United States District Court, E.D. Virginia, Richmond Division
E. PAYNE, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on HANKOOK TIRE COMPANY
LIMITED'S AND HANKOOK TIRE AMERICA CORPORATION' S
MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN THE
ALTERNATIVE, MOTION FOR NEW TRIAL (ECF No. 458). The motion
will be denied in part and granted in part.
products liability action, Robert Benedict sued Hankook Tire
Company Limited ("HTCL") and Hankook Tire America
Corporation (“HTAC") for the production and
distribution of an allegedly defective tire. HTCL and HTAC
are herein referred to collectively as "Defendants"
because, throughout the proceedings, the parties have done
Benedict initially pursued several theories of liability, at
trial, he pursued only a negligent manufacturing claim
against Defendants. See Third Am. Compl. 4-5. A jury
trial was held from March 5, 2018 to March 9, 2018, and the
jury returned a verdict for Benedict of $37, 835, 259.23.
Defendants moved for judgment as a matter of law during trial
under Fed.R.Civ.P. 50(a). Trial Tr. 426-28. Defendants now
seek judgment as a matter of law under Fed.R.Civ.P. 50(b) or,
alternatively, a new trial under Fed.R.Civ.P. 59.
following recitation of facts stems from the parties'
factual stipulations, which were entered into evidence as an
exhibit and read to the jury at trial. Trial Tr. 420-21, 425.
case involves the ''November 14, 2014 rollover of a
2007 Kenworth cement truck being operated by" Benedict
for his employer, Essex Concrete. Trial Tr. 421-23. While
driving on Route 288 in Chesterfield County, the front right
tire (the "subject tire") of the truck suffered a
tread separation and "completely deflated."
See Trial Tr. 421, 423. "The cement truck
continued in the right lane for approximately 40 feet before
traveling over the white fog line, off the right shoulder, up
an embankment, and rolled over." Trial Tr. 423.
result of those events, Benedict sustained injuries that
"prevent him from ambulating and make him dependent on
others for assistance to perform his activities of daily
living." See Trial Tr. 424. Benedict "was
treated for his injuries at [the Medical College of Virginia]
from November 14, 2014 until December 19, 2014; treated at
Vibra Hospital from December 19 until January 26, 2015; and
treated at Virginia Commonwealth University Physical Medicine
and Rehabilitation from January 26, 2015 until March 20,
2015. Mr. Benedict was discharged and returned home on March
20, 2015." Trial Tr. 424. His medical bills totaled $2,
049, 675.23. See Trial Tr. 425; PL's Ex. 27.
subject tire "was a Hankook Aurora THO8, size
425/65R22.5 medium truck tire that was designed by [HTCL] and
manufactured at Hankook's Daejeon South Korea
manufacturing plant during the week of November 20,
2005." Trial Tr. 421-22. "After being manufactured,
the subject tire was shipped to [HTAC] for distribution in
the United States." Trial Tr. 422. The subject tire was
sold by Old Dominion Tire to Metro Ready Mix. Trial Tr. 422.
"In May 2014, Metro Ready Mix sold its assets, including
the cement truck" to Essex. Trial Tr. 422. Before that,
"the subject tire was removed from an unknown cement
truck on an unknown date and installed on the cement truck
involved in the November 14, 2014 accident." Trial Tr.
422. After the accident, the subject tire "remained[ed]
mounted on the cement truck [which was kept in a storage
yard] for approximately one year." Trial Tr. 424.
"Between December 5, 2015 and the present, the subject
tire has been maintained in a storage unit in Miami,
Florida." Trial Tr. 424.
Overview of Liability Evidence
prove his liability theory, Benedict offered the testimony of
HTCL officers and employees, documents produced by HTCL,
testimony of eyewitnesses to the accident, the subject tire,
and expert testimony. He relied most heavily, however, on the
expert testimony of David Southwell, and it is that testimony
that drives the motions under consideration.
David Southwell & His Experience David
was accepted as an expert "forensic tire
engineer., Trial Tr. 114; see also Benedict v.
Hankook Tire Co. Ltd., 290 F.Supp.3d 488, 497-507 (E.D.
Va. 2018) (ECF No. 342). Southwell is "an independent
tire engineering consultant and failure analyst" and
possesses, inter alia, a Master's degree in
engineering and a wealth of professional experience in the
tire failure analysis field. See Trial Tr. 105-114.
Southwell spent "nearly 13 years with Bridgestone
Australia" in a variety of roles that required him to
understand how and why tires fail, including by analyzing and
inspecting failed tires, and he received specific training in
that regard. See Trial Tr. 106-07, 111-13. After
that, Southwell "went into business for [him]self,"
"selling and servicing tires of all types" while
also "consult[ing] on tire failures" to diverse
groups. See Trial Tr. 107-08. Southwell then joined
Bridgestone Corporation in Thailand for three years, training
"other Bridgestone engineers and other Bridgestone
employees from around the Asia Pacific region ... .in all of
the tire technical aspects and failure analysis
techniques" he had learned in Australia. Trial Tr.
108-09, 113. Next, he worked for South Pacific Tires,
"the manufacturer of Dunlop and Goodyear tires in
Australia," in a role that required him to "oversee
and coordinate the new product development process for
Australia." Trial Tr. 108. Since 2005, Southwell has
been an independent consultant for "police, crash
investigators, insurance companies, [and] attorneys."
Trial Tr. 108. Southwell estimated that, over the course of
his career, he has inspected over 15, 000 failed truck tires
to determine the cause of failure. Trial Tr. 113-14.
The Defect Theories
examination of the subject tire, Southwell "found two
manufacturing defects which together . . . caused the
[subject] tire to fail in service suddenly." Trial Tr.
115, 133. "The first of those was inadequate adhesion
between the components in the tire." Trial Tr. 133. The
second was that the subject tire's "inner liner was
too thin," which "allowed oxygen to permeate into
the body of the tire up into the belt and body ply package
and caused oxidation or deterioration of the rubber."
Trial Tr. 133-34. He determined that the separation had
occurred "between the body ply and the first belt."
Trial Tr. 152. And, he testified that the subject tire failed
well before the end of its expected useful service life.
See Trial Tr. 132.
first defect opinion was based on his finding of
"multiple areas in the tire of what's called
'liner imprint.'" Trial Tr. 134. He asserted
that newly mixed tire rubber is soft and sticky, and it is
rolled up with "an interleaving liner ... so that the
rubber doesn't actually touch itself." Trial Tr.
137-38. When that liner is removed, "the imprint of the
pattern on the plastic liner is embedded in the soft
rubber." Trial Tr. 139. According to Southwell's
experience and opinion, when the tire is assembled,
"[p]atterns in the soft, tacky rubber should completely
disappear." See Trial Tr. 140. That is because
adjoining rubber components should "become one piece of
rubber" through a chemical reaction process called
interdiffusion. Trial Tr. 140-41. Thus, according to
Southwell, when you see liner patterns, "you know that
you're looking at one of the original interfaces [between
internal tire components], an interface that should have
interdiffused with its adjoining interface to form a complete
bond." Trial Tr. 144-45. Liner pattern marks are
"very clear evidence that in those areas, the rubber
components had failed to bond to the extent that they are
required to bond to prevent the tire from falling apart in
service." Trial Tr. 134.
interdiffusion results from a phenomenon called
"scorch," which occurs in the manufacturing plant.
Trial Tr. 145. Southwell explained that, to vulcanize the
rubber and make it "harder and elastic," sulfur is
added and heat and pressure are applied. Trial Tr. 146-47.
Interdiffusion involves molecular "fingers" at the
surface of rubber components migrating across the surfaces of
adjacent components and intermixing. Trial Tr. 140, 146-47.
When vulcanization occurs, the sulphur joins these fingers
and locks them in place. See Trial Tr. 147. Once
sulfur has been added to the rubber, however, which occurs
early in production (before a tire is built), there is enough
heat in the air to start the vulcanization process and lock a
rubber component's molecular fingers together.
See Trial Tr. 147-48. Hence, "if you leave the
components around in the factory for too long before you
bring them together, then what will happen is too many of
these fingers will have become joined, and they can no longer
interdiffuse across the interface with the adjoining
component." Trial Tr. 147-48.
found "11 separate areas in [the subject] tire of liner
pattern mark." Trial Tr. 139, 157-58. That showed to
Southwell that "the two surfaces have not interdiffused
as they are designed to do" and that "there are
significant areas where there is suboptimal or less adhesion
than should have been achieved." Trial Tr. 144.
Southwell clarified that the existence of liner pattern marks
does not absolutely mean that a tire will fail under all
operating conditions (e.g., infrequent use, cold
conditions, low speed operations). Trial Tr. 157. However, if
a tire with inadequate adhesion is "placed into an
operation for which it was designed, it's vulnerability
or its propensity to fail is much, much increased."
Trial Tr. 157. Southwell also testified that the greater the
area of inadequate adhesion, the more likely the tire is to
fail. Trial Tr. 157. He viewed the liner pattern marks in the
subject tire as "extensive." Trial Tr.
second defect opinion was that the subject tire's inner
liner, "the innermost layer of rubber in the tire,"
was too thin. Trial Tr. 161-62. That "allow[ed] oxygen
molecules to permeate through the rubber and attack
[i.e., oxidize] the areas of the tire above the
inner liner." Trial Tr. 162.
maintained that: "when certain types of rubber . . .
[are] exposed to excessive oxygen, particularly at high
temperatures, [the rubber's] physical properties change.
It goes from being flexible and elastic, and it progresses to
something much more brittle and hard." Trial Tr. 163. He
stated that such "oxidized rubber is not able to sustain
[the constant flexing of driving] in the way that they are
intended." Trial Tr. 163-64.
testified that the air that causes a problem for a tire is
the internal, pressurized air, not the external air.
See Trial Tr. 164. And, he explained that "the
inner liner's sole function is to retain the inflation
pressure inside the tire," "[s]o the inner liner is
manufactured using a highly impermeable rubber . . . called
halobutyl." See Trial Tr. 163, 165. Southwell clarified
that "there's two characteristics of an inner liner
that will improve its performance," the rubber type
(i.e., halobutyl) and its thickness. Trial Tr. 166.
As to thickness, Southwell testified that an inner
liner's "impermeability will be governed by the
thinnest point" and that "at no point around this
inner liner should the gauge be less than 2
millimeters." Trial Tr. 168.
measured the inner liner of the subject tire in 18 separate
locations, Southwell concluded that the inner liner was too
thin. Trial Tr. 167. Specifically, he determined that the
average thickness was 1.8 millimeters thick (with a high of
2.2 and a low of 1.6) and that "[o]f the 18
measurements, only two of them were 2 millimeters or
greater." Trial Tr. 167-68. He explained that the inner
liner's thickness would have been the same since the date
of manufacture and that variation in thickness is "a
normal phenomenon in the manufacturing." Trial Tr.
168-69, 171, 174-75. He concluded that "[t]he reduced
thickness allowed oxygen to permeate into the body ply and
the belts at a much higher rate than was designed to be the
case," such that "[t]he body ply lost its ability
to withstand force and contributed to the ultimate failure of
the tire." Trial Tr. 181.
also explained that, upon inspection, he discovered physical
evidence of oxidation within the subject tire. Trial Tr.
181-82. Oxidation can be detected by a tactile inspection
and, to some extent, by appearance. Trial Tr. 181-82.
Southwell found oxidation "in large areas of the body
ply" on the basis of "the appearance and the feel
of the body ply and first belt skim coat." Trial Tr.
Southwell concluded that both defects contributed to cause
the accident and created unreasonably dangerous conditions
that existed when the subject tire left Defendants'
hands. Trial Tr. 160, 185.
also ruled out alternative potential causes of the accident.
First, he concluded that the chronological age of the tire
was not a factor because: "[t]ruck tires do not expire.
Their life is determined by the depth of tread." .See
Trial Tr. 198-99. The subject tire was: "approximately
53 percent worn. So it's around about halfway through its
original life, bearing in mind that a truck tire is designed
not only for its original life, but also for subsequent
retreads." Trial Tr. 132.
Southwell ruled out an impact as a cause of the tire failure.
Had impact been the cause of the failure of the subject tire,
Southwell would "expect to find an impact site which is
readily visible, and . . . would expect to see a fracture to
the shoulder in the sidewall., / Trial Tr.
199-200. And, he stated that, if an impact had caused the
break to the second belt that appeared in the subject tire
(as Defendants' expert Joseph Grant suggested),
"[y]ou would expect to see something on the tread and in
the belts above the second belt in the third and fourth
belt." Trial Tr. 200, 202. But, he concluded that
"[t]here was no evidence on the tire of it having
suffered a significant impact that in any way contributed to
its failure." Trial Tr. 199. Furthermore, Southwell
explained that the damage that occurred to the second belt
was accident-related, not impact-related, because "[t]he
only component that's been damaged at that location is
the second belt, which was in the middle of the tire but
became exposed in the flapping around" of the accident;
the other components were intact. Trial Tr. 202-05.
Southwell confirmed that he did not "find any other
bases or reasons for this tire to come apart the way it did
other than the two defects" that he found and to which
he testified extensively. See Trial Tr. 205.
Defendants' Liability Evidence
liability evidence came primarily from two witnesses, Yun
Chang Chun and Joseph Grant.
Yun Chang Chun
an employee of HTCL, having worked there for approximately 20
years, and he has a mechanical engineering degree. Trial Tr.
452-53. He worked at the plant where the subject tire was
manufactured at the time it was made. Trial Tr. 454-55. His
team's job involved "mak[ing] sure that th[e]
specifications were being applied properly," and he had
exposure to Defendants' quality control processes. Trial
testified at length as to Defendants' manufacturing and
quality assurance procedures. For example, he explained that
Defendants "make sure that [their rubber is] stored
properly to make sure that they don't get
contaminated," they "use liner paper to wrap the
rubber sheets in," and they "make sure that [the
rubber is] used in a timely manner based on the
first-in-first-out principle." Trial Tr. 458. In
addition, Defendants "control [their] stock
period," have a "use-by period . . . based on
established standards," employ a radiofrequency
identification system to monitor compliance with the use-by
periods, and "have every semifinished product tagged so
that the operator" "would manually double-check the
product at each stage." Trial Tr. 460-62. Furthermore,
every tire that Defendants produce, after completion, is
subjected to an "exterior appearance inspection,"
an x-ray by trained technicians, and uniformity checks (which
test for balanced weight distribution, proper shape, and
counteraction with the ground). Trial Tr. 459-60.
also described Defendants' performance testing. He
explained that a test is performed that runs a tire
simulating a load until it fails. Trial Tr. 471-72. He
indicated that Defendants' tires far surpassed the
federal durability standard (and Defendants' higher
internal standard) for the week of testing closest to the
week when the subject tire was manufactured. Trial Tr.
additionally discussed Defendants' inner liner
specifications. He testified that the subject tire's
inner liner had three layers. Trial Tr. 522. The first was
halobutyl "to prevent or minimize the air leakage from
inside of the tire to the outside of the tire." Trial
Tr. 522. The second layers were natural rubber and were
designed to protect the halobutyl layer from stress (as it is
"very susceptible to stress") and to serve as a
buffer between that layer and the tire carcass (because the
halobutyl layer "should not come in contact with the
carcass itself"). Trial Tr. 522-23. Chun explained that
Defendants measure the inner liner based on "all three
inner liners together" because of the distinct functions
of the layers, and they "use the end point of the cord
as a starting point for the measurement of the thickness of
the inner liner." See Trial Tr. 524. A sample
tire of those manufactured when the subject tire was made was
tested for inner liner thickness, and the results were 4.1
millimeters on one side of the tire and 4.6 millimeters on
the other. Trial Tr. 538.
Grant was Defendants' expert in "[t]ire manufacture,
quality assurance and testing of tires, and tire failure
analysis." Trial Tr. 592. He has a Bachelor's of
Science in Mechanical Engineering, ''worked for
Continental General Tire for 34 1/2 years," and also did
"full-time independent [tire] consulting work all the
way up even to the present." Trial Tr. 574-75, 589-91.
He has "been involved with the manufacture, the design,
the testing, quality assurance, the care, and service of
tires for 47 years." Trial Tr. 575. His "whole
career [he's] been doing forensic analysis" on
tires. Trial Tr. 586-87. Grant is also a member of a variety
of relevant industry societies. Trial Tr. 587-89.
concluded, based on what he thought was "overwhelming
physical evidence," that the subject tire
"sustain[ed] a very localized failure in one location of
the tire as a result of a road hazard impact." Trial Tr.
601. He explained that there was "a break in the No. 2
steel belt" and "a very obvious separation that
developed where that break is" ("between steel
belts two and three"). Trial Tr. 601.
stated that "the No. 3 and 4 belt above th[e impact]
region are actually gone" and "there's actually
a piece of tread missing" there as well. Trial Tr. 603.
He further testified that "there's rubber tear lines
that are emanating directly away from where that break is
that are characteristic of a separation developing inside the
tire from multiple revolutions because the rubber has to take
up more of the stresses and strains because it's been
compromised from the broken No. 2 steel belt." Trial Tr.
604. He noted that "you don't see anywhere else
around the tire the characteristics of these types of
tears." Trial Tr. 605. Based on "the size of the
separation, the freshness of the tear lines, and the lack of
accelerated wear on the outside," Grant determined that
"the physical evidence indicates that [something]
happened in roughly 200 miles of [the accident] in a
localized area." Trial Tr. 610.
Grant expressed the view that Defendants are doing
"exactly what I would expect to see in a
well-manufactured, well-run plant" with respect to
quality assurance, in perspective of his "review of
Hankook manufacturing documents, the testimony of Mr. Chun,
and [his] experience." See Trial Tr. 662.
also questioned Southwell's opinions. Thus, according to
Grant, he discovered no liner pattern marks in the failure
area; noted that there is "good, multilevel random
tearing of the structure" (i.e., the tire is
"not coming apart at any manufactured interface");
found that the subject tire "did not even catch an
interface where there was a liner pattern"; observed
that liner patterns can show up without affecting adhesion;
and "concluded that there is absolutely nothing that
would indicate there's any adhesion issue." See
Trial Tr. 616-17, 620, 665-66, 670-73, 675. Grant also
explained that, if rubber "gets scorched, it's going
to be across the entire surface." Trial Tr. 669-70. And,
Grant opined that the inner liner was not too thin because if
one adds up all the layers of the subject tire's inner
liner (not just the halobutyl layer), it is above 2.5
millimeters, which is "best in class" and
"what inner liners ... in all steel truck tires . . .
with high technology are actually designed to have."
Trial Tr. 684-85. Furthermore, he concluded that no
oxidation occurred because "the rubber is still
supple" (even three years after the accident, during
which "these components have been subjected to more air
. . . than they were while they were stuck together")
and the failure was in one location. Trial Tr. 676.
Additionally, he testified that the manner in which the tire
disintegrated shows that "this tire did not come apart
between the body ply and the first belt." Trial Tr.
613-14. Moreover, he noted that a break could arise in only
belt two based on how the belts are oriented. Trial Tr. 615.
Finally, he found that the break in belt two was not merely
accident damage. See Trial Tr. 615-16.
Overview of Plaintiff's Damages Evidence
evidence established that, immediately upon
becoming conscious after the accident, his neck hurt, he was
frightened, and "[b]lood was gushing everywhere out of
[his] leg." Trial Tr. 367, 369. He could not move
because he was pinned by the steering wheel. Trial Tr. 368.
The cab was full of smoke and glass, and it smelled of burnt
oil. Trial Tr. 368. Benedict was conscious the whole time he
was trapped in the truck. Trial Tr. 369.
time Benedict was delivered to the trauma surgeon,
Benedict's heart had stopped. Trial Tr. 78. The trauma
surgeon opened Benedict's chest, began pumping his heart
by hand, and gave Benedict drugs to restart his heart. Trial
Tr. 78. Eventually, the trauma surgeon also discovered
massive internal injuries; Benedict's ribs "had
pierced a couple areas of his lungs, they'd also pierced
into his abdomen and poked a hole in his spleen." Trial
Tr. 81-82. Benedict had "flail chest" on
the left side, which is "a chest that has fractures in
two places in two or more ribs." Trial Tr. 91.
the trauma surgeon had stabilized Benedict, the surgeon found
"a devastating injury to his cervical spine." Trial
Tr. 86. The injury was to the C-5/C-6 level of the spine,
which "controls . . . the lower arms and the hands"
and anything below that level. See Trial Tr.
87-88. That injury caused Benedict to be
permanently paralyzed. See Trial Tr. 86, 318-19,
because of the internal injuries, "[f]or quite a while
[Benedict] was unable to breathe on his own." Trial Tr.
94. And, for a week, Benedict was in a medically induced
coma. Trial Tr. 96. He also was subjected to several
surgeries. Trial Tr. 96-97. Benedict stayed in the ICU for
about 30 days, from November 14, 2014 until December 19,
2014. See Trial Tr. 98, 424. When he came to,
Benedict could not move, communicate, swallow, or eat or
drink, and the tube in his mouth felt "not good."
Trial Tr. 370-71.
he left the ICU, Benedict was moved to "a care facility
that would be able to handle ventilated patients"
(Vibra) because he was still on a ventilator. Trial Tr. 98.
He was there for about a month, from December 19 until
January 26, 2015. Trial Tr. 37, 424. In January 2015, after
having been weaned off the ventilator, Benedict "was
admitted to [the] inpatient rehabilitation medicine
service." Trial Tr. 304. At that time, he was
"medically stable enough to tolerate at least three
hours of intensive rehabilitation, but he still had a lot of
ongoing medical issues." Trial Tr. 306. He had no finger
movement and "very little functional movement" of
his left arm (which was broken) . Trial Tr. 306-07. He also
"didn't have control over either bladder or
bowel." Trial Tr. 308.
underwent extensive rehabilitation therapy from January 26,
2015 until March 20, 2015. See Trial Tr. 37-38, 424. "In
a typical day ... he would have at least three hours of
therapy time scheduled usually with physical therapy,
occupational therapy and then maybe speech therapy."
Trial Tr. 312. The goal was to maximize mobility,
permit self-care, and train on bladder and bowel management.
Trial Tr. 312-13.
leaving rehabilitation, Benedict still "wasn't able
to be independent in many of his self-care activities or his
mobility activities or his bladder and bowel
activities." Trial Tr. 315. He needed help to turn in
bed, to get dressed, to get out of bed, to eat, and to
dispose of waste. Trial Tr. 315-16. To this day, to go to the
bathroom, Benedict must be catheterized (urination) or have a
2-2.5 hour invasive bowel program performed on him. Trial Tr.
40-42, 63, 316. He must be catheterized four to six times per
day, and the bowel program must be performed every other day.
Trial Tr. 41-42. For about two years after Benedict came
home, nurses were there around the clock, and he and his
family had no privacy. See Trial Tr. 44-45, 47,
377-78. Those nurses helped Benedict dispose of waste,
dressed him, stretched him, and bathed him. Trial Tr. 378.
During that time, Benedict could not shower (he only had bed
baths) and slept in the living room, based on the layout of
his home. Trial Tr. 41-42, 46-47, 377-78. Ultimately, the
family decided to borrow money to build a handicap accessible
home. Trial Tr. 46-47. It took 6-7 months to a year before
Benedict was able to bring food to his mouth, and then only
with specialized utensils affixed to his hand. Trial Tr. 54,
evidence proved, without dispute, that Benedict will be
permanently disabled and will likely not improve in
neurological function. Trial Tr. 98, 318-19. He "has
a very weak ability to pinch or grasp" that is
"very nonfunctional." Trial Tr.
313-14. Benedict has not been able to do
anything to care for himself since the accident, and his wife
has been taking care of him 12 hours a day. Trial Tr. 343,
385. Nurses assist him with him with his daily needs. Trial
Tr. 47-48. Benedict's wife often helps him with waste
disposal, particularly at night. See Trial Tr.
40-42, 47, 49-50. Because Benedict must be catheterized and
turned every few hours, neither Benedict nor his wife can
sleep through the night. Trial Tr. 49-50. Benedict gets
spasms every day that feel "like someone is punching him
in the stomach, and he can't breathe." Trial Tr. 52,
382. Throughout the day, Benedict must be placed in a
stand-up wheelchair "for pressure releases to eliminate
bed sores." Trial Tr. 64. He is not able to go through
the showering process every day because" [i] t's a
lot of work, and it's a lot on him" (it requires a
special lift and a shower chair). Trial Tr. 51. Benedict
cannot dress himself and the dressing process is difficult
because Benedict is paralyzed from the chest down and cannot
bend his arms normally. Trial Tr. 53, 313. Benedict has not
been left alone for a minute since being released from the
hospital. Trial Tr. 62. He tries not to take pain medication,
but he has nevertheless has had to do so because "[h]e
has pain in his head and neck area, and even some pain below
the level of injury." Trial Tr. 315.
paralyzed individual, Benedict is at risk for several medical
problems. For example, he is at constant risk of autonomic
dysreflexia, or "a hyperstimulation of the sympathetic
nervous system," which can be brought on by "[a]ny
noxious stimuli" below the level of spine injury,
including "a urinary tract infection, pneumonia, a
fracture, a pressure ulcer .... tight clothing, bowel
constipation" or unaddressed waste disposal needs. Trial
Tr. 309-10. That can cause" [v]ery high blood pressures
to the point where you can have cerebral hemorrhage or
stroke." Trial Tr. 309-10. When a bout of autonomic
dysreflexia occurs, Benedict gets very uncomfortable, starts
sweating badly, gets chills, and his blood pressure
skyrockets. Trial Tr. 382. He is also at greater risk of bone
fractures, pressure ulcers, bladder infections, lung fluid
and infections, abnormal bone growth, contractures
(limitations in joint flexibility), etc. Trial Tr. 307,
310-11, 317. Some of these comorbidities can kill a paralyzed
person, and they reduce life expectancy. Trial Tr. 317-18,
322. In fact, Benedict has experienced autonomic disreflexia,
UTIs, more colds and allergies, and has had to go to the
hospital for blood clots. Trial Tr. 382-83.
the accident, Benedict was "a young, very strong
man/' was in excellent health, was an "outdoors
person/' had a passion for driving trucks (since he
"was a little kid"), engaged in activities with his
family and friends (e.g., sports, going to the
beach, parks, amusement parks, decorating the house, going to
the racetrack, grilling, bowling), would "tak[e] care of
all the problems," and would work around the home
(e.g., cooking, laundry, yardwork) . Trial Tr. 30,
330, 332, 359-60, 385-86. Now, Benedict cannot ambulate; he
cannot "do anything he used to do with [his]
children"; his wife has become "his caretaker and
his nurse"; he has no intimate relationship with her; he
"can't ever be alone"; and the fact that
"everything is on [his wife's] shoulders now . . .
really hurts him." Trial Tr. 67-68, 385-86, 417, 425.
And, Benedict and his wife lost friends because "[t]hey
don't see him the same way." Trial Tr. 65. He gets
embarrassed because people "look at him
differently" and because of his care needs
(e.g., his bathroom needs). Trial Tr. 66. Benedict
fears that he will not grow old with his wife and will not
live long enough to watch his children grow up. Trial Tr. 68.
He misses being a husband and father, and he feels that his
family dynamic has dramatically changed "from [him]
taking care of all the problems to becoming the
problem." Trial Tr. 385-86.
economic damages, the parties stipulated that the past
medical costs totaled $2, 049, 675.23. See Trial Tr.
425; PL's Ex. 27. An expert economist, Dr. Frederick
Raffa, testified that Benedict's past lost wages were
$115, 545; that his future lost wages, at present value, were
$493, 141; and that his life care needs (based on a plan set
by a qualified life care plan witness, Dr. Craig Lichtblau),
at present value, would cost $6, 109, 381. See Trial
Tr. 340, 392, 413-14.
evidence about the nature of Benedict's injuries and the
economic damages were not disputed (and wisely so).
STANDARDS GOVERNING MOTIONS UNDER FED. R. CIV. P. 50(b) AND
standards applicable to motions for judgment as a matter of
law under Fed.R.Civ.P. 50 are well-established:
A court "may grant judgment as a matter of law only if,
viewing the evidence in a light most favorable to the
non-moving party and drawing every legitimate inference in
that party's favor, . . . the only conclusion a
reasonable jury could have reached is one in favor of the
moving party." If, upon the conclusion of a party's
case, "a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that
issue," a court may grant a motion from the opposing
party for judgment as a matter of law.
Huskey v. Ethicon, Inc., 848 F.3d 151, 156 (4th Cir.
2017) (citations omitted); see also United States v.
Kivanc, 714 F.3d 782, 795 (4th Cir. 2013) ("[In
assessing a motion for judgment as a matter of law, ] [w]e
consider the evidence in the light most favorable to the
nonmoving party but may not make credibility determinations
or substitute our judgment for that of the jury.").
standards for a new trial under Rule 59 are equally familiar:
"In considering a motion for a new trial, a trial judge
may weigh the evidence and consider the credibility of
witnesses, and if he finds the verdict is against the clear
weight of the evidence, is based on false evidence or will
result in a miscarriage of justice, he must set aside the
verdict, even if supported by substantial evidence, and grant
a new trial." "The decision to grant or deny a
motion for a new trial is within the sound discretion of the
district court and will not be disturbed absent a clear
showing of abuse of discretion."
See King v. McMillan, 594 F.3d 301, 314-15 (4th Cir.
2010) (citations omitted).
raise three main arguments. First, they claim that judgment
should be directed in their favor as a matter of law because
Benedict failed to establish that the subject tire was
negligently manufactured. See Defs.' Br.
6-19. Second, Defendants contend that a new
trial should be ordered because the verdict was against the
clear weight of the evidence. See Defs.' Br.
19-22. Third, Defendants maintain that the jury's award
was excessive. See Defs.' Br. 22-28.
Defendants' Arguments that Plaintiff Failed to Establish
that the Subject Tire Was Negligently Manufactured
argue that, to prove negligent manufacturing, a plaintiff
must show not only that a product was "unreasonably
dangerous" because it failed to conform to some
objective standard, but also that the defect was a result of
the manufacturer's failure to exercise due care in the
manufacturing process. Defs.' Br. 7-9. They further
allege that the Court's jury instructions required such
proof. Defs.' Br. 9. They also assert that Benedict's
expert testimony was insufficient to establish any objective
manufacturing standards or breach thereof. See
Defs.' Br. 12. These contentions are unavailing.
The Standards Governing Negligent Manufacturing
The Summary Judgment Opinion (ECP No. 343)
resolving Defendants' pre-trial motion for summary
judgment, the Court issued a Memorandum Opinion describing,
at length, the standards applicable to negligent
manufacturing claims in Virginia. See Benedict v. Hankook
Tire Co. Ltd., 295 F.Supp.3d 632, 637-47 (E.D. Va. 2018)
(ECF No. 343). The Court incorporates that Opinion in
relevant part here, and it presumes familiarity with it.
Nevertheless, a few points are worth repeating.
the Court previously held that there exists a basic products
liability framework in Virginia. Benedict, 295
F.Supp.3d at 637. As the Court explained, "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.'"
Id. (citations omitted). "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.'" Id.
(citations omitted). If there are no industry standards,
courts may "rely on expert ...