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Benedict v. Hankook Tire Co. Ltd.

United States District Court, E.D. Virginia, Richmond Division

February 6, 2018

ROBERT BENEDICT, Plaintiff,
v.
HANKOOK TIRE COMPANY LIMITED, et al., Defendants.

          MEMORANDUM OPINION

          Robert E. Payne, Senior United States District Judge.

         This matter is before the Court on HANKOOK TIRE COMPANY LIMITED'S AND HANKOOK TIRE AMERICA COMPANY'S MOTION FOR SUMMARY JUDGMENT (ECF No. 62) . The Court previously denied Defendants' motion in its ORDER (ECF No. 221) dated November 27, 2017. The following Memorandum Opinion sets out the reasoning for having done so.

         I. BACKGROUND

         In this products liability action, Robert Benedict sues Hankook Tire Company Limited ("HTCL") and Hankook Tire America Corporation ("HTAC") for the production and distribution of an allegedly defective tire. Defendants seek summary judgment as to Benedict's active claims.

         A. Undisputed Relevant Facts

         On November 14, 2014, Robert Benedict was driving a cement mixer truck for his employer, Essex Concrete ("Essex"). While travelling along Route 288 in Chesterfield County, Virginia, Benedict's front-right tire (the "subject tire") suffered a tread separation, and his truck veered off the right-hand side of the road, struck an embankment, and rolled over. Benedict was injured in the accident.

         The subject tire was a Hankook Aurora TH08 Radial 425/65 R22.5. It was manufactured by HTCL in 2005 and then shipped to HTAC for distribution in the United States.

         Essex did not purchase the subject tire new or directly from HTAC. Rather, the subject tire was one of three Hankook Aurora TH08 425/65 R22 . 5 tires sold by Hankook tire dealer Old Dominion Tire ("Old Dominion'') to Metro Ready Mix ("Metro") between January 31, 2006 and June 29, 2007. Essex then purchased the truck at issue from Metro with the subject tire installed in May 2014.

         Essex had no knowledge about the subject tire's history prior to its acquisition. However, Essex performed an inspection of the truck when it was purchased, conducted follow-up inspections every 300 hours, and required daily pre-trip inspections by drivers. A state inspection was also completed in October 2014.

         Two cuts extending to the belts have been found on the subject tire. Federal regulations require removing tires from service if they suffer cuts of a specified level of severity.

         A 2006 Hankook Aurora tire catalogue included a limited warranty, which purported to operate in lieu of other warranties. The limited warranty covered tires for six years from the date of manufacture or five years from the date of purchase, and, therefore, if it applied to the subject tire it expired well before the accident.

         B. Defect Theory

         A detailed description of Benedict's theory of the subject tire's defects appears in the Court's Opinion addressing Defendants' motion to exclude the testimony of David Southwell. (ECF No. 342). In short, Benedict alleges that the subject tire was defective and hence failed because its components were improperly bonded and had degraded from oxidization due to an inner liner that was too thin. See Defs.' Br. 14-15; Pl.'s Opp'n 16-17.

         C. Procedural History

         Benedict initially asserted three claims: (1) products liability negligence (including manufacturing defect, design defect, and failure to warn); (2) breach of the implied warranty of merchantability; and (3) breach of the implied warranty of fitness for a particular purpose. First Am. Compl. 5-11. He is now pursuing only his negligent manufacturing and implied warranty of merchantability claims. Nov. 20, 2017 Hr'g Tr. 4.

         Defendants raised several affirmative defenses in response, including contributory negligence and exclusion of implied warranties. HTCL's Answer to First Am. Compl. 9-10; HTAC s Answer to First Am. Compl. 9-10.

         Both sides then moved for summary judgment. Benedict sought summary judgment as to Defendants' contributory negligence defense. Defendants sought summary judgment as to Benedict's active claims. Related to their motion, Defendants also asked this Court to exclude the testimony of Benedict's tire expert, David Southwell. The Court ruled on these three motions during a hearing held on November 20, 2017, Nov. 20, 2017 Hr'g Tr. 152, and issued an ORDER (ECF No. 221) on November 27, 2017 formalizing its decision. This Opinion is thus one of three detailing the Court's reasoning in this matter. (ECF Nos. 341-43).

         II. GOVERNING LEGAL STANDARDS

         A. Summary Judgment

         Motions for summary judgment are governed by the following well-established principles:

Federal Rule of Civil Procedure 56(a) instructs that a court "shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine issue of material fact exists under Rule 56 "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When evaluating a motion for summary judgment under Rule 56, any disputed "facts must be viewed in the light most favorable to the nonmoving party." Scott v. Harris, 550 U.S. 372, 380 (2007) . In general, the "party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion" and "demonstrat[ing] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

United States v. Woody, 220 F.Supp.3d 682, 685-86 (E.D. Va. 2016). "Once the moving party properly files and supports its motion for summary judgment, the opposing party must show that a genuine issue of fact exists." Milbourne v. JRK Residential Am., LLC, 92 F.Supp.3d 425, 427 (E.D. Va. 2015).

         B. The Virginia Basic Products Liability Framework

         The basic analytical framework applicable to products liability claims in Virginia[1] is the same whether a plaintiff is bringing a negligence or breach of implied warranty action. See Jeld-Wen, Inc. v. Gamble by Gamble, 501 S.E.2d 393, 396 (Va. 1998). In general, a products liability plaintiff must establish three elements: (1) the product must contain a "defect which rendered it unreasonably dangerous for ordinary or foreseeable use"; (2) the defect must have "existed when it left the defendant's hands"; and (3) the defect must have "actually caused the plaintiff's injury." Alevromagiros v. Hechinger Co., 993 F.2d 417, 420 (4th Cir. 1993); see also Jeld-Wen, 501 S.E.2d at 396.[2]

         For a plaintiff to prove that an "unreasonably dangerous" defect existed, "[h]e or she must establish the violation of industry or government standards, or prove that consumer expectations have risen above such standards." Alevromagiros, 993 F.2d at 422; see also Sutherlin v. Lowe's Home Ctrs., LLC, 3:14-cv-368, 2014 WL 7345893, at *8-9 (E.D. Va. Dec. 23, 2014) (applying this standard in the manufacturing defect context). Cf. Sutton v. Roth, L.L.C., 361 Fed.Appx. 543, 546-47 (4th Cir. 2010) (similar). These issues are somewhat layered and, accordingly, the most appropriate approach is to analyze them in succession. See, e.g., Norris v. Excel Indus., Inc., 139 F.Supp.3d 742, 747-54 (W.D. Va. 2015); Lemons v. Ryder Truck Rental, Inc., 906 F.Supp. 328, 331-33 (W.D. Va. 1995).

         The first element is straightforward. It examines whether there are government standards applicable to a given product and whether those standards were violated. See Norris, 139 F.Supp.3d at 748-49.

         If there is no violation of government standards, the same inquiry is conducted concerning industry standards. Norris, 139 F.Supp.3d at 749-51. There are two points worth highlighting at this stage, however. First, industry standards mean "formally promulgated" standards, such as those adopted by official industry organizations, not "mere industry custom." See id. at 7 4 9-50; Tunnell v. Ford Motor Co., 4:03-cv-74, 2004 WL 1798364, at *3, 7 (W.D. Va. June 21, 2004), adopted in relevant part, 2004 U.S. Dist. LEXIS 32435 (W.D. Va. Aug. 25, 2004). Second, an absence of such standards does not end the analysis but rather triggers an "in-between" step (the "expert safety" step) before consumer expectations are assessed. See, e.g., Alevromagiros, 993 F.2d at 421; Blevins v. New Holland N. Am., Inc., 128 F.Supp.2d 952, 957-58 (W.D. Va. 2001); Lemons, 906 F.Supp. at 331-33.

         This "expert safety" step authorizes courts to rely on expert testimony to determine whether a product is unreasonably dangerous when there is no "established norm in the industry, " and that assessment is made without evaluating what reasonable consumers expect. See Alevromagiros, 993 F.2d at 421 (quoting Ford Motor Co. v. Bartholomew, 297 S.E.2d 675, 679 (Va. 1982)); see also Blevins, 128 F.Supp.2d at 957; Lemons, 906 F.Supp. at 331-32. In Bartholomew, for instance, as described by the Fourth Circuit in Alevromagiros:

The [Supreme Court of Virginia] found that the automobile industry had not yet promulgated safety standards relating to this particular problem. Consequently, the court admitted the opinion of plaintiff's expert that the car's design was unreasonably dangerous, based on information published by the [NHTSA], consultation with other experts, and experiments with transmission systems ....

Alevromagiros, 993 F.2d at 421; Bartholomew, 297 S.E.2d at 679-80. Likewise, in Lemons, the court held that: (1) "Virginia law permits the admission of expert opinions on safety in the absence of an industry standard"; and (2) only after "fail[ing] to prove a violation of an industry or government safety standard, or . . . any other safety standard, plaintiff must establish that reasonable consumer expectations were violated." Lemons, 906 F.Supp. at 332. Other courts have reached similar conclusions. See Wilder v. Toyota Motor Sales, U.S.A., Inc., 23 Fed.Appx. 155, 156-57 (4th Cir. 2001) (per curiam) (citing Lemons, 906 F.Supp. at 332-33); Hartnett v. Globe Firefighter Suits, Inc., 155 F.3d 559, at *2 (4th Cir. June 29, 1998) (per curiam) (table); Freeman v. Case Corp., 118 F.3d 1011, 1016-17 (4th Cir. 1997); Norris, 139 F.Supp.3d at 750-51; Tunnell, 2004 WL 1798364, at *5-8; Blevins, 128 F.Supp.2d at 957; Lamonds v. Gen. Motors Corp., 96-0067-C, 1998 WL 372633, at *1-2 (W.D. Va. June 25, 1998); Duncan v. Hyundai Motor Co., CL10-0503, 2013 WL 9564176, at *4 (Va. Cir. Ct. Nov. 1, 2013), rev'd on other grounds sub nom. Hyundai Motor Co., Ltd. v. Duncan, 766 S.E.2d 893 (Va. 2015) .[3]

         Not just any expert testimony, however, will satisfy the expert safety step. Rather, expert opinions must be analytically rigorous and not merely "subjective." See Freeman, 118 F.3d at 1016-17; Alevromagiros, 993 F.2d at 421.[4] An appropriate expert opinion will be one that, for example, is based on "a review of the literature, experiments and consultations with other experts." See Blevins, 128 F.Supp.2d at 957; see also Freeman, 118 F.3d at 1016-17 (holding that an expert's opinion was adequate where he "clearly applied his expertise and knowledge of the published sources and drew from his detailed inspection of the product itself in evaluating the configuration at issue"); Alevromagiros, 993 F.2d at 421 ("[T]here is neither an absence of industry standards, nor an expert opinion based on extensive testing and published reports."); Lamonds, 1998 WL 372633, at *2 ("[T]he Alevromagiros expert failed to conduct tests on the allegedly defective product, did not refer to any literature in the field, and did not consult industry standards. Conversely, the expert in Freeman reviewed published reports, inspected the product at issue, and performed tests on the product." (citations omitted)); Lemons, 906 F.Supp. at 332 (asserting that Alevromagiros required "an expert opinion based on extensive testing and published reports" and that Bartholomew held "that an expert opinion had proper foundation where the expert studied relevant federal manuals and data, consulted with other experts, and experimented with the specific product alleged to have caused the accident as well as several competing products" (citations omitted)).

         Finally, if no defect can be established on the basis of industry standards, the final step is to examine whether the product failed to satisfy consumers' reasonable expectations. See, e.g., Norris, 139 F.Supp.3d at 751. This element can be met through evidence of "actual industry practices, knowledge at the time of other injuries, knowledge of dangers, the existence of published literature, and from direct evidence of what reasonable purchasers considered defective at the time." Id. (citations omitted); see also Alevromagiros, 993 F.2d at 420-21. At this stage, although "conformity with industry custom does not automatically absolve a manufacturer or seller of a product from liability .... [it] "may be conclusive when there is no evidence to show that it was not reasonably safe.'" Alevromagiros, 993 F.2d at 421 n.6 (citations omitted).

         III. DISCUSSION

         A. The Expert Testimony Argument

         Defendants' first argument is that Benedict cannot survive summary judgment without expert testimony. Defs.' Br. 11-13. Thus, if this Court were to have granted Defendants' motion to exclude Southwell's testimony, Benedict's claims should fail as a matter of law. Defs.' Br. 13. Because the Court denied that motion, however, it is not necessary to address what might have happened if Southwell's testimony had been stricken.

         B. The Negligent Manufacturing Claim

         1. The Applicable Legal Standards Governing the Negligent Manufacturing Claim

         The primary issue to be resolved is the extent to which, under Virginia law, claims asserting negligent manufacturing necessitate more proof than the basic products liability framework. Defendants assert that Benedict must establish a distinct "standard of care" against which Defendants' conduct can be measured. Defs.' Br. 13-22; Defs.' Reply Br. 2-5. Benedict counters that no particularized standard of care need be shown and that the inquiry instead should "focus on the dangerous nature of the product." Pl.'s Opp'n 4-9, 16-17. Benedict is largely correct.

         It is Defendants' view that not to require proof of a standard of care would essentially transform negligent manufacturing claims into breach of warranty or strict liability claims. See Defs.' Reply Br. 2-5. Viewed as theory, that position is not an erroneous one. However, Virginia largely has abandoned the distinctions between negligence and non-negligence causes of action in products liability actions. And Virginia decisional law has done so notwithstanding the fact that Virginia officially does not recognize the doctrine of strict products liability. See Harris v. T.I., Inc., 413 S.E.2d 605, 609-10 (Va. 1992); Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 374 S.E.2d 55, 57 n.4 (Va. 1988).

         Virginia decisions have obtained this result by treating the "negligence" and "standard of care" inquiries in such cases as inextricably "bound up" with the question of whether the product at issue is "unreasonably dangerous." In essence, Virginia law considers a defendant to be negligent and to have violated the standard of care if it produces an unreasonably dangerous product that causes injury.

         This "bound up" principle is supported by a long line of decisions that routinely cite the basic products liability inquiry described above as the standard governing negligence actions, often stating, for example: "[t]o prevail in a products liability case under Virginia law, the plaintiff must prove": (1) "that the product contained a defect which rendered it unreasonably dangerous for ordinary or foreseeable use"; (2) "that the defect existed when it left the defendant's hands"; and (3) causation. See Alevromagiros, 993 F.2d at 420 (emphasis added); see, e.g., Wilder, 23 Fed.Appx. at 156-58; Redman v. John D. Brush & Co., 111 F.3d 1174, 1177 (4th Cir. 1997); Sutherlin, 2014 WL 7345893, at *7-8; Jeld-Wen, 501 S.E.2d at 396; Morgen Indus., Inc. v. Vaughan, 471 S.E.2d 489, 492 (Va. 1996); Slone v. Gen. Motors Corp., 457 S.E.2d 51, 54 (Va. 1995); Logan v. Montgomery Ward & Co., Inc., 219 S.E.2d 685, 687 (Va. 1975).[5] This standard governs, moreover, regardless of whether the claim sounds in negligence or breach of warranty. See, e.g., Jeld-Wen, 501 S.E.2d at 396; Morgen Indus., 471 S.E.2d at 492; Slone, 457 S.E.2d at 54; Logan, 219 S.E.2d at 687; see also Musick v. Dorel Juvenile Grp., Inc., 847 F.Supp.2d 887, 901 (E.D. Va. 2012), aff'd sub nom. S.L.M. ex rel. Musick v. Dorel Juvenile Grp., Inc., 514 Fed.Appx. 389 (4th Cir. 2013) (per curiam) (rejecting an argument that the given jury "instructions improperly collapsed [the plaintiff's warranty and negligence] theories . . . into a single concept of Mefect'" because these claims essentially have the same elements). In fact, the Supreme Court of Virginia has expressly held that asserting the main elements of the basic products liability inquiry is sufficient to sustain a claim. See Slone, 457 S.E.2d at 54 (holding that summary judgment was improper where the plaintiff "pled, in his negligence and breach of warranty claims, that the truck cab was unreasonably dangerous, that the unreasonably dangerous condition existed when it left General Motors' possession, and that the possibility of a 'rollover, ' a misuse, was reasonably foreseeable on the part of General Motors." (emphasis added)).

         Virginia's adherence to the "bound up" principle is underscored by the fact that Virginia law still does treat negligence-based products liability claims as governed by traditional negligence concepts. For example, in Holiday Motor Corp. v. Walters, the Supreme Court of Virginia observed that "[o]ur well-settled jurisprudence establishes that the manufacturer of a product is only under a duty 'to exercise ordinary care to design a product that is reasonably safe for the purpose for which it is intended.'" Holiday Motor Corp. v. Walters, 790 S.E.2d 447, 455 (Va. 2016) (quoting Turner v. Manning, Maxwell & Moore, Inc., 217 S.E.2d 863, 868 (Va. 1975)); see also Dameron v. Fort Worth Steel & Mach. Corp., LE 1626, 1985 WL 306781, at *3-4 (Va. Cir. Ct. Mar. 26, 1985). This "duty" element, however, adds little to the analysis beyond the basic products liability framework and does not require further evidence of a standard of care.

         First, when the issue of duty arises explicitly in Virginia state courts, the question is typically whether the law imposes a duty at all rather than how to define the standard of care delineating the contours of that duty. See, e.g., Walters, 790 S.E.2d at 455-58; Jeld-Wen, 501 S.E.2d at 396-97; Slone, 457 S.E.2d at 53-54; Turner, 217 S.E.2d at 868-69; Dameron, 1985 WL 306781, at *3-4, 7. Even in this context, however, the inquiry is guided by the basic products liability framework. The touchstone of the duty question is often whether an item has been used in an "intended or reasonably foreseeable" way. See, e.g., Walters, 790 S.E.2d at 455, 458; Jeld-Wen, 501 S.E.2d at 396-97; Slone, 457 S.E.2d at 53-54; Turner, 217 S.E.2d at 868; see also Morgen Indus., 471 S.E.2d at 492 (holding that there was sufficient evidence that a particular use of a product was foreseeable but attributing the analysis to the basic products liability framework rather than the duty inquiry). And in Walters, the court performed a duty analysis in part by examining whether there were government standards, industry standards, or consumer expectations on point. Walters, 790 S.E.2d at 455-58.

         Second, the existence of a distinct duty does not meaningfully differentiate negligence-based claims from warranty-based ones. In Walters, for instance, the Supreme Court of Virginia treated the duty elements of negligence and breach of warranty theories as largely equivalent:

Our well-settled jurisprudence establishes that the manufacturer of a product is only under a duty "to exercise ordinary care to design a product that is reasonably safe for the purpose for which it is intended." Similarly, "an implied warranty of general merchantability [arises] when the product is being used in the manner intended for it. The implied warranty does not apply when the product is being used in a manner or for a purpose for which it was not intended." Thus, "the standard of safety of goods imposed on . . . the manufacturer of a product is essentially the same whether the theory of liability is labeled warranty or negligence. The product must be fit for the ordinary purposes for which it is to be used."

See Walters, 790 S.E.2d at 455 (emphasis added) (citations omitted). Walters then explains that "the purpose of making the finding of a legal duty as a prerequisite to a finding of negligence, or breach of implied warranty, in products liability is to avoid the extension of liability for every conceivably foreseeable accident, without regard to common sense or good policy." Id. (emphasis added) (quoting Jeld-Wen, 501 S.E.2d at 397) . A footnote to this sentence then noted that a breach of either duty is shown by proving that "the product contained an unreasonably dangerous condition that existed when the product left the defendant's hands." See id. at 455 n.14.

         Third, when Virginia state court decisions do touch on the breach of duty or standard of care issue, they reveal that the issue is defined by the basic products liability test. In Walters, for instance, the Supreme Court of Virginia observed that "[e]xistence of duty, " i.e., whether the law imposes a duty at all, "is an issue that is separate and distinct from its breach." See Walters, 790 S.E.2d at 455 n.14. It then noted that "to establish a breach of duty in a product liability action, " i.e., a violation of the standard of care in the negligence context, a plaintiff must satisfy the basic products liability inquiry. See id.

         Likewise, in Dameron, a Virginia Circuit Court offered a detailed description of the duty of care applicable to manufacturers:

It is a fundamental principle that the manufacturer of a product is held to a standard of reasonable care. The duty of reasonable care is that care, skill, and diligence in and about the process of manufacturing and preparing for market that a reasonably skillful and diligent person or a reasonably prudent person would use under the same or similar circumstances. Thus, a manufacturer of an article has the duty of exercising reasonable care at least to see that there is no risk of injury from negligent manufacture where the article is used in the ordinary manner for which it is intended. The manufacturer has the duty to see that the article is free of any potentially dangerous defect or defect that might be expected to produce personal injuries or property damage. In addition, the manufacturer has the duty of making the product reasonably safe for any anticipated emergency and he must provide proper safety devices where required under the circumstances and under the duty of reasonable care.

Dameron, 1985 WL 306781, at *3 (emphasis added) (citations omitted). It then stated, however:

In a negligence action against a manufacturer in Virginia the plaintiff must show: (1) that the goods were unreasonably dangerous either for the use to which they would ordinarily be put or for some other reasonabley [sic] foreseeable purpose, and (2) that the unreasonably dangerous condition existed when the goods left the defendant's hands.

Id. at *4 (citations omitted). In short, as in Walters, the court concluded that a breach of the manufacturer's duty of ordinary care is determined by applying the basic products liability test.

         Additionally, in Turner, the court recognized that even if the use of a product were foreseeable, "[industry] custom or usage may be conclusive" as to whether "due care was exercised" where "there is no evidence to show that it was not reasonably safe." Turner, 217 S.E.2d at 868 (emphasis added). Industry custom is a standard captured by the basic products liability framework, and Turner's language has been interpreted as relating to that framework. See Alevromagiros, 993 F.2d at 421, 421 n.6.

         Fourth, federal opinions likewise define the breach of duty or standard of care issue with reference to the basic products liability inquiry. For example, in Sutton, the Fourth Circuit held that evidence of a standard of care is required in a products liability action but that "government standards, industry standards, or the reasonable expectations of consumers can constitute evidence of a standard of care." Sutton, 361 Fed.Appx. at 546-47. Similarly, in Holmes v. Wing Enterprises, Inc., this Court viewed the issue of whether the product violated any relevant standards as encompassing the standard of care question. See Holmes v. Wing Enters., Inc., 1:08-cv-822, 2009 WL 1809985, at *6-8 (E.D. Va. June 23, 2009) (citing the basic products liability test and then stating: "Here, the industry-promulgated ANSI standards . . . are directly on point and help guide the standard of care analysis in this case" (emphasis added)). Additionally, in Marshall v. H. K. Ferguson Co., Judge Sprouse, dissenting on unrelated grounds, offered the following illuminating overview of a manufacturer's duty:

A manufacturer is under a duty to exercise ordinary care to design a product that is reasonably safe for the purpose for which it is intended. As the majority opinion correctly notes, plaintiff thus has the burden of proving that (1) the [product] was unreasonably dangerous either for the use to which it would ordinarily be put or for some other reasonably foreseeable purpose, and that (2) the unreasonably dangerous condition existed when the machine left the defendant's hand.

Marshall v. H. K. Ferguson Co., 623 F.2d 882, 887 (4th Cir. 1980) (Sprouse, J., dissenting) (emphasis added) (citations omitted). There are other examples. See, e.g., Harter v. Ethicon, Inc., 2:12-cv-737, 2016 WL 7407425, at *4 (S.D. W.Va. Dec. 15, 2016); Ali v. Allergan USA, Inc., 1:12-cv-115, 2012 WL 3692396, at *7-8 (E.D. Va. Aug. 23, 2012) .

         The "bound up" principle is further confirmed by the Virginia Model Jury Instructions.[6] They validate this principle in two ways.

         First, the Instructions substantiate the conclusion that a negligence claim does not require more than an implied warranty theory. Instruction 34.075, titled Breach of Warranty (Negligence) By Seller or Manufacturer, contains alternative entries for breach of warranty and negligence that precisely mirror each other:

The defendant (seller, manufacturer) has breached the implied warranty that the product is fit for the purposes for which it is ordinarily used if the plaintiff proves by a preponderance of the evidence that the product was unreasonably dangerous either for the use to which it would ordinarily be put or for some other reasonably foreseeable purpose, and that the unreasonably dangerous ...

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