Benedict v. Hankook Tire Company Limited et al
Filing
480
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 07/09/2018. (tjoh, )
i
I
E
JUL - 9 2018
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
CLtBK, U S
Richmond Division
ROBERT BENEDICT,
Plaintiff,
Civil Action No. 3:17-cv-109
V.
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 CORPORATION'S MOTION FOR JUDGMENT
AS A MATTER OF LAW OR, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL (EOF
No. 458). The motion will be denied in part and granted in part.
BACKGROUND
I.
Procedural Context
In this products liability action, Robert Benedict sued Hankook
Tire Company Limited ("HTCL") and Hankook Tire America Corporation
("HTAC") for the production and distribution of an allegedly
defective tire. HTCL and HTAC are herein referred to collectively
as "Defendants" because, throughout the proceedings, the parties
have done so.
Although
Benedict
initially
pursued
several
theories
of
liability, at trial, he pursued only a negligent manufacturing claim
iR\
against Defendants. See Third Am. Compl. 4-5. A jury trial was held
from March 5, 2018 to March 9, 2018, and the jury returned a verdict
for Benedict of $37,835,259.23. Defendants moved for judgment as a
matter of law during trial under Fed. R. Civ. P. 50(a). Trial Tr.
426-28. Defendants now seek judgment as a matter of law under Fed.
R. Civ. P. 50(b) or, alternatively, a new trial under Fed. R. Civ.
P. 59.
II.
Factual Context
A.
Stipulated Facts
The following recitation of facts stems from the parties'
factual stipulations, which were entered into evidence as an exhibit
and read to the jury at trial. Trial Tr. 420-21, 425.
This case involves the "November 14, 2014 rollover of a 2007
Kenworth cement truck being operated by" Benedict for his employer,
Essex Concrete. Trial Tr. 421-23. While driving on Route 288 in
Chesterfield County, the front right tire (the "subject tire") of
the truck suffered a tread separation and "completely deflated." See
Trial Tr. 421, 423. "The cement truck continued in the right lane
for approximately 40 feet before traveling over the white fog line,
off the right shoulder, up an embankment, and rolled over." Trial
Tr. 423.
As a result of those events, Benedict sustained injuries that
"prevent him from ambulating and make him dependent on others for
2
assistance to perform his activities of daily living." See Trial Tr.
424. Benedict "was treated for his injuries at [the Medical College
of Virginia] from November 14, 2014 until December 19, 2014; treated
at Vibra Hospital from December 19 until January 26, 2015; and treated
at
Virginia
Commonwealth
University
Physical
Medicine
and
Rehabilitation from January 26, 2015 until March 20, 2015. Mr.
Benedict was discharged and returned home on March 20, 2015." Trial
Tr. 424. His medical bills totaled $2,049,675.23. See Trial Tr. 425;
PI.'s Ex. 27.
The subject tire "was a Hankook Aurora TH08, size 425/65R22.5
medium truck tire that was designed by [HTCL] and manufactured at
Hankook's Daejeon South Korea manufacturing plant during the week
of November 20, 2005." Trial Tr. 421-22. "After being manufactured,
the subject tire was shipped to [HTAC] for distribution in the United
States." Trial Tr. 422. The subject tire was sold by Old Dominion
Tire to Metro Ready Mix. Trial Tr. 422. "In May 2014, Metro Ready
Mix sold its assets, including the cement truck" to Essex. Trial Tr.
422. Before that, "the subject tire was removed from an unknown cement
truck on an unknown date and installed on the cement truck involved
in the November 14, 2014 accident." Trial Tr. 422. After the accident,
the subject tire "remained[ed] mounted on the cement truck [which
was kept in a storage yard] for approximately one year." Trial Tr.
424. "Between December 5, 2015 and the present, the subject tire has
been maintained in a storage unit in Miami, Florida." Trial Tr. 424.
B.
Overview of Liability Evidence
1.
Plaintiff s Evidence
To prove his liability theory, Benedict offered the testimony
of HTCL officers and employees, documents produced by HTCL, testimony
of eyewitnesses to the accident, the subject tire, and expert
testimony. He relied most heavily, however, on the expert testimony
of David Southwell, and it is that testimony that drives the motions
under consideration.
i.
David Southwell & His Experience
David Southwell was accepted as an expert "forensic tire
engineer." Trial Tr. 114; see also Benedict v. Hankook Tire Co. Ltd.,
290 F. Supp. 3d 488, 497-507 (E.D. Va. 2018) (ECFNo. 342). Southwell
is "an independent tire engineering consultant and failure analyst"
and possesses, inter alia, a Master's degree in engineering and a
wealth of professional experience in the tire failure analysis field.
See Trial Tr. 105-114. Southwell spent "nearly 13 years with
Bridgestone Australia" in a variety of roles that required him to
understand how and why tires fail, including by analyzing and
inspecting failed tires, and he received specific training in that
regard. See Trial Tr. 106-07, 111-13. After that, Southwell "went
into business for [him]self," "selling and servicing tires of all
types" while also "consult[ing] on tire failures" to diverse groups.
See Trial Tr. 107-08. Southwell then joined Bridgestone Corporation
in Thailand for three years, training "other Bridgestone engineers
and other Bridgestone employees from around the Asia Pacific
region . . . . in all of the tire technical aspects and failure
analysis techniques" he had learned in Australia. Trial Tr. 108-09,
113. Next, he worked for South Pacific Tires, "the manufacturer of
Dunlop and Goodyear tires in Australia," in a role that required him
to "oversee and coordinate the new product development process for
Australia." Trial
Tr.
108.
Since
2005,
Southwell
has
been
an
independent consultant for "police, crash investigators, insurance
companies, [and] attorneys." Trial Tr. 108. Southwell estimated
that, over the course of his career, he has inspected over 15,000
failed truck tires to determine the cause of failure. Trial Tr.
113-14.
ii.
The Defect Theories
Upon examination of the subject tire, Southwell "found two
manufacturing defects which together . . . caused the [subject]
tire to fail in service suddenly." Trial Tr. 115, 133. "The first
of those was inadequate adhesion between the components in the tire."
Trial Tr. 133. The second was that the subject tire's "inner liner
was too thin," which "allowed oxygen to permeate into the body of
the tire up into the belt and body ply package and caused oxidation
or deterioration of the rubber." Trial Tr. 133-34. He determined that
the separation had occurred "between the body ply and the first belt."
Trial Tr. 152. And, he testified that the subject tire failed well
before the end of its expected useful service life. See Trial Tr.
132.
Southwell's first defect opinion was based on his finding of
"multiple areas in the tire of what's called ^liner imprint.'" Trial
Tr. 134. He asserted that newly mixed tire rubber is soft and sticky,
and it is rolled up with "an interleaving liner . . . so that the
rubber doesn't actually touch itself." Trial Tr. 137-38. When that
liner is removed, "the imprint of the pattern on the plastic liner
is
embedded
in
the
soft
rubber." Trial
Tr.
139.
According
to
Southwell's experience and opinion, when the tire is assembled,
"[p]atterns in the soft, tacky rubber should completely disappear."
See Trial Tr. 140. That is because adjoining rubber components should
"become one piece of rubber" through a chemical reaction process
called
interdiffusion.
Trial
Tr.
140-41.
Thus,
according
to
Southwell, when you see liner patterns, "you know that you're looking
at one of the original interfaces [between internal tire components],
an interface that should have interdiffused with its adjoining
interface to form a complete bond." Trial Tr. 144-45. Liner pattern
marks are "very clear evidence that in those areas, the rubber
components had failed to bond to the extent that they are required
to bond to prevent the tire from falling apart in service." Trial
Tr. 134.
Incomplete interdiffusion results from a phenomenon called
"scorch," which occurs in the manufacturing plant. Trial Tr. 145.
Southwell explained that, to vulcanize the rubber and make it "harder
and elastic, sulfur is added and heat and pressure are applied. Trial
"
Tr. 146-47. Interdiffusion involves molecular "fingers" at the
surface of rubber components migrating across the surfaces of
adjacent components and intermixing. Trial Tr. 140, 146-47. When
vulcanization occurs, the sulphur joins these fingers and locks them
in place. See Trial Tr. 147. Once sulfur has been added to the rubber,
however, which occurs early in production (before a tire is built),
there is enough heat in the air to start the vulcanization process
and lock a rubber component's molecular fingers together. See Trial
Tr. 147-48. Hence, "if you leave the components around in the factory
for too long before you bring them together, then what will happen
is too many of these fingers will have become joined, and they can
no longer interdiffuse across the interface with the adjoining
component." Trial Tr. 147-48.
Southwell found "11 separate areas in [the subject] tire of
liner pattern mark." Trial Tr. 139, 157-58. That showed to Southwell
that "the two surfaces have not interdiffused as they are designed
to do" and that "there are significant areas where there is suboptimal
or less adhesion than should have been achieved." Trial Tr, 144.
Southwell clarified that the existence of liner pattern marks does
not absolutely mean that a tire will fail under all operating
conditions
(e.g., infrequent
use,
cold
conditions,
low
speed
operations). Trial Tr. 157. However, if a tire with inadequate
adhesion is "placed into an operation for which it was designed, it's
vulnerability or its propensity to fail is much, much increased."
Trial Tr. 157. Southwell also testified that the greater the area
of inadequate adhesion, the more likely the tire is to fail. Trial
Tr. 157. He viewed the liner pattern marks in the subject tire as
"extensive." Trial Tr. 158.^
Southwell's second defect opinion was that the subject tire's
inner liner, "the innermost layer of rubber in the tire," was too
thin. Trial Tr. 161-62. That "allow[ed] oxygen molecules to permeate
through the rubber and attack [i.e., oxidize] the[] areas of the tire
above the inner liner." Trial Tr. 162.
Southwell
maintained
that:
"when
certain
types
of
rubber . . . [are] exposed to excessive oxygen, particularly at high
temperatures, [the rubber's] physical properties change. It goes
^ Southwell also found areas of "polishing" in the subject tire, where
"the surface of the rubber is quite smooth." Trial Tr. 182-83. The
polishing showed that, "at some point during the life of the tire
there has been a small area of separated components, probably because
of the incomplete interdiffusion," and the components had rubbed
together slightly. Trial Tr. 183.
8
from being flexible and elastic, and it progresses to something much
more brittle and hard." Trial Tr. 163. He stated that such "oxidized
rubber is not able to sustain [the constant flexing of driving] in
the way that they are intended." Trial Tr. 163-64.
Southwell testified that the air that causes a problem for a
tire is the internal, pressurized air, not the external air. See Trial
Tr. 164. And, he explained that "the inner liner's sole function is
to retain the inflation pressure inside the tire," "[s]o the inner
liner is manufactured using a highly impermeable rubber . . . called
halobutyl." See Trial Tr. 163, 165. Southwell clarified that "there's
two
characteristics
of
an
inner
liner
that
will
improve
its
performance," the rubber type (i.e., halobutyl) and its thickness.
Trial Tr. 166. As to thickness, Southwell testified that an inner
liner's "impermeability will be governed by the thinnest point" and
that "at no point around this inner liner should the gauge be less
than 2 millimeters." Trial Tr. 168.
Having measured the inner liner of the subject tire in 18
separate locations, Southwell concluded that the inner liner was too
thin. Trial Tr. 167. Specifically, he determined that the average
thickness was 1.8 millimeters thick (with a high of 2.2 and a low
of 1.6) and that "[o]f the 18 measurements, only two of them were
2 millimeters or greater." Trial Tr. 167-68. He explained that the
inner liner's thickness would have been the same since the date of
manufacture and that variation in thickness is "a normal phenomenon
in the manufacturing." Trial Tr. 168-69, 171, 174-75. He concluded
that "[t]he reduced thickness allowed oxygen to permeate into the
body ply and the belts at a much higher rate than was designed to
be the case," such that "[t]he body ply lost its ability to withstand
force and contributed to the ultimate failure of the tire." Trial
Tr. 181.^
Southwell also explained that, upon inspection, he discovered
physical evidence of oxidation within the subject tire. Trial Tr.
181-82. Oxidation can be detected by a tactile inspection and, to
some extent, by appearance. Trial Tr. 181-82. Southwell found
oxidation "in large areas of the body ply" on the basis of "the
appearance and the feel of the body ply and first belt skim coat."
Trial Tr. 182.^
^ Southwell also discussed Defendants' inner liner specifications,
although that was not the basis for his opinion. Trial Tr. 169; see
also Trial Tr. 169-74, 178-79. He described, for example, the target
and minimum tolerances and explained that: "[t]he liner component
is actually manufactured in three pieces, but they are all of the
same polymer . . . . And in the cured tire, those components are one
piece." See Trial Tr. 170-74. Southwell additionally relied on the
specifications, among other things, to show that the inner liner and
other components are separate and that an inner liner is properly
measured apart from other parts of a tire (i.e., should not be
measured up to the steel cord). Trial Tr. 178-80.
^ On redirect examination, Southwell clarified that the time that the
subject tire was stored outside after the accident did not affect
his oxidation findings. Trial Tr. 293-94. That is because oxidation:
(1) "occurs much more rapidly . . . at elevated temperatures, i.e.,
"
10
In sum, Southwell concluded that both defects contributed to
cause the accident and created unreasonably dangerous conditions
that existed when the subject tire left Defendants' hands. Trial Tr.
160, 185.
ill. Alternative Causes
Southwell also ruled out alternative potential causes of the
accident. First, he concluded that the chronological age of the tire
was not a factor because: "[t]ruck tires do not expire. Their life
is determined by the depth of tread." See Trial Tr. 198-99. The
subject tire was: "approximately 53 percent worn. So it's around
about halfway through its original life, bearing in mind that a truck
tire is designed not only for its original life, but also for
subsequent retreads." Trial Tr. 132.
Second, Southwell ruled out an impact as a cause of the tire
failure. Had impact been the cause of the failure of the subject tire,
Southwell would "expect to find an impact site which is readily
visible, and . . . would expect to see a fracture to the shoulder
in the sidewall." Trial Tr. 199-200. And, he stated that, if an impact
"when the tire is operating [at ~200 degrees Fahrenheit] rather than
when it's sitting still cold"; and (2) "oxygen does not permeate
through the liner when the tire is uninflated." Trial Tr. 293-95.
^ Southwell also determined that the subject tire "was being used in
an intended fashion and in a foreseeable fashion" on the day of the
accident based on his "review of the testimony and . . . of the
records concerning the truck and the loading and the way this tire
was used on the day of the accident." Trial Tr. 124-25; see also Trial
Tr. 205-06.
11
had caused the break to the second belt that appeared in the subject
tire (as Defendants' expert Joseph Grant suggested), "[y]ou would
expect to see something on the tread and in the belts above the second
belt in the third and fourth belt." Trial Tr. 200, 202. But, he
concluded that "[t]here was no evidence on the tire of it having
suffered a significant impact that in any way contributed to its
failure." Trial Tr. 199. Furthermore, Southwell explained that the
damage that occurred to the second belt was accident-related, not
impact-related, because "[t]he only component that's been damaged
at that location is the second belt, which was in the middle of the
tire but became exposed in the flapping around" of the accident; the
other components were intact. Trial Tr. 202-05.
Finally, Southwell confirmed that he did not "find any other
bases or reasons for this tire to come apart the way it did other
than the two defects" that he found and to which he testified
extensively. See Trial Tr. 205.
2.
Defendants' Liability Evidence
Defendants'
liability
evidence
came
primarily
from
two
there
for
witnesses, Yun Chang Chun and Joseph Grant.
i.
Chun
is
an
Ynn Chang Chun
employee
of
HTCL,
having
worked
approximately 20 years, and he has a mechanical engineering degree.
Trial Tr. 452-53. He worked at the plant where the subject tire was
12
manufactured at the time it was made. Trial Tr. 454-55. His team's
job involved "mak[ing] sure that th[e] specifications were being
applied properly, and he had exposure to Defendants' guality control
"
processes. Trial Tr. 455-56.
Chun testified at length as to Defendants' manufacturing and
quality assurance
procedures.
For example,
he explained that
Defendants "make sure that [their rubber is] stored properly to make
sure that they don't get contaminated," they "use liner paper to wrap
the rubber sheets in," and they "make sure that [the rubber is] used
in a timely manner based on the first-in-first-out principle." Trial
Tr. 458. In addition. Defendants "control [their] stock period," have
a "use-by period . . . based on established standards," employ a
radiofrequency identification system to monitor compliance with the
use-by periods, and "have every semifinished product tagged so that
the operator" "would manually double-check the product at each
stage." Trial Tr. 460-62. Furthermore, every tire that Defendants
produce, after completion, is subjected to an "exterior appearance
inspection," an x-ray by trained technicians, and uniformity checks
(which test for balanced weight distribution, proper shape, and
counteraction with the ground). Trial Tr. 459-60.
Chun
also
described
Defendants'
performance
testing.
He
explained that a test is performed that runs a tire simulating a load
until it fails. Trial Tr. 471-72. He indicated that Defendants' tires
13
far surpassed the federal durability standard (and Defendants'
higher internal standard) for the week of testing closest to the week
when the subject tire was manufactured. Trial Tr. 478-79.
Chun
additionally
discussed
Defendants'
inner
liner
specifications. He testified that the subject tire's inner liner had
three layers. Trial Tr. 522. The first was halobutyl "to prevent or
minimize the air leakage from inside of the tire to the outside of
the tire." Trial Tr. 522. The second layers were natural rubber and
were designed to protect the halobutyl layer from stress (as it is
"very susceptible to stress") and to serve as a buffer between that
layer and the tire carcass (because the halobutyl layer "should not
come in contact with the carcass itself"). Trial Tr. 522-23. Chun
explained that Defendants measure the inner liner based on "all three
inner liners together" because of the distinct functions of the
layers, and they "use the end point of the cord as a starting point
for the measurement of the thickness of the inner liner." See Trial
Tr. 524. A sample tire of those manufactured when the subject tire
was made was tested for inner liner thickness, and the results were
4.1 millimeters on one side of the tire and 4.6 millimeters on the
other. Trial Tr. 538.^
^
Chun
also
testified
to
Defendants'
specifications. Trial Tr. 528, 538.
14
inner
liner
gauge
ii.
Joseph Grant
Joseph Grant was Defendants' expert in "[t]ire manufacture,
quality assurance and testing of tires, and tire failure analysis."
Trial
Tr,
592.
He
has
a
Bachelor's
of
Science
in
Mechanical
Engineering, "worked for Continental General Tire for 34 1/2 years,"
and also did "full-time independent [tire] consulting work all the
way up even to the present." Trial Tr. 574-75, 589-91. He has "been
involved with the manufacture, the design, the testing, quality
assurance, the care, and service of tires for 47 years." Trial Tr.
575. His "whole career [he's] been doing forensic analysis" on tires.
Trial Tr. 586-87. Grant is also a member of a variety of relevant
industry societies. Trial Tr. 587-89.
Grant concluded, based on what he thought was "overwhelming
physical evidence," that the subject tire "sustain[ed] a very
localized failure in one location of the tire as a result of a road
hazard impact." Trial Tr. 601. He explained that there was "a break
in the No. 2 steel belt" and "a very obvious separation that developed
where that break is" ("between steel belts two and three"). Trial
Tr. 601.®
® Defendants also offered Benedict's deposition testimony, in which
he stated that he once performed a special inspection on an
unspecified tire at an unspecified time because of an impact on Route
288. Trial Tr. 444-45.
15
Grant stated that "the No. 3 and 4 belt above th[e impact] region
are actually gone" and "there's actually a piece of tread missing"
there as well. Trial Tr. 603. He further testified that "there's
rubber tear lines that are emanating directly away from where that
break is that are characteristic of a separation developing inside
the tire from multiple revolutions because the rubber has to take
up more of the stresses and strains because it's been compromised
from the broken No. 2 steel belt." Trial Tr. 604. He noted that "you
don't see anywhere else around the tire the characteristics of these
types of tears." Trial Tr. 605. Based on "the size of the separation,
the freshness of the tear lines, and the lack of accelerated wear
on the outside," Grant determined that "the physical evidence
indicates that [something] happened in roughly 200 miles of [the
accident] in a localized area." Trial Tr. 610.^
Additionally, Grant expressed the view that Defendants are
doing "exactly what I would expect to see in a well-manufactured,
well-run plant" with respect to quality assurance, in perspective
of his "review of Hankook manufacturing documents, the testimony of
Mr. Chun, and [his] experience." See Trial Tr. 662.
Grant also testified that, if a separation had been ongoing "for
5,000 miles or 10,000 miles," one would expect "serious polishing"
and accelerated wear, which he did not find upon examination of the
subject tire. See Trial Tr. 618.
16
Grant also questioned Southwell's opinions. Thus, according to
Grant, he discovered no liner pattern marks in the failure area; noted
that there is "good, multilevel random tearing of the structure"
(i.e., the tire is "not coming apart at any manufactured interface");
found that the subject tire "did not even catch an interface where
there was a liner pattern"; observed that liner patterns can show
up
without
affecting
adhesion;
and "concluded
that
there
is
absolutely nothing that would indicate there's any adhesion issue."
See Trial Tr. 616-17, 620, 665-66, 670-73, 675.® Grant also explained
that, if rubber "gets scorched, it's going to be across the entire
surface." Trial Tr. 669-70. And, Grant opined that the inner liner
was not too thin because if one adds up all the layers of the subject
tire's inner liner (not just the halobutyl layer), it is above 2.5
millimeters, which is "best in class" and "what inner liners . . . in
all
steel
truck
tires . . . with
high
technology
are
actually
designed to have." Trial Tr. 684-85.® Furthermore, he concluded that
no oxidation occurred because "the rubber is still supple" (even
three years after the accident, during which "these components have
been subjected to more air . . . than they were while they were stuck
® Grant went through the photographs of liner imprint identified by
Southwell and asserted that they do not suggest an adhesion issue
and, indeed, suggest good adhesion. Trial Tr. 667-69.
® Grant testified that, as to the halobutyl layer, Southwell and he
obtained
consistent
measurements.
Trial
Tr.
measurement was 1.9 millimeters. Trial Tr. 677.
17
677.
His
highest
together") and the failure was in one location. Trial Tr. 676.
Additionally, he testified that the manner in which the tire
disintegrated shows that "this tire did not come apart between the
body ply and the first belt." Trial Tr. 613-14. Moreover, he noted
that a break could arise in only belt two based on how the belts are
oriented. Trial Tr. 615. Finally, he found that the break in belt
two was not merely accident damage. See Trial Tr. 615-16.
C.
Overview of Plaintiff's Damages Evidence
Benedict's
evidence
established
that,
immediately
upon
becoming conscious after the accident, his neck hurt, he was
frightened, and "[b]lood was gushing everywhere out of [his] leg."
Trial Tr. 367, 369. He could not move because he was pinned by the
steering wheel. Trial Tr. 368. The cab was full of smoke and glass,
and it smelled of burnt oil. Trial Tr. 368. Benedict was conscious
the whole time he was trapped in the truck. Trial Tr. 369.
By the time Benedict was delivered to the trauma surgeon,
Benedict's heart had stopped. Trial Tr. 78. The trauma surgeon opened
Benedict's chest, began pumping his heart by hand, and gave Benedict
drugs to restart his heart. Trial Tr. 78. Eventually, the trauma
surgeon also discovered massive internal injuries; Benedict's ribs
"had pierced a couple areas of his lungs, they'd also pierced into
The only evidence of damages in the case was put on by Benedict.
18
his abdomen and poked a hole in his spleen." Trial Tr. 81-82.^^
Benedict had "flail chest" on the left side, which is "a chest that
has fractures in two places in two or more ribs." Trial Tr. 91.
After the trauma surgeon had stabilized Benedict, the surgeon
found "a devastating injury to his cervical spine." Trial Tr. 86.
The
injury
was
to
the
C-5/C-6
level
of
the
spine,
which
"controls . . . the lower arms and the hands" and anything below that
level. See Trial Tr. 87-88.^^ That injury caused Benedict to be
permanently paralyzed. See Trial Tr. 86, 318-19, 424.
Furthermore, because of the internal injuries, "[f]or quite a
while [Benedict] was unable to breathe on his own." Trial Tr. 94.
And, for a week, Benedict was in a medically induced coma. Trial Tr.
96. He also was subjected to several surgeries. Trial Tr. 96-97.
Benedict stayed in the ICU for about 30 days, from November 14, 2014
until December 19, 2014. See Trial Tr. 98, 424. When he came to,
Benedict could not move, communicate, swallow, or eat or drink, and
the tube in his mouth felt "not good." Trial Tr. 370-71.
After he left the ICU, Benedict was moved to "a care facility
that would be able to handle ventilated patients" (Vibra) because
he was still on a ventilator. Trial Tr. 98. He was there for about
The surgeon had to remove Benedict's spleen (which helps to fight
infections) Trial Tr. 82, and his liver was injured. Trial Tr. 91.
.
Additionally, there were three fractures in the lower portions of
Benedict's spine. Trial Tr. 89.
19
a month, from December 19 until January 26, 2015. Trial Tr. 37, 424.
In January 2015, after having been weaned off the ventilator,
Benedict "was admitted to [the] inpatient rehabilitation medicine
service." Trial Tr. 304. At that time, he was "medically stable enough
to tolerate at least three hours of intensive rehabilitation, but
he still had a lot of ongoing medical issues." Trial Tr. 306. He had
no finger movement and "very little functional movement" of his left
arm (which was broken). Trial Tr. 306-07. He also "didn't have control
over either bladder or bowel." Trial Tr. 308.
Benedict
underwent
extensive
rehabilitation
therapy
from
January 26, 2015 until March 20, 2015. See Trial Tr. 37-38, 424. "In
a typical day . . . he would have at least three hours of therapy
time scheduled usually with physical therapy, occupational therapy
and then maybe speech therapy." Trial Tr. 312.^^ The goal was to
maximize mobility, permit self-care, and train on bladder and bowel
management. Trial Tr. 312-13.
After leaving rehabilitation, Benedict still "wasn't able to
be independent in many of his self-care activities or his mobility
activities or his bladder and bowel activities." Trial Tr. 315. He
needed help to turn in bed, to get dressed, to get out of bed, to
eat, and to dispose of waste. Trial Tr. 315-16. To this day, to go
Speech therapy was necessary because his vocal cords were damaged
from intubation. Trial Tr. 39, 307. They continue to be damaged. Trial
Tr. 307.
20
to the bathroom, Benedict must be catheterized (urination) or have
a 2-2.5 hour invasive bowel program performed on him. Trial Tr. 40-42,
63, 316. He must be catheterized four to six times per day, and the
bowel program must be performed every other day. Trial Tr. 41-42.
For about two years after Benedict came home, nurses were there around
the clock, and he and his family had no privacy. See Trial Tr. 44-45,
47, 377-78. Those nurses helped Benedict dispose of waste, dressed
him, stretched him, and bathed him. Trial Tr. 378. During that time,
Benedict could not shower (he only had bed baths) and slept in the
living room, based on the layout of his home. Trial Tr. 41-42, 46-47,
377-78. Ultimately, the family decided to borrow money to build a
handicap accessible home. Trial Tr. 46-47. It took 6-7 months to a
year before Benedict was able to bring food to his mouth, and then
only with specialized utensils affixed to his hand. Trial Tr. 54,
378-79.
The evidence proved, without dispute, that Benedict will be
permanently disabled and will likely not improve in neurological
function. Trial Tr. 98, 318-19." He "has a very weak ability to pinch
The trauma surgeon stated, as to the degree of disability going
forward, that he was surprised that Benedict is "even moving his upper
extremities, so I think he'll continue to surprise us." Trial Tr.
98. The rehabilitation physician explained that medical science
cannot do a lot to improve Benedict's prognosis, and "[t]here aren't
any new medications, surgeries or therapies that have been shown to
improve neurological function after a spinal cord injury." Trial Tr.
319.
21
or grasp" that is "very nonfunctional." Trial Tr. 313-14.^^ Benedict
has not been able to do anything to care for himself since the
accident, and his wife has been taking care of him 12 hours a day.
Trial Tr. 343, 385. Nurses assist him with him with his daily needs.
Trial Tr. 47-48. Benedict's wife often helps him with waste disposal,
particularly at night. See Trial Tr. 40-42, 47, 49-50. Because
Benedict must be catheterized and turned every few hours, neither
Benedict nor his wife can sleep through the night. Trial Tr. 49-50.
Benedict gets spasms every day that feel "like someone is punching
him in the stomach, and he can't breathe." Trial Tr. 52, 382.
Throughout the day, Benedict must be placed in a stand-up wheelchair
"for pressure releases to eliminate bed sores." Trial Tr. 64. He is
not able to go through the showering process every day because "
[i]t's
a lot of work, and it's a lot on him" (it requires a special lift
and a shower chair). Trial Tr. 51. Benedict cannot dress himself and
the dressing process is difficult because Benedict is paralyzed from
the chest down and cannot bend his arms normally. Trial Tr. 53, 313.
Benedict has not been left alone for a minute since being released
from the hospital. Trial Tr. 62. He tries not to take pain medication,
but he has nevertheless has had to do so because "[h]e has pain in
He has now reached the point that he is able to grasp (using his
thumb and index fingers) "pork rinds, cheese puffs," and that was
only possible after receiving special surgery. See Trial Tr. 381.
His next goal is to be able to grasp a potato chip (a much thinner
object). See Trial Tr. 381.
22
his head and neck area, and even some pain below the level of injury."
Trial Tr. 315.
As a paralyzed individual, Benedict is at risk for several
medical problems. For example, he is at constant risk of autonomic
dysreflexia, or "a hyperstimulation of the sympathetic nervous
system," which can be brought on by "[a]ny noxious stimuli" below
the level of spine injury, including "a urinary tract infection,
pneumonia, a fracture, a pressure ulcer . . . . tight clothing,
bowel constipation" or unaddressed waste disposal needs. Trial Tr.
309-10. That can cause "
[v]ery high blood pressures to the point where
you can have cerebral hemorrhage or stroke." Trial Tr. 309-10. When
a
bout
of
autonomic
dysreflexia
occurs,
Benedict
gets
very
uncomfortable, starts sweating badly, gets chills, and his blood
pressure skyrockets. Trial Tr. 382. He is also at greater risk of
bone fractures, pressure ulcers, bladder infections, lung fluid and
infections, abnormal bone growth, contractures (limitations in joint
flexibility), etc. Trial Tr. 307, 310-11, 317. Some of these
comorbidities can kill a paralyzed person, and they reduce life
expectancy. Trial Tr. 317-18, 322. In fact, Benedict has experienced
autonomic disreflexia, UTIs, more colds and allergies, and has had
to go to the hospital for blood clots. Trial Tr. 382-83.^®
The blood clots arose after a surgery to improve Benedict's arm
mobility. Trial Tr. 383.
23
Before the accident, Benedict was "a young, very strong man,"
was in excellent health, was an "outdoors person," had a passion for
driving trucks (since he "was a little kid"), engaged in activities
with his family and friends (e.g., sports, going to the beach, parks,
amusement parks, decorating the house, going to the racetrack,
grilling, bowling), would "tak[e] care of all the problems," and
would work around the home (e.g., cooking, laundry, yardwork). Trial
Tr. 30, 330, 332, 359-60, 385-86. Now, Benedict cannot ambulate; he
cannot "do anything he used to do with [his] children"; his wife has
become "his caretaker and his nurse"; he has no intimate relationship
with her; he "can't ever be alone"; and the fact that "everything
is on [his wife's] shoulders now . . . really hurts him." Trial Tr.
67-68, 385-86, 417, 425. And, Benedict and his wife lost friends
because "[t]hey don't see him the same way." Trial Tr. 65. He gets
embarrassed because people "look at him differently" and because of
his care needs (e.g., his bathroom needs). Trial Tr. 66. Benedict
fears that he will not grow old with his wife and will not live long
enough to watch his children grow up. Trial Tr. 68. He misses being
a husband and father, and he feels that his family dynamic has
dramatically changed "from [him] taking care of all the problems to
becoming the problem." Trial Tr. 385-86.
As to economic damages, the parties stipulated that the past
medical costs totaled $2,049,675.23. See Trial Tr. 425; Pl.'s Ex.
24
27. An expert economist,
Dr.
Frederick Raffa, testified that
Benedict's past lost wages were $115,545; that his future lost wages,
at present value, were $493,141; and that his life care needs (based
on a plan set by a qualified life care plan witness. Dr. Craig
Lichtblau), at present value, would cost $6,109,381. See Trial Tr.
340, 392, 413-14.
The evidence about the nature of Benedict's injuries and the
economic damages were not disputed (and wisely so).
THE STANDARDS GOVERNING MOTIONS UNDER FED. R. CIV. P. 50(b) AND 59
The standards applicable to motions for judgment as a matter
of law under Fed. R. Civ. P. 50 are well-established:
A court "may grant judgment as a matter of law
only if, viewing the evidence in a light most
favorable to the non-moving party and drawing
every legitimate inference in that party's
favor, . . . the only conclusion a reasonable
jury could have reached is one in favor of the
moving party." If, upon the conclusion of a
party's case, "a reasonable jury would not have
a legally sufficient evidentiary basis to find
for the party on that issue," a court may grant
a motion from the opposing party for judgment
as a matter of law.
Huskey V. Ethicon, Inc., 848 F.3d 151, 156 (4th Cir. 2017) (citations
omitted); see also United States v. Kivanc, 714 F.3d 782, 795 (4th
Cir. 2013) ("[In assessing a motion for judgment as a matter of law,]
[w]e consider the evidence in the light most favorable to the
nonmoving party but may not make credibility determinations or
25
substitute our judgment for that of the jury.").
The standards for a new trial under Rule 59 are equally familiar:
"In considering a motion for a new trial, a trial
judge may weigh the evidence and consider the
credibility of witnesses, and if he finds the
verdict is against the clear weight of the
evidence, is based on false evidence or will
result in a miscarriage of justice, he must set
aside the verdict, even if supported by
substantial evidence, and grant a new trial."
"The decision to grant or deny a motion for a
new trial is within the sound discretion of the
district court and will not be disturbed absent
a clear showing of abuse of discretion."
See King v. McMillan, 594 F.3d 301, 314-15 (4th Cir. 2010) (citations
omitted).
DISCUSSION
Defendants raise three main arguments. First, they claim that
judgment should be directed in their favor as a matter of law because
Benedict failed to establish that the subject tire was negligently
manufactured. See Defs. Br. 6-19.^^ Second, Defendants contend that
'
a new trial should be ordered because the verdict was against the
clear weight of the evidence. See Defs.' Br. 19-22. Third, Defendants
maintain that the jury's award was excessive. See Defs.' Br. 22-28.
As part of this argument. Defendants assert that certain evidence
was improperly admitted in Benedict's rebuttal case. See Defs. Br.
'
15-16. For the
separately.
reasons
set out below, that issue is addressed
26
I.
Defendants' Argtunents that Plaintiff Failed to Establish that
the Svibject Tire Was Negligently Manufactured
Defendants' argue that, to prove negligent manufacturing, a
plaintiff must show not only that a product was "unreasonably
dangerous" because it failed to conform to some objective standard,
but also that the defect was a result of the manufacturer's failure
to exercise due care in the manufacturing process. Defs.' Br. 7-9.
They further allege that the Court's jury instructions required such
proof.
Defs.
' Br.
9.
They also assert that Benedict's expert
testimony was insufficient to establish any objective manufacturing
standards or breach thereof. See Defs.' Br. 12. These contentions
are unavailing.
A.
The Standards Governing Negligent Manufacturing Claims
1. The Summary Judgment Opinion (EOF No. 343)
In resolving Defendants' pre-trial motion for summary judgment,
the Court issued a Memorandum Opinion describing, at length, the
standards applicable to negligent manufacturing claims in Virginia.
See Benedict v. Hankook Tire Co. Ltd., 295 F. Supp. 3d 632, 637-47
(E.D. Va. 2018) (ECF No. 343). The Court incorporates that Opinion
in
relevant
part
here,
and
it
presumes
familiarity
with
it.
Nevertheless, a few points are worth repeating.
First, the Court previously held that there exists a basic
products liability framework in Virginia. Benedict, 295 F. Supp. 3d
at 637. As the Court explained, "a products liability plaintiff must
27
establish three elements: (1) the product must contain a Mefect
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.'" Id. (citations omitted). "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.'" Id.
(citations omitted). If there are no industry standards, courts may
"rely
on
expert
testimony
to
determine
whether
a
product
is
unreasonably dangerous," so long as that testimony is "analytically
rigorous and not merely 'subjective.'" Id. at 638-39 (citations
omitted).
Second, the Court determined that no proof beyond that required
by the basic products liability framework is needed to sustain a
negligent manufacturing claim. Benedict, 295 F. Supp. 3d at 640,
644-45, 647. Rather, "Virginia law considers a defendant to be
negligent and to have violated the standard of care if it produces
an unreasonably dangerous product that causes injury." Id. at 640.
The Court held that Virginia formally does not recognize the doctrine
of strict products liability, but it has done so in effect by
"treating the 'negligence' and 'standard of care' inquiries . . . as
inextricably 'bound up' with the question of whether the product at
28
issue is ^unreasonably dangerous.'" See id.; see also id. at 644-45
("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.").
2.
Evans v. NACCO Materials Handling Group, Inc.
Defendants say that they must prevail because of the decision
in Evans v. NACCO Materials Handling Group, Inc., 810 S.E.2d 462 (Va.
2018), a products liability case decided by the Supreme Court of
Virginia after trial concluded in this case. See Defs.' Br. 8. That
contention is erroneous.
In Evans, the Supreme Court of Virginia rejected a design defect
claim. See Evans, 810 S.E.2d at 470-72. In so doing, it focused
entirely on whether the product at issue was unreasonably dangerous.
Id. First, the Supreme Court of Virginia voiced that the plaintiff
had offered no evidence on the point. Id. at 470. It went on to explain
that, even if the plaintiff had offered such evidence, she had failed
to show an element that is unique to design defect claims, i.e., that
"an alternative design is safer overall than the design used by the
manufacturer." Id. at 471-72.
Even though Evans did not involve a negligent manufacturing
claim, the decision contains two passages that merit discussion, as
29
they
relate
to
the
generally
applicable
products
liability
principles explained fully in the previous summary judgment Opinion
and adopted here. The first passage is the following:
Virginia
has not
adopted
a
strict
liability regime for products liability. When
alleging that a product suffered from a design
defect, a plaintiff may proceed under a theory
of implied warranty of merchantability or under
a theory of negligence. Negligence is the
failure to exercise "that degree of care which
an ordinarily prudent person would exercise
under the same or similar circumstances to avoid
injury to another." With respect to designing
products, the law imposes on a manufacturer "a
duty to exercise ordinary care to design a
product that is reasonably safe for the purpose
for which it is intended."
Whether a plaintiff proceeds under a
theory of warranty or negligence, the plaintiff
must prove: (1) that the goods were unreasonably
dangerous either for the use to which they would
ordinarily be put or for some other reasonably
foreseeable
purpose,
and
(2)
that
the
unreasonably dangerous condition existed when
the goods left the defendant's hands.
Evans, 810 S.E.2d at 469 (citations omitted).
This passage is not at odds with the fact that Virginia adheres
to the so-called "bound up" principle. As set forth in the Court's
previous
Opinion,
manufacturers
are
Virginia
under
a
decisions
duty
to
frequently
exercise
observe
ordinary
that
care.
See Benedict, 295 F. Supp. 3d at 641-43. And, it is well-established
that Virginia does not recognize the doctrine of strict products
liability. See id. at 640.
30
Indeed, the above passage offers affirmative support for the
explanation of Virginia law as set out in Benedict, 295 F. Supp. 3d
at 640-45. Notwithstanding Evans^ discussion of the duty of care
applicable to manufacturers in designing products, the Supreme Court
of Virginia concluded by holding that a products liability plaintiff
must satisfy the basic products liability framework. Evans, 810
S.E.2d at 469. That precisely aligns with this Court's previous
review of Virginia decisional law, which demonstrated that courts
often utilize the language of negligence, and describe manufacturers
as subject to a duty to exercise ordinary care, but that the
negligence analysis is ultimately governed by the basic products
liability inquiry. See Benedict, 295 F. Supp. 3d at 641-45.
In the second passage, the Supreme Court of Virginia stated:
Whether
a
manufacturer
was
negligent
involves an objective inquiry. "To sustain a
claim for negligent design, a plaintiff must
show
that
the
manufacturer
failed
to
meet
objective safety standards prevailing at the
time the product was made." Governmental safety
standards and industry practices are highly
relevant on the question of whether the
manufacturer's design was negligent because
they permit an inference that the manufacturer
exercised (or failed to exercise) ordinary
prudence.
Governmental
regulations
and
industry standards and practices are not
dispositive, however. It may be the case that
such regulations simply do not exist, for
example, or if they do, they may have become
antiquated. Industry practices likewise are not
conclusive in assessing whether a manufacturer
was negligent.
31
In addition to governmental regulations,
and industry norms and practices, reasonable
consumer expectations can provide objective
evidence that the product is defective. This may
be shown by direct evidence of what reasonable
consumers
considered
defective
as
well
as
published literature or industry practices
recognizing a safety standard that reasonable
consumers expected. Published literature may
include, among other sources, marketing,
advertising,
presentation,
promotional
materials, product manuals, and instruction
booklets.
Evans, 810 S.E.2d at 469-70 (citations omitted).
This
passage
also
confirms
the
Court's
understanding
of
Virginia law as set forth in the summary judgment Opinion. The Supreme
Court made
clear that the
relevant "standards" in
assessing
a
manufacturer's negligence are those relating to the basic products
liability
framework
(e.g.,
government
standards,
industry
standards, and consumer expectations). See Evans, 810 S.E.2d at
469-70. Indeed, Evans expressly observed that these standards
"permit an inference that the manufacturer exercised (or failed to
exercise) ordinary prudence." Id. at 469 (emphasis added). And, the
court used language relating to negligence and product defect
interchangeably. Compare id. ("Governmental safety standards and
industry practices are highly relevant on the question of whether
the manufacturer's design was negligent because they permit an
inference that the manufacturer exercised (or failed to exercise)
ordinary prudence." (emphasis added)), with id. at 470 ("In addition
32
to governmental regulations, and industry norms and practices,
reasonable consumer expectations can provide objective evidence that
the product is defective." (emphasis added)). Nothing in Evans
indicated that more proof, beyond that demanded by the basic products
liability framework (e.g., proof that a defendant actually failed
to use reasonable care in the manufacturing process), is required.
Moreover, Evans does not conflict at all with the view that
courts may "rely on expert testimony to determine whether a product
is unreasonably dangerous when there is no ^established norm in the
industry,'" i.e., that there exists what this Court has termed the
"expert safety" step. See Benedict, 295 F. Supp. 3d at 638 (citations
omitted).
Importantly,
the
Supreme
Court
of
Virginia
nowhere
suggested in Evans that Virginia products liability law is not still
informed by Ford Motor Co. v. Bartholomew, 297 S.E.2d 675 (Va. 1982),
in which:
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 . . . .
Benedict, 295 F. Supp. 3d at 638 (quoting Alevromaqiros v. Hechinger
Co., 993 F.2d 417, 421 (4th Cir. 1993)); see also Bartholomew, 297
S.E.2d at 679 ("Absent an established norm in the industry, it was
33
a matter of opinion of trained experts what design was safe for its
intended
use."). And, the
Evans decision expressly
noted that
government and industry standards are not dispositive as to a
products liability claim because, inter alia, "[i]t may be the case
that such regulations simply do not exist." See Evans, 810 S.E.2d
at 469-70.^®
In sum, Evans confirms the Court's view of Virginia products
liability law as set out in the previous summary judgment Opinion.^®
The Evans court did not address the "expert safety" step but for
good reasons. The plaintiff's expert in Evans "agreed that the design
of the brake satisfied the applicable ANSI standard." Evans, 810
S.E.2d at 470. And, the product design at issue complied with industry
custom. Id. Furthermore, although the plaintiff argued that the ANSI
standard was silent on the particular design aspect at issue and that
the industry custom was not universal, those arguments were rejected
because the plaintiff had failed to show that the product at issue
was unreasonably dangerous for other reasons (relating specifically
to design defect claims). Id. at 471.
There are ways in which the Evans opinion might affect the Court's
previous Opinion, but these impacts are insubstantial.
First, Evans suggests that industry practices may be considered
evidence of negligence, in addition to formally promulgated industry
standards. See Evans, 810 S.E.2d at 469-70. However, nothing in Evans
clarifies whether a mere industry practice can constitute "an
established norm in the industry" sufficient to foreclose reliance
on the "expert safety" step or under what circumstances it would do
so. See id.; Bartholomew, 297 S.E.2d at 679. Absent further guidance,
the Court is of the view that only formally promulgated industry
standards and, perhaps, those industry practices related to the
defect at issue that are proven to be so widespread as to compare
to formal industry standards constitute "an established norm in the
industry." That does not affect the analysis here, however, as no
argument has been made that there is evidence sufficient to foreclose
34
B,
Defendants' Argument that Virginia Law Requires Proof of
the Failure to Exercise Ordinary Care
As set out above, Defendants' first argument is that, to prove
negligent manufacturing, Benedict must show that Defendants failed
to exercise due care in the manufacturing process. Defs.' Br. 7-9.
Defendants rely on Evans to support their position. Defs.' Br. 8.
However, the foregoing analysis of Evans shows that Defendants'
argument is meritless. First, Evans involved only whether the product
at issue was designed in an unreasonably dangerous manner. It nowhere
held that a products liability plaintiff must offer proof beyond that
sufficient to sustain the elements of the basic products liability
test. Second, Evans actually confirms the Court's view that Virginia
law does not require such proof.
Defendants' remaining arguments as to this issue largely mirror
those set forth in their summary judgment brief. Compare Defs.' Br.
6-9, with Defs.' Mem. in Supp. of Mot. for Summ. J. 13-15, and Defs.'
Reply in Supp. of Mot. for Summ. J. 2-5. These arguments are
reliance on the "expert safety" step, and no such evidence has been
presented.
Second, Evans might be read as suggesting that even a violation
of a government or industry standard, etc., is not dispositive as
to the question of negligence (for example, if the standard is
"antiquated"). See Evans, 810 S.E.2d at 469-70. That is a
questionable reading of Evans, but the point is irrelevant here
because there is no evidence of such a violation.
35
foreclosed by the Court's previous decision and the reasoning
20
therein. See Benedict, 295 F. Supp. 3d at 637-47.
C.
Defendants' Argviment that the Jury Instructions Required
Proof of the Failure to Exercise Ordinary Care
Defendants also argue that additional proof of Defendants'
failure to exercise due care was required by jury instructions 25
and 26. Defs.
' Br. 9.
Those instructions included the following language:
25.
NEGLIGENCE IS THE FAILURE TO USE ORDINARY
CARE. ORDINARY CARE IS THE CARE A REASONABLE
PERSON WOULD HAVE USED UNDER THE CIRCUMSTANCES
OF THIS CASE.
26.
CARE
A MANUFACTURER HAS A DUTY TO USE ORDINARY
TO
MANUFACTURE
A
PRODUCT
THAT
WILL
BE
REASONABLY SAFE FOR ITS INTENDED PURPOSE AND FOR
ANY OTHER REASONABLY FORESEEABLE PURPOSE.
IF A
MANUFACTURER
FAILS
TO PERFORM
THIS
DUTY, THEN IT IS NEGLIGENT.
(EOF No. 430).
Defendants' argument, however, reads these instructions in a
vacuum and takes them out of context. As an initial matter, they were
followed directly by jury instruction 27, which stated:
Defendants attempt to push against the Court's previous analysis
of Chestnut v. Ford Motor Co., 445 F.2d 967 (4th Cir. 1971), by
highlighting the fact that "other courts applying Virginia law have
also applied the
^standard of safety' and addressed the
manufacturer's duty to exercise ordinary care in product liability
cases based on negligence." See Defs. Br. 7 n.3. The Court is fully
'
aware of those decisions and discussed them at length in its previous
Opinion. See Benedict, 295 F. Supp. 3d at 641-43.
36
27.
MORE
NEGLIGENT
PARTICULARLY,
IF
THE
THE
DEFENDANTS
PLAINTIFF
PROVES
WERE
BY
A
PREPONDERANCE OF THE EVIDENCE THAT THE SUBJECT
TIRE WAS UNREASONABLY DANGEROUS EITHER FOR THE
USE TO WHICH IT WOULD ORDINARILY BE PUT OR FOR
SOME OTHER REASONABLY FORESEEABLE PURPOSE, AND
THAT
THE
EXISTED
UNREASONABLY
WHEN
THE
DANGEROUS
SUBJECT
TIRE
CONDITION
LEFT
THE
DEFENDANTS' HANDS.
THE
SUBJECT
TIRE
WAS
UNREASONABLY
DANGEROUS IF IT WAS DEFECTIVE IN ASSEMBLY OR
MANUFACTURE.
(ECF No. 430). Hence, considering the instructions as a whole, it
was made abundantly clear to the jury that Defendants should be found
negligent if Benedict proved that "the subject tire 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 subject tire left
the
defendants'
hands." (ECF No.
430). Additional evidence
of
negligence was unnecessary.^^
In their reply brief. Defendants assert that jury instruction 27
supports their position because it states that "the subject tire was
unreasonably dangerous if it was defective in assembly or
manufacture." Defs. Reply Br. 5-6. That is wrong. All that language
'
indicates is the type of claim and the fact that a manufacturing
defect (rather than, say, a design defect) is what would render the
subject tire unreasonably dangerous in this case. Cf. Va. Model Jury
Instructions-Civil,
Instruction
No.
34.076
("A
product is
unreasonably dangerous if it is defective in assembly or manufacture,
unreasonably dangerous in design, or unaccompanied by adequate
warnings concerning its hazardous properties."). That language says
nothing about requiring additional proof of the failure to use due
care.
37
Further, the foregoing jury instructions were designed to
reflect the Court's previous decision respecting Virginia's "bound
up" principle. Instructions 26 and 27 were based upon Virginia Model
Jury Instructions 34.140 and 34.075, respectively, which the Court
analyzed at length. See Benedict, 295 F. Supp. 3d at 643-45. The Court
held that these 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." Id. at 644.
In sum.
Defendants' arguments as to the instructions are
unpersuasive.
D.
Defendants' Argument that Plaintiff's Expert Failed to
Establish Any Objective Manufacturing Standards or a
Breach Thereof
Defendants
further
claim
that
Southwell's
opinions
were
insufficient to support the negligent manufacturing claim as a matter
of law. See Defs.' Br. 11-12.
1.
The Summary Judgment Opinion
As noted above, the Court held, in the summary judgment Opinion,
that a products liability plaintiff must prove that: "(1) the
product . . . contain[s] a Mefect which rendered it unreasonably
dangerous
for
ordinary
or
foreseeable
use';
(2)
the
defect . . . ^existed when it left the defendant's hands'; and (3)
the defect . . . ^actually caused the plaintiff's injury.'" See
Benedict, 295 F. Supp. 3d at 637 (citations omitted). Where, as here,
38
"there is no ^established norm in the industry,'" a plaintiff may
"rely
on
expert testimony to
determine
whether
a
product
is
unreasonably dangerous" (the "expert safety" step). See id. at 638
(citations omitted).
The Court further determined that, when parties are relying on
the "expert safety" step, "expert testimony is sufficient . . . if
it explains, with analytical rigor, why the product is unreasonably
dangerous." See Benedict, 295 F. Supp. 3d at 649. More specifically,
the Court explained:
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 v.
Case Corp., 118 F.3d 1011, 1016-17 (4th Cir.
1997)];
Alevromagiros,
993
F.2d
at
421.
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 v. New Holland N.
Am., Inc., 128 F.Supp.2d 952, 957 (W.D. Va.
2001)]; 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 v. Gen. Motors
Corp., 96-0067-C, 1998 WL 372633, at *2 (W.D.
Va. June 25, 1998)] ("[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
39
the product at issue, and performed tests on the
product." (citations omitted)); [Lemons v.
Ryder Truck Rental, Inc., 906 F. Supp. 328, 332
(W.D. Va. 1995)] (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)).
Id. at 639; see also id. at 649 ("An opinion is analytically rigorous
if it is based on, for instance, relevant literature, testing and
inspection of the product, and substantial industry experience and
expertise.").
The Court also found, in resolving the summary judgment motion,
that Southwell's opinions were legally sufficient to establish that
the subject tire was unreasonably dangerous:
Here, Southwell's testimony is certainly
adequate to defeat summary 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. 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." Furthermore, Southwell "applied
his experience and training . . . in reviewing
[these] materials," given his decades-long
career in tire defect and failure analysis, his
Master
of
Engineering
degree,
and
his
completion of multiple tire-related training
courses. Southwell has also performed tests or
gained specific experience validating myriad
40
aspects of his defect theories throughout his
career.
Finally,
Southwell
performed
a
"detailed inspection" of the subject tire that
revealed
direct
evidence
of
the
defects
he
alleges.
Benedict, 295 F. Supp. 3d at 649-50 (citations omitted).
2.
Southwell's Testimony
Southwell's trial testimony is sufficient to defeat a Rule 50(b)
motion. As an initial matter, his testimony (along with the record
generally) satisfied each of the elements of a products liability
claim, i.e., that "(1) the product . . . contain[s] a Mefect which
rendered it unreasonably dangerous for ordinary or foreseeable use';
(2) the defect . . . ''existed when it left the defendant's hands';
and (3) the defect . . . ''actually caused the plaintiff's injury.'"
See Benedict, 295 F. Supp. 3d at 637 (citations omitted)
Southwell
described, in a comprehensive manner, the defects in the subject tire
that
caused
foreseeable
it
use
to
be
and,
unreasonably
ultimately,
dangerous
to
fail.
for
Trial
ordinary
Tr.
or
133-98.
Furthermore, he characterized those defects as occurring in the
There is no dispute that the accident caused Benedict's injuries
or that the failure of the subject tire caused the accident. See Trial
Tr. 423-25. Causation could therefore be proved by showing that an
unreasonably dangerous defect in the subject tire caused it to fail.
That means that, in this case, the issue of whether the subject tire
was unreasonably dangerous largely overlaps the issue of causation.
And, given that the defects alleged in this case all related to flaws
in the way the subject tire was manufactured, the issue of whether
any defects existed in the subject tire at the time it left
Defendants' hands is closely tied to the issue of whether the subject
tire was unreasonably dangerous as well.
41
manufacturing process, i.e., they arose before the subject tire left
Defendants' hands. See Trial Tr. 144-45, 160, 162-63, 168-69, 174,
185. And, he addressed and disproved alternative potential causes
of the subject tire's failure and condition, and found no "other bases
or reasons for [the subject] tire to come apart the way it did other
than the" defects he alleged. Trial Tr. 164, 198-205, 293-95.^^
Southwell also explained why the subject tire was unreasonably
dangerous in an analytically rigorous manner. At trial, as in his
pretrial report, Southwell "precisely identifie[d]" and described
in detail "the two defects that he found to have caused the subject
tire to rupture" and that rendered the subject tire unreasonably
dangerous: (1) failure of the internal components of the subject tire
to adhere properly due to scorch, as evidenced by liner imprints;
and (2) oxidation due to the subject tire having a halobutyl inner
liner with a gauge below 2.0 millimeters. See Benedict, 295 F. Supp.
3d at 649-50 (citations omitted); Trial Tr. 133-98. And, as noted
above, he ruled out alternative theories of the subject tire's
failure and condition. Trial Tr. 164, 198-205, 293-95.
Additionally,
Southwell's opinions
were
supported
by
his
consideration and knowledge of relevant publications. See Trial Tr.
140, 160-61, 168, 184, 189, 198, 207, 297-98. Southwell identified
Southwell also determined that the subject tire was being used in
an intended and foreseeable manner
124-25; see also Trial Tr. 205-06.
42
before it failed. Trial Tr.
five public sources supporting the liner imprint theory. See Trial
Tr.
297-98.
Although
Southwell's
other
descriptions
of
the
literature supporting his conclusions were more generalized, he
testified
that
"literature
in
this
the
literature
field
of
was
"scientific
chemistry
and
tire
literature,"
engineering,"
"published studies that are available and research," "documentation
and
research
in
the
public
literature" "in the field
domain," "recognized
scientific
regarding inner liner thickness and
oxidation," "published research about the gauge of inner liners in
truck and bus tires," and "literature in the field." See Trial Tr.
140, 160-61, 168, 184, 189, 198, 207, 297-98. There is no doubt that
Southwell's
conclusions
were
supported
by
"a
review
of
the
literature." See Benedict, 295 F. Supp. 3d at 639.^''
Southwell's opinions, furthermore, were grounded in objective
experience, training, and testing. Southwell has a Master's degree
in engineering and is qualified as a technician and engineer. Trial
Tr. 105, 111. He has also enjoyed a lengthy career in the tire
Southwell's opinions might have been considered to be more
analytically rigorous had he enumerated the sources he considered.
See Freeman, 118 F.3d at 1017 ("[The expert] 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 here. Significantly, he identified specific
published materials that had directly guided his analysis.").
However, the Court does not read Freeman or the other applicable case
law as holding that a more generalized description of some of the
literature reviewed is fatal to a products liability claim as a matter
of law. See id. at 1016-17.
43
industry, focused on understanding how and why tires fail (including
obtaining specific training, inspecting and analyzing tires, and
training others in tire failure analysis). Trial Tr. 105-114. Indeed,
Southwell has inspected more than 15,000 failed truck tires over the
course of his career. Trial Tr. 113-14. And, importantly, each of
Southwell's opinions was based on his experience and training. See
Trial Tr. 133, 153-55, 160, 168, 184, 189, 198, 207; see also Trial
Tr. 296. Southwell's liner imprint theory, moreover, was based upon
and substantiated by specific testing (in which Southwell was
involved) in the early 1990s at Bridgestone Australia. Trial Tr.
153-55.
Lastly, Southwell relied on an inspection of the subject tire
and a review of related materials. Trial Tr. 161, 189, 207. Southwell
conducted "a visual and tactile inspection" of the subject tire "on
two occasions." Trial Tr. 115. Those inspections were supplemented
by a review of, inter alia, the police report, accident scene
photographs, fire and EMS documents, "459 photographs of the truck
and the tires," "an additional 280 photographs of the tire that
[Southwell] took [himself] at the time of inspection," "x-rays of
the subject tire to understand the position of the components within
the
tire,"
litigation
materials,
and
Defendants'
documents
(including product specifications and processes). Trial Tr. 115-16,
161, 189-90. As to the liner imprint theory, Southwell's inspection
44
revealed "11 separate areas in [the subject] tire of liner pattern
mark," which he was able to photograph and which he characterized
as
"extensive."
Trial
Tr.
139,
157-58.
As
to
the
inner
liner/oxidation theory, Southwell measured the subject tire's inner
liner "in 18 separate locations," found that the average measurement
was 1.8 millimeters (with a high of 2.2 and a low of 1.6, although
only 2 measurements were 2 millimeters or more), and uncovered
physical evidence of oxidation by visual and tactile assessment.
Trial Tr. 167-68, 181-82, 184. In short, "Southwell performed a
Metalled inspection' of the subject tire that revealed direct
evidence of the defects he alleges." See Benedict, 295 F. Supp. 3d
at 650 (citations omitted).
In sum, Southwell "did not simply opine on the basis of his Mwn
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" in
explaining why the subject tire contained defects which rendered it
unreasonably dangerous for ordinary or foreseeable use. See id. at
1017. And, Southwell's testimony established that the defects both
existed when the subject tire left Defendants' hands and caused the
accident. That is all that was legally required.
25
Southwell also clearly relied on his inspection, materials, and
experience in ruling out other theories of why the subject tire
failed. See Trial Tr. 199-205, 207.
45
3.
Defendants' Argtmients
In perspective of the foregoing, Defendants' arguments against
Southwell's testimony are unavailing,
i.
The Storage Standard Arguments
Defendants' first contend that Southwell failed to establish
a "standard" for the storage of rubber components or to determine
whether Defendants violated any standard, Defs,' Br, 12-14, However,
Southwell was not required to present any such standard. Had there
been a true "industry standard," that would have triggered the
industry standard analysis under the Virginia products liability
framework.
But,
Southwell testified
that there is
no
industry
standard applicable to rubber storage (because the standard would
be manufacturer- and compound-specific), and Defendants have not
shown, or even argued, that any such standard exists. See Trial Tr,
250, Thus, Benedict could proceed under the "expert safety" step.
Additionally, it was legally and logically permissible for
Southwell to infer from the existence of liner imprint marks that
the subject tire's components were scorched, i,e,, had been stored
too long to prevent inadequate adhesion. See Trial Tr, 137-48,
153-55,
250,
It
is
well-established
that
inferences
from
circumstantial evidence are lawful. See Desert Palace, Inc, v, Costa,
539 U,S, 90, 100 (2003); Owens-Corning Fiberglas Corp, v, Watson,
413 S,E,2d 630, 639 (Va, 1992), And, circumstantial evidence was
46
necessary here, given that there is no applicable industry standard
on storage and that "[t]here's no evidence of how long [the rubber]
was stored or how long it should have been stored." See Trial Tr.
250-51. Southwell's inference was also logically sufficient to prove
a defect. By way of analogy, one could certainly infer that a steak
is overdone, i.e., has spent too much time on the grill, based on
circumstantial evidence (e.g., extensive charring, dark center, dry
flavor) without: (a) establishing a standard for the amount of time
on the grill that is typically too much; or (b) showing how long the
steak was actually on the grill.
Finally, as set out above, Southwell testified at length as to
how liner imprint marks are probative of an unreasonably dangerous
manufacturing defect and to the liner imprint marks he found in the
subject tire, and he based his conclusions on experience, testing,
literature, inspections, etc. Trial Tr. 138-161, 207, 297-98. His
opinions were legally sufficient, and the jury could reasonably have
believed his testimony.
ii.
The Liner Imprint Theory Arguments
Defendants further contend that Southwell's opinion was not
analytically rigorous because he provided no support for the liner
imprint theory, could not identify any publicly available testing
that supported that theory, and could not provide any data or
photographs from the internal Bridgestone testing that he did rely
47
upon to substantiate his theory. Defs.' Br. 14. But, as set out above,
Southwell identified five public sources supporting the liner
imprint theory and otherwise explained that there is substantial
literature that informed his opinion and bolstered his conclusion.
See Trial Tr. 140-41, 160-61, 297-98. Furthermore, although the
Bridgestone testing was not public (and Southwell did not have
documentation available), Southwell described the testing and its
results in detail, and he testified, on the basis of his personal
knowledge, that, based on the results, Bridgestone "effectively
eliminated the problem of scorch occurring before the tire was
built . . . . in [a particular] factory for [a particular] product."
See Trial Tr. 153-56, 251-54, 296-98.^® And, of course, that testing
informed his experience and his objective understanding of why tires
fail, which he applied here in inspecting and analyzing the subject
tire. Cf. Trial Tr. 252-53 ("What I left Bridgestone with was a very
clear understanding of the causes of liner pattern mark and the
contribution to tire failure."). As set out above, it is abundantly
Southwell explained that the
testing
was
performed because
"another steer tire" "started to have in the market some pretty
significant early life failures." Trial Tr. 153-54. Accordingly,
Southwell and others performed "a very exhaustive investigation as
to why these tires were failing" by inspecting about 100 tires from
the market and others that had been manufactured at a similar time,
and "one of the very clear things [they] found was liner pattern marks
very similar to those" on the subject tire. Trial Tr. 153-54. They
then traced those liner pattern marks to scorch "in some of the belt
components," which they corrected by, in essence, reducing component
storage time. Trial Tr. 154-55.
48
clear that Southwell's liner imprint opinion was "based on, for
instance,
relevant
literature,
testing
and
inspection
of
the
product, and substantial industry experience and expertise." See
Benedict, 295 F. Supp. 3d at 649.
Defendants highlight the fact that Grant identified a study that
contradicted Southwell's liner imprint theory and himself performed
a study that did so. Defs.' Br. 14-15. However, under Rule 50, "the
Court must not weigh the evidence or make credibility determinations
and must draw all inferences in favor of the non-movant" and "[i]f
^the evidence as a whole is susceptible of more than one reasonable
inference, a jury issue is created and a motion for judgment as a
matter of law should be denied.'" Federico v. Mid-Atlantic Military
Family Communities, LLC, 2:12-cv-80, 2016 WL 4472961, at *2 (E.D.
Va. Aug. 23, 2016) (citations omitted); see also Huskey, 848 F.3d
at 156; Kivanc, 714 F.3d at 795. Here, the jury could reasonably have
believed Southwell over Grant, and, in fact, it is obvious that the
jury chose to do precisely that.
iii. The Inner Liner Standard Arguments
Defendants
similarly
maintain
that
Southwell "offered
no
evidence of the standard of care for the innerliner thickness
during Plaintiff's case-in-chief" and that "the only evidence of an
industry standard for innerliner gauge was a study by ExxonMobil"
improperly admitted in rebuttal. Defs. Br. 15.
'
49
As an initial matter, Southwell was not required to present an
"industry standard" as to inner liner thickness. Again, if an
"industry standard" existed, that would have triggered the industry
standard analysis. But, as Defendants argue, "the only evidence of
an industry standard for innerliner gauge was a study by ExxonMobil,"
which the Court has already ruled is "industry literature," not an
"industry standard." See Benedict, 295 F. Supp. 3d at 649 n.l2.^^
"Absent an established norm in the industry, it was a matter of
opinion of trained experts [whether the product] was safe for its
intended use." See Bartholomew, 297 S.E.2d at 679.
That remains true even if, under Evans, widespread industry
practices could constitute an "established norm in the industry."
Here, the only evidence was that the ExxonMobil study is "the document
that ExxonMobil provides to their tire customers who purchase their
butyl material, and it's the Bible or the guide for manufacturing
tire halobutyl inner liners that's in the public domain and that
specified very clearly a minimum halobutyl inner liner gauge for
truck and bus tires of two millimeters." Trial Tr. 713. All that
establishes is that this source is important and supports Southwell's
view, not what halobutyl inner liner gauge manufacturers typically
employ.
It is true that Grant testified that an inner liner (including
all layers) above 2.5 millimeters is "best in class" and "what inner
liners . . . in all steel truck tires are — and with high technology
are actually designed to have." Trial Tr. 684-85. And, he explained
that the method by which Defendants measure the entirety of their
inner liner (i.e., by measuring to the steel cord) is similar to that
of other tire manufacturers. Trial Tr. 680-81. Those conclusions,
however, did not relate to the thickness of the halobutyl portion
of a tire, which is what Southwell testified was too thin. Trial Tr.
165-68, 710. In any case, these statements by Grant are not sufficient
to demonstrate an "established norm in the industry," and, indeed.
Defendants do not so contend.
50
Furthermore, although Southwell did not directly discuss the
ExxonMobil study during Benedict's case-in-chief, he did fully
explain why the subject tire's inner liner was too thin and how that
made the subject tire unreasonably dangerous. See Trial Tr. 161-69,
181-85. Indeed, as to inner liner gauge specifically, he determined
that, based on "several years of experience in the tire industry,"
"published studies that are available and research," "experience in
tire design and manufacture and failure analysis," and "published
research about the gauge of inner liners in truck and bus tires,"
a (halobutyl) inner liner should be "[a]t least 2 millimeters at every
point." See Trial Tr. 168, 198. And, his opinion that the subject
tire
was
defective
was
based
upon
that
objectively-reached
conclusion (as well as inspections of the subject tire and review
of materials). Trial Tr. 167-68, 184-85, 189-90, 198, 207. In short,
as set out above, Southwell's opinion was legally permissible and
certainly adequate to have been believed by the jury.
Defendants point to the fact that the testimony about the
ExxonMobil study was improperly admitted as rebuttal evidence.
Defs.'
Br.
16.
However,
that
issue
is
irrelevant
to
whether
Southwell's testimony was sufficient to sustain Benedict's claim.
28
The Court addresses the propriety of admitting the evidence below.
Defendants suggest that the ExxonMobil study supports their
position because "the total innerliner of the Subject Tire was within
51
iv.
The Inner Liner Measurement Argviments
Defendants assert that the inner liner was not too thin, but
rather that "Southwell failed to measure all the layers of the
innerliner." Defs.' Br. 17-18. They argue that Grant testified that
the full inner liner was 2.5 millimeters and that Southwell agreed
that an inner liner of that gauge would not be defective. Defs.' Br.
17.
It is true, as Defendants note, that Southwell believed that
he had measured all layers of the subject tire's inner liner but,
in reality, appears to have only measured the halobutyl layer. See
Defs. Br. 17; Trial Tr. 172-73, 187-88, 522-23, 677-81. Defendants'
'
evidence established that the first layer of the inner liner was
halobutyl, whereas the other layers were made of other materials.
See Trial Tr. 522-24, 679. And, is also true that Southwell stated
that, if the inner liner were 2.5 millimeters or greater, the subject
tire would not be defective, and that Grant found that the whole inner
liner was over 2.5 millimeters. Trial Tr. 254, 684-85.
Southwell
clarified,
however,
after
hearing
Defendants'
evidence, that only the halobutyl layer was the inner liner and that
the halobutyl layer had to be 2 millimeters or more. See Trial Tr.
the accepted range of the Exxon Study." Defs.' Br. 15. As noted above,
the ExxonMobil study required the halobutyl portion of a tire to be
at least 2 millimeters. Trial Tr. 713. The evidence established that
the halobutyl layer of the subject tire was below that, even if the
subject tire had other, non-halobutyl layers. Trial Tr. 167-68, 677.
The ExxonMobil study, then, does not support Defendants.
52
709-710, 713 ("If it's not halobutyl rubber, it's not inner liner.
It's as simple as that."). That understanding comports with his
testimony during Benedict's case-in-chief. Trial Tr. 165-66, 176,
187-88. And, Southwell explained that the inner liner he measured
(i.e., the halobutyl layer) was thinner than 2 millimeters. See Trial
Tr. 167-68. Accordingly, on the record, the jury could reasonably
have found that the halobutyl layer of the inner liner must be at
least 2 millimeters thick, wholly apart from whatever other layers
it has; that the halobutyl layer of the subject tire's inner liner
was thinner than 2 millimeters; and, therefore, that the subject tire
was defective.
That conclusion is
underscored
by other evidence.
First,
Southwell actually uncovered oxidation in the subject tire, which
is the flaw that would result if the inner liner were too thin.
See Trial Tr. 161-67, 181-82, 184. Second, in closing argument.
Defendants conceded that the halobutyl portion of an inner liner
prevents air permeation and that the other layers serve different
purposes. Trial Tr. 833. Chun's trial testimony substantiated that
concession. Trial Tr. 522-24. Third, Grant agreed that the halobutyl
layer was thinner than 2 millimeters. Trial Tr. 677.
Defendants also point to their own evidence as to inner liner
gauge. Defs.' Br. 17-18. They assert that the evidence showed that
the proper method of measuring a multi-layer inner liner is to include
53
all inner liner layers and up to the bottom of the steel cord, that
all three layers totaled to above 2.5 millimeters in the subject tire,
and that a TH08 tire manufactured shortly after the subject tire was
made was tested and exceeded Defendants' specifications. Defs.' Br.
17-18. Again, however, the Court does not weigh the evidence on a
Rule 50 motion, and Benedict's evidence was legally sufficient.
Moreover, none of Defendants' evidence even goes to the issues raised
by Southwell, i.e., how thick the halobutyl portion of the inner liner
should be to prevent air permeation (however a "total" inner liner
is defined or measured) and how thick that portion of the inner liner
was on the subject tire. See Trial Tr. 524, 538, 559, 680, 684-85.
Indeed, Chun explained that Defendants include all three layers in
their inner liner measurement because, even though the halobutyl
layer is the layer designed to prevent air leakage, the inner liner
serves multiple functions and Defendants wish their measurements to
capture those varied functions. Trial Tr. 522-24. And, he testified
that
Defendants
use
the
steel
cord
to begin
the
inner
liner
measurement simply because the non-inner liner rubber "below the cord
is very difficult to identify" (which Grant confirmed is common).
Trial Tr. 524, 680-81. In short, the evidence is legally sufficient
to support Benedict's claim, and the evidence to which Defendants
point does not alter that conclusion.
54
V.
The Oxidation Arg\aments
Defendants further argue that judgment should be entered in
their favor because Southwell did not measure or quantify oxidation,
even though tests were available to do so. However, Southwell
explained that he found evidence of oxidation based on appearance
and feel; that measuring oxidation would have required destroying
some of the evidence; that measuring oxidation was not necessary to
determine that it had occurred in the subject tire; that he was able
to detect oxidation based on "having inspected many thousands of
failed tires and had the opportunity to compare different compounds
and the way they oxidize"; and that his opinion was based on training
and literature. Trial Tr. 181-84. For the reasons set out above,
Southwell's opinion was legally sufficient, and the Court finds
•
•
29
nothing wrong with his failure to quantify the amount of oxidation.
Defendants
additionally
maintain
that
their
expert
demonstrated that the subject tire's rubber was not brittle. Defs.'
Br. 18. It is true that Grant disagreed with Southwell's findings
and attempted to show the jury that "the rubber is still supple."
Trial Tr. 675-76. But, Southwell was well-trained in assessing
Defendants also vaguely suggest that Southwell failed to link the
oxidation he observed to the gauge of the inner liner. Defs.' Br.
18. That is not so. He expressly described how a halobutyl inner liner
prevents air permeation and oxidation; that the air that causes
oxidation is from inside the tire (i.e., that which is held in by
the inner liner); and that the oxidation here was not caused by
post-accident storage. See Trial Tr. 163-66, 293-94.
55
oxidation and clearly explained the basis for his findings. See Trial
Tr. 162-66, 181-84, 293-94. The jury reasonably chose to believe
Southwell and chose not to accept Grant's views as credible,
vi.
The Quality Assurance Arguments
Finally, throughout their brief. Defendants point to evidence
of their quality control procedures. Defs.' Br. 13-14, 18-19. As a
threshold matter, Benedict did not need to prove that Defendants
actually failed to exercise due care in establishing the quality
assurance procedures. Defendants' quality control measures make the
existence of a defect less likely, perhaps, but the jury could
reasonably have found that, whatever Defendants' quality control
procedures,
they
were
not enough
to
prevent
the
unreasonably
dangerous defects of which Southwell found direct evidence. And,
moreover, Southwell testified "that the quality control processes
in [Defendants'] factory are inadequate to ensure that tires are
reliably 100 percent released in a safe state from the manufacturing
plant" based on his "experience in the tire industry over an extended
period of time" and "the material that [he] reviewed in this case."
Trial Tr. 708-09. In any case, Benedict's evidence was legally
sufficient to support his claim, and Defendants' evidence about the
quality assurance procedures does not warrant judgment as a matter
of law in their favor.
56
II.
Defendants' Arguments that the ExxonMobil Study Was Improper
Rebuttal Evidence
Defendants raise the argument, irrelevant to the sufficiency
of Southwell's testimony, that the Court should not have permitted
Southwell to discuss the ExxonMobil study in rebuttal. Defs.' Br.
16. They claim that this evidence did not rebut anything in
Defendants' case, given that "the Exxon Study had not been admitted
into evidence or discussed (since the Court struck Grant's testimony
concerning the study)." Defs.' Br. 16. They claim that this was not
harmless
error
because
the
jury
raised
a
question
about
the
ExxonMobil study. Defs. Br. 16 n.5.
'
A.
Rebuttal Evidence
The Fourth Circuit has made clear the standard applicable to
rebuttal evidence. "^Rebuttal evidence is defined as evidence given
to explain, repel, counteract, or disprove facts given in evidence
by the opposing party' or ^ [t]hat which tends to explain or contradict
or disprove evidence offered by the adverse party.'" United States
V. Byers, 649 F.3d 197, 213 (4th Cir. 2011) (citations omitted).
"Evidence offered in rebuttal ^may be introduced only to counter new
facts presented in the defendant's case in chief.'" Id. (citations
omitted).
B.
The Ruling & Analysis
When called in Benedict's rebuttal case, Southwell began to
explain "the basis for [his] opinion that the halobutyl portion of
57
an inner liner has to reach a specific gauge." Trial Tr. 710. In so
doing, Southwell referred to a document published by ExxonMobil that
the company provides to its customers. Trial Tr. 710. Defendants
objected on the ground that this testimony was improper rebuttal
evidence. Trial Tr. 710-12. The Court overruled the objection because
Defendants' expert, Grant, had said that "he was amazed by the fact
that Mr. Southwell thought an inner liner needed to reach 2.0
millimeters" and "[got] back into" the issue of whether the subject
tire's
inner
liner
was "best
in
class." See
Trial
Tr.
711-12.
Southwell then testified that his opinion was based on, inter alia,
"the document that ExxonMobil provides to their tire customers who
purchase their butyl material, and it's the Bible or the guide for
manufacturing tire halobutyl inner liners that's in the public domain
and that specified very clearly a minimum halobutyl inner liner gauge
for truck and bus tires of two millimeters." Trial Tr. 713.
Grant did in fact say that he "was amazed" by Southwell's view
as to inner liner gauge. Trial Tr. 697. However, the Court granted
Benedict's motion to strike that testimony. Trial Tr. 697. Likewise,
Grant mentioned that the halobutyl layer of the subject tire's inner
liner was: "best in class in world for halobutyl content. There's
an ExxonMobil study that basically said —" Trial Tr. 677. Again,
however, the Court sustained Benedict's objection and ordered the
testimony stricken. Trial Tr. 678. Accordingly, some of the evidence
58
related to the Court's admission of Southwell's rebuttal testimony
about the ExxonMobil study had, in fact, been stricken.
However, that does not end the analysis. To begin. Defendants'
objection to Southwell's testimony was overruled because Grant "did
get back into the very issue of the best in class." Trial Tr. 712
(emphasis added). In unstricken testimony. Grant stated that the
thickness of the subject tire's inner liner (including all layers):
"is what I call best in class. I mean, this is what inner liners and
steel -- in all steel truck tires are -- and with high technology
are actually designed to have." Trial Tr. 684-85. Southwell's
clarification that prominent and published industry literature
supported and provided the basis for his view that the inner liner
was defectively thin (and, hence, not actually "best in class") was
responsive to Grant's testimony and his attack on Southwell's
opinion. Therefore, the explanation of why Grant's opinion was wrong
was indeed proper rebuttal evidence.
Second, Defendants presented evidence (including the testimony
by Grant set out above) to support the proposition that Defendants'
inner liner included multiple layers and that, if all those layers
are considered, the inner liner was not too thin. See Trial Tr.
522-24, 528, 538-39, 679, 684-85. Explaining that important industry
literature supported (and contributed to) Southwell's view that the
halobutyl portion of a tire must be of a certain gauge countered
59
Defendants' evidence on that point. The ExxonMobil study was properly
admissible to help rebut that evidence.
III. Defendants' Arguments that the Verdict Is Against the Clear
Weight of the Evidence
Defendants contend that the evidence, as a whole, does not
support the verdict and, therefore, a new trial is warranted. Defs.'
Br. 19-22.
Defendants
maintain
that their
expert testified that the
accident was caused by an impact that had occurred sometime between
the event and 200 driving miles before the event. Defs.' Br. 19.
According
to
Defendants,
that
is
supported
by
cogent,
scientifically-based reasoning and "a number of relevant treatises."
Defs.' Br. 19-20. And, they argue that Grant observed "multi-level
tearing across multiple belts," which undercut Southwell's liner
imprint/adhesion theory. Defs.' Br. 20. They claim that Southwell
"offered
no
reliable
support for
his liner pattern mark and
innerliner gauge opinions" and "could not provide any scientifically
reliable data to rebut Grant's opinions." Defs.' Br. 20. Further,
Defendants assert that "Southwell failed to provide a common sense
explanation as to why the manufacturing defects did not manifest
themselves until 9 years after the Subject Tire was manufactured."
Defs.' Br. 20-21. These arguments are unavailing.
60
First, although Grant contended that an impact within 200 miles
of the accident had caused the tire failure and gave a series of
reasons for his opinion, Southwell convincingly set forth his own
explanation of why the subject tire failed and expressly rejected
impact as the cause of the failure. See Trial Tr. 133-98, 199-205,
601-15. Both experts, moreover, explained why they disagreed with
each other's theories. See Trial Tr. 199-205, 601-622, 665-85, 710,
713-17. This is a classic "battle of the experts" situation, and the
Court cannot find that the jury's decision to believe one expert over
another was against the clear weight of the evidence.
Second, as set forth above, Southwell's opinions were all based
on, inter alia,
his "education, qualifications, review
of the
materials in this case, and . . . on literature in the field." Trial
Tr. 207. In the
Court's
view,
his theories
and opinions
were
sufficiently supported for the jury to believe him. Although Grant
relied on his own literature, qualifications, etc., that did not
render the jury's decision to accept Southwell to be contrary to the
clear weight of the evidence. See, e.g.. Trial Tr. 575, 592, 657-60,
665, 670-75.
Third, the argument that "Southwell failed to provide a common
sense explanation as to why the manufacturing defects did not
manifest themselves
until 9
years
after the
Subject Tire
was
manufactured" falls flat. Southwell directly explained why the
61
subject tire did not fail immediately. He stated: "the fact that there
are liner pattern marks and areas of inadequate adhesion doesn't mean
that the tire wasn't partially stuck together. It was in the areas
where there is no evidence of inadequate adhesion." Trial Tr. 158.
Similarly, he averred:
The tire was stuck together to an extent, but
then the progression to failure doesn't happen
overnight. It's the case of — particularly in
combination with the other defect that we were
talking about — it's the case of the areas of
inadequate adhesion continuing to break down to
the point where at some point in time, and nobody
can determine when that was or when that is, a
large piece of the tire becomes detached in
service.
You've got this tire rotating around at
50 miles per hour, something like that, and
you've got all this weight, this mass of heavy
tread and steel belt rotating around the outside
on the tire. That's generating a centrifugal
force. I'm sure everybody -- I hope everybody
knows what centrifugal force is. It's the force
that tries to throw things out when they're
rotating.
So the adhesion between the components has
to resist that centrifugal force. And when the
adhesion between the components breaks down to
a sufficient extent, the centrifugal force will
cause the tread and belt to become detached.
And, of course, once you get a small part of the
detachment, you don't need much of the tread and
belt to become detached, this rotating tire will
become delaminated and a large piece, such as
we see on the ground there, will become
detached.
Trial Tr. 158-59. And, moreover, he testified that the subject tire
had a similar service life to those tires analyzed as part of the
62
liner imprint testing at Bridgestone. Trial Tr. 298 ("So while this
tire here is chronologically older, it is very similar in terms of
its life to the tires in which liner imprint was causing a problem
in Australia."). Defendants may not like Southwell's theory or his
explanation, but the jury was free to accept it and obviously did
so. A new trial is not warranted on that ground.
Weighing the evidence more generally, moreover, the Court is
convinced that a new trial is not warranted. Benedict provided
legally sufficient evidence to support a finding of liability. His
evidence was compelling and believable. Defendants raised evidence
presenting another view. But, the evidence did not "clearly" favor
Defendants. The outcome was for the jury to decide, and, in the end,
the jury believed Benedict's evidence.
IV.
Defendants' Argvuaent that the Jury Award Would Result in a
Miscarriage of Justice
Defendants further claim that the jury verdict, $37,835,259.23,
was excessive. Defs. Br. 28. Their arguments are unpersuasive, but
'
In their reply brief. Defendants also point to their evidence of
quality control measures. Defs.' Reply Br. 12. However, the evidence
supported a finding that Defendants' quality assurance procedures
were insufficient to prevent the defects that Southwell found. And,
as
noted
above,
Southwell testified "that the
quality control
processes in [Defendants'] factory are inadequate to ensure that
tires are reliably 100 percent released in a safe state from the
manufacturing plant." Trial Tr. 708-09.
63
the Court will grant a moderate remittitur on grounds that Defendants
did not raise.
A.
Standards Applicable to Jury Awards
As the Fourth Circuit has held, in a diversity case governed
by Virginia law, "[w]hether th[e] verdict should be set aside as
excessive is a matter of Virginia law." See Stamathis v. Flying J,
Inc., 389 F.3d 429, 438 (4th Cir. 2004). Under Virginia law, the
following principles govern setting aside a verdict on the ground
of excessive damages:
A trial court may set aside a
because it is excessive
shocks
the
conscience
verdict
the amount awarded
of
the
court
either
because it indicates "the jury has been
motivated by passion, corruption or prejudice"
or "has misconceived or misconstrued the facts
or
the
law,"
or
because
it
is
so
disproportionate "to the injuries suffered as
to suggest that it is not the product of a fair
and impartial decision."
Gov^ t Micro Res., Inc. v. Jackson, 624 S.E.2d 63, 71 (Va. 2006)
(emphasis added) (citations omitted). Furthermore, the Supreme Court
of Virginia has "specifically rejected comparing damage awards as
a means of measuring excessiveness." Allied Concrete Co. v. Lester,
736 S.E.2d 699, 708 (Va. 2013).^^
Defendants argue in their reply brief that the propriety of using
"verdict comparisons" to assess the excessiveness of jury verdicts
is a matter of procedure, not substance, and that therefore this Court
should apply federal law permitting verdict comparisons. Defs.'
Reply Br. 13-14, 14 n.9. They state that there is no case on point.
64
Defs.' Reply Br. 14 n.9.
The Court disagrees with Defendants. In Gasperini v. Center for
Humanities, Inc. ^ the Supreme Court of the United States held that,
"[i]n light of Erie^ s doctrine, the federal appeals court must be
guided by the damage-control standard state law supplies." Gasperini
V. Ctr. for Humanities, Inc., 518 U.S. 415, 438 (1996). In that case,
the Supreme Court was analyzing a New York statute that required
courts to find an award "excessive or inadequate if it deviates
materially from what would be reasonable compensation, and New York
"
courts analyzed that issue by "look[ing] to awards approved in
similar cases." Id. at 423, 425 (citations omitted). The Supreme
Court
in
no
way
distinguished
between
what
the
standard
for
excessiveness is and how excessiveness is proved. Indeed, the Court
expressly stated that "New York's dominant interest can be respected,
without disrupting the federal system, once it is recognized that
the federal district court is capable of performing the checking
function, i.e., that court can apply the State's "deviates
materially" standard in line with New York case law evolving under
[the New York statute at issue]." Id. at 437. That case law relied
on verdict comparisons. Id. at 425.
Likewise,
in
French
v.
Wal-Mart
Stores,
Inc., the
Fourth
Circuit, by unpublished opinion, held that Virginia substantive law
controls the issue of verdict comparisons. The Court stated:
"Wal-Mart further argues that the district court should have examined
comparable Virginia cases, and that if the court had done so, it would
have concluded that an award of $1 million to French was excessive.
We disagree. The district court is not required to review previous
awards in similar cases; indeed, Virginia law appears to caution
against such an approach." French v. Wal-Mart Stores, Inc., 188 F.3d
501, 1999 WL 638596, at *9 (4th Cir. 1999) (per curiam) (table)
(emphasis added). Note that there was some ambiguity as to whether
Virginia prohibited verdict comparisons until about 2004 (i.e.,
until after French was decided), although the Supreme Court of
Virginia has indicated that the "average verdict rule" was rejected
as early as 1925. See Allied Concrete, 736 S.E.2d at 708; John Crane,
Inc. V. Jones, 650 S.E.2d 851, 858 (Va. 2007); Rose v. Jaques, 597
S.E.2d 64, 77 (Va. 2004).
Defendants point to Stienke v. Beach Bunqee, Inc. to support
their position, but that case dealt with jury verdicts under South
Carolina law. Defs.' Reply Br. 14 n.10; Stienke v. Beach Bungee, Inc.,
105 F.3d 192, 197-98 (4th Cir. 1997). Defendants note that the Fourth
Circuit relied on opinions from the Fifth and Second Circuits "when
65
B.
Defendants' Arguments that the Non-Economic Damages are
Excessive
Defendants' primary argument is that the verdict is excessive
because it "is the largest in a tort case [not involving punitive
damages] . . . in the Commonwealth in at least the last ten years."
Defs.' Br. 24, 24 n.9. They point to a variety of example cases to
support their view that the verdict is too large. Defs.' Br. 25-28.
directing the district court to engage in a verdict comparison."
Defs.' Reply Br. 14 n.lO. Although those cases do support verdict
comparisons to limit (and review) a district court's discretion, they
likewise make clear that state substantive law is central to the
excessiveness analysis. See Imbrogno v. Chamberlin, 89 F.3d 87, 90
(2d Cir. 1996); Douglass v. Delta Air Lines, Inc., 897 F.2d 1336,
1339 (5th Cir. 1990). And, neither Steinke nor the federal cases it
cited dealt with the unique issue presented here, i.e., whether
verdict comparisons are proper where state law affirmatively
prohibits them. See Steinke, 105 F.3d at 197-98; Imbrogno, 89 F.3d
at 89-90; Douglass, 897 F.2d at 1339-45.
Additionally, Defendants highlight Richardson v. Boddie-Noell
Enterprises, Inc., which did compare the award at issue to similar
Virginia verdicts to affirm the decision of the district court.
Defs.' Reply Br. 14; Richardson v. Boddie-Noell Enters., Inc., 78
F. App'x 883, 890 (4th Cir. 2003). But, (like French) that decision
was rendered before Virginia had clearly banned such comparisons.
In any case, that decision was unpublished and the court did not
explain why it was relying on similar awards; it does not persuade
this Court that relying on verdict comparisons, especially in
perspective of recent Virginia case law on the subject, is proper.
Finally Defendants cite language in cases out of this district,
Jones V. SouthPeak Interactive Corp. of Delaware, 982 F. Supp. 2d
664 (E.D. Va. 2013), aff'd, 777 F.3d 658, 678 (4th Cir. 2015) and
Filkins v. McAllister Bros., Inc., 695 F. Supp. 845 (E.D. Va. 1988).
But, neither of these cases arose under Virginia (or even state) law.
See Jones, 982 F. Supp. 2d at 667-68; Filkins, 695 F. Supp. at 849.
And, Filkins was decided before the Supreme Court of the United States
had clarified the law to be applied to questions of verdict
excessiveness.
66
Comparing verdicts, however, is not a proper method of assessing
the excessiveness of damages under Virginia law. Thus, the Court
rejects and does not consider Defendants' case comparisons.
Defendants also claim that "[t]he vast majority of Plaintiff's
case was designed to elicit the passion of the jury." Defs.' Br. 23
n.8. They contend that only one of Benedict's witnesses discussed
the subject tire and that Benedict "continued to play the ^Day in
the Life' video at the start of the second day of trial, despite the
Court's instruction to move on from the video at the end of the first
day." Defs.' Br. 23 n.8. These arguments, however, are meritless.
First, the point that Benedict only offered one witness to
discuss the subject tire simply reveals that different witnesses were
needed to prove different facts. The gravamen of Benedict's liability
evidence did come by way of one expert "in forensic tire engineering"
(although Benedict also used depositions and documents from HTCL,
among other things). See Trial Tr. 114.
But, Benedict needed
several witnesses to establish his damages, given their nature,
extent, and severity. For example, Benedict needed testimony by an
economist to calculate economic damages, needed the testimony of a
life care planner to establish future medical needs, needed the
testimony of treating surgeons and doctors to describe his injuries.
Indeed, the Court's scheduling ORDER (ECF No. 5) prohibited more
than one expert per discipline.
67
treatment,
rehabilitation,
and
condition,
and
needed
his
own
testimony and that of family and friends to substantiate how his
injuries have affected his life. There was no one witness who could
describe all of Benedict's damages, and, of course, he bore the burden
to prove each harm he experienced. There was nothing improper in
Benedict's witness selection.
Second, the Court never instructed Benedict to move on from the
"Day in the Life" video. Rather, as the video approached a scene of
Benedict in the shower, the Court noted:
Do we need to go through the shower and
everything? I think maybe you may have made the
point. . . . I think her descriptions are about
as graphic as they could possibly be. I don't
think it improves things having him having to
be exposed. If there's some particular part that
you need, then okay.
Trial Tr. 53. After that admonition, Benedict moved on and, the next
day, only showed the remaining "minute or two left of the video,"
which was neither graphic nor exposing. See Trial Tr. 53, 63-65.
That leaves an substantiated claim that Benedict sought to
inflame the passions of the jury. But, the Court does not find that
to be so.
It is true that the testimony was, at times, emotional and often
dealt with difficult topics. However, that was unavoidable, given
the extraordinary harms that befell Benedict. And, he was perfectly
entitled (and, indeed, required) to establish the circumstances and
68
severity of his injuries and how they have affected and will continue
to affect his life. That counsel made a thorough presentation
explaining the realities that are the result of the manufacturing
defect is not a basis to conclude that the presentation sought, or
did in fact, inflame the jury.
Furthermore, in closing argument, counsel for Benedict laid out
a reasonable calculation of each element of non-economic damages.
He asked for $3.5 million each for the elements of past bodily
injuries, physical pain, mental anguish, and inconvenience (over 3.5
years). Trial Tr. 812-15. He then asked for $5 million each for the
elements of future mental anguish, inconvenience, and physical pain.
Trial Tr. 815-17. Each of these harms, in the Court's view, was
well-supported by the thoroughly presented damages evidence.
Additionally, Defendants offered no conflicting evidence of
damages and did not cross-examine any of the damages witnesses at
trial. See Trial Tr. 23, 69, 99, 323-24, 334, 354, 387, 414. Thus,
they gave the jury no basis on which to question the requested damages
amount. It is unsurprising, then, that the jury awarded Benedict
exactly what he sought.
Moreover, Defendants have not shown that any evidence or
statements at trial were improper. They never objected to any of the
69
damages evidence at trial as unduly prejudicial.^^ Had there been a
reasonable basis to conclude that Benedict's damages evidence was
in danger of eliciting the passion of the jury, surely Defendants
would have objected contemporaneously under Fed. R. Evid. 403 or
otherwise
countered
that
evidence.
And,
even
after
the
fact.
Defendants have pointed to no specific inflammatory evidence or
statements (other than their erroneous argument respecting the "Day
in the Life" video). If evidence or statements had inflamed the
passion of the jury, one would think that Defendants could present
a few pertinent examples.
Finally, Defendants point to the fact that "more than 75% of
the award-$29,000,000-is for non-economic pain and suffering" and
that damages of "$8,835,259.23 not only compensate Benedict for every
penny of income he lost, but every item and type of medical care he
may reguire." Defs.' Br. 25. Likewise, in their reply brief, they
argue that the non-economic damages award surpassed some "upper
limit" of compensation (citing a case from 1988 that was not applying
There were only two objections to the damages evidence. First,
Defendants objected to Dr. William McKinley's anticipated testimony
as to economic damages (on the ground that he did not produce a
report). Trial Tr. 260-69. The Court rejected Defendants' argument.
Trial Tr. 268. Second, they prospectively requested that the Court
limit Dr. Lichtblau's testimony to avoid cumulative opinions as to
the necessity of treatments and life expectancy. Trial Tr. 326-27.
The Court barred Dr. Lichtblau from testifying as to treatment
necessity and allowed him to speak to life expectancy. Trial Tr.
326-28.
70
Virginia or state law, Filkins v. McAllister Bros., Inc., 695 F, Supp.
845 (E.D. Va. 1988)). Those arguments, however, are unpersuasive.
As an initial matter, the mere fact that Benedict has been compensated
for his medical care and wages in no way suggests that he has been
compensated for his other damages, such as his emotional and physical
injuries and pain and suffering. Those harms are distinct. And, here,
the non-economic damages award is only about 3.3 times the economic
damages (the overwhelming majority of which relate to medical care).
See Trial Tr. 413-14, 425. For a person with injuries as severe as
Benedict's (e.g., for a person whose life has been irreparably
shattered by a catastrophic physical injury that has caused, and will
continue
to
debilitating
cause,
severe
physical
pain,
discomfort,
limitations,
health
significantly
risks,
altered
relationships with loved ones, and embarrassment), such an award for
non-economic harm is in no way "disproportionate" or "conscience
shocking" (especially in light of the foregoing analysis). See Gov't
Micro Res., 624 S.E.2d at 71. That is likewise true of the total award
amount. A reasonable and fully-informed juror, unmotivated "by
passion, corruption or prejudice," could certainly conclude that
$29,000,000 was necessary to compensate Benedict, i.e., to make him
"whole, for the extraordinary suffering that he has endured and will
"
continue to endure and for the alteration of his entire life . See
id. (citations omitted); Acuar v. Letourneau, 531 S.E.2d 316, 323
71
(Va. 2000) ("[T]he purpose of compensatory damages . . . is to make
a tort victim whole.").
C.
Why the Economic Damages Are Excessive
Defendants'
arguments
notwithstanding,
the
verdict
is
excessive for another reason not raised by the parties. It appears
that the jury miscalculated the economic damages portion of the award
on the basis of Benedict's closing argument.
In
closing
argument,
Benedict's
counsel
asserted
that
Benedict's past medical expenses were $2,049,675.23; that his past
lost wages were $115,545; that his future lost wages at present value
would be $560,656; and that his future life care expenses would be
$6,109,381. Trial Tr. 810-11. Benedict's counsel then requested, in
total
(i.e.,
including
$29,000,000
in
non-economic
damages),
$37,835,259.23, which the jury awarded. See Trial Tr. 817; Verdict.
There are two problems with that calculation, however. First,
the
amounts
that
Benedict's
counsel
requested
equate
to
$37,835,257.23, not $37,835,259.23. Second, the evidence showed that
Benedict's future lost wages at present value would be $493,141, and
that $560,656 is the amount of lost wages before the reduction to
present value. See Trial Tr. 413. Accordingly, Benedict should have
sought $37,767,742.23. And, because the jury awarded exactly what
Benedict's counsel requested during closing argument (including a
72
$2.00 addition error), it is clear that the jury intended to award
what Benedict sought (not an alternative, greater amount).
One ground for finding a verdict "conscience shocking" is if
the jury has "has misconceived or misconstrued the facts or the law."
Gov^t Micro Res., 624 S.E.2d at 71 (citations omitted). Here, it
appears that, in a minor way, the jury did so as to the non-economic
damages. The Court thus finds the verdict excessive but only to that
extent.
D.
Remittitur
When a federal court finds a verdict excessive, it "may grant
a new trial nisi remittitur, which gives the plaintiff the option
of accepting the remittitur or of submitting to a new trial." See
Konkel V. Bob Evans Farms Inc., 165 F.3d 275, 280 (4th Cir. 1999)
(citations
omitted).
Because
the
jury's
verdict
is
slightly
excessive, the Court will grant Defendants' motion for a new trial
nisi remittitur. Benedict may agree to a new trial "upon the whole
case," to a new trial "limited to the issue of damages alone," or
to an award of $37,767,742.23. See id. at 282 (citations omitted).
73
CONCLUSION
For the reasons, and to the extent, set forth above, the Court
will deny in part and grant in part HANKOOK TIRE COMPANY LIMITED'S
AND
HANKOOK
TIRE
AMERICA
CORPORATION'S
MOTION
FOR
JUDGMENT
AS
A
MATTER OF LAW OR, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL (EOF No.
458).
It is so ORDERED.
/s/
A2/
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date: July ^, 2018
74
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