Cone ex rel. Frazier v. Hankook Tire Co., 14-1122

LISA C. CONE, attorney in fact and next friend of TIMOTHY H.L. FRAZIER,and TIMOTHY H.L. FRAZIER, individually, Plaintiffs, v. HANKOOK TIRE COMPANY, LTD., Defendants.

No. 14-1122

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION

January 23, 2017

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (D.E. 202)

Plaintiffs, Lisa Cone and Timothy H.L. Frazier, brought this action against Defendant, Hankook Tire Company, Limited ("Hankook"), alleging violations of the Tennessee Products Liability Act ("TPLA" or "Act"). (Docket Entry ("D.E.") 1.) As a basis for these claims, Plaintiffs allege that Hankook manufactured a tire that suffered a tread separation, causing Frazier to lose control of a concrete mixer truck he was driving. The resulting crash caused Frazier to suffer serious injuries. Currently before the Court is Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.

I. LOCAL RULE VIOLATIONS

Prior to addressing the substance of the instant motion, the Court deems it necessary to note Plaintiffs' noncompliance with the Local Rules of this district concerning motions for summary judgment. The Local Rules require that "[m]emoranda in opposition to motions for summary judgment shall not exceed 20 pages without prior Court approval." LR 56.1(b). Cone and Frazier's response ran twenty-nine pages despite the fact that a search of the docket revealed no request to exceed the page limitation. The same Local Rule further mandates that

[a]ny party opposing the motion for summary judgment must respond to each fact set forth by the movant by either:

(1) agreeing that the fact is undisputed;

(2) agreeing that the fact is undisputed for the purpose of ruling on the motion for summary judgment only; or

(3) demonstrating that the fact is disputed.

Local R. W.D. Tenn. 56.1(b). Cone and Frazier did not file a response to Hankook's statement of undisputed facts. "Failure to respond to a moving party's statement of material facts . . . within the time periods provided by [the Local Rules], shall indicate that the asserted facts are not disputed for purposes of summary judgment." Local R. W.D. Tenn. 56.1(d).

Plaintiffs have made a habit of disregarding the Local Rules. See (D.E. 242 at PageID 8492 n.1 (noting that they failed to comply with Rule 56.1(b) when responding to Defendant's statement of undisputed facts relevant to another motion); (D.E. 243 at PageID 8500) (pointing out that they violated Rule 56.1(a) by not including a statement of undisputed facts in their motion for partial summary judgment). Given the close proximity to trial, the Court will not strike Plaintiffs' response to the motion for summary judgment. However, due to their failure to respond to Defendant's statement of undisputed facts, those facts will be deemed admitted for purposes of ruling on this motion to the extent they are supported by the record. Further failures of this nature will result in the non-compliant pleadings being stricken from the record.

II. BACKGROUND

The tire at the center of this dispute is a Hankook AH10 medium truck tire that was manufactured by Hankook Korea in Daejeon, Korea in December 2005. (D.E. 202-37 at PageID3655.) When the tire left Defendant's control, it complied with the applicable Federal Motor Vehicle Safety Standards ("FMVSS"). (D.E. 209 at PageID 4602.)

On the date of the crash—July 8, 2013—Frazier was driving a 1996 International Model 2574 concrete mixer. (D.E. 202-11 at PageID 3121.) That truck had previously sustained front-end damage in an accident that took place in February 2002. (D.E. 202-13 at PageID 3123.) Repairs were required to "straighten out [the] front frame section." (Id.) An October 14, 2002 inspection report noted that the "left front steer tire leaks," (D.E. 202-14 at PageID 3124), and a 2006 report recorded that "the truck lean[ed] hard to the left when loaded" (D.E. 202-16 at PageID 3126). In July 2013, it had been five years since the vehicle underwent a Department of Transportation ("DOT") inspection. (D.E. 202-17 at PageID 3127 & D.E. 202-18 at PageID 3128.) Also, in 2010, the last year for which there was a record, the front tire pressures were recorded as 100 psi, slightly below the recommended 110 psi. (D.E. 292-19 at PageID 3143 & D.E. 202-20 at PageID 3145.)

The concrete mixer sat unused for long periods of time between 1998 and 2013—the truck was not in use from March 2004 through May 2010 and again from May 2011 through May 2013. (D.E. 202-35 at PageID 3642.) During these times, the truck sat in a gravel yard, unprotected from the elements, with all its weight on the tires. (D.E. 202-26 at PageID 3221-22.) It was driven approximately 1,250 miles between January 2007 and the July 8, 2013 accident. (See D.E. 202-27 at PageID 3233 & D.E. 202-28 at PageID 3241.)

The parties offer competing theories for the cause of the tire's failure. Hankook's tire failure analysis expert, Joseph Grant, opined that the tire failed as a result of "a localized road hazard impact injury . . . and operation of the tire after the injury." (D.E. 202-10 at PageID 3115.) He further concluded that poor storage and usage conditions contributed to the failure.(Id.) Plaintiffs' experts, Troy Cottles and David Southwell, each identified alleged manufacturing defects, which they opined caused the tire's tread separation and failure. (D.E. 202-9 at PageID 3070; D.E. 202-29 at PageID 3284.) In his deposition, Cottles testified that the tire's tread depth was adequate and that the tire still had serviceable life. (D.E. 231-1 at PageID 7838.) Additionally, the experts concluded that the failure was not attributable to an impact, over-loading, over or under-inflation, or service conditions. (D.E. 231-2 at PageID 7949-50 & D.E. 231-6 at PageID 8158.)

Hankook has moved for summary judgment on Plaintiffs' claims for design defect, manufacturing defect, failure to warn, breach of warranty, and post-sale duty to warn, as well as their request for punitive damages. Cone and Frazier indicated in their response that they are no longer pursuing claims based upon design defect, breach of warranty, and post-sale duty to warn. Thus, Defendant's motion is GRANTED with respect to those claims, and the Court's analysis will be focused on the manufacturing defect and failure to warn claims and the demand for punitive damages.

III. SUMMARY JUDGMENT STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides in pertinent part that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The court must view all evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in the nonmoving party's favor. Ondo v. City of Cleveland, 795 F.3d 597, 603 (6th Cir. 2015). "There is a genuine issue of material fact only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)) (internal quotation marks omitted). "The test iswhether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. (citing Anderson, 477 U.S. at 251-52) (internal quotation marks omitted). The moving party must initially show the absence of a genuine issue of material fact. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). It is then incumbent upon the nonmoving party to "present significant probative evidence to do more than show that there is some metaphysical doubt as to the material facts to defeat the motion." Id. (internal quotation marks omitted).

IV. ANALYSIS

In cases based upon diversity, federal courts apply the law of the state in which the action is brought. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); see Richardson v. GlaxoSmithKline, 412 F. Supp. 2d 863, 868 (W.D. Tenn. 2006). Plaintiffs' claims against Defendant fall under the purview of the TPLA, codified at Tennessee Code Annotated sections 29-28-101 to -108. The Act defines a product liability claim as any action:

brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packaging or labeling of any product. "Product liability action" includes, but is not limited to, all actions based upon the following theories: strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent, or innocent; misrepresentation, concealment, or nondisclosure, whether negligent, or innocent; or under any other substantive legal theory in tort or contract whatsoever.

Tenn. Code Ann. § 29-28-102(6). An action may be maintained under the statute against "a manufacturer or seller of a product for injury to person or property caused by its defective or unreasonably dangerous condition." Tenn. Code Ann. § 29-28-103(a); Lake v. Memphis Landsmen, LLC, No. W2011-00660-COA-RM-CV, 2014 WL 895519, at *8 (Tenn. Ct. App. Mar. 7, 2014). Because the statute is interpreted in the disjunctive, "a plaintiff may establisheither that the product was defective or unreasonably dangerous at the time the product left the control of the manufacturer." Fulton v. Pfizer Hosp. Prods. Group, Inc., 872 S.W.2d 908, 911 n.1 (Tenn. Ct. App. 1993), app. denied (Feb. 28, 1994). Generally, the question of whether a product is defective or unreasonably dangerous is for the jury to decide. Sigler v. Am. Honda Motor Co., 532 F.3d 469, 484 (6th Cir. 2008), reh'g & reh'g en banc denied (Dec. 1, 2008).

"Defective condition" is defined under the TPLA as "a condition of a product that renders it unsafe for normal or...