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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1040

## Text

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
Reis ob on dg 4 oy 9 WP uw 6 6 6 4 ee» 060 0s

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

CONSTITUTIONAL AND STATUTORY PROVISIONS
Roa Sait SA. bic wk Wb Gs oo se 0 a 3

ee
B. Bifurcation is Requested and Denied .........
os yn oh a sake a vw dk S00 e888

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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Wa

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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

C'S S42. 8S FF Pe '€.0. fF £6 2S £14 2 Ae Oe Se Oe. SOS eee 6 2le Se ee Oe eS

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84a

88a

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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 an

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1307%3A1. Public record. Not legal advice.