Eimers v. Valmont Industries, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT CHATTANOOGA

STEPHEN EIMERS, )

) Case No. 1:19-cv-44

Plaintiff, )

) Judge Travis R. McDonough

v. )

) Magistrate Judge Christopher H. Steger

LINDSAY CORPORATION, et al., )

)

Defendants. )

)

ORDER

Before the Court is Plaintiff Stephen Eimers’s motion for reconsideration of the Court’s

grant of summary judgment regarding punitive damages (Doc. 287). After initial briefing on this

motion, the Court ordered the parties to file supplemental briefs to address whether Eimers

waived his argument regarding punitive damages by failing to raise it in summary-judgment

briefing, whether the crash-testing standards at issue were actually required in any federal or

state regulation, and whether new evidence would support a finding that Lindsay did not comply

with those crash-testing standards. (Doc. 321, at 13.) For the following reasons, the Court will

GRANT Eimers’s motion for reconsideration (Doc. 287) and REVERSE its previous ruling

dismissing Eimers’s punitive-damages claim (Doc. 269, at 57–58).

I. STANDARD OF LAW

Federal Rule of Civil Procedure 54(b) provides, in pertinent part:

[A]ny order or other decision, however designated, that adjudicates fewer than all

the claims or the rights and liabilities of fewer than all the parties does not end the

action as to any of the claims or parties and may be revised at any time before the

entry of a judgment adjudicating all the claims and all the parties’ rights and

liabilities.

“Traditionally, courts will find justification for reconsidering interlocutory orders when there is

(1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct

a clear error or prevent manifest injustice.” Rodriguez v. Tenn. Laborers Health & Welfare

Fund, 89 F. App’x 949, 959 (6th Cir. 2004) (citation omitted); cf. Shah v. NXP Semiconductors

USA, Inc., 507 F. App’x 483, 495 (6th Cir. 2012) (noting that motions for reconsideration cannot

be used to raise new legal arguments that could have been raised before).

II. BACKGROUND1

At summary judgment, the Court based its decision to dismiss the punitive-damages

claim on Tennessee Code Annotated § 29-39-104(e), which bars punitive damages when a

defendant demonstrates it was in “substantial compliance with applicable federal and state

regulations setting forth specific standards applicable to the activity in question.” The Court held

that this statute applied to bar punitive damages in this case because “Plaintiff acknowledges, as

he must, that the X-LITE did pass its crash tests and was approved by the [Federal Highway

Administration], even if it was only ‘technically passing a bare minimum crash test (with

disturbing interpretations and submissions of those test results).’” (Doc. 269, at 58 (quoting Doc.

257, at 16–17).)

Eimers now argues that the crash-testing criteria the Federal Highway Administration

(“FHWA”) required that the X-LITE meet before issuing an “approval letter” for the product was

not a federal regulation, and that the Tennessee Department of Transportation’s (“TDOT”)

requirement that a product receive the FHWA approval letter before it would be included on its

Qualified Products List (“QPL”) was not a state regulation. (Doc. 288, at 5–8; Doc. 223-3, at 92

1 The Court incorporates its statement of the facts in its order on Lindsay’s motion for summary

judgment for purposes of this motion for reconsideration. (Id. at 2–6.)

(“The purpose of the Qualified Products List is to make available to Construction and

Maintenance personnel a list of products which perform satisfactorily. Inclusion on the QPL

must not be considered as prior approval, and in no way precludes Departmental testing and

approval requirements. Products on the QPL are products which have been evaluated and found

that they could be acceptable for use, provided all testing and/or certification requirements have

been met and provided the products are used in accordance with the manufacturer’s

recommendations.”); Doc. 341-1.) Based on these arguments, the Court ordered Eimers to

submit a supplemental brief regarding why he did not waive this argument by failing to raise it in

response to Lindsay’s motion for summary judgment. (Doc. 321, at 13.) Lindsay, in its initial

response to Eimers’s motion for reconsideration, asserted that the crash-testing criteria were

“mandatory safety standard[s]” required by both the FHWA and the TDOT but cited no

regulations from these agencies that required crash testing. (Doc. 290, at 6–9.) Therefore, the

Court also ordered Lindsay to file a supplemental brief identifying which regulation,

promulgated through notice-and-comment procedures at the federal level, or equivalent

procedures at the state level, set forth applicable crash-testing standards. (Doc. 321, at 13.) The

parties have now filed their supplemental briefs, and Eimers’s motion for reconsideration is ripe

for the Court’s review. (Docs. 326–27.)

III. ANALYSIS

Tennessee Code Annotated § 29-39-104(e) (hereinafter, “§ 104(e)”) provides:

Punitive damages shall not be awarded in any civil action when a defendant

demonstrates by a preponderance of the evidence that it was in substantial

compliance with applicable federal and state regulations setting forth specific

standards applicable to the activity in question and intended to protect a class of

persons or entities that includes the plaintiff, if those regulations were in effect at

the time the activity occurred.

The Court dismissed Eimers’s punitive-damages claim because Eimers acknowledged that the X-

LITE passed its crash tests and was approved by the FHWA. (Doc. 269, at 57–58.) Implicit in

this conclusion was that the crash-testing standards required for approval by the FHWA were

regulatory standards within the meaning of § 104(e). But the Court did not explicitly consider

whether the crash-testing standards, which were developed by the National Cooperative

Highway Research Program 350 Report (“NCHRP 350”), were, in fact, regulatory standards,

because Eimers did not raise this argument. Instead, he only argued that Lindsay did not

substantially comply with the crash-testing standards.2 However, Eimers’s motion for

reconsideration and the parties’ supplemental briefs clarified that the assumption that the FHWA

regulations required compliance with the standards of crashworthiness under the NCHRP 350

was a clear error of law.

A. No Federal Regulation Imposed the Specific Standards of NCHRP 350

Section 104(e) does not bar punitive damages in this case. Federal regulations imposed

no specific crash-testing standards; NCHRP 350 was merely guidance or policy.

FHWA’s reliance on the NCHRP 350 arose out of the Intermodal Surface Transportation

Efficiency Act of 1991 (“ISTEA”). In this statute, Congress required the FHWA to promulgate a

regulation establishing standards to ensure the crashworthiness of guardrail end terminals to be

installed on the national highway system:

2 Lindsay argues that the Court should not reconsider its prior decision because Eimers waived

the argument that the standards were not regulations. The Court will not rest its decision on

waiver, because, as the Court will find, its prior decision was based on a clear error of law. See

Section III.A.–B., infra. Allowing the previous decision to stand on the basis of waiver alone

would result in manifest injustice. Additionally, Eimers did raise at summary judgment that the

FHWA only mandated compliance with the crash-testing standards at issue through guidance,

rather than regulation. (See Doc. 257, at 24–28.) The Court did not consider this argument on

the punitive-damages issue, because Eimers raised it in response to Lindsay’s federal-preemption

argument.

(a) Initiation of rulemaking proceeding.--Not later than 30 days after the date of

the enactment of this Act [Dec. 18, 1991], the Secretary shall initiate a rulemaking

proceeding to revise the guidelines and establish standards for installation of

roadside barriers and other safety appurtenances, including longitudinal barriers,

end terminals, and crash cushions. Such rulemaking shall reflect state-of-the-art

designs, testing, and evaluation criteria contained in the National Cooperative

Highway Research Program Report 230, relating to approval standards which

provide an enhanced level of crashworthy performance to accommodate vans,

mini-vans, pickup trucks, and 4-wheel drive vehicles.

(b) Final rule.--Not later than 1 year after the date of the enactment of this Act

[Dec. 18, 1991], the Secretary shall complete the rulemaking proceeding initiated

under subsection (a), and issue a final rule regarding the implementation of

revised guidelines and standards for acceptable roadside barriers and other safety

appurtenances, including longitudinal barriers, end terminals, and crash cushions.

Such revised guidelines and standards shall accommodate vans, mini-vans, pickup

trucks, and 4-wheel drive vehicles and shall be applicable to the refurbishment

and replacement of existing roadside barriers and safety appurtenances as well as

to the installation of new roadside barriers and safety appurtenances.

Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No. 102–240, § 1073, 105

Stat. 1914 (1991) (emphasis added). The FHWA undertook a formal rulemaking process, as

prescribed in the ISTEA, which resulted in a final rule in 1993. The rule provided, in part:

(a) Plans and specifications for proposed Federal-aid highway projects shall

provide for a facility that will—

(1) Adequately meet the existing and probable future traffic needs and

conditions in a manner conducive to safety, durability, and economy of

maintenance; and

(2) Be designed and constructed in accordance with standards best suited

to accomplish the foregoing objectives and to conform to the particular

needs of each locality.

23 C.F.R. § 625.2(a) (1994 version). This rule has remained largely unchanged. 23 C.F.R.

§ 625.2(a) (current) (“Plans and specifications for proposed National Highway System (NHS)

projects shall provide for a facility that will—(1) Adequately serve the existing and planned

future traffic of the highway in a manner that is conducive to safety, durability, and economy of

maintenance; and (2) Be designed and constructed in accordance with criteria best suited to

accomplish the objectives described in paragraph (a)(1) of this section and to conform to the

particular needs of each locality.”).

At the time the rule was first promulgated, it also contained a section entitled “Guides

and references,” and referenced “citations to publications which are primarily informational or

guidance in character and serve to assist the public in knowing those materials which are

considered by FHWA to provide valuable information in attaining good design.” 23 C.F.R. §

625.5 (1994 version). The “guides and references” section explicitly involved the NCHRP 350:

The following are citations to publications which are primarily informational or

guidance in character and serve to assist the public in knowing those materials

which are considered by FHWA to provide valuable information in attaining good

design [as required by 23 C.F.R. § 625.2(a)].

(a) Roadway and appurtenances.

. . .

(13) National Cooperative Highway Research Program Report 350,

Recommended Procedures for the Safety Performance Evaluation of

Highway Features, TRB 1993.

23 C.F.R. § 625.5 (1994 version). In 1997, the “guides and references” section was removed

from the regulation, and the FHWA moved the previously-cited standards, including the NCHRP

350, to a “Non-Regulatory Supplement to the Federal-Aid Policy Guide, Subchapter G, Part 625

(NS CFR 625).” (See Doc. 327-3, at 2.)

When the NCHRP 350 standards were moved to the non-regulatory supplement, the

FHWA issued a policy memorandum (the “1997 Memorandum”). The 1997 Memorandum

stated that, to comply with 23 C.F.R. § 625.2(a), “all new or replacement safety features on the

NHS covered by the guidelines in the NCHRP Report 350 . . . are to have been tested and

evaluated and found acceptable in accordance with the guidelines in the NCHRP Report 350.”

Memorandum: Identifying Acceptable Highway Safety Features, from FHWA Eng’g Off. to

Reg’l Adm’rs, Fed. Lands Highway Program Adm’r, Div. Adm’rs, and Fed. Lands Highway

Div. Eng’rs (July 25, 1997) (on file with FHWA),

https://www.fhwa.dot.gov/legsregs/directives/policy/ra.htm (last accessed May 16, 2022). The

effect of the 1997 Memorandum was to require all highway-safety installations, including

guardrail end terminals, to meet the standards in the NCHRP 350 in order for the FHWA to find

that the product would “[a]dequately serve the existing and planned future traffic of the highway

in a manner that is conducive to safety, durability, and economy of maintenance.” 23 C.F.R.

§ 625.2(a) (current). The FHWA issues approval letters as a voluntary service to states to

indicate it has reviewed a product’s crash tests and found it to be eligible for federal-aid

reimbursement under its policies. (Doc. 258-7, at 51–54 (“Federal-aid reimbursement eligibility

letters from FHWA are not required for a State DOT to install the device on any road and are not

required for the State DOT to receive Federal-aid reimbursement for that device. The FHWA

issues these letters as a service to the State DOTs. . . . Issuance of a Federal-aid reimbursement

eligibility letter by FHWA does not ensure acceptance or use by any State Department of

Transportation (State DOT). Each State DOT may choose not to purchase and install a specific

device, or may place additional limits upon use of a device.”); see Doc. 288-1, at 14);

Memorandum: Evaluating a State DOT’s Process to Determine Roadside Safety Hardware

Crashworthiness on the National Highway System (April 9, 2018) (on file with FHWA),

https://safety.fhwa.dot.gov/roadway_dept/countermeasures/reduce_crash_severity/docs/memo04

0918.pdf (last access May 27, 2022) (“The FHWA continues to provide a voluntary service of

reviewing crash test results and issues eligibility letters for new roadside safety hardware . . . .

An eligibility letter is not a requirement for roadside safety hardware to be determined eligible

for Federal funding. Roadside safety hardware is eligible for Federal funding if it has been

determined to be crashworthy by the user agency (i.e., State DOT).”). But FHWA instructs

states they should not rely on such aid-reimbursement eligibility letters to determine whether a

product is safe: “An FHWA eligibility letter should not be the sole basis for a State’s

determination of crashworthiness. It is each State’s responsibility to determine crashworthiness

and to approve new or modified roadside safety hardware meeting the State’s specific

needs.” Memorandum: Evaluating a State DOT’s Process to Determine Roadside Safety

Hardware Crashworthiness on the National Highway System (April 9, 2018) (on file with

FHWA),https://safety.fhwa.dot.gov/roadway_dept/countermeasures/reduce_crash_severity/docs/

memo040918.pdf (last access May 27, 2022). The policy position stated in the 1997

Memorandum was FHWA’s official policy on compliance with § 625.2(a) at all times relevant to

this litigation and remained the official policy until 2015. See Memorandum: Fed.-Aid

Reimbursement Eligibility Process for Safety Hardware Devices, from FHWA Off. of Safety

Techs. to Reg’l Adm’rs, Dirs. of Field Servs., and Fed. Lands Highway Div. Eng’rs (Nov. 12,

2015) (on file with FHWA),

https://safety.fhwa.dot.gov/roadway_dept/countermeasures/reduce_crash_severity/policy_memo/

memo111215/ (last access May 16, 2022).

It was only FHWA policy to require these crash-testing standards; the NCHRP 350 was

non-binding guidance for how the FHWA should interpret the regulation requiring safety

installations to be “conducive to safety.” See 23 C.F.R. § 625.2(a) (current). “Statements made

by federal agencies may constitute substantive rules or merely be general policy statements.

Agencies are bound by duly promulgated substantive rules, which have the force of law, while

interpretive rules or policy statements do not have binding effect.” Dyer v. Sec’y of Health &

Hum. Servs., 889 F.2d 682, 685 (6th Cir. 1989) (citing Chrysler Corp. v. Brown, 441 U.S. 281,

301–302 (1979); Vietnam Veterans of Am. v. Sec’y of the Navy, 843 F.2d 528, 537 (D.C. Cir.

1988); Iowa Power & Light Co. v. Burlington N., Inc., 647 F.2d 796, 811 (8th Cir. 1981), cert.

denied, 455 U.S. 907 (1982)) (internal citation omitted). An agency creates a regulation when it

duly promulgates a rule, in accordance with the procedures in the Administrative Procedures

Act, in which it “implements a statute by enacting a legislative-type rule affecting individual

rights and obligations” and/or “narrowly circumscribes administrative discretion in all future

cases . . . finally and conclusively determine[ing] the issues to which it relates.” Id. (citing

Chrysler, 441 U.S. at 301–302). A policy statement, on the other hand, “is a pronouncement that

simply advises the public what the agency’s prospective position on an issue is likely to be.” Id.

Tennessee law requires the Court to “determine legislative intent from the natural,

ordinary meaning of the statutory language, and, when the statutory language is clear and

unambiguous, we must apply its plain meaning in its normal and accepted use.” Grant v. Kia

Motors Corp., 185 F. Supp. 3d 1033, 1051 (E.D. Tenn. 2016) (quoting In re Angela E., 303

S.W.3d 240, 246 (Tenn. 2010)). The plain meaning of § 104(e) allows the application of the bar

on punitive damages only when a party has complied with a regulation; it does not apply to

compliance with standards in non-binding federal guidance, like the 1997 Memorandum or the

Non-Regulatory Supplement to the Federal-Aid Policy Guide. See Tenn. Code. Ann. § 29-39-

104(e); Dyer, 889 F.2d at 685.

This conclusion is further supported by the fact that the FHWA has promulgated a

regulation setting forth specific standards for crash testing of other highway safety products but

excluded the NCHRP 350 standards for guardrail end terminals. See 23 C.F.R. § 625.4. That

regulation, entitled “Design Standards for Highways,” enumerates specific standards with which

roadways, appurtenances, and bridges must comply. Id.; 23 C.F.R. § 625.3 (“The standards,

policies, and standard specifications cited in § 625.4 of this part contain specific criteria and

controls for the design of NHS projects.”). The regulation establishes standards largely through

incorporation by reference of industry reports and policy guides similar to the NCHRP 350, but

the list of incorporated materials does not include the NCHRP 350. 23 C.F.R. § 625.4. The

FHWA did not adopt a regulation imposing the standards of NCHRP 350. Without such a

regulation, §104(e) does not apply.

To the extent that there is an FHWA regulation at work here, it did not set forth any

specific standard as § 104(e) requires. The X-LITE’s FHWA approval letter established that the

agency found the guardrail system in compliance with 23 C.F.R. § 625.2(a) under the guidelines

with which FHWA interpreted that regulation. But that regulation only generally required the

product to be “conducive to safety.” 23 C.F.R. § 625.2(a). Section 104(e) requires compliance

with a regulation “setting forth specific standards” before it bars punitive damages. (Emphasis

added.) The unambiguous, plain meaning of § 104(e) does not give a party the benefit of the bar

on punitive damages when it has merely complied with a federal regulation setting forth a

general standard like “conducive to safety.” See Grant, 185 F. Supp. 3d at 1051; 23 C.F.R.

625.2(a). And it does not provide a bar when a product complies with anything less than a

regulation. Lindsay is not entitled to the bar on punitive damages.

B. No State Regulation Imposed the Specific Standards of NCHRP 350.

Lindsay next argues that, even if it did not comply with a federal regulation setting forth

specific standards, it is still entitled to the statutory punitive-damages bar because Tennessee

state regulations required that products included on TDOT’s QPL meet the NCHRP 350

standards. (Doc. 327, at 11–15.) TDOT is “responsible for the maintenance of . . . public roads,

streets, highways or bridges and similar structures that are designated by the department

as being on the state system of highways or the state system of interstate highways.” Tenn. Code

Ann. § 54-1-126(a). TDOT “has full power, and it is made its duty . . . to cooperate with the

federal government . . . in the selection and erection of . . . safety devices for the protection and

direction of traffic on those highways.” Tenn. Code Ann. § 54-5-108 (emphasis added); see also

Austin v. State, 796 S.W.2d 449, 455 (Tenn. 1990) (“The ultimate responsibility for the

inspection and maintenance of [a bridge] was upon the Tennessee Department of Transportation

under both federal and state law.”). TDOT’s QPL explicitly states that “[a]ll guardrail end

terminals specified on TDOT projects must be accepted as crashworthy by the FHWA in

accordance with either NCHRP Report 350 or the AASHTO Manual for Assessing Safety

Hardware (MASH) for Test Level 3 (TL-3).” See Doc. 223-3, at 364.

But, as with the federal regulations, at the state level, there is no state “regulation[]

setting forth specific standards” that “safety devices” comply with the NCHRP 350. The TDOT

requirement stated in the QPL that guardrail end terminals must be accepted as crashworthy

under the NCHRP 350 was not a regulation promulgated by TDOT and entered into the

Tennessee Administrative Code—even though TDOT had the authority to adopt such a

regulation. It was merely TDOT’s the policy or practice to require compliance with the NCHRP

350 standards as the means by which it fulfilled its statutory duty to “select[] and erect[] . . .

safety devices for the protection and direction of traffic on [] highways.” Tenn. Code Ann. § 54-

5-108(a)(1); (see Doc. 223-3, at 92 (TDOT’s foreword to the QPL announcing that inclusion on

the list was nonbinding, did not carry the force of legislation, and did not circumscribe agency

discretion; “Inclusion on the QPL must not be considered as prior approval, and in no way

precludes Departmental testing and approval requirements.”)). This statute does not set forth

“specific standards,” and there is no regulation in the Tennessee Administrative Code outlining

or incorporating “specific standards” by which highway safety devices should be crash tested.

See Tenn. Code. Ann. § 29-39-104(e). Accordingly, Lindsay has not shown it complied with any

“state regulations setting forth specific standards applicable to the activity in question and

intended to protect a class of persons or entities that includes the plaintiff.” Id. (emphasis

added). Therefore, the statutory bar on punitive damages does not apply in this case.3

C. Whether Defendant Acted Recklessly

Because the Court has concluded that § 104(e) does not apply, the Court must consider

whether Eimers’s punitive-damages claim can survive summary judgment under the general

standard for punitive damages in the Tennessee Products Liability Act (“TPLA”). See Tenn.

Code Ann. § 29-28-104. The TPLA provides that “[p]unitive damages may only be awarded if

the claimant proves by clear and convincing evidence that the defendant against whom punitive

damages are sought acted maliciously, intentionally, fraudulently or recklessly.” Id.; Tenn. Code

Ann. § 29-39-104(a)(1). Therefore, a punitive-damages claim may only survive summary

judgment when “the evidence and the inferences reasonably drawn from the evidence are

sufficient to permit a reasonable juror to conclude that the plaintiff established with convincing

clarity that the defendant’s conduct that caused the plaintiff’s injury was intentional, fraudulent,

malicious, or reckless. Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 207 (Tenn. Ct. App.

2008) (citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992)). “A person acts

recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable

3 Eimers also raises new evidence, in the alternative, to support his contention that even if the

NCHRP 350 were a regulatory standard, there is at least a question of fact as to whether it “was

in substantial compliance” with the standard. (See Doc. 288, at 9–17.) Because the Court now

concludes that the NCHRP 350 is not a federal or state regulatory standard within the meaning of

§ 29-39-104(e), it will not consider this alternative argument.

risk of such a nature that its disregard constitutes a gross deviation from the standard of care that

an ordinary person would exercise under all the circumstances.” Hodges, 833 S.W.2d at 901.

Eimers contends that Lindsay acted recklessly because it was aware the “X-LITE end

terminal was defective and prone to causing life-threatening injuries” and disregarded this risk

by not communicating failed crash tests to TDOT. (Doc. 257, at 16.) In support of this

contention, Eimers presented evidence, including handwritten notes from Lindsay’s Vice

President of Engineering at the time, Gerrit Dyke, detailing several failed crash tests, even as

measured under the minimum standards in the NCHRP 350, both before and after the X-LITE

was approved by the FHWA. (Doc. 258-5, at 24–26.) Eimers also presented evidence that

Lindsay performed structural-design changes on the X-LITE without formally documenting

them, informing FHWA or TDOT of those changes, or re-testing the system after such changes

were made. (Doc. 258-5, at 86–92.) These changes included increasing the impact-head height,

adding shear bolts, changing the slot-post hold, and adding blockout. (Id. at 87.) Additionally,

Lindsay conducted a field audit of X-LITE installations, which revealed ninety percent of the

installations were improper, but thereafter did not aggressively promote training contractors in

proper installation methods. (Doc. 223-1, at 81, 116.) Further, TDOT’s corporate representative

testified that Lindsay did not communicate to TDOT the existence of failed test results, the

ninety-percent-installation-failure rate, the fact that Lindsay had no performance data for the X-

LITE in collisions occurring at over 62.5 miles per hour, nor the fact the Virginia and South

Carolina Departments of Transportation were removing the X-LITE from their qualified

products lists over safety concerns. (Doc. 241-7.) He also testified that he would have expected

or hoped that Lindsay would disclose all of this information to TDOT, and, if it had, it would

have influenced TDOT’s decision to allow the X-LITE to be installed on Tennessee roadways.

(Doc. 241-7, at 15–16.)

Additionally, in one crash test, referred to as XLT15, the accelerometers in the vehicle

measured ride-down accelerations as 32-g-force, which is a deadly rate. (Doc. 288-18.) Lindsay

nonetheless contends that this was not a failed test because the accelerometers were improperly

calibrated or not functioning which resulted in this high measurement. (Doc. 327, at 21.)

Lindsay ran video software to independently measure the g-forces, which revealed some of the

accelerometer data was faulty, but the independent measure also confirmed that the g-forces still

exceeded the safe 20-g-force threshold. (Doc. 288-20.) XLT15 also revealed that when the X-

LITE system’s impact head separated horizontally from the w-beam guardrail, the car would be

exposed to a blunt end of a guardrail—which could allow the guardrail to spear the vehicle and

injure occupants. (Doc. 288, at 13.)

Dyke averred that “there has never been an obligation to disclose the results of every

single crash test to obtain approval [from the FHWA].” (Doc. 327-8, at 3.) Therefore, Lindsay

argues, any crash test that Eimers contends put Lindsay on notice that the X-LITE had a

dangerous propensity to spear vehicles or otherwise cause injury is irrelevant to the analysis of

availability of punitive damages. (Doc. 327, at 20–21.) This would be the case if, to obtain

approval from the FHWA, Lindsay complied with a regulation setting forth specific crash-testing

standards, but the Court has now found that no such regulation existed. See Section III.A.–B.,

supra. Therefore, the Court must analyze the punitive-damages claim under the recklessness

standard, i.e., whether Lindsay knew of a substantial risk and consciously disregarded it,

regardless of whether it was complying with the NCHRP 350. Taking all of the evidence

discussed in this section together, a reasonable jury could find that Eimers established with

convincing clarity that Lindsay was aware of, but consciously disregarded, a substantial and

unjustifiable risk that the X-LITE could cause severe injuries such that its disregard constituted a

gross deviation from the standard of care that an ordinary person would exercise under the

circumstances. See Hodges, 833 S.W.2d at 901.

IV. CONCLUSION

For these reasons, the Court GRANTS Eimers’s motion for reconsideration (Doc. 287)

and Eimers and REVERSES its previous order dismissing Eimers’s punitive-damages claim

(Doc. 269, at 57–58). In accordance with Tenn. Code Ann. § 29-39-104(a)(2)–(3) the trial

SHALL be conducted in a bifurcated proceeding.

SO ORDERED.

/s/ Travis R. McDonough

TRAVIS R. MCDONOUGH

UNITED STATES DISTRICT JUDGE