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Below v. Yokohama Tire Corp.

United States District Court, W.D. Wisconsin

February 27, 2017

JOSHUA J. BELOW, by his guardian, DEBRA BELOW, CHARLIE ELIZABETH BELOW, a minor by her Guardian ad Litem, DANIEL A. ROTTIER, and PATRICK JOSHUA BELOW, a minor by his Guardian ad Litem, DANIEL A. ROTTIER, Plaintiffs,
YOKOHAMA TIRE CORPORATION, et al., Defendants. and DEAN HEALTH PLAN, INC., Involuntary Plaintiff, and STAR BLUE BELOW-KOPF, by her Guardian ad Litem, TERESA K. KOBELT, Intervening Plaintiff,


          WILLIAM M. CONLEY District Judge.

         This matter is scheduled for trial to begin on March 6, 2017. In advance of tomorrow's final pretrial conference, this order addresses the parties' various pending motions.

         I. Defendants' motion to exclude expert opinion testimony from Kevin Schutz

         Defendants move to exclude opinions from plaintiffs' vocational expert, Kevin Schutz, that Below's injuries prevent him from working as a plumber, on the grounds that Schutz lacks the qualifications of an expert and that his opinions are unreliable. A district court is responsible for ensuring that a party's proffered expert testimony is relevant and reliable. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). To be admissible under Federal Rule of Civil Procedure 702, an expert's opinion testimony must satisfy the following three-part test: (1) the witness must be qualified by knowledge, skill, experience, training or education; (2) the reasoning or methodology underlying his testimony must be scientifically reliable; and (3) the testimony must assist the jury to understand the evidence or determine a factual issue. Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007).

         As an initial matter, defendants argue that because Schutz is a psychologist, he is not qualified to offer an opinion concerning the job duties of a plumber or a medical opinion about Below's physical and cognitive disabilities. Defendants also argue that Schutz's opinion that Below can never work as a plumber again is an inadmissible, “bottom line” opinion, which fails to account for medical evidence suggesting adequate cognitive performance and the ability to do some plumbing work. Finally, defendants argue that Schutz's opinions are not moored adequately to the facts, having failed to take into account Below's prior brain and hand injuries caused by earlier car accidents.[1]

         While plaintiffs acknowledge (as they must) that Schutz is unable to offer medical opinions of his own, they emphasize his experience as qualifying him as an expert in vocational counseling. Given Schutz's graduate-level education in vocational rehabilitation and experience performing vocational evaluations, the court agrees that Schutz is qualified to offer expert opinion regarding Below's vocational ability. Of course, defendants are free to point out the limits of that expertise, whether in the art of medicine or plumbing, as well as his factual assumptions.

         As for the factual underpinnings of Schutz's opinion, he noted that Below was able to work as a plumber before the car accident at issue, despite his earlier hand injury. Schutz also relies on Below's medical record to support his finding that Below is unable to resume working as a plumber. In resolving a Daubert motion, the court is not tasked with determining whether an expert's opinion is correct, but rather whether it is relevant and based on sound methodology. Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000). Defendants are certainly free to point out portions of Below's medical records that arguably undermine Schutz's opinion, but any shortcomings in his analysis or factual assumptions are proper subjects of cross-examination and ultimately for the jury to decide, not a basis to exclude his opinions altogether. This motion is DENIED.

         II. Defendants' motion for relief due to spoliation of evidence

         Below's pickup truck was destroyed at a salvage yard before plaintiffs filed this lawsuit. Defendants argue that the destruction of the truck hampered their ability to defend against this lawsuit, because they were unable to evaluate, among other things, the suspension and steering systems, the seatbelt, the electronic data recorder and the other three tires. Asserting that plaintiffs or their “agents” sold Below's pickup truck to a salvage yard with the knowledge that it would be destroyed after inspecting it, taking photographs and preserving the failed tire, defendants move for a spoliation instruction.

         A spoliation instruction is only obtainable if the proponent shows an intentional act or bad faith by the party in possession of the destroyed evidence. See Bracey v. Grondin, 712 F.3d 1012, 1020 (7th Cir. 2013); Spesco, Inc. v. Gen. Elec. Co., 719 F.2d 233, 239 (7th Cir. 1983). With respect to plaintiffs' actions, defendants assert that: (1) Below or his agent transferred the truck's title to the salvage yard; (2) plaintiffs “did nothing to preserve the truck, despite having located it and inspected it themselves;” and (3) plaintiffs failed to alert Yokohama that they intended to file a lawsuit against them, much less advise where the vehicle was being stored. (Defs.' Br. Supp. (dkt. #74) at 11.) From these actions, as well as Below's receipt of $22, 000 in insurance proceeds from the sale of the truck, defendants argue, plaintiffs' bad faith can be inferred.

         Not surprisingly, plaintiffs' paint a much different picture in response. Contrary to defendant's assertions, plaintiffs represent that Below's mother did not contact plaintiffs' counsel the day after the accident. Instead, plaintiffs' counsel was retained about a month and a half later, on October 30, 2013. Moreover, plaintiffs' counsel represent that same day, one of their investigators, Terry Tadusak, discovered that some components had already been removed from the truck, presumably by the salvage yard. Also that day, plaintiffs assert that the salvage yard agreed to the investigator's request to preserve the truck. Several months later, in May of 2014, another of its investigators, Tom Malone, followed-up with the salvage yard to ask them to continue to preserve the truck and to notify him about any storage charges. Despite these efforts, plaintiffs' counsel later “discovered” in fall of 2015 that the truck had been destroyed on October 23, 2014.

         Left unexplained is how plaintiffs ended up with the single, allegedly defective tire without preserving the other three; why other steps were not taken to preserve similar evidence, including possible electronic evidence that must be preserved under Fed.R.Civ.P. 37(e); and perhaps most important, why plaintiffs waited another, two full years after the accident without notifying Yokohama of the availability of this piece of key evidence, despite knowing that it was the focus of plaintiffs' liability claims within months of the accident itself. These questions are all the more troubling because plaintiffs were represented by a sophisticated personal injury law firm, who know full well of their duty to maintain evidence relevant to likely litigation, to provide notice of a possible claim, and notice of “the existence of evidence relevant to that claim.” Am. Family Mut. Ins. Co. v. Golke, 319 Wis.2d 397, 768 N.W.2d 729, 732 (2009). Plus, Malone's letter to the salvage yard presents many more questions than it answers, as to timing and whether any agreement ever existed with the salvage yard.

         Based on this record, plaintiffs' counsel certainly should have taken additional steps to ensure that the truck (or at least potentially key evidence) was preserved, as well as notified likely defendants timely of the opportunity to inspect it. The failure to do so falls somewhere between negligence and gross negligence, but perhaps short of bad faith or intentional conduct requiring an adverse inference instruction. Even so, defendants persuasively argue that the absence of this evidence should at minimum preclude plaintiffs from using it as a sword, even if defendants cannot use it as a shield.[2]Therefore, the defendants motion is GRANTED to the extent that (1) defendants may explore how information from an inspection of Below's truck could have affected the experts' opinions at trial; and (2) plaintiffs may not argue that defendants or their experts failed to explore or prove something if prevented from doing so by plaintiffs' negligence in preserving evidence. Defendants' motion is otherwise RESERVED pending a further proffer and argument at the final pretrial conference, including defendants request for a spoliation instruction.

         III. Motions in Limine

         A. Defendants' motions

         1, 2 & 3. Plaintiffs should be barred from presenting evidence about or otherwise referring to (1) dissimilar tires; (2) dissimilar accidents; and (3) unrelated adjustments and all claims and lawsuit data

         Lacking in specifics, defendants' first, second and third motions in limine seek to broadly exclude evidence they argue is not sufficiently related to plaintiffs' design and manufacturing defect claims in this case, including evidence about: (1) tires with a specification other than the specific tire at issue in this case; (2) other lawsuits and warranty claim adjustments; and (3) other accidents. Citing NHTSA regulations, defendants argue that tires sufficiently similar to the Yokohama tire that failed must share the same “article number (E3523) or specification, ” and so evidence related to any other tires should be excluded. (Defs.' Mots. (dkt. #124) at 6.) Defendants further assert that there is no other Yokohama tire that is “related” to the tire at issue because it has no “common green tire, ” defined by 49 C.F.R. § 579.4(c) as a tire produced to the same internal specifications. (Defs.' Supp. Br. (dkt. #143) at 4.) Even more generally, defendants conclude, “the evidence that should be excluded includes, but is not limited to, evidence regarding other tires manufactured to other articles or specifications, including tires manufactured by Yokohama Rubber Company, and at other facilities during other time periods, and/or testing data relating to tires other than the tire at issue in this case.” (Defs.' Mots. (dkt. #124) at 6.)

         Defendants then make similar, general arguments with respect to other broad categories of evidence, asserting that because no other lawsuit has been filed against Yokohama concerning a tire with the same specification as the tire here, plaintiffs cannot show that any other lawsuit is sufficiently similar, adding that there is no “pending claim against Yokohama which pertains to the subject tire's specifications.” (Defs.' Supp. Br. (dkt. #143) at 12.) As to evidence of adjustment data, defendants argue that adjustments are not probative of the existence of any defect, because employees of retailers who make the adjustments do not determine whether a defect caused the need for an adjustment and because they are made for various reasons related to customer service purposes.

         In response, plaintiffs argue that defendants' motions misapply the standard of similarity required by the case law for evidence to be admissible. In particular, plaintiffs argue that other tires, accidents, lawsuits and adjustments need not be identical. Instead, citing Mihailovic v. Laatsch, 359 F.3d 892 (7th Cir. 2004), plaintiffs assert that “other accidents are generally deemed admissible both to prove the existence of a defect or danger in a location or a product and to show that the defendant had notice of the defect or danger, so long as the other accidents are ‘substantially similar' to the accident at issue in the litigation.” Id. at 908 (citations omitted) (emphasis added).

         So far, so good, except that the examples of admissible evidence of other accidents that plaintiffs proffer do not match their defect claims, particularly given the guidance from Mihailovic that “[t]he particular defect or danger alleged by the plaintiff will serve to define the degree of commonality that there must be among the accidents in order for them to be considered substantially similar.” Id. Specific examples of other accident evidence plaintiffs intend to offer are:

• Evidence of other cases where a G051 tire suffered tread separation and tire failure will be used to prove notice of danger with belt and tread separation in tires [that] are all substantially similar construction, lacking nylon cap plies.
• Adjustment data (warranty claims where the tire failed) related to G051 tires identifying occasions where the tires have encountered a tread separation.

(Pls.' Opp'n Br. (dkt. #159) at 5.)

         In this case, plaintiffs claim that a manufacturing defect caused the tire to have “poor adhesion” and also that a design defect (the lack of a nylon cap ply) did not permit Below enough time to recognize the tire failure and safely bring his truck to a stop. (Id. at 3-4.) In contrast to plaintiffs' evidence that “Yokohama uses nylon cap plies in other similar tire models” (Pls.' Opp'n Br. (dkt. #159) at 12), which may be directly relevant to their design defect claims, generic evidence of other accidents involving “tread separation” are not sufficiently moored to their defect claims to be substantially similar.

         Without a more detailed explanation of what evidence regarding other tires, accidents, lawsuits and adjustments plaintiffs intend to offer as substantially similar to their specific design and manufacturing defect claims, plaintiffs have not shown that evidence is admissible. Accordingly, defendants' first three motions are RESERVED pending a further proffer by plaintiffs at the final pretrial conference.

         4. Plaintiffs should be barred from referring to any information as confidential

         Without explanation, defendants further assert that “[a]ny comments about ‘confidentiality' are not relevant to any issue in this case, and the comments would be highly prejudicial to Yokohama.” (Defs.' Mots. (dkt. #124) at 9.) Because the court cannot conclude that any reference from plaintiffs to information as confidential would be prejudicial to Yokohama in all circumstances, [3] this motion is DENIED without prejudice to a further explanation from defendants as to its concern at the final pretrial conference.

         5. Plaintiffs should be barred from presenting evidence about or otherwise referring to alleged manufacturing defects that took place (a) at any other Yokohama facility than the Salem plant or (b) at any other time than the relevant period

         As plaintiffs point out, this motion is another variation of defendants' first through third motions. Accordingly, the court will also RESERVE on this motion pending argument at the final pretrial conference.

         6. Plaintiffs should be barred from presenting evidence about, or otherwise referring to evidence of, any recalls, replacement programs or NHTSA investigations

         This sixth motion is also similar to defendants' first, second and third motions, with the possible exception that plaintiffs should be precluded from cross-examining defendants' expert witnesses about their involvement in or opinions regarding recalls of other tires. Moreover, even the exception requires an explanation from plaintiffs as to what evidence of bias they intend to elicit from defendants' experts at trial based on their work on other matters. Accordingly, it is also RESERVED in its entirety.

         7. Plaintiffs should be barred from referring to any alleged duty or failure to recall

         Defendants move to exclude plaintiffs from arguing that Yokohama was negligent in failing to recall the tire at issue in this case or that Yokohama made fraudulent representations that the tire complied with NHTSA standards. In response, plaintiffs confirm that they will not make those arguments in claiming that defendants' warnings were inadequate. Accordingly, this motion is GRANTED.

         8. Plaintiffs should be barred from referring to any post-sale duty to warn, retrofit or recall

         This motion is GRANTED as unopposed.

         9. Plaintiffs should be barred from presenting evidence about or otherwise referring to post-manufacture design changes or any other subsequent remedial measures

         Although plaintiffs point out that certain statements, such as an employee's “acknowledgement that there was a problem which needed fixing, ” are not excluded by Rule 407, and are admissible as admissions of an opposing party, Nationwide AgribusinessInsurance Co. v. Meller Poultry Equipment, Inc., Case No. 12-C-1227, 2016 WL 2593935, at*9 (E.D. Wis. May 5, 2016), they do not oppose this motion. Therefore, it is GRANTED. Should plaintiffs believe that this or another exception actually applies to a subsequent remedial measure under Rule 407, ...

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