Cooper Tire & Rubber Co. v. Crosby

Hunstein, Justice,

dissenting.

Jan Crosby appealed a defense verdict in favor of Cooper Tire & Rubber Company to the Court of Appeals, which reversed the judgment on a ground not before us on writ of certiorari. Crosby v. Cooper Tire & Rubber Co., 240 Ga. App. 857 (1) (524 SE2d 313) (1999). That *458court then considered those other enumerations of error raised by Crosby which “are likely to again arise on retrial,” id. at 859 (1), noting that “many of the issues are based upon the sound exercise of the trial court’s discretion, which may change upon retrial before another trial judge. [Cit.]” Id. The adjustment evidence proffered by Crosby and excluded by the trial court is one of those issues which the Court of Appeals recognized could recur and its review of that evidence was tailored in light of the probability that the evidence would be proffered and ruled upon again. Based on my review of the Court of Appeals’ opinion, I find no error in its rulings or the language it used.

The trial court excluded the adjustment evidence proffered by Crosby finding it to be generally inadmissible. Compare Ray v. Ford Motor Co., 237 Ga. App. 316, 317 (1) (514 SE2d 227) (1999) (trial court excluded evidence “stating that Ray had failed to provide enough information to allow the court to determine whether incidents in the database were substantially similar to Ray’s accident”). In addressing the exclusion of this evidence, the Court of Appeals initially recognized that a material issue of fact in Crosby’s suit was whether the radial belting on the Bronco’s left rear tire separated because of a manufacturing defect or because the tire had 30,000 to 40,000 miles of wear on it. The Court of Appeals first found that upon retrial, Crosby’s adjustment evidence would be relevant and material, subject to the giving of limiting instructions, to show that tires fail for different reasons, some of which are related to consumer abuse with others related to manufacturing defects, as well as to show the frequency of manufacturing defects occurring after 30,000 to 40,000 miles of use. Id. at (2) (a). The court next found relevant and material upon retrial those adjustment documents, involving the same model tires from the same plant with prior or subsequent serial numbers and with “substantially similar manufacturing defects,” id. at (2) (b), “or that such model tire had whatever incidence of manufacturing defects as compared with overall production of such tire,” citing Browning v. Paccar, Inc., 214 Ga. App. 496 (1) (a) (448 SE2d 260) (1994) and other cases which have recognized the relevancy of such circumstantial evidence. Finally, the Court of Appeals applied this Court’s holding in Mack Trucks v. Conkle, 263 Ga. 539 (3) (436 SE2d 635) (1993) to hold that upon retrial, evidence of prior similar manufacturing defects would be admissible “to show defects, notice, prior knowledge and causation and for purposes of punitive damages, [cits.]” id. at (2) (c) but cautioned that for the admission of evidence on these bases, a foundation must be laid “that such occurrences were with the same or similar model steel belted tires, made with the same or similar materials and manufacturing processes, and having substantially similar defects.” Id.

I see no error in the Court of Appeals’ holdings in regard to the *459considerations applicable to the admission by the trial court of the adjustment evidence Crosby may choose to proffer upon retrial of this case. It is certainly important for a jury to know that Cooper Tire’s products have failed for many different reasons, including reasons assigned by both the plaintiff and the defendant for the blow-out of the Bronco’s left rear tire. The Court of Appeals’ opinion makes it clear that evidence admitted for this purpose must be accompanied by limiting instructions so that the jury does not consider it for any improper purpose. “The Georgia rule favors admissibility. If the relevancy of the offered evidence is in doubt, it should be admitted and sent to the jury under proper instructions.” McEachern v. McEachern, 260 Ga. 320, 321 (394 SE2d 92) (1990). This evidentiary rule favoring the admission of any relevant evidence is equally applicable in product liability cases. See, e.g., Wilson Foods Corp. v. Turner, 218 Ga. App. 74 (1) (460 SE2d 532) (1995) (applying “the evidentiary rule in Georgia favoring the admission of any relevant evidence, no matter how slight its probative value”). As to the admission of adjustment evidence to show the incidence of manufacturing defects as compared with overall production of such tire, Crosby, supra at (2) (b), it is well-established that circumstantial evidence relevant to prove a manufacturing defect may include evidence of the existence of the defect in goods produced at the same plant at around the same time. See Rose v. Figgie Intl., 229 Ga. App. 848 (1) (b) (495 SE2d 77) (1997); Browning v. Paccar, Inc., supra, 214 Ga. App. at 497 (1) (a); Carsten v. Wilkes Supermarket, 181 Ga. App. 834 (1) (353 SE2d 922) (1987). See also Central of Ga. R. Co. v. Bernstein, 113 Ga. 175 (1) (38 SE 394) (1901). This ruling relates to the admission of the adjustment evidence for purposes of showing manufacturing defects in other tires, regarding which the Court of Appeals’ opinion clearly reiterates the “substantial similarity” rule and holds that it is the standard which should be applied by the trial court in determining whether to admit the evidence upon retrial of this case.

The majority is not satisfied that the Court of Appeals explicitly states that the “substantial similarity” standard applies upon retrial to determine the admissibility of the proffered evidence. Instead, the majority concludes that the lower court “renounced” the standard it expressly utilized based on language in the Court of Appeals’ opinion about the “continuum of admissible substantially similar occurrences.” The majority’s criticism of this dicta is not justified. The Court of Appeals with this colorful language was simply recognizing what every experienced trial judge knows, namely, that there are no bright-line, hard-and-fast rules applicable to every case when it comes to the admissibility of evidence of similar occurrences. What constitutes “substantially similar” evidence does indeed shift between the extremes of absolutely identical to “barely sufficient to *460be substantially similar,” with all the gradations in-between. There is no exact science involved in weighing such evidence: evidence that a trial court determines is substantially similar in one tire blow-out case may be found inadequate by another trial court in another tire blow-out case. It is for this very reason that we have consistently applied a “manifest abuse” standard in assessing a trial court’s discretion in the admission or exclusion of evidence.

The Court of Appeals has correctly recognized that in determining the admissibility of similar occurrences, a trial court cannot abuse its discretion when the evidence it admits is sufficiently “probative so that a jury can reasonably draw an inference of defect, causation, dangerousness, knowledge, producing the tire failure, or failure to warn. [Cits.]” Crosby, supra at (2) (c). Accord Green, Georgia Law of Evidence (5th ed.), § 68, p. 147 (the rule regarding other transactions “is that evidence of other transactions or occurrences is admissible if it is relevant in the particular instance and does not present too great a danger of undue consumption of time, confusion of issues, undue prejudice or unfair surprise”). This recognition does not constitute a renunciation of Mack Trucks, supra, but rather endorses the holding in Mack Trucks that substantially similar evidence is admissible because it is relevant to the issues of notice and punitive damages and evidence that is “wholly different” should be excluded. Id., 263 Ga. at 544 (3).

From the stress the majority places on the “substantial” nature of similar occurrences in products liability cases and the criticism heaped on the Court of Appeals for recognizing the leeway that exists in determining what may constitute similar evidence in such cases, it appears that the majority is creating a stricter standard for the admission of relevant similar transaction evidence in product liability cases than in other cases. Even in criminal cases, where a person’s life and liberty are at stake, the courts only require that there be a “sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. [Cit.]” Williams v. State, 261 Ga. 640, 642 (2) (409 SE2d 649) (1991). See, e.g., Quezada v. State, 236 Ga. App. 718, 720 (1) (512 SE2d 401) (1999) (appellate court need look only to whether similar transaction evidence in criminal trial was “sufficiently similar”). I cannot hold civil plaintiffs to a higher standard of proof to recover damages from the manufacturers of defective products than is required of the State to establish a defendant’s guilt beyond a reasonable doubt under constitutional standards.

I object to the majority’s opinion because it establishes an unwarranted threshold standard for admissibility in products liability cases that is contrary to the Georgia rule favoring the admission of any relevant evidence. The majority misreads the Court of *461Appeals’ opinion, in which that court sought only to address problems that may recur when the adjustment evidence is proffered upon retrial, and ignores the fact that the trial court here never expressly assessed the substantial similarity of the proffered evidence before excluding it. Most egregiously, the majority does exactly what it accuses the Court of Appeals of doing: limiting the discretion of trial courts. To paraphrase the majority opinion, its ruling is so erroneously under-inclusive as to essentially strip trial courts of their discretion to admit evidence of similar occurrences in products liability cases when such evidence fails to satisfy the untenably rigorous standard the majority now imposes. Because I find that the Court of Appeals set forth the proper standard for the trial court to apply should Crosby’s evidence be proffered again upon retrial, I would affirm that court’s rulings. Accordingly, I must respectfully dissent.

Decided February 16, 2001. Drew, Eckl & Farnham, TK Wray Eckl, Melanie C. Eyre, Watson, Spence, Lowe & Chambless, Dawn G. Benson, for appellant. Cathey & Strain, Edward E. Strain III, David A. Sleppy, Cottingham & Porter, Sidney L. Cottingham, Robert L. Porter, Jr., for appellees. King & Spalding, Byron Attridge, Chilton D. Varner, Amy M. Power, McGuire, Woods, Battle & Boothe, Douglas N. Campbell, Kenneth J. Moran, Troutman Sanders, N. Karen Deming, Carmie L. McCurry, Lord, Bissell & Brook, Terry R. Howell, Deborah A. Ausburn, Butler, Wooten, Overby, Fryhofer & Daughtery, James E. Butler, Jr., Joel O. Wooten, Jr., George TK Fryhofer III, Terrance C. Sullivan, Cale H. Conley, Alembik, Fine & Callner, G. Michael Banick, Karen M. Raby, amici curiae.

I am authorized to state that Chief Justice Benham joins in this dissent.