Luna v. Cooper Tire & Rubber Co.

Full title: Araceli Luna, Individually, Jesus Salvador Torres, Individually and on…

Court: SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

Date published: Feb 12, 2014

C.A. No. N13C-04-241 JRJ (Del. Super. Ct. Feb. 12, 2014)

Opinion

C.A. No. N13C-04-241 JRJ

02-12-2014

Araceli Luna, Individually, Jesus Salvador Torres, Individually and on Behalf of Jeremy Torres (Minor), Manuela Valenzuela Galindo, Individually, and on Behalf of Cristian Alberto Puente Valenzuela (Deceased), Brenda Valenzuela Galindo (Deceased, and Vania Sagrario Puente Valenzuela (Deceased), Plaintiffs, v. Cooper Tire & Rubber Company, Inc. and General Motors LLC, Defendants.

Timothy E. Lengkeek, Esquire, Young, Conaway, Stargatt & Taylor, LLP, Rodney Square, 1000 North King Street, Wilmington, Delaware, 19801, Julian C. Gomez, The Gomez Law Firm, PLLC, 7824 N. 6th Ct., McAllen, Texas, 78504 (pro hac vice) (argued). Attorneys for Plaintiffs. Somers S. Price, Jr., Esquire, Potter, Anderson & Corroon, LLP, 1313 North market Street, P.O. Box 951, Wilmington, Delaware, 19899-0951, T. Christopher Trent, Esquire, Raphael Charles Taylor, Esquire, Johnson, Spalding, Doyle, West & Trent, LLP, 919 Milam Street, Houston, Texas 77002 (pro hac vice). Attorneys for Cooper Tire & Rubber Company, Inc. Jill Agro, Esquire, Eckert, Seamans, Cherin & Mellott, LLC, 222 Delaware Avenue, 7th Floor, Wilmington, Delaware, 19801, Michael P. Kinkopf, Esquire, Eckert, Seamans, Cherin & Mellott, LLC, 50 South 16th Street, 22nd Floor, Philadelphia, Pennsylvania, 19102 (pro hac vice). Attorneys for General Motors, LLC.

Jan R. Jurden

OPINION

Upon Plaintiffs' Motion for Protection - GRANTED

Timothy E. Lengkeek, Esquire, Young, Conaway, Stargatt & Taylor, LLP, Rodney Square, 1000 North King Street, Wilmington, Delaware, 19801, Julian C. Gomez, The Gomez Law Firm, PLLC, 7824 N. 6^th Ct., McAllen, Texas, 78504 (pro hac vice) (argued). Attorneys for Plaintiffs. Somers S. Price, Jr., Esquire, Potter, Anderson & Corroon, LLP, 1313 North market Street, P.O. Box 951, Wilmington, Delaware, 19899-0951, T. Christopher Trent, Esquire, Raphael Charles Taylor, Esquire, Johnson, Spalding, Doyle, West & Trent, LLP, 919 Milam Street, Houston, Texas 77002 (pro hac vice). Attorneys for Cooper Tire & Rubber Company, Inc. Jill Agro, Esquire, Eckert, Seamans, Cherin & Mellott, LLC, 222 Delaware Avenue, 7^th Floor, Wilmington, Delaware, 19801, Michael P. Kinkopf, Esquire, Eckert, Seamans, Cherin & Mellott, LLC, 50 South 16^th Street, 22^nd Floor, Philadelphia, Pennsylvania, 19102 (pro hac vice). Attorneys for General Motors, LLC.

Jurden, J.

I. INTRODUCTION

Before the Court is Plaintiffs' Motion for Protection. Plaintiffs seek to have this Court enter the same inspection protocol the Court entered in Alvarez v. Cooper Tire & Rubber Co. ¹ and Caballero v. Ford Motor Company, ² rather than the inspection protocol proposed by Defendant Cooper Tire & Rubber Company, Inc. ("Cooper"). Cooper argues that the videotaping provision in Plaintiffs' protocol is unduly burdensome, unnecessary, and exposes Cooper's work product. For the reasons set forth below, Plaintiffs' motion is GRANTED.

1 Ordered Subject and Companion Tire Removal and Inspection Protocol (the "Alvarez Inspection Protocol"), Aug. 18, 2011, C.A. No. N10C-13-151 JRJ, Trans. ID 39351369.

2 See Stip. Vehicle Glass Particle and Removal Insp. Protocol Between Pls. and Ford, May 23, 2013, C.A. No. N11C-09-170 JRJ, Trans. ID 52040457; Agreed Vehicle Inspection Protocol Between Pls. and Ford, Jan. 15, 2013, C.A. No. N11C-09-170 JRJ, Trans. ID 48873945; Stip. Subject Tire and Companion Tire Removal and Inspection Protocol between Pls. and Michelin, Mar. 9, 2012, C.A. No. N11C-09-170 JRJ, Trans. ID 42998671; Stip. Subject Tire and Companion Tire Removal and Inspection Protocol between Pls. and Ford, Dec. 19, 2011, C.A. No. N11C-09-170 JRJ, Trans. ID 41463380.

II. DISCUSSION

This Court has previously addressed the issue of an inspection protocol for allegedly defective tires manufactured by Cooper in Alvarez. The same inspection protocol ordered in Alvarez was agreed to by the parties, and ordered by this Court, in Caballero.

By way of background, in Alvarez, the Court held a hearing after the parties could not agree on the terms of an inspection protocol. After reviewing the parties' extensive briefing and carefully considering the parties' arguments, the Court entered the inspection protocol proposed by the plaintiffs, which required Cooper to videotape its inspections of the subject tire.

None of the arguments advanced by Cooper in this case persuade the Court that that protocol used in Alvarez should not be entered here. The Court does not find that the videotape requirement imposed on Cooper is unduly burdensome when weighed against the risk of potential alteration or destruction during Cooper's testing. As it did in Alvarez, Cooper argues that if the Court enters the Plaintiffs' proposed inspection protocol - again, the same inspection protocol the Court entered in Alvarez and Caballero - then the Court should also require Plaintiffs to notify Defendants every time Plaintiffs view their own evidence and to video each viewing and produce all videos. The Court rejects this argument for the same reasons it did in Alvarez. ³

3 See Pls.' Mot. for Protection ("Mot."), Jan. 30, 2014, Trans. ID 54922612, at 4. As a result of the Court's ruling on Plaintiffs' Motion for Protection, Cooper's Motion to Compel Custodial Inspection of the Subject Tire and Companion Tires (Jan. 14, 2014, Trans. ID 54845850) is MOOT. Plaintiffs' Proposed Inspection Protocol shall govern Cooper's inspection(s).

Moreover, Plaintiffs' point is well taken that there needs to be some predictability and finality with regard to the inspection protocol that will be utilized by the Court in cases involving alleged defects to Cooper Tires. The Court has previously ruled on this issue and it will not continue to engage in reargument absent good cause. This Court and courts in other jurisdictions have imposed conditions similar to those here.⁴ The Court further notes that even with the Alvarez Inspection Protocol, Cooper was unable to locate the Alvarez tire for a period of time, refused to produce the inspection video, and eventually admitted that it did not record the inspection in direct contravention of this Court's Order.⁵

4 For example, in Hanson v. Ford Motor Co., No. TCO 19911 (Cal. Super. Ct. Dec. 6, 2007) the court required Firestone's tire inspection to be open to attendance by plaintiff's representatives; in Sotenes v. Bridgestone Corp., No. 08-L-7574 (Ill. Cir. Ct. March 5, 2010) the court granted plaintiffs the right to have their counsel and expert present at Bridgestone's tire inspection. For more examples, see Mot., Ex. 11.

5 Mot., Ex. 17 ¶ 3.
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IT IS SO ORDERED.

_________________

Jan R. Jurden, Judge
cc: Prothonotary