10/10/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 24, 2017 Session
JESUS VIDAL RODRIGUEZ, ET. AL. v.
BRIDGESTONE/FIRESTONE NORTH AMERICAN TIRE, LLC., ET AL.
Appeal from the Circuit Court for Davidson County
No. 05C-1555 Thomas W. Brothers, Judge
___________________________________
No. M2013-01970-COA-R3-CV
___________________________________
This is an appeal from a jury verdict in favor of the defendants in a products liability
action arising out of a deadly vehicle crash in Mexico. The accident was allegedly
caused by a separation of the tire tread and resulting blow-out and vehicle rollover. The
decedent’s son, daughter, and mother brought suit against the manufacturers of the tire
and SUV. The case went to trial, and the jury returned a verdict in favor of the
defendants. Plaintiffs appeal an instruction the court gave the jury on contributory
negligence and several evidentiary rulings. Finding no reversible error, we affirm the
judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.
Steve North, Madison, Tennessee; Donald Capparella, Nashville Tennessee; and Richard
L. Denney, Norma, Oklahoma, for the appellants, Jesus Vidal Rodriguez and Daniela
Vidal Rodriguez.
A. Scott Ross and J. Isaac Sanders, Nashville, Tennessee; Stephen A. Marcum,
Huntsville, Tennessee; and Wade C. Crosnoe, Austin, Texas, for the appellees,
Bridgestone Firestone North American Tire, LLC, and Ford Motor Company.
OPINION
I. Factual and Procedural History
On September 27, 2000, Jesus Alfonso Vidal Ramirez was involved in a fatal
accident in the Mexican state of San Luis Potosi while driving a 1998 Ford Explorer
equipped with Firestone Wilderness AT tires.1 Mr. Vidal’s son Jesus Vidal Rodriguez,
Mr. Vidal’s daughter Daniela Vidal Rodriguez, and his mother Margarita Ramirez
Valenzuela Lamicq (collectively, “Plaintiffs”)2 filed suit against Bridgestone/Firestone
and Ford Motor Company (collectively, “Defendants”)3 on January 31, 2001 in Davidson
County Circuit Court. The suit was consolidated for pretrial purposes with 30 other suits
based on automobile accidents in Mexico involving Ford and Firestone products. In re
Bridgestone/Firestone, 138 S.W.3d 202, 204 (Tenn. Ct. App. 2003) perm. app. denied
(Tenn. June 1, 2004) (“Firestone I”).
Defendants moved to dismiss the cases under the doctrine of forum non
conveniens, which the trial court denied. Id. This Court granted Defendants’ application
for extraordinary appeal, id. at 205, considered the private interests and public factors to
be analyzed in determining whether to apply the doctrine of forum non conveniens, and
concluded:
In the present matter, all the deceased were from Mexico; all the
plaintiffs are from Mexico; the cars and tires at issue were purchased in
Mexico; the cars and tires at issue were serviced and maintained in Mexico;
the accidents all occurred in Mexico; and Mexican law will govern all
substantive issues. In short, the present litigation is of primary local interest
to Mexico, rather than Tennessee. The plaintiffs’ allegations of a
conspiracy involving Firestone are not sufficient to counterbalance
Mexico’s interest, as a sovereign nation, in deciding controversies that
involve its citizens and occur within its borders.
Id. at 210. We held that “the courts of Mexico provide[d] an available alternative
forum,” reversed the denial of the motion to dismiss, dismissed the case. Id. at 207, 210.
The Tennessee Supreme Court denied permission to appeal the Court of Appeal’s
decision. Plaintiffs refiled the case in Mexico, where it was dismissed for lack of subject
matter jurisdiction because the Defendants were not domiciled there.
1
We shall use the paternal surname of “Vidal” in reference to the decedent and his children, as did the
trial court and parties in the case.
2
Margarita Ramirez Valenzuela Lamicq died while the case was pending. In an agreed order entered
December 17, 2012, the following was announced:
All claims brought by or on behalf of Plaintiff Margarita Ramirez Valenzuela Lamicq are
hereby dismissed with prejudice. The only Plaintiffs asserting claims are the children of
Jesus Vidal Ramirez: Jesus Vidal Rodriguez and Daniela Vidal Rodriguez. Both are now
adults and assert these claims individually on their own behalf. Their mother, Elena
Maria Rodriguez Reyes, asserts no claim in this case.
3
Defendant Bridgestone Corporation was dismissed from the suit at Plaintiffs’ request, by order entered
September 17, 2012.
2
Plaintiffs refiled the suit in Davidson County on May 26, 2005, asserting causes of
action for negligence, strict liability, and violations of the Tennessee Consumer
Protection Act of 1977 as to Firestone and Ford and civil conspiracy and breach of
implied warranty of merchantability under the Uniform Commercial Code as to
Firestone, Bridgestone, and Ford. The complaint alleged that the accident occurred when
the tread on one of the tires separated, resulting in a blow-out and vehicle rollover.
Plaintiffs sought general damages in the amount of $10 million, special damages in the
amount of $1 million, pecuniary loss and loss of consortium in the amount of $5 million,
punitive damages in the amount of $10 million, and treble damages for violations of the
Tennessee Consumer Protection Act. The case was again consolidated with other cases
against the same Defendants.
Defendants moved to dismiss the case on the grounds of collateral estoppel,
arguing that the issue of forum non conveniens and the availability of Mexico as an
available alternative forum had been determined in their favor in Firestone I, and
accordingly, Plaintiffs were precluded from claiming that a Mexican forum was
unavailable. The trial court denied the motion and granted Defendants permission for an
interlocutory appeal. We granted the appeal and in In re Brigestone/Firestone, 286 S.W.
3d 898, 900 (Tenn. Ct. App. 2008) (“Firestone II”), determined that fairness dictated
reconsideration of the issue of the availability of Mexico as an alternate forum for
Plaintiffs claims. Id. at 909. We vacated the order denying the motion to dismiss and
remanded for the trial court to “consider whether the Plaintiffs acted in good faith in the
Mexican proceedings, whether the Mexican proceedings were manipulated to achieve
dismissal by the Mexican courts, and whether the Mexican court decisions are entitled to
recognition here.” Id. at 909.
On remand, discovery ensued in the consolidated cases, and the trial court held an
evidentiary hearing. On March 21, 2012, the court issued a 35-page opinion finding no
bad faith on the part of the Plaintiffs in this case and in 14 other cases; the court denied
the motion to dismiss as to those 15 cases. Defendants sought permission to appeal the
denial of their motion to dismiss; we denied their application, and this case proceeded to
trial.
Prior to trial, the court entered an order guiding further proceedings, holding:
The parties agree that the pertinent provisions of the Civil Code of San Luis
Potosi governing liability are found in Chapter Five, Article 1746 of the
SLP Civil Code which states:
[Provision of the Code in Spanish Omitted]
CHAPTER V
Regarding the obligations arising from wrongful acts
3
ART. 1746 - He who acting unlawfully or against good
customs causes damage to another, is obliged to repair, unless
he proves that the damage was the result of inexcusable
negligence or fault of the victim.
Plaintiffs allege the following causes of action against both Defendants in
their complaint:
1. Negligence (Counts I and IV);
2. Strict Liability (Counts II and III);
3. Civil Conspiracy (Count V);
4. Violation of the Tennessee Consumer Protection Act (Count VI);
5. Breach of Implied Warranty of Merchantability Under U.C.C. (Count
VII); and
6. Punitive Damages (Paragraphs 51-61).
Defendants argued in their earlier briefs that there were essentially six (6)
distinctions between the law of San Luis Potosi and Tennessee:
1. Mexican law does not provide a cause of action for strict liability against
manufacturers, designers, or sellers of allegedly defective products.
2. Mexican law provides a warranty claim, but the damages are limited to
the replacement of the product or refund, in whole or in part, of the
purchase price.
3. Under Mexican law, Plaintiffs material damages will be limited to four
times the minimum daily wage for 730 days plus two months of salary for
funeral expenses.
4. Under Mexican law, the decedent’s estate cannot recover moral damages
on behalf of the decedent.
5. The purpose of moral damages is to compensate a plaintiff for injury to
his integrity. Punitive damages are not permitted under Mexican law.
6. Mexican law does not permit recovery for damages already paid by a
collateral source, such as insurance proceeds.
Of these six points, four relate to damages. The two points dealing with
liability are conceded by Plaintiffs. The parties agree that in this case:
• There is no cause of action under SLP law for strict liability;
• Plaintiffs are not pursuing a distinct claim based on breach of warranty;
• The Tennessee Consumer Protection Act has no application in this action
since it involves a death; and
• They agree that punitive damages are unknown in Mexican law.
4
The order concluded that “[t]he gravamen of Plaintiffs’ claim is that Defendants breached
their duty of care in the design, manufacture and marketing of the tires in question
resulting in the creation of unsafe tires and vehicles” and in “conspir[ing] to conceal the
unsafe nature of the tires and their suitability for use on Ford vehicles.” Trial began on
January 28, 2013, and lasted for several weeks.
Plaintiffs called eighteen witnesses to testify live or by video deposition: Charles
White, former head of Ford light trucks; Francis Figliomeni, an engineer with Firestone
working in the advanced tire engineering department; David Renfroe, an expert in vehicle
dynamics during a tire tread separation; Richard Bond, Ford’s test driver; Officer Erick
Quintero, the police officer who investigated the decedent’s accident; Troy Dehne, an
employee of Ford; William Clay Ford, former Chief Executive Officer of Ford Motor
Company; Thomas Baughman, who testified that he was “an engineering director for
Ford Trucks” and in late 2000, was “on special assignment at World Headquarters
leading the Firestone team effort in terms of investigation of the Firestone Explorer
concern” and at the time of trial, was Ford’s executive director of product development;
Dennis Carlson, Plaintiff’s expert in tire failure analysis; Elena Maria Rodriguez, the
decedent’s ex-wife; Daniela Vidal Rodriguez; daughter of the decedent; Jesus Vidal
Rodriguez, son of the decedent; Jorge Gonzales, president of Bridgestone/Firestone of
Mexico; Lisa Klein, Executive Director for Global Vehicle Procurement for Ford Motor
Company; Alfonso Vidal Ramirez, brother of the decedent; Alejandro Espinoza
Alvarado, a witness to the scene of the accident; Jacques Nasser, President and CEO of
Ford Motor Company; and John Lampe, former CEO of Bridgestone/Firestone.
At the close of Plaintiffs’ proof, Defendants moved for a directed verdict, which
the court granted in part, dismissing Plaintiffs’ claims based on civil conspiracy. In their
case in chief, Defendants called five witnesses: Donald Frank Tandy, Jr., an expert in
vehicle dynamics and crash reconstruction; Brian Queiser, who was involved in the
design of the tire at issue; Allen Powers, a mechanical engineer and accident
reconstructionist; Robert Pascarella, a mechanical engineer who works at Ford; and
Joseph Grant, engineer and wheel consultant.4
At the close of trial, Defendants renewed their motion for a directed verdict,
asserting additional grounds. The court granted the motion with respect to the claims of
gross negligence and liability based on failure to warn; in all other respects, the motion
was denied. The jury returned a verdict finding neither Defendant to be at fault, and
judgment was entered on the jury verdict. Plaintiffs filed a motion for a new trial, and
after a hearing, the court denied the motion.
4
No party has cited to evidence that any of the experts were not properly qualified. As no party has
challenged the qualification of any witness as an expert, unless otherwise noted we presume that each
expert was properly qualified to give opinions as to the subject matter on which each testified.
5
Plaintiffs appeal and raise two issues for our review:5
1. Whether the trial court committed cumulative reversible error with certain
evidentiary rulings.
2. Whether the trial court committed reversible error by instructing the jury on
contributory negligence.
Defendants raise the following issue: “. . . [W]hether this case should have been
dismissed before trial based on the collateral estoppel effect of this Court’s 2003 forum
non conveniens decision.”
II. DISCUSSION
At the outset of our analysis, we note that Plaintiffs have identified two issues for
review; within the first issue in the argument portion of their brief, they discuss nine sub-
issues, each of which requires a cross-reference to a paragraph in a portion of their brief
which they have called the “Statement of Material Facts.” Many of the citations to the
record in both the “Statement of Material Facts” and the argument portion of their brief
are not in compliance with Rule 27(a)(6), (7)(A), and (g) of the Rules of Appellate
Procedure, as well as Rule 6(a)(1), (b) of the Rules of the Tennessee Court of Appeals.
Rather than making an “appropriate” reference to the page(s) at which the evidence at
issue was identified, offered, and received or rejected or which otherwise serves as the
basis for Plaintiffs’ claim of error, Tenn. R. App. P. 27(g), many citations are to
voluminous spans (sometimes hundreds) of pages in the transcript.
The record in this case consists of 79 volumes of technical record; 44 volumes of
transcripts of hearings, pretrial rulings, and the trial; 20 DVDs of the pretrial proceedings
and trial; 14 volumes of depositions; 648 exhibits; and 29 sealed volumes. As we noted
in England v. Burns Stone Co., Inc., “This Court is not under a duty to minutely search a
voluminous record to locate and examine matters not identified by citation to the record.
. . . Parties cannot expect this Court to do the work of counsel.” 874 S.W.2d 32, 35 (Tenn.
Ct. App. 1993) (citing McReynolds v. Cherokee Insurance Co., 815 S.W.2d 208 (Tenn.
Ct. App. 1991). We have endeavored to conduct our analysis and resolution of this
appeal within the confines of the challenges presented by Plaintiffs’ brief.
5
Prior to the parties filing briefs, all proceedings were stayed by this Court pending the resolution of In
Re Bridgestone/Firestone, 495 S.W.3d 257 (Tenn. Ct. App. 2015), perm. app. denied Nov. 24, 2015, and
the stay was later extended pending the resolution of Torres, et al. v. Bridgestone/Firestone North
American Tire, LLC, et al., 498 S.W.3d 565 (Tenn. Ct. App. 2016), perm. app. denied (Tenn. Aug. 18,
2016). Upon the resolution of both cases, the stay was lifted.
6
A. Evidentiary Rulings
1. “Golden Rule” Argument6
Plaintiffs first contend that the court erred in denying their motion for mistrial,
which they made following these comments by Ford’s counsel during closing arguments:
. . . [A] lot of this stuff is based on expert testimony. And then you have to
sort of look at the expert testimony and evaluate what you think of it. The
question of whether or not Mr. Vidal was negligent because of the five
punctures and six repairs, there are no experts on that.
You guys all drive cars. You all maintain cars. This is all common
sense.
So the question being asked of you with respect to that question is
really very straightforward, and it doesn’t require any expert testimony.
The question being asked of you is the same one that Mr. Carlson opined
on: Would you want your family driving around in a car that had a tire that
had six -- five punctures in it? That’s it. If the answer is it’s okay, it’s fine,
then it probably isn’t negligence.
[Counsel for Plaintiffs]: Your Honor, I object. May I approach the bench?
Following the objection, arguments were made at the bench, during which counsel
clarified that he objected based upon his belief that opposing counsel was not “allowed to
do that, to ask the jury to put themselves in the position of the plaintiff.” The court then
dismissed the jury, reviewed the video recording of the statements of counsel, and
sustained the objection. The following colloquy then occurred:
MR. DENNEY: Your Honor, . . . I need to ask for a mistrial for the record
or special instruction.
THE COURT: What’s the special instruction you’d like?
MR. DENNEY: That the jury be instructed that it’s improper to ask them to
do that, and they should disregard that statement, in a conclusory statement
from the Court.
THE COURT: I’ll be glad to give a limiting instruction. I don’t think it’s
such a severe violation that it mandates a mistrial. The request for mistrial
is respectfully denied. But I will give a limiting instruction.
6
This issue addresses Plaintiffs’ motion for a mistrial. Though Plaintiffs characterize this as an
evidentiary matter in their brief on appeal, the decision on the motion for mistrial was based upon the
argument of counsel, which is not a matter of evidence. In any event, we review the ruling denying the
motion under the abuse of discretion standard, as is also applied to our review of evidentiary rulings.
7
After the jury retuned, the court gave the following instruction:
Ladies and gentlemen, I need to give you a limiting instruction. Right as we
broke, you heard as part of the argument with – [Counsel for Defendant]
inadvertently asked you to put yourself in a position of someone doing this
or that. That’s an improper argument, and I sustained the objection to that.
You’re not permitted to do that. That’s not what you’re called on to do.
You’re here as judges of the facts on it.
The objection is sustained.
Plaintiffs contend that the trial court erred in overruling the motion for mistrial,
arguing that the statements made were a golden rule argument, which “comes about when
counsel asks the jury to put itself in the place of the plaintiffs, and such is error.” Miller v.
Alman Const. Co., 666 S.W.2d 466, 468 (Tenn. Ct. App. 1983).
“Whether to grant a mistrial is a decision left to the discretion of the trial court.”
Teague v. Kidd, No. E2016-01995-COA-R3-CV, 2017 WL 2299059, at *4 (Tenn. Ct.
App. May 25, 2017) (citing Hunter v. Ura, 163 S.W.3d 686, 699 (Tenn. 2005);
McCullough v. Johnson City Emergency Physicians, P.C., 106 S.W.3d 36, 47 (Tenn. Ct.
App. 2002)). We will only reverse a discretionary judgment of a trial court if it is
apparent that the “‘decision was against logic or reasoning, and caused an injustice or
injury to the party complaining.’” Id. (quoting McCullough v. Johnson City Emergency
Physicians, P.C., 106 S.W.3d 36, 47–48 (Tenn. Ct. App. 2002) and citing Tenn. R. App.
P. 36(b). The burden of establishing the need for mistrial lies with the party that seeks it.
Id. (citing State v. Moss, No. M2014-00746-CCA-R3-CD, 2016 WL 5253209, at *24
(Tenn. Crim. App. Sept. 21, 2016), perm. app. denied, (Tenn. Jan. 19, 2017)). This Court
addressed a similar issue in Doochin v. U.S. Fid. & Guar. Co. and held:
Where the trial judge overrules a motion for a new trial based on improper
argument, this court has required a new trial only where it felt that the
argument was “unwarranted and made for the purpose of appealing to
passion, prejudice and sentiment, which cannot be removed by the trial
judge’s sustaining an objection of opposing counsel, or unless we
affirmatively find that such argument affects the results of the trial.” Guess
v. Maury, 726 S.W.2d 906, 913 (Tenn. App. 1986). The appellate courts
have been more inclined to reverse the judgment where counsel’s
misconduct has been persistent. See English v. Ricks, 117 Tenn. 73, 78, 95
S.W. 189, 190 (1906); Prewitt-Spurr Mfg. Co. v. Woodall, 115 Tenn. 605,
609, 90 S.W. 623, 624 (1905).
854 S.W.2d 109, 116 (Tenn. Ct. App. 1993).
8
The trial court sustained the objection to the argument, admonished counsel, and
gave a curative instruction as requested by Plaintiffs. From our review of the entire
closing argument made by Ford’s counsel, we do not discern any evidence that these
remarks were made for the purpose of appealing to passion, such that the judgment was
affected or warranted a mistrial. The curative instruction was sufficient, and we find no
abuse of discretion in the court’s overruling the motion for mistrial.
We now turn to the eight evidentiary rulings Plaintiffs contend were error.
Decisions regarding the admission or exclusion of evidence are entrusted to the
trial court’s discretion and will not be disturbed on appeal unless the trial court abused its
discretion. State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008) (citing State v. Robinson,
146 S.W.3d 469, 490 (Tenn. 2004); State v. James, 81 S.W.3d 751, 760 (Tenn. 2002).
An abuse of discretion occurs when the court applies incorrect legal standards, reaches an
illogical conclusion, or employs reasoning that causes an injustice to the complaining
party. Banks, 271 S.W.3d at 116 (citing Konvalinka v. Chattanooga–Hamilton County
Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)). When we review the trial court’s
exercise of discretion, we presume that the court’s decision is correct and review the
evidence in a light most favorable to upholding the decision. Lovlace v. Copley, 418
S.W.3d 1, 16-17 (Tenn. 2013) (citing Gonsewski v. Gonsewski, 350 S.W.3d 99, 105
(Tenn. 2011)). As noted in White v. Vanderbilt University:
Appellate courts will set aside a discretionary decision only when the trial
court has misconstrued or misapplied the controlling legal principles or has
acted inconsistently with the substantial weight of the evidence. Thus, a
trial court’s discretionary decision should be reviewed to determine: (1)
whether the factual basis for the decision is supported by the evidence, (2)
whether the trial court identified and applied the applicable legal principles,
and (3) whether the trial court’s decision is within the range of acceptable
alternatives. Appellate courts should permit a discretionary decision to
stand if reasonable judicial minds can differ concerning its soundness.
…The erroneous exclusion of evidence will not require reversal of the
judgment if the evidence would not have affected the outcome of the trial
even if it had been admitted.
21 S.W.3d 215, 222-23 (Tenn. Ct. App. 1999). With this deferential standard in mind,
we proceed to examine the rulings that Plaintiffs contend were error.
2. Limitation on Evidence of the Alleged Civil Conspiracy to Dates
Prior to the Sale of the Explorer to Mr. Vidal
Plaintiffs contend that the court erred in making the following ruling:
9
And so the proof that’s going to be introduced on this failure to warn
or conspiracy is going to be limited, then, to proof of notice pre-July 31,
1998 and conspiracy not to warn pre-July 31, 1998. And in the event I do
allow postsale events or incidents to come in as proof of the nature of the
defect itself, I think it’s appropriate to give a limiting instruction at that
time that it cannot be considered by the jury for purposes of determining
failure to warn or any kind of conspiracy.
Plaintiffs argue that the ruling limited their ability to put on proof of the Defendants’
negligence in failing to warn the decedent by excluding records of Ford and Firestone
“generated between the dates corresponding to the sale of the subject vehicle and the
subject accident, making the linchpin of Plaintiffs’ case the Defendants’ post-sale duty to
warn Mr. Vidal of the perilous defects in the subject vehicle/tire combination.”
Plaintiffs assert that “in pretrial briefing . . . [they] proffered voluminous evidence
. . . in support of their civil conspiracy claim”; they do not, however, cite us to an attempt
to introduce these records or proffer them as exhibits at trial.7
In the complete ruling, the court explains its reasoning and that it ruled after
determining that “postsale duty to warn is not recognized as a separate tort action in
Tennessee” and that “[t]here is no proof that’s been submitted to me that such a theory of
recovery has ever been adopted by any Court in San Luis Potosi or from any other state
of Mexico or in the federal courts of Mexico.” Considered in this context, the ruling was
proper. This case was governed by the law of the Mexican State of San Luis Potosi, and
Plaintiffs do not challenge the decision that the law of San Luis Potosi applies8 or that
San Luis Potosi law does not recognize a post-sale duty to warn consumers about alleged
7
As to this issue, in their brief, they cite to 200 pages of their response to Defendants’ omnibus motion in
limine, with exhibits; this is not an “appropriate” citation within the meaning of Rule 27 of the Tennessee
Rules of Appellate Procedure. Neither are Plaintiffs’ two other citations relative to this issue helpful.
Plaintiffs’ citations in the “Statement of Material Facts” are to three pages of the record containing
“Plaintiffs’ Designation of Deposition Testimony and Exhibits Subject to the Protective Order.” The
three-page designation recites that it was filed “in compliance with the Court’s Order” but no other
background information is provided and consists of designations to portions of Mark Tippett’s deposition.
Nowhere do Plaintiffs cite to the location in the record of the deposition of Mark Tippett, but they assert
that the “relevant excerpts” of that testimony were reproduced “for the Court’s convenience” in the
appendix to their brief. The appendix, however, does not contain any excerpts from Mr. Tippett’s
deposition; rather, the appendix pages contain testimony and exhibits from the deposition of Lisa Klein.
Ms. Klein testified in her deposition that by 1997 Ford was aware of the fact that several Explorers had
turned over unexpectedly as a result of a tire explosion and that Ford conducted investigations and took
action.
8
In Firestone I, this Court concluded that “Mexican law will govern all substantive issues” in the
consolidated cases at issue, including the one at bar. Firestone I, 138 S.W.3d at 210; see also Torres, 498
S.W.3d at 577.
10
product defects; accordingly, evidence relating to the Defendant’s post-sale conduct was
irrelevant and therefore inadmissible. The court did not abuse its discretion by limiting
the evidence of the alleged conspiracy to the period prior to the date of the purchase of
the SUV.
Further, because the law of San Luis Potosi applies, the Plaintiffs’ arguments
relating to the Federal Motor Vehicle Safety Act are without merit.
3. Evidence of Design Defect Recalls
Plaintiffs contend in their “Statement of Material Facts” that:
The trial court refused to allow Plaintiffs, on cross-examination, to show that
over 14 million Firestone tires were taken out of service due to design
defects in order to rebut the direct testimony of defense expert Joseph
Grant[9] that design defects in Bridgestone/Firestone tires “are extremely
rare.”
Plaintiffs’ counsel attempted to use a report of tire recalls printed out from the
National Highway and Traffic Safety Administration (“NHTSA”) website to aid in cross
examination of Mr. Grant, leading to the following:
Q. Yesterday you told this jury that design defects in manufactured tires are
extremely rare events, that because of the standards that are out there these
days and the way the companies operate, design defects in lines of tires are,
in your words, “extremely rare”; is that correct?
A. Yes.
Q. Now, Mr. Grant, if you had gone to the public information available on
the NHTSA website, you would have found out that’s not a true statement,
wouldn’t you?
Before the witness could answer, Defendants’ counsel objected on numerous grounds
including lack of foundation, unfair prejudice, and hearsay. The court excused the jury
and Mr. Grant from the courtroom and heard the arguments of counsel about the NHTSA
report, at the end of which the court ruled that the report could be used to attempt to
impeach Mr. Grant in accordance with Rule 618 of the Tennessee Rules of Evidence.10
9
Mr. Grant testified that he is a mechanical engineer who worked as a tire engineer for Continental Tire
prior to retiring in 2005 and currently works as a consultant providing “forensic analysis of tires that have
failed in service.”
10
Rule 618 reads:
To the extent called to the attention of an expert witness upon cross-examination or relied
11
After the jury and witness returned to the courtroom, the examination continued.
Mr. Grant stated that he was familiar with the NHTSA annual report on defects and
recalls and “pay[s] quite a bit of attention to it,” but that he would not agree that the
report demonstrated that his prior statement about the rarity of design defect recalls was
incorrect. The colloquy at issue follows:
Q. And looking at this report, will you acknowledge to the jury that your
statement up here about it being rare is not correct because there are many
recalls of millions and millions of tires out there?
A. I totally disagree with you, sir.
[PLAINTIFFS’ COUNSEL]: Move for admission, Your Honor, as a
trial exhibit.
THE WITNESS: You are -- I disagree with you.
[PLAINTIFFS’ COUNSEL]: I’d like to move for admission of Trial
Exhibit 2973, Your Honor. May I pass you a copy?
[DEFENDANTS’ COUNSEL]: Your Honor, lack of foundation as
well as objections on 403 in the Court’s rulings pretrial. It’s also hearsay.
The court excused the jury and permitted the witness to be further questioned, during
which Plaintiffs’ counsel examined Mr. Grant further:
Q. Okay. Look for me, if you will, please, at the 2000 time frame, the 2001
time frame?
A. Okay.
Q. And look also at the 2008 time frame.
A. Okay.
Q. And when you look at that, can you and I agree that many of those are
numbers in the hundreds of thousands, have to be when you do the math?
A. Well, those are a couple of isolated situations, and if you average those
you might get into that. And then you have to look at the specifics.
Q. Have been across an entire line of tires, or at the very least, a large
product of tires, fair?
upon by the witness in direct examination, statements contained in published treatises,
periodicals, or pamphlets on a subject of history, medicine, or other science or art,
established as a reliable authority by the testimony or admission of the witness, by other
expert testimony, or by judicial notice, may be used to impeach the expert witness’s
credibility but may not be received as substantive evidence.
Tenn. R. Evid. 618. This Court has previously noted that “[i]n light of the qualifications and process by
which a witness may be permitted to testify as an expert, it is appropriate that requirements of equal
dignity be imposed on the material used by a party seeking to impeach that expert’s credibility.” Russell
v. Illinois Cent. R.R. Co., No. W2013-02453-COA-R3-CV, 2015 WL 4039982, at *9 (Tenn. Ct. App.
June 30, 2015), perm. app. denied (Nov. 25, 2015)
12
A. It’s – it’s possible. It’s speculation, though. When you look at this as an
aggregate, from a tiring engineering perspective and having reviewed these
on a yearly basis, the vast majority of these manufacturing issues, the
design issues on this list are extremely small, extremely rare.
Q. Some of those manufacturing issues involve the things you talked about
up there, problems with chemistry, problems with processes, correct?
A. Those are not -- but from a manufacturing standpoint, not from a design
standpoint.
Q. Please answer my question so we save some time.
A. Well, I can answer the question, but I have to put it in the proper
context. The - - . . . You’re asking – you’re trying to convey that when I
talk about design issues from a chemistry standpoint, a testing standpoint or
an engineering standpoint, from a design standpoint, you are trying to, then,
to convert that into manufacturing, engineering and chemistry. Those are
two separate things. Two separate things.
These are by far manufacturing issues. The design issues on this list
are extremely rare.
Q. Do you not consider the design process to be whether or not the tire is
susceptible to problems with those things?
A. It depends upon the situation, depending on whether you’re talking
about it from a design standpoint or something that got changed or altered
or not done correctly from the manufacturing standpoint. They’re two
separate issues.
Q. You talked about checks and reviews, testing and design here. The
checks and reviews include the kind of adjustment data and material that
the NHTSA has when they bring about a recall or a manufacturer on
themselves brings about a recall, correct?
A. I’m sorry. I don’t understand that long question.
Q. Your -- your statement to this jury was in an era where there are so
many people involved with the design process -- engineers, chemists, and
checks and reviews and testing and design, it’s those very checks, reviews
and testing that lead, usually, to the manufacturer and/or NHTSA doing a
recall, correct?
A. No. I disagree.
At this point, Plaintiffs’ counsel ended the voir dire, and the court sustained defense
counsel’s objection, holding:
[T]hese [reports] just simply show they were recalls. The witness did
acknowledge that he relies upon this type of data, but there’s no – nothing
specific in this that indicates it’s a design defect to be used as an
impeachment for him. He was asked the question where he felt that this
showed he was in error in his statement. I’m afraid you’re going to have to
13
take his answer on that.
So I sustain the objection. However, I will receive [the NHTSA
report marked for identification as Number] 2973 for identification
purposes only as your offer of proof.
Plaintiffs contend that the trial court erred in sustaining the objection, which had the
effect of preventing them from rebutting the testimony of Mr. Grant that design defects in
tires are “extremely rare.” They argue that his testimony “opened the door to any and all
proof that contradicted his claim.”
We respectfully disagree. Rule 618 allows an expert witness to be cross examined
with information of the sort used by Plaintiffs here. Mr. Grant, however, did not
acknowledge that the report addressed the same type of defect about which he had
testified; rather, he explained that the report largely addressed a different matter
altogether — manufacturing defects. In light of his testimony, the court’s comment that
“you’re going to have to take his answer on that” was correct, and sustaining the
objection to the use of the report and not permitting it to be received as substantive
evidence was in accord with Rule 618 and not an abuse of discretion.
4. Evidence of Other Similar Incidents
Plaintiffs take issue with three rulings related to other similar incidents involving
the Ford Explorer and Firestone tires during the testimony of two of its witnesses. We
quote Plaintiffs’ contentions verbatim:
The trial court (a) ruled that Dr. Renfroe could refer to the 71 other similar
incidents (“OSIs”) in Plaintiffs Exhibit 2944A (Tr. Ex. 2944A, filed Feb.
26, 2013, Volume 4) only in the most general of terms without going into
the details of those incidents but (b) allowed Defendants to refer to such
nebulous OSI numbers as 2.8 and 14.9 million without being held to the
same standard of substantial similarity (Trans. Vol. 99, pp. 15-112; Trans.
Vol. 110, pp. 105-7; Trans. Vol. 124, p. 150) and (c) confined Plaintiff
expert Dennis Carlson’s Venezuelan OSI testimony to American-made tires
(Trans. Vol. 106, pp. 66-138).
With respect to subsection (a), Plaintiffs cite to Exhibit 2944A11 and nearly 100
pages of the voir dire of Dr. Renfroe. This citation does not specifically direct us to the
ruling at issue or to the evidence that Plaintiffs contend was admitted or excluded in
11
Exhibit 2944A, which was received by the trial court for identification purposes only, is an 11-page
document containing two spreadsheets. Both compiled similar data in columns titled: “Plaintiff/Claimant”
or “Case Name”; “Accident Date” or “Incident Date”; “Vehicle” or “Vehicle Model”; “Tire”; “DOT”;
“VIN”; “Injured”; “Fatality”; and for the first spreadsheet, “Plaintiff Attorney.”
14
error. These citations do not comply with Rule 27(a)(6), (7)(A), and (g) of the Rules of
Appellate Procedure, as well as Rule 6(a)(1), (b) of the Rules of the Tennessee Court of
Appeals. In this instance, however, aided by the Defendants’ brief, we have examined
the record and determined that the ruling of which Plaintiffs complain is the following:
What we’ve got first on the 2944(A) list of 79 purported other
similar incidents, I think that the references to the tire, the attorneys, the
DOT numbers, the number of people injured or fatalities all would clearly
be irrelevant and should be redacted, but more importantly, I can’t see how
this list can come in as substantive proof with this witness in any form or
fashion.
Dr. Renfroe will be permitted to testify in general terms on these 79
OSIs that he has relied upon information that he has been provided of what
he considers to be similar incidents, and I think he’s laid a sufficient
foundation that he’s done enough research into this list to convince himself
that he believes there’s a sufficient similarity that he should consider them.
But I think that it would be unfairly prejudicial and confusing, under 403,
to allow this to come in in front of the jury and be revealed to them in any
form or fashion other than the most general statement that, I’ve seen some
other information, I’ve looked at it, and -- I do think that the witness should
be permitted to say that he’s seen 79 -- the number is appropriate. He can
say he’s seen 79 what he considers to be other similar incidents that he
believes supports his opinion, and that’s it.
Now, if Defendants want to go into it, you can. If you want to quiz
him about it, you certainly can go into the details of it, but if you go into the
details of this with him, then, Mr. Denney [Plaintiffs’ counsel], you will
have opportunity on redirect to go into the details of why these appear to be
substantially similar incidents.
With respect to (b), Plaintiffs assert that the court erred in “allowing Defendants to
refer to such nebulous OSI numbers as 2.8 and 14.9 million without being held to the
same standard of substantial similarity.” Again, Plaintiffs’ citations to the record do not
direct us to any testimony of Defendants’ witnesses but, rather, direct us to a remark
made in closing argument by defense counsel and also to a request by Plaintiffs’ counsel,
during a jury-out portion of the redirect examination of Plaintiffs’ expert Dennis Carlson,
for a “withdraw instruction on the comments of 14.9 million tires and 9 million tires.”
Plaintiffs’ brief provides no context for this request, and the context is not apparent from
the colloquy between court and counsel cited by the Plaintiffs. Additionally, to the extent
pertinent, the comment in the closing argument was not objected to by Plaintiffs’ counsel.
While Defendants’ brief contains references to testimony of Donald Tandy, Robert
Pascarella, and Brian Queiser relative to 2.8 million tires sold and 14.9 million Explorers
produced, we do not assume that this is the evidence which Plaintiffs contend was
admitted in error.
15
With respects to parts (a) and (b), we have attempted to comprehend Plaintiffs’
argument despite the lack of adequate citations and in light of the legal authority upon
which Plaintiffs rely but are unable to do so. Accordingly, we deem these issues waived.
Tenn. R. App. P. 27(a)(7); see also Sneed v. Bd. of Prof’l Responsibility of Supreme
Court, 301 S.W.3d 603, 615 (Tenn. 2010) (noting that “[i]t is not the role of the courts,
trial or appellate, to research or construct a litigant’s case or arguments for him or her,
and where a party fails to develop an argument in support of his or her contention or
merely constructs a skeletal argument, the issue is waived.”).
With respect to subpart (c), Plaintiffs argue that the trial court erroneously
“confined [Mr.] Carlson’s Venezuelan OSI testimony to American-made tires.” Plaintiffs
cite to 72 pages of the transcript of a jury-out hearing on the potential testimony of
Dennis Carlson, necessitated by the court’s instruction that it “want[ed] to hear Mr.
Carlson talk about why these tires are similar.” Plaintiffs do not cite to specific testimony
or offers of proof within the 72 pages; however, the ruling at the end of the citation is:
. . . Now, what I am concerned with, and I do not find it’s been shown, that
he has shown there is substantial similarity to the Venezuelan-constructed
tires, and any testimony based upon Venezuelan OSIs has to be confined to
those in which it’s clearly shown that the tire involved was an American-
made tire.
We have reviewed the testimony in its entirety and note that Mr. Carlson agreed
that “[his] testimony here today does not go to the differences between the Venezuelan-
manufactured-and-sold P255/70R16 tires and the Vidal tire”; clarified that he was not
offering an opinion on the substantial similarity between the Venezuelan-made tire and
the Wilderness AT, which was made in the United States; and agreed that he was aware
that there were numerous differences in the components, material and compounds
between those tires. This testimony was responsive to the court’s question and
demonstrates that Mr. Carlson could not offer testimony about the similarities between
the two types of tires. We find no abuse of discretion in limiting Mr. Carlson’s testimony
to incidents involving similar (i.e., American-made) tires.
5. Expert’s Opinions on Ethical Matters
In their “Statement of Material Facts,” Plaintiffs state:
The trial court (a) excluded the testimony of Plaintiffs’ expert David
Renfroe, Ph.D. regarding ethics and conspiracy (Trans. Vol. 100, pp. 153-
9) (b) disallowed Dr. Renfroe’s opinion whether, from an engineering
standpoint, a manufacturer should accept the risk of rollover or redesign the
vehicle to eliminate the defect causing same (Trans. Vol. 101, p. 81) and (c)
precluded Plaintiffs’ expert Dennis Carlson from opining whether Firestone
16
should have issued a public warning about its tires (Trans. Vol. 108, pp.
121-3).
Plaintiffs argue that “[b]ecause misbehavior may only be fully exposed by contrasting it
to the ideal, Dr. Renfroe’s testimony regarding engineering ethics was vital under Tenn.
R. Evid. 702 to provide context for Plaintiffs’ civil conspiracy case.”
A party challenging the exclusion of evidence must make an offer of proof to
enable the reviewing court to determine whether the trial court committed reversible error
by excluding the proffered evidence. Tenn. R. Evid. 103(a)(2); Dossett v. City of
Kingsport, 258 S.W.3d 139, 145 (Tenn. Ct. App. 2007). The first citation to the record in
Plaintiffs’ “Statement of Material Facts” is to part of a jury-out hearing on the scope of
Dr. Renfroe’s testimony; no actual or proffered testimony of Dr. Renfroe’s is in this
portion of the transcript. The second citation is to testimony of Dr. Renfroe which ends
with an objection by defense counsel that the question asks for an answer “beyond this
witness’s competence”; the objection is sustained. Plaintiffs do not cite to an offer of
proof as to what Dr. Renfroe’s testimony would have been. Without such an offer of
proof, there is nothing for us to review. See Austin v. City of Memphis, 684 S.W.2d 624,
628 (Tenn. Ct. App. 1984) (noting that “[w]here excluded testimony is not preserved in
the record, the appellate court cannot consider an issue relating to the exclusion of
same.”).
With respect to Mr. Carlson, while Plaintiffs include a reference to his testimony
in the above quoted portion of their brief’s “Statement of Material Facts,” in the
argument section, they only refer to the testimony of Dr. Renfroe. Accordingly, as there
is no argument to support Plaintiffs’ position that Mr. Carlson’s testimony was
wrongfully excluded, we deem any issue with respect to Mr. Carlson’s testimony on
ethical matters to be waived. See, e.g., Tenn. R. App. P. 27(1)(7)(A); Bean v. Bean, 42
S.W.3d 52, 56 (Tenn. Ct. App. 2000) (noting that “an issue is waived where it is simply
raised without any argument regarding its merits”); Murray v. Miracle, 457 S.W.3d 399,
403 (Tenn. Ct. App. 2014).
6. Evidence of Spacers, Outboard Shock Absorbers, and a Ford
Advertisement
Plaintiffs complain of the ruling excluding evidence they sought to introduce
through Dr. Renfroe relating to the NHTSA’s “fishhook” testing of Explorers and other
vehicles after 200312; of Ford’s robot rolled steering test with two different versions of
the Explorer’s design; and of an advertisement run after 2000 by Ford Motor Company to
12
No party explains in their brief what a “fishhook” test is, and none of the citations to the record
regarding this issue contains an explanation.
17
show that “Ford moved to outboard the shocks on the F150 pickup and ran ads bragging
that it prevented tramp in the rear.” These matters were taken up during a jury-out
hearing requested by Plaintiffs, and the Defendants’ objections on the grounds of hearsay
and improper redirect were sustained.13 Plaintiffs argue that the evidence was admissible
because “[t]he specific improvements demonstrated by Plaintiffs’ expert reflected ‘the
state of scientific and technological knowledge available to the manufacturer’ and ‘the
customary designs, methods, standards and techniques of manufacturing, inspecting, and
testing by other manufacturers or sellers of similar products’ at the time the subject
vehicle was placed on the market” (quoting Brown v. Crown Equip. Corp, 181 S.W.3d
268, 281-82 (Tenn. 2005).
In State v. Barnard, the Tennessee Court of Criminal Appeals discussed the
discretion afforded the trial court in managing the presentation of testimony:
The admissibility of testimony and other evidence as well as the
scope of redirect examination is within the sound discretion of the trial
court, which will not be reversed absent an abuse of that discretion. State v.
Banks, 564 S.W.2d 947, 949 (Tenn. 1978); State v. Elrod, 721 S.W.2d 820,
823 (Tenn. Crim. App. 1986). Furthermore, it is within the discretion of
the trial court to allow a party on redirect examination to supply testimony
omitted by oversight, or to clarify testimony given on direct examination,
or, where the facts thus developed are not inconsistent with his previous
answers to ask a witness to expand his testimony. 98 Corpus Juris
Secundum, Witnesses, § 419, at 223.
899 S.W.2d 617, 624 (Tenn. Crim. App. 1994).
Plaintiffs do not explain how the evidence of these tests would corroborate the
testimony of Dr. Renfroe about the improvements or state of scientific and technological
knowledge available at the time the product was placed on the market. They do not argue
13
Defendants objected to Plaintiffs’ attempt to introduce evidence of the NHTSA’s “fishhook” testing of
Explorers and other vehicles after 2003 on the grounds of hearsay and improper redirect because the
testing had not been discussed on cross examination. The trial court sustained the objection. Defendants
also objected to Plaintiffs’ attempt to introduce evidence of Ford’s robot rolled steering test on the
grounds of improper redirect because such testing was not discussed in cross examination and on the
ground of hearsay. The court sustained the objection. With respect to the advertisement run by Ford,
Defendants objected on the ground of improper redirect, hearsay, and a violation of a motion in limine.
The trial court sustained the objection, noting that:
I will put one asterisk to that; and, that is, it may be an appropriate area of questioning to
a Ford witness. As to this witness, however, there is no showing that this was something
he relied on as a basis of his opinion. And I do agree, the contents would be hearsay at
this point. This would be an inappropriate witness to introduce it t[hr]o[ugh].
18
that the court abused its discretion in excluding the evidence and do not establish any
foundation as to how the NHTSA tests or robot rolled steering tests came within the
hearsay exception found at Rule 803(6) or (8) of the Tennessee Rules of Evidence. With
respect to the Ford advertisement, during the course of argument of the objection, the
court and parties agreed that this evidence could be introduced into evidence through the
appropriate witness, other than Dr. Renfroe. Upon our review of the record cited by
Plaintiffs and their argument, we conclude that the court did not abuse its discretion with
reference to these rulings.
7. Dr. Renfroe’s Proposed Testimony Regarding Mr. Guenther’s
Testing and Report
Prior to trial, the court ruled on Ford’s motion in limine relative to testing
performed and a report prepared by Dennis Guenther, an engineer who had been retained
by Firestone to test the Explorer in contrast to two other SUVs.14 The court granted the
motion, holding:
The Report or Testing of Dennis Guenther: This motion is GRANTED as to
the contents or conclusions of Dennis Guenther’s report. Plaintiffs’ expert
Dr. Renfroe may testify only that he relied upon testing performed by Mr.
Guenther and that Mr. Guenther was retained by Firestone. He may not
reveal any of Mr. Guenther’s conclusions or any of the contents of his
reports.
The court explained its reasoning for the above ruling, noting that the report was not an
admission within the contemplation of Tennessee Rule of Evidence 803(1.2) and that any
probative value it had was substantially outweighed by the danger of unfair prejudice.
The court did allow that Defendants could:
14
The pertinent portion of the motion in limine stated:
Dr. Guenther is an engineer who has performed certain tests on two Ford Explorer
vehicles at the request of Bridgestone/Firestone, Inc. (“Firestone”). Dr. Guenther has not
been designated as an expert for Firestone (or anyone else) in this particular matter. The
data underlying Dr. Guenther’s testing has never been disclosed, nor has he ever been
deposed on those issues. Dr. Guenther’s testing is not relevant to the present matter, as
none of Plaintiffs’ vehicle experts contend that the subject 1998 Ford Explorer is
defective from a handling standpoint. Moreover, Plaintiffs’ vehicle expert, David
Renfroe concedes that he is missing crucial details relating to Guenther’s testing. Finally,
Dr. Guenther’s testing and report are, themselves, inadmissible hearsay. Tenn. R. Evid.
802. Ford moves for an order pursuant to Tenn. R. Evid. 702 to preclude any experts
from relying upon or making mention of Dr. Guenther’s testing or any document that
references such testing. Ford also asks that this prohibition extend to any reference to Dr.
Guenther’s testing by any counsel, witnesses or expert, and to any reference by any party
to Dr. Guenther’s testing on cross-examination of Ford’s witnesses.
19
. . . start asking question of Dr. Renfroe about [Mr. Guenther’s tests and
report] . . . and if they ask questions about it, obviously the Plaintiffs can go
back into it. But the motion is well taken as far as excluding the disclosure
of the actual contents of this test and Guenther’s findings, either
independently or through the testimony of Renfroe. But Renfroe can say he
relied on it.
At trial, Plaintiffs attempted to introduce the video of Mr. Guenther’s test as a
demonstrative aid to Dr. Renfroe’s testimony. The trial court ruled that the video could
not be shown to the jury because “[t]here’s no fair opportunity for these defendants to
cross-examine the person in charge performing these tests to make sure there were no
variations available that might have affected the way these vehicles operated” but stated
that Dr. Renfroe could rely upon the Guenther report in forming his opinions and state as
much to the jury.
Plaintiffs contend that the court erred in preventing Dr. Renfroe from “discussing
in depth the testing of Dennis Guenther.” Plaintiffs do not address how the court’s ruling
was an abuse of discretion, but rely upon McDaniel v. CSX Transp. Inc, 955 S.W. 257
(Tenn. 1997), for the proposition that the video of Dr. Guenther’s tests should have been
shown to the jury because it “provided uniquely essential corroboration for the opinions
of Plaintiffs’ expert [Dr. Renfroe].”
Plaintiffs’ reliance on McDaniel is misplaced. The pertinent holding in McDaniel
was that Tennessee Rules of Evidence 702 and 703 impose a duty upon trial courts to
determine whether scientific evidence will substantially aid the trier of fact and whether
the underlying facts and data relied on by the expert witness indicate a lack of
trustworthiness. Id. at 265. The rationale and holding of McDaniel is to be applied when
a trial court is considering whether expert testimony qualifies as reliable and is therefore
admissible.15 See Payne v. CSX Transp., Inc., 467 S.W.3d 413, 455 (Tenn. 2015) (citing
15
Interpreting Rules 702 and 703 of the Tennessee Rules of Evidence, the McDaniel Court held:
[A] trial court must determine whether the evidence will substantially assist the trier of
fact to determine a fact in issue and whether the facts and data underlying the evidence
indicate a lack of trustworthiness. The rules together necessarily require a determination
as to the scientific validity or reliability of the evidence. Simply put, unless the scientific
evidence is valid, it will not substantially assist the trier of fact, nor will its underlying
facts and data appear to be trustworthy, but there is no requirement in the rule that it be
generally accepted.
Although we do not expressly adopt Daubert, the non-exclusive list of factors to
determine reliability are useful in applying our Rules 702 and 703. A Tennessee trial
court may consider in determining reliability: (1) whether scientific evidence has been
tested and the methodology with which it has been tested; (2) whether the evidence has
been subjected to peer review or publication; (3) whether a potential rate of error is
20
McDaniel, 955 S.W.2d at 265). There is no issue raised in this appeal as to the reliability
of Dr. Renfroe’s expert testimony.
When this matter arose during the course of trial, Plaintiffs’ counsel made clear
that Plaintiffs intended to use Dr. Renfroe’s testimony to show the jury the video of the
Guenther tests, which the trial court had previously excluded as hearsay and under Rule
703. We have reviewed the transcript of the hearing on the motion in limine and find no
error in the court’s application of Rule 703, which states in pertinent part that “[f]acts or
data that are otherwise inadmissible shall not be disclosed to the jury by the proponent
unless the court determines that their probative value in assisting the jury to evaluate the
expert’s opinion substantially outweighs their prejudicial effect.” We have not been cited
to any evidence introduced in the trial which would call into question the ruling on the
motion in limine, and we discern no abuse of discretion in that ruling or in excluding the
video of Guenther’s tests.
8. Dr. Renfroe’s Opinion of the Decedent’s Ability to Prevent a
Rollover
Plaintiffs contend that the trial court erred when it sustained an objection to Dr.
Renfroe providing an opinion as to whether the decedent could have prevented the
rollover event. Again, Plaintiffs do not cite us to the specific ruling at issue. However, in
their briefs, the Defendants direct us to the following ruling, which occurred in the course
of Dr. Renfroe’s testimony regarding the inability of a driver to maintain control of a
vehicle when a tread separation event occurs. As he testified, the jury was being shown a
video featuring Mr. Arndt, a professional driver, encountering a slow tire tread separation
event:
Q. Tell us what’s going on here.
A. Okay. As he was coming up to where the camera was -- and you could
have heard the tire chatter if you will -- that was when he was losing
control from what you saw on the inside of the vehicle, and it was causing
the vehicle to veer off to the right. But once he starts to tramp -- once he
known; (4) whether, as formerly required by Frye, the evidence is generally accepted in
the scientific community; and (5) whether the expert’s research in the field has been
conducted independent of litigation.
Although the trial court must analyze the science and not merely the
qualifications, demeanor or conclusions of experts, the court need not weigh or choose
between two legitimate but conflicting scientific views. The court instead must assure
itself that the opinions are based on relevant scientific methods, processes, and data, and
not upon an expert’s mere speculation. . . .
McDaniel, 955 S.W.2d at 265.
21
gets started around and there’s lack of this holding capability of the rear
end because the wheels are bouncing, the rear end is just going to keep on
going around, and that’s what happened to him.
Q. And, Dr. Renfroe, was that a planned event?
A. No.
Q. Now -- and is that similar is to what happened ultimately to Mr. Vidal?
A. Except that in Mr. Vidal’s case the tread came completely off, and it
allowed him a few more moments of -- not control but he had -- it started
him in the process of losing control eventually.
Q. And was there anything that Mr. Arndt could do to prevent that rollover
when you examined it and looked at the film?
A. No.
Q. Is there anything Mr. Vidal could have done –
MR. PLATT: Objection, Your Honor, he did not reconstruct the
accident.
THE COURT: Sustained.
Plaintiffs argue that this ruling “deprived the jury of this vital context” that Dr.
Renfroe would have provided, due to his “unique position to evaluate the ability of an
untrained driver such as Mr. Vidal to deal with these forces.” Plaintiffs do not assert how
the exclusion of this testimony was an abuse of discretion. In their brief on appeal,
Defendants explain that their objection to the question was premised upon the fact that
the rollover depicted in the video was not a reconstruction of Mr. Vidal’s accident.
The purpose of the video, which had been introduced by Plaintiffs, was to show
what happens in a tire tread separation event; the question asked, “Was there anything
Mr. Vidal could have done,” was not appropriate in the context of this video since the
video did not depict or attempt to reconstruct the decedent’s accident. Inasmuch as the
video was not a reconstruction of the accident, the question was not probative of or
pertinent to the jury’s determination; the court did not abuse its discretion in sustaining
the objection. Furthermore, immediately following the ruling on the objection, Dr.
Renfroe testified, without objection or interruption, that during a tread separation at 70
miles per hour, a driver is “going to lose control” once the “skate process”16 begins and
that Mr. Vidal would not be able to control the car if the tire lost its tread. In light of this
testimony, the jury was not deprived of the context that Plaintiffs wished to provide
through the testimony of Dr. Renfroe.
16
Though Plaintiffs never define the term “skate” in their brief on appeal, Defendants’ brief informs us
that “‘skate’ refers to an event that can happen when a vehicle is driven on a rough washboard road and
hits a series of bumps that can cause its rear tires to vibrate and the rear of the vehicle to swing out,
requiring a steering correction in the other direction.”
22
Plaintiffs contend that the evidentiary errors cumulate to require a reversal of the
verdict. Our disposition of the Plaintiffs’ preceding issues disposes of this argument.
From our review of the record, there is material evidence to support the jury’s
determination that Ford and Firestone were not at fault for the accident that resulted in
Mr. Vidal’s death.17 Accordingly, consideration of the remaining evidentiary issue that
Plaintiffs’ raise — the exclusion of evidence of the decedent’s lost earnings — is
pretermitted, as the jury never reached the issue of damages.
B. Jury Instructions
Plaintiffs assert that the court erred in giving the jury an instruction on
contributory negligence,18 contending that Tennessee jurisprudence no longer recognizes
contributory negligence.
Whether a jury instruction is erroneous is a matter of law that we review de novo.
Nye v. Bayer Cropscience, Inc., 347 S.W.3d 686, 699 (Tenn. 2011). “[I]t is our duty to
review the charge in its entirety and consider it as a whole, and the instruction will not be
invalidated if it ‘fairly defines the legal issues involved in the case and does not mislead
the jury.’” Id. (quoting Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446
(Tenn. 1992)).
We reiterate the substantive law of San Luis Potosi governing Plaintiffs’
negligence claim:
ART. 1746 - He who acting unlawfully or against good customs causes
damage to another, is obliged to repair, unless he proves that the damage
was the result of inexcusable negligence or fault of the victim.
This law recognizes that there is a duty to act lawfully or in accordance with “good
customs,” that any breach of that duty results in an obligation to repair the damage caused
17
When a jury verdict has been approved by the trial court, the scope of our review is limited to whether
or not the record contains any material evidence to support the verdict. Tenn. R. App. P. 13(d); see
Harper v. Watkins, 670 S.W.2d 611, 631 (Tenn. Ct. App. 1983); Lassetter v. Henson, 588 S.W.2d 315,
317 (Tenn. Ct. App. 1979). We must take the strongest legitimate view of all the evidence to uphold the
verdict, assume the truth of all that tends to support it, discard all evidence to the contrary, and allow all
reasonable inferences to sustain the verdict. Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823
(Tenn. 1994); Moore v. Bailey, 628 S.W.2d 431, 433 (Tenn. Ct. App. 1981).
18
The court gave the following instruction:
The Plaintiffs cannot recover in this action if you determine that the decedent was guilty
of inexcusable negligence which was a legal cause of his death. In other words, Plaintiff
cannot recover if decedent was at fault. This is known as contributory negligence.
23
by the defendant’s breach, and that it is a defense to liability if the defendant can prove
that the victim’s own fault or inexcusable negligence caused the damage. These are the
same elements that make out a claim for negligence in Tennessee. See, e.g., Cullum v.
McCool, 432 S.W.3d 829, 832 (Tenn. 2013) (listing the elements of a negligence claim as
(1) a duty of care; (2) a breach of the duty of care; (3) damages; (4) factual cause; and (5)
proximate, or legal, cause). The current law of negligence in Tennessee requires the jury
to allocate the percentage of negligence between the plaintiff(s) and defendant(s). Id.
Article 1746, however, does not state that a plaintiff’s recovery is to be reduced in
proportion to the percentage of negligence attributable to him or her. See McIntyre v.
Balentine, 833 S.W.2d 52, 57 (Tenn. 1992).
Considering the instructions as a whole, the court correctly instructed the jury on
the negligence claim according to the law of San Luis Potosi; the phrase “contributory
negligence” was not used as a statement of law but as an aside. Plaintiffs do not cite in
their brief to any objection they made to the instruction. Moreover, the instruction to
which the Plaintiffs object is similar to that requested by the Plaintiffs in their “Special
Request For Instructions No. 2 Contributory Negligence.”19 We hold that this instruction
fairly defines the legal issues involved in the case and did not mislead the jury; this issue
is without merit.20
C. Defendant’s Issue on Appeal
On appeal, Defendants argue that, based on this Court’s holdings in Ramirez v.
Bridgestone/Firestone, Inc., 414 S.W.3d 707 (Tenn. Ct. App. 2013), perm. app. denied
(Tenn. Aug. 26, 2013), grounds exist to dismiss this case, rather than remand it for a new
trial in the event this Court determines that prejudicial error occurred in the trial at issue.
19
Plaintiffs’ proposed instruction read:
I instruct you that if you find that the defendants have established that the injuries
and death of Jesus Vidal Ramirez was proximately caused by his own inexcusable
negligence or culpability, such inexcusable negligence or culpability would be a complete
defense to a claim of simple negligence of the defendants. In that regard, I instruct you
that the defendants have the burden of proving by a preponderance of the evidence that
the death of Mr. Vidal and the damages to his children were produced as a consequence
of the inexcusable negligence or culpability of Mr. Vidal.
The record does not show that, in proffering this proposed instruction, the Plaintiffs made any reservation
or qualification.
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Additionally, because the jury found that the Defendants were not at fault, the issue of inexcusable
negligence on the part of the decedent was not reached, and we cannot conclude that any alleged error in
the instruction more probably than not affected the jury’s verdict. Tenn. R. App. P. 36(b).
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Our resolution of the issues raised by Plaintiffs in this appeal pretermits our consideration
of the merits of Defendants’ contention.
IV. CONCLUSION
Based on the foregoing conclusions, we affirm the judgment in all respects.
RICHARD H. DINKINS, JUDGE
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