Benedict v. Hankook Tire Company Limited et al

Filing 456

MEMORANDUM OPINION. See Opinion for details. It is so ORDERED. Signed by District Judge Robert E. Payne on 4/4/2018. (sbea, )

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

CLERK, U.S. DISTRICT COURT
RICHMOND. VA

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
AND HANKOOK TIRE AMERICA CORPORATION'S MOTION TO AMEND JUDGMENT BASED
ON CLEAR ERROR OF LAW (ECF No. 367). Defendants' motion was denied
by ORDER (ECF No.

391)

dated February 28, 2018. This Memorandum

Opinion sets out the reasoning for that decision.

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

for

the

defective tire.

production and

distribution

of

an

allegedly

Defendants seek reconsideration of the Court' s

previous ORDER (ECF No. 221) and Memorandum Opinion (ECF No. 341)
(hereinafter "Original Opinion")

granting Benedict's motion for

summary judgment as to Defendants' contributory negligence defense.

I.

Factual Context
The relevant facts are set out in the Original Opinion (ECF No.

341) that Defendants ask the Court to reconsider, and the Court
assumes familiarity with the facts as presented therein. In short,
however,

this

action involves

a

single-vehicle accident

that

occurred when the front right tire of a cement truck driven by
Benedict suffered a tread separation and the truck thereafter
collided with an embankment on the side of the road. (ECF No. 341).
The following passage from the Original Opinion is also worth
highlighting:
At the time of the accident, the 2014
Virginia Commercial Driver's License Manual
(the "CDL Manual"), published by the Virginia
Department of Motor Vehicles, was in effect. It
apprises commercial drivers of "important
information that [they] must know to operate
[their] vehicle[s] in a safe and professional
manner." It advises drivers facing a tire
failure to:
Hold the steering wheel firmly. If a
front tire fails, it can twist the steering
wheel out of your hand. Keep a firm grip
on the steering wheel with both hands at
all times.
Stay off the brakes. Braking when a
tire has failed could cause you to lose
control. Unless you are about to run into
something, stay off the brake until the
vehicle has slowed down. Then, brake
gently and pull off the road.
Check the tires. Even if the vehicle
seems to be handling normally. Many times
2

you won't know that a dual tire is flat
unless you look at it.
{ECF No. 341)
II.

(citations omitted).

Procedural History

Benedict
liability

initially

negligence

asserted

{including

three

claims:

manufacturing

(1)

products

defect,

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. As of the filing
date of Defendants' motion for reconsideration, Benedict is pursuing
only a negligent manufacturing claim against HTCL and an implied
warranty of merchantability claim against HTCL and HTAC. Second Am.
Comp 1. 4 , 6 . 1
In October 2017, Benedict moved for partial summary judgment
to bar Defendants'

contributory negligence defense.

The Court

granted Benedict's motion at a hearing held on November 20, 2017,
Nov. 20, 2017 Hr'g Tr. 152, and it issued an ORDER {ECF No. 221) on
November 27, 2017 and a Memorandum Opinion (ECF No. 341) on February
6, 2018 formalizing its decision.
On December 4, 2017 (before the Court released the Original
Opinion setting forth the reasoning for its decision), Defendants
moved for reconsideration on the ground that the Court had made a

1

Just before trial, Benedict voluntarily dismissed the implied
warranty claim.
3

clear error of law. On December 5, 2017, the Court denied this motion
as premature, but it permitted Defendants to seek reconsideration
again after the release of the Court's Opinion.

(ECF No.

226).

Accordingly, Defendants filed the present motion on February 20,
2018.
DISCUSSION
I.

The Proper Ground For Seeking Reconsideration
Defendants move for reconsideration on the authority of Federal

Rule of Civil Procedure 59 (e), which allows a court "to alter or amend
a judgment" based on a motion filed "no later than 28 days after the
entry of the judgment." See Defs.' Br. l, 3-4; Fed. R. Civ. P. 59 (e);
United States v. Danielczyk, 917 F. Supp. 2d 573, 575-76 {E.D. Va.
2013) . They also point to Rule 60 {b) , which allows a court to "relieve
a party . . . from a final judgment, order, or proceeding" on a more
extended timeline. See Defs.' Br. 3-4; Fed. R. Civ. P. 60; Danielczyk,
917 F. Supp. 2d at 575.
Neither of these Rules, however,
seeking reconsideration here.

As

is the proper vehicle for

the District of Maryland has

explained:
Orders
are
only
susceptible
to
reconsideration under Rules 60(b) and 59(e) if
they
constitute
"final
judgments."
See
Fayetteville Investors v. Commercial Builders,
Inc. , 936 F. 2d 1462, 1469 (4th Cir. 1991) {"Rule
60 (b) [is] not available for relief from an
interlocutory order. Rule 59 {e) is equally
4

applicable only to a final
judgment"} .
Judgments are generally only final where they
adjudicate and resolve all claims as to the
parties. See Millville Quarry Inc. v. Liberty
Mut. Fire Ins. Co., 217 F.3d 839, *3 (4th Cir.
2000) (unpublished}. An order dismissing fewer
than all claims is not a final judgment for which
a Rule 60 (b} or 59 (e} motion is appropriate, but
rather an interlocutory motion [sic] that may
be contested under Rule 54(b}.
Moore v. Lightstorm Entm't, 11-3644, 2013 WL 4052813, at *3 (D. Md.
Aug. 9, 2013). Defendants' motion seeks reconsideration of a decision
granting partial summary judgment as to a defense; such a decision
certainly does not "adjudicate and resolve all claims as to the
parties." See id. "The Fourth Circuit has made clear that where, as
here, the entry of partial summary judgment fails to resolve all
claims in a suit, Rule 54(d) [sic]-not Rule 59{e} or 60{b)-governs
a

motion

for

reconsideration."

Netscape

Commc'ns

Corp.

v.

ValueClick, Inc., 704 F. Supp. 2d 544, 546 (E.D. Va. 2010); see also
Al Shimari v. CACI Int'l, Inc., 933 F. Supp. 2d 793, 798 (E.D. Va.
2013}. Therefore, the Court construes Defendants' motion as a motion
for reconsideration under Rule 54(b} rather than under Rules 59(e}
or 60(b}.
Under Rule

54 (b} ,

"any order or other decision,

however

designated, that adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties . . . may be revised
at any time before the entry of a judgment adjudicating all the claims
and all the parties' rights and liabilities." Fed. R. Civ. P. 54 (b} .
5

This Court has described the standards applicable to Rule 54(b)
motions in the following way:
The resolution of motions to reconsider
pursuant to Rule 54 (b) is ''committed to the
discretion of the district court, 11 which may be
exercised "as justice requires. 11 Am. Canoe
Ass'n v. Murphy Farms, Inc., 326 F.3d sos, 515
(4th Cir. 2003). The Fourth Circuit has made
clear
that
the
standards
governing
reconsideration of final judgments are not
determinative of a Rule 54(b) motion. Id. at
515. Yet, many courts in this circuit have
appropriately considered those factors in
guiding the exercise of their discretion under
Rule 54 (b) . See Al Shimari v. CACI Int' 1, Inc. ,
933 F. Supp. 2d 793, 798 (E.D. Va. 2013); see
also In re C.R. Bard, Inc., No. 2:11-cv-00114,
2013 WL 2949033, at *2 (S.D. w. Va. June 14,
2013)
("[A]lthough
a
'motion
for
reconsideration under Rule 54 (b) is not subject
to the strictures of a Rule 60 (b) motion, ' this
district has been 'guided by the general
principles of Rules 59(e) and 60(b)'
in
determining whether a Rule 54(b) motion should
be granted."
(citation omitted)).
Courts
generally do not depart from a previous ruling
unless
"(1)
a
subsequent trial produces
substantially
different
evidence,
(2)
controlling authority has since made a contrary
decision of law applicable to the issue, or ( 3)
the prior decision was clearly erroneous and
would work manifest injustice." Am. Canoe
Ass'n, 326 F.3d at 515 (citation omitted).
Zaklit v. Global Linguist Solutions,

Inc.,

l:14-cv-314,

2014 WL

4161981, at *2 (E.D. Va. Aug. 19, 2014); see also Evans v. Trinity
Indus., Inc., 148 F. Supp. 3d 542, 544 (E.D. Va. 2015); Al Shimari,
933 F. Supp. 2d at 798. "Absent a significant change in the law or
the facts since the original submission to the court, granting a
6

motion for reconsideration is only appropriate where, for example,
the court 'has patently misunderstood a party, or has made a decision
outside the adversarial issues presented to the Court by the parties,
or has made an error not of reasoning but of apprehension.'" Evans,
148 F. Supp. 3d at 544 (citations omitted).
Motions for reconsideration are not lightly granted, and "the
Court exercises its discretion to consider such motions sparingly."
See Shanklin v. Seals, 3: 07-cv-319, 2010 WL 1781016, at *2 (E. D. Va.
May 3, 2010) ; see also Wootten v. Virginia, 168 F. Supp. 3d 890, 893
(W.D. Va. 2016). This Court has characterized such motions as an
"extraordinary remedy." See Mohamed v. Holder, 1:ll-cv-0050, 2015
WL 11121994, at *3 (E.D. Va. Dec. 18, 2015); Zaklit, 2014 WL 4161981,
at *2 (citations omitted). Indeed, the type of concerns that would
warrant reconsideration "rarely arise and the motion to reconsider
should be equally rare." Evans, 148 F. Supp. 3d at 544 (citations
omitted); Zaklit, 2014 WL 4161981, at *2 (citations omitted).
Consequently, there are substantial limitations on the use of
motions

for

reconsideration.

For

instance,

"[a]

party's mere

disagreement with the district court's ruling does not warrant a
motion for reconsideration." Zaklit, 2014 WL 4161981, at *2; see also
Herndon v. Alutiig Educ.

&

Training,

LLC,

2:16-cv-72,

2016 WL

9450428, at *2 (E.D. Va. Aug. 15, 2016) ("Mere disagreement with a
court's application of the law does not support a motion for
7

reconsideration." (citations omitted)). Likewise, "[c]ourts do not
entertain motions to reconsider which ask the Court to 'rethink what
the Court had already thought through-rightly or wrongly. ' " S. Coal
Corp. v. IEG Pty, Ltd., 2:14-cv-617, 2016 WL 393954, at *2 (E.D. Va.
Jan. 29, 2016) (citations omitted). "Moreover, 'the court should not
reevaluate the basis upon which it made a prior ruling, if the moving
party merely seeks to reargue a previous claim. ' " Evans, 14 8 F. Supp.
3d at 544 (citations omitted). Finally, "such motions should not be
used 'to raise arguments which could have been raised prior to the
issuance of the judgment, nor may they be used to argue a case under
a novel legal theory that the party had the ability to address in
the first instance.'" Zaklit,

2014 WL 4161981, at *2

(citations

omitted); see also Intelligent Verification Sys., LLC v. Microsoft
Corp., 2:12-cv-525, 2015 WL 12723143, at *2 (E.D. Va. Feb. 25, 2015)
( "Courts will not typically reconsider an interlocutory order where
the motion to reconsider simply seeks to present a better and more
compelling argument that the party could have presented in the
original briefs."

(citations omitted)) . The Western District of

Virginia has articulated some of these limits well, stating:
Critically here, reconsideration is not
meant to re-litigate issues already decided,
provide a party the chance to craft new or
improved
legal
positions,
highlight
previously-available facts, or otherwise award
a proverbial "second bite at the apple" to a
dissatisfied litigant. It is "inappropriate
where it merely reiterates previous arguments."
8

It is not an occasion "to present a better and
more compelling argument that the party could
have presented in the original briefs" or to
"introduce evidence that could have been
addressed or presented previously." Aggrieved
parties may not "put a finer point on their old
arguments and dicker about matters decided
adversely to them." In sum, "a party who fails
to present his strongest case in the first
instance generally has no right to raise new
theories
or arguments
in a
motion
to
reconsider."
Wootten, 168 F. Supp. 3d at 893 (citations omitted).
II.

The Contributory Negligence Decision

The Court assumes familiarity with its Memorandum Opinion (ECF
No. 341) describing its reasoning for granting Benedict's motion for
summary judgment as to Defendants' contributory negligence defense.
To the extent that the Original Opinion is relevant to the fallowing
analysis, it is incorporated here by reference. In summary, however,
the Court held, in relevant part, that Defendants were required by
Virginia' s "expert testimony rule" to establish the standard of care
in this case by expert testimony, that they had failed to do so, and
that Defendants could not avail themselves of any exception to the
rule.

(ECF No. 341}.

III. Analysis Of Defendants' Argwnents

Defendants seek reconsideration on the ground that the Court
committed a clear error of law, which is most analogous to a claim
that

"the prior decision was clearly erroneous and would work

manifest injustice." See Defs.' Br. 15; Zaklit, 2014 WL 4161981, at
9

*2 {citations omitted). As set forth below, the Court rejects each
of Defendants' arguments as to why the Court should reconsider its
previous decision. 2
A.

The Argument That The CDL Manual Satisfies The Exception
To The Expert Testimony Rule For Standards Of Conduct That
Have Ripened Into Rules Of Law

Defendants' first argument, in essence, is that the CDL Manual
satisfies the exception to the expert testimony rule, described in
the Original Opinion, that applies when "standards of conduct 'have
ripened into rules of law.'" (ECF No. 341) (citations omitted); see
Defs.' Br. 2, 5-8; see also Defs.' Br. 13-14; Defs.' Reply Br. 3.
They maintain that the CDL Manual

3

is referenced by a federal

regulatory framework, specifically that reflected in 49 C.F.R.

§§

383.111 and 383.131, in such a way as to require this conclusion.
See Defs.' Br. 2, 6-8.
Defendants' argument, however, was addressed by the Original
Opinion wherein the Court explicitly held that the "rules of law"

2

The Court rejects Defendants' motion primarily on procedural
grounds, so it only minimally addresses the merits of Defendants'
arguments. But, even on the merits, the Court would deny Defendants'
motion. None of the points raised by Defendants convinces the Court
that the Original Opinion was in any way erroneous. Thus, although
the Court recognizes that its "ultimate responsibility . . . is to
reach the correct judgment under law,
it has done so here. See
Netscape Commc'ns Corp., 704 F. Supp. 2d at 547 (citations omitted).
11

3

As discussed in the Original Opinion, the parties have pointed to
two separate CDL Manuals, which do not differ in any meaningful way
in terms of substance. (ECF No. 341). Again, the distinctions between
these CDL Manuals in no way affect the reasoning herein.
10

exception is inapposite in this case. (ECF No. 341). And, the very
regulations that Defendants cite to support their claim that this
exception applies, 49 C.F.R.

§§

383.111 and 383.131, were cited by

the Court for the opposite proposition. (ECF No. 341). Defendants
are therefore moving for reconsideration based on "mere disagreement
with the district court's ruling,"~ Zaklit, 2014 WL 4161981, at
*2, and to ask this Court "to 'rethink what [it has] already thought
through,'" see S. Coal Corp., 2016 WL 393954, at *2

(citations

omitted). These are impermissible grounds for such a motion.
Moreover, there is no reason that Defendants could not have
presented their argument as to this issue in response to Benedict's
motion

for

summary

judgment.

Therefore,

they

are

seeking

reconsideration "to raise arguments which could have been raised"
previously or "to argue a case under a novel legal theory that
[Defendants] had the ability to address in the first instance." See
Zaklit, 2014 WL 4161981, at *2 (citations omitted). As Wootten so
effectively

explained,

'' re consideration

is

not

meant

to . . . provide a party the chance to craft new or improved legal
positions . . . or otherwise award a proverbial 'second bite at the
apple' to a dissatisfied litigant," and "[i] t is not an occasion 'to
present a better and more compelling argument that the party could
have presented in the original briefs.'" Wootten, 168 F. Supp. 3d
at 893 (citations omitted).

That they cannot do.
11

B.

The Argument That The CDL Manual Is A Legislative Fact
Subject To Judicial Notice

Defendants likewise claim that the CDL Manual is a legislative
fact, that it defines the standard of care here in light of its
interplay with federal regulations, and that it "should be judicially
noticed

by

the

Court

and

considered

when

ruling

reconsidering) Plaintiff's motion for summary judgment.

11

on

(and

See Defs.'

Br. 8-10; see also Defs.' Reply Br. 4. This contention, however, is
simply a repackaged version of

(or analytical addition to)

the

argument that the CDL Manual establishes the governing standard of
care on its own because it is referenced by federal regulations.
Accordingly, it fails for the same reasons as the argument discussed
in the previous section. And, if Defendants wanted the Court to
judicially notice the CDL Manual, they should have requested that
to have been done when opposing Benedict's motion. See Zaklit, 2014
WL 4161981, at *2; see also Wootten, 168 F. Supp. 3d at 893. 4

4

Even if the Court were to consider judicially noticing the CDL
Manual, moreover, that would not help Defendants. That is because
the Court is in no way bound by a party's interpretation of a
legislative fact. According to the advisory committee notes to
Federal Rule of Evidence 201, which discusses "the view which should
govern judicial access to legislative facts, "[i] n determining the
content or applicability of a rule of domestic law, the judge is
unrestricted in his investigation and conclusion. He may reject the
propositions of either party or of both parties. . . . [Tl he parties
do no more than to assist; they control no part of the process. Fed.
R. Evid. 201 advisory committee notes (citations omitted).
11

11

12

C.

The Argwnent That The CDL Manual Satisfies The Exception
To The Expert Testimony Rule For Matters Which Are Clearly
Within The Jury's Common Knowledge And Experience

Defendants also argue that the CDL Manual falls into the
exception to the expert testimony rule,

also described in the

Original Opinion, that applies "where some distinct aspect of a
normally complex matter 'clearly lies within the range of the jury's
common

knowledge

and

experience.'"

(ECF

No.

341)

(citations

omitted); see Defs.' Br. 12-13, 15; see also Defs.' Reply Br. 3-4.
They claim that "[t]he CDL Manual's instructions for responding to
a tire failure are not complex, technical or beyond the understanding
of the average juror." Def s. '

Br. 12; see also Def s. ' Br. 13.

Defendants maintain that this case is unlike complex professional

Here, the existence of the CDL Manual and the regulations
relating to it may well be a "legislative fact." See Roberts v.
Sunbelt Rentals, Inc., 5:14-cv-00040, 2016 WL 1259414, at *13 (W.D.
Va. Mar. 30, 2016) {"[L]egislative facts [are] facts that do not
change from case to case, but instead apply to all cases."). The
Court, however, does not perceive it to be a legislative fact that
the CDL Manual defines the standard of care here. The relevant
regulations simply indicate that states must provide a CDL Manual
to CDL applicants, that CDL drivers are required to have certain
knowledge and skills, and that a CDL Manual must include information
about the required knowledge and skills. See 49 C.F.R. §§ 383.110,
383.111, 383.131. And, a 2016 rulemaking that amended 49 C.F.R. §
383 .131 (but "d [id] not make any substantive changes to the affected
regulations, except to remove obsolete provisions") explained that
" [the Federal Motor Carrier Safety Administration] provides the
manual as a reference for States, but does not require any specific
manual published after July 2010, nor does it incorporate any manual
by
reference
into
the
regulations."
General
Technical,
Organizational, Conforming, and Correcting Amendments to the Federal
Motor Carrier Safety Regulations, 81Fed. Reg. 68,336, 68,336, 68,340
(Oct. 4, 2016).
13

negligence malpractice cases,

in which the standard of care is

\\nebulous" and which \\do not include an express set of instructions
that are approved by a governmental agency, referenced by name and
approved in a federal regulation." See Defs.' Br. 12-13.
Defendants' arguments on this issue too were addressed by the
Original Opinion. There, the Court expressly concluded that this case
is sufficiently complex to trigger the expert testimony rule as to
the standard of care question and that the exception now relied upon
by Defendants is inapplicable.

(ECF No. 341). Thus, this argument

is a \\mere disagreement" with the Court's decision, see Zaklit, 2014
WL 4161981, at *2, and asks the Court \\to 'rethink what [it has]
already thought through,'" see S. Coal Corp., 2016 WL 393954, at *2
(citations omitted) .

Neither is a proper basis for reconsideration.

Furthermore, before pursuing reconsideration, Defendants had
actually agreed with Benedict that the standard of care question here
is complex enough to fall within the expert testimony rule. 5 In their
brief in opposition to Benedict's motion, Defendants stated:
There is no dispute that expert testimony
is required to define the standard of care where
the conduct at issue is beyond "ordinary human
knowledge and experience." (Pl.' s Mot. at 10.)
Likewise, there is no dispute that the operation
of a commercial motor vehicle-in this case a
cement mixer truck that suffered a tire

5

Nevertheless, the Court evaluated the applicability of the expert
testimony rule to ensure that the parties had not reached an erroneous
legal conclusion. (ECF No. 341).
14

disablement-is beyond the ordinary knowledge
and experience of laymen. {Id. at 10-11.)
Def s.' Opp' n to Pl. 's Mot. for Summ. J. 12 (hereinafter Defs.' Summ.
J. Opp'n]. Had Defendants wished to contest whether the standard of

care issue is properly subject to the expert testimony rule, they
certainly could have done that in their opposition brief instead of
conceding the point. The Court cannot now sanction the Defendants'
about face in order to allow them "to argue a case under a novel legal
theory that (they] had the ability to address in the first instance."
See Zaklit,

2014 WL 4161981, at *2 {citations omitted). Again,

reconsideration "is not an occasion 'to present a better and more
compelling argument that the party could have presented in the
original briefs,'" and "a party who fails to present his strongest
case in the first instance generally has no right to raise new
theories or arguments in a motion to reconsider." Wootten, 168 F.
Supp. 3d at 893 {citations omitted).
D.

The Argument That Benedict's
Evidence Of Negligence

Testimony

Can

Defendants additionally suggest that Benedict' s

Provide

testimony

{especially in conjunction with the CDL Manual and an expert's
testimony) can establish all elements of negligence in this case,
including the standard of care. See Defs.' Br. 11-14. However, the
Court has already held that expert testimony is required to establish
the standard of care and that Defendants have proffered no such
15

testimony.

(ECF No. 341}. As elsewhere, Defendants are improperly

endeavoring

to

wriggle

out

of

this

holding

based

on

"mere

disagreement" with it, see Zaklit, 2014 WL 4161981, at *2, and to
have the Court "rethink what [it has] already thought through," see
S. Coal Corp., 2016 WL 393954, at *2 (citations omitted). Likewise,
there is no reason that Defendants needed to wait until now to raise
or bolster this theory. See Zaklit, 2014 WL 4161981, at *2; see also
Wootten, 168 F. Supp. 3d at 893. 6
E.

The Argument That Benedict Conceded That The CDL Manual
Defines The Standard Of Care In This Case

Defendants further contend that Benedict previously conceded
that the CDL Manual establishes the applicable standard of care. See
Defs.' Br. 11. Defendants do not devote much space to this point,
but the Court calls attention to the argument and addresses its merits
because it profoundly mischaracterizes the record and is actually
quite misleading.
Defendants state in their brief supporting their motion that:
Even if these manuals were not legislative
facts, Plaintiff has already represented to the
Court and taken the position that the undisputed
standard of care governing how Plaintiff should
respond to a tire failure is in the VA CDL

6

Defendants raised a vaguely similar point in their brief in
opposition to Benedict's motion, but they did so in the context of
discussing the evidence relating to whether Benedict had breached
the standard of care. See Def s.' Summ. J. Opp' n 16. Defendants never
asserted that Benedict's testimony is relevant to what the standard
of care actually is. See Defs.' summ. J. Opp'n 1-8, 12-13.
16

Manual. (Pl.'s Memo. in Support of Mot. for
Summary Judgment [Dkt. 53] ("Pl.' s MSJ") , at 7,
Undisputed Fact Nos. 32 and 33.) Plaintiff
confirmed that these instructions are the
standard of care during the hearing on his
Motion: "[i]n this case, the standard of care
in responding to a tire disablement was the
method depicted in the CDL manual." (MSJ Hr'g
Tr. at 33:20-21.)
Defs.' Br. 11.
The portion of Benedict's brief in support of his motion for
summary judgment cited by Defendants did not represent to the Court
that the undisputed standard of care is the CDL Manual. Rather,
paragraph 32 (of the "statement of undisputed facts" section) quoted
the CDL Manual and observed that: "The Virginia CDL Manual instructs
commercial drivers as to the 'important information that [they] must
know to operate [their) vehicle in a safe and professional manner.'"
Pl.'s Mem. in Supp. of Mot. for Summ. J. 7 [hereinafter Pl.'s Summ.
J.

Br.]

(citations omitted) . Then,

paragraph 33

(of that same

section) set forth the CDL Manual's instructions for responding to
a tire failure. Pl.'s Summ. J. Br. 7-8. Benedict proceeded to argue
that Defendants had presented no qualified expert testimony defining
the standard of care. Pl.'s Summ. J. Br. 12-17.
At the hearing on Benedict's motion, moreover, Benedict did not
confirm that the CDL Manual sets the standard of care. Rather, the
quote by Benedict's counsel cited by Defendants explained what an
expert would need to assert to establish the CDL Manual as the
17

standard of care. See Nov. 20, 2017 Hr'g Tr. 33. The cited statement
was made in the following context:
THE COURT: What is the standard of care?
MR. McBETH: Well, for Mr. Benedict, we haven't
articulated a standard of care, because that's
an not element that we have a burden of proving
in this case.
THE COURT: I didn't ask you that. Let me try it
another way. What would they have to do to
articulate a standard of care that they haven' t
done?
MR. McBETH: So they would have to have a
qualified expert establish the standard of care
and then define
THE COURT: What would he have to say?
MR. McBETH: In this case, the standard of care
in responding to the tire disablement was the
method depicted in the CDL manual, or the
standard of care was to counter steer 60
degrees, any number of ways, but setting the
standard by reference to an approach to the
situation and then saying how he failed to
achieve that, and that's just not something they
have.
Nov. 20, 2017 Hr'g Tr. 33-34 (emphasis added).
In short, Defendants' argument on this point is specious and,
therefore, not a ground for reconsideration. It also takes matters
in the record so out of context as to be misleading.

18

CONCLUSION

For the reasons set forth above, the Court denied HANKOOK TIRE
COMPANY LIMITED AND HANKOOK TIRE AMERICA CORPORATION'S MOTION TO
AMEND JUDGMENT BASED ON CLEAR ERROR OF LAW (ECF No. 367).
It is so ORDERED.

1s1

R£{J

Robert E. Payne
Senior United States District Judge
Richmond, Virginia
4
Date: April~-' 2018

19