Petition for Writ of Certiorari — Uniroyal Goodrich Tire Co. v. Martinez ex rel. Martinez

Supreme Court, u.g

FILern

981344 FEB 10 1999

IN THE

Supreme Court of the United States

OcTOBER TERM, 1998

UNIROYAL GOODRICH TIRE COMPANY,

Petitioner,

VS.

ROBERTO O. MARTINEZ and JUANITA MARTINEZ,

individually and as next fnends of ROBERT MARTINEZ, JR. and

JOHN MATHEW MARTINEZ, minors,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF TEXAS

PETITION FOR WRIT OF CERTIORARI

BEN A. DONNELL TERRIANN TROSTLE

MEREDITH, DONNELL Counsel of Record

& ABERNETHY, P.C. ANN E. WEBB

One Shoreline Plaza KATHLEEN WEISZ OSMAN

800 N. Shoreline FULBRIGHT & JAWORSKI L.L.P.

Suite 1500 - North Tower 1301 McKinney - Suite 5100

Corpus Chnisti, Texas 78401 Houston, Texas 77010

(512) 888-5551 (713) 651-5151

Attorneys for Petitioner

150983 @ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 * (800) 359-6859 )

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QUESTION PRESENTED FOR REVIEW

Does the due process clause of the Fourteenth Amendment

require bifurcation of all trials in which punitive relief is sought

because of the substantial risk that punitive damages evidence

will taint the jury’s liability and compensatory findings and

because of the difficulty of identifying and addressing that taint

on appellate review?

PARTIES, PARENT COMPANIES AND

NONWHOLLY OWNED SUBSIDIARIES

Petitioner is The Uniroyal Goodrich Tire Company, a New

York Partnership.

Respondents are:

Roberto O. Martinez

Juanita Martinez, individually and as next friends of

Robert Martinez, Jr., a minor and

Matthew Martinez, a minor.

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TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ..........

PARTIES, PARENT COMPANIES AND NONWHOLLY

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TABLE OF CITED AUTHORITIES ...............

CITATIONS OF OFFICIAL AND UNOFFICIAL

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Dimtemecns Or JURISDICTION ..............

CONSTITUTIONAL AND STATUTORY PROVISIONS

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B. Bifurcation is Requested and Denied .........

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REASONS FOR GRANTING THE WRIT ..........

I. THERE IS A SIGNIFICANT CONFLICT

AMONG THE STATES IN CONSTRUING THIS

COURT’S CONSTITUTIONAL DIRECTIVES

IN HASLIP, TXO, AND BMW WHEN

DETERMINING WHETHER BIFURCATION IS

CONSTITUTIONALLY REQUIRED. .......

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Contents

Page

Il. WHETHER BIFURCATION IS CONSTITUTION-

ALLY REQUIRED IS AN IMPORTANT

QUESTION OF FEDERAL LAW THAT HAS

NOT BEEN, BUT SHOULD BE, SETTLED BY

PE ERE Do DE eM ee Rig ae Aral eer ee 8

A. Due process concerns are plainly implicated.

Pe REET ek aes eae Feat ee ne eee 8

1. Litigants have a substantial private

interest in avoiding unwarranted

assessment of liability and damages.

EE bee ew eos ek be a er ee 9

2. The risk of jury taint is substantial in

non-bifurcated trials, and the value of

bifurcation is great. ............... 10

3. The government’s interest will not be

prejudiced and is likely to be advanced

WY DIN. ss acre cela eee ees 14

B. This Court should address this important

DS Sb ceneectati eth ees 15

CONCLUSION

Kent d tea Rs ke Stele cs aeaeae ees 16

TABLE OF CITED AUTHORITIES

Page

Cases:

BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996)

Lede ee ne OLED NS Mk De oe ee ieee ae ee 5, 6, 7, 9, 15

Campen v. Stone, 635 P.2d 1121 (Wyo. 1981) .. 10, 11, 13, 14

Farmy v. College Housing, Inc., 121 Cal. Rpt. 658

CPP ED) 5 is od are eRe eee eee 10, 11, 12

Feld v. Merriam, 485 A.2d 742 (Pa. 1984) .......... 10

Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996)

bide ed eae ee Owe SE eee 6,7

Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn.

SPP 6 ARETE ae ee 6,7, 13

In re Winship, 397 U.S. 358 (1970) ................ 10

Kieninger v. New York, 384 N.Y.S.2d 11 (App. Div.

EPTOE 68 kb r948 bee eee eee eee 12

Life & Cas. Ins. Co. v. Padgett, 407 S.W.2d 728

(TOOOF occ cdi taka eee rh, tz

Life Ins. Co. of Ga. v. Johnson, 701 So.2d 524 (Ala.

S997) css cvetvaees cies eee ee 6,7

v1

Cited Authorities

Page

Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991)

beh s bed cere ee ea d4 Dee tee eee 5: 6. 75:30

Parsons v. First Investors Corp., 122 F.3d 525 (8th Cir.

S997) ccc vi cer ena eee eens eee eG

Richards v. Michelin Tire Corp., 21 F.3d 1048 (11th Cir.

PE oes wc ae ee ee ed 6

Rosener v. Sears, Roebuck & Co., 168 Cal. Rptr. 237

C6) BRS rrr er i rm 12

Scheufler v. General Host Corp., 126 F.3d 1261 (10th

Cw. 1997) 6 io vi eaeeceee eee 6, 13

Transportation Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex.

1996)) ard es sae ee ee eee 13, 14

TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S.

443: C1993). oho cent ne eee eee 5, 6, 7, I>

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d

320 (1 eR. 1996) isa ye see ee eee 6

Westbrook v. General Tire & Rubber Co., 754 F.2d

1733 (Ste Cor. 1969) so cctaccee ee eee 6,12

Wisconsin v. Constantinau, 400 U.S. 433 (1971) ..... 9

W.R. Grace & Co. v. Waters, 638 So. 2d 502 (Fla.

1994) oo ccvcasdaaveves etree eee 6, 7, 10, 33

vil

Cited Authorities

Statutes:

es ce ee ee eas ]

735 Itt. Comp. Stat. ANN. 5/2-1115.05(c) (Supp. 1998) 13

Cac. Civ. CopE § 3295(d) (West 1997) ............. 13

Ga. CopE ANN. § 51-12-5.1(d)(1)-(2) (Supp. 1998)... 9, 13

KAN. STAT. ANN. § 60-3701(a) (1994) .............. 13

Minn. Stat. ANN. 549.20(4) (West Supp. 1999) ...... 13

Mo. Ann. Stat. § 510.263(1)-(4) (West Supp. 1998) . 13

Mont. Cope ANN. 27-1-221(7) (1997) .............. 13

N.D. Cent. Code § 32-03.2-11(1)-(3) (Supp. 1997)... 13

Nev. Rev. Stat. § 42.005(3) (1997) ............... 13

Ouio Rev. Cope Ann. § 2315.21 (C)-(D) (Anderson Supp.

ORR R SC hehe EN Ce Ce ee Cae 9,13

gs | RO PER Te ee ta re we Pag ee prays Lyla 13

Tex. Civ. Prac. & Rem. Cope Ann. § 33.003(3) (Vernon

Supp. 1993) (amended 1995) ................... 4

vill

Cited Authorities

Page

Tex. Civ. Prac. & Rem. Cope Ann. § 41.008(b) (Vernon

LA Pg ere Peter aen een PLA ro mer ee 9

UTAH Cope ANN. 78-18-1(2) (1996) ................ 13

United States Constitution:

ies Rn OI Be ooo os Ca nec oad cece wnewes ‘i

Other Authority:

Malcolm E. Wheeler, The Constitutional Case for

Reforming Punitive Damages Procedures, 69 Va. L.

EY: Pr REED ESS ead oS 10, 11, 14, 15

—_———=—

ix

APPENDIX

Appendix A — Substituted Opinions On Motion For

Rehearing Of Cause Dated And Delivered October 15,

5 I ee Py re yy atenar nay Pure!

Appendix B — Opinion Of The Court Of Appeals Of

Texas, San Antonio Dated October 4, 1995 And

Rehearing Overruled November 3, 1995 .........

Appendix C — Judgment Of The District Court For The

79th Judicial District, Brooks County, Texas Dated,

Entered And Filed May 5, 1993 ................ |

Appendix D — Charge Of The Court To The Jury And

Specific Findings Of The Jury Of The District Court

For The 79th Judicial District, Brooks County, Texas

Dated And Filed April 14, 1993 ................

Appendix E — Pronounced Order And Letter Order Of

The Supreme Court Of Texas Dated November 12,

1998 Overruling The Motion For Rehearing

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CITATIONS OF OFFICIAL

AND UNOFFICIAL REPORTS

The opinion of the Texas Supreme Court is reported at 977

S.W.2d 328 (Tex. 1998), and is reproduced in the Appendix hereto

at A-1.

The opinion of the Texas Court of Appeals is reported at 928

S.W.2d 64 (Tex. App. — San Antonio 1995) and is reproduced in

the Appendix hereto at B-1.

The judgment of the district court on the jury verdict was not

reported, but is reproduced in the Appendix hereto at C-1.

The Charge of the Court to the Jury and Specific Findings of

the Jury is reproduced in the Appendix hereto at D-1.

The Order of the Texas Supreme Court overruling Motion

for Rehearing is reproduced in the Appendix hereto at E-1.

STATEMENT OF JURISDICTION

The Texas Supreme Court’s opinion was issued on October

15, 1998. A motion for rehearing was denied on November 12,

1998. Appendix E-1. This Court has jurisdiction to review on a

writ of certiorari pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. AMEND. XIV, § 1.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

2

STATEMENT OF THE CASE

A. Background Facts

Roberto Martinez was injured when he failed to comply

with conspicuous warnings placed on a 16" Goodrich tire that

he was attempting to mount on a 16.5" rim manufactured by

The Budd Company and designed by Ford Motor Company.

The Goodrich warnings specifically advised of the danger of

explosion if a tire was inflated on a mismatched rim and warned

against the tire-changing procedures Martinez employed.

Martinez, who saw the warnings, understood the warnings, and

as an experienced mechanic, recognized the danger, nonetheless

ignored all the warnings. As he was inflating the tire, the tire

exploded and Martinez was injured. Appendix 2a-3a, 30a-3 1a.

Martinez sued Uniroyal Goodrich, Budd and Ford, seeking

compensatory and punitive damages. Appendix 62a. Martinez

did not claim that the Goodrich warnings were inadequate.

Instead, Martinez contended that safer alternative designs of

both the tire and the rim were feasible and would have prevented

the explosion. Appendix 3a.

The uncontroverted evidence established that the Budd/

Ford rim design was defective and could have easily been

modified to prevent the accident. The Budd/Ford rim could have

been designed to reject a 16" tire, but the Goodrich tire could

not have been designed so that it could not be put on a 16.5"

wheel. Furthermore, while Goodrich’s tire came with prominent

warnings,’ the Budd/Ford rim came with no warnings

1. The Goodrich tire bore a highlighted pictograph showing a

worker being thrown into the air by an exploding tire, and a red and

(Cont'd)

3

whatsoever. Expert evidence showed that the rim size, which

was not prominently marked, should have been displayed in

the wheel well where it could not have been obscured.

Appendix 4Sa-47a.

Budd and Ford settled with Martinez prior to trial, and the

trial proceeded against Goodrich alone. Appendix 3a.

B. Bifurcation is Requested and Denied

To avoid the prejudicial impact of punitive damages

evidence on the liability and compensatory damages issues,

Goodrich requested a bifurcated trial. The trial court denied

Goodrich’s timely motion to bifurcate. Appendix 29a. Goodrich

also objected to the jury charge as violative of the United States

and Texas constitutions. Statement of Facts, April 14, 1993,

p. 1221.

In the unified trial of liability and punitive damages, the

trial court admitted evidence of thirty-four other lawsuits

against Goodrich involving mismatched tires.? Martinez’

counsel commented, when questioning his expert, that: “it takes

only twenty-nine or thirty people to get killed or injured before

(Cont'd)

yellow warning never to mount a 16" diameter tire on a 16.5" rim, never

to inflate a tire that is lying on the floor or other flat surface, never to

inflate to seat beads without using an extension hose with gauge and

clip-on chuck, and never to stand, lean or reach over the assembly during

inflation. It advised that failure to comply with these safety precautions

can Cause serious injury or death. Appendix 2a

2. Goodrich objected to this evidence on the ground that insufficient

similarity had been shown, because thirty-three of those lawsuits

involved tires without the pictographic warning label that was cn the

tire at issue. Appendix 24a-25a.

4

[the tire company comes] to the conclusion that maybe they

ought to change their [tire].” Appendix 57a. He asked

Goodrich’s expert: “So how many people have you all killed?”

/d. During closing arguments, Martinez’ counsel urged the jury

to award Martinez $500,000 for each of the thirty-four other

lawsuits filed against Goodrich, “so as to send a ‘message back

to Akron.’ ” Appendix 30a. Evidence was also admitted that

Budd had been involved in 132 previous lawsuits regarding the

same rim. Appendix 73a. Because Budd and Ford had settled,

however, Martinez’ counsel made no comparable inflammatory

argument against Budd or Ford.

C. Trial Outcome

Under Texas law, the jury may be asked to determine

liability of settling defendants as well as those who proceed to

trial. Tex. Civ. Prac. & Rem. Cope Ann. § 33.003(3) (Vernon

Supp. 1993) (amended 1995).° Thus, comparative responsibility

jury findings were requested concerning liability of Budd and

Ford, as well as Goodrich and Martinez. Appendix 95a.

Despite the overwhelming evidence of liability on the part

of Budd and Ford and of contributory negligence by Martinez,

the jury attributed no fault to those parties. Instead it found

Goodrich 100% liable and awarded $5.5 million in actual

damages and $11.5 million in punitive damages.* Appendix 62a,

9Sa.

3. This case was tried in 1993. Accordingly, the version of the

Statute cited above governed.

4. After reducing the actual damages by $1.4 million pursuant to

Martinez’ settlement agreement with Budd and Ford, reducing punitive

damages to the amount of actual damages pursuant to a pre-trial

agreement between Goodrich and Martinez, and awarding pre-trial

interest, the trial court rendered judgment for $10,308,792.45.

Appendix 62a, 85a-87a

5

The Court of Appeals reversed the jury award of punitive

damages, finding no support in the record. However, it affirmed

the jury’s liability findings and actual damages award. It did

not address Goodrich’s challenge to the trial court’s denial of

bifurcation. See generally, Appendix B.

The Texas Supreme Court affirmed the decision of the

Court of Appeals. Appendix 2a. While acknowledging that the

trial court erroneously denied bifurcation, the Supreme Court

held that failure to bifurcate was harmless error. Appendix 29a-

30a. A vigorously dissenting minority took the majority to task

for its “aberrant” opinion. Appendix 32a. The Court’s four

dissenting justices concluded that “[t]he court’s error [in failing

to bifurcate the trial] clearly prejudiced Goodrich.”

Appendix 59a.°

REASONS FOR GRANTING THE WRIT

I.

THERE IS A SIGNIFICANT CONFLICT AMONG THE

STATES IN CONSTRUING THIS COURT’S

CONSTITUTIONAL DIRECTIVES IN HASLIP, TXO,

AND BMW WHEN DETERMINING WHETHER

BIFURCATION IS CONSTITUTIONALLY REQUIRED.

In holding that the failure to bifurcate was harmless error,

the Texas Supreme Court has completely failed to recognize

the constitutional basis for bifurcation, and has abdicated its

responsibility to insure due process to defendants who face

significant prejudice, not just as to punitive damages, but with

respect to liability and compensatory damages findings as well.

In accord with the Alabama Supreme Court, and in conflict

5. Four justices dissented as to the liability findings against

Uniroyal and as to the ruling regarding bifurcation. Three justices

dissented as to the finding of no liability on the part of Budd, Ford and

Martinez. Appendix 30a-60a.

6

with the decisions of other State courts, the Texas Supreme

Court has failed to recognize that failure to bifurcate is always

harmful error. Compare Uniroyal Goodrich Tire Co. v.

Martinez, 977 S.W.2d 328 (Tex. 1998) (finding failure to

bifurcate harmless error); Life Ins. Co. of Ga. v. Johnson, 701

So.2d 524, 531 (Ala. 1997) (due process does not require

bifurcation); and Hilao v. Estate of Marcos, 103 F.3d 767, 781

(9th Cir. 1996) (due process does not require punitive damage

phase to be decided after compensatory damages phase), with

W. R. Grace & Co. v. Waters, 638 So. 2d 502, 506 (Fla. 1994)

(under Haslip, requiring bifurcation); Hodges v. S.C. Toof &

Co., 833 S.W.2d 896, 901 (Tenn. 1992) (citing Haslip and

requiring bifurcation); see also Scheufler v. General Host Corp.,

126 F.3d 1261, 1272 (10th Cir. 1997) (bifurcation is a

considerable procedural safeguard in analyzing appropriateness

of a second award of punitive damages against a single

defendant for the same or similar conduct).°

In determining whether due process requires bifurcation

to protect liability and compensatory damages findings from

the prejudicial impact of punitive damages evidence, lower

courts have looked to this Court’s directives in BMW of North

America, Inc. v. Gore, 517 U.S. 559 (1996); TXO Production

Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993), and

Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1 (1991).

The courts analyzing these opinions, however, have found no

concrete guidance and have reached conflicting conclusions.

6. Despite admittedly adequate warnings, the jury was able to find

100% lability on Goodrich, without finding any liability on the part of

the rim maker or designer, neither of whom provided any warning of

the danger. Had this same case been tried 1n a federal court in either the

Fifth or Eleventh Circuits, this result would not have occurred. See

Westbrook v. General Tire & Rubber Co., 754 F.2d 1233, 1235; Richards

v. Michelin Tire Corp., 21 F.3d 1048, 1056-59 (11th Cir. 1994).

For example, “mindful of the concerns of the Supreme

Court in Haslip that the procedures followed in punitive

damages cases must accord with due process,” the Florida

Supreme Court has mandated bifurcation. W.R. Grace, 638

So.2d at 506. Similarly, the Supreme Court of Tennessee

followed Haslip in determining that bifurcation is required, as

“unlimited jury discretion ... in fixing of punitive damages

may invite extreme results that jar one’s constitutional

sensibilities.” Hodges, 833 S.W.2d at 900-01.

By contrast, in reliance on BMW, the Alabama Supreme

Court, which had earlier required bifurcation, determined that

bifurcation was not necessary to assure due process. Johnson,

701 So.2d at 531-32. Similarly, citing Haslip, TXO and BMV,

the Ninth Circuit concluded that due process does not require

that punitive damages be decided after an award of

compensatory damages. Hilao, 103 F.3d at 781 (9th Cir. 1996).’

Under the conflicting case law cited above, depending upon

the State or circuit in which an incident such as this one happens,

Goodrich may or may not receive constitutionally adequate

protection against a jury verdict inflamed by passion and

prejudice.* Goodrich, as a company engaged in national

commerce whose tires are placed on cars and trucks that traverse

the entirety of this country, has a legitimate expectation of

uniformity.

These conflicting opinions are resounding evidence of the

need for this Court to address this important constitutional issue.

7. The punitive and compensatory damages portions of that trial

were, however, bifurcated.

8. Texas does not have the right to subject a company engaged in

nationwide commerce to biased and prejudicial trials that would not

occur in other States where bifurcation is constitutionally mandated.

See BMW, 517 U.S. at 585-86.

8

This Court should resolve this conflict and provide a uniform

rule of law requiring the fundamental procedural safeguard of

bifurcation.

Il.

WHETHER BIFURCATION IS CONSTITUTIONALLY

REQUIRED IS AN IMPORTANT QUESTION OF

FEDERAL LAW THAT HAS NOT BEEN, BUT SHOULD

BE, SETTLED BY THIS COURT.

The outcome here demonstrates the inflammatory spillover

that occurs when punitive damages issues are not separated from

liability and compensatory issues. The evidence of liability

against Budd and Ford was far more compelling than that

against Goodrich. Yet, astonishingly, the jury attributed no fault

to Budd or Ford and 100% fault to Goodrich. The distinguishing

factor: only Goodrich was subjected to inflammatory punitive

damages argument.

This taint to liability and compensatory findings is

immeasurable, and the harm cannot be quantified or remedied

on appeal. Whether the due process clause requires bifurcation

of all punitive damages trials as a prophylactic measure is an

important federal question that merits this Court’s attention.

A. Due process concerns are plainly implicated.

This Court considers three factors to determine what

process is constitutionally required.

First, the private interest that will be affected by the

official action; second, the risk of an erroneous

deprivation of such interest through the procedures

used, and the probable value, if any, of additional

or substitute procedural safeguards; and finally the

9

Government’s interest, including the function

involved and the fiscal and administrative burdens

that the additional or substitute procedural

requirement would entail.

See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Application

of these factors leads to the conclusion that due process requires

bifurcated trials when punitive damages are sought.

1. Litigants have a substantial private interest in

avoiding unwarranted assessment of liability and

damages.

Litigants have a substantial interest in avoiding

unwarranted damages, both punitive and compensatory. This

Court has already recognized that the size and circumstances

of punitive damages awards may violate due process concerns.

See, e.g., BMW of N. Am., Inc. v. Gore, 517 U.S. at 559.

The risk of overreaching actual damages, however, may

present an even greater threat than the threat of enormous

punitive awards. In Texas and in many other states, a punitive

damages award may be limited by statute. See, e.g., TEx. Civ.

Prac. & Rem. Cope Ann. § 41.008(b) (Vernon 1997). See also

Ga. Cope ANN. § 51-12-5.1(d)(1)-(2) (Supp. 1998); Onto Rev.

Cope Ann. § 2315.21 (C)-(D) (Anderson Supp. 1997). The size

of compensatory awards, however, is rarely statutorily

circumscribed and might indeed cause financial ruin. Thus,

litigants have a substantial private interest in avoiding

compensatory damage awards that might be improperly inflated

by inflammatory punitive damages evidence.

Likewise, litigants have a substantial private interest in

avoiding the stigma of an unwarranted liability finding. See,

e.g., Wisconsin v. Constantinau, 400 U.S. 433, 437 (1971)

10

(when “the State attaches ‘a badge of infamy’ to the citizen,

due process comes into play”); /n re Winship, 397 U.S. 358,

363 (1970) (the “certainty that [the defendant] would be

stigmatized by the conviction” is one of the interests at stake

when determining what procedural due process 1s required).

Thus, defendants have a substantial, two-fold interest at

stake. They seek to avoid both unwarranted findings of liability

against them and unwarranted or excessive compensatory

damages awards. See generally Malcolm E. Wheeler, 7he

Constitutional Case for Reforming Punitive Damages

Procedures, 69 Va. L. Rev. 269 (1983) (hereinafter cited as

“Wheeler’).

2. The risk of jury taint is substantial in non-bifurcated

trials, and the value of bifurcation is great.

Non-bifurcated trials create a substantial risk that the jury

might incorrectly find liability and might award an excessive

amount of compensatory damages. Sce Wheeler, 69 Va. L.

Rev. at 284-85. In unified trials, the jury hears evidence relevant

only to punitive damages issues prior to deciding liability and

compensatory damages. Although punitive damages evidence

takes various forms, the plaintiff generally attempts to prove

his punitive damages case by introducing evidence of the

defendant’s alleged wealth or malice.

The prejudicial nature of this type of evidence is widely

acknowledged. Numerous jurisdictions have recognized that

evidence of a defendant’s wealth, although relevant to the issue

of punitive damages, 1s prejudicial if considered when assessing

compensatory damages. See, e.g., W.R. Grace & Co. v. Waters,

638 So.2d 502, 506 (Fla. 1994); Feld v. Merriam, 485 A.2d

742, 748 (Pa. 1984); Campen v. Stone, 635 P.2d 1121, 1132

(Wyo. 1981); Farmy v. College Housing, Inc., 121 Cal. Rpt.

1]

658, 670 (1975); Life & Cas. Ins. Co. v. Padgett, 407 S.W.2d

728, 730 (1966). Where compensatory and punitive issues are

tried together, there is no way to determine whether a liability

finding in a close case or an award of high compensatory

damages resulted from prejudicial punitive damages evidence.

The risk of jury contamination becomes more pronounced

when, as here, the punitive award was not warranted. The court

of appeals cannot “unring that bell.” Although the punitive

award was not warranted, the inflammatory evidence was before

the jury when it made its findings of liability and compensatory

damages. Where the jury erred in awarding punitive relief, the

likelihood increases that its liability and/or compensatory

damages findings also were influenced by the same passion or

prejudice that resulted in the unwarranted punitive award. See

Wheeler, 69 Va. L. REv. at 288-89.

The most insidious aspect of this type of jury contamination

is that it is often obscured. The procedural posture below,

requiring liability findings as to settling defendants but

subjecting only Goodrich to punitive damages argument, as well

as the ultimate outcome, finding Goodrich 100% liable,

illuminates the problem of jury taint. By contrast, where there

is only a single defendant or when all defendants are subjected

to punitive damages argument, a reviewing court cannot discern

the impact the punitive damages argument might have had on

liability findings. Moreover, as long as a jury’s compensatory

damages award falls within the continuum of the amount

suggested by the defendant and that sought by the plaintiff, a

reviewing court cannot know whether the award was tainted.

Many courts have recognized the difficulty, if not the

impossibility, of determining the impact of jury contamination.

Consequently, when reversing a punitive award, courts have

remanded liability and/or compensatory damages issues for a

new trial. See, e.g., Campen, 635 P.2d at 1132 (remanding entire

12

case for new trial because “[1i]t is impossible to say that the jury’s

verdict of compensatory damages was not affected by its

knowledge that [the defendant] had a deep pocket”); Pudgett, 407

S.W.2d at 730 (recognizing that “[i]t 1s hardly possible that the

jury did not take [punitive damages] into consideration in fixing

[compensatory damages]” and holding that the only way “to protect

the appellants from the possibility of prejudice is to grant a new

trial upon all issues”); Kieninger v. New York, 384 N.Y.S.2d 11,

12 (App. Div. 1976) (remanding for a new trial of compensatory

damages because the jury, in reaching compensatory damages

verdict, may have considered the amount of punitive damages

awarded); army, 121 Cal. Rptr. at 670 (remanding for retrial of

compensatory damages because improper punitive evidence

“tainted the award for compensatory damages”); see also

Parsons v. First Investors Corp., 122 F.3d 525, 529 (8th Cir. 1997)

(general rule is that where a punitive damages award is the result

of passion and prejudice, new trial 1s required due to the concern

that the liability finding may have been compromised);

Westbrook v. General Tire & Rubber Co., 754 F.2d 1233, 1241

(Sth Cir. 1985) (remanding for new trial of compensatory damages

because of prejudicial argument that jury should act as “community

conscience’’).

Other courts, however, including the Texas courts here, simply

fail to recognize the jury contamination that can result from

inflammatory punitive damages evidence, and affirm liability and

compensatory damages findings even when they reverse punitive

awards. See, e.g., Rosener v. Sears, Roebuck & Co., 168 Cal. Rptr.

237, 245-46 (1980). If reviewing courts can overlook taint — as

the majority did below — when the evidence of jury bias is

overwhelming, it is fair to assume that they will fail to recognize

the problem where the taint is obscured. Any presumption of an

effective post-trial remedy is therefore illusory, and does not satisfy

due process.”

9. The after-the-fact remedy of a new trial also is inefficient and

costly to the parties and the judicial system.

13

Trial bifurcation, however, is a simple and effective

remedy. Whether or not they have recognized bifurcation as

constitutionally required, numerous jurisdictions, including

Texas itself, have recognized the value of bifurcated trials in

preventing jury contamination where punitive relief is sought.

At least eight jurisdictions have enacted bifurcation statutes,'°

and a number of other jurisdictions judicially mandate

bifurcation to permit the trial of punitive damages issues only

after the jury has rendered a verdict on liability and

compensatory damages."

Unquestionably, bifurcation protects against and reduces

the risk of erroneous verdicts. See e.g., Scheufler v. General

Host Corp., 126 F.3d 1261, 1272 (10th Cir. 1997) (bifurcation

is a considerable procedural safeguard); Parsons, 122 F.3d at

529 (because trial was bifurcated, no risk that improper closing

argument affected liability and compensatory damages

10. See 735 Itt. Comp. Stat. ANN. 5/2-1115.05(c) (Supp. 1998);

KAN. STAT. ANN. § 60-3701(a) (1994); OxLa. Stat. ANN., Tit. 23, § 9.1

(B-D) (West Supp. 1999); Minn. Stat. ANN. 549.20(4) (West Supp.

1999); Mo. ANN. Stat. § 510.263(1)-(4) (West Supp. 1998); Mont. Cope

ANN. 27-1-221(7) (1997); Nev. Rev. Stat. § 42.005(3) (1997); N.D.

Cent. Code § 32-03.2-11(1)-(3) (Supp. 1997); see also Cat. Civ. Cove

§ 3295(d) (West 1997); Ga. Cope Ann. § 51-12-5.1(d)(1)-(2) (Supp.

1998); Onto Rev. Cope Ann. § 2315.21(C) (Anderson Supp. 1997); Uran

Cope ANN. 78-18-1(2) (1996).

11. See, e.g., Transportation Ins. Co. v. Moriel, 879 S.W.2d 10,

30 (Tex. 1994); W.R. Grace, 638 So.2d at 506 (holding “henceforth

trial courts, when presented with a timely motion, should bifurcate the

determination of the amount of punitive damages from the remaining

issues at trial”); Hodges v. S. C. Tool & Co., 833 S.W.2d 896, 900-01

(Tenn. 1992) (setting forth a new procedure, including bifurcated trial,

aimed at guiding a jury in deciding whether to award punitive damages

and, if so, in what amount); Campen, 635 P.2d at 1132 (reasoning that it

was impossible to say that the jury’s verdict of compensatory damages

was not affected by its knowledge that the defendant had a deep pocket

from which any award would be satisfied).

14

determination); 7ransportation Ins. Co. v. Moriel, 879 S.W.2d

10, 30 (Tex. 1994) (mandating bifurcation to avoid the “very

real potential for prejudicing the jury’s determination of other

disputed issues in a tort case.”); Campen, 635 P.2d at 1131

(bifurcation provides the defendant “a prejudice-free

atmosphere in which his liability may be assessed”’). Bifurcation

permits the jury to make findings on liability and compensatory

damages issues before hearing inflammatory evidence of wealth

and malice that is admissible only on the punitive damages

issue. Moreover, when a higher burden of proof is required on

the punitive damages issues, bifurcation also reduces the jury’s

confusion by allowing it to separate evidence that must be

considered under a preponderance of the evidence test from

evidence that must be considered under a clear and convincing

evidence test. Wheeler, 69 Va. L. Rev. at 301, 321.

3. The government’s interest will not be prejudiced and

is likely to be advanced by bifurcation.

To the extent that the government shares the interest of

the public at large in deterrence of and retribution for outrageous

conduct, that interest is confined to achieving those goals

through the equitable imposition of punitive damages. A

bifurcated trial provides a prejudice-free atmosphere for the

defendant, while preserving society’s interest in effecting

punishment and deterrence for socially outrageous conduct.

Campen, 635 P.2d at 1131. Thus, bifurcation does not threaten

the government’s interest in securing punitive damages where

they are warranted.

Likewise, the government has an interest in ensuring that

liability and compensatory damages determinations are just.

Bifurcation furthers that governmental interest by eliminating

the risk that inflammatory punitive damages evidence might

result in an improper liability and compensatory damages result.

15

See Parsons, 122 F.3d at 529. Further, when a higher burden

of proof is required on punitive damages issues, bifurcation

eliminates the likelihood of juror confusion arising from having

to apply two standards of proof simultaneously. Wheeler, 69

Va. L. REv. at 301, 321.

Bifurcation decreases the court’s fiscal and administrative

burdens in every case in which the defendant prevails on the

issue of liability, thus eliminating the need to litigate punitive

damages. Additionally, without any basis to argue that

inflammatory evidence influenced liability and compensatory

findings, there should be fewer grounds for appeal. Finally,

less trial time will be consumed by issues relating to the

presentation of evidence on these conflicting elements. See

Wheeler, 69 Va. L. Rev. at 321-22.

B. This Court should address this important issue.

This Court has recognized that punitive damages awards

implicate due process concerns. See, e.g., BMW, 517 U.S. at

568 (setting forth factors to consider in determining

excessiveness); TXO Prod. Corp., 509 U.S. at 462 (holding that

punitive award was not so grossly excessive as to violate due

process); Haslip, 499 U.S. at 19 (concluding that punitive award

at issue did not violate due process clause).

This Court has not, however, expressly addressed the due

process concerns raised by the impact of inflammatory punitive

damages evidence on determinations of liability and

compensatory damages. Lower courts have looked to this Court

for guidance in determining whether due process demands the

safeguard of bifurcated trials when punitive damages are at

issue. The fact that they have found no express pronouncement

on this issue and have reached conflicting results demonstrates

that this issue deserves the attention of this Court.

| |

16

CONCLUSION

For the foregoing reasons, Petitioner Uniroyal Goodrich

f

fire Company requests that this Honorable Court grant its

Petition for Writ of Certiorari

Respectfully submitted,

TERRIANN TROSTLE

Counsel of Record

ANN E. WEBB

KATHLEEN WEISZ OSMAN

FULBRIGHT & JAWORSKI L.L.P.

1301 McKinney - Suite 5100

Houston, Texas 77010

(713) 651-5151

BEN A. DONNELL

MEREDITH, DONNELL

& ABERNETHY, P.C.

One Shoreline Plaza

800 N. Shoreline

Suite 1500 - North Tower

Corpus Christi, Texas 78401

($512) 888-5551

Attorneys for Petitioner

APPENDIX

%,

ras

*

la

APPENDIX A — SUBSTITUTED OPINIONS ON

MOTION FOR REHEARING OF CAUSE DATED AND

DELIVERED OCTOBER 15, 1998

SUBSTITUTED OPINIONS ON MOTION

FOR REHEARING OF CAUSE

UNIROYAL GOODRICH TIRE COMPANY

vs.

ROBERTO O. MARTINEZ ET UX.

No. 95-1159

* * *

OPINION

CuieF Justice Puitups delivered the opinion of the Court,

in which Justice GonzaLces, Justice SPECTOR, JUSTICE ABBOT1

and Justice HANKINSON join.

Justice Hecut filed a dissenting opinion, in which Justict

ENnocu and Justice BaKer join, and in which JUSTICE OWEN joins

in all but Part II.

Petitioner’s motion for rehearing is overruled. We withdraw

our opinion of July 3, 1998, and substitute the following

opinion.

We must decide whether a manufacturer who knew of a

safer alternative product design is liable in strict products

liability for injuries caused by the use of its product that the

user could have avoided by following the product’s warnings.

The court of appeals held that the mere fact that a product bears

Nm

Appendix A

an adequate warning does not conclusively establish that the

product is not defective. 928 S.W.2d 64. Because we agree, we

affirm the judgment of the court of appeals

Roberto Martinez, together with his wife and children, sued

Uniroyal Goodrich Tire Company (“Goodrich”), The Budd

Company, and Ford Motor Company for personal injuries

Martinez suffered when he was struck by an exploding 16"

Goodrich tire that he was mounting on a 16.5" rim. Attached to

the tire was a prominent warning label containing yellow and

‘d highlights and a pictograph of a worker being thrown into

~ hi

ur by an exploding tire. The label stated conspicuously

DANGER

NEVER MOUNT A 16" SIZE DIAMETER TIRI

ON A 16.5" RIM. Mounting a 16" tire on a 16.5"

rim can cause severe injury or death. While it 1s

to pass a 16" diameter tire over the lip o1

lange of a 16.5" size diameter rim, it cannot position

tself against the rim flange. If an attempt 1s made

seat the bead by inflating the tire, the tire bead

Ee" cs eee want : —

| Oreak WI1tnN explosive force

NEVER inflate a tire which 1s lying on the floor o1

Other flat surface. Always use a tire mountings

machine with a hold-down device or safety cage o1

NEVER inflate to seat beads without usi!

3a

Appendix A

NEVER stand, lean or reach over the assembly

during inflation.

Failure to comply with these safety precautions can

cause the bead to break and the assembly to burst

with sufficient force to cause serious injury or death.

Unfortunately, Martinez ignored every one of these warnings.

While leaning over the assembly, he attempted to mount a 16"

tire on a 16.5" rim without a tire mounting machine, a safety

cage, or an extension hose. Martinez explained, however, that

because he had removed a 16" tire from the 16.5" rim, he

believed that he was mounting the new 16" tire on a 16" rim.

Moreover, the evidence revealed that Martinez’s employer

failed to make an operable tire-mounting machine available to

him at the time he was injured, and there was no evidence that

the other safety devices mentioned in the warning were

available.

In their suit, the Martinezes did not claim that the warnings

were inadequate, but instead alleged that Goodrich, the

manufacturer of the tire, Budd, the manufacturer of the rim,

and Ford, the designer of the rim, were each negligent and

strictly liable for designing and manufacturing a defective tire

and rim. Budd and Ford settled with the Martinezes before trial,

and the case proceeded solely against Goodrich.

At trial, the Martinezes claimed that the tire manufactured

by Goodrich was defective because it failed to incorporate a

safer alternative bead design that would have kept the tire from

exploding. This defect, they asserted, was the producing cause

4a

Appendix A

of Martinez’s injuries. Further, they alleged that Goodrich’s

failure to adopt this alternative bead design was negligence

that proximately caused Martinez’s injury

[he bead 1s the portion of the tire that holds the tire to the

rim when inflated. A bead consists of rubber-encased steel

wiring that encircles the tire a number of times. When the tire

is placed inside the wheel rim and inflated, the bead is forced

onto the bead-seating ledge of the rim and pressed against the

lip of the rim, or the wheel flange. When the last portion of the

bead is forced onto this ledge, the tire has “seated,” and the air

is properly sealed inside the tire. The bead holds the tire to the

rim because the steel wire, unlike rubber, does not expand when

the tire is inflating. The tire in this case was a 16" bias-ply

light truck tire with a 0.037" gauge multi-strand weftless bead,

or tape bead, manufactured in 1990. A tape bead consists of

several strands of parallel unwoven steel wires circling the tire

with each layer resting on top of the last, similar to tape wound

on aroll. After a number of layers have been wound, the end of

the bead is joined, or spliced, to the beginning of the same

bead to form a continuous loop.

[he Martinezes’ expert, Alan Milner, a metallurgical

engineer, testified that a tape bead 1s prone to break when the

spliced portion of the bead is the last portion of the bead to

seat. This is commonly called a hang-up. Milner testified that

an alternative bead design, a 0.050" gauge single strand

programmed bead, would have prevented Martinez’s injuries

because its strength and uniformity make it more resistant to

breaking during a hang-up. Milner explained that the 0.050"

single strand programmed bead 1s stronger because it 1s 0.013"

thicker and that it 1s uniform because it 1s wound, or

programmed, by a computer, eliminating the spliced portion of

the bead that can cause the tire to explode during a hang-up

Ln

e

~

Appendix A

According to Milner, Firestone was the first to document

that tape beads were prone to break during hang-ups in a 1955

patent application. This application, which was granted three

years later, stated 1n part:

It has developed that in tires of the type now 1n

common use that the grommet of wire used becomes

ruptured or broken too frequently at or near the end

of the wire splice when the tire bead 1s forced onto

the rim bead seat during mounting of the tire.

Applicant has discovered that such breaking of the

bead wire occurs most frequently when the spliced

portion of the bead wire grommet is located in the

last portion of the tire bead to be seated on the rim,

and they have noted that when an end of the said

wire ribbon was disposed on the radial inner surface

of the bead grommet that the break started at or

adjacent to that point

Milner testified that the design of the bead in the Goodrich tire

in question was the same design criticized in the patent. Milner

also testified, relying on an internal memorandum that was

admitted into evidence, that in 1971 General Tire, one of

Goodrich’s competitors, knew its tape bead design was prone

to break during hang-ups.

In 1966, 16.5" wheel rims were first introduced into the

\merican market.' Milner testified that Uniroyal, Inc. and B.!

Goodrich Company, who in 1986 merged to form Goodrich,

1

soon became aware that mismatching their 16" tires with the

new wheel rims often caused hang-ups that resulted in broken

The rim involved in this case was manufactured in 1979. The

Budd Company ceased manufacturing 16.5" rims in 1983

6a

Appendix A

beads. The minutes of a 1972 meeting of the Rubber

Manufacturers Association (“RMA”), of which both I Iniroyal,

Inc. and B.F. Goodrich were members, provided:

Mounting of LT [light truck] tires. Attention was

drawn to reports that there have been instances

where 16" LT tires have been mounted on 16.5" rims

and 14" tires on 14.5" rims. It was proposed and

approved to request the Service Managers

Committee to add a cautionary statement to RMA

documents.

Similarly, the minutes from a 1972 meeting of the Tire and

Kim Association, of which Uniroyal, Inc. and B.F. Goodrich

were both members, provided:

It was reported that there have been incidents where

14" and 16" tires have been mounted on 14.5" and

16.5" rims that have resulted in broken beads. The

Rim Subcommittee of the Technical Advisory

Committee was requested to consider some method

of marking 15" Drop Center rims and wheels to

avoid this practice.

Finally, Milner testified that B.F. Goodrich’s own testing

department was aware by at least 1976 that a 16" tire mounted

on a 16.5" rim would explode during a hang-up. A B.F.

Goodrich “test request” of that year was entered into evidence

indicating that a 16" tire would explode when mounted on a

16.5" rim at 73 psi (pounds of pressure per square inch). The

test request further indicated that “inspection revealed break

was at [illegible] ends of bottom layer of [bead] wires as

anticipated.” The stated “Object of Test” was: “To develop

7a

Appendix A

demonstrative evidence & data for use in lawsuits involving

broken beads.”

Milner explained that the computer technology required

to manufacture the programmed bead was developed in 1972

and widely available by 1975. Milner testified that Goodyear

began using a 0.051" gauge single strand programmed bead in

its radial light truck tires in 1977, and that Yokohama began

using a single strand programmed bead in its radial light truck

tires in 1981. Milner also testified that General Tire began using

a single strand programmed bead in its bias-ply light truck tires

in 1982. Finally, Milner testified that Goodrich itself began

using the single strand programmed bead in its 16" radial light

truck tires in 1991.? Based upon this evidence and his expert

opinion, Milner testified that the tire manufactured by Goodrich

with a tape bead was defective and unreasonably dangerous.

Because Goodrich had also been sued in thirty-four other

lawsuits alleging accidents caused by mismatching Goodrich

tires, Milner asserted that Goodrich was grossly negligent in

failing to adopt the 0.050" single strand programmed bead in

its bias-ply 16" light truck tires.

Milner also testified that the rim designed by Ford and

manufactured by Budd was defective because its size was not

clearly marked on it and because it could have been redesigned

lo prevent a 16" tire from passing over its flange.

The jury found that Goodrich’s conduct was the sole

proximate cause of Martinez’s injuries and that Goodrich was

grossly negligent. Furthermore. the jury found that the tire

manufactured by Goodrich was defective, while the wheel rim

designed by Ford and manufactured by Budd was not defective.

2. Goodrich has ceased manufacturing bias-ply light truck tires

8a

Appendix A

The jury allocated 100% of the producing cause of Martinez’s

injuries to the acts and omissions of Goodrich.

The jury awarded the Martinezes $5.5 million in actual

damages and $11.5 million in punitive damages. After reducing

the award of actual damages by $1.4 million pursuant to a

settlement agreement between the Martinezes, Ford, and Budd,

reducing the punitive damages to the amount of actual damages

pursuant to a pretrial agreement between Goodrich and the

Martinezes, and awarding prejudgment interest, the trial court

rendered judgment for the Martinezes for $10,308,792.45.

The court of appeals affirmed the award of actual damages,

holding that there was legally sufficient evidence to support

the finding of a design defect based upon its examination of

the following factors: (1) the availability of safer design

alternatives; (2) similar accidents involving the same product;

(3) subsequent changes or modifications in design; (4) out-of-

court experiments indicating Goodrich’s knowledge of a design

defect; and (5) expert testimony claiming a design defect. 928

S.W.2d at 70. The court rejected Goodrich’s argument that

Martinez’s failure to heed the product’s warnings was a

complete defense to the product defect claim. However, the

court of appeals reversed and rendered the award of punitive

damages, holding that there was no evidence to support the

jury’s finding of gross negligence.

Only Goodrich applied to this Court for writ of error. As

in the court of appeals, Goodrich’s principal argument here is

that no evidence supports the jury finding that the tire was

defective because “the tire bore a warning which was

unambiguous and conspicuously visible (and not claimed to be

inadequate); the tire was safe for use if the warning was

9a

Appendix A

followed; and the cause of the accident was mounting and

inflating a tire in direct contravention of those warnings.”

We will sustain a no evidence point of error when (1) the

record discloses a complete absence of evidence of a vital fact;

(2) the court is barred by rules of law or of evidence from giving

weight to the only evidence offered to prove a vital fact;

(3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence establishes conclusively the

opposite of the vital fact. See Juliette Fowler Homes, Inc. v.

Welch Assocs., Inc., 793 §.W.2d 660, 666 n. 9 (Tex. 1990)

(citing Calvert, “No Evidence” and “Insufficient Evidence”

Points of Error, 38 Tex. L. Rev. 361, 362-363 (1960)).

Il

A

This Court has adopted the products liability standard set

forth in section 402A of the Restatement (Second) of Torts.

See Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608,

613 (Tex. 1996); McKisson v. Sales Affiliates, Inc., 416 S.W.2d

787, 788-89 (Tex. 1967). Section 402A states:

(1) one who sells any product in a defective

condition unreasonably dangerous to the user or

consumer or to his property is subject to liability

for physical harm thereby caused to the ultimate user

or consumer, or to his property, if

(a) the seller is engaged in the business of selling

such a product, and

3

~

‘

EE

10a

Appendix A

(b) it 1s expected to and does reach the user or

consumer without substantial change in the

condition in which it 1s sold.

RESTATEMENT (SECOND) OF Torts § 402A (1965). A product may

be unreasonably dangerous because of a defect in

manufacturing, design, or marketing. See Caterpillar, Inc. v.

Shears, 911 S.W.2d 379, 382 (Tex. 1995); Technical Chem.

Co. v. Jacobs, 480 S.W.2d 602, 604-05 (Tex. 1972). To prove

a design defect, a claimant must establish, among other things,

that the defendant could have provided a safer alternative

design. See Caterpillar, 911 S.W.2d at 384 (“[I]f there are no

safer alternatives, a product is not unreasonably dangerous as

a matter of law.”). Implicit in this holding 1s that the safer

alternative design must be reasonable, ij.e., that it can be

implemented without destroying the utility of the product. See

id. (“ ‘Texas law does not require a manufacturer to destroy

the utility of his product in order to make it safe.’ ”) (quoting

Hagans v. Oliver Mach. Co., 576 F.2d 97, 101 (Sth Cir. 1978)).?

The newly released Restatement (Third) of Torts: Products

Liability carries forward this focus on reasonable alternative

design. See RESTATEMENT (THIRD) OF TorTS: PRODUCTS LIABILITY

§ 2(b). Section 2(b) provides:

A product ... 1s defective in design when the

foreseeable risks of harm posed by the product could

have been reduced or avoided by the adoption of a

reasonable alternative design by the seller or other

3. Although not applicable to the present case, the Texas Legislature

has recently codified the “reasonably safe alternative” requirement. TEx.

Civ. Prac. & Rem. Cope § 82.005 (safer alternative design must be shown

by preponderance of the evidence in design defect case).

iE

felt Sa

lla

Appendix A

distributor, or a predecessor in the commercial chain

of distribution, and the omission of the alternative

design renders the product not reasonably safe.

To determine whether a reasonable alternative design exists,

and if so whether its omission renders the product unreasonably

dangerous (or in the words of the new Restatement, not

reasonably safe), the finder of fact may weigh various factors

bearing on the risk and utility of the product. See Caterpillar,

911 S.W.2d at 383-84; Turner v. General Motors Corp., 584

S.W.2d 844, 848 (Tex. 1979).* One of these factors is whether

the product contains suitable warnings and instructions. See

Turner, 584 S.W.2d at 847. The new Restatement likewise

carries forward this approach:

A broad range of factors may be considered in

determining whether an alternative design is

reasonable and whether its omission renders a

product not reasonably safe. The factors include,

among others, the magnitude and probability of the

foreseeable risks of harin, the instructions and

warnings accompanying the product, and the nature

and strength of consumer expectations regarding the

product, including expectations arising from product

portrayal and marketing. . . . The relative advantages

and disadvantages of the product as designed and

as it alternatively could have been designed may

4. While there is language in 7urner suggesting that whether a safer

alternative design exists is merely one of the factors to be weighed by

the jury, see 584 S.W.2d at 846-47, we made clear in Caterpillar that a

safer alternative is a prerequisite to a finding of design defect, see 91 |

S.W.2d at 384. Our approach in Caterpillar is reflected in the new

Restatement.

12a

Appendix A

also be considered. Thus, the likely effects of the

alternative design on production costs; the effects

of the alternative design on product longevity,

maintenance, repair, and esthetics; and the range of

consumer choice among products are factors that

may be taken into account....

RESTATEMENT (THIRD) OF TorTs: PRopucts LiaABILITy § 2 cmt. f

(emphasis added).

Goodrich urges this Court to depart from this standard by

following certain language from Comment] of the Restatement

(Second) of Torts. Comment j provides in part:

Where warning is given, the seller may reasonably

assume that it will be read and heeded; and a product

bearing such a warning, which is safe for use if it is

followed, is not in defective condition, nor is it

unreasonably dangerous.

RESTATEMENT (SECOND) OF Torts § 402A cmt. } (1965). The new

Restatement, however, expressly rejects the Comment }

approach:

Reasonable designs and instructions or warnings

both play important roles in the production and

distribution of reasonably safe products. In general,

when a safer design can reasonably be implemented

and risks can reasonably be designed out of a

product, adoption of the safer design is required over

a warning that leaves a significant residuum of such

risks. For example, instructions and warnings may

be ineffective because users of the product may not

13a

Appendix A

be adequately reached, may be likely to be

inattentive, or may be insufficiently motivated to

follow the instructions or heed the warnings.

However, when an alternative design to avoid risks

cannot reasonably be implemented, adequate

instructions and warnings will normally be sufficient

to render the product reasonably safe. Compare

Comment e. Warnings are not, however, a substitute

for the provision of a reasonably safe design.

RESTATEMENT (THIRD) OF TorTS: PRopucts LIABILITY § 2 cmt. |

(emphasis added). The Reporters’ Notes in the new Restatement

refer to Comment j as “unfortunate language” that “has elicited

heavy criticism from a host of commentators.” RESTATEMENT

(THIRD) OF TorTs: Propucts LiaBILIiTy § 2, Reporters’ Note, cmt.

| (citing Latin, Good Warnings, Bad Products, and Cognitive

Limitations, 41 U.C.L.A. L. Rev. 1193 (1994) (utilizing the

work of cognitive theorists to demonstrate that warnings should

only be used as a supplement to a design that already embodies

reasonable safety and not as a substitute for it); Twerski, ef a/.,

The Use and Abuse of Warnings in Products Liability: Design

Defect Comes of Age, 61 CorNnELL L. Rev. 495, 506 (1976)).

Similarly, this Court has indicated that the fact that a danger is

open and obvious (and thus need not be warned against) does

not preclude a finding of product defect when a safer, reasonable

alternative design exists. See Caterpillar, 911 S.W.2d at 383.

(“A number of courts are of the view that obvious risks are not

design defects which must be remedied. (citations omitted).

However, our Court has held that liability for a design defect

may attach even if the defect is apparent.”).

The drafters of the new Restatement provide the following

illustration for why courts have overwhelmingly rejected

Comment j:

l4a

Appendix A

Jeremy’s foot was severed when caught between the

blade and compaction chamber of a garbage truck

on which he was working. The injury occurred when

he lost his balance while jumping on the back step

of the garbage truck as it was moving from one stop

to the next. The garbage truck, manufactured by

XYZ Motor Co., has a warning in large red letters

on both the left and right rear panels that reads

“DANGER — DO NOT INSERT ANY OBJECT

WHILE COMPACTION CHAMBER IS WORKING

KEEP HANDS AND FEET AWAY.” The fact that

adequate warning was given does not preclude

Jeremy from seeking to establish a design defect

under Subsection (b). The possibility that an

employee might lose his balance and thus encounter

the shear point was a risk that a warning could not

eliminate and that might require a safety guard.

Whether a design defect can be established 1s

governed by Subsection (b).

RESTATEMENT (THIRD) OF Torts: PRopucTs LIABILITY § 2 cmt. |,

illus. 14.° In fact, Goodrich recognized at trial that warnings

are an imperfect means to remedy a product defect. In response

to a question posed by the Martinezes’ attorney, Goodrich

engineer Stanley Lew answered:

Q: Is that why designs of a product are more

important than warnings on a product because

people may not see warnings but they are

always going to encounter the design?

5. This illustration is based on Uloth v. City Tank Corp., 376 Mass

874, 384 N.E.2d 1188 (Mass. 1978).

15a

Appendix A

A: Yes, that’s correct. It’s the products they deal

with.

For these reasons we refuse to adopt the approach of Comment

j of the superseded Restatement (Second) of Torts section 402A.

B

We do not hold, as the dissenting justices claim, that “a

product is defective whenever it could be more safely designed

without substantially impairing its utility,” post at __, or that

“warnings are irrelevant in determining whether a product is

reasonably safe.” Post at ___. Rather, as we have explained, we

agree with the new Restatement that warnings and safer

alternative designs are factors, among others, for the jury to

consider in determining whether the product as designed is

reasonably safe. See RESTATEMENT (THIRD) OF TorTS: PRODUCTS

LiaBiLiTy § 2 cmt. f. While the dissenting justices say that they

also agree with the Restatement’s approach, they would, at least

in this case, remove the balancing process from the jury. Instead,

they would hold that Goodrich’s warning rendered the tape bead

design reasonably safe as a matter of law.

The dissenting justices first argue that Goodrich’s warning

was Clear and that it could have been followed, and consequently

Martinez was injured only by “[iJgnoring ... his own good

sense.” Postat__. Evenif this were true,” it is precisely because

“it 1s not at all unusual for a person to fail to follow basic

warnings and instructions,” General Motors Corp. v. Saenz,

873 S.W.2d 353, 358 (Tex. 1993), that we have rejected the

superseded Comment j. The dissent also notes that there have

6. As discussed in part V of this opinion, we uphold the jury’s

finding that Martinez was not negligent.

l6a

Appendix A

been few reported mismatch accidents involving tires with this

particular warning label. While this is certainly relevant, and

perhaps would persuade many juries, we cannot say that it

conclusively establishes that the tire is reasonably safe when

weighed against the other evidence. The jury heard firsthand

how an accident can occur despite the warning label, and how

a redesigned tire would have prevented that accident. The jury

also heard evidence that Goodrich’s competitors had

incorporated the single strand programmed bead by the early

1980s, and that Goodrich itself adopted this design in 1991, a

year after manufacturing the tire that injured Martinez. Under

these circumstances, there is at least some evidence supporting

the jury’s finding of product defect.

Il

Goodrich argues that even if its Comment j argument does

not prevail, it is still entitled to judgment as a matter of law

because no safer alternative was available. In response, the

Martinezes point to the evidence that Goodrich’s competitors,

and eventually Goodrich itself, adopted the safer 0.050" single

strand programmed bead. Goodrich counters that this alternative

design is not in fact safer because if the tire is matched to the

wrong size rim tlie bead will never seat on the rim and it will

inevitably explode during use.

We agree with the general proposition that a manufacturer

should not be liable for failing to adopt an alternative design

that would, under other circumstances, impose an equal or

greater risk of harm. To prevail in a design defect case, a

plaintiff should be required to show that the safety benefits

from its proposed design are foreseeably greater than the

resulting costs, including any diminished usefulness or

17a

Appendix A

diminished safety. See Owen, Toward a Proper Test for Design

Defectiveness: “Micro-Balancing” Costs and Benefits, 75 TEx.

L. Rev. 1661, 1690 (1997). As the new Restatement explains:

When evaluating the reasonableness of a design

alternative, the overall safety of the product must

be considered. It is not sufficient that the alternative

design would have reduced or prevented the harm

suffered by the plaintiff if it would also have

introduced into the product other dangers of equal

or greater magnitude.

RESTATEMENT (THIRD) OF Torts: Propucts LiaBiLity § 2 cmt. f.

The Martinezes, however, offered some evidence that their

alternative design not only would have prevented the injury to

Martinez, but also that it would not have introduced other

dangers of equal or greater magnitude. It is undisputed that the

single strand programmed bead is more resistant to breaking in

mismatch situations. Goodrich expert Tom Conner testified that

in a mismatch situation the tape bead may break at 60 psi, while

a single strand bead will not break until at least 130 psi. Conner

also testified that he has never heard of a single strand bead

breaking during the inflating of a mismatched tire. Goodrich

representative Stanley Lew testified that the single strand bead

is More resistant in a mismatch situation. Lew also testified

that if the tire inflated by Martinez had a single strand bead it

would not have exploded. Both Conner and Lew testified that

they would prefer a tire inflated by their loved one to have a

single strand bead.

It is true that Goodrich also offered some evidence that the

single strand programmed bead would have introduced other

18a

Appendix A

dangers of equal or greater magnitude because of the risk of

“in service” blow-outs. Lew testified that even if a 16" tire was

successfully mounted on a 16.5" rim, the tire will fail when

used on the road. Conner, a forensic scientist, also stated that

both laboratory and road testing revealed that if a 16" tire was

mounted on a 16.5" rim the tire will blow out when driven on

the road. However, Conner testified that in his 25 years of

experience in the tire industry he has never heard of a “single

person in the world” that has been hurt by a 16" tire on a 16.5"

rim “out in service.” Lew testified on direct examination:

Q: Have you personally seen any examples of

where the Goodyear programmed single strand

bead used in some but not all of its tires failed

in service on the wrong sized wheel?

A: No; I haven’t seen any.

Lew further testified:

Q: Tell me one person’s name from any tire you

have ever seen where it’s failed in service when

a 16’s mounted on a 16.5.

A: Fine and I told you at my deposition that no; |

don’t know a single name.

Q: Allright. Tell me one single name of a persons

[sic] that’s been injured in a mismatch explosion

of a single strand bead?

A: Again, I don’t know of any.

—_

19a

Appendix A

This evidence does not conclusively prove that the

programmed bead would have introduced into the product other

dangers of equal or greater magnitude. There was thus a fact

issue regarding whether a reasonable alternative design existed,

which the jury resolved in favor of the Martinezes.

IV

Goodrich next asserts that the evidence conclusively

establishes that the tire rim designed by Ford Motor Company

and manufactured by the Budd Company was defective and

that such defect contributed to Martinez’s injuries, so that the

court of appeals erred in affirming the trial court’s judgment

based on the jury’s answers that the rim was not defective and

did not contribute to the injury. Goodrich points to Milner’s

undisputed testimony that the rim was defective because it could

have been redesigned to prevent a 16" tire from passing over

its flange.

The general rule is that opinion testimony, even when

uncontroverted, does not bind the jury unless the subject matter

is one for experts alone:

[T]he judgments and inferences of experts or skilled

witnesses, even when uncontroverted, are not

conclusive on the jury or trier of fact, unless the

subject is one for experts or skilled witnesses alone,

where the jury or court cannot properly be assumed

to have or be able to form correct opinions of their

own based upon evidence as a whole and aided by

their own experience and knowledge of the subject

of inquiry.

20a

Appendix A

McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986)

(citing Coxson v. Atlanta Life Ins. Co., 179 S.W.2d 943, 945

(Tex. 1944)). See also Tex. R. Civ. P. 166a(c) (uncontroverted

expert testimony may establish right to summary judgment only

“as to subject matter concerning which the trier of fact must be

guided by the opinion testimony of experts”). Goodrich argues

that this subject matter is for experts alone because the jury

could not have determined, without the benefit of expert

testimony, that a safer, feasible, alternative design existed.

We agree that expert testimony was probably necessary to

show the feasibility of the alternative rim design which would

have prevented a mismatched tire from passing over the rim

flange. Once a feasible alternative design was shown, however,

the question remained whether the rim as designed was

unreasonably dangerous. See RESTATEMENT (THIRD) OF TorRTs:

Propucts LIABILITY § 2(b) (product is defective in design when

risks could have been reduced by adoption of reasonable

alternative design and omission of the alternative design renders

the product not reasonably safe). We cunclude that the jury

could properly determine whether the rim as designed was

unreasonably dangerous, and that it was not required to follow

expert testimony on this issue. Milner’s expert testimony thus

does not conclusively establish that the rim was defective. Cf.

McGalliard, 722 S.W.2d at 697 (house repairs); Broussard v.

Moon, 431 S.W.2d 534, 537 (Tex. 1968). (dishwasher repairs);

Coxson, 179 §.W.2d at 945 (sound health of insured at time

policy was issued).

The dissent argues that, even if the jury was not required

to accept the expert testimony of rim defect, it was required to

accept the lay opinion of Martinez and Martinez’s co-worker

on this issue. Of course, the fact that the dissent places such

21a

Appendix A

weight on this lay testimony supports our conclusion that the

subject matter is not solely for experts. Moreover, where the

subject matter is not solely for experts, uncontroverted opinion

testimony is not conclusive, regardless of whether it comes from

an expert or a lay witness. The rule of McGalliard quoted above

— that expert testimony is generally not conclusive —follows

not because the testimony is from an expert, but because it is

opinion testimony. Unless the subject matter is solely for

experts, jurors are capable of forming their own opinions from

the record as a whole. See Coxson, 179 S.W.2d at 945 (expert

testimony is conclusive only where jurors “cannot properly be

assumed to have, or be able to form, correct opinions of their

own based upon the evidence as a whole and aided by their

own experience and knowledge of the subject of inquiry’).

Thus, the jury was entitled to reject the opinion testimony that

the rim was defective, regardless of whether it was from an

expert, Martinez, or Martinez’s co-worker.

The dissent also argues that, even without any opinion

testimony, the record conclusively establishes that the rim was

defective. Milner testified that the rim could have been

redesigned to prevent a 16" tire from being mounted on it,

possibly by filling the wheel well so that it was not as deep.

However, while this is some evidence of a feasible alternative

design, it is not conclusive evidence of an unreasonably

dangerous product, given the factors that a jury must balance

under the Restatement. See RESTATEMENT (THIRD) OF TORTS:

Propucts LIABILITY § 2 cmt. f. For example, there was no

evidence of whether the alternative design would affect

production costs, the rim’s road characteristics, or the relative

ease of mounting and dismounting the correct size tire.

tN

i)

pe)

Appendix A

The dissent also argues that the rim is defective as a matter

of law because its size was not prominently marked on it. Milner

and Conner both testified that the rim’s size should be displayed

close to the valve stem to reduce the risk of-an accidental

mismatch. Milner further testified that the size should also be

displayed in the wheel well, as some other manufacturers had

done. Milner pointed out, however, that “this wheel’s probably

been cleaned since [the accident] so that the existence of [a

size marking] wouldn’t necessarily mean that [Martinez] would

see it.” Indeed, Martinez’s co-worker testified that at the time

of the accident the wheel was so covered with caliche that “it

looked white.” Based on this evidence, the jury could have

concluded that a size marking near the valve stem would have

been obscured, and would not have been seen by Martinez.

Similarly, the jury was entitled to conclude that Martinez would

not have seen a size marking or warning in the well of the wheel

while he was in the process of mounting a tire on the wheel.

Thus, even if the dissent were correct that the rim was defective

aS a matter of law because its size was not clearly marked, the

evidence does not conclusively establish that any such defect

was a producing cause of Martinez’s injury. Because the issues

of rim defect and producing causation were both submitted to

the jury in one broad-form question, the jury’s negative answer

to that question 1s not contrary to the conclusive evidence.

V

Goodrich also argues that the evidence conclusively

establishes that Martinez was negligent and that he contributed

to his own injuries. Specifically, Goodrich argues that unless

some defect in the warning hinders a plaintiff's ability to see

and heed it, the failure to see and heed a warning is conclusive

proof of contributory negligence.

23a

Appendix A

In reviewing a conclusive evidence point, we must

determine whether the proffered evidence as a whole rises to a

level that reasonable people could not differ in their conclusions.

Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.

1994); Powers & Ratliff, Another Look at “No Evidence” and

“Insufficient Evidence,” 69 Tex. L. Rev. 515, 523 (1991)

(“Ultimately, the test for ‘conclusive evidence’ . . . is similar

to the test for ‘no evidence’ ...; the court asks whether

reasonable minds could differ about the fact determination to

be made by the jury.”). The jury was asked to decide whether

Martinez was negligent, that is, whether he failed to exercise

ordinary prudence. Both Martinez and his co-worker Ramundo

Regalado testified that, because they had removed 16" tires

from the rims on which they were working, they assumed that

the rims were also 16". Also, although there was a tire-changing

machine on the premises, the evidence was conflicting as to

whether Martinez could have used it to secure the tire. Rene

Vera, Martinez and Regalado’s employer, testified that the tire-

changing machine, although inoperable for dismounting tires,

could have nonetheless been used to secure the tire during

inflation. Regalado testified, however, that the tire-changing

machine did not work, despite his repeated requests to the safety

foreman to have it repaired, and that had it worked he and

Martinez would have been using it on the day of the accident

to secure the tire. Thus, Uniroyal failed to conclusively prove

that Martinez was negligent in failing to use the machine. There

is no evidence that the other safety devices referenced in the

tire warning — a safety cage or an extension hose — were

available to Martinez. Further, Goodrich offered no evidence

as to whether it was practical or feasible under the circumstances

for Martinez to bolt the rim to a vehicle axle in order to inflate

the tire and seat the bead. Both Martinez and Regalado testified

that the manner in which Martinez was inflating the tire was

24a

Appendix A

customary in their shop. Based upon this evidence, we cannot

conclude that reasonable people could not differ about whether

Martinez failed to exercise ordinary prudence under the

circumstances.

Because we conclude that Goodrich did not conclusively

establish that Martinez was negligent, we do not address

Goodrich’s argument that there is no evidence to support the

jury’s allocation of causation.

VI

Goodrich next argues that even if it 1s not entitled to a

rendition of judgment, it 1s entitled to a new trial because of

three reversible evidentiary rulings. These rulings were:

(1) the admission of evidence of thirty-four other lawsuits

against Goodrich involving mismatched tires; (2) the admission

of evidence that Goodrich had subsequently redesigned its radial

light truck tires to incorporate the single strand programmed

bead; and (3) the admission of a “time line” used by the

Martinezes’ expert. To reverse a judgment based upon

erroneously admitted evidence, the complaining party must

show that the error was reasonably calculated to cause and

probably did cause rendition of an improper judgment or was

such that it prevented the complaining party from making a

proper presentation of the case to the appellate court. See Texas

Dep't of Human Servs. v. White, 817 S.W.2d 62, 63 (Tex. 1991);

Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.

1989); Tex. R. App. P. 61.1.

First, as to the other lawsuits, Goodrich asserts that thirty-

three of these thirty-four lawsuits involved tires without

pictographic warnings. Therefore, they were not substantially

25a

Appendix A

similar and were admitted without proper predicate. Evidence

of earlier accidents that occurred under reasonably similar but

not necessarily identical circumstances is admissible. Missouri-

Kansas-Texas R. Co. v. May, 600 S.W.2d 755, 756 (Tex. 1980);

Missouri Pac. R.R. v. Cooper, 563 S.W.2d 233, 236 (Tex. 1978);

see also Jackson v. Firestone Tire & Rubber Co., 788 F.2d

1070 (Sth Cir. 1986) (applying Texas law). Like this case, the

earlier accidents resulted from mounting a 16" Goodrich tire

with a tape bead on a 16.5" rim. The absence of pictographic

warnings on the tires does not render the accidents so dissimilar

as to preclude their admission, but merely goes to the weight

of the evidence. The trial court did not commit error by

admitting evidence of the thirty-four earlier accidents caused

by mismatching Goodrich tires.’

Goodrich next complains that the trial court erred by

admitting evidence that Goodrich subsequently redesigned its

radial light truck tires to incorporate the single strand

7. We disagree with the dissenting justices that the trial court

admitted evidence of these accidents “with no more predicate than

counsel’s argument that the claims are similar to the case in which they

were offered.” Post at __. At the pretrial hearing on this issue, the

Martinezes’ counsel informed the court that Goodrich had identified

these accidents in response to an interrogatory asking, “How many people

do you acknowledge have been injured as a result of mounting or

attempting to mount 16 inch diameter tires manufactured by you on a

16.5 inch diameter rim?” While the interrogatory itself may not be in

our record, the Martinezes’ counsel read it into the record at the pretrial

hearing, and no one disputes its wording or that Goodrich identified the

thirty-four accidents in response to it. Thus, the Martinezes established

that each of the other accidents involved an injury resulting from

mounting a 16" Goodrich tire on a 16.5" rim. Further, it was undisputed

that each of the other accidents involved a tape bead like that involved

in this accident. Under these circumstances, there was an adequate

predicate on which to admit the other accidents.

26a

Appendix A

programmed bead, because radial tires are fundamentally

different from the bias-ply tire that injured Martinez, and the

bead change was not made in the radial tires for safety reasons.

Goodrich first argues that, under these circumstances, the

evidence regarding radial tires violates Texas Rule of Civil

Evidence 407(a).

Rule 407(a) states:

Subsequent Remedial Measures. When, after an

event, measures are taken which, if taken previously,

would have made the event less likely to occur,

evidence of the subsequent remedial measures 1s not

admissible to prove negligence or culpable conduct

in connection with the event. This rule does not

require the exclusion of evidence of subsequent

remedial measures when offered for another

purpose, such as proving ownership, control or

feasibility of precautionary measures, if

controverted, or impeachment. Nothing in this rule

shall preclude admissibility in products liability

cases based on Strict liability.

Tex. R. Civ. Evip. 407(a) (emphasis added). Goodrich argues

that this rule only permits the admission of subsequent remedial

measures involving the product at issue, and that such measures

must have been made for safety reasons. However, the rule

does not contain these limitations. Rather, under the express

language emphasized above, Rule 407(a) simply does not apply

in products liability cases based on strict liability. Thus, the

trial court did not violate Rule 407(a).*

8. We thus need not address the court of appeals’ conclusion that

Goodrich failed to properly preserve this complaint. See 928 S.W.2d at

=

+

LT ee

|

27a

Appendix A

Goodrich further argues that, because of the differences

between radial tires and bias-ply tires, the evidence regarding

the redesign of its radial tires is not relevant to the issue of

design defect in its bias-ply tires. Goodrich appears to argue

that it was harmed by this evidence because the jury could have

improperly inferred that, because Goodrich incorporated the

single strand programmed bead into its radial tires, such

redesign was feasible and necessary for the bias-ply tire

involved in this accident. However, there was independent

evidence that the single strand programmed bead was feasible

for bias-ply tires as early as 1982, when General Tire adopted

that design, and that the programmed bead was safer. Under

these circumstances, the trial court did not commit reversible

error by admitting evidence of Goodrich’s redesign of its radial

tires.

Raising similar arguments, Goodrich also contends that the

trial court erred by admitting evidence of Goodrich’s redesign

of its “space saver” spare tires. For the reasons discussed above

regarding the radial tires, the trial court did not commit

reversible error by admitting this evidence.

Goodrich’s final evidentiary complaint is that the trial court

committed reversible error by admitting a “time line” chart

prepared by the Martinezes’ expert and used by him during

trial. Specifically, Goodrich complains that the time line

contained a self-serving compilation of hearsay evidence both

irrelevant to the issues in this lawsuit and unfairly prejudicial

to Goodrich.

Charts and diagrams that summarize, or perhaps emphasize,

testimony are admissible if the underlying information has been

admitted into evidence, or is subsequently admitted into

28a

Appendix A

evidence. See Speier v. Webster College, 616 S.W.2d 617, 618-

19 (Tex. 1981); Cooper Petroleum Co. v. LaGloria Oil & Gas

Co., 436 S.W.2d 889, 891 (Tex. 1969); Champlin Oil & Ref.

Co. v. Chastain, 403 S.W.2d 376, 389 (Tex. 1965). In this case,

Goodrich complains that the chart contained highly prejudicial

hearsay evidence such as one line reading “numerous 16/16.5

mismatch explosions resulting in serious injury or death.”

However, all the evidence contained on the chart was already

in evidence, principally through Milner’s testimony, and

Goodrich did not object to its introduction. The trial court did

not err by admitting the time line.

Vil

Finally, Goodrich complains that the trial court committed

reversible error by not bifurcating the liability and punitive

damages phases of the trial as required by this Court’s

subsequent decision in 7ransportation Insurance Co. v. Moriel,

879 S.W.2d 10 (Tex. 1994). The Martinezes argue that

consideration of this point is unnecessary because the court of

appeals reversed and rendered the jury’s punitive damage

award, holding there was no evidence to support the verdict on

those damages. However, in Moriel we instructed trial courts

to bifurcate the liability and punitive damages phases of the

trial because certain evidence admissible solely for the purpose

of proving punitive damages “has a very real potential for

prejudicing the jury’s determination of other disputed issues in

a tort case.” /d. at 30. Thus, we must determine whether the

trial court erred in refusing to bifurcate the punitive damages

phase of the trial, and if so, whether the error was harmful.

In Moriel we held that “a trial court, if presented with a

timely motion, should bifurcate the determination of the amount

29a

Appendix A

of punitive damages from the remaining issues.” /d. at 30. We

stated further that bifurcation applies “to all punitive damages

cases tried in the future.” Jd at 26. Shortly thereafter, in Ellis

County State Bank v. Keever, 888 S.W.2d 790 (Tex. 1994); we

applied Moriel retroactively. In Keever, we stated that

“[a]lthough Moriel was decided after the court of appeals’

decision in this case, its holding should be applied to a pending

case in which a party has preserved the complaint that the court

of appeals failed to properly scrutinize a punitive damage

award.” Jd. at 799. Since Goodrich presented the trial court

with a timely motion, the trial court, consistent with our ruling

in Keever, should have bifurcated the determination of the

amount of punitive damages from the remaining issues.

Having determined that the trial court erred in refusing to

bifurcate the trial, we must determine whether the trial court’s

error was reasonably calculated to cause and probably did cause

rendition of an improper judgment. See Tex. R. App. P. 61.1

The rationale given for bifurcation in Morie/ was that “evidence

of a defendant’s net worth, which is generally relevant only to

the amount of punitive damages, by highlighting the relative

wealth of a defendant, has a very real potential for prejudicing

the jury’s determination of other disputed issues in a tort case.”

Moriel, 879 S.W.2d at 30. Here, the jury was not presented

with any evidence of Goodrich’s net worth. While we do not

hold that net worth evidence is the only prejudice that may

result from trying actual and punitive damage claims together,

there is no prejudice in this case requiring a reversal of the

judgment. Goodrich argues that the Martinezes were free to

indulge in inflammatory argument for a high punitive damage

award that would not have been permitted in the liability phase

had bifurcation been granted. Specifically, Goodrich argues that

it was severely prejudiced by the Martinezes’ plea for $500,000

30a

Appendix A

for each of the thirty-four other lawsuits filed against Goodrich

so as to send a “message back to Akron.” Because the other

suits were properly in evidence on the issue of liability,

however, we conclude that this jury argument was not so

prejudicial to the actual damages claim as to require a reversal.

Because we conclude that there is some evidence to support

the judgment of the court below on the theory of products

liability, we need not consider Goodrich’s claim that there is

no evidence as to negligence. For the foregoing reasons, we

affirm the judgment of the court of appeals.

THOMAS R. PHILLIPS

Chief Justice

OPINION DELIVERED: October 15, 1998

DISSENTING OPINION

Justice Hecut, joined by Justice ENocu and Justice BAKER,

and by Justice Owen 1n all but Part II, dissenting.

The Court’s revision of its opinion on rehearing requires a

responsive revision in this dissent. The dissenting opinion issued

July 3, 1998 is accordingly withdrawn, and this opinion

substituted.

Having changed about a thousand tires in his life, Roberto

Martinez admits he knew better than to lean over a tire while

inflating it. Besides, he had seen the pictographic warning on

the very tire he was changing which showed a worker being

a ee

3la

Appendix A

hurt by an exploding tire and warned: “NEVER stand, lean or

reach over the assembly during inflation.” Ignoring this warning

and his own good sense, Martinez was leaning over the tire,

inflating it, when it exploded in his face.

The 16" tire exploded because it would not fit the 16.5"

wheel on which Martinez was trying to mount it. Martinez knew

it was very dangerous to try to mount a 16" tire on a 16.5"

wheel, and he would never knowingly have tried to do it, but

the size of the wheel was not marked where he could find it.

He understood that his co-worker had taken a 16" tire off the

wheel, and he was simply trying to put the same size tire back

on. The Budd Company, which manufactured the wheel to Ford

Motor Company’s specifications, knew, as did Ford, that people

sometimes try to mount 16" tires on 16.5" wheels, not realizing

that tire and wheel are mismatched. To minimize the risk of

such mistakes, Budd and Ford could have changed the design

of the wheel to prevent mounting mismatched tires, but they

did not do so. Budd could also have simply stamped the size in

plain view on the outboard side of the wheel near the valve

stem where it was almost sure to be seen, but it did not do that,

either. Instead it encoded the size in small letters on the inboard

side, where it was hard to find if the wheel was clean, and

indecipherable if the wheel was dirty, as it was in this case.

Although a 16.5" wheel can be designed so that a 16" tire

cannot be mounted on it, a 16" tire cannot be designed so that

it cannot be mounted on a 16.5" wheel. A tire manufacturer’s

only options to reduce the risk of injury from attempting to

mount a 16" tire on a 16.5" wheel are to place a warning on the

tire or to design the bead wire so that it will withstand higher

inflation pressure before exploding. The Uniroyal Goodrich Tire

Company, which made the tire Martinez was using, chose to

32a

Appendix A

put a prominent, pictographic label on it, which, as I have said,

Martinez actually saw but did not heed. Had he done so, he

would not have been injured. In fact, according to the record,

only one other person has ever claimed to have been injured

attempting to mount a 16" tire with a warning label like

Goodrich’s on a 16.5" wheel, although thousands of labeled

tires and more than thirty million 16.5" wheels have been

manufactured in the past two decades.

Now as among Martinez, the wheel manufacturers, and

Goodrich, how should responsibility for Martinez’s accident

be apportioned? The reader may be surprised at the answer in

this case. Martinez, though negligent by his own admission, is

held to bear no responsibility for the accident. The wheel

manufacturers, too, are held to be free of responsibility (they

settled with Martinez before trial) although the undisputed

testimony by both Martinez’s and Goodrich’s experts 1s that

Budd and Ford defectively designed the wheel. Only Goodrich

is held liable — and for providing a warning on the tire that

would have prevented Martinez’s accident altogether instead

of redesigning the bead wire so that the accident would only

have been less likely. This aberrant result flows from four

serious flaws in the Court’s opinion which, even more

importantly, misstate the law that will be applied in other cases.

First, the Court holds that a product can be found to be

defective whenever it could be more safely designed without

substantially impairing its utility. This is not, and should not

be, the law. As the Restatement (Third) of Torts: Products

Liability advises, a “broad range of factors” besides the utility

of a reasonable alternate design should be considered in

determining whether its use is necessary to keep the product

reasonably safe, including “the magnitude and probability of

33a

Appendix A

the foreseeable risks of harm [and] the instructions and warnings

accompanying the product”.' When the undisputed evidence is

that the magnitude and probability of a risk are low, an

alternative design could reduce but not eliminate that risk, and

the instructions and warnings given do eliminate the risk, the

product should be determined not to be defective as a matter of

law.

Second, the Court holds that whether a wheel is defectively

designed “because its size is not clearly marked or because its

design allows a mismatched tire to be placed on it” can be

decided by “lay jurors, based on their own experience and

common sense,” unaided by expert opinion.’ It follows that a

plaintiff, by offering no evidence other than his own lay opinion,

could prove that a wheel was defectively designed — that is,

that risks of harm were foreseeable, that there was a reasonable

alternative design that would reduce and avoid them, and that

the omission of the design rendered the product not reasonably

safe. | doubt whether such lay testimony would support a

judgment in any design defect case.’ The record in this case

proves that such evidence could not possibly support a judgment

for Martinez.

Third, the Court holds that evidence of thirty-four other

claims of injury over fifteen years from trying to mount 16"

1. RESTATEMENT (THIRD) OF TorTs: Propucts LIABILITY § 2, cmt. f,

at 23 (1998).

2. Ante at _.

3. See Watkins v. Telsmith, Inc., 121 F.3d 984, 991 (Sth Cir. 1997)

(suggesting that expert testimony would be required in design defect

cases).

34a

Appendix A

Goodrich tires on 16.5" wheels was admissible without proof

that any of the claims were valid — some were undisputedly

invalid — or that they arose out of accidents similar to

Martinez’s. A few weeks ago the Court held that evidence of

anticipated or unpaid punitive damage claims is irrelevant and

inadmissible to show punitive damage liability.* Today the

Court holds that evidence of other claims — whether proven

or not, and whether similar or not — 1s relevant and admissible

to show liability. The Court also holds that an expert may testify

that a product has caused serious injury and death when no

basis at all has been shown for the statement.

Fourth, the Court holds that the district court’s refusal to

bifurcate the punitive damages part of the trial was harmless

error because Martinez did not offer evidence of Goodrich’s

net worth. But while net worth evidence can unfairly prejudice

the jury’s consideration of liability issues, it is not the sole

source of prejudice. Today’s opinion undermines the bifurcation

requirement of Transportation Insurance Co. v. Moriel.°’

Because I disagree with all these holdings, for reasons |

now explain in more detail, I respectfully dissent.

Comment j to Section 402A of the Restatement (Second)

of Torts states:

4. Owens-Corning Fiberglas Corp. v. Malone, _S.W.2d _,

(Tex. 1998).

5. 879 S.W.2d 10 (Tex. 1994).

35a

Appendix A

Where warning is given, the seller may reasonably

assume that it will be read and heeded; anda product

bearing such a warning, which is safe for use if it is

followed, is not in defective condition, nor is it

unreasonably dangerous.°

We have followed the first clause of comment j, but only to the

extent of holding that a plaintiff is entitled to a rebuttable

presumption that had he been adequately warned of the dangers

of a product, he would have avoided injury, despite the fact

that experience teaches that “it is not at all unusual fora person

to fail to follow basic warnings and instructions.”’ The

presumption is merely a procedural device to obviate the

necessity of plaintiff's self-serving estimony that he would

have heeded adequate warnings.® In making the presumption

rebuttable we recognized that the first clause is not always true.

Further, we have never followed the second clause of comment

j, and now the Restatement (Third) of Torts: Products Liability

has withdrawn comment j altogether as “unfortunate language”

that “has elicited heavy criticism from a host of commentators.”

The Court’s firm rejection of comment J, which the Court has

iever adopted and the Restatement has now itself rejected, is

6. RESTATEMENT (SECOND) OF Torts: PRopUCTS LIABII ITy § 402A,

cmt. j, at 353 (1965).

7. General Motors Corp. v. Saenz, 873 S.W.2d 353, 358 (Tex.

1993); see Magro v. Ragsdale Bros. Inc., 721 S.W.2d 832, 834 (Tex.

1986); Technical Chem. Co. y. Jacobs, 480 S.W.2d 602, 606 (Tex. 1972).

8. Saenz, 873 S.W.2d at 359.

9. RESTATEMENT (THIRD) OF Torts: Propucts LIABILITY § 2,

Reporters’ Note, cmt. |, at 10] (1998).

36a

Appendix A

perhaps beating a dead horse, but ] agree that comment j does

not correctly state What the law is or should be.

Since it is human nature to disregard instructions. a rule

that any product is reasonably safe as long as it bears an

adequate warning of the risks of its use is not feasible. Such

behavior, however, does not warrant the Opposite rule that

Warnings are irrelevant in determining Whether a Product is

reasonably safe. | agree with the Court that comment | to Section

2 of the Restatement (Third) of Torts: Products Liability now

has it about right:

Reasonable designs and Instructions or warnings

both play Important roles in the Production and

distribution of reasonably safe products. In general,

When a safer design can reasonably be implemented

and risks can reasonably be designed out of a

product. adoption of the safer design is required over

a warning that leaves a Significant residuum of such

risks. For example, instructions and Warnings may

be ineffective because users of the product may not

be adequately reached, may be likely to be

Inattentive, or may be insufficiently motivated to

follow the instructions or heed the Warnings.

However, when an alternative design to avoid risks

Cannot reasonably be implemented. adequate

Instructions and Warnings wil] normally be sufficient

to render the product reasonably safe. Warnings are

not, however. a Substitute for the Provision of a

reasonably safe design, !°

10. Rest ATEMENT (THIRD) of lorts: PRopucts LIABILITY § 2, cmt. |.

33 (1998) (citation omitted)

designing additional] Protections in the (ruck, the risk that

someone wil] intentionally Stick his hand IN a place Where it

Obviously may be hurt When he is effectively wamed not to do

SO May not Warrant design Changes.

Section 2(b) of the Restatemen; (Third) Of Torts: Products

Liability States the applicable rule:

A product |. - 18 defective in design When the

foreseeable risks of harm Posed by the Product could

have been reduced or avoided by the adoption of a

reasonable alternative design by the seller Or Other

ee

resihendeciansins

ll. /d. illus. 14, at 33.

iii

38a

Appendix A

distributor, or a predecessor in the commercial chain

of distribution, and the omission of the alternative

design renders the product not reasonably safe.’

There are two components to this rule: the possibility of a

safer, reasonable alternative design, and a product that is not

reasonably safe without that design. Both are required. Even if

a reasonable alternative design would make a product safer,

the product is not defective unless the omission of the design

makes the product not reasonably safe. The comparison ts not

between the two designs, but between the product alternatively

designed and the product including any warning. Comment f

to Section 2 explains:

Subsection (b) states that a product is defective in

design if the omission of a reasonable alternative

design renders the product not reasonably safe. A

broad range of factors may be considered in

determining whether an alternative design is

reasonable and whether its omission renders a

product not reasonably safe. The factors include,

among others, the magnitude and probability of the

foreseeable risks of harm, the instructions and

warnings accompanying the product, and the nature

and strength of consumer expectations regarding the

product, including expectations arising from product

portrayal and marketing. The relative advantages

and disadvantages of the product as designed and

as it alternatively could have been designed may

also be considered."

12. RESTATEMENT (THIRD) OF ToRTS: PRopucts LIABILITY § 2(b)., at

4 (1998) (emphasis added).

Id. § 2, cmt. f, at 23 (citation omitted).

39a

Appendix A

The Reporters’ Note gives an example of how factors other

than a safer alternative design affect the determination whether

a product is defective:

Comment / lists among the factors a court may

consider in determining whether an alternative

design is reasonable and whether its omission

renders a product not reasonably safe the following:

(1) magnitude and probability of the foreseeable

risks of harm; (2) the instructions and warnings

accompanying the product; and (3) the nature and

strength of consumer expectations. A recent

California case is in agreement. In Hansen v.

Sunnyside Products, Inc., 55 Cal. App. 4th 1497

(1997), the court held that in a claim alleging

defective design of a household cleaner containing

hydrofluoric acid, the availability of an alternative

safer design was not dispositive of liability. The

factfinder could consider the warnings on the bottle

describing the danger of exposing a user’s skin to

the cleaner in risk-utility balancing to decide

whether the product was unreasonably dangerous."

Hansen explained its rationale as follows:

We do not think that the risk to the consumer of the

design of many household products can be rationally

evaluated without considering the product’s

warnings. Thus, for example, what is the risk of the

design of a power saw, or other power tools or

equipment, without considering the product’s

directions and warnings? We dare say that the risk

14. /d. § 2, Reporters’ Note, cmt. f, at 94.

40a

Appendix A

would be astronomically, and irrationally, high. The

same could be said about common garden pesticides,

or even the household microwave oven. In our view,

were we to ask jurors to evaluate the risks of the

design of many household products without

considering their directions or warnings, the

practical result would be the withdrawal from the

market of many useful products that are dangerous

in the abstract but safe when used as directed."

Another example the Hansen court might have picked is aerosol

cans. Such cans are not defective merely because they could

be redesigned so as not to explode if punctured or incinerated.

A warning against such misuse ought to be sufficient.

The Court protests that it has not disregarded the effect of

warnings in determining whether the possibility of a safer

alternative design makes a product defective but has merely

left the matter to the jury. But the question remains: can any

product be shown not to be defective as a matter of law if a

reasonable alternative design could have avoided plaintiff's

injury? The Court suggests no such possibility. The Restatement

appears to contemplate that a product is not defective as a matter

of law if the safer design does not eliminate the risks, or if the

warning on the product does not leave a significant residuum

of risk, as when “users of the product may not be adequately

‘eached, may be likely to be inattentive, or may be insufficiently

motivated to follow the instructions or heed the warnings.”

15. Hansen v. Sunnyside Prods., Inc., 65 Cal. Rptr. 2d 266, 278

(Ct. App. 1997).

16. RESTATEMENT (THIRD) OF TORTS: PRopucTsS LIABILITY § 2, cmt. I,

at 33 (1998).

4la

Appendix A

The present case illustrates this rule. Concededly, the evidence

favorable to Martinez shows that the Goodrich tire’s bead wire

can be redesigned, mostly to increase its strength, without

significantly reducing the tire’s utility or increasing the danger

of blowouts at highway speeds. Such an alternative design is

thus reasonable and safer. But it only reduces — it does not

eliminate — the risk that a tire being mounted on a mismatched

wheel will explode. The undisputed evidence in this case is

that a 16" tire cannot be mounted on a 16.5" wheel, and that if

the tire continues to be inflated in an effort to force it to seat on

the wheel rim, it will explode. Redesigning the bead wire only

means that the tire will withstand higher inflation pressure

before exploding. Although there was evidence that the alternate

design would prevent the tire from exploding at ordinary

mounting pressures, nothing about the design precludes the

person mounting the tire from continuing to increase the

pressure in an effort to force it to seat on the rim. Because the

risk of explosion cannot be eliminated. omission of the

alternative design may not make the tire not reasonably safe

under comment | of the Restatement.

Nor was Goodrich’s warning ineffective, another factor

under comment |. Goodrich’s warning label showed a picture

of a person being injured by an exploding tire and stated in

bright colors:

DANGER

NEVER MOUNT A 16" SIZE DIAMETER TIRE

ON A 16.5" RIM.

Mounting a 16" tire on a 16.5" rim can cause severe

injury or death. While it is possible to pass a 16"

Appendix A

diameter tire over the lip or flange of a 16.5" size

diameter rim, it cannot position itself against the

rim flange. If an attempt 1s made to seat the bead by

inflating the tire, the tire bead will break with

explosive force.

NEVER inflate a tire which is lying on the floor or

other flat surface. Always use a tire mounting

machine with a hold-down device or safety cage or

bolt to vehicle axle

NEVER inflate to seat beads without using an

extension hose with gauge and clip-on chuck

NEVER stand, lean or reach over the assembly

luring inflation

Failure to comply with these safety precautions can

cause the bead to break and the assembly to burst

with sufficient force to cause serious injury or death.

Martinez does not question the adequacy of the warning. It

‘autions not only against mismatching tires and wheels but

against inflating tires in certain ways under any circumstances

[he record in this case does not show that a warning against

mismatching tires and wheels will not reach users. On the

contrary, Martinez testified that he saw the warning on the tire,

and anyway, he knew that it would be very dangerous to try to

mount a 16" tire ona 16.5" wheel. As Martinez put it, “common

43a

Appendix A

sense also tells you that where you have a mismatch you can

get injured.” Martinez was not inattentive, as the garbage truck

worker who lost his balance. He knew better than to lean over

a tire — any tire — while inflating it. None of the reasons in

comment | that warnings may be ineffective apply in this case.

Nor were the warnings impractical. Despite the fact that

Martinez was not provided with any of the Safety devices

prescribed in the warning — a workable tire mounting machine,

a Cage, or an extension hose with gauge and clip-on chuck

and may not have been able to bolt the wheel back on the trailer

from which it had been removed before mounting the tire, he

could have avoided injury by simply not leaning over the tire

while inflating it. Martinez testified as follows:

Q Now, I believe you have also testified.

Roberto, that while you are inflating a tire you would

not want to be leaning over the tire as you inflate it

A No.

Q And by that I mean when you are airing it

up during the mounting process you would want to

lean away from it; would you not?

A Well, just don’t get over it, you know, just

be right beside it.

Q Why would you not want to be leaning over

it?

A Because that’s the way I was caught

44a

Appendix A

Q Okay. Do you feel it would be a safety

consideration. to be safer to not be over the tire —

A Yes

Q while you’re inflating it?

A Yes.

[he inboard side of the tire, next to the ground, exploded.

Martinez was injured when the wheel struck his head. The wheel

also struck the roof of the shop overhead and dented it. Clearly,

had Martinez not been leaning over the wheel, as he knew not

to do and as the tire label warned against, the tire would not

have struck his head.

Given the ease with which injury can be avoided, there iS

no evidence that redesigning the bead wire will eliminate a

“significant residuum of risk” in the tire as designed with the

warning label. In fact, Martinez’s own evidence is to the

contrary. The record establishes that there has been only one

other claimed injury caused by attempting to mount a 16" tire

with a warning label on a 16.5" wheel. The record does not

reflect whether that claim was ever proved. Thousands of 16"

tires have been manufactured with warning labels; millions of

16.5" wheels have been manufactured without warning labels.

Martinez’s evidence (which should not have been admitted)

shows thirty-four claims against Goodrich for injuries caused

by mismatching unlabeled 16" tires on 16.5" wheels. There has

been one other claim involving a labeled tire. The tire industry

should not be compelled to redesign bead wires to make tires

harder to explode — or pay damages for failing to do so —

simply because one or perhaps two mechanics over the years

failed to follow directions or their own good sense.

45a

Appendix A

From a fairness perspective, requiring individual

users and consumers to bear appropriate

responsibility for proper product use prevents

careless users and consumers from being subsidized

by more careful users and consumers, when the

former are paid damages out of funds to which the

latter are forced to contribute through higher product

prices."’

Thus, under comment I, there is no evidence that omission

of the safer bead wire design made-Goodrich’s tire not

reasonably safe. The risk of explosion could not be eliminated,

the warning was clear, effective, and easy to follow, and thus

no significant residuum of risk remained in the tire as designed

with the warning label attached. In the Court’s view, a product

manufacturer may be liable for failing to make any feasible

design change that does not significantly impair a product’s

utility, if only to prevent rare mishaps from conscious disregard

of adequate warnings. That is all the evidence in this case shows.

The Court appropriately rejects one extreme position —

comment to Section 402A of the Restatement (Second) of Torts

but then adopts the opposite and equally extreme position.

In so doing, the Court swings toward strict liability.

Il

The evidence is undisputed that the wheel was defectively

designed, and that the defect helped cause the accident.

Martinez’s expert testified:

Q And in your opinion the Budd wheel, Exhibit

2, is defective.

17. Id. § 2, cmt. a, at 16.

} \ iu | ih | !

xpert explained that a 16.5" wheel can be designed

prevent mounting a 16" tire, but that the tire cannot be

‘ned to prevent attempts to mount it on the wheel

-™

Ait

eover, the expert explained that stamping the size on t

¥

Wheel in plain sight, as some wheel manufacturers do, would

luce the risk of mismatching. Martinez acknowledged that it

makes sense’ that the size of the wheel be stamped on the

re it can easily be see

} ‘fle neal the val\ e stem whe

oT ‘

eae aeae

y . ] roti .

-WOrTkKEer aiSo testil1ed

( ) ! ! ( wel VOTK 4.4 th tl i

’ . the numt ' f vo)

4 ul

r } +} ¢t x sy) Ut re \ rl ' )

C inhat YOU Were WOTKINY OI

10 avOld personal injury dur

4 . "vA, In ) | l¢ T

WiICCl mount on ) in

1 not have proce

47a

Appendix A

because that would have told you that the wheel

really was 16.5?

A Yes, sir.

The undisputed evidence is that Budd and Ford did not design

their wheel to prevent 16" tires from being mounted on it, and

did net stamp the size where it could be seen. Rather, the size

was included in a string of numbers stamped on the inboard

side of the tire that were hard to find and harder to decipher.

The wheel Martinez was working on was so covered by caliche

that it would have been virtually impossible to find the tire

SIZC.

Goodrich argues that the evidence conclusively establishes

that the wheel rim was defectively designed and that the

defective design was a cause of Martinez’s injuries. The Court

rejects this argument, using the rule that “opinion testimony,

even when uncontroverted, does not bind the jury unless the

subject matter is one for experts alone”.'* The Court concedes

that “expert testimony was probably necessary to show the

feasibility of the alternative rim design which would have

prevented a mismatched tire from passing over the rim flange.”"”

Thus, in the Court’s view, with which I agree, the evidence

establishes one component of defective design — the possibility

of a safer, reasonable alternative rim design.”? The second

component — that the rim was not reasonably safe without the

18. Ante at

19. Ante at

20. See RESTATEMENT (THIRD) OF TorTS: Propucts LIABILITY § 2(B).

at 14 (1998)

48a

{ppendix A

alternative design is not in this context, according to the

Court, a matter for experts alone. Thus, the Court concludes,

the evidence does not conclusively establish that the wheel rim

was defectively designed. But the Court’s conclusion does not

follow from its premise. That is, even if the jury was free to

disregard expert testimony that the wheel rim was unreasonably

dangerous as designed, including the testimony on Martinez’s

own expert, because the subject was not one for experts alone,

the matter may nevertheless be conclusively established by the

evidence.

\s a general rule, the testimony of a party or a witness

who has an interest in the outcome of a suit cannot conclusively

establish a matter but raises an issue of credibility on which

the jury must pass.** But there are exceptions. Even summary

judgment can be granted on “uncontroverted testimonial

evidence of an interested witness ... if the evidence is clear,

positive and direct, otherwise credible and free from

ontradictions and inconsistencies, and could have been readily

f

yntroverted.”~’ As we explained in Collora v. Navarro

First, the general rule governing the finality to

be given to testimony of an interested witness 1s by

no means an absolute one to be applied in a cut

and-dried fashion. Rather, it is flexible and its

application must turn on the facts of each case

Certainly there will be cases where the credibility

of an interested witness or party is so suspect that it

49a

Appendix A

must go to the jury, even though the testimony is

uncontradicted. Then there will also be cases where

the testimony of the witness is so clear that the jury

should not be allowed to speculate as to his veracity.

Between these two extremes lies a broad spectrum

of possibilities. Our courts have recognized this in

the past by setting forth certain standards by which

the rule and its exceptions are to be measured: Is

the testimony clear, direct, and positive? Is it

internally consistent? Is it contradicted or

corroborated by other witnesses? Does the opposing

party possess the means to verify or dispute the

testimony? Does he have a way to test the witness’

credibility? Obviously no one factor automatically

can be dispositive in every case.”

Collora was a suit for partition of real property in which plaintiff

claimed an interest as defendant’s common law wife. Plaintiff

testified that she and the defendant had agreed to be husband

and wife — one of the elements of a common law marriage —

and the evidence conclusively established the other elements.

Defendant did not testify or offer evidence in rebuttal. The trial

court directed a verdict for the plaintiff, based on her

uncontradicted testimony. The court of civil appeals reversed,

holding that the plaintiff's testimony did not conclusively

establish the existence of an agreement to be husband and wife

because the jury could have chosen not to believe her, and thus

reasonable minds could differ over the conclusions to be drawn

from her testimony.” This Court reversed the court of civil

appeals, holding that the directed verdict was proper.

24. ld

25. Navarro v. Collora, 566 S.W.2d 304 (Tex. Civ. App. — Corpus

Christi), rev'd, 574 S.W.2d 65 (Tex. 1978)

50a

Appendix A

The testimony of Martinez and his co-worker, as well as

Martinez’s expert witness, that the wheel rim was unreasonably

dangerous was contrary to Martinez’s interest in the case. It

was to Martinez’s benefit that the percentage responsibility for

causing his injuries assigned to the wheel manufacturers be as

low as possible, since he had already settled with them.

Testimony that the wheel rim was defectively designed undercut

Martinez’s position that Goodrich alone was responsible.

Because there was nothing to cast suspicion on Martinez’s

testimony or that of his co-worker and his expert witness

concerning whether the wheel rim was unreasonably dangerous

as designed, the jury was bound by that testimony. Their

testimony, contrary to Martinez’s interest, was more like

testimony by a disinterested witness. Professors William

Powers, Jr. and Jack Ratliff have explained the considerations

for determining whether a disinterested witness’s testimony is

binding on the jury:

Must the jury accept [the uncontradicted testimony

by a disinterested witness]? That is, does such

testimony, if uncontradicted, [conclusively establish

a fact]? The prevailing and better view is that the

reasonable minds test should apply here. If there is

nothing to cast suspicion on the testimony — that

is, if reasonable minds could not differ — then the

jury must accept it. But, if the testimony is

impeached, inconsistent, or otherwise suspect (even

though not directly controverted) — that is. if

reasonable minds might or might not accept it —

then the jury may reject it. McDonald aptly observes

that disinterested testimony is, in fact, treated much

the same as interested testimony, except that courts

are more inclined in the case of interested testimony

Sla

Appendix A

to find suspicious circumstances that would allow

the jury to reject it.

Even without the testimony of Martinez, his co-worker,

and his expert, the record establishes that the wheel rim was

defectively designed. As already noted, the factors to be

considered in determining whether a product is unreasonably

dangerous include the magnitude and probability of the

foreseeable risks of harm, the instructions and warnings

accompanying the product, the nature and strength of consumer

expectations regarding the product, and the relative advantages

and disadvantages of the product as designed and as it

alternatively could have been designed.’ Concerning these

factors: the risk of injury from mismounting a tire was the same

for the defectively designed wheel rim as for the defectively

designed tire; the wheel bore no warnings, as the tire did:

consumer expectations were no different for the wheel than for

the tire; and there was no evidence that the wheel rim design

was advantageous or the alternate design disadvantageous. In

sum, the evidence established that the tire was less dangerous

than the wheel rim, because the tire at least had a warning label

and the wheel had none.

The Court states that Martinez’s expert’s testimony that

the wheel was defective was not evidence that it was

unreasonably dangerous. But the expert was directed by

26. William Powers, Jr. & Jack Ratliff, Another Look at “No

Evidence” and “Insufficient Evidence ", 69 Tex. L. Rev. 515, 524 (1991)

(citing 3 R. McDonaLp, Texas CIvIL PRACTICE § 11.28.6, at 209 (1984)).

See 4 McDona_p Texas Clvit PRACTICE § 21.58, at 149-15] (1992).

27. RESTATEMENT (THIRD) OF TorRTs: Propucts LiaBILity § 2(b), cmt.

f, at 23 (1998) (emphasis added).

ounsel to assume that “defect is defined by the

tas being unreasonably dangerous.” The Court states that

expert's Opinion was not conclusive, given the factors the

was to balance. But the only factors the jury was instructed

the charge to consider were “the utility of the product and

risk involved in its use.” Moreover, Martinez’s expert

tified that the defect in the wheel could have been remedied

ly and without

ut difficulty. Specifically, the expert testified

m the moment it came on the market the

nch rim could have been changed so that you

cet the wrong sized tire on it

Q Ihe same thing is not true for the 16-inch

ere 1S no way to design or alter the 16-inch

lat somebody by mistake doesn’t try to put

1 16-’2-1nch wheel. That is true: isn’t it?

t ’ ‘ + ‘ 7 : s¢ Ih

i don t KI W Ola Way [0 dO ll, no. [ he

Way to do tnat

In your view, if the wheel companies were

ing to come out with a new 16-%-inch size which

ctually looks somewhat smaller than the 16 they

hould have designed that new wheel in such a

fashion that it looked very different from the old

isn't that correct?

53a

Appendix A

Q In your opinion, that could have been done.

A I think it could, yes.

Q That would not have been difficult to do.

A No; I can see where one could do it.

Q And it is further your opinion that once it

occurred to the wheel companies that they had done

something that was, in fact, causing a substantial

problem, they then could have taken what they had

and altered its configuration so that you couldn’t

get the wrong sized tire on it.

A In subsequent productions they could, yes.

Q And that could have been done by something

as simple as filling in the well so that it wasn’t quite

so deep; is that a fair statement?

A That's one way to do it. There may be other

ways to do it as well, but that’s one way to do it.

Q Well, the one way that I just mentioned is

one that you have specifically advocated yourself.

A I have done that myself, yes.

Q You not only did it, but you wrote a paper

on It.

A Yes, sir.

S4a

Appendix A

The Court also states that the jury was free to speculate

that marking the wheel size on the wheel itself might not have

prevented Martinez’s injury because the marking might have

been covered by caliche or not seen by Martinez. But Martinez’s

expert’s testified that if the size had been stamped in the drop

center or the well of the wheel, it could not have been obscured.

Specifically, the expert testified as follows:

Q Well, the language here where it says, quote,

use only 16.5 tires, that was stamped on Kelsey-

Hayes wheels starting at about 1980.

A Yes.

Q Exactly where you wanted it to be, near the

valve hole.

A Well, I think, I think you are quoting me a

little out of context. I said it wouldn’t be a good

idea, it would be a good idea for that to be there.

But the best place for it is in the drop center where

there is more room for it and where it 1s not

obstructed by dirt and paints.

Q Okay. Let’s be sure that we understand that

in plain and simple English. It means, one, that in

1980 General Motors directed its supplier Kelsey-

Hayes to stamp something near the valve hole and

to place this warning in the well of every wheel it

made after that.

55a

Appendix A

A That is right.

Q And Ford never directed Budd to do anything

until Budd stopped making the wheel in 1983.

A That’s my recollection, yes.

Had the wheel size been stamped or labeled in the drop center

or well of the wheel, it could not have been obscured, no matter

how dirty the wheel becafne, and Martinez could not have

missed it.

The evidence, including the testimony of Martinez’s own

expert, conclusively established that the wheel manufacturers

bore some responsibility for Martinez’s injuries. Since the

evidence did not establish the precise percentage of

responsibility attributable to the wheel manufacturers, Goodrich

is entitled only to a new trial.

Ill

_-

Martinez offered, and the district court admitted in

evidence, a list of thirty-four lawsuits against Goodrich

involving claims for injuries suffered in attempting to mount

16"-Goodrich tires on 16.5" wheels. Goodrich complains that

Martinez never laid a predicate for admitting this evidence,

showing the similarity of the other lawsuits to this one. The

Court dismisses Goodrich’s complaint in a sentence: “The

absence of pictographic warnings on the tires does not render

the accidents so dissimilar as to preclude their admission, but

merely goes to the weight of the evidence.””8

28. Ante at _.

S6a

Appendix A

[he Court has not met the substance of Goodrich’s

argument. First, Goodrich argues that Martinez laid no predicate

whatever for admission of the evidence. Martinez does not, and

cannot, dispute this. The district court admitted the list of

lawsuits based solely on the statement of Martinez’s counsel

that the information had been produced by Goodrich in answer

to an interrogatory in discovery. The interrogatory and answer

were never offered in evidence (and are not in our record), nor

was there any other proof to show the nature of the cases listed.

A plaintiff who offers evidence of other accidents is “required

to show that the earlier accidents occurred under reasonably

similar but not necessarily identical circumstances.””’ Martinez

made no showing whatever. Thus, the Court holds that evidence

of other claims may be admitted with no more predicate than

counsel’s argument that the claims are similar to the case in

which they are offered. This, of course, eviscerates any

meaningful evidentiary standard.

Second, although Goodrich argued that the presence or

absence of pictographic labels was a significant difference in

claims of injury due to mismatch tires, that was not the only

difference Goodrich claimed was significant. Other differences

in the cases, according to Goodrich’s counsel, were how

experienced the injured person was in changing tires, what

safety equipment was available, what kind of tire was involved

and whether it was radial or bias ply, and what the result was

in the case. At least two of the cases were dismissed against

Goodrich. The burden was not on Goodrich to show that the

other cases were different; the burden was on Martinez to show

29. Missouri Pac. R.R. Co. v. Cooper, 563 S.W.2d 233, 236 (Tex.

1978) (citing Karr v. Panhandle & Santa Fe Ry. Co. 262 S.W.2d 925,

928, 932 (Tex. 1953), and Dallas Ry. & Terminal Co. v. Farnsworth,

227 S.W.2d 1017, 1020 (1950)).

57a

Appendix A

that they were similar.>° Nevertheless, Goodrich pointed out

important differences to the court.

Third, the presence of pictographic labels may have been

a significant distinction in the cases. Of the thirty-four on the

list Martinez offered, only two involved pictographic labels. It

may be that fewer accidents involved labeled tires because the

labels were effective, or because fewer tires were manufactured

with labels, or because labels had been used for only a short

time, or perhaps for other reasons. Such arguments would go

merely to the weight to be given the evidence, not its

admissibility. But without any predicate at all offered by

Martinez, it is impossible to Say that the presence of the label

was not significant.

Finally, admission of the list was extremely prejudicial to

Goodrich. Martinez’s counsel told the court before trial that

“[i}n all these cases we keep talking about... they keep killing

and injuring people”. Martinez’s counsel asked his own expert

witness: “And some tire companies it only takes twenty-nine

or thirty people to get killed or injured before they come to the

conclusion that maybe they ought to change their bead.”

Martinez’s counsel asked Goodrich’s expert: “So how many

people have you all killed?” Without any predicate whatever,

Martinez’s counsel was permitted to use the list of lawsuits to

insinuate repeatedly that others had been injured or killed in

circumstances similar to those in this case. This was plainly

error. .

\

The lawsuit list was not the only exhibit erroneously

admitted. The district court also admitted a chart sponsored by

30. /d.

58a

Appendix A

Martinez’s expert witness showing the history of changes in

bead wire design. The Court’s conclusion that “all the evidence

contained on the chart was already in evidence”! is simply

talse. There is absolutely no evidence of the very prejudicial

reference on this time-line to “numerous 16/16.5 mismatch

explosions resulting in serious injury or death.” It should go

without saying that a party should not be permitted to assert

repeatedly that an opponent’s product has killed and injured

people without proof that it is actually so.

Only a few weeks ago the Court held in Owens-Corning

Fiberglas Corp. v. Malone that evidence of anticipated or

unpaid punitive damage claims is irrelevant and therefore

inadmissible to show punitive damage liability.” If anticipated

or unpaid punitive damage claims are not probative of punitive

damage lability absent evidence of whether such claims have

succeeded, I fail to see how actual damage claims are probative

of liability for actual damages absent the same evidence.

loday’s holding that evidence of other claims — whether

proven or not, and whether similar or not — is relevant and

admissible to show liability directly conflicts with our decision

in Owens-Corning and essentially destroys any standard for

admitting evidence of other claims.

IV

ihe Court holds that the district court erred in denying

Goodrich’s motion to bifurcate the actual and punitive damages

phases of the trial, but that the error was harmless because

32 S.W.2d (Tex. 1998)

59a

Appendix A

Martinez offered no evidence of Goodrich’s net werth and the

evidence of other lawsuits against Goodrich was properly

admitted. I have already shown that the list of lawsuits should

not have been admitted without a predicate showing of

similarity between each of the lawsuits and this case. But even

if the list of other lawsuits was properly admitted, it alone

required a bifurcation of the actual and punitive damage claims.

As the Court notes, “[i]n [Transportation Insurance Co.

v.] Moriel we held that ‘a trial court, if presented with a timely

motion, should bifurcate the determination of the amount of

punitive damages from the remaining issues.” Although we

reasoned in Moriel that evidence of a defendant’s net worth

offered on a punitive damage claim could unfairly prejudice a

defendant on plaintiffs claim for actual damages, we did not

Suggest that net worth evidence was the only prejudice in trying

actual and punitive damage claims together. In the present case,

Martinez’s counsel’s repeated references to other claims against

Goodrich were plainly intended to insinuate that if others had

been injured trying to mount Goodrich’s 16" tires on 16.5"

wheels, the tire was defective, and the defect caused Martinez’s

injuries. The list of other lawsuits, even if properly admitted,

unfairly prejudiced Goodrich on Martinez’s liability claim as

much as evidence of its net worth would have.

The district court refused Goodrich’s motion to bifurcate

the trial before evidence was offered and without regard to

whether Martinez would offer evidence of net worth. The record

shows that the district court refused to follow Moriel because

Martinez did not want a bifurcated trial. The court’s error Clearly

prejudiced Goodrich.

33. Ante at __ (quoting Transportation Ins. Co. y. Moriel, 879

S.W.2d 10, 30 (Tex. 1994)).

60a

Appendix A

[he record in this case shows that Goodrich’s tire including

the warning label was not defectively designed as a matter of

law. Even if that were not so, Goodrich is entitled to have its

liability determined in a fair trial in which at least some

responsibility for the accident is assigned to Martinez and the

wheel manufacturers, evidence of other claims against Goodrich

is excluded until a proper predicate is laid for its admission,

and punitive damages are tried separately as required by Moriel.

Because the Court denies Goodrich any relief, I respectfully

lissent

NATHAN L. HECHT

Justice

OPINION DELIVERED: October 15, 1998

6la

APPENDIX B — OPINION OF THE COURT OF APPEALS

OF TEXAS, SAN ANTONIO DATED OCTOBER 4, 1995

AND REHEARING OVERRULED NOVEMBER 3, 1995

UNIROYAL GOODRICH TIRE

COMPANY, Appellant,

v.

Roberto O. MARTINEZ and Juanita Martinez, Individually

and As Next Friends of Robert Martinez, Jr. and John

Mathew Martinez, Minors, and Mary Willis, Appellees.

No. 04-93-00526-CV.

Court of Appeals of Texas,

San Antonio.

Oct. 4, 1995.

Rehearing Overruled Nov. 1, 1995.

* oe ok

Before RICKHOFF, LOPEZ and GREEN, JJ.

OPINION

LOPEZ, Justice.

Uniroyal Goodrich Tire Company (Goodrich) appeals a

jury verdict for Roberto Martinez (Martinez) and his wife,

Juanita Martinez, individually and as next friends of Robert,

Jr. and John Martinez. We affirm in part and reverse in part.

62a

Appendix B

Martinez suffered severe injuries on October 31, 1990 when

he was struck by a 16" Goodrich tire that exploded after he had

mounted it on a 16.5" rim during the course of his employment.

Martinez brought suit against Goodrich as manufacturer of the

tire, The Budd Company (Budd), manufacturer of the rim, and

Ford Motor Company (Ford), who designed the specifications

for the rim. Three theories were alleged in Martinez’s petition:

(1) strict products liability based on defective design,

(2) negligence, and (3) gross negligence. Budd and Ford settled

prior to trial. The jury found that (1) the design defect in the

Goodrich tire was a producing cause of Martinez’s injuries;

(2) the rim was not defective as designed by either Ford or

Budd; (3) Goodrich’s negligence and gross negligence

proximately caused Martinez’s injuries; and (4) neither

Martinez, Budd, nor Ford was negligent. The jury awarded

Martinez and his family $5.5 million in actual damages plus

$11.5 million in punitive damages. The punitive damages were

reduced to one times the actual damages pursuant to a pretrial

agreement between the parties. The trial court further reduced

the total damages by $1.4 million in accordance with Goodrich’s

elected dollar for dollar settlement credit. The court also

awarded prejudgment interest. Goodrich brings twenty-one

points of error on appeal.

Several of Appellant’s points of error challenge both the

legal and factual sufficiency of the evidence. In considering a

“no evidence” or legal sufficiency point of error, we consider

only the evidence favorable to the verdict and disregard all

evidence and inferences to the contrary. Davis v. City of San

Antonio, 752 S.W.2d 518, 522 (Tex.1988). When more than a

scintilla of evidence supports the jury’s finding, we are not at

liberty to sustain a no evidence point. Kindred v. Con/Chem,

Inc., 650 S.W.2d 61, 63 (Tex.1983). When considering a factual

63a

Appendix B

sufficiency point, however, we review all of the evidence and

Sustain the point of error only if the supporting evidence is so

weak as to be clearly wrong and manifestly unjust. Cain v. Bain,

709 S.W.2d 175, 176 (Tex.1986).

1. Negligence

In its first point of error, Appellant contends that there was

no evidence or insufficient evidence that Goodrich was

negligent. Negligence consists of three essential elements:

(1) a legal duty owed by one person to another; (2) breach of

that duty; and (3) damages proximately resulting from that

breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311

(Tex.1987). A manufacturer has a duty to exercise reasonable

care in designing and manufacturing a product. Gonzales y.

Caterpillar Tractor Co., 571 S.W.2d 867, 871-72 (Tex.1978),

To show that conduct caused an injury, the plaintiff must present

evidence of cause in fact and foreseeability. E/ Chico Corp.,

732 S.W.2d at 313.

On the issue ofa duty, Mr. Milner, a metallurgical engineer,

testified that Goodrich was unreasonable in not designing the

tire to be more resistant to breaks. He noted that a stronger and

more uniform bead had been available since the early 1970s.

Mr. Milner also explained how the breaks occur in the multi-

strand bead tire, the type involved in this case. Testimony of

Mr. Milner indicated that the tire industry was well aware of

the tire failure problems due to mismatching, when a 16" tire

was mounted on a 16.5" rim, since at least the early 1970s.

Frank Timmons, a representative for the Rubber Manufacturer’s

Association, testified about a presentation he made in Japan

regarding the history of and problems with the 16.5" wheel

systems. Goodrich’s prior Director of Industry Standards and

64a

Appendix B

Government Relations was in attendance at the meeting to help

urge the Japanese manufacturers not to introduce a 15.5" wheel

system into the United States market because of the

mismatching problems encountered with the 16.5" wheels.

Stanley Lew, a tire engineer for Goodrich for twenty years,

testified that the single strand bead, advocated by Mr. Milner,

was not foolproof and would still be dangerous if the

mismatched tire and rim were used on the road. Mr. Lew did

agree, however, that the single strand bead had some

advantages. Goodrich bought a new machine in 1990 to convert

to the single strand bead in 1991.

In considering the causation issue, our review of the record

revealed that several witnesses, including Goodrich’s experts,

testified that if the tire had been made with the stronger, single

strand bead, the explosion may not have occurred under the air

pressure being used at the time of the accident. There was

conflicting evidence, however, on what pressure was in the tire

at the time of the explosion.

Ray Regalado, an employee working with Martinez on the

day of the accident, verified that the exploding tire was the

cause of a serious head injury to Martinez. Testimony from

several doctors and Martinez’s family confirmed the damages

incurred by Appellee from the injury.

In reviewing the above evidence, the fact that the use of an

alternative design may have prevented the accident was

sufficient to indicate a lack of reasonableness by Goodrich.

There is also sufficient evidence to establish that the weak tire

bead was the cause of the explosion and the resulting injury

and damages. We hold, therefore, that the evidence is adequate

65a

Appendix B

to support the jury’s finding of negligence, both legally and

factually. Point of error one is overruled.

2. Design Defect

Appellant asserts, in its second point of error that there

was either no evidence or insufficient evidence to support the

jury’s finding that the tire was defectively designed and that

such design was a producing cause of Appellee’s injuries.

Texas has recognized a strict liability cause of action for

defective products, as set out in the Restatement Second of Torts

§ 402A, since 1967. McKisson v. Sales Affiliates, Inc., 416

S.W.2d 787, 789 (Tex.1967). The elements of proof for a

defective product cause of action include:

(a) The product must be defective;

(b) The product must reach the consumer without

substantial change from the time it leaves the

possession and control of the manufacturer or

seller;

(c) The defective condition of the product must

render the product unreasonably dangerous;

(d) The unreasonably dangerous condition of the

product must be the cause of the injury to the

user.

RESTATEMENT (SECOND) OF ToRTS § 402A (1965). A product

defect can be shown by either a manufacturing defect, a design

defect, or a marketing defect. Temple EasTex, Inc. v. Old

66a

Appendix B

Orchard Creek Partners, Ltd., 848 S.W.2d 724, 732 (Tex.App.

— Dallas 1992, writ denied). Appellant contends, in its brief,

that Plaintiff's failure to obtain a finding that the warning was

inadequate precludes recovery under a defective design theory.’

When an issue of defective design is alleged, however, the

presence of a warning label is only one of many factors to be

considered in determining the utility of a product. Temple

EasTex, 848 S.W.2d at 724. The pleadings in this case alleged

defective design, therefore a finding of the adequacy of the

warning label was not required.

A product is defectively designed when it is unreasonably

dangerous, taking into consideration the utility of the product_

and the risk involved in its use. Turner v. General Motors Corp.,

584 S.W.2d 844, 847 n. 1 (Tex.1979); see also Acord v. General

Motors Corp., 669 S.W.2d 111, 115-16 (Tex.1984). In a

defective design case, both parties are to present evidence

regarding several factors to consider in order to provide the

trier of fact with appropriate balancing criteria. Turner, 584

S.W.2d at 849. Factors to consider that indicate a design defect

include: (1) the availability of safer design alternatives,

Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 746

(Tex.1980); (2) proof of similar accidents involving that same

product, Magic Chef, Inc. v. Sibley, 546 S.W.2d 851, 855

|. Appellant, however, cites only to cases involving an issue of

marketing defect. See Magro v. Ragsdale Bros., 721 S.W.2d 832, 834

(Tex.1986); Technical Chem. Co. v. Jacobs, 480 S.W.2d 602, 603

(Tex.1972); Blackwell Burner Co. v. Cerda, 644 S.W.2d 512, 516

(Tex.App. — San Antonio 1982, writ ref'd n.t.e.); Horak v. Pullman,

Inc.. 764 F.2d 1092, 1095 (Sth Cir.1985); Reves v. Wyeth Laboratories,

498 F.2d 1264, 1275 (Sth Cir.), cert. denied, 419 U.S. 1096, 95 S.Ct.

687, 42 L.Ed.2d 688 (1974); Carter v. Johns-Manville Sales Corp., 557

F.Supp. 1317, 1320 (E.D.Tex.1983).

67a

Appendix B

(Tex.Civ.App. — San Antonio 1968, writ ref’d n.r.e.); (3)

subsequent changes or modifications in design, TeEx.R.Civ.Evip.

407(a); (4) evidence of out-of-court experiments, F.M.C. Corp.

v. Burns, 444 S.W.2d 315, 322 (Tex.Civ.App. — San Antonio

1969, no writ), and (5) expert testimony claiming a design defect

Tex.R.Civ.Evip. 702, 703, 704; General Electric Co. v. Schmal.

623 S.W.2d 482, 484-85 (Tex.App. — Texarkana 1981, writ

ref'd n.r.e.). See Turner, 584 S.W.2d at 849.

Our review of the evidence in favor of the jury’s finding

of a defective design shows that there is legally sufficient

evidence to support the finding. Mr. Milner testified for

Appellee that an alternative design with a stronger bead had

been available since at least 1972. Testimony was also given

verifying Goodrich’s answer to interrogatories admitting to

thirty-four known lawsuits involving the same product. Mr.

Milner also testified that other tire manufacturers had switched

to the stronger, single strand bead much sooner than Goodrich,

who changed their design in 1991. Documentary evidence was

introduced showing an experiment conducted by Goodrich in

1976 with mismatched 16.0" tires on 16.5" rims. This document

verified that the tires could explode at 73 pounds per square

inch of air pressure (P.S.I.). Mr. Milner clearly stated that he

thought the Goodrich tire involved in the injury was defectively

designed.

Further evidence was presented by both parties regarding

Goodrich’s design of the tire. Goodrich’s design change was

verified by Mr. Lew, who also testified that Goodrich had gone

to a higher tensile wire in 1987. Mr. Lew contended that the

current, technologically advanced machine for single strand was

not available until 1986 for testing. He also claimed that the

single strand design change was made to provide a smoother

68a

Appendix B

ride with a more uniform tire. Mr. Lew stated that only one

lawsuit had been filed since the warning label was placed on

the tires, and in the lawsuit the customer had ordered a 16.5"

tire and the mounter had improperly tried to mount a 16" tire.

Tom Conner, a forensic scientist, testified that it is not

possible to get a complete bead seating when a 16" tire is put

ona 16.5" rim. Mr. Conner also stated that there is a high risk

of blowout on the road if the mismatch goes unnoticed. He

discussed recent tests done by the major tire manufacturers

where the tires did not fail until between 90 and 130 P.S.I.

Donald Avila, a tire engineer who worked for Goodyear

Tire and Rubber Company for twenty years, testified that there

is not an adequate solution available to avoid the mismatching

explosions.

After reviewing all evidence presented by both parties on

whether Goodrich’s tire was defectively designed, we conclude

that the jury’s finding was not unjust. Evidence pointing to

safer alternatives, similar accidents, and subsequent changes

supports the jury’s decision. See Turner, 584 S.W.2d at 849.

Appellant's second point of error is overruled.

3. Gross Negligence

Appellant’s third point of error challenges the legal and

factual sufficiency of the evidence supporting the jury’s finding

that Goodrich was grossly negligent. The supreme court recently

delineated the standard of review to be applied to gross

negligence cases in Transportation Ins. Co. v. Moriel, 879

S.W.2d 10, 23 (Tex.1994). Because the appeal in this case was

pending when the Morie/ decision was handed down, we will

69a

Appendix B

apply Morie!. See Ellis County State Bank v. Keever, 888

S.W.2d 790, 799 (Tex.1994). To establish gross negligence,

the plaintiff must show, by a preponderance of the evidence,

that:

(1) viewed objectively from the standpoint of the

actor, the act or omission must involve an extreme

degree of risk, considering the probability and

magnitude of the potential harm to others, and

(2) the actor must have actual, subjective awareness

of the risk involved, but nevertheless proceed in

conscious indifference to the rights, welfare and

safety of others.

Moriel, 879 S.W.2d at 23; see also TEx.C1v.PRac. & REm.CopE

§ 41.001(5) (Vernon Supp.1995). “Extreme risk” is a function

of both the magnitude and probability of harm to the plaintiff.

Moriel, 879 S.W.2d at 22; Caterpillar, Inc. v. Shears, 881

S.W.2d 923, 932 (Tex.App. — Corpus Christi 1994), rev’don

other grounds, 911 S.W.2d 379 (1995). The extreme risk prong

is only satisfied by evidence showing “ ‘the likelihood of serious

injury’ to the plaintiff.” Moriel, 879 S.W.2d at 22 (quoting Wal-

Mart Stores, Inc. v. Alexander, 868 S.W.2d Jan, Sat

(Tex.1993)). The remote possibility of injury is not enough.

Moriel, 879 §.W.2d at 21. An act or omission that is merely

thoughtless or careless is not enough, the actor must proceed

with actual conscious indifference to the risk. Jd. at 20. The

subjective conscious indifference is what distinguishes gross

negligence from ordinary negligence. Alexander, 868 S.W.2d

at 325. The defendant’s subjective mental state may be proven

by direct or circumstantial evidence. Moriel, 879 S.W.2d at

23.

70a

Appendix B

In reviewing the record for evidence of gross negligence,

we consider all of the previously summarized evidence and

would supplement the following: Mr. Milner, in testifying for

Martinez, advocated that to increase safety the wire bead should

be 50 thousandths tensile strength. Mr. Lew contradicted Mr.

Milner’s testimony by asserting that Goodrich had indeed

changed to the stronger bead wire in 1987. Mr. Lew also

described the one lawsuit since the pictorial warnings,

emphasizing the mismatch hazard, had been placed on the 16"

tires. The lawsuit involved a customer who requested a 16.5"

tire and the mounter tried four times to get a 16" tire to seat

correctly. Mr. Lew indicated that the mistake was made by the

tire mounter. He also testified that there were drawbacks to the

single strand bead and that Goodrich had waited until 1986,

when a more technologically perfected machine was available,

to oegin testing for use of a single strand bead wire.

As previously noted, several witnesses testified that

Goodrich was involved in trying to convince the Japanese

manufacturers not to introduce a 15.5" tire because of the

problems experienced with the 16.5" tire system. The evidence

was conflicting on whether there was a “better” solution in

designing tires so that they would not explode in a mismatch

situation. Although Mr. Milner contended that a stronger, single

strand bead was the solution, he also admitted that if the rim

had been designed so it was easily distinguishable or would

not accept the wrong size tire, no accident would have occurred.

Mr. Lew, Mr. Avila, and Mr. Conner all testified that a tire

with a stronger bead or single strand bead will still explode,

depending on the air pressure in the tire.

Various tests involving tires designed by the major

manufacturers were introduced by both parties. These tests

T7la

Appendix B

indicated that the lowest pressure range involving an explosion

could occur over 73 P.S.I. (testing done by Goodrich on tires

with the lower tensile strength bead in 1976), while most

occurred at between 90 and 130 P.S.I. (current tires with the

stronger bead). Mr. Milner and Mr. Regalado estimated the tire

pressure at the time of the accident to be about 50 P.S.I. The

normal pressure for the tire involved in the accident was 60

P.S.I. All of the experts agreed that it was unsafe to apply more

than 40 P.S.I. when trying to seat the tire properly.

Although there is sufficient evidence to establish that an

extreme risk was involved, the evidence of probability that harm

would occur under normal circumstances is insufficient. Under

normal pressure levels, the chances of an explosion was shown

to be nonexistent by all test results introduced. Furthermore,

only one suit involving a mismatched tire had been filed

involving Goodrich since the warnings had been placed on the

tires and the circumstances of that case indicated that the

culpability fell strongly on the party mounting the tire.

The most questionable issue on gross negligence in this

case, however, is whether Goodrich acted with conscious

indifference. The evidence showed that Goodrich had clearly

warned against the dangers of mismatch. When a manufacturer

places a warning on a product, to protect against misuse, he

can expect that the warning will be followed. RESTATEMENT OF

Torts (Seconp) § 402A cmt.i (1977). The testimony that

Goodrich was involved in talks with the Japanese to discourage

the introduction of another tire system with potential for

mismatch problems, further indicated Goodrich’s concern. The

evidence also showed that although alternatives were available,

there was nota fail-safe solution, that could be achieved by the

tire manufacturers, to prevent a mismatch explosion. The only

72a

Appendix B

evidence introduced that Goodrich was consciously indifferent

to the possible harm resulting from a mismatch was the opinion

testimony of Mr. Milner. All other evidence refutes that

Goodrich disregarded the mismatch problems.

We find that the jury’s decision on gross negligence ts not

supported by the bulk of the evidence and is unjust when

reviewing all of the evidence presented. We affirm Appellant’s

third point of error.

4. Exemplary Damages

Appellant further challenges, in points of error four through

seven, the trial court’s rendering of the judgment to include

exemplary damages based on the jury’s verdict. An award of

exemplary damages must be supported by a culpability finding

of at least gross negligence. See Moriel, 879 S.W.2d at 16, 19.

Because we do not find evidence to support the jury’s decision

on gross negligence, the award of exemplary damages cannot

be upheld and we will not address points of error four through

seven.

In point of error eight, Goodrich challenges the amount of

exemplary damages, claiming that it should have been lowered

to $4.1 million per a pre-trial agreement. Again, because of the

unsupported finding on gross negligence, this point of error 1s

now moot.

5. Contributory Negligence

In points of error nine through fourteen, Appellant asserts

that there was either no evidence or insufficient evidence to

support the jury’s findings of no negligence or causation that

contributed to Appellee’s injuries by Budd, Ford, or Martinez.

At

73a

Appendix B

We will first review the evidence presented on the

negligence of Budd and Ford in designing and manufacturing

the rim. Mr. Milner, testifying for Appellee, stated that the tire

manufacturers were aware that many of the 16.5" rims were

still in use, even though Budd stopped manufacturing them in

1983. Mr. Milner offered his opinion that the rim was defective

because the size was not clearly and conspicuously marked.

He further stated that the condition of the rim was one cause of

the accident. Mr. Martinez testified that the size of the rim

should be placed near the valve system so it was easier to

identify.

Mr. Conner, testifying for Appellant, Suggested that the

rim could be manufactured with a safety hump (as the Japanese

had done) so that an improper tire could not be mounted. Mr.

Conner also emphasized the need to have the rim size Clearly

marked near the valve for easy identification. Donald Scriver,

a retired engineer for Budd, testified that it was feasible to put

a more conspicuous marking near the valve. Mr. Lew testified

that Budd had been involved in 132 lawsuits regarding the rim

type involved in this case. Mr. Lew also described how the

Japanese had designed their rim to reject a mismatched tire

and had placed clear labels Stating the size on each rim. Mr.

Lew did concede, however, that the only thing that failed in

this accident was the tire.

Although Appellant asserts that the evidence of Budd and

Ford’s negligence was uncontroverted, Appellant’s own witness

agreed that the tire was the only product that “failed.” The

evidence showed that Budd had stopped manufacturing the rim,

and therefore could not redesign it; while Goodrich was in a

position to design their tires to lower the chance of mismatch

accidents. We find that this evidence was legally and factually

74a

Appendix B

sufficient to support the jury’s finding that Goodrich was 100%

at fault.

Appellant also asserts that Martinez was contributorily

negligent in changing the tire. Mr. Milner testified that a special

gauge 1s required to measure the size of a tire rim and that no

tire shops would have the gauge. He also stated that there is no

way to tell, without trying to decipher the small coded numbers

and letters on the rim, what size a rim 1s.

Mr. Vera, Martinez’s employer at the time of the accident,

testified that it is very difficult to tell the size of a rim. Mr.

Regalado, who was working with Martinez when the accident

occurred, described how he had taken six 16" tires off the truck

and already mounted 16" tires on five of the rims with no

problems. He also testified that the tire they took off of the last

rim was a 16" tire. Martinez corroborated that the tire being

replaced was a 16" tire and that he was following the same

procedures he had followed many times in changing tires.

Mr. Conner emphasized in his testimony that a person

should always check the markings on the rim to make sure there

is a proper match. He conceded, however, that it is often difficult

to determine the size of the rim.

Appellant also asserts that Martinez was negligent in

putting excessive air pressure into the tir.. Mr. Regalado

testified that the pressure in the tire at the time of the accident

was about 50 P.S.1.; Martinez was filling the tire to the required

60 P.S.1. after they heard it “seat” at about 38 P.S.I. Mr. Milner

verified that in his opinion, considering the condition the tire

was in after the accident, the pressure in the tire was about 50

P.S.1. when it exploded. Mr. Avila testified, however, that the

75a

Appendix B

pressure had to have been at over 100 P.S.I. when it exploded

because of the markings on the tire and the fact that the valve

was broken.

In sum, the evidence indicates the difficulty in identifying

the rim size, the fact that a 16" tire was taken off the rim

involved in the accident, and that it appears Martinez was

following the usual procedure when changing the tire. We find

that there was sufficient evidence, both legally and factually,

for the jury to determine that no part of the accident was

attributable to Martinez’s negligence.

Points of error nine through fourteen involving the

contributory negligence of Budd, Ford and Martinez are

overruled.

Appellant further asserts, in point of error fifteen, that there

is no evidence, or alternatively, insufficient evidence for the

jury’s finding that Martinez did not contribute to the Injury by

failing to pursue rehabilitation.

Dr. Rossi, a neurologist who treated Martinez for three

months in rehabilitation, testified that Martinez did not

comprehend the extent of his injury or the need for further

rehabilitation. Dr. Rossi attributed the lack of comprehension

directly to the injury from the tire accident.

Donna Johnson, a vocational rehabilitation counselor,

testified that further rehabilitation would be beneficial for

Martinez. Martinez’s wife testified that the family was willing

to encourage further treatment, but she was unsure that her

husband would cooperate. Martinez testified that he would not

go through further rehabilitation unless his family could be close

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by; he later testified that he would not enter rehabilitation again

unless his wife threatened to leave him.

Dr. Seaton, a neuropsychiatrist who treated Martinez at

the Tangrum Rehabilitation Center, testified that Martinez was

a good candidate to successfully complete the rehabilitation

program. He also testified that patients with conditions similar

to Martinez could eventually become employed. Dr. Seaton

agreed that Martinez’s denial of a need for rehabilitation could

be attributed to the brain injury he incurred.

Although the evidence was clear that Martinez did not

follow through on rehabilitation, his perception of the need for

further treatment was identified as a condition of his injury.

We find, therefore, that the evidence was legally and factually

sufficient to support the jury’s finding that Martinez did not

contribute to the injury by failing to pursue rehabilitation. Point

of error fifteen is overruled.

6. Evidence

In points of error sixteen, seventeen, and eighteen,

Appellant asserts that the trial court erred in admitting evidence

of other lawsuits against Goodrich, subsequent design changes,

and “the Milner timeline.”

It is within the trial court’s wide discretion to determine

the admissibility of evidence. Gee v. Liberty Mut. Fire Ins. Co.,

765 S.W.2d 394, 396 (Tex.1989). A judgment will not be

reversed based on improper admission of evidence unless the

error “was reasonably calculated to cause and probably did

cause rendition of an improper judgment .. .” Tex.R.App.P.

81(b).

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Evidence of other lawsuits or claims is admissible if the

events occurred under “reasonably similar but not necessarily

identical circumstances.” Missouri-Kan.-Tex. R.R. Co. v. May,

600 S.W.2d 755, 756 (Tex.1980); see also Magic Chef, Inc. v.

Sibley, 546 S.W.2d 851, 855 (Tex.Civ.App. — San Antonio

1977, writ ref’d n.r.e.). Goodrich contends that Martinez offered

no predicate indicating that the circumstances were similar in

the other suits. The evidence of previous lawsuits was obtained

through interrogatories in which Goodrich was asked to identify

suits involving accidents resulting from a 16" Goodrich tire

being mounted on a 16.5" rim. Goodrich was allowed to present,

through the testimony of Mr. Lew, evidence that qualified the

circumstances under which the lawsuits had been filed. We find

that the size and mismatch problem, each resulting in an

accident involving a Goodrich tire, indicate adequate similarity

to negate a finding that the trial court abused its discretion in

admitting the evidence of other lawsuits.

Subsequent design changes in a products liability case are

specifically allowed under Tex.R.Civ.Evip. 407; Chapa vy.

Garcia, 848 S.W.2d 667, 671-72 n. 6 (Tex.1992). Furthermore,

although Appellant argues that the design change was made to

the light truck radial tires and not the light truck bias-ply tires

involved in this case, we find nothing in the record that indicates

this argument was presented to the trial court. Appellant had a

running objection to the relevancy of design changes made to a

“space saver” tire, but in subsequent testimony by Mr. Milner,

Appellant did not object to the introduction of design changes

incorporating the single strand bead into light truck tires. This

issue was not properly preserved for review. Tex.R.App.P. 52(a).

In requesting that the timeline, prepared by Mr. Milner, be

admitted into evidence, Appellee pointed out that each of the

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notations on the timeline was already in evidence through

testimony of Mr. Milner. A chart summarizing previous

testimony is rarely a source of reversible error. See

Southwestern Bell Tel. Co. v. Vollmer, 805 S.W.2d 825, 832

(Tex.App. — Corpus Christi 1991, writ denied); Houston

Lighting & Power Co. v. Klein Indep. Sch. Dist., 739 S.W.2d

508, 519 (Tex.App. — Houston [14th Dist.] 1987, writ denied).

Appellee introduced the timeline on the premise that it was

prepared by Mr. Milner to clarify the sequence of events

regarding the history of the mismatch problems in the tire

industry. Trial courts have discretion, in order to aid the jury’s

understanding, to allow charts that summarize or even

emphasize the testimony of a witness. Speier v. Webster

College, 616 S.W.2d 617, 618-19 (Tex.1981). We find,

therefore, that the trial court did not abuse its discretion in

admitting the timeline that outlined Mr. Milner’s testimony.

Because we find that the trial court did not abuse its

discretion in admitting the above described evidence, there was

no reversible error and points of error sixteen, seventeen, and

eighteen are overruled.

7. Damages

Appellant urges, in points of error nineteen, twenty, and

twenty-one, that there is factually insufficient evidence to

support awards of $3 million in actual damages to Martinez,

$500,000 to Juanita Martinez, and $1 million to each of

Martinez’s sons. In determining whether damages are excessive,

we apply the same standard as for any factual sufficiency

question. Pope v. Moore, 711 S.W.2d 622, 624 (Tex.1986).

Everett Dillman, an economic consultant, testified

regarding Martinez’s :conomic losses. The range of lost wages

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was from $301,707 making $6 per hour until age sixty with no

wage increases, to $725,000 for the average wage of a truck

driver until age seventy. Mr. Dillman also calculated the cost

at $5.3 million if Martinez were to require full time care for

the remainder of his life. Mr. Dillman noted that these figures

do not include any amounts for pain and suffering,

disfigurement, or mental anguish. The actual medical bills

amounted to $183,000.

Dr. Rossi testified that Martinez would not be able to live

in

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