Case 2:05-cv-02046-GMS Document 403 Filed 01/09/08 Page 1 of 16 1 2 3 4 5 6 7 FENNEMORE CRAIG, P.C. Graeme Hancock (No. 007190) Susan M. O (No. 020596) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: (602) 916-5000 Email: ghancock@fclaw.com Email: smo@fclaw.com Attorneys for Defendant The Goodyear Tire & Rubber Company UNITED STATES DISTRICT COURT 8 9 10 11 12 DISTRICT OF ARIZONA LEROY and DONNA HAEGER, husband and wife; BARRY and SUZANNE HAEGER, husband and wife; FARMERS INSURANCE COMPANY OF ARIZONA, an Arizona corporation, Plaintiffs, 13 16 17 THE GOODYEAR TIRE & RUBBER COMPANY’S MOTION FOR SUMMARY JUDGMENT v. 14 15 No. CV05-2046-PHX-ROS GOODYEAR TIRE AND RUBBER COMPANY, an Ohio corporation; SPARTAN MOTORS INC., a Michigan corporation; and GULFSTREAM COACH, INC., an Indiana corporation, 18 Defendants. 19 20 21 22 Defendant Goodyear requests that the Court grant summary judgment in its favor as follows: 1. Strict Liability and/or Negligent Design Defect: Plaintiffs’ tire expert’s (David Osborne’s) opinions are inadmissible under Daubert and Kumho Tire. Without supporting expert testimony regarding the cause of tire disablement, Plaintiffs cannot establish a prima facie case. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). 2. Strict Liability and/or Negligence on a Manufacturing Defect: 23 24 25 26 FENNEMORE CRAIG , P.C. P HOENIX Case 2:05-cv-02046-GMS Document 403 Filed 01/09/08 Page 2 of 16 Plaintiffs’ expert concedes that the tire disablement was not caused by any manufacturing defect in the tire. Plaintiffs have effectively abandoned this theory. 1 2 3 3. Strict Product Liability and/or Negligence Based on a “Failure to Warn”: Plaintiffs have no admissible expert opinion regarding their failure to warn claim and have additionally and separately failed to establish that an inadequate warning or instruction proximately caused their injuries. 4. Strict Liability and/or Negligence in Failing to Recall the Tire: State law does not recognize a strict liability or negligence claim based upon a “failure to recall” a product, and Goodyear is not subject to suit by Plaintiffs based on a failure to recall. 5. Strict Liability and/or Negligence in Post-Sale Warnings: Plaintiffs’ claim is nothing more than a “Failure to Recall” or design defect claim. Plaintiffs also lack evidence to establish any such claims. 6. Punitive or Exemplary Damages: Plaintiffs can present no evidence, let alone the required clear and convincing evidence, demonstrating that Goodyear acted with an evil mind or with spite or malice in its design or sale of the subject tire. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 This Motion is supported by the attached Memorandum of Points and Authorities, Statement of Undisputed Facts in Support of Motion for Summary Judgment, along with the pleadings and papers on file in this matter. MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND This action arises out of an accident that occurred when Plaintiff Leroy Haeger lost control of his Gulf Stream motor home following a tire disablement. (Goodyear’s Separate Statement of Facts (“SOF”) ¶ 1). After the initial tread separation event, Mr. Haeger slammed on the brakes and went off the right side of the road, traveling approximately 400 feet before the motor home flopped on to its left side and slid to a stop. (SOF ¶ 2) 25 PLAINTIFFS CANNOT ESTABLISH A PRIMA FACIE CASE OF DESIGN DEFECT 26 To establish a prima facie case of product liability, a plaintiff has the burden of FENNEMORE CRAIG , P.C. II. 2015424 P HOENIX -2- Case 2:05-cv-02046-GMS Document 403 Filed 01/09/08 Page 3 of 16 1 proving that “when the product left the defendant’s control, it was in a defective condition 2 that made it unreasonably dangerous and that the defect was a proximate cause of 3 plaintiff’s injuries.” Jimenez v. Sears, Roebuck & Co., 183 Ariz. 399, 402, 904 P.2d 861, 4 864 (1995). Additionally, if reasonable secondary causes for an accident such as misuse 5 and abuse (which Goodyear has asserted here as defenses) are not eliminated, plaintiff 6 must establish a specific defect in order to withstand summary judgment. Rhodes v. Int’l 7 Harvester, 131 Ariz. 418, 641 P.2d 906 (App. 1982). Issues regarding design defects of tires are beyond the common experience of the 8 9 jury. Expert testimony is required to establish design defect in a complex, highly 10 engineered product such as a tire. As set forth in Goodyear’s Motion to Exclude the 11 Testimony of David Osborne, Plaintiffs’ proposed expert’s opinions regarding a theory of 12 design defect should be excluded under Daubert and Kumho Tire. Daubert v. Merrell 13 Dow Pharms., Inc., 509 U.S. 579 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 14 137 (1999). Without reliable expert testimony from Mr. Osborne regarding the alleged 15 design defect, Plaintiffs cannot prove the essential elements of their case. Goodyear is 16 therefore entitled to summary judgment on Plaintiffs’ claim of design defect. 17 III. 18 19 20 21 22 23 24 25 26 FENNEMORE CRAIG , P.C. PLAINTIFFS CANNOT ESTABLISH A PRIMA FACIE CLAIM OF MANUFACTURING DEFECT Plaintiffs cannot establish a prima facie claim of manufacturing defect because their sole tire expert has unequivocally indicated that the tire disablement in this case was not caused by a manufacturing defect. There is no evidence to the contrary. Plaintiffs’ Complaint alleges that the accident was caused by a manufacturing defect and seeks damages under both strict products liability and negligence, but that allegation has not been supported by any evidence. (SOF ¶ 3) Both strict products liability and negligence based on a manufacturing defect require a causal connection between the alleged manufacturing defect and the injury 2015424 P HOENIX -3- Case 2:05-cv-02046-GMS Document 403 Filed 01/09/08 Page 4 of 16 1 claimed. See Ariz. R. Stat. § 12-681(5) (“‘Product liability action’ means any action 2 brought against a manufacturer or seller of a product for damages for bodily injury, death 3 or property damage caused by or resulting from the manufacture … of any product”) 4 (emphasis added); Gosewisch v. Am. Honda Motor Co., 153 Ariz. 400, 403, 737 P.2d 376, 5 379 (1987) (superseded with respect to affirmative defenses) (“In order to establish a 6 prima facie case of strict products liability, the plaintiff must show that … the defective 7 condition is the proximate cause of the plaintiff’s injury”); Bloxham v. Glock, Inc., 203 8 Ariz. 271, 274, 53 P.3d 196, 199 (App. 2002) (“In an action for negligence, a plaintiff 9 must show ‘the existence of duty, breach of that duty, causation, and damages.’”) 10 Here, Plaintiffs cannot establish a prima facie case of products liability or 11 negligence based on a manufacturing defect.1 Plaintiffs’ proffered tire expert, David 12 Osborne, produced an expert report indicating that the disablement was not caused by a 13 manufacturing defect, and he confirmed that opinion in deposition. (SOF ¶ 4) Based on 14 his deposition testimony, Plaintiffs admit that any manufacturing defect in the tire was not 15 a proximate cause of their injuries. Therefore, Goodyear is entitled to summary judgment 16 on any claims of strict liability and negligence premised upon any manufacturing defect. 17 IV. 18 PLAINTIFFS HAVE FAILED TO PROVIDE ADMISSIBLE EVIDENCE TO SUPPORT A "FAILURE TO WARN" CLAIM 19 Plaintiffs allege that the subject tire was defective because the instructions and/or 20 warnings that Goodyear provided “fail[ed] to appropriately warn consumers of the design 21 limits of the G159.” (SOF ¶ 5) Plaintiffs, however, have not provided any expert 22 1 23 24 25 26 FENNEMORE CRAIG , P.C. Plaintiffs recently raised a choice of law issue, arguing that New Mexico substantive law should apply. If New Mexico law applies, Plaintiffs have not established a prima facie case of products liability or negligence based on a manufacturing defect. See Restatement (Second) of Torts § 402(A)(1965) (requiring causal connection between the alleged defect and the injury) adopted by New Mexico in Stang v. Hertz Corp., 497 P.2d 732, 734 (N.M. 1972); Solorzano v. Bristow, 103 P.3d 582, 587 (N.M.App. 2004) (“[A] negligence claim requires the existence of a duty from a defendant to a plaintiff, as well as breach of that duty which is the proximate cause and cause in fact of the plaintiff’s damages”) (emphasis added). 2015424 P HOENIX -4- Case 2:05-cv-02046-GMS Document 403 Filed 01/09/08 Page 5 of 16 1 opinions to support their allegations and have not established a causal link between the 2 alleged warnings defect and their injuries. In order to establish a prima facie case of strict product liability based on failure to 3 4 warn, Plaintiffs have the burden of proving: 5 i) defendant had a duty to warn of the alleged defect; 6 ii) the lack of an adequate warning made the product defective and unreasonably dangerous; iii) the product lacked adequate warnings when it left defendant’s control; and iv) the failure … to give an adequate warning proximately caused plaintiff’s injuries. 7 8 9 10 See Gosewisch, supra, 153 Ariz. at 403, 737 P.2d at 379. “Failure to prove any one of 11 these elements is fatal.” Id. Further, “regardless of underlying theory, warning claims 12 brought under either negligence or strict liability are essentially the same and measured by 13 same standards.” Wilson v. U.S. Elevator Corp., 193 Ariz. 251, 256, 972 P.2d 235, 240 14 (App. 1998) (citing 2 Frumer & Friedman, Products Liability § 12.02[1] (1998)). Here, Plaintiffs cannot meet their burden of proof and have not established a prima 15 16 facie case of products liability or negligence based on a “failure to warn.” First, 17 Plaintiffs’ expert admitted in deposition that he is not a warnings expert and that he was 18 not offering any opinions regarding the adequacy of warnings provided by Goodyear. 19 (SOF ¶ 6) 20 appropriately warn consumers of the design limits of the G159” caused the subject tire to 21 be defective and unreasonably dangerous is not admissible expert testimony and should 22 properly be excluded. 23 Osborne. His later “expert” testimony as to how Goodyear’s alleged “failure to See Goodyear’s Motion to Exclude the Testimony of David Second, and equally important, Plaintiffs have not provided any evidence of 24 25 causation. 26 summary judgment may be appropriate absent proper evidentiary foundation.” Southwest FENNEMORE CRAIG , P.C. “Although ordinarily the issue of proximate cause is a question of fact, 2015424 P HOENIX -5- Case 2:05-cv-02046-GMS Document 403 Filed 01/09/08 Page 6 of 16 1 Pet Prods., Inc. v. Koch Indus., Inc., 273 F. Supp. 2d 1041, 1062 (D. Ariz. 2003) (citing 2 Gosewisch, 153 Ariz. at 403-04, 737 P.2d at 380-81). Plaintiffs have not provided any 3 evidence to show that Plaintiffs’ injuries would not have occurred had Goodyear provided 4 some other “warning.” 5 Plaintiff Leroy Haeger testified that he purchased the motor home "used" from an 6 original owner. (SOF ¶ 7) But, it is uncontroverted that Mr. Haeger did not receive from 7 the previous owner the manual on use and care that Goodyear had provided for the tires 8 on the vehicle. At the time of his purchase, Mr. Haeger received a binder containing 9 owner’s manuals related to the various components of the motor home, which he thinks 10 did not contain the Goodyear manual relating to the motor home’s tires.2 (SOF ¶ 8) 11 Although he noticed that the binder did not include a manual specific to the tires and 12 questioned the lack of such manual, Mr. Haeger never requested a copy of the manual 13 from Goodyear or from anyone else. (SOF ¶ 10) In short, even if, for the sake of 14 argument, Goodyear had provided whatever instructions or warnings Plaintiffs now 15 contend Goodyear should have provided, at the point of sale, the evidence shows that 16 those instructions and warnings would not have reached the Plaintiffs. 17 provided by Goodyear with the original sale of the motor home did not reach the Plaintiffs 18 for some unknown reason, so any additional warnings or instructions that might have been 19 included in that manual would not have reached the Plaintiffs when purchasing this used 20 vehicle, and there is no evidence that they would have prevented Plaintiffs’ injuries. See 21 Gosewisch, 153 Ariz. at 404, 737 P.2d at 381 (noting that plaintiff failed to establish 22 proximate cause because plaintiff testified that when he purchased the vehicle used from 23 his cousin, he requested, but did not receive, the vehicle owner’s manual from his cousin). 24 Further, the owner’s manuals that Mr. Haeger did receive contained numerous 25 26 FENNEMORE CRAIG , P.C. 2 The manual Spartan’s 30(b)(6) representative, Bryan Harris, testified that the manual it provided to Gulf Stream included Goodyear’s manual on tire use and care. (SOF ¶ 9) 2015424 P HOENIX -6- Case 2:05-cv-02046-GMS Document 403 Filed 01/09/08 Page 7 of 16 1 instructions and warnings regarding the proper loading of the motor home and the need to 2 prevent overloading of the tires. (SOF ¶ 11) Mr. Haeger testified that he read these 3 owner’s manuals “almost cover to cover.” (SOF ¶ 12) However, the evidence establishes 4 that he did not heed any of the available instructions and warnings regarding loads on his 5 tires. Mr. Haeger admits he never attempted to weigh his motor home to see if he had 6 complied with loading and weight requirements; he never checked on the weight capacity 7 of the tires; and he never adjusted the air pressure in the tires to compensate for any 8 loading or increased weight. (SOF ¶ 13) Again, the undisputed evidence establishes 9 (without contradiction) that plaintiffs cannot establish that Mr. Haeger would have 10 followed warnings if he had received them; the evidence establishes that he failed to 11 follow the ones that he did receive. See Gosewisch, 153 Ariz. at 404, 737 P.2d at 381 12 (evidence showed plaintiff ignored other warnings about the proper use of the vehicle). 13 Plaintiffs can provide no competent evidence regarding the inadequacy of warnings 14 or instructions. They have not timely disclosed any admissible testimony as to how the 15 inadequacy of any warnings or instructions caused the tire to be defective. They have not 16 produced any evidence to show that Plaintiffs’ injuries would have been prevented had 17 Goodyear provided these unidentified warnings or instructions. See Goodyear’s Motion 18 to Exclude Testimony of David Osborne; Goodyear’s Motion to Exclude Testimony of 19 Mark Salem. Goodyear is entitled to summary judgment on Plaintiffs’ failure-to-warn 20 claims. 21 V. 22 PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR “FAILURE TO RECALL” A. 23 No Cognizable Claim Exists For “Failure To Recall” 24 To establish a prima facie case for product liability, a plaintiff must show that “(1) 25 the product is defective and unreasonably dangerous, (2) the defective condition existed at 26 the time the product left the defendant’s control, and (3) the defective condition is the FENNEMORE CRAIG , P.C. 2015424 P HOENIX -7- Case 2:05-cv-02046-GMS Document 403 Filed 01/09/08 Page 8 of 16 1 proximate cause of the plaintiff’s injuries.” Piper v. Bear Med. Sys., Inc., 180 Ariz. 170, 2 173, 883 P.2d 407, 410 (App. 1993). There are only three categories of defects in strict 3 product liability actions: 4 defects. Id. at 173-74, 883 P.2d at 410-11; see also Southwest Pet Prods, Inc. v. Koch 5 Indus., Inc., 273 F. Supp. 2d 1041, 1051 (D. Ariz. 2003).3 Strict product liability does not 6 extend to a “failure to recall” an allegedly defective product. Ariz. R. Stat. § 12-681 7 which defines “product liability action” does not include any action based on a 8 manufacturer’s failure to recall a product. 9 legislature has codified the law of products liability in Arizona and that codification does 10 not include a claim based on failure to recall. Arizona courts have never recognized a 11 claim for negligent failure to recall. manufacturing defects, design defects, and informational Ariz. R. Stat. § 12-681. The Arizona 12 Nothing suggests that Plaintiffs, as consumers, have the right to demand a product 13 recall (that being in the exclusive hands of the governing Federal regulatory agency, the 14 Department of Transportation’s National Highway Transportation Safety Administration 15 or “NHTSA”). Because there is no cause of action for a manufacturer’s failure to recall a 16 product, Goodyear is entitled to summary judgment on Plaintiffs’ “Count Four” (“Strict 17 Liability Failure to Recall”) as a matter of law. 18 B. 19 20 21 22 23 24 25 26 FENNEMORE CRAIG , P.C. Plaintiffs Have Failed To State A Claim For Negligent Failure To Recall Neither the Arizona legislature nor the Arizona courts have ever recognized a claim for negligent failure to recall. Although the Restatement (Third) of Torts § 11 has existed since 1998, the Arizona legislature has never adopted Section 11 as part of the codified products liability statute and the Arizona courts have likewise not adopted Section 11. 3 Likewise, product liability action under New Mexico law does not include an action based upon a manufacturer’s failure to recall. See Fernandez v. Ford Motor Co., 879 P.2d 101 (N.M. App. 1994) (“Under Section 402A, there are three types of defects: manufacturing defects, design defects, and warning defects.”) 2015424 P HOENIX -8- Case 2:05-cv-02046-GMS Document 403 Filed 01/09/08 Page 9 of 16 1 Yet even under this section of the Restatement, Plaintiffs have no cognizable claim. 2 Restatement (Third) of Torts § 11 provides: 3 One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller’s failure to recall a product after the time of sale or distribution if: 4 5 (a) 6 7 (1) a governmental directive issued pursuant to a statute or administrative regulation specifically requires the seller or distributor to recall the product; or (2) the seller or distributor, in the absence of a recall requirement under Subsection (a)(1), undertakes to recall the product; and 8 9 (b) 10 the seller or distributor fails to act as a reasonable person in recalling the product. 11 Restatement (Third) of Torts § 11. The Restatement does not impose a duty to recall a 12 product or create a private right of action for failure to recall, that decision being left in 13 the hands of the regulatory agency. The Restatement imposes liability only if a defendant 14 is negligent in performing a recall that is either ordered by the government or undertaken 15 without government directive. See id. at comment a (“even when a product is defective 16 … an involuntary duty to recall should be imposed on the seller only by a governmental 17 directive issued pursuant to statute or regulation.”) The applicability of § 11 -- even if it 18 had been adopted in Arizona4 -- is limited to narrow circumstances, where a recall is 19 performed inappropriately after 1) the manufacturer voluntarily recalls the product, or 2) a 20 governmental agency orders a recall of the product. See Restatement (Third) of Torts § 21 11. It is not applicable in this case. 22 23 24 25 26 FENNEMORE CRAIG , P.C. 4 Plaintiffs have recently suggested that portions of the case should be governed by the law of New Mexico. One can make the argument that New Mexico may have adopted the Restatement (Third) of Torts § 11, through a reading of Morales v. E.D. Etnyre & Co., 382 F. Supp. 2d 1285 (D.N.M. 2005). However, if Morales adopts § 11 as part of New Mexico’s law, the fact remains that Goodyear did not recall the product and thus cannot be held liable for any claim for “negligent failure to recall” under § 11. 2015424 P HOENIX -9- Case 2:05-cv-02046-GMS Document 403 Filed 01/09/08 Page 10 of 16 1 Here, the undisputed evidence shows the absence of an actionable claim under this 2 Section. Plaintiffs themselves agree that Goodyear never undertook a recall of the subject 3 (SOF ¶ 14) No one suggests the applicable governmental agency ordered a recall of the 4 subject tire.5 Absent a recall, Goodyear cannot be held liable for any claim for negligent 5 failure to recall under Section 11. See West v. Soto, 85 Ariz. 255, 261, 336 P.2d 153, 156 6 (1959) (“There must be a duty owed and a breach of that duty before one may be charged 7 with a negligent violation of that duty.”); Rudolph v. Arizona B.A.S.S. Fed’n, 182 Ariz. 8 622, 624, 898 P.2d 1000, 1002 (App. 1995) (“A defendant who does not owe a duty to a 9 plaintiff cannot be liable for the plaintiff’s injury even if the defendant acted 10 negligently.”) Therefore, Goodyear is entitled to summary judgment on Plaintiffs’ Count 11 Eight for “Negligent Failure to Recall.” 12 VI. PLAINTIFFS FAIL TO STATE A CLAIM FOR “POST SALE WARNING” 13 Perhaps recognizing the invalidity of their design defect and failure-to-recall 14 claims, Plaintiffs attempt to camouflage these claims as a claim for failure to provide 15 “post-sale warnings.” In this case, Plaintiffs claim that Goodyear knew or should have 16 known of the alleged design defect in the subject tire (e.g., the tire is inappropriate for use 17 at highway speeds) some time prior to the Haegers’ August, 2003 accident and that 18 Goodyear should have warned of this defect. (SOF ¶ 15) 19 Unfortunately for Plaintiffs’ theory, the “warning” that Plaintiffs allege Goodyear 20 failed to give would not have ensured that the subject tire could be used safely for its 21 As the Court will recall, Fleetwood Enterprises engaged in a 1999 vehicle recall of a number of its motor homes, having concluded that a disproportionate distribution of weight on the front axle, along with other factors, resulted in tires being damaged due to overload. Pursuant to its recall, Fleetwood replaced the front tires on the recalled vehicles. In fact, Fleetwood used the tire at issue in the Haeger’s case as a replacement tire for some of the vehicles included in the recall, evidencing that the Fleetwood recall was not based on any defect in the subject tire itself. Neither Fleetwood, nor NHTSA, the government agency which investigated and oversaw the vehicle recall program reported any defect with the subject tire. 5 22 23 24 25 26 FENNEMORE CRAIG , P.C. 2015424 P HOENIX - 10 - Case 2:05-cv-02046-GMS Document 403 Filed 01/09/08 Page 11 of 16 1 intended purpose as required by the applicable legal theory. According to Plaintiffs, no 2 amount of warning can make the subject tire safe for highway speed at rated loads, 3 making the “warning” not a warning at all, but a demand that Goodyear be held liable for 4 failing to disclose a defect Plaintiffs are unable to prove without reliable expert testimony 5 (see Section II, supra) and which Goodyear expressly denies. 6 Plaintiffs’ “post-sale duty to warn” theory is nothing more than a modified version 7 of its failure to recall. Rather than claim that the product could have been made safe for 8 use on Plaintiffs’ motor homes by issuing a warning, Plaintiffs assert that the tire was 9 defective, that Goodyear knew or should have known of their alleged defect, and that 10 Goodyear should have warned consumers that its product was defective, presumably so 11 that consumers would replace their tires. This is not a “failure to warn” as recognized at 12 law; it is just another way of alleging Plaintiffs’ legally invalid failure-to-recall claim. 13 Therefore, Goodyear is entitled to summary judgment on Plaintiff’s strict liability and 14 negligent “post-sale warnings” claim.6 15 Plaintiffs cannot establish that the lack of a “post-sale warning” made the subject 16 tire defective and unreasonably dangerous such that, had there been a “post-sale warning,” 17 the subject tire then would have been safely used for its intended purpose and would not 18 have been defective and unreasonably dangerous. Instead, the “warning” is that Goodyear 19 tell consumers that the tire was defective, requiring them to stop using the subject tire. 20 Further, Plaintiffs cannot provide any reliable evidence as to how Goodyear failed 21 to exercise reasonable care by failing to warn of the alleged design defect. Neither David 22 Osborne (Plaintiffs’ proffered tire expert) nor Mark Salem (Plaintiffs’ proffered 23 6 24 25 26 FENNEMORE CRAIG , P.C. In essence, Plaintiffs’ claim is not that the product would have been made safe with certain warnings, but that information Goodyear obtained regarding other accidents, after the tire was sold in the market place should have been disclosed to the consuming public. Plaintiffs have come forward with no information from any expert qualified to render opinions regarding warnings, and have failed to produce any evidence concerning the applicable “standard of care” in the industry. 2015424 P HOENIX - 11 - Case 2:05-cv-02046-GMS Document 403 Filed 01/09/08 Page 12 of 16 1 mechanical expert) is qualified to render expert opinions as to Plaintiffs’ post-sale 2 warnings claim. See Motion to Exclude Testimony of David Osborne, Motion to Exclude 3 Testimony of Mark Salem, and Motion to Strike. 4 Mr. Osborne repeatedly and emphatically stated that he was “not a warnings 5 expert” and is not trained as a warnings expert. Since he has no experience with the North 6 American tire industry, he can offer no testimony about tire industry standards with 7 respect to any warnings (or post-sale warnings) that Goodyear should have allegedly 8 provided. See Goodyear’s Motion to Exclude the Testimony of David Osborne. 9 Likewise, Mr. Salem is a former police officer who has owned and operated gas 10 stations and vehicle repair facilities and has served as a media figure and popular radio 11 personality with respect to car repair and NASCAR issues. He is not a tire expert (with 12 the possible exception of recognizing as an auto mechanic certain wear patterns consistent 13 with vehicle mechanics, such as alignment or other service related problems) and is not 14 qualified to render any opinions as to why or how a tire failed. He is also admittedly not a 15 “warnings expert” and has no background or education as an expert in tire company 16 warnings. Mr. Salem’s “expertise” is solely limited to his role of operating a motor 17 vehicle repair facility, which from time to time “warns” its customers, and conveys 18 matters it receives in service bulletins from vehicle and vehicle parts’ manufacturers 19 regarding their various products. Mr. Salem’s limited experience with “warnings” does 20 not qualify Mr. Salem to opine regarding the applicable standard of care or the inadequacy 21 of any warnings that Goodyear provided. See Motion to Exclude Testimony of Mark 22 Salem. 23 Plaintiffs have not established 1) what the appropriate standard of care is for a tire 24 manufacturer in North America; 2) that Goodyear breached that standard of care by 25 failing to “warn” regarding the alleged design defect; and 3) that the alleged breach 26 caused Plaintiffs’ injuries (in light of the evidence that Mr. Haeger simply ignored other FENNEMORE CRAIG , P.C. 2015424 P HOENIX - 12 - Case 2:05-cv-02046-GMS Document 403 Filed 01/09/08 Page 13 of 16 1 instructions as discussed above). Thus, Goodyear is entitled to summary judgment on 2 Plaintiffs’ strict liability and negligent claims for post-sale warning. 3 VI. 4 PLAINTIFFS HAVE NOT PRESENTED ANY EVIDENCE, LET ALONE CLEAR AND CONVINCING EVIDENCE, THAT GOODYEAR ACTED WITH AN EVIL MIND 5 Under Arizona law, there must be more than the mere commission of a tort to 6 warrant the imposition of punitive damages. “Special circumstances” must exist to justify 7 such extraordinary relief. Rawlings v. Apodaca, 151 Ariz. 149, 162, 726 P.2d 565, 578 8 (1986) (“There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ 9 or fraudulent or evil motive on the part of the defendant, or such a conscious and 10 deliberate disregard of the interests of others that the conduct may be called willful or 11 wanton”).7 Punitive damages are awarded to punish the wrongdoer and deter others from 12 emulating the egregious conduct. Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 13 330, 723 P.2d 675, 679 (1986). 14 When analyzing the propriety of punitive damages, the focus is on the defendant’s 15 mental state as well as the nature of the conduct. The Arizona Supreme Court has made 16 clear that there must be a knowing, wrongful deliberateness behind the defendant’s 17 actions. Linthicum, 150 Ariz. at 330-31, 723 P.2d at 679-80. The fact that the defendant 18 may have been grossly negligent, or even reckless is insufficient. Id. at 331, 723 P.2d at 19 680. 20 defendant’s conduct was aggravated and outrageous. There must be conscious action of a 21 “reprehensible character.” 22 punitive damages is “conduct involving some element of outrage similar to that usually 23 found in a crime.” Rawlings, 151 Ariz. at 162, 726 P.2d at 578 (emphasis added). 24 25 26 FENNEMORE CRAIG , P.C. In addition to an “evil mind,” the plaintiff must prove that the nature of the Id. Indeed, the type of behavior justifying the award of 7 Likewise, under New Mexico law, punitive damages may be awarded only “when the conduct of the wrongdoer may be said to be maliciously intentional, fraudulent, oppressive, or committed recklessly or with a wanton disregard of the plaintiffs’ rights.” United Nuclear Corp. v. Allendale Mut. Ins. Co., 709 P.2d 649, 654 (N.M. 1985). 2015424 P HOENIX - 13 - Case 2:05-cv-02046-GMS Document 403 Filed 01/09/08 Page 14 of 16 1 Further, punitive damages are appropriate only when the plaintiff can prove by clear and 2 convincing evidence that the defendant engaged in aggravated and outrageous conduct 3 motivated by an “evil mind.” Hilgeman v. Am. Mortgage Sec., Inc., 196 Ariz. 215, 221, 4 994 P.2d 1030, 1036 (App. 2000). 5 Emphasizing just how extraordinary and extreme the circumstances must be before 6 a reasonable jury could properly impose an award of punitive damages, Arizona courts 7 have held that punitive damages in the products liability context are not warranted even 8 when a manufacturer continues to market a product with known defects. See Volz v. 9 Coleman Co., 155 Ariz. 567, 570, 748 P.2d 1191, 1194 (1987) (reversed punitive damages 10 award because manufacturer’s continued sale of stoves possessing the defective part did 11 not equate with conduct required for punitive damages); Piper v. Bear Med. Sys., Inc., 180 12 Ariz. 170, 180, 83 P.2d 407, 417 (App. 1993) (held punitive damages were not warranted 13 as a matter of law because of insufficient evidence for a reasonable jury to find requisite 14 evil mind by clear and convincing evidence.) 15 Here, Plaintiffs cannot point to any evidence in the record tending to show that 16 Goodyear acted with spite or “malice,” or a fraudulent or evil motive.8 Even if Plaintiffs 17 could prove that the tire was defective, which Goodyear disputes, Plaintiffs do not have a 18 case beyond the circumstances presented in Volz and Piper, which the Courts rejected as 19 warranting punitive damages as a matter of law. CONCLUSION 20 As a matter of law, Plaintiffs have failed to come forward with evidence sufficient 21 22 23 24 25 26 FENNEMORE CRAIG , P.C. The party moving for summary judgment “bears the initial responsibility of informing the District Court of the basis for its motion” and identifying for the Court those portions of the materials on file that it believe demonstrates the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant must be able to demonstrate the absence of a material and triable issue of fact but need not necessarily advance affidavits or similar materials to negate the existence of an issue on which the non-moving party will bear the burden of proof at trial. Celotex, 477 U.S. at 323. But cf., id. at 328 (White, J., concurring). 8 2015424 P HOENIX - 14 - Case 2:05-cv-02046-GMS Document 403 Filed 01/09/08 Page 15 of 16 1 to establish a strict liability or negligence claim for any manufacturing defect. They have 2 failed to establish the basis for a claim based on “failure to warn.” Their design defect 3 case is premised on the testimony of David Osborne. To the extent that Mr. Osborne is 4 excluded under Daubert, Plaintiffs’ cause of action for design defect fails. 5 In addition, Plaintiffs have failed to provide evidence sufficient to establish a 6 “failure to warn” case, by failing to provide expert testimony regarding any failure to 7 warn and, independently, by failing to establish that whatever failure to warn an otherwise 8 qualified expert can testify to, actually caused Mr. Haeger’s accident. Without any proof 9 of causation, whatever claims survive the Daubert motion fail. 10 Finally, as a matter of law, Plaintiffs cannot establish a cause of action for “failure 11 to recall.” Plaintiffs’ “post-sales warnings” case is not premised on anything other than a 12 repackaging of the “failure to recall” by asserting that Goodyear failed to disclose to the 13 public that the tire was defective as Plaintiffs’ expert now contends. Further, to the extent 14 the Court grants the pending motions regarding Plaintiffs’ experts, Plaintiffs’ claims fail 15 for want of evidence. Finally, Plaintiffs cannot establish a claim for punitive damages. 16 Summary judgment on all claims is appropriate. DATED this 9th day of January, 2008. 17 18 Fennemore Craig, P.C. 19 20 By s/Susan M. O Graeme Hancock Susan M. O Attorney for Defendant The Goodyear Tire & Rubber Company 21 22 23 24 25 26 FENNEMORE CRAIG , P.C. 2015424 P HOENIX - 15 - Case 2:05-cv-02046-GMS Document 403 Filed 01/09/08 Page 16 of 16 CERTIFICATE OF SERVICE 1 I hereby certify that on 01/09/08 , I electronically transmitted the attached document to the Clerk’s Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: 2 3 4 David L. Kurtz THE KURTZ LAW FIRM 7420 East Pinnacle Peak Road Building D, Suite 128 Scottsdale, Arizona 85255 dkurtz@kurtzlaw.com 5 6 7 James M. Abernethy ABERNETHY & GREEN, P.L.C. 3838 Central Avenue, Suite 1750 Phoenix, AZ 85012 jim@abernethygreen.com 8 9 10 Michael J. O’Connor Jennings, Strouss & Salmon, PLC 201 East Washington Street, 11th Floor Phoenix, AZ 85004-2385 MOConnor@jsslaw.com 11 12 13 Blanca Quintero COZEN O’CONNOR 501 West Broadway, Suite 1610 San Diego, CA 92101 bquintero@cozen.com 14 15 16 Robert W. Shely Rodney W. Ott BRYAN CAVE LLP Two North Central Avenue, Suite 2200 Phoenix, AZ 85004 rwshely@bryancave.com 17 18 19 20 Lisa G. Lewallen Lisa G. Lewallen, PLLC P.O. Box 33430 Phoenix, AZ 85067 lisa@lewallenlaw.com 21 22 23 s/Susan M. O 24 25 26 FENNEMORE CRAIG , P.C. 2015424 P HOENIX - 16 -