Benedict v. Hankook Tire Co., Civil Action No. 3:17–cv–109

295 F.Supp.3d 632

Robert BENEDICT, Plaintiff,

v.HANKOOK TIRE COMPANY LIMITED, et al., Defendants.

Civil Action No. 3:17–cv–109

United States District Court, E.D. Virginia, Richmond Division.

Signed February 6, 2018

Jonathan E. Halperin, Esquire, Andrew Lucchetti, Esquire, Isaac A. McBeth, Esquire, Halperin Law Center, 5225 Hickory Park Drive, Suite B, Glen Allen, Virginia 23059, (804) 527–0100, Jay Halpern, Esquire, Ian D. Pinkert, Esquire, Ernesto L. Santos, Jr., Esquire, Jay Halpern & Associates, 150 Alhambra Circle, Suite 1100, Coral Gables, Florida 33134, (305) 445–1111, for Plaintiff.

Martin A. Conn, Esquire, Matthew J. Hundley, Esquire, Moran Reeves & Conn PC, 100 Shockoe Slip, 4th Floor, Richmond, Virginia 23219, (804) 421–6251, for Defendants.

MEMORANDUM OPINION

Robert E. Payne, Senior United States District Judge

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

I. BACKGROUND

In this products liability action, Robert Benedict sues Hankook Tire Company Limited ("HTCL") and Hankook Tire America Corporation ("HTAC") for the production and distribution of an allegedly defective tire. Defendants seek summary judgment as to Benedict's active claims.

A. Undisputed Relevant Facts

On November 14, 2014, Robert Benedict was driving a cement mixer truck for his employer, Essex Concrete ("Essex"). While travelling along Route 288 in Chesterfield County, Virginia, Benedict's front-right tire (the "subject tire") suffered a tread separation, and his truck veered off the right-hand side of the road, struck an embankment, and rolled over. Benedict was injured in the accident.

The subject tire was a Hankook Aurora TH08 Radial 425/65 R22.5. It was manufactured by HTCL in 2005 and then shipped to HTAC for distribution in the United States.

Essex did not purchase the subject tire new or directly from HTAC. Rather, the subject tire was one of three Hankook Aurora TH08 425/65 R22.5 tires sold by Hankook tire dealer Old Dominion Tire ("Old Dominion") to Metro Ready Mix ("Metro") between January 31, 2006 and June 29, 2007. Essex then purchased the truck at issue from Metro with the subject tire installed in May 2014.

Essex had no knowledge about the subject tire's history prior to its acquisition. However, Essex performed an inspection of the truck when it was purchased, conducted follow-up inspections every 300 hours, and required daily pre-trip inspections by drivers. A state inspection was also completed in October 2014.

Two cuts extending to the belts have been found on the subject tire. Federal regulations require removing tires from service if they suffer cuts of a specified level of severity.

A 2006 Hankook Aurora tire catalogue included a limited warranty, which purported to operate in lieu of other warranties. The limited warranty covered tires for six years from the date of manufacture or five years from the date of purchase, and, therefore, if it applied to the subject tire it expired well before the accident.

B. Defect Theory

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

C. Procedural History

Benedict initially asserted three claims: (1) products liability negligence (including manufacturing defect, design defect, and failure to warn); (2) breach of the implied warranty of merchantability; and (3) breach of the implied warranty of fitness for a particular purpose. First Am. Compl. 5–11. He is now pursuing only his negligent manufacturing and implied warranty of merchantability claims. Nov. 20, 2017 Hr'g Tr. 4.

Defendants raised several affirmative defenses in response, including contributory negligence and exclusion of implied warranties. HTCL's Answer to First Am. Compl. 9–10; HTAC's Answer to First Am. Compl. 9–10.

Both sides then moved for summary judgment. Benedict sought summary judgment as to Defendants' contributory negligence defense. Defendants sought summary judgment as to Benedict's active claims. Related to their motion, Defendants also asked this Court to exclude the testimony of Benedict's tire expert, David Southwell. The Court ruled on these three motions during a hearing held on November 20, 2017, Nov. 20, 2017 Hr'g Tr. 152, and issued an ORDER (ECF No. 221) on November 27, 2017 formalizing its decision. This Opinion is thus one of three detailing the Court's reasoning in this matter. (ECF Nos. 341–43).

II. GOVERNING LEGAL STANDARDS

A. Summary Judgment

Motions for summary judgment are governed by the following well-established principles:

Federal Rule of Civil Procedure 56(a) instructs that a court "shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue of material fact exists under Rule 56"if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

When evaluating a motion for summary judgment under Rule 56, any disputed "facts must be viewed in the light most favorable to the nonmoving party." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). In general, the "party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion" and "demonstrat[ing] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

United States v. Woody, 220 F.Supp.3d 682, 685–86 (E.D. Va. 2016). "Once the moving party properly files and supports its motion for summary judgment, the opposing party must show that a genuine issue of fact exists." Milbourne v. JRK Residential Am., LLC, 92 F.Supp.3d 425, 427 (E.D. Va. 2015).

B. The Virginia Basic Products Liability Framework

The basic analytical framework applicable to products liability claims in Virginia¹ is the same whether a plaintiff is bringing a negligence or breach of implied warranty action. See Jeld–Wen, Inc. v. Gamble by Gamble, 256 Va. 144, 501 S.E.2d 393, 396 (1998). In general, a products liability plaintiff must establish three elements: (1) the product must contain a "defect which rendered it unreasonably dangerous for ordinary or foreseeable use"; (2) the defect must have "existed when it left the defendant's hands"; and (3) the defect must have "actually caused the plaintiff's injury." Alevromagiros v. Hechinger Co., 993 F.2d 417, 420 (4th Cir. 1993) ; see also Jeld–Wen, 501 S.E.2d at 396.²

For a plaintiff to prove that an "unreasonably dangerous" defect existed, "[h]e or she must establish the violation of industry or government standards, or prove that consumer expectations have risen above such standards." Alevromagiros, 993 F.2d at 422 ; see also Sutherlin v. Lowe's Home Ctrs., LLC, 3:14–cv–368, 2014 WL 7345893, at *8–9 (E.D. Va. Dec. 23, 2014) (applying this standard in the manufacturing defect context). Cf. Sutton v. Roth, L.L.C., 361 Fed.Appx. 543, 546–47 (4th Cir. 2010) (similar). These issues are somewhat layered and, accordingly, the most appropriate approach is to analyze them in succession. See, e.g., Norris v. Excel Indus., Inc., 139 F.Supp.3d 742, 747–54 (W.D. Va. 2015) ; Lemons v. Ryder Truck Rental, Inc., 906 F.Supp. 328, 331–33 (W.D. Va. 1995).

The first element is straightforward. It examines whether there are government standards applicable to a given product and whether those standards were violated. See Norris, 139 F.Supp.3d at 748–49.

If there is no violation of government standards, the same inquiry is conducted concerning industry standards. Norris, 139 F.Supp.3d at 749–51. There are two points worth highlighting at this stage, however. First, industry standards mean "formally promulgated" standards, such as those adopted by official industry organizations, not "mere industry custom." See id. at 749–50 ; Tunnell v. Ford Motor Co., 4:03–cv–74, 2004 WL 1798364, at *3, 7 (W.D. Va. June 21, 2004), adopted in relevant part, 2004 U.S. Dist. LEXIS 32435 (W.D. Va. Aug. 25, 2004). Second, an absence of such standards does not end the analysis but rather triggers an "in-between" step (the "expert safety" step) before consumer expectations are assessed. See, e.g., Alevromagiros, 993 F.2d at 421 ; Blevins v. New Holland N. Am., Inc., 128 F.Supp.2d 952, 957–58 (W.D. Va. 2001) ; Lemons, 906 F.Supp. at 331–33.

This "expert safety" step authorizes courts to rely on expert testimony to determine whether a product is unreasonably dangerous when there is no "established norm in the industry," and that assessment is made without evaluating what reasonable consumers expect. See Alevromagiros, 993 F.2d at 421 (quoting Ford Motor Co. v. Bartholomew, 224 Va. 421, 297 S.E.2d 675, 679 (1982) ); see also Blevins, 128 F.Supp.2d at 957 ; Lemons, 906 F.Supp. at 331–32. In Bartholomew, for instance, as described by the Fourth Circuit in Alevromagiros:

The [Supreme Court of Virginia] found that the automobile industry had not yet promulgated safety standards relating to this particular problem. Consequently, the court admitted the opinion of plaintiff's expert that the car's design was unreasonably dangerous, based on information published by the [NHTSA], consultation with other experts, and experiments with transmission systems ....

Alevromagiros, 993 F.2d at 421 ; Bartholomew, 297 S.E.2d at 679–80. Likewise,...