United States District Court, W.D. Tennessee, Eastern Division
LISA C. CONE, attorney in fact and next friend of TIMOTHY H.L. FRAZIER, and TIMOTHY H.L. FRAZIER, individually, Plaintiffs,
HANKOOK TIRE COMPANY, LTD., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (D.E.
DANIEL BREEN, CHIEF UNITED STATES DISTRICT JUDGE
Lisa Cone and Timothy H.L. Frazier, brought this action
against Defendant, Hankook Tire Company, Limited
(“Hankook”), alleging violations of the Tennessee
Products Liability Act (“TPLA” or
“Act”). (Docket Entry (“D.E.”) 1.) As
a basis for these claims, Plaintiffs allege that Hankook
manufactured a tire that suffered a tread separation, causing
Frazier to lose control of a concrete mixer truck he was
driving. The resulting crash caused Frazier to suffer serious
injuries. Currently before the Court is Defendant's
motion for summary judgment pursuant to Federal Rule of Civil
LOCAL RULE VIOLATIONS
to addressing the substance of the instant motion, the Court
deems it necessary to note Plaintiffs' noncompliance with
the Local Rules of this district concerning motions for
summary judgment. The Local Rules require that
“[m]emoranda in opposition to motions for summary
judgment shall not exceed 20 pages without prior Court
approval.” LR 56.1(b). Cone and Frazier's response
ran twenty-nine pages despite the fact that a search of the
docket revealed no request to exceed the page limitation. The
same Local Rule further mandates that [a]ny party opposing
the motion for summary judgment must respond to each fact set
forth by the movant by either:
(1) agreeing that the fact is undisputed;
(2) agreeing that the fact is undisputed for the purpose of
ruling on the motion for summary judgment only; or
(3) demonstrating that the fact is disputed.
Local R. W.D. Tenn. 56.1(b). Cone and Frazier did not file a
response to Hankook's statement of undisputed facts.
“Failure to respond to a moving party's statement
of material facts . . . within the time periods provided by
[the Local Rules], shall indicate that the asserted facts are
not disputed for purposes of summary judgment.” Local
R. W.D. Tenn. 56.1(d).
have made a habit of disregarding the Local Rules.
See (D.E. 242 at PageID 8492 n.1 (noting that they
failed to comply with Rule 56.1(b) when responding to
Defendant's statement of undisputed facts relevant to
another motion); (D.E. 243 at PageID 8500) (pointing out that
they violated Rule 56.1(a) by not including a statement of
undisputed facts in their motion for partial summary
judgment). Given the close proximity to trial, the Court will
not strike Plaintiffs' response to the motion for summary
judgment. However, due to their failure to respond to
Defendant's statement of undisputed facts, those facts
will be deemed admitted for purposes of ruling on this motion
to the extent they are supported by the record. Further
failures of this nature will result in the non-compliant
pleadings being stricken from the record.
tire at the center of this dispute is a Hankook AH10 medium
truck tire that was manufactured by Hankook Korea in Daejeon,
Korea in December 2005. (D.E. 202-37 at PageID 3655.) When
the tire left Defendant's control, it complied with the
applicable Federal Motor Vehicle Safety Standards
(“FMVSS”). (D.E. 209 at PageID 4602.)
date of the crash-July 8, 2013-Frazier was driving a 1996
International Model 2574 concrete mixer. (D.E. 202-11 at
PageID 3121.) That truck had previously sustained front-end
damage in an accident that took place in February 2002. (D.E.
202-13 at PageID 3123.) Repairs were required to
“straighten out [the] front frame section.”
(Id.) An October 14, 2002 inspection report noted
that the “left front steer tire leaks, ” (D.E.
202-14 at PageID 3124), and a 2006 report recorded that
“the truck lean[ed] hard to the left when loaded”
(D.E. 202-16 at PageID 3126). In July 2013, it had been five
years since the vehicle underwent a Department of
Transportation (“DOT”) inspection. (D.E. 202-17
at PageID 3127 & D.E. 202-18 at PageID 3128.) Also, in
2010, the last year for which there was a record, the front
tire pressures were recorded as 100 psi, slightly below the
recommended 110 psi. (D.E. 292-19 at PageID 3143 & D.E.
202-20 at PageID 3145.)
concrete mixer sat unused for long periods of time between
1998 and 2013-the truck was not in use from March 2004
through May 2010 and again from May 2011 through May 2013.
(D.E. 202-35 at PageID 3642.) During these times, the truck
sat in a gravel yard, unprotected from the elements, with all
its weight on the tires. (D.E. 202-26 at PageID 3221-22.) It
was driven approximately 1, 250 miles between January 2007
and the July 8, 2013 accident. (See D.E. 202-27 at
PageID 3233 & D.E. 202-28 at PageID 3241.)
parties offer competing theories for the cause of the
tire's failure. Hankook's tire failure analysis
expert, Joseph Grant, opined that the tire failed as a result
of “a localized road hazard impact injury . . . and
operation of the tire after the injury.” (D.E. 202-10
at PageID 3115.) He further concluded that poor storage and
usage conditions contributed to the failure. (Id.)
Plaintiffs' experts, Troy Cottles and David Southwell,
each identified alleged manufacturing defects, which they
opined caused the tire's tread separation and failure.
(D.E. 202-9 at PageID 3070; D.E. 202-29 at PageID 3284.) In
his deposition, Cottles testified that the tire's tread
depth was adequate and that the tire still had serviceable
life. (D.E. 231-1 at PageID 7838.) Additionally, the experts
concluded that the failure was not attributable to an impact,
over-loading, over or under-inflation, or service conditions.
(D.E. 231-2 at PageID 7949-50 & D.E. 231-6 at PageID
has moved for summary judgment on Plaintiffs' claims for
design defect, manufacturing defect, failure to warn, breach
of warranty, and post-sale duty to warn, as well as their
request for punitive damages. Cone and Frazier indicated in
their response that they are no longer pursuing claims based
upon design defect, breach of warranty, and post-sale duty to
warn. Thus, Defendant's motion is GRANTED with respect to
those claims, and the ...