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Rodriguez v. Bridgestone/Firestone North American Tire, LLC

Court of Appeals of Tennessee, Nashville

October 10, 2017

JESUS VIDAL RODRIGUEZ, ET. AL.
v.
BRIDGESTONE/FIRESTONE NORTH AMERICAN TIRE, LLC., ET AL.

          Session: May 24, 2017

         Appeal from the Circuit Court for Davidson County No. 05C-1555 Thomas W. Brothers, Judge

         This is 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Steve North, Madison, Tennessee; Donald Capparella, Nashville Tennessee; and Richard L. Denney, Norma, Oklahoma, for the appellants, Jesus Vidal Rodriguez and Daniela Vidal Rodriguez.

          A. 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.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Factual and Procedural History

         On 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.[1] Mr. Vidal's son Jesus Vidal Rodriguez, Mr. Vidal's daughter Daniela Vidal Rodriguez, and his mother Margarita Ramirez Valenzuela Lamicq (collectively, "Plaintiffs")[2] filed suit against Bridgestone/Firestone and Ford Motor Company (collectively, "Defendants")[3] 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) ("Firestone I").

         Defendants 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.

         Plaintiffs 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.

         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.

         On 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 proceedings, holding:
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 states:
[Provision of the Code in Spanish Omitted]
CHAPTER V
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 VI);
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 liability;
• 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 Mexican law.

         The 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 weeks.

         Plaintiffs 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 Bridgestone/Firestone.

         At the 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 wheel consultant.[4]

         At the 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 the motion.

         Plaintiffs appeal and raise two issues for our review:[5]

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.

         Defendants 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."

         II. Discussion

         At the 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.

         The 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' brief.

         A. Evidentiary Rulings

         1. "Golden Rule" Argument[6]

         Plaintiffs 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 common sense.
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 negligence.
[Counsel for Plaintiffs]: Your Honor, I object. May I approach the bench?

         Following 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 occurred:

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 ...

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