Opinion
CAUSE NO. IP02-0151-C-H/K
March 26, 2004
ENTRY ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO STRIKE
Plaintiff Granville Tungate was servicing a truck tire when it exploded and seriously injured him. In this diversity action, Mr. Tungate and his wife Linda have sued the manufacturer and designer of that tire, defendants Bridgestone Corporation, Bridgestone/Firestone North American Tire, LLC, and Bridgestone/Firestone Truck Tire Division under the Indiana Products Liability Act ("IPLA"). Defendants have moved for summary judgment on several grounds, including defenses of incurred risk and misuse, and whether plaintiffs have evidence that would support a finding of a design defect. The defendants have also moved to strike the testimony of plaintiffs' expert witness on tire design and related matters. For the reasons discussed below, defendants' motions for summary judgment and to strike the expert's testimony are all denied.
Undisputed Facts
In considering a motion for summary judgment, the court does not try to determine the credibility of conflicting evidence. Instead, the court must consider all evidence in the light reasonably most favorable to the non-moving parties, giving them the benefit of conflicts in the evidence and any favorable and reasonable inferences that could be drawn from the evidence. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). Construing the evidence in that light, the court assumes the following facts are true for purposes of defendants' motions for summary judgment.
Plaintiff Granville Tungate serviced tires at Art Brown's Service Center for twenty-one years until 2000. G. Tungate Dep. at 10. On January 26, 2000, the driver of a semi-tractor trailer went to Art Brown's Service Center to have a flat tire on the truck fixed. Id. at 18-19. Mr. Tungate removed the tire from the truck. Id. at 20. The tire was flat when he removed it, and he partially inflated the tire in the driveway of the service center. Id. at 20, 22. At that time, he checked to see if there were air leaks in the tire. Id. at 22. After finding no readily apparent leaks, Mr. Tungate rolled the tire toward the garage area so that he could fully inflate the tire and determine why it was leaking. Id. at 21, 23. Before he could get inside the garage, however, the tire exploded. Id. Mr. Tungate was thrown back several feet in the air and was severely injured when he landed on an object in the garage. He suffered injuries to his head and spine. Id. at 46. The force of the air was so strong that it embedded a pencil tire gauge in his head. Mr. Tungate has suffered brain damage that affects his memory and motor skills, L. Tungate Dep. at 12-13, 27; G. Tungate Dep. at 47, and other serious injuries, id. at 48-49.
Later examination of the tire showed what is known as a "zipper" tear, in which the steel wires on the inner side wall of the tire broke in a line (hence "zipper"), causing an explosive release of air from inside the tire. There is no indication that Mr. Tungate was injured by an impact by any part of the tire or wheel assembly. Other facts are noted below, applying the standard for a motion for summary judgment.
I. Motion to Strike Expert Testimony
Defendants have moved to strike the testimony of plaintiffs' expert witness, H.R. Baumgardner, arguing that his testimony fails to meet the standards of Rule 702 of the Federal Rules of Evidence, as articulated by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Baumgardner is expected to testify about three principal conclusions: (1) that the zipper failure on the tire in this case resulted from a design defect; (2) that defendants failed to warn of potential zipper failure, an unreasonably dangerous condition; and (3) that Mr. Tungate would have been injured even if he had used the safety devices and procedures required by the Occupational Safety and Health Administration ("OSHA"). Baumgardner will testify that the tire in this case was defective because it did not have "a sufficiently wide flexing area of the sidewall to distribute the normal flexing required by the tire." Baumgardner Aff. ¶ 9.
A. Plaintiff's Witness
Baumgardner has over 45 years of experience as a tire engineer. Defendants make much of the fact that he does not have a formal engineering degree, but that lack did not seem to impair his long career with Firestone itself. Firestone hired him as a tire engineer in 1955. He graduated from Firestone's College Training Class in the study of tire engineering. He worked for Firestone until 1982 as a tire engineer and as a tire engineering product line manager. He was responsible for engineering and reliability of close to 1,000 different tire products and production processes, and his career included a time as manager of engineering for all Firestone truck tires. As a product line manager, Baumgardner was responsible for evaluating the performance of worn tires made by Firestone and its competitors and looking for systemic defects.
When he retired from Firestone in 1982, Baumgardner became technical director of the American Retreaders Association. He also ran that group's testing laboratory and edited and wrote for Tire Review magazine. In 1988, he purchased Tire Consultants, Inc., which provides consulting services that include extensive litigation support. Baumgardner has experience in radial passenger tire durability, rubber technology, and tread peel failures. He has written over 200 technical papers and trade magazine articles. In Kumho Tire, where the issue was adapting the Daubert standards to a broader range of expert testimony, such as the issues presented by a tire failure, the Supreme Court cited an affidavit that Baumgardner submitted in an amicus curiae brief for the proposition that "tire abuse may often be identified by qualified experts through visual or tactile inspection of the tire." 526 U.S. at 156. In recent years, Baumgardner has spent much of his time working on tire litigation. When he testifies, it is ordinarily against the major tire manufacturers, but he also evaluates cases and finds no reason for suit in a majority of those he evaluates.
B. The Daubert/Kumho Tire Standard
Federal Rule of Evidence 702 now provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
The court's role in applying Rule 702 is to be a "gatekeeper." Daubert, 509 U.S. at 589. In its role as gatekeeper, the court must consider both the relevance and the reliability of the proffered evidence. Kumho Tire, 526 U.S. at 141.
The relevance test asks whether the fact finder will be helped by the expert testimony either to understand the evidence or to determine a fact at issue in the case. This requires the testimony to "fit" the issue about which the expert is testifying. E.g., Zarecki v. National R.R. Passenger Corp., 914 F. Supp. 1566, 1573 (N.D. 111. 1996). Baumgardner's opinions about the tire in this case and about the circumstances of Mr. Tungate's injury are highly relevant and fit the issues in the case. The relevance prong of the Daubert analysis is easily satisfied here.
Second, the court must evaluate reliability. This is where defendants aim their attack at Baumgardner. Defendants' opening brief spent a good deal of space attacking Baumgardner's qualifications in an attempt to portray him as a biased and untrustworthy expert. When plaintiffs responded with a more complete and more positive account of Baumgardner's experience and knowledge — most of which were gained while designing tires for defendant Firestone — defendants replied by saying that the issue of qualifications was a "red herring" because they did not actually challenge his qualifications. The court understands why plaintiffs responded as they did. The opening brief certainly looked like a challenge to his credentials, albeit a challenge based on an unusually lopsided presentation that focused primarily on credentials Baumgardner does not have rather than those he does, in terms of training and experience.
Baumgardner's testimony has been admitted in several score cases involving allegations of tire defects, and in six trials about zipper tears. In one of those trials, Deere v. Goodyear Tire Rubber Co., 175 F.R.D. 157 (N.D.N.Y. August 22, 1997), his testimony was limited to the question of warnings. As is true with many experts who testify frequently, his testimony has been excluded in a few cases. In one of the "zipper" failure trials, Jones v. Goodyear Tire Rubber Co., a trial court found his testimony to be inadmissible because it did not pass the "general acceptance" test of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), a case that was overruled by Daubert In their brief in this case, defendants quoted the strong language of the trial court holding that his testimony was insufficient to show negligence or product defects. The Florida Court of Appeals recently reversed that determination, however. The appellate court in Jones v. Goodyear Tire Rubber Co. noted the high level of experience that Baumgardner brought to the case. — So.2d —, —, 2003 WL 22657851, at *4 (Fla.App. Nov. 12, 2003). The court concluded that Baumgardner's examination of the subject tire, his testimony regarding that examination, and his ultimate conclusion that the tire was defective were admissible and that the trial court had abused its discretion by excluding the evidence. See also Leaf v. Goodyear Tire Rubber Co., 590 N.W.2d 525, 534-36 (Iowa 1999) (applying Daubert standard to affirm plaintiff's verdict based on Baumgardner's testimony in similar defective design case). This court finds that Baumgardner is qualified to testify about the subjects of his proposed testimony under the principles of Daubert and Kumho Tire.
Defendants challenge the reliability of his opinions in this case, contending that they are not supported by reliable methods and reasoning. In Kumho Tire, the Supreme Court explained that the four factors most often cited from Daubert — testability, peer review or publication, known or potential error rates and standard procedures, and degree of acceptance in relevant scientific community — were addressed to scientific testimony, and the relevant inquiries for other types of expert testimony may be different. 526 U.S. at 149-51. The Supreme Court instructed district judges to focus on the central goal, which is "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Id. at 152. As a result, "the Daubert framework is a flexible one that must be adapted to the particular circumstances of the case and the type of testimony being proffered." Mihailovich v. Laatsch, 359 F.3d 892, 919 (7th Cir. 2004).
The defendants have built their challenge to Baumgardner's testimony around the four Daubert factors, but strict application of those factors is especially inappropriate where the expert is relying on his experience in the relevant field. Kumho Tire, 526 U.S. at 150-51 ("relevant reliability concerns may focus upon personal knowledge or experience. . . . It might not be surprising in a particular case, for example, that a claim made by a scientific witness has never been the subject of peer review, for the particular application at issue may never previously have interested any scientist."); United States v. Alien, 269 F.3d 842, 846 (7th Cir. 2001) (affirming district court's determination that DEA agent with substantial experience was qualified expert in field of narcotics trafficking and his opinion was therefore reliable and relevant), quoting Fed.R.Evid. 702 advisory committee note ("in certain fields, experience is the predominant, if not sole, basis for a great deal of expert testimony").
Daubert reminds courts that exclusion of evidence is an option of last resort when dealing with weak evidence: "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." 509 U.S. at 596, citing Rock v. Arkansas, 483 U.S. 44, 61 (1987). Furthermore, trial courts have other available tools within their power when evidence will not or should not convince a reasonable jury that the position of one side or the other is correct, including directed verdicts and summary judgments. These methods are preferable to complete exclusion of evidence when expert testimony is otherwise admissible under the Rule 702 standard.
C. Reliability of Baumgardner's Testimony
Baumgardner examined the tire that injured Mr. Tungate and did so according to methods set out in his Standard Practice. Baumgardner Dep. at 251-54. His methods are the same as or similar to those used throughout the industry. Id. at 251, 256-57. Baumgardner also performed a cut tire analysis where he examined the cross-section of three manufacturers' tires, including a model tire from defendants, and determined that the subject tire in this case suffered from a defect. PL Resp. to Mot. to Strike at 10-11. Baumgardner testified that the tire has a design defect because it did not have a wide enough flexing area in the sidewall to prevent a relatively sharp flex line that would weaken the steel wires supporting the tire. Baumgardner testified that he was trained to avoid such flex points or flex lines in tire design, and he supported the view that such flex points or flex lines can cause zipper failures with independent evidence. Defendants will have ample opportunity to challenge his opinions and alternative designs, but the court sees no basis for excluding his testimony on this subject altogether.
Baumgardner also testified that defendants did not adequately warn of the hazard of zipper failures, which can occur without warning after a tire has been inflated in a tire safety cage. Based on the above-mentioned credentials and experience, the court finds that defendants' arguments on this issue lack merit. Additionally, when he worked for Firestone, Baumgardner participated in the development of product warnings. He is sufficiently knowledgeable to render his opinion reliable and admissible, so that defendants will have to use the usual methods to challenge his testimony.
Finally, Baumgardner testified in his deposition and affidavits that safety measures and restraining devices and barriers as defined by OSHA regulations would not have prevented Mr. Tungate's injuries. Taking the facts in the light most favorable to plaintiffs, Mr. Tungate was not inflating the tire when it exploded. A jury could find that he was rolling the tire into the garage to place it into a cage to inflate it or had completed at least partial inflation. Baumgardner testified that Mr. Tungate could not have used a restraining device or barrier to move the tire into the garage. Baumgardner also testified that restraining devices and barriers protect people from explosions that cause pieces of the tire, the rim and wheel components, to become dangerous projectiles, not where as here the air blast itself caused the injury. Baumgardner's testimony about the OSHA-recommended safety measures and devices is based on his extensive experience and knowledge about tire failures and the demands of tire repair and maintenance, as well as common sense. His opinions on this issue are also admissible. Defendants' motion to strike his testimony submitted to oppose summary judgment is denied.
All parties have suggested that the court conduct a Rule 104(a) hearing on expert testimony. Defendants wish to focus on Baumgardner, while plaintiffs want the hearing to include the defense experts, who they say use essentially the same methods and analysis. The court will schedule such a hearing for approximately a month before trial, and it will apply to all tire experts in the case.
Plaintiffs cite discovery disputes between the parties to support their position that the motion to strike be denied. Those issues have not been presented in a motion to compel discovery responses. If properly presented, those issues can be addressed at a later date.
II. Negligence Claim
Defendants argue that plaintiffs' negligence claim in Count I of the complaint should be dismissed because it merely duplicates the strict liability claim in Count II. Because the Indiana Products Liability Act ("IPLA") governs all product liability claims, whether grounded in negligence or strict liability, defendants contend that the negligence claim is redundant. Plaintiffs agree that the IPLA governs the action but request that the court allow them to continue with their negligence claim.
The IPLA governs "all actions that are: (1) brought by a user or consumer; (2) against a manufacturer or seller; and (3) for physical harm caused by a product; regardless of the substantive legal theory or theories upon which the action is brought" Ind. Code § 34-20-1-1 (emphasis added). This section was amended in 1995 and recodified in 1998 to apply to all product liability claims. See Butler v. City of Peru, 733 N.E.2d 912, 918 n. 2 (Ind. 2000), citing Pub.L. No. 278-1995, § 1, 1995 Ind. Acts 4051; and Pub.L. No. 1-1998, § 5, 1998 Ind. Acts 125.
Plaintiffs therefore may not pursue a separate common law negligence claim. However, the negligence claim is not dismissed; it is more properly merged with the strict liability claim to be analyzed under the IPLA. Elements of negligence are present in the IPLA. See In re Lawrence W. Inlow Accident Litigation, 2002 WL 970403, at *12 (S.D. Ind. Apr. 16, 2002) ("The 1995 amendments to the [IPLA] `abolish[ed] the theory of strict liability in tort for design defect and duty to warn cases, injecting negligence standards in those cases, and making the [IPLA] applicable to all actions for physical harm brought by a consumer against a manufacturer or seller of a product, regardless of the substantive legal theory.'"), quoting Chesnut v. Roof, 665 N.E.2d 7, 10 (Ind.App. 1996). Plaintiffs' negligence claim is therefore incorporated with their strict liability claim to form one products liability claim under the IPLA. The jury will be instructed accordingly.
The IPLA imposes a negligence standard in design and warning defect cases, and a strict liability standard for manufacturing defect cases. See, e.g., Burtv. Makita USA, Inc., 212 F. Supp.2d 893, 899-900 (N.D. Ind. 2002).
III. Indiana Products Liability Act
Under the IPLA, plaintiffs must prove: (1) the product was "defective" and as a result "unreasonably dangerous"; (2) the defect existed at the time the product left the defendants' control; (3) the product was expected to and did reach the consumer without substantial alteration; (4) the plaintiff's injuries were proximately caused by the defect in the product. Moss v. Crosman Corp., 136 F.3d 1169, 1171 (7th Cir. 1998). "The requirement that a product be in a defective condition focuses on the product itself; whereas, the requirement that the product be unreasonably dangerous focuses on the reasonable contemplations and expectations of the consumer." Cox v. American Aggregates Corp., 580 N.E.2d 679, 685 (Ind.App. 1991). To establish that a product is "defective" within the meaning of Indiana's Product Liability Act, a plaintiff must show either: (1) a manufacturing defect; (2) a design defect; or (3) a failure to warn. Moss, 136 F.3d at 1171.
A product suffers from a design defect under Indiana law if it performs in a manner not contemplated by a reasonable consumer. See Whitted v. General Motors Corp., 58 F.3d 1200, 1206 (7th Cir. 1995). "The question is not whether it is `possible' for something untoward to occur during an accident but whether the `design creates unreasonable danger' according to `general negligence principles.'" Pries v. Honda Motor Co., 31 F.3d 543, 545 (7th Cir. 1994) (applying Indiana law; citations omitted). Expert testimony is generally required to establish a design defect because the plaintiff must show not only that another design could have prevented the accident but also that the benefits of the alternative design would outweigh its costs. See Whitted, 58 F.3d at 1206; Pries, 31 F.3d at 546.
A. The Incurred Risk and Misuse Defenses
1. Incurred Risk
Defendants assert that Mr. Tungate incurred the risks of his actions. To prevail on an incurred risk defense, the defendants must present sufficient evidence to convince a reasonable jury that Mr. Tungate had actual knowledge of the specific risk that he faced. Ferguson v. Modem Farm Systems, Inc., 555 N.E.2d 1379, 1381 (Ind.App. 1990). To prevail on summary judgment on this defense, the defendants would have to show that any reasonable jury would be required to find that Mr. Tungate had such knowledge. "Incurred risk involves a mental state of venturousness on the part of the actor and demands a subjective analysis into the actor's actual knowledge and voluntary acceptance of the risk." Cole v. Lantis Corp., 714 N.E.2d 194, 200 (Ind.App. 1999). If defendants had evidence that would require any reasonable jury to find that Mr. Tungate's fault was greater than fifty percent, summary judgment would have to be granted in defendants' favor. Smock Materials Handling Co., Inc. v. Kerr, 719 N.E.2d 396, 402 (Ind.App. 1999).
Defendants have not shown they are entitled to summary judgment on the incurred risk defense. The OSHA regulations do not necessarily apply to the circumstances of this case, at least as the court must view the evidence at this stage in the case. Even if they did apply, the specific risk that Mr. Tungate faced, based on the facts construed in his favor, was a risk that the tire would rupture in a zipper-like fashion no matter what he was doing to the tire. Mr. Tungate testified in his deposition that in his twenty-one years servicing tires, he never witnessed a zipper tear prior to his accident. Tungate Dep. at 12-13, 23, 25. He testified that the tire was in good, relatively new condition when he inspected it, both before it exploded and after his accident. Id. at 23. Also, Baumgardner has testified that the risks Mr. Tungate supposedly incurred would not have been prevented by the safety measures argued by defendants. The defendants have not presented any evidence that would require any reasonable jury to find that Mr. Tungate had actual knowledge of the specific risk that he faced. Summary judgment is denied on the incurred risk defense.
2. Misuse
Misuse of a product is the failure to use it in a reasonably expected manner. Leon v. Caterpillar Indus., 69 F.3d 1326, 1343 (7th Cir. 1995). Indiana Code § 34-20-6-4 provides:
It is a defense to an action under [the IPLA] that a cause of the physical harm is a misuse of the product by the claimant or any other person not reasonably expected by the seller at the time the seller sold or otherwise conveyed the product to another party.
The misuse defense is not a complete defense but is an element of comparative fault. Chapman v. Maytag Corp., 297 F.3d 682, 689 (7th Cir. 2002). Misuse has been further defined as "use for a purpose or in a manner not foreseeable by the manufacturer." Barnard v. Saturn Corp., 790 N.E.2d 1023, 1030 (Ind.App. 2003).
Defendants' primary argument in favor of summary judgment is that plaintiffs have not established that Mr. Tungate was acting in a reasonably expectable manner at the time of the accident. Section 34-20-4-1 is the applicable section:
A product is in a defective condition under this article if, at the time it is conveyed by the seller to another party, it is in a condition:
(1) not contemplated by reasonable persons among those considered expected users or consumers of the product; and
(2) that will be unreasonably dangerous to the expected user or consumer when used in reasonably expectable ways of handling or consumption.
For this argument, defendants cite the OSHA regulations governing the servicing of single piece rim wheels, the type of product at issue here. See 29 C.F.R. § 1910.177; 49 Fed. Reg. 4338 (1984). The regulations were designed to protect individuals servicing a tire from injury when the "contained, pressurized air is almost instantaneously released from the tire." The regulations mandate certain safety precautions:
(6) Tires may be inflated only when contained within a restraining device, positioned behind a barrier or bolted on the vehicle with the lug nuts fully tightened.
(7) Tires shall not be inflated when any flat, solid surface is in the trajectory and within one foot of the sidewall.
(8) Employees shall stay out of the trajectory when inflating a tire.29 C.F.R. § 1910.177(g)(6)-(8).
The evidence here is in conflict concerning the circumstances of the tire explosion and Mr. Tungate's injury. Viewing the conflicting evidence in the light most favorable to the plaintiffs, Mr. Tungate was not inflating the tire when it exploded. Mr. Tungate testified that he was rolling the tire into the garage to inflate it there when his memory stops, presumably just before the tire exploded. Kevin Brown testified that Mr. Tungate had finished inflating the tire when it exploded. The OSHA safety regulations on proper tire inflation do not necessarily conflict directly with Mr. Tungate's actions in this case.
Moreover, maintenance on a product is a reasonably expectable use of that product. Stegemoller v. ACandS, Inc., 767 N.E.2d 974, 976 (Ind. 2002). Also, whether a plaintiff was using the product in a reasonably expectable way according to § 34-20-4-is a question "peculiarly within the province of the jury." Short v. Estwing Mfg. Corp., 634 N.E.2d 798, 801 (Ind.App. 1994); Paper Mfrs. Co. v. Rescuers, Inc., 60 F. Supp.2d 869, 877 (N.D. Ind. 1999). Defendants cite Barnard v. Saturn Corp. to show that misuse can sometimes be decided as a matter of law. In Barnard, the Indiana Court of Appeals affirmed the grant of summary judgment on the basis of misuse, an issue generally left to the determination of the jury. 790 N.E.2d at 1028. The court held that the circumstances in that case were exceptional because of the evidence of numerous warnings and instructions that plaintiff had completely ignored leaving no question as to whether he had misused the product at issue. Id. at 1031. In this case, however, there is no evidence that there were any warnings about potential zipper failure of the tire at issue. See Baumgardner Dep. at 283. Here, the issue of misuse is for a jury to decide.
Defendants seem to suggest that if the plaintiff disregarded any safety advice or OSHA standard, that evidence establishes, as a matter of law, that he was not using the product in a reasonably expectable way. The law does not impose such a standard of strict responsibility on an injured party. Baumgardner's testimony explains how tires cannot be restrained at every moment when they are being serviced, and that the persons servicing them cannot always stay out of the trajectory of potential hazards. Plaintiffs have presented sufficient evidence to allow a reasonable jury to find that Mr. Tungate was using the tire in a reasonably expectable way at the time of the accident.
B. Unreasonably Dangerous
Whether a product is "unreasonably dangerous" is an element of a products liability claim separate and apart from whether the product is defective. See Moss, 136 F.3d at 1174. Plaintiffs have presented sufficient evidence to allow a reasonable jury to find that Mr. Tungate's injury was caused by a risk unknown to him of physical injury from a zipper rupture in the tire at issue. Plaintiffs have presented evidence indicating that the subject tire placed Mr. Tungate at risk "of injuries different in kind from those the average [user] might anticipate." See Moss, 136 F.3d at 1175 (affirming summary judgment on failure to warn claim). A reasonable jury could therefore conclude that the tire was unreasonably dangerous.
Defendants argue that the subject tire had been run on the road while deflated before Mr. Tungate began to service the tire. They contend that running the tire deflated was a form of abuse of the product that could cause a zipper tear. If that is true, then the design of the tire might not have caused the rupture of the tire. Defendants have not shown beyond reasonable dispute that the tire was run deflated, or if so for how long. Mr. Tungate testified only that when he took the tire off of the truck, the tire was flat. Baumgardner has testified, based on his expertise and his examination of the tire, that it had not been run flat. Plaintiffs have shown there is a genuine issue of material fact as to whether the tire had been run flat so as to cause the zipper tear. This question of fact must be answered in plaintiffs' favor at the summary judgment stage.
C. Alternative Design and Cost-Benefit Analysis
Defendant Bridgestone asserted in its opening brief that plaintiffs could not meet their burden of proving defective design, but the point was limited to one paragraph (on page 10) and failed to address Baumgardner's expert report, which was available well before Bridgestone filed its motion. In its reply brief, Bridgestone argued for the first time that Baumgardner had not done enough to show that an alternative design existed that would have prevented the zipper failure and that would have been better overall in terms of costs and benefits. Bridgestone Reply Br. at 4-6.
The Seventh Circuit has explained that when a party moves for summary judgment on Ground A, the opposing party is not required to respond with his evidence on Grounds B and C, which might have been raised in the motion for summary judgment but were not. Malhotra v. Cotter Co., 885 F.2d 1305, 1310 (7th Cir. 1989), superseded by statute on other grounds as stated in Rush v. McDonald's Corp., 966 F.2d 1104, 1119-20 (7th Cir. 1992); Nassar v. Life Ins. Co. of North America, 2003 WL 23101799, *2 (S.D. Ind. Sept. 5, 2003) (refusing to address ground for summary judgment first raised in reply brief). That rule is one of basic fairness, to avoid "bait-and-switch" motions. In the court's view, the issues of alternative designs and cost-benefit analysis, see, e.g., Whitted, 58 F.3d at 1206, were not fairly raised by Bridgestone's opening brief and should not be addressed on summary judgment.
Baumgardner stated in his affidavit that the risk of zipper ruptures calls for a tire to be designed with a wider sidewall flex area "to distribute the normal flexing required by the tire." Baumgardner Aff. ¶ 9. Baumgardner also testified in his deposition that "[t]he primary thing that you have to eliminate is a sharp hinge point. If your design has a sharp hinge point, it is vulnerable." Baumgardner Dep. at 158. He pointed to a Goodyear patent with research and conclusions that support his design alternative. Id. at 258-68, 278. He testified in his deposition that his proposed alternative is practical, feasible and "can be done." Id. at 279. In light of his experience and credentials, which also draws on confidential industry documents, this testimony may be sufficient evidence to present a jury question on a feasible design alternative. Defendants will have the opportunity to cross-examine Baumgardner at trial on his theories and alternative tire design, and the issue may be developed more fully at that time.
Conclusion
For the foregoing reasons, defendants' motions for summary judgment and their motion to strike the testimony of plaintiffs expert witness are hereby denied. The court will hold a scheduling conference on Friday, April 23, 2004 at 9:30 a.m. in Room 330, Birch Bayh U.S. Courthouse, Indianapolis, Indiana, to set a trial date and to address other matters needed to bring this case to a conclusion.So ordered.