentially dangerous
defect or defect that might be expected to
produce personal injuries or property damage.
In addition, the manufacturer has the duty of
making the product reasonably safe for any
anticipated emergency and he must provide
17

proper safety devices where required under the
circumstances and under the duty of reasonable
care.
Dameron, 1985 WL 306781, at *3 {emphasis added) {citations omitted).
It then stated, however:
In
a
negligence
action
against
a
manufacturer in Virginia the plaintiff must
show: {1) that the goods were unreasonably
dangerous either for the use to which they would
ordinarily be put or for some other reasonabley
[sic] foreseeable purpose, and (2) that the
unreasonably dangerous condition existed when
the goods left the defendant's hands.
Id. at *4 (citations omitted). In short, as in Walters, the court
concluded that a breach of the manufacturer's duty of ordinary care
is determined by applying the basic products liability test.
Additionally, in Turner, the court recognized that even if the
use of a product were foreseeable, "[industry] custom or usage may
be conclusive" as to whether "due care was exercised" where "there
is no evidence to show that it was not reasonably safe." Turner, 217
S. E. 2d at

8 68

{emphasis added) .

Industry custom is a standard

captured by the basic products liability framework, and Turner's
language has been interpreted as relating to that framework. See
Alevromagiros, 993 F.2d at 421, 421 n.6.
Fourth, federal opinions likewise define the breach of duty or
standard of care issue with reference to the basic products liability
inquiry.

For example,

in Sutton,

the Fourth Circuit held that

evidence of a standard of care is required in a products liability
18

action but that "government standards, industry standards, or the
reasonable expectations of consumers can constitute evidence of a
standard of care." Sutton, 361 F. App'x at 546-47. Similarly, in
Holmes v. Wing Enterprises, Inc., this Court viewed the issue of
whether the product violated any relevant standards as encompassing
the standard of care question. See Holmes v. Wing Enters., Inc.,
1:08-cv-822, 2009 WL 1809985, at *6-8 (E.D. Va. June 23, 2009) (citing
the basic products liability test and then stating:
industry-promulgated ANSI standards

"Here,

the

. are directly on point and

help guide the standard of care analysis in this case" (emphasis
added)). Additionally, in Marshall v. H. K. Ferguson Co., Judge
Sprouse, dissenting on unrelated grounds,

offered the following

illuminating overview of a manufacturer's duty:
A manufacturer is under a duty to exercise
ordinary care to design a product that is
reasonably safe for the purpose for which it is
intended. As the majority opinion correctly
notes, plaintiff thus has the burden of proving
that
(1)
the
[product] was unreasonably
dangerous either for the use to which it would
ordinarily be put or for some other reasonably
foreseeable
purpose,
and
that
( 2)
the
unreasonably dangerous condition existed when
the machine left the defendant's hand.
Marshall v. H. K. Ferguson Co., 623 F.2d 882, 887 (4th Cir. 1980)
(Sprouse,

J.,

dissenting)

There are other examples.

(emphasis added)
See,

e.g.,

(citations omitted) .

Harter v.

Ethicon,

Inc.,

2:12-cv-737, 2016 WL 7407425, at *4 {S.D. W. Va. Dec. 15, 2016); Ali
19

v. Allergan USA, Inc., 1:12-cv-115, 2012 WL 3692396, at *7-8 (E.D.
Va. Aug. 23, 2012).
The "bound up" principle is further confirmed by the Virginia
Model Jury Instructions. 6 They validate this principle in two ways.
First,

the Instructions substantiate the conclusion that a

negligence claim does not require more than an implied warranty
theory. Instruction 34.075, titled Breach of Warranty (Negligence)
By Seller or Manufacturer, contains alternative entries for breach
of warranty and negligence that precisely mirror each other:
The defendant (seller, manufacturer) has
breached the implied warranty that the product
is fit for the purposes for which it is
ordinarily used if the plaintiff proves by a
preponderance of the evidence that the product
was unreasonably dangerous either for the use
to which it would ordinarily be put or for some
other reasonably foreseeable purpose, and that
the unreasonably dangerous condition existed
when
the
product
left
the
defendant's (seller's, manufacturer's) hands.
[The defendant is negligent if the
plaintiff proves by a preponderance of the

6

These instructions have not been officially "adopted []or approved"
by the Supreme Court or Court of Appeals of Virginia. Va. Model Jury
Instructions-Civil, Fwd. Nevertheless, they are produced by "a
committee of judges and attorneys" appointed by the Chief Justice
of the Supreme Court of Virginia and "charged with preparing model
instructions for use in the courts of th[e] Commonwealth." See id.
They have also been cited with approval by Virginia courts. See, e.g. ,
Dorman v . St ate Ind us . , Inc . , 7 8 7 S . E • 2 d 13 2 , 14 0 , 14 0 n . 5 (Va . 2016) ;
Ford Motor Co. v. Boomer, 736 S.E.2d 724, 728 (Va. 2013). And they
are widely used in federal courts. See, e.g., Coleman v. United
States, 12-cv-03801, 2014 WL 1660264, at *5 (D. Md. Apr. 23, 2014);
Musick, 847 F. Supp. 2d at 900.
20

evidence that the product was unreasonably
dangerous either for the use to which it would
ordinarily be put or for some other reasonably
foreseeable purpose, and that the reasonably
[sic] dangerous condition existed when the
product
left
the
defendant's
(seller's,
manufacturer's) hands.]
Va. Model Jury Instructions-Civil, Instruction No. 34.075.
Second, the Instructions treat the basic products liability
inquiry as defining "negligence" and consider satisfaction of this
test as equivalent to a breach of the standard of care. Instruction
34.140 advises that:
A manufacturer has a duty to use ordinary
care to design
[manufacture; construct]
a
product that will be reasonably safe for its
intended purpose and for any other reasonably
foreseeable purpose.
If a manufacturer fails
duty, then it is negligent.

to perform this

Va. Model Jury Instructions-Civil, Instruction No. 34.140 (emphasis
added). Instruction 34.075 then states, in relevant part:
The
defendant
is
negligent
if
the
plaintiff proves by a preponderance of the
evidence that the product was unreasonably
dangerous either for the use to which it would
ordinarily be put or for some other reasonably
foreseeable purpose, and that the reasonably
[sic] dangerous condition existed when the
product
left
the
defendant's
(seller's,
manufacturer's) hands.
Va. Model Jury Instructions-Civil, Instruction No. 34.075 (emphasis
added) .
21

In short, Virginia law adheres to the "bound up" principle. That
is, it uses the language of negligence, but it defines the elements
of negligence and the standard of care inquiry in defective product
cases, including those involving negligent manufacture claims, by
reference to the basic products liability framework. Accordingly,
Virginia law requires no additional evidence of a standard of care
beyond that called for by this framework. 7
The

Court

acknowledges

that

some

authorities

appear

to

contradict the foregoing analysis, at least at first blush. The
primary source relied upon by Defendants is Chestnut v. Ford Motor
Co., 445 F.2d 967 (4th Cir. 1971). See Defs.' Br. 13; Defs.' Reply
Br. 3-4. There, the Fourth Circuit observed:
The
standard
of
safety . . . is
essentially the same whether the theory of
liability is labelled warranty or negligence or
strict tort liability: the product must not be
unreasonably dangerous at the time that it
leaves the defendant's possession if employed
in the manner in which it was intended to be used

7

It is worth noting that Virginia has adopted a similar analytical
approach in the implied warranty context. Virginia courts hold "that
' [ i] n order to prove that a product is not merchantable, the
complaining
party must
first
establish
the
standard
of
merchantability in the trade.'" See, e.g., Hubbard v. Dresser, Inc.,
624 S.E.2d 1, 5 (Va. 2006) (citations omitted). With respect to
dangerous product defects, however, this standard is defined by
reference to the basic products liability test and whether there are
government standards, industry standards, or consumer expectations
on point. See Duncan, 2013 WL 9564176, *3-4; see also Duncan, 766
S.E.2d at 898 n.8. Accordingly, the standard of merchantability is
rarely mentioned in this context. See, e.g., Slone, 457 S.E.2d at
53-54; Logan, 219 S.E.2d at 687; see also Lescs, 168 F.3d at *11.
22

or put to a special use known beforehand by the
defendant.
The only difference between negligence and
strict tort liability is that the plaintiff
attempting to prove negligence must prove an
additional element, i.e., not only that the
product was dangerously defective at the time
that it left the defendant's hands, but also
that the defect was the result of the
defendant's failure to exercise due care.
Chestnut, 445 F.2d at 968-69 (emphasis added}.
Of

course,

this

Court

must

adhere

to

Fourth

Circuit

interpretations of Virginia law absent an intervening decision by
the Supreme Court of Virginia or a change in Fourth Circuit law made
en bane. See Spirax Sarco, Inc. v. SSI Eng'g, Inc., 122 F. Supp. 3d
408, 419 (E.D.N.C. 2015}; see also Reiser v. Residential Funding
Corp.,

380 F. 3d 1027, 102 9 (7th Cir. 2004) ; Batts v.

Tow-Motor

Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995}. Cf. Derflinger v.
Ford Motor Co., 866 F.2d 107, 110 (4th Cir. 1989)

("Simply stated,

'[s]tare decisis requires that we follow our earlier determination
as to the law of a state in the absence of any subsequent change in
the state law.'") . Nevertheless,

there are several reasons why

Chestnut does not change the outcome here.
First, in Chestnut, the Court of Appeals did not clarify whether
it was examining Virginia law. See Chestnut, 445 F.2d at 968-70, 970
n.3. Indeed, it declined to do so, explaining that "[w]hether the
law of Virginia, West Virginia or Michigan is applicable was not
23

considered either in briefs or oral argument." Id. And it is not
possible to deduce whether Chestnut's exposition on the differences
between negligence and strict liability was intended to refer to
Virginia law, West Virginia law, Michigan law, some other state's
law, or general principles of law. The only citations offered, which
appear in footnotes, are to a treatise, the Restatement (Second) of
Torts, and one Northern District of Indiana case applying Indiana
law. See id. at 968-69, 968 n.1, 969 n.2; see also Greeno v. Clark
Equip. Co., 237 F. Supp. 427, 429 (N.D. Ind. 1965).
Second, Chestnut was decided in 1971. Since that time, the
decisions of the Supreme Court of Virginia on the issue have aligned
with the interpretation of Virginia law outlined above. And, in
exercising its diversity jurisdiction, this Court must "apply the
governing state law,

or,

if necessary,

predict how the state's

highest court would rule on an unsettled issue." Horace Mann Ins.
Co. v. Gen. Star Nat'l Ins. Co., 514 F.3d 327, 329 (4th Cir. 2008).
Accordingly,

the Court is obliged to regard as controlling the

decisional law, after Chestnut, that is binding in Virginia.
Third, to the extent that Chestnut contradicts the foregoing
interpretation of Virginia law and requires extra evidence of a
standard of care, it also di verges from the Fourth Circuit's own more
recent assessment of the issue. To begin, Chestnut is at odds with
Alevromagiros and more recent opinions, rendered in perspective of
24

post-Chestnut Virginia decisions,

that apply the basic products

liability framework to negligence-based claims. See, e.g., Wilder,
23 F. App'x at 156-58; Talley v. Danek Med., Inc., 179 F.3d 154,
157-58,

162

(4th

Cir.

1999);

Redman,

111

F.3d

at

1177-78;

Alevromagiros, 993 F.2d at 420.
And in Sutton, moreover, the Fourth Circuit expressly held that
evidence of a standard of care is required in products liability cases
but that no additional evidence beyond that already called for by
the basic products liability framework is necessary. Sutton, 361 F.
App'x at 546-47. It is true that this decision is unpublished and
thus "not binding precedent." Id. at 544. Nevertheless, it does
reflect

persuasive

reasoning

by

the

Fourth

Circuit

after

consideration of contemporary case law, see DeMasters v. Carilion
Clinic, 796 F.3d 409, 419 n.4 (4th Cir. 2015), and it shows that an
interpretation of Chestnut that is at odds with the foregoing outline
of current Virginia law does not control. 8

8

Defendants also cite Moyers v. Corometrics Medical Systems, Inc.,
210 F.3d 361 (4th Cir. 2000) (per curiam} (table}, which they believe
supports an interpretation of Chestnut that requires additional
evidence of a standard of care. See Defs.' Reply Br. 2-4. There, the
Court of Appeals noted that "the duties imposed under the theories
of negligence and implied warranty of rnerchantabili ty vary slightly"
and that a warranty theory "focuses on the product and its attributes,
while a negligence theory focuses on the defendant's conduct."
Moyers, 210 F. 3d at *5, 5 n. 6. Moyers, in turn, cited Abbott by Abbot
v. American Cyanamid Co., which likewise observed that a warranty
theory "focus[es] on the product and its attributes," whereas a
negligence theory "focus [es] on the defendant's conduct." See
25

Fourth,

it is not altogether clear that Chestnut actually

conflicts with this Court's understanding of Virginia law. The whole
point of the "bound up" principle is that, as Chestnut suggests,
failure

to

exercise

due

care

is

a

required

element

of

negligence-based products liability cases. See, e.g., Walters, 790
S.E.2d at

455;

Dameron,

1985 WL 306781,

Instructions-Civil,

Instruction

principle,

this

however,

element

products liability inquiry.

See,

No.
is

at *3;

34.140.

Va.

Model Jury

According

to

this

just defined by the basic

e.g.,

Sutton,

361 F.

App' x at

546-47; Walters, 790 S.E.2d at 455 n.14; Dameron, 1985 WL 306781,
at *3-4; Va. Model Jury Instructions-Civil, Instruction No. 34.075;
see also Dreisonstok v. Volkswagenwerk, A. G., 489 F.2d 1066, 1068
n.2 (4th Cir. 1974)

(citing Chestnut for the proposition that "it

Moyers, 210 F.3d at *5 n.6; Abbott by Abbot v. Am. Cyanamid Co. 844
F.2d 1108, 1115-16 (4th Cir. 1988). These remarks, however, provide
no guidance as to how to prove that a defendant's conduct was
negligent; as described above, Virginia law evaluates negligence
through the lens of the basic products liability inquiry.
Furthermore, given that Fourth Circuit and Virginia cases decided
after these opinions align with the interpretation set forth herein,
Defendants' citation does not greatly affect the analysis. See, e.g.,
Sutton, 361 F. App'x at 546-47; Walters, 790 S.E.2d at 455, 455 n.14.
And as discussed below, the idea that negligence-based claims
nominally differ from warranty claims is not inconsistent with the
"bound up" principle.
Moyers did enumerate a few differences between negligence and
warranty theories respecting failure to warn claims. See Moyers, 210
F.3d at *5 n.6. No opinion is expressed herein as to such claims.
They are not before this Court. Additionally, that theory is governed
by a standard that is somewhat distinct from other product defect
claims. See Slone, 457 S.E.2d at 53-55; see also Hambrick ex rel.
Hambrickv. Ken-Bar Mfg. Co., 422 F. Supp. 2d 627, 634 (W.D. Va. 2002).
26

makes little or no real difference whether liability is asserted on
grounds of negligence, warranty or strict liability; the applicable
principles are roughly the same in any case"} . Furthermore, Chestnut
does not preclude such an understanding of the law.

The court

observed, for example, that, under a negligence theory, a jury would
need to consider "whether the defect spoke for itself to show a
failure to exercise due care in manufacture." Chestnut, 445 F.2d at
969 (emphasis added). Finally, Chestnut has been cited in Virginia
decisions to support use of the basic products liability inquiry in
negligence cases, and it has not been cited as requiring additional
proof. See Logan, 219 S.E.2d at 687; Keophumihae v. Brewer, 61692,
1985 WL 306896, at *5 (Va. Cir. Ct. Nov. 21, 1985}. Thus, Virginia
courts have considered Chestnut and interpreted it as consistent with
their understanding of applicable Virginia law as outlined above.
The Court also recognizes that some decisions by the Eastern
and Western Districts of Virginia arguably suggest that extra proof
is required in negligence-based products liability cases. A number
rely on Chestnut, however. See, e.g., Ball v. Takeda Pharm. Arn., Inc.,
963 F. Supp. 2d 497, 505 (E.D. Va. 2013), aff'd, 587 F. App'x 78 (4th
Cir. 2014) (per curiam) ; 9 Young v. J. I. Case Co., 3:90-cv-630, 1994
WL 506403, at *8 (E.D. Va. June 3, 1991}. Indeed, those decisions

9

Ball was summarily affirmed, see Ball, 587 F. App'x at 78, but the
district court's references to a "due care" element and to Chestnut
were not central to its holding, see Ball, 963 F. Supp. 2d at 505-06.
27

often merely observe that "due care" is a necessary aspect of claims
sounding in negligence, which is not per se inconsistent with the
"bound up" principle. See, e.g., Ball, 963 F. Supp. 2d at 505; Butler
v. Navistar Int'! Transp. Corp., 809 F. Supp. 1202, 1209 (W.D. Va.
1991); Young, 1994 WL 506403, at *8-9. Accordingly, and for the
reasons set forth fully above, those decisions are not persuasive.
In sum, there is no requirement in a negligence-based products
liability action that a plaintiff present separate evidence of a
standard of care with which the defendant failed to comply. Rather,
the standard of care and breach of duty inquiries are defined by
reference to the basic products liability framework.
2.

The
Application
of
the
Virginia
Negligent
Manufacturing Standard to Defendants' Motion

Applying the foregoing principles, Benedict prevails.
As an initial matter, Defendants' motion rests largely on the
fact that Benedict's tire expert, Southwell, fails to opine as to
a specific standard of care governing the production of the subject
tire. See Defs.' Br. 13-22; Defs.' Reply Br. 5-11. Evidence of a
standard of care separate from that required by the basic products
liability framework is unnecessary, however, so their position is
substantially undercut for that reason alone.
Even retrofitting Defendants' arguments to the basic products
liability inquiry,
summary,

moreover,

summary

judgment is

this inquiry requires evidence that:
28

( 1)

improper.

In

the product

contains a "defect which rendered it unreasonably dangerous for
ordinary or foreseeable use"; (2) "the defect existed when it left
the defendant's hands"; and ( 3) causation. See, e.g., Alevromagiros,
993 F.2d at 420. A product is unreasonably dangerous if it conflicts
with any of the following: government standards, industry standards
(including an expert opinion that the product is unreasonably
dangerous in the absence of formal industry standards) , or consumers'
reasonable expectations. See, e.g., id., 993 F.2d at 420-21.
Defendants' arguments focus primarily on the first facet of this
test. They assert, as an initial matter, that they complied with a
government

standard,

FMVSS

119,

and,

accordingly,

that expert

testimony is impermissible. See Defs.' Br. 14-15, 17-18; Defs.' Reply
Br. 9-11. They further contend that, other than highlighting FMVSS
119, Southwell's testimony is insufficient because he does not base
his analysis of the subject tire's alleged defects on any government
or industry standard. See Defs.' Br. 14-17; Defs.' Reply Br. 2, 5-9.
As to the FMVSS 119 issue, Defendants attempt to draw an analogy
to Norris. See Defs.' Br. 17-18; Defs.' Reply Br. 10. There, an
expert's

testimony was,

inter

alia,

rejected at

the

industry

standards step because he attempted "to insert his 'own subjective
opinion' as to the defective design of a product" even though it
"undisputedly complie[d]" with formal industry standards. Norris,
139 F. Supp. 3d at 749-51 (citations omitted). Defendants maintain
29

that they complied with FMVSS 119, which "is not simply a standard
followed in the

'industry'

as in Norris,

it is

[sic]

federally

promulgated government standard." Defs.' Br. 18.
Defendants' attempted analogy, however, mischaracterizes the
law. Compliance with a government standard does not, standing alone,
shield a manufacturer from further scrutiny. See Alevromagiros, 993
F.2d at 421-22. Rather, expert testimony of the type contemplated
by the expert safety step of the analysis is permissible in the
absence

of

formal

industry

standards,

or

at

least

government

standards constituting the "established norm in the industry." See
id. at 421 (citations omitted); Lemons, 906 F. Supp. at 332 ("Virginia
law permits the admission of expert opinions on safety in the absence
of

an

industry

("''[A] bsent

standard.");

Duncan,

2013

an established norm in the

WL

9564176,

industry,'

a

at

*4

Court

is

constrained to rely on the opinion testimony of experts to ascertain
the applicable safety standard.' Here,

Defendants have relied on

governmental standards rather than a clear 'norm of the industry.'"
(citations omitted)); see also Norris, 139 F. Supp. 3d at 750-51;
Blevins, 128 F. Supp. 2d at 957. 10

10

In Tunnell, the court lumped together government and industry
standards, holding that, "[b]ecause there are no applicable
government or industry standards regarding battery disconnect
devices in this case, Virginia law allows plaintiff to introduce
expert testimony 'to ascertain the applicable safety standard.'"
Tunnell, 2004 WL 1798364, at *5-8 {citations omitted). It would be
30

This principle has particular weight here, given that FMVSS 119
appears not to be the "established norm in the industry" for assessing
"long-term

structural

integrity"

of

tires

and

that

defective

products can easily pass this standard. See Pl.' s Opp' n Ex. A 10-11,
32-34;

see also Duncan,

2013 WL 9564176,

at *4

(citing expert

testimony that "[c] ars must meet the [FMVSS] simply to be sold, and
does not mean the car has been properly designed") . Indeed, the FMVSS
are statutorily defined as "a minimum standard for motor vehicle or
motor vehicle equipment performance." 49 U.S.C.
(emphasis added);

see also Duncan,

§

30102(a) (10)

766 S.E.2d at 895 n.4. And,

moreover, they are not generally aimed at setting the conclusive
industry

standard

as

purposes. See 4 9 U.S. C.

to
§

product

defectiveness

for

liability

30103 ( e) ("Compliance with a motor vehicle

safety standard prescribed under this chapter does not exempt a
person from liability at common law."} . 11
Defendants are correct that, other than FMVSS 119, no formal
standards

have

been

identified

by

Southwell,

Benedict,

or

error, however, to conflate these issues in all cases. And, that is
true here on the basis of this record.
11

The Court also notes that, despite Defendants' assertions to the
contrary, see Defs.' Br. 17-18, Southwell's assessment of FMVSS 119's
content, sufficiency, and role in the industry is not a "subjective"
opinion, see, e.g., Norris, 139 F. Supp. 3d at 750. Rather, it is
based on literature as well as his substantial industry experience
with and knowledge of various testing procedures, international
regulatory standards similar to FMVSS 119, and FMVSS 119 itself. See
Pl.' s Opp'n Ex. A 4-5, 30-34, 39, 77-79. Cf., e.g., Freeman, 118 F.3d
at 1016-17; Lamonds, 1998 WL 372633, at *2.
31

Defendants. See Pl.'s Opp'n Ex. A 11-25, 30-34, 38-39; Defs.' Br.
Ex. B 90-91, 117; see also Defs.' Br. 2, 14-22; Pl.'s Opp'n 10-15. 12
That

point,

however,

accomplishes

little

for

Defendants.

As

explained above, where there is no officially promulgated industry
guidance as to a product, courts move to the expert safety step and
resort to expert testimony to determine if that product contains an
unreasonably dangerous defect. See, e.g., Alevromagiros, 993 F.2d
at 421; Lemons, 906 F. Supp. at 332-33. This analysis is distinct
from the consumer expectations measure of unreasonable danger, see,
~,

Lemons,

906 F.

Supp.

at

332-33,

and expert testimony is

sufficient at this stage if it explains, with analytical rigor, why
the product is unreasonably dangerous,

see Freeman,

118 F.3d at

1016-17, Alevromagiros, 993 F.2d at 421; Lamonds, 1998 WL 372633,
at *2; Lemons, 906 F. Supp. at 332-33; Bartholomew, 297 S.E.2d at
679-80. An opinion is analytically rigorous if it is based on, for
instance,

of

the

product,

and substantial industry experience and expertise.

See

Freeman,

118

12

relevant

literature,

F. 3d at

1016-17;

testing

and

Alevromagiros,

inspection

993

F. 2d at

421;

The parties do discuss a document by Exxon Mobil, relied upon by
Southwell, that provides guidance as to the inner liner gauge of
tires. See Pl.'s Opp'n 11; Defs.' Reply Br. 7; see also Pl.'s Opp'n
Ex. Q. That document does not, however, constitute the type of
formally issued industry standard anticipated by the case law.
See Norris, 139 F. Supp. 3d at 749; Tunnell, 2004 WL 1798364, at *3.
Rather, it is merely industry literature, a conclusion supported by
Southwell's report. See Pl.'s Opp'n Ex. A 22.
32

Lamonds, 1998 WL 372633, at *2; Lemons,

906 F. Supp. at 332-33;

Bartholomew, 297 S.E.2d at 679-80.
Here, Southwell's testimony is certainly adequate to defeat
surrunary judgment. He precisely identifies the two defects that he
found to have caused the subject tire to rupture: failure of its
components to adhere properly and oxidation due to too thin an inner
liner. See Pl.'s Opp'n Ex. A 11, 25, 38-39. He extensively reviewed
literature and industry sources relevant to his defect theories, and
he "identifie[s]

specific published materials that had directly

guided his analysis." See Freeman, 118 F.3d at 1017; Lamonds, 1998
WL 372633, at *2; Pl.'s Opp'n Ex.
Ex.

C 5.

Furthermore,

training . . . in

Southwell

reviewing

A

14-16, 19-24, 39; Pl.'s Opp'n
"applied

[these]

his

experience

materials,"

given

and
his

decades-long career in tire defect and failure analysis, his Master
of Engineering degree, and his completion of multiple tire-related
training courses. See Freeman, 118 F.3d at 1016-17; Pl.'s Opp'n Ex.
A 4-5, 15, 22-23, 39, 76-79; Pl.' s Opp'n Ex. C 5; Defs.' Mem. in Supp.

of Mot. to Exclude Testimony of Pl.'s Expert David Southwell Ex. E
81-87, 95-99, 120-21. 13 Southwell has also performed tests or gained

13

The Court periodically cites to the deposition testimony of
Southwell proffered as an exhibit to Defendants' motion to exclude.
The Court does so for several reasons. First, the discussion of
Southwell's defect theories contained therein directly applies to
both Defendants' motion to exclude and their motion for surrunary
judgment. Second, both of those motions (as well as Benedict's motion
33

specific experience validating myriad aspects of his defect theories
throughout his career. See Freeman, 118 F.3d at 1016-17; Lamonds,
1998 WL 372633, at *2; Pl.' s Opp' n Ex. A 4-5, 15, 22-23, 76-79; Pl.' s
Opp'n Ex. C 5; Defs.' Mem. in Supp. of Mot. to Exclude Testimony of
Pl.'s Expert David Southwell Ex. E 81-87, 95-99, 120-21. Finally,
Southwell performed a "detailed inspection" of the subject tire that
revealed direct evidence of the defects he alleges. See Freeman, 118
F.3d at 1017; Lamonds, 1998 WL 372633, at *2; Pl.'s Opp'n Ex. A 7-8,
17, 20, 22-25, 38-42, 74-75.
In short, Southwell is not "simply opin[ing] on the basis of
his

'own subjective opinion."' See Freeman,

118 F. 3d at 1016.

Instead, he "clearly applied his expertise and knowledge of the
published sources and drew from his detailed inspection of the
product itself." See id. at 1017. Thus, his opinion constitutes
sufficient evidence of an unreasonably dangerous defect to raise a
genuine dispute of material fact as to this issue.
Defendants proffer several additional arguments in an attempt
to undermine Southwell's defect analysis, but none is a basis upon
which to grant summary judgment.
First, Defendants contest two of Southwell's opinions on the
ground that Virginia law forbids using evidence of a company's
for partial summary judgment) were argued at the same hearing and
ruled upon on the same date. And third, Defendants have cross-cited
the content of these motions in their various papers; therefore, so
too does the Court.
34

internal policies to establish a standard of care. Defs.' Br. 18-19;
Defs.'

Reply

Br.

testimony that:

( 1)

8.

Specifically,
Defendants'

they

challenge

Southwell's

testing regime was insufficient

based on Defendants' quality assurance information; and (2)

the

subject's tire inner liner was defectively thin because it did not
comply with Defendants' own specifications. Defs.' Br. 18-19; Defs.'
Reply Br. 8, 11; see also Pl.'s Opp'n Ex. A 22, 29-36.
Defendants seem to be right with respect to the law. Virginia
courts have decided that a company's "private rules" are inadmissible
to prove a standard of care (although they are admissible for other
purposes). See Riverside Hosp., Inc. v. Johnson, 636 S.E.2d 416, 422
(Va. 2006); Pullen v. Nickens, 310 S.E.2d 452, 456-57 (Va. 1983);
Curtis v. Fairfax Hosp. Sys., Inc., 1990 WL 10030533, at *3 (Va. Cir.
Ct. Sept. 21, 1990). And the Fourth Circuit has deemed this state
evidentiary rule sufficiently substantive to apply it in diversity
cases subject to Virginia law. Hottle v. Beech Aircraft Corp., 47
F.3d 106, 108-10 (4th Cir. 1995).
As to the specific statements at issue, however, Defendants are
only partially right. The first of Southwell's challenged opinions,
that Defendants' testing regime was insufficient based on his review
of their testing information, is not an effort to establish a standard
of care based on Defendants' own quality standards. See Pl.'s Opp'n
Ex.

A 29-36.

Rather,

Southwell
35

considered Defendants'

quality

testing information to gain an understanding of their actual conduct.
See Pl.'s Opp'n Ex. A 29-36. Thus, it is not problematic under
Virginia law.
There is an aspect of the first challenged opinion that is
somewhat troubling, however. Southwell's report includes a brief
section stating that Defendants' own specifications reveal that they
were aware of, and intended to control for, certain "safety-critical
parameters." Pl.'s Opp'n Ex. A 30. Evidence of internal rules to
demonstrate such awareness may be inadmissible. Compare Murphy v.
United States, 383 F. App'x 326, 335-36 (4th Cir. 2010) (per curiam)
("[B]ecause the procedure manuals cannot be introduced to establish
the standard of care, we fail to see how the information could show
the 'providers knew the standard of care' in the community as a whole
would have prevented J.M.'s

injuries."),

with Curtis,

1990 WL

10030533, at *3 ("It is also noteworthy that a defendant's safety
policies have been held admissible in a negligence action on the issue
of defendant's knowledge of a potential danger and as evidence of
the foreseeability of the injury." (citing New Bay Shore Corp. v.
Lewis, 69 S.E.2d 320 (Va. 1952)). To the extent Southwell proposes
to testify that one of the reasons the inner liner was defective was
because it did not comply with Defendants' internal specifications,
see Pl.'s Opp'n Ex. A 22, that testimony is unacceptable.
This entire analysis is largely academic at this stage, however,
36

because,

even

without

these

statements,

summary

judgment

is

improper. Southwell's testimony still offers evidence, based on
literature, experience, testing, knowledge, and a detailed product
inspection, that unreasonably dangerous defects caused the subject
tire to fail. See Pl.' s Opp' n Ex. A 4-5, 11-25, 3,8-42, 7 4-7 9; Pl.' s
Opp'n Ex. C 5; Defs.' Mem. in Supp. of Mot. to Exclude Testimony of
Pl.'s Expert David Southwell Ex. E 81-87, 95-99, 120-22.
Second,

Defendants

contend

that

Southwell

should

not

be

permitted to offer opinions based on Defendants' document retention
procedures or make adverse inferences based on their failure to
retain or produce certain documents. See Defs.' Br. 19-21. The Court
has excluded such opinions. (ECF No. 342) . None of these exclusions,
however, render summary judgment appropriate because Southwell's
testimony

otherwise

constitutes

an

analytically

rigorous

explanation of how the subject tire was unreasonably dangerous.
Third,

Defendants assert that Southwell cannot testify to

industry standards related to tire testing requirements based on the
practices of the "two manufacturers" for which Southwell has worked.
Defs.' Br. 21-22. This argument is groundless.
The main case Defendants cite, Alevromagiros, held that "a
plaintiff may not introduce [into evidence] a single example of a
competing product and purport to make it a standard for the industry."
Alevromagiros, 993 F.2d at 422 (emphasis added); see also Norris,
37

Norris, 139 F. Supp. 3d at 751-52 {ruling that expert testimony as
to

the

features

12

manufacturers

added

to

their

products

insufficient summary judgment evidence of industry practice,
related to consumer expectations,

was
as

absent additional information

about the industry) . It did not forbid considering competing products
in all contexts, however. For example, experts may do so as part of
a rigorous assessment of whether a product is unreasonably dangerous.
See,

e.g.,

Freeman,

118 F.3d at 1016-17

{approving an expert's

opinion based in part on his "experience and training" and "various
tractor

specifications");

{recognizing

that

expert

993

Alevromagiros,
testimony

based

on,

F. 2d

at

inter

421
alia,

"experiments with transmission systems in at least three types of
cars" was deemed sufficient in Bartholomew); Lemons, 906 F. Supp.
at 332 (interpreting Bartholomew to hold that "an expert opinion had
proper foundation where the expert studied relevant federal manuals
and data, consulted with other experts, and experimented with the
specific product alleged to have caused the accident as well as
several competing products" (emphasis added)).
Here, Southwell' s opinion as to Defendants' tire testing regime
is supported by statements relaying the testing procedures of his
past employers. Pl.'s Opp'n Ex. A 30-34. His testimony, however, is
not an attempt simply to proffer his specific employers' testing
regime

as

the

industry

standard.
38

Rather,

he

provides

a

broad

discussion of the quality testing issues relevant here, derived from
his vast industry experience with and deep understanding of various
testing

procedures

Defendants'

testing

and

regulatory

information,

requirements,

and his

knowledge

literature,
of product

recalls. See Pl.'s Opp'n Ex. A 4-5, 30-34, 77-79.
Furthermore, Southwell is not seeking to define the industry
standard. Instead, his opinion is merely that the regulatory testing
requirements do not serve as the applicable industry standard, that
these requirements permit defective products into the market, and
that Defendants' testing regime was unlikely to detect and prevent
the defects alleged here. See Pl.'s Opp'n Ex. A 30-36.
In

short,

Southwell's

well-founded

and

experience-based

assessment is in no way analogous to introducing a competitor's
product in an effort to establish the standard of the industry. See
Alevromagiros, 993 F.2d at 421.
For

the

foregoing

reasons,

summary

judgment

based

on

Defendants' "standard of care" argument would be improper. Moreover,
because Defendants do not allege that Benedict has failed to present
evidence of the other elements of the basic products liability
inquiry, the Court need not address these matters. 14

14

Nor could they. Southwell's report details why he believes the
subject tire failed, how the alleged defects contributed to this
failure, and what evidence supports his assessment. See Pl.'s Opp'n
Ex. A 8, 11, 17, 19-25, 38-42; Pl.'s Opp'n Ex. C 5-7, 9; Defs.' Mero.
39

C.

The Implied Warranty Claim

Defendants also seek surrnnary judgment on Benedict's implied
warranty of merchantability claim on the ground that the express
warranty in Defendants' 2006 tire catalogue displaced or disclaimed
any implied warranty. Defs.' Br. 23-2 6. The express warranty states:
This warranty, or any warranty stated or
referred to herein, is exclusive and in lieu of
any other warranty regarding the quality of
Aurora tires, whether expressed or implied and
remedies for breach thereof shall be limited to
those
specifically provided herein.
Any
warranty of merchantability of fitness for any
particular purpose, if made, is limited in
duration to the effective time period of this
limited warranty.
Pl.' s Opp'n Ex. K 26. Benedict offers several arguments in response,
however, and the Court finds them persuasive.
1.

The Applicability of Defendants' Warranty

Benedict's first argument is that the warranties do not even
apply to the subject tire. See Pl.' s Opp' n 20-22. He is correct that,
at minimum, there is a dispute of material fact as to this issue.
Under Va. Code

§

8.2-313, an express warranty is created by,

in Supp. of Mot. to Exclude Testimony of Pl.' s Expert David Southwell
Ex. E 81-85, 97-99, 120-22. Further, he considered and rejected
numerous alternative potential causes of the failure or of his
evidence. See Pl.'s Opp'n Ex. A 24-29, 38-39; Pl.'s Opp'n Ex. C 5-7,
9; Defs.' Mem. in Supp. of Mot. to Exclude Testimony of Pl.' s Expert
David Southwell Ex. E 98-99. And much of his evidence suggests that
the subject tire's flaws appeared before it left Defendants' hands.
See, Pl.'s Opp'n Ex. A 11, 17, 19-29, 38-39; Pl.'s Opp'n Ex. C 5-7,
9; Def s.' Mem. in Supp. of Mot. to Exclude Testimony of Pl.' s Expert
David Southwell Ex. E 81, 87, 98-99, 120-22.
40

inter alia, "[a] ny affirmation of fact or promise made by the seller
to the buyer which relates to the goods and becomes part of the basis
of the bargain." Va.

Code § 8.2-313

(emphasis added).

Neither

reliance on nor actual knowledge of the warranty-triggering language
is required to create an express warranty. See Daughtrey v. Ashe,
413 S.E.2d 336, 336, 339 (Va. 1992); see also Martin v. Am. Med. Sys.,
Inc., 116 F.3d 102, 105 (4th Cir. 1997). Rather, according to the
official comments to Va. Code § 8.2-313, "[t]he sole question is
whether the language . . . [is] fairly to be regarded as part of the
contract" and "all of the statements of the seller [are part of the
basis of the bargain] unless good reason is shown" to the contrary.
Va. Code§ 8.2-313 cmts. 7, 8; see also Daughtrey, 413 S.E.2d at 339
(citing this language) . Whether an express warranty has been created
is a question of fact for the jury. See Jain v. Abbott Labs., Inc.,
7:13-cv-551, 2014 WL 7330805, at *7-8 (W.D. Va. Dec. 19, 2014); see
also Bayliner Marine Corp. v. Crow, 509 S.E.2d 499, 502 (Va. 1999).
Here,

Benedict offers

substantial

evidence

that

the

tire

catalogue warranty does not apply to the subject tire. He shows, for
example, that the 2006 tire catalogue's effective date is July 1,
2006 and that the three invoices potentially reflecting the sale of
the subject tire are dated January 31, 2006, April 7, 2006, and June
29, 2007. Pl.'s Opp'n 22. This is true. Defs.' Br. Ex. D, Sub-Ex.
A; Pl.' s Opp' n Ex. K Table of Contents. Additionally, he claims that
41

the invoices have an entry in the "Warranty" field of "0." Pl.' s Opp' n
23. This is likewise accurate. Defs.' Br. Ex. D, Sub-Ex. A. He also
contends that the catalogue prices do not match the prices on the
invoices. Pl.'s Opp'n 23. This too is correct; in fact, the invoice
prices are far below the catalogue prices, compare Defs.' Br. Ex.
D, Sub-Ex. A, with Pl.' s Opp'n Ex. K 18, perhaps suggesting that these
tire sales were subject to different terms.
Defendants attempt to undermine Benedict's evidence, but they
fail to place the warranty's applicability beyond dispute.
They first observe that the 2006 tire catalogue could have
accompanied tires sold prior to its effective date at the time of
delivery because it takes several months for a tire to reach its
American distributor after being manufactured in South Korea. Defs.'
Br.

13-14.

It is not at all clear,

however,

how this argument

establishes that the tire catalogue became the basis of the bargain
for the sale of the subject tire.
Second, Defendants note that the warranty in the 2005 catalogue
is the same as in the 2006 catalogue, so that catalogue's warranty
would have applied to the sales before the 2006 catalogue' s effective
date. Defs.' Reply Br. 14. However, even if the 2005 catalogue were
admissible, 15 the invoices still say that there are "0" warranties,

15

Benedict asserts that it is not. Mero. in Supp. of First Mot. for
Discovery Sanctions 3-4.
42

and the prices in the 2005 catalogue are still far above the invoice
prices. Compare Defs.' Br. Ex. D, Sub-Ex. A, with Defs.' Reply Br.
Ex. 8.
Third, Defendants point to two declarations in support of their
position that the catalogue warranty applied to the subject tire.
Defs.'

Reply

Br.

14-15.

These

declarations,

however,

do

not

specifically relate to the sale of the subject tire. The first simply
notes that the tire catalogues included the warranty language during
the 2005-07 period and that the catalogues were disseminated to
authorized dealers to be distributed to customers. Defs.' Reply Br.
Ex. 6 2. The second, likewise, merely observes that Old Dominion
received the tire catalogues from its wholesaler, that "[a]s part
of its regular practice of selling and marketing tires, Old Dominion
provided customers, including Metro Ready Mix, product literature
and warranty information for the tires that Old Dominion sold," and
that "[t] he Tire Catalogue is a document that Old Dominion would have
provided to its customers." Defs.' Br. Ex. D 2-3 (emphasis added).
This

declarant

admits,

moreover,

that

he

has

no

"specific

recollection" of the sales of the three tires that could be the
subject tire. Defs.' Br. Ex. D 2.
Third, Defendants aver that the "O" entries in the warranty
section of the invoices do not reflect Defendants' warranty because
"it is neither commonsense nor common practice to expect an invoice
43

from a tire dealer to reflect manufacturer's warranties." Defs.'
Reply Br.

15

(emphasis added).

This statement,

however,

is not

supported by a citation to the record. Defs.' Reply Br. 15. Even if
it were, it is but one of many possible explanations for why "O"
appears in the warranty section of the invoices.
At best,

there

is

conflicting evidence as

to whether

the

warranty applies to the subject tire. On summary judgment, "[t]he
evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor." Raynor v. Pugh, 817 F.3d
123, 128 (4th Cir. 2016)

(citations omitted). And "[w]here there is

conflicting evidence, the court must credit the evidence of both
sides and acknowledge that there is a genuine issue of material fact
that cannot be resolved by summary judgment." Manchanda v.

Hays

Worldwide, LLC, 142 F. Supp. 3d 465, 470 (E.D. Va. 2015). The Court
heeds this guidance and hence cannot grant Defendants' motion.

2.

The Applicability of the Conspicuity Rules of Va.
Code § 8.2-316(2)

Benedict also argues that, even if the warranty applies, the
conspicuity requirements of Va. Code§ 8.2-316(2) attach (and, as
discussed below, that the warranty's language is not conspicuous).
Pl.'s

Opp'n

25-26.

Defendants

maintain,

however,

that

these

requirements apply only to "disclaimers," not "displacements," and
that the warranty language here is a displacement because it operates
to limit the duration of any implied warranties. Defs.' Br. 23-25.
44

Benedict's argument prevails.
The distinction between disclaimers and displacements is based
on the interplay of several provisions within the Uniform Commercial
Code (UCC) that have been adopted by Virginia.
Under Va. Code§ 8.2-316(2),

"to exclude or modify," i.e.,

disclaim, "the implied warranty of merchantability or any part of
it the language must mention merchantability and in case of a writing
must

be

conspicuous." Va.

Code

§

8.2-316(2)

(emphasis

added).

However, according to Va. Code§ 8.2-316(4), "[r]emedies for breach
of warranty can be limited in accordance with the provisions of this
title on liquidation or limitation of damages and on contractual
modification of remedy(§§ 8.2-718 and 8.2-719)," id.§ 8.2-316(4)
(emphasis added), such that the conspicui ty requirements of Va. Code
§

8.2-316(2) do not apply, see Flintkote Co. v. W.W. Wilkinson, Inc.,

260 S.E.2d 229, 231 (Va. 1979). Further, Va. Code§ 8.2-317 states:
Warranties whether express or implied
shall be construed as consistent with each other
and as cumulative, but if such construction is
unreasonable the intention of the parties shall
determine which warranty is dominant.
In
ascertaining that intention the following rules
apply:

(c)
Express
warranties
displace
inconsistent implied warranties other than an
implied warranty of fitness for a particular
purpose.
Va. Code § 8.2-317 (emphasis added). This provision likewise does
45

not mention any conspicuity requirements. Id.
Defendants' position is mainly based on King v. Flinn

&

Dreffein

Engineering Co., 7:09-cv-410, 2012 WL 3133677 (E.D. Va. July 30,
2012).

Defs.'

Br.

23-24;

Defs.'

Reply Br.

18.

The court there

determined that an express warranty limiting the duration of implied
warranties did not trigger the conspicuity requirements of Va. Code
§

8.2-316(2). King, 2012 WL 3133677, at *12. It indicated that a

displacement under Va. Code§ 8.2-317{c} is equivalent to limiting
remedies under Va. Code § 8. 2-316 {4) (such that conspicuous language
is not required)

and that a disclaimer refers to exclusion or

modification of the warranty itself under Va. Code§ 8.2-316{2} (such
that conspicuous language is required). See id. The court held that
express warranty language limiting the duration of an implied
warranty constitutes displacement,

not disclaimer,

because such

language does not restrict the implied warranty's "scope." Id.
Accordingly, it did not require the language to be conspicuous. Id.
The problem with Defendants' argument, however, is that King
offered little reasoning as to why it considered an express warranty
limiting the duration of implied warranties to be a displacement,
and the weight of authority is to the contrary. The Court has not
found a Virginia case supporting the decision. And most courts that
have interpreted versions of UCC § 2-316 have reached the opposite
conclusion. See Stevenson v. Mazda Motor of Am., Inc., 14-5250, 2015
46

WL 3487756, at *12 (D.N.J. June 2, 2015); Gloyna v. Toyota Motor Mfg.
N. Am., Inc., 2011-11, 2014 WL 318563, at *2 (E.D. Ky. Jan. 29, 2014);
Fishman v. Gen. Elec. Co., 2: 12-cv585, 2014 WL 1628369, at *5 (D.N.J.
Apr. 23, 2014); Meserole v. Sony Corp. of Am., Inc., 08-cv-8987, 2009
WL 1403933, at *9 (S. D. N. Y. May 19, 2009); Asp v. Toshiba Am. Consumer
Prods., LLC, 616 F. Supp. 2d 721, 732 (S.D. Ohio 2008); Lecates v.
Hertrich Pontiac Buick Co., 515 A.2d 163, 166 (Del. Sup. Ct. 1986);
see also Sampler v. City Chevrolet Buick Geo, Inc., 10 F. Supp. 2d
934, 940-41 (N.D. Ill. 1998).
The only other opinion Defendants meaningfully rely upon is N. J.
Transit Corp. v. Harsco Corp.,

497 F.3d 323, 330

(3d Cir. 2007).

Defs.' Br. 24. There, the court did hold that an express warranty
containing a term limiting its duration to one year displaced, under
New Jersey's version of UCC § 2-31 7, the warranty of merchantability
and therefore did not need to satisfy UCC § 2-316 (2), but its analysis
was limited to a distinct situation. N. J. Transit, 4 97 F. 3d at 327-30.
Specifically, it based its decision on the unique circumstance at
issue in that case, in which "the buyer not only drafted the contract,
but also included numerous and detailed specifications to which the
seller was required to accede, including a broad one-year warranty."
Id. at 328-30. In such situations, one of the comments to UCC
is

triggered

and

directs

courts

47

to

evaluate

the

§

2-316

warranty

of

merchantability "in connection with" UCC

§

2-317. Id. at 329. 16 The

N.J. Transit court expressly cautioned, however, that "we are not
interpreting [UCC

§

2-316] to allow all express warranties of limited

duration to impliedly exclude or modify implied warranties." Id. at
330 (emphasis added) . 17 Accordingly, it does not support the view that
all duration limitations constitute displacements. 18
Furthermore, the warranty language at issue here does not merely
limit the duration of implied warranties. Rather, it first states
that the express warranty "is exclusive and in lieu of any other
warranty" and later conditionally asserts that "[a]ny warranty of
merchantability of fitness for any particular purpose, if made, is
limited in duration to the effective time period of this limited
warranty." Pl.'s Opp'n Ex. K 26. Courts interpreting such clauses
often treat them as disclaimers and require conspicuity. See Davidson
v. Apple, Inc., 16-cv-04942, 2017 WL 976048, at *14-15 (N.D. Cal.

16

Although not expressly relevant to resolution of the issue
presented here, the N.J. Transit court's discussion reveals that
courts are inconsistent in how they analyze the disclaimer vs.
displacement issue. King equated UCC § 2-317(c) to UCC § 2-316(4).
King, 2012 WL 3133677, at *12. In N.J. Transit, however, UCC §
2-316(4) played no role in the court's reasoning. N.J. Transit, 497
F. 3d at 327-31.
17

The implicit conclusion of this sentence is: "without following
UCC § 2-316(2) ." See N.J. Transit, 497 F.3d at 327, 330.
18

Defendants even acknowledge that "the court in N. J. Transit Corp.
limited its holding 'to the particular facts of that case.'" Defs.'
Reply Br. 18 (citations omitted).
48

Mar. 14, 2014); Clark v. L.G. Elecs. U.S.A., Inc., 13-cv-485, 2013
WL 5816410, at *12-14 (S.D. Cal .. Oct. 29, 2013); Rochester-Genesee
Reg'l Transp. Auth. v. Cummins Inc., 09-cv-6370, 2010 WL 2998768,
at *5 (W.D.N.Y. July 28, 2010).
In sum, King notwithstanding, the Court finds that Defendants'
warranty language is a disclaimer, not a displacement. It is thus
governed by the conspicuity requirements of Va. Code§ 8.2-316(2).
3.

The Conspicuousness of Defendants' Warranty

Benedict then argues that Defendants' express warranty was not
conspicuous. Pl.'s Opp'n 27-28. He is correct.
The test for whether a particular term is conspicuous under
Virginia law is governed by Va. Code§ 8.1A-20l(b) (10). According
to this provision, the term at issue must be "so written, displayed,
or presented that a reasonable person against whom it is to operate
ought to have noticed it." Va. Code§ 8.1A-201(b) (10) . 19
Va. Code

§

8.1A-201(b) (10)

also lists specific examples of

conspicuous terms. These include:
(A) a heading in capitals equal to or
greater in size than the surrounding text, or
in contrasting type, font, or color to the
surrounding text of the same or lesser size; and
(B) language in the body of a record or
display in larger type than the surrounding
text, or in contrasting type, font, or color to

19

It additionally clarifies that that the issue of conspicuity is
a question of law for the court. Va. Code § B.1A-201(b) (10).
49

the surrounding text of the same size, or set
off from surrounding text of the same size by
symbols or other marks that call attention to
the language.
Va. Code § 8.1A-201(b} (10).
The Court observes that these examples are not safe harbors.
Rather,

what is required is a holistic assessment of whether a

reasonable person "ought to have noticed" the term at issue. See Va.
Code§ 8.1A-201(b) (10). There are four reasons for this conclusion.
First, the official comments to Va. Code§ 8.lA-201 make clear
that a holistic approach is warranted and that the statutory examples
are not dispositive. Official comment 10 states that, "[a]lthough
these paragraphs indicate some of the methods for making a term
attention-calling, the test is whether attention can reasonably be
expected to be called to it." Va. Code§ 8.lA-201 cmt. 10 (emphasis
added) . It further asserts that "[t] he statutory language should not
be construed to permit a result that is inconsistent with that test."
Id.

(emphasis added) .
Second, the history of Va. Code § 8.lA-201 underscores the

conclusion that the conspicuity inquiry necessitates a holistic
approach. In 2 0 0 3, Va. Code § 8 . lA-201 (b) {10) replaced a predecessor
statute, Va. Code § 8.1-201(10). It stated:
A term or clause is conspicuous when it is
so written that a reasonable person against whom
it is to operate ought to have noticed it. ~
printed heading in capitals (as: NONNEGOTIABLE
BILL OF LADING) is conspicuous. Language in the
50

body of a form is "conspicuous" if it is in
larger or other contrasting type or color. But
in a telegram any stated term is "conspicuous."
Whether a term or clause is "conspicuous" or not
is for decision by the court.
Va.

Code

§

8. 1-201 ( 10)

(emphasis

added)

(repealed 2003) .

This

previous version enumerated several types of terms that were, by
definition, conspicuous. See id. The present version, in contrast,
suggests that the listed examples are true examples by employing the
softer phrase: "Conspicuous terms include the following." Va. Code
§

8.1A-201(b)(10)

(emphasis added). 20

Additionally, the 2003 change altered the official comments.
Comment 10 of the previous version stated simply:
[The statutory examples of conspicuous
terms are] intended to indicate some of the
methods of making a term attention-calling. But
the test is whether attention can reasonably be

20

The language of the statute changed in one other notable way. The
statutory examples of conspicuity are now separated by the
conjunctive term "and," whereas previously each appeared in a
standalone sentence. The present version may now therefore
reasonably be read as stating that a truly conspicuous term should
include both an adequate heading and adequate text. Such a reading
is underscored by the fact that other states have adopted more
disjunctive phrasing.
See Mich.
Comp.
Laws
§
440.1201(j)
("Conspicuous terms include any of the following . . . . "); Wis.
Stat. § 401. 201 (f) (same). This interpretation cannot be dispositive
because Virginia courts have not addressed the issue and there are
jurisdictions that do not interpret this language in their own
commercial codes this way. See, e.g., Thom v. Rebel's Honky Tonk,
03-11-700-cv, 2013 WL 1748798, at *5 (Tex. Ct. App. Apr. 17, 2013).
Nevertheless, the fact that such a reading is not foreclosed by the
current statue, in contrast to the previous version, offers support
for the view that the statutory examples are properly interpreted
in context and neither constitutes a per se safe harbor.
51

expected to be called to it.
Va. Code

§

8 .1-201 cmt. 10. As shown above, the contemporary official

comment 10 uses much stronger language, such as "[t]he statutory
language

should not be

construed to permit

a

result

that

inconsistent with" the "ought to have noticed" test. Va. Code

is
§

8. lA-201 cmt. 10. This language, then, seems to reflect a legislative

intent that courts focus on "whether attention can reasonably be
expected to be called to" a term rather than obstinately adhering
to the listed examples in every case. See id.
Third, decisions interpreting the present statute bolster the
conclusion that a holistic assessment is warranted. In Hoffman v.
Daimler Trucks North America, LLC, the court observed the following:
" [Va.

Code

§

8 • lA- 2 0 1 ( b ) ( 1 0 ) ]

lists

some

examples

of

conspicuousness, but Comment 10 to the UCC section makes clear that
'the test is whether attention can reasonably be expected to be called
to it. The statutory language should not be construed to permit a
result that is inconsistent with that test.'" Hoffman v. Daimler
Trucks N. Am., LLC, 940 F. Supp. 2d 347, 356 n.9 (W.D. Va. 2013)
(citations omitted) . It then performed a holistic assessment and
found the disclaimer clause at issue inconspicuous notwithstanding
that:

( 1)

the heading was bolded and underlined and therefore

arguably "in contrasting type, font, or color to the surrounding text
of the same or lesser size"; and (2) the disclaimer language was
52

capitalized and therefore arguably "in contrasting type, font, or
color to the surrounding text of the same size." See id. at 355-56;
Virginia Buyers Order-NA at 2, Hoffman v. Daimler Trucks N. Am., LLC,
940 F. Supp. 2d 347

(W.D. Va. 2013)

(ECF No. 28-1); Va. Code

§

8. lA-201 (b) (10). Likewise, in Goodrich Corp. v. BaySys Technologies,

LLC, the court held that a disclaimer was inconspicuous even though
the heading for the warranty section, where the disclaimer appeared,
was bolded and hence "in contrasting type, font, or color to the
surrounding text of the same or lesser size." See Goodrich Corp. v.
BaySys Techs., LLC, 873 F. Supp. 2d 736, 745 (E.D. Va. 2012); Va.
Code

§

8.1A-20l(b) (10). Furthermore, in Brosville Community Fire

Department, Inc. v. Navistar, Inc. , the court observed that the fact
that a disclaimer was capitalized and had a bolded heading "weigh [ed]
in favor" of a conspicuity finding, but it evaluated "the totality
of the factors" before actually concluding that the disclaimer was
effective.

Brosville Cmty.

Fire Dep' t,

Inc.

v.

Navistar,

Inc.,

4:14-cv-9, 2014 WL 7180791, at *4-5 (W.D. Va. Dec. 16, 2014) . 21
Finally, a holistic assessment as to conspicuity is necessary
simply as a matter of logic and common sense. In Murray v. New Cingular
Wireless Services, Inc., the Seventh Circuit offered the following
well-reasoned explanation for why this is so:

21

The disclaimer's heading was also capitalized, but the court did
not address that point. Brosville, 2014 WL 7180791, at *4-5.
53

Cingular found§ 1-201(b) (10) (A) and concluded
that capitalizing the word "DISCLOSURE" brought
the paragraph within the definition, because
the irmnedia tely preceding paragraph also was in
6-point type. But the main part of § 1201 (b) (10), which defines "conspicuous" as
something that the person affected "ought to
have noticed", implies that some type can be so
small that a capitalized heading "equal to or
greater in size than the surrounding text" will
not be enough. It is of course possible to read
(A) and {B) as safe harbors, working even if the
affected person assuredly would not have
noticed the statement; then 1-point type in
light grey would do, even though it would be
invisible to normal readers, provided only that
it followed a throwaway paragraph in 1-point
light-grey type. That would be an implausible
reading of§ 1-201(b) (10).
See Murray v. New Cingular Wireless Servs., Inc., 523 F.3d 719, 726-27
(7th Cir. 2008)

(emphasis added).

Given that a holistic assessment is required, the Court now
turns to the meaning of conspicuity.
Decisions applying Virginia law, either the past or present
version of Va. Code§ 8.1A-201(b) (10), have offered insights into
the contours of conspicuousness.

They have

found a disclaimer

inconspicuous, for example, where "the language of disclaimer [wa] s
in print of the same size, style, and color as that used in most of
the other provisions of the contract" and it was "irmnersed in the
body of the contract." Lacks v. Bottled Gas Corp. of Va., 205 S. E. 2d
671, 673 (Va. 1974) (citing Va. Code§ 8.1-201(10)). The same result
has obtained where, al though the heading of the section in which the
54

disclaimer appeared was balded, it "was contained within the sixth
paragraph of a seven paragraph section on warranties" and "was not
in any different size, color, or font than the rest of the warranty
provisions." Goodrich, 873 F. Supp. 2d at 745. And a disclaimer on
the

back

of

a

signed,

two-page

"Buyer's

Order"

was

deemed

insufficient where "[t]he heading of the disclaimer clause [wa]s of
the same font type and size as those for the other paragraphs," "the
disclaimer

clause

paragraphs

[wa] s

not

set

off

from

the

other

in any distinctive way," the font size and color

of the clause was the same as others, and "[a] !though the disclaimer
clause [wa]s in capital letters, two other paragraphs on the back
page [were] also in capital letters." Hoffman, 940 F. Supp. 2d at
356; Virginia Buyers Order-NA at 1-2, Hoffman v. Daimler Trucks N.
Am., LLC,

940 F. Supp. 2d 347 {W.D. Va. 2013)

{ECF No. 28-1).

On the other hand, disclaimers have been considered conspicuous
where "the excluding language

[its elf was]

in larger type" or

capitalized. Armco, Inc. v. New Horizon Dev. Co. of Va., Inc., 331
S.E.2d 456, 460 (Va. 1985) (citing Va. Code§ 8.1-201(10)); Young,
1994 WL 506403, at *3 (relying on, albeit not citing, Va. Code §
8.1-201(10)).

Likewise,

a

disclaimer

was

determined

to

be

conspicuous where, even though it was placed on the reverse side of
a form, it was "printed in larger, contrasting and italicized type,"
was "located in two separate, indented paragraphs near the bottom
55

of the reverse page," and a capitalized notice indicating that there
were additional terms on the reverse side appeared on the front page
above the buyer's signature line. Brown v. Range Rover of N. Am.,
Inc., 122359, 1996 WL 1065542, at *1-2 (Va. Cir. Ct. May 20, 1996)
(citing Va. Code§ 8.1-201(10)); see also Hammond-Mitchell, Inc. v.
Constr. Materials Co., CL05000082-00, 2008 WL 8200731, at *5-6 (Va.
Cir. Ct. Apr. 28, 2008) ("ConRock used the correct differentiating
type-all capitals on the reverse side of the delivery receipt which
was referred to on the front of the ticket[.]")
Here, the disclaimer is not conspicuous.
First, the presentation of the disclaimer reflects its lack of
conspicuity. It is contained in a catalogue that does not, on its
own, invite or require a purchaser to review its terms. It is not,
for example, within a contract or other form that requires the
purchaser to sign.

Furthermore,

the disclaimer appears on the

penultimate page, page 26, of a lengthy tire catalogue. Pl.'s Opp'n
Ex. K 26. And, moreover, although the table of contents contains an
entry

for

the

"limited

warranty,"

this

entry:

(1)

is

not

stylistically distinct from the other table of contents entries; (2)
does not indicate that the limited warranty includes a disclaimer
of any kind;

and

( 3)

as suggested above,

does not require the

purchaser to sign nearby or otherwise become aware that his legal
rights could be affected by the catalogue' s final pages. Pl.' s Opp' n
56

Ex. K Table of Contents. Finally, the page header and footer of the
warranty page do say "Limited Warranty" in large,

red,

capital

letters, but every single page of the catalogue contains a similar
header and footer describing that page's contents; and the warranty
header and footer do not imply that any disclaimers exist. Pl.' s Opp' n
Ex. K 1-27.
Second,

the disclaimer itself establishes that it is not

conspicuous. As an initial matter, it is true that the disclaimer
clause heading is in bolded and capitalized type that is larger than
the text of the clause itself (and other non-heading text within the
document). Pl.'s Opp'n Ex. K 26. However, this heading is styled no
differently than every other heading in the warranty, including the
four surrounding headings on the page containing the disclaimer; 22
and it is styled in a less distinctive way than the headings for the
adjacent "important safety warning" section, which are introduced
by a checkmark.

Pl.'s Opp'n Ex.

K

22-26.

The language of the

disclaimer clause, moreover, is neither styled nor sized in any way
that distinguishes it from the other text in the document. Pl. 's Opp' n
Ex. K 26. Indeed, HTAC's contact information, which appears on the
same page, is bolded and thus more noticeable than the other text.

22

Hence, although it may be distinct from the immediately adjacent
words, it is not distinguishable from all of the surrounding text,
including headings. Cf. Hoffman, 940 F. Supp. 2d at 356; Virginia
Buyers Order-NA at 2, Hoffman v. Daimler Trucks N. Am., LLC, 940 F.
Supp. 2d 347 (W.D. Va. 2013) (ECF No. 28-1).
57

Pl.'s Opp'n Ex. K 26.
Accordingly, Defendants' attempted disclaimer is inconspicuous
and therefore ineffective.

Consequently,

summary judgment as to

Benedict's breach of warranty claim is inappropriate. 23

D.

The Causation Argument

Defendants additionally seek summary judgment on the ground
that Benedict cannot establish causation as to any of his claims.
Specifically, they assert that Benedict was negligent per se because
he was required by regulations to remove any tires with cuts extending
to the belts and the subject tire had two such cuts prior to the
accident. Defs.' Br. 27-28. They claim that this negligence was a
superseding act that broke the chain of causation between the alleged
defects in the subject tire and the accident.
Defendants incorporated by reference these arguments into their
opposition

to

Benedict's

motion

for

summary

judgment

as

to

Defendants' contributory negligence defense. Accordingly, the Court
addressed Defendants'
motion,

and it incorporates that analysis here.

Specifically,
establish

23

contentions in its Opinion resolving that

the

either

Court
the

determined

"negligence"

that
or

(ECF No.

Defendants

"causation"

341).

could

elements

not
of

In light of this conclusion, it is unnecessary to reach the parties'
other arguments
as
to
Benedict's
implied warranty claim.
Furthermore, the Court does not consider the disclaimer clause's
limitation on remedies, as the parties have not argued this point.
58

negligence per se. See Halterman v. Radisson Hotel Corp., 523 S. E. 2d
823, 825 {Va. 2000); Thomas v. Settle, 439 S.E.2d 360, 363 {Va. 1994).
These conclusions are just as fatal to Defendants' claim of
superseding negligence as they are to their claim of contributory
negligence. 24 Thus, summary judgment must be denied.
E.

The Distributor Liability Argument

Defendants' final argument is that, even if HTCL is potentially
liable, HTAC is not {as to the negligence claim) because it did not
manufacture the subject tire.

Def s.'

Br.

28-2 9.

This point is

unfounded.
In Virginia, liability for defective products is not limited
to manufacturers. See Bilenky v. Ryobi Techs., Inc., 666 F. App'x
271, 274 {4th Cir. 2016) (per curiam) ("In Virginia, a plaintiff can
impose liability on a manufacturer or seller of a defective product
if the product is unreasonably dangerous . . . . " {emphasis added) ) ;
Bly v. Otis Elevator Co., 713 F.2d 1040, 1042 (4th Cir. 1983) ("Under
Virginia law . . . manufacturers and sellers of defective products
can be held liable on theories of negligence and breach of the implied
warranty of merchantability." (emphasis added)); Logan, 219 S.E.2d

24

Indeed, they may be more so, given that the superseding negligence
doctrine is stringent in Virginia. As this Court has recognized,
superseding negligence "must so entirely supersede the operation of
the defendant's negligence that it alone, without the defendant's
[negligence contributing] thereto in the slightest degree, produces
the injury." APV Crepaco, Inc. v. Alltransport Inc., 683 F. Supp.
1031, 1032 {E.D. Va. 1987) {citations omitted).
59

at 687 ("The standard of safety of goods imposed on the seller or
manufacturer of a product is essentially the same whether the theory
of liability is labeled warranty or negligence." (emphasis added) ) .
Furthermore, an entity that holds itself out as the manufacturer
by "putting a chattel out as his own product" is subject "to the same
liability as the actual manufacturer." Bilenky,

666 F. App' x at

274-75 (citations omitted)). This rule conventionally applies to
distributors, id. at 275, such as HTAC, see Defs.' Br. 4 ("The Subject
Tire was then shipped to [HTAC] for distribution[.]") . 25
Defendants have not explained why these rules do not apply to
HTAC. Defs.' Br. 28-29. Rather, the only basis for their position
is that HTAC did not manufacture the subject tire and is thus immune
from liability for negligence. Defs.' Br. 28-29. And, as explained,
that argument is wrong. Accordingly, summary judgment is improper.

25

There may be limitations on the liability of sellers downstream
from or unaffiliated with a manufacturer. See Dameron, 198 5 WL
306781, at *1, 8. But it is clear that "if a seller distributes a
product as his own product, he incurs the liability of a
manufacturer." Id. at *8. Defendants have not explained why HTAC and
HTCL are not subject to the same standard of liability. Defs.' Br.
28-29.
60

IV.

CONCLUSION

For the foregoing reasons,

this Court denied HANKOOK TIRE

COMPANY LIMITED'S AND HANKOOK TIRE AMERICA COMPANY'S MOTION FOR
SUMMARY JUDGMENT {ECF No. 62) . 26
It is so ORDERED.
Is/

{(&!

Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date: February __f;,_, 2018

26

In his brief opposing Defendants' motion for surrunary judgment,
Benedict sought surrunary judgment in his favor on Defendants' implied
warranty def ens es if the Court adopted his position. See Pl.' s Opp' n
22, 28. That is not the proper procedural means to achieve such
relief. Given the decisions in Part III. C of the Memorandum Opinion,
Benedict must seek that relief properly, and he is granted leave to
do so if he acts forthwith.
61