JESUS VIDAL RODRIGUEZ, ET. AL.
BRIDGESTONE/FIRESTONE NORTH AMERICAN TIRE, LLC., ET AL.
Session: May 24, 2017
from the Circuit Court for Davidson County No. 05C-1555
Thomas W. Brothers, Judge
an appeal from a jury verdict in favor of the defendants in a
products liability action arising out of a deadly vehicle
crash in Mexico. The accident was allegedly caused by a
separation of the tire tread and resulting blow-out and
vehicle rollover. The decedent's son, daughter, and
mother brought suit against the manufacturers of the tire and
SUV. The case went to trial, and the jury returned a verdict
in favor of the defendants. Plaintiffs appeal an instruction
the court gave the jury on contributory negligence and
several evidentiary rulings. Finding no reversible error, we
affirm the judgment.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
North, Madison, Tennessee; Donald Capparella, Nashville
Tennessee; and Richard L. Denney, Norma, Oklahoma, for the
appellants, Jesus Vidal Rodriguez and Daniela Vidal
Scott Ross and J. Isaac Sanders, Nashville, Tennessee;
Stephen A. Marcum, Huntsville, Tennessee; and Wade C.
Crosnoe, Austin, Texas, for the appellees, Bridgestone
Firestone North American Tire, LLC, and Ford Motor Company.
Richard H. Dinkins, J., delivered the opinion of the court,
in which Frank G. Clement, Jr., P.J., M.S., and W. Neal
McBrayer, J., joined.
RICHARD H. DINKINS, JUDGE
Factual and Procedural History
September 27, 2000, Jesus Alfonso Vidal Ramirez was involved
in a fatal accident in the Mexican state of San Luis Potosi
while driving a 1998 Ford Explorer equipped with Firestone
Wilderness AT tires. Mr. Vidal's son Jesus Vidal Rodriguez,
Mr. Vidal's daughter Daniela Vidal Rodriguez, and his
mother Margarita Ramirez Valenzuela Lamicq (collectively,
"Plaintiffs") filed suit against
Bridgestone/Firestone and Ford Motor Company (collectively,
"Defendants") on January 31, 2001 in Davidson County
Circuit Court. The suit was consolidated for pretrial
purposes with 30 other suits based on automobile accidents in
Mexico involving Ford and Firestone products. In re
Bridgestone/Firestone, 138 S.W.3d 202, 204 (Tenn. Ct.
App. 2003) perm. app. denied (Tenn. June 1, 2004)
moved to dismiss the cases under the doctrine of forum
non conveniens, which the trial court denied.
Id. This Court granted Defendants' application
for extraordinary appeal, id. at 205, considered the
private interests and public factors to be analyzed in
determining whether to apply the doctrine of forum non
conveniens, and concluded:
In the present matter, all the deceased were from Mexico; all
the plaintiffs are from Mexico; the cars and tires at issue
were purchased in Mexico; the cars and tires at issue were
serviced and maintained in Mexico; the accidents all occurred
in Mexico; and Mexican law will govern all substantive
issues. In short, the present litigation is of primary local
interest to Mexico, rather than Tennessee. The
plaintiffs' allegations of a conspiracy involving
Firestone are not sufficient to counterbalance Mexico's
interest, as a sovereign nation, in deciding controversies
that involve its citizens and occur within its borders.
Id. at 210. We held that "the courts of Mexico
provide[d] an available alternative forum, " reversed
the denial of the motion to dismiss, dismissed the case.
Id. at 207, 210. The Tennessee Supreme Court denied
permission to appeal the Court of Appeal's decision.
Plaintiffs refiled the case in Mexico, where it was dismissed
for lack of subject matter jurisdiction because the
Defendants were not domiciled there.
refiled the suit in Davidson County on May 26, 2005,
asserting causes of action for negligence, strict liability,
and violations of the Tennessee Consumer Protection Act of
1977 as to Firestone and Ford and civil conspiracy and breach
of implied warranty of merchantability under the Uniform
Commercial Code as to Firestone, Bridgestone, and Ford. The
complaint alleged that the accident occurred when the tread
on one of the tires separated, resulting in a blow-out and
vehicle rollover. Plaintiffs sought general damages in the
amount of $10 million, special damages in the amount of $1
million, pecuniary loss and loss of consortium in the amount
of $5 million, punitive damages in the amount of $10 million,
and treble damages for violations of the Tennessee Consumer
Protection Act. The case was again consolidated with other
cases against the same Defendants.
moved to dismiss the case on the grounds of collateral
estoppel, arguing that the issue of forum non
conveniens and the availability of Mexico as an
available alternative forum had been determined in their
favor in Firestone I, and accordingly, Plaintiffs
were precluded from claiming that a Mexican forum was
unavailable. The trial court denied the motion and granted
Defendants permission for an interlocutory appeal. We granted
the appeal and in In re Brigestone/Firestone, 286
S.W.3d 898, 900 (Tenn. Ct. App. 2008) ("Firestone
II"), determined that fairness dictated
reconsideration of the issue of the availability of Mexico as
an alternate forum for Plaintiffs claims. Id. at
909. We vacated the order denying the motion to dismiss and
remanded for the trial court to "consider whether the
Plaintiffs acted in good faith in the Mexican proceedings,
whether the Mexican proceedings were manipulated to achieve
dismissal by the Mexican courts, and whether the Mexican
court decisions are entitled to recognition here."
Id. at 909.
remand, discovery ensued in the consolidated cases, and the
trial court held an evidentiary hearing. On March 21, 2012,
the court issued a 35-page opinion finding no bad faith on
the part of the Plaintiffs in this case and in 14 other
cases; the court denied the motion to dismiss as to those 15
cases. Defendants sought permission to appeal the denial of
their motion to dismiss; we denied their application, and
this case proceeded to trial.
Prior to trial, the court entered an order guiding further
The parties agree that the pertinent provisions of the Civil
Code of San Luis Potosi governing liability are found in
Chapter Five, Article 1746 of the SLP Civil Code which
[Provision of the Code in Spanish Omitted]
Regarding the obligations arising from wrongful acts
ART. 1746 - He who acting unlawfully or against good customs
causes damage to another, is obliged to repair, unless he
proves that the damage was the result of inexcusable
negligence or fault of the victim.
Plaintiffs allege the following causes of action against both
Defendants in their complaint:
1. Negligence (Counts I and IV);
2. Strict Liability (Counts II and III);
3. Civil Conspiracy (Count V);
4. Violation of the Tennessee Consumer Protection Act (Count
5. Breach of Implied Warranty of Merchantability Under U.C.C.
(Count VII); and
6. Punitive Damages (Paragraphs 51-61).
Defendants argued in their earlier briefs that there were
essentially six (6) distinctions between the law of San Luis
Potosi and Tennessee:
1. Mexican law does not provide a cause of action for strict
liability against manufacturers, designers, or sellers of
allegedly defective products.
2. Mexican law provides a warranty claim, but the damages are
limited to the replacement of the product or refund, in whole
or in part, of the purchase price.
3. Under Mexican law, Plaintiffs material damages will be
limited to four times the minimum daily wage for 730 days
plus two months of salary for funeral expenses.
4. Under Mexican law, the decedent's estate cannot
recover moral damages on behalf of the decedent.
5. The purpose of moral damages is to compensate a plaintiff
for injury to his integrity. Punitive damages are not
permitted under Mexican law.
6. Mexican law does not permit recovery for damages already
paid by a collateral source, such as insurance proceeds.
Of these six points, four relate to damages. The two points
dealing with liability are conceded by Plaintiffs. The
parties agree that in this case:
• There is no cause of action under SLP law for strict
• Plaintiffs are not pursuing a distinct claim based on
breach of warranty;
• The Tennessee Consumer Protection Act has no
application in this action since it involves a death; and
• They agree that punitive damages are unknown in
order concluded that "[t]he gravamen of Plaintiffs'
claim is that Defendants breached their duty of care in the
design, manufacture and marketing of the tires in question
resulting in the creation of unsafe tires and vehicles"
and in "conspir[ing] to conceal the unsafe nature of the
tires and their suitability for use on Ford vehicles."
Trial began on January 28, 2013, and lasted for several
called eighteen witnesses to testify live or by video
deposition: Charles White, former head of Ford light trucks;
Francis Figliomeni, an engineer with Firestone working in the
advanced tire engineering department; David Renfroe, an
expert in vehicle dynamics during a tire tread separation;
Richard Bond, Ford's test driver; Officer Erick Quintero,
the police officer who investigated the decedent's
accident; Troy Dehne, an employee of Ford; William Clay Ford,
former Chief Executive Officer of Ford Motor Company; Thomas
Baughman, who testified that he was "an engineering
director for Ford Trucks" and in late 2000, was "on
special assignment at World Headquarters leading the
Firestone team effort in terms of investigation of the
Firestone Explorer concern" and at the time of trial,
was Ford's executive director of product development;
Dennis Carlson, Plaintiff's expert in tire failure
analysis; Elena Maria Rodriguez, the decedent's ex-wife;
Daniela Vidal Rodriguez; daughter of the decedent; Jesus
Vidal Rodriguez, son of the decedent; Jorge Gonzales,
president of Bridgestone/Firestone of Mexico; Lisa Klein,
Executive Director for Global Vehicle Procurement for Ford
Motor Company; Alfonso Vidal Ramirez, brother of the
decedent; Alejandro Espinoza Alvarado, a witness to the scene
of the accident; Jacques Nasser, President and CEO of Ford
Motor Company; and John Lampe, former CEO of
close of Plaintiffs' proof, Defendants moved for a
directed verdict, which the court granted in part, dismissing
Plaintiffs' claims based on civil conspiracy. In their
case in chief, Defendants called five witnesses: Donald Frank
Tandy, Jr., an expert in vehicle dynamics and crash
reconstruction; Brian Queiser, who was involved in the design
of the tire at issue; Allen Powers, a mechanical engineer and
accident reconstructionist; Robert Pascarella, a mechanical
engineer who works at Ford; and Joseph Grant, engineer and
close of trial, Defendants renewed their motion for a
directed verdict, asserting additional grounds. The court
granted the motion with respect to the claims of gross
negligence and liability based on failure to warn; in all
other respects, the motion was denied. The jury returned a
verdict finding neither Defendant to be at fault, and
judgment was entered on the jury verdict. Plaintiffs filed a
motion for a new trial, and after a hearing, the court denied
appeal and raise two issues for our review:
1. Whether the trial court committed cumulative reversible
error with certain evidentiary rulings.
2. Whether the trial court committed reversible error by
instructing the jury on contributory negligence.
raise the following issue: ". . . [W]hether this case
should have been dismissed before trial based on the
collateral estoppel effect of this Court's 2003 forum
non conveniens decision."
outset of our analysis, we note that Plaintiffs have
identified two issues for review; within the first issue in
the argument portion of their brief, they discuss nine
sub-issues, each of which requires a cross-reference to a
paragraph in a portion of their brief which they have called
the "Statement of Material Facts." Many of the
citations to the record in both the "Statement of
Material Facts" and the argument portion of their brief
are not in compliance with Rule 27(a)(6), (7)(A), and (g) of
the Rules of Appellate Procedure, as well as Rule 6(a)(1),
(b) of the Rules of the Tennessee Court of Appeals. Rather
than making an "appropriate" reference to the
page(s) at which the evidence at issue was identified,
offered, and received or rejected or which otherwise serves
as the basis for Plaintiffs' claim of error, Tenn. R.
App. P. 27(g), many citations are to voluminous spans
(sometimes hundreds) of pages in the transcript.
record in this case consists of 79 volumes of technical
record; 44 volumes of transcripts of hearings, pretrial
rulings, and the trial; 20 DVDs of the pretrial proceedings
and trial; 14 volumes of depositions; 648 exhibits; and 29
sealed volumes. As we noted in England v. Burns Stone
Co., Inc., "This Court is not under a duty to
minutely search a voluminous record to locate and examine
matters not identified by citation to the record. . . .
Parties cannot expect this Court to do the work of
counsel." 874 S.W.2d 32, 35 (Tenn. Ct. App. 1993)
(citing McReynolds v. Cherokee Insurance Co., 815
S.W.2d 208 (Tenn. Ct. App. 1991). We have endeavored to
conduct our analysis and resolution of this appeal within the
confines of the challenges presented by Plaintiffs'
"Golden Rule" Argument
first contend that the court erred in denying their motion
for mistrial, which they made following these comments by
Ford's counsel during closing arguments:
. . . [A] lot of this stuff is based on expert testimony. And
then you have to sort of look at the expert testimony and
evaluate what you think of it. The question of whether or not
Mr. Vidal was negligent because of the five punctures and six
repairs, there are no experts on that.
You guys all drive cars. You all maintain cars. This is all
So the question being asked of you with respect to that
question is really very straightforward, and it doesn't
require any expert testimony. The question being asked of you
is the same one that Mr. Carlson opined on: Would you want
your family driving around in a car that had a tire that had
six -- five punctures in it? That's it. If the answer is
it's okay, it's fine, then it probably isn't
[Counsel for Plaintiffs]: Your Honor, I object. May I
approach the bench?
the objection, arguments were made at the bench, during which
counsel clarified that he objected based upon his belief that
opposing counsel was not "allowed to do that, to ask the
jury to put themselves in the position of the
plaintiff." The court then dismissed the jury, reviewed
the video recording of the statements of counsel, and
sustained the objection. The following colloquy then
MR. DENNEY: Your Honor, . . . I need to ask for a mistrial
for the record or special instruction.
THE COURT: What's the special instruction you'd like?
MR. DENNEY: That the jury be instructed that it's
improper to ask them to do that, and they should disregard
that statement, in a conclusory statement from the Court.
THE COURT: I'll be glad to give a limiting instruction. I
don't think it's such a severe violation that it
mandates a mistrial. The request for mistrial is respectfully