E-Copy Received Aug 18, 2014 1:20 PM
IN THE DISTRICT COURT OF APPEAL
FOURTH DISTRICT OF FLORIDA
CASE NO. 4D14-113
L.T. CASE NO. 2009 CA 044048 XXXX MB
CONTINENTAL TIRE THE
AMERICAS, LLC, a foreign
limited liability company,
Appellant,
v.
TRACEY PARKER, Individually
and EDWARD PARKER, Individually,
Appellees.
/
INITIAL BRIEF
OF
CONTINENTAL TIRE THE AMERICAS, LLC
On Appeal from a Final Order of the Fifteenth Judicial Circuit,
In and For Palm Beach County, Florida
CARLTON FIELDS JORDEN BURT P.A.
215 S. Monroe Street, Suite 500
Tallahassee, Florida 32301
Telephone: (850) 224-1585
Facsimile: (850) 222-0389
By: PETER D. WEBSTER
CARLTON FIELDS JORDEN BURT P.A.
Suite 4200, Miami Tower
100 Southeast Second Street
Miami, Florida 33131
Telephone: (305) 530-0050
Facsimile: (305) 530-0055
By: WENDY F. LUMISH
ALINA ALONSO RODRIGUEZ
STEVEN BLICKENSDERFER
Attorneys for Appellant
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................iv
STATEMENT OF THE CASE ...............................................................................1
STATEMENT OF THE FACTS .............................................................................3
A.
The Accident ............................................................................3
B.
Plaintiffs' Theory Of Liability And CTA's Defense ...................3
C.
Evidentiary Issues .....................................................................8
1.
Plaintiffs' Reliance On CTA's Withdrawn Expert
As An Additional Expert.................................................8
2.
Exclusion Of Evidence Of The Non-occurrence Of
Prior Incidents, Claims, Lawsuits Or Adjustments ........ 15
3.
Improper Exclusion Of CTA's Animations Of The
Manufacturing Process.................................................. 20
D.
Jury Verdict ............................................................................ 25
E.
Post-trial Motions ................................................................... 25
SUMMARY OF THE ARGUMENT .................................................................... 26
ARGUMENT........................................................................................................ 28
I.
STANDARD OF REVIEW .............................................................. 28
II.
CTA IS ENTITLED TO A NEW TRIAL BASED ON THE
EXCLUSION OF NON-OCCURRENCE EVIDENCE WHICH
WAS ESPECIALLY CRITICAL TO CTA's DEFENSE
AFTER PLAINTIFFS OPENED THE DOOR BY IMPLYING
THAT THE ALLEGED DEFECTIVE CONDITION HAD
OCCURRED BEFORE .................................................................... 28
A.
Evidence Of CTA's Safety History Was Admissible In
The First Instance ................................................................... 28
i
TABLE OF CONTENTS
(Continued)
Page
III.
B.
In Any Event, Plaintiffs Opened The Door To This
Evidence By Suggesting Tires Were Manufactured And
Left The Plant With The Alleged Defect ................................. 29
C.
Plaintiffs Cannot Establish That The Exclusion Of This
Evidence Was Harmless Error ................................................ 32
CTA IS ENTITLED TO A NEW TRIAL BASED ON THE
EXCLUSION OF ANIMATIONS AND STILL FRAMES
THAT DEPICTED CRUCIAL ASPECTS OF THE TIRE
MANUFACTURING PROCESS AND SUPORTED CTA'S
DEFENSE ........................................................................................ 33
A.
The Animations Satisfied Florida Law Concerning The
Use Of Demonstrative Aids .................................................... 33
B.
Plaintiffs' Arguments For Striking the Animations Were
Factually and Legally Incorrect ............................................... 36
C.
IV.
1.
CTA's Disclosure Of The Animations Was Timely ....... 36
2.
CTA's Opposition To The Discovery Of
Manufacturing Plant Videos Was Not A Basis To
Exclude The Animations ............................................... 37
Plaintiffs Cannot Establish That The Exclusion Of The
Animations Was Harmless Error ............................................. 37
CTA IS ENTITLED TO A NEW TRIAL BASED ON THE
IMPROPER AND MISLEADING MANNER IN WHICH
PLAINTIFFS USED THE TestiMony OF CTA'S
WITHDRAWN EXPERT, EAGAR .................................................. 38
A.
Having Successfully Obtained An Order Precluding
References To Withdrawn Experts, Plaintiffs Were
Bound By That Order.............................................................. 39
B.
Irrespective Of His Status As A Withdrawn Expert, The
Manner In Which Plaintiffs Used Eagar's Testimony
Violated Florida Law .............................................................. 40
ii
TABLE OF CONTENTS
(Continued)
Page
C.
1.
Plaintiffs Impermissibly Used Eagar's Testimony
To Bolster The Opinions Of Their Experts. .................. 40
2.
Eagar's Testimony Should Have Been Excluded
Because It Was Cumulative Of Plaintiffs' Other
Experts' Testimony ....................................................... 43
3.
Plaintiffs Impermissibly Implied That Eagar Had
Been CTA's Expert ....................................................... 45
Plaintiffs Cannot Establish That The Admission Of This
Evidence Was Harmless Error ................................................ 47
CONCLUSION .................................................................................................... 49
CERTIFICATE OF SERVICE.............................................................................. 50
CERTIFICATE OF COMPLIANCE..................................................................... 50
iii
TABLE OF AUTHORITIES
Page
Cases
Alston v. Shiver,
105 So. 2d 785 (Fla. 1958) ..........................................................................34
Bogosian v. State Farm Mut. Auto. Ins. Co.,
817 So. 2d 968 (Fla. 3d DCA 2002) ............................................................46
Bohack v. Keller Industries,
895 So. 2d 1113 (Fla. 4th DCA 2005) ................................................... 30, 32
Broward County v. Cento,
611 So. 2d 1339 (Fla. 4th DCA 1993) .........................................................46
Castaneda ex rel. Cardona v. Redlands Christian Migrant Ass'n, Inc.,
884 So. 2d 1087 (Fla. 4th DCA 2004) .........................................................28
Cont'l Baking Co. v. Slack,
556 So. 2d 754 (Fla. 2d DCA 1990) ............................................................30
D.P.P. v. C.P.,
39 Fla. L. Weekly D1073 (Fla. 5th DCA May 21, 2014).............................39
Dufour v. State,
69 So. 3d 235 (Fla. 2011) ............................................................................41
Emerson Elec. Co. v. Garcia,
623 So. 2d 523 (Fla. 3d DCA 1993) ............................................................28
Fla. Dept. of Transp. v. Armadillo Partners, Inc.,
849 So. 2d 279 (Fla. 2003) ..........................................................................47
Flanagan v. State,
625 So. 2d 827 (Fla. 1993) ..........................................................................48
Gavin v Promo Brands USA, Inc.,
578 So. 2d 518 (Fla. 4th DCA 1991)...........................................................43
Goldstein v. Centocor,
No. 05-215, 2007 WL 61913 (S.D. Fla. Jan. 5, 2007) .................................44
iv
TABLE OF AUTHORITIES
(Continued)
Page
Harris v. State,
843 So. 2d 856 (Fla. 2003) ..........................................................................33
Harvin v. State,
886 So. 2d 1041 (Fla. 1st DCA 2004) .........................................................40
Jackson v. Albright,
120 So. 3d 37 (Fla. 4th DCA 2013).............................................................30
Jackson v. H.L. Bouton Co.,
630 So. 2d 1173 (Fla. 1st DCA 1994) .........................................................28
Jacksonville Trans. Auth. v. ASC Assocs.,
559 So. 2d 330 (Fla. 1st DCA 1990) ...........................................................46
Kruse v. State,
483 So. 2d 1383 (Fla. 4th DCA 1986) .........................................................47
Lewis v. Sun Time Corp.,
47 So. 3d 872 (Fla. 3d DCA 2010) ..............................................................28
Liberatore v. Kaufman,
835 So. 2d 404 (Fla. 4th DCA 2003)...........................................................41
Linn v. Fossum,
946 So. 2d 1032 (Fla. 2006) .................................................................. 41, 48
MacKay v. Fla. Power & Light Co.,
524 So. 2d 1068 (Fla. 4th DCA 1988) .........................................................39
McCurdy v. Collis,
508 So. 2d 380 (Fla. 1st DCA 1987) ...........................................................39
McLean v. State,
934 So. 2d 1248 (Fla. 2006) ........................................................................43
Milburn v. State,
742 So. 2d 362 (Fla. 2d DCA 1999) ...................................................... 40, 46
Miller v. State,
127 So. 3d 580 (Fla. 4th DCA 2012)...........................................................40
v
TABLE OF AUTHORITIES
(Continued)
Page
Pascale v. Fed. Express Corp.,
656 So. 2d 1351 (Fla. 4th DCA 1995) .........................................................33
Pelham v. Walker,
135 So. 3d 1114 (Fla. 2d DCA 2013) ..........................................................29
Peterson v. State,
94 So. 3d 514 (Fla. 2012) ...................................................................... 29, 31
Peterson v. Willie,
81 F.3d 1033 (11th Cir. 1996) ......................................................... 38, 46, 47
Pierce v. State,
718 So. 2d 806 (Fla. 4th DCA 1997)..................................................... 34, 35
Probkevitz v. Velda Farms, LLC,
22 So. 3d 609 (Fla. 3d DCA 2009) ..............................................................43
Reffaie v. Wal-Mart Stores, Inc.,
96 So. 3d 1073 (Fla. 4th DCA 2012)...........................................................32
Royal Bahamian Ass'n, Inc. v. QBE Ins. Corp.,
No. 10–21511–CIV, 2010 WL 4225947 (S.D. Fla. Oct. 21, 2010) ........ 44, 45
Ryder Truck Rental, Inc. v. Johnson,
466 So. 2d 1240 (Fla. 1st DCA 1985) .........................................................30
S.E. v. D.W.,
946 So. 2d 620 (Fla. 2d DCA 2007) ............................................................41
Schwarz v. State,
695 So. 2d 452 (Fla. 4th DCA 1997)..................................................... 40, 41
Simmons v. Roorda,
601 So. 2d 609 (Fla. 2d DCA 1992) ............................................................34
Special v. Beaux,
79 So. 3d 755 (Fla. 4th DCA 2011), rev. granted sub nom.
Special v. W. Boca Med. Ctr., 90 So. 3d 273 (Fla. 2012) .......... 32, 33, 38, 48
vi
TABLE OF AUTHORITIES
(Continued)
Page
Sun Charm Ranch, Inc. v. City of Orlando,
407 So. 2d 938 (Fla. 5th DCA 1982)...........................................................45
Sunstar, Inc. v. Alberta Culver Co.,
No. 01C0736, 2004 WL 1899927 (N.D. Ill., Aug. 23, 2004).......................44
Tolbert v. State,
114 So. 3d 291 (Fla. 4th DCA 2013)...........................................................40
United States v. Walker,
910 F. Supp. 861 (N.D.N.Y. 1995) .............................................................43
Statutes
§ 90.403, Fla. Stat. .................................................................................... 41, 43, 45
§ 90.706, Fla. Stat. ................................................................................................41
Other Authorities
Charles W. Ehrhardt, FLORIDA EVIDENCE § 401.3b (2014 ed.) ..............................34
Ehrhardt, FLORIDA EVIDENCE § 702.5. (2014 ed.) ........................................... 43, 46
Philip J. Padovano, FLORIDA CIVIL PRACTICE § 20.3 (2014 ed.)............................33
Rules
Florida Rule of Appellate Procedure 9.210 ...........................................................50
Florida Rule of Civil Procedure 1.360(c) ..............................................................46
vii
STATEMENT OF THE CASE
Tracey and Edward Parker brought this products liability action against
Continental Tires the Americas ("CTA") claiming that a tire on the Chevy Cobalt
being driven by Mrs. Parker was defectively designed and manufactured, and its
failure resulted in a single vehicle rollover accident. (R. 1:1-23).1
CTA denied these allegations. It claimed that earlier damage to the rim
caused the tire to lose air for some time and, as a result of being run underinflated,
the tire failed on the day of the accident. CTA also claimed that Plaintiffs failed to
properly maintain the tire knowing it was losing air; that Mrs. Parker was negligent
in her handling of the vehicle after the tire event; and that, assuming arguendo
there was a defect in the tire, GM was negligent in failing to discover it.
The jury rejected Plaintiffs' design defect theory, but found the tire had a
manufacturing defect which was a legal cause of Plaintiffs' damages. It allocated
fault to CTA (90%), Mr. Parker (3.5%) and GM (6.5%). It awarded $9.9 million to
Mrs. Parker, $1 million to her husband. (R. 37:7351-54). After set offs, the court
entered judgment against CTA for $9,866,979.36. (R. 38:7441).
1
The record and supplemental record are designated: (R. Vol.:Page) and (S.R.
Vol.:Page). Trial transcripts will be referred to by the volume on the cover of each
volume: (T. Vol.:Page). Because of the size of the record, CTA has included key
documents in an appendix. (App. Tab. No.). In addition, certain confidential
exhibits were sealed by court order. Those have been included in a separate sealed
Appendix. (Conf. App. Tab No.) Unless noted, all emphasis is supplied.
1
CTA contends the judgment cannot stand because of three errors which
singularly and cumulatively deprived CTA of a fair trial. First, although Plaintiffs
retained three experts, Plaintiffs were permitted to bring a fourth expert before the
jury – CTA's withdrawn expert, Dr. Thomas Eagar. Plaintiffs impermissibly
bolstered their own experts' testimony by telling the jury that this "MIT professor"
"agreed" with Plaintiffs' experts that there was a manufacturing defect. Plaintiffs in
effect conceded harmful error when they acknowledged that Eagar was a "very,
very critical part of [their] case," of "number one importance to [Plaintiffs]," and
that his testimony "had infected the entire case." (T. 4:563; 7:1185; 13:2049).
On the other hand, CTA's defense was limited in two critical aspects. First,
the court excluded evidence that, out of 1.4 million sales of the same model tires
used on the same vehicle, there had not been a single tire returned, nor had
there been any lawsuits or claims for the condition Plaintiffs asserted had
occurred in this case. Non-occurrence evidence is admissible under Florida law.
In any event, Plaintiffs opened the door to this evidence when their experts
testified, over objection, that CTA's own documents demonstrated tires had been
manufactured, sold, and returned with the alleged defective condition. It became
evident that this evidence was important to the jurors' consideration when a juror
wanted to know if accident tires had ever been returned with the condition at issue.
That question went unanswered, to CTA's great prejudice.
2
Additionally, the court did not allow CTA to use animations and/or still
"frames" which fairly and accurately demonstrated the tire manufacturing process,
a process unfamiliar to the average juror. (Conf. App. E). As Plaintiffs' counsel
recognized in a different context, "a picture is worth a thousand words."
(T. 10:1686). Without these animations, CTA was unfairly deprived of the
opportunity to present the "picture" that supported CTA's defense that it was not
possible for a tire to be manufactured in the manner claimed by Plaintiffs.
STATEMENT OF THE FACTS
A.
The Accident
While Mrs. Parker was driving her 2006 Chevrolet Cobalt at highway
speeds, the right rear tire failed, she lost control of the vehicle and it rolled over
multiple times. (R. 1:1-23; T. 4:714; 5:757). She suffered multiple fractures, had
numerous surgeries, including a neck fusion, and was in a medically induced coma
for more than a month. (T. 8:1391-92, 1406-09, 1416-17; 13:2098).
The CTA tire was over three years old and had 40,000 miles on it at the time
of the accident. (T. 8:1258; 10:1665). Mr. Parker testified that he regularly checked
the air pressure, and found that the right rear tire was losing 2 to 3 pounds of air
per week, which he conceded was more air than any of the other tires.
(T. 9:1541-45; 12:1921, 1985-86).
B.
Plaintiffs' Theory Of Liability And CTA's Defense
Basic Tire Anatomy: A tire consists of multiple components. (See App. A).
3
The part of the tire at issue here is the bead. Each tire has two beads (one inboard
and one outboard) that anchor the tire to the rim and create an air-tight seal to
maintain inflation pressure. (T. 8:1259). A tire bead is made up of five steel wires,
each of which is coated in rubber and then wrapped around a wheel four times.
(T. 6:966; 10:1678). The bead is then placed on top of an inner liner and a
polyester ply. (T. 19:3029). The ply is "turn[ed] up" around the bead so that the
bead is "lock[ed] down," and encapsulated within the ply. (T. 6:965-66;
10:1676-77; 15:2421-31; 19:3029-32). The sidewall is added, and it too
encapsulates the bead. (T. 15:2429-30). Thereafter, other components of the tire
are added including the steel belts and tread. (See generally T. 15:2433-56).2
Plaintiffs' Theory: After the accident, the tire was found with two of the
five steel bead wires sticking out of a one-half inch tear in the rubber. (T. 8:1260;
10:1654; App. B). Plaintiffs' expert in material analysis, Richard McSwain, and
their expert in tire failure analysis, Troy Cottles, claimed the tire was defective
because it was manufactured with two bead wires sticking out through the
polyester ply and bead rubber. (T. 6:893, 966; 10:1677-79; 11:1758).3 They
claimed the loose bead wires extended into the air chamber causing a gradual air
2
As discussed infra, the complex tire building process was best explained through
animations which the court excluded. (Conf. App. E).
3
CTA has not discussed Plaintiffs' design defect theory because CTA prevailed on
that issue.
4
loss. (T. 7:1125, 1147-48). On the day of the accident, the bead finally stretched,
expanded and came off the tire, producing a rapid air loss. (T. 11:1717-1816).
Critical to their manufacturing claim, McSwain and Cottles relied on
photographs which they claimed showed ratchet marks and/or V-shaped/triangularshaped rubber that indicated the wires were cured outside of the tire. (T. 6:978,
1019-22; 7:1117-18; 11:1748; App. C). McSwain also conducted a test in which he
attempted to simulate CTA's theory that the wires were pushed through during the
accident ("wire push-through test"). (T. 6:979, 984-86). According to McSwain,
the marks left by the wires in his test did not match those on the accident tire, thus
disproving CTA's theory. (T. 6:1012-18). Plaintiffs also contended that, in the
manufacturing process, two of the bead wires were cut at a different time and/or to
a different length than the other three, which allowed them to protrude out of the
tire. (T. 6:1065-71; 7:1140-42).4
CTA's Defense: CTA's corporate representative, Bob Boeschel and its tire
forensic expert, Joe Grant, attempted to describe the stages of the complex
manufacturing process to support their opinion that the tire could not be, and was
not, manufactured and sold with bead wires cured outside the rubber.
4
Plaintiffs also relied on a CT scan, additional testing and other physical evidence
on the tire. (T. 6:1022-29, 1050, 1054-57, 1084-85; 11:1717-22). Plaintiffs also
contended that the tire must not have been inspected because it was missing an
inspection stamp. (T. 6:944; 11:1760).
5
(T. 15:2398-2458; 19:3025-42). But as discussed, infra, these witnesses were not
permitted to use the animations or still "frames" of the manufacturing process that
would have illustrated CTA's theory of the case.
CTA's witnesses also explained that the physical evidence on the tire did not
support Plaintiffs' theory. For example, Grant testified that the ratchet marks and
triangular-shapes relied upon by Plaintiffs as evidence that the wires were cured
outside the tire were, in fact, tear lines created by the wires as they were shoved
out of the tire during the accident. (T. 19:3087-89). Grant also showed the many
differences between McSwain's wire push-through test and the accident conditions.
(T. 19:3114-15).
Moreover, Grant opined that, if the wires were sticking out of the tire before
it was cured, as Plaintiffs claimed, they would have been stuck between the curing
press and the green tire, and thus would have been pressed into the rubber with
tremendous force and heat, leaving an impression. (T. 19:3037-45). No such mark
existed. (T. 19:3040-45). Further, based on Grant's own testing, he opined that if
the wires had been stuck between the tire and rim for three years and 40,000 miles,
they would have left a permanent impression in the rubber, which also was not
present. (T. 19:3045-53). Grant also showed how the flap of torn rubber matched
the area where the wires came out, and that there was no room for wires to have
been cured in that location outside the tire. (T. 19:3091-97; App. D).
6
CTA also presented evidence that the tire would have been inspected along
the manufacturing process, including a 100% final inspection; and thus there were
multiple opportunities during which workers would have noticed wires sticking
out. (T. 11:1796-1800; 15:2376, 2457-63). Likewise, GM inspected the tires before
mounting them, and would have seen a loose wire. (T. 17:2812; 18:2859).
Not only did CTA deny that the tire failed in the manner claimed by
Plaintiffs, CTA offered its own evidence as to how the tire failed. There was a dent
in the rim that pre-existed the accident, causing the tire to lose air. (T. 18:2951-59;
29:3219). Plaintiffs drove the vehicle in a "run low, run flat" condition for some
period of time before the accident-anywhere from 10 to 1000 miles.
(T. 18:2897-98, 2904, 2930, 2936). As a result, the tire was "squished down,"
causing damage to the inner liner, sidewalls and polyester ply. (T. 18:2898-99;
2923-29). Eventually the outboard sidewall completely detached, the inner
sidewall partially detached and the tire lost its air. (T. 18:2906-07; 2936-45).
During the ensuing rollover, the inboard sidewall and bead became stretched and
distorted allowing the bead wires to unravel. (T. 18:2936-45). As the stretched
rubber on the inboard sidewall snapped back to its original shape, the metal bead
wires contained within the sidewall shoved through the tire. (T. 18: 2936-46).
CTA also contended that Mrs. Parker negligently operated the vehicle, and
that Plaintiffs were negligent in operating the vehicle with a bent rim, in not taking
7
it in for repairs when they knew the tire was leaking air, and in driving with a tire
in a run-low, run flat condition. (T. 5:817-18; 19:3024-25, 3157-60, 20:3287).
Finally, CTA claimed that, if the tire was defective, GM was negligent in not
noticing the wires which, according to Plaintiffs' theory, would have been sticking
out when GM mounted the tire on the rim. (T. 20:3259).
C.
Evidentiary Issues
CTA contends that three evidentiary rulings deprived it of a fair trial. The
first aided Plaintiffs in presenting their theory of the case, and the other two
impermissibly limited CTA's defense.
1.
Plaintiffs' Reliance On CTA's Withdrawn Expert As An
Additional Expert
In addition to the three experts retained by Plaintiffs, over objection,
Plaintiffs read the deposition of Dr. Eagar, an expert originally retained by CTA
but later withdrawn. Plaintiffs' experts relied extensively on Eagar's opinions to
bolster their own opinions.
CTA had retained Eagar as an expert in materials science. In the third of five
depositions, Eagar agreed that pictures taken by Plaintiffs' expert, McSwain,
depicted "ratchet marks" and "triangular shaped rubber," and those marks were
evidence that bead wires were cured in the location of the marks. (R. 28:5515).
Eagar circled the location of the marks on McSwain's photographs. (T. 6:1082;
App. C). After additional discovery, Eagar acknowledged he made a mistake when
8
he testified earlier regarding these marks, so he issued a revised report and was
deposed on his new opinions. (R. 28:5515).
Eagar also decided – without CTA's knowledge or consent – to repeat
McSwain's wire push-through test. (T. 6:999). In his test, however, Eagar pushed
the wires through at a higher rate of speed than McSwain. (T. 7:1155-57).
Before trial, CTA withdrew Eagar as an expert and moved in limine to
preclude references to him, arguing his testimony would be cumulative, would
constitute improper bolstering, and the deposition was misleading because Eagar
later testified he was mistaken in those opinions. (R. 28:5512-20). CTA also
pointed out that Plaintiffs had filed a motion in limine to preclude references to
experts who had been "withdrawn, substituted or not called to testify" in which
Plaintiffs argued that such testimony was "irrelevant to the issues, highly
prejudicial, and any probative value would be outweighed by the danger of unfair
prejudice, confusion of the issues and/ or misleading the jury." (R. 16:3064;
28:5514-50; 49:9726). CTA agreed to Plaintiffs' motion as long as it was
reciprocal, and an order was entered based on that agreement. (R. 20:3939;
28:5579). CTA argued that it relied on that order in deciding to withdraw Eagar.
(R. 49:9726). Finally, CTA argued that, in all events, the jury should not be told
that CTA had originally retained Eagar. (R. 28:5518-21).
Plaintiffs responded and, after several hearings, the court ruled that Plaintiffs
9
could present Eagar's testimony, but could not tell the jury Eagar had been retained
by CTA. (R. 28:5598-5600; 29:5601-11; 29:5696-97; 49:9725-37, 49:9765-71).
Thereafter, by Plaintiffs' own admission, Dr. Eagar's testimony became a "very,
very critical part of their case," and "infected the entire case." (T. 4:563; 7:1185).
Plaintiffs' Opening Statement: Citing its earlier ruling, the court overruled
CTA's objection to references to Eagar during opening statement. (T. 4:563-64).
Using a powerpoint slide depicting a photograph of Eagar and his qualifications,
counsel introduced Eagar as "another expert" from whom the jury would hear – the
material scientist "from MIT" who has been a "professor there since 1976."
(T. 4:611; App. E at 1). Then, showing a portion of Eagar's deposition, Plaintiffs'
counsel stated that the "only two material scientists you are going to hear from in
this case," "Dr. McSwain and Dr. Eagar, both of them agreed" that "the physical
evidence … the ratchet marks, the triangular shaped rubber" indicate the tire was
defective. (T. 4:613; App. E at 2-3). Plaintiffs also showed a slide labeled "No
Bead Wires Should Have Been Cured At This Location," which depicted
McSwain's photographs of the area where he claimed the wires were cured, with
circles around the areas. (T. 4:615; App. E at 4). The slide had the notation "all
circles made by Dr. Eagar." (T. 4:615; R. 48:9535; see also App. E at 4). Counsel
stated, "[t]hese are Dr. Eagar's circles. Dr Eagar circles again saying, yes, I see
what McSwain said, and yes, I agree with him." (T. 4:615; App. E at 5-8).
10
Plaintiffs also explained that Eagar had conducted a test that "got the exact
same results" as McSwain's testing, and showed a photograph of Eagar's test with
the caption "Dr. Eagar's Own Wire Push-Through Test Disproves Defense
Theory." (T. 4:646; App. E at 9).
Eagar's Deposition is Read at Trial: When CTA reasserted its pretrial
objections to the reading of Eagar's deposition, the court reiterated that Plaintiffs
could present Eagar's testimony, but could not tell the jury that he was originally
hired by CTA. (T. 7:1185-86; 8:1246-47; 11:1881-83; 12:1892-1916; 13:2043-49,
2167-96). Accordingly, Plaintiffs read Eagar's deposition wherein he testified that:
(1) he saw triangular-shaped molded rubber and ratchet marks in the opening in the
bead area; (2) these marks "told" him that a bead wire was manufactured in that
location; (3) he circled that location on the photograph; and (4) the two wire ends
that were protruding in the tire were molded and manufactured in the area of the
bead opening. (T. 14:2270-71).
Plaintiffs Use Eagar's Testimony to Bolster Their Experts' Opinions
With Respect to The Rubber Marks and Test Results: Plaintiffs not only read
Eagar's deposition, but they used his markings on McSwain's photographs and the
results of his wire push-through test results to bolster their experts' opinions.
First, with respect to the tire photos, McSwain and Cottles testified that
Eagar "from MIT" confirmed the wires were cured in the locations contended by
11
Plaintiffs, and that Eagar had circled the locations on McSwain's photographs.
(T. 6:1081-82; 11:1747-49; R. 61:1706-13; App. C). Plaintiffs' counsel used these
same photographs with CTA's expert, Boeschel, asking him at least eight different
times to confirm that if Eagar correctly circled the area where the bead wires were
cured, that would constitute a manufacturing defect. (T. 17:2680-83). CTA's expert
Grant was asked the same question. (T. 20:3250).
With respect to the test results, after describing Eagar as a retired Ph.D.
metallurgist from MIT, counsel displayed a picture of Eagar's wire push-through
test, and McSwain testified that the rubber marks were "essentially the same as
what [he] got ...." in his slower test. (T. 6:991-92; see also T. 6:986-94; Plfs' Exh.
167A and 187). Later, using side-by-side photographs of McSwain's test and
Eagar's same test at higher speeds, McSwain testified that "you can't tell them
apart." (T. 6:1017-18; see also T. 7:1155-57; 11:1751-52; 20:3249) (asking CTA's
expert Grant, on cross-examination to "agree that Dr. McSwain and Dr. Eagar's test
results are the same…"). Relying on these test results, McSwain testified there was
no scientific basis to conclude the wires were pushed through during the accident
(as opposed to in the manufacturing process). (T. 6:1018).
Plaintiffs Imply that Eagar was Retained by CTA: Although the court
had ruled that Plaintiffs could not tell the jury that CTA had retained Eagar,
Plaintiffs were permitted to ask questions that implied just that. For example,
12
McSwain told the jury that "Dr. Eagar, an expert that did . . . a lot of work," "was
deposed on five or six different days." (T. 7:1161). McSwain then explained that at
least 20% of his fees were attributable to Eagar: "Dr. Tom Eagar's original
opinions, Dr. Tom Eagar's additional work; Dr. Tom Eagar's new opinions; Joe
Grant deciding to take on some additional responsibilities…." (T. 7:1161-62).
In addition, over objection, the court allowed Plaintiffs to elicit testimony
from Grant that he originally deferred to "another person" for the metallurgical
opinions, and then, after the McSwain deposition and a meeting with defense
counsel, "something happened to change Joe Grant and have him be the clean-up
hitter. True?" (T. 19:3108-13; 20:3191-93).
Plaintiffs Reference Eagar in Closing Argument: In his closing, Plaintiffs'
counsel referred once again to the fact that Eagar's tests yielded the same results as
McSwain's. (T. 21:3404-05). After stating that Cottles relied on the ratchet marks,
Plaintiffs' counsel reminded the jury that Eagar, the "professor at MIT," the
"prominent materials science expert and lecturer" with the "PhD degree like Dr.
McSwain," "unequivocally stated" that "the ratchet marks that you see reflect and
show where the bead wires are cured." (T. 21:3415). Further, using the photograph
with Eagar's circles around the marks, Plaintiffs' counsel argued that Eagar,
"materials science, MIT professor" "confirms, circling the ratchet marks, the bead
wire locations" and that CTA's expert Grant agrees that, if the bead wires were
13
cured there, there is a manufacturing defect. (T. 21:3416). He continued:
So you have Dr. Eagar, who also did his own push-through test, that
showed very different, very different results; a longitudinal line, if you
do a push-through, like we saw; no ratchet marks like this; no ratchet
marks like this if you do a push-through. You have Dr. Eagar,
materials science, MIT professor; ratchet marks confirm bead wires
were cured here. You have Plaintiff's expert, Dr. McSwain; ratchet
marks cured here, absolutely confirm, bead cord cured here, outside of
the ply, in a defective condition. You have Troy Cottles confirming
that.
(T. 21:3416). Plaintiffs' counsel then pointed out that:
You heard Mr. Grant deferred to another person in May, in his May
deposition, relative to the interpretation of the CT scan and to
metallurgy. And he admitted that the CT scan was not his idea, nor
had he ever used a CT scan in any type of litigation.
You also learned that his role in this case increased drastically in July,
just two months ago, that all of a sudden he was going to take on
Richard McSwain, the materials expert.
(T. 21:3418).
Plaintiffs' counsel returned to these same themes in his rebuttal closing
arguing: "MIT, Dr. McSwain, Troy Cottles: '[w]ires were cured there.' It's
undisputed …. [t]ests done in independent labs, McSwain and Eagar, both showed
that when you puncture a wire through a tire you get those lines." (T. 21:3483). He
continued: "Dr. McSwain pushed his through slowly. Dr. Eagar, you will recall,
used a hammer and hammered it through. Two different speeds, same results. Two
different laboratories, separated by 1,500 miles, exact same results." (T. 21:3483).
14
2.
Exclusion Of Evidence Of The Non-occurrence Of Prior
Incidents, Claims, Lawsuits Or Adjustments
Plaintiffs moved in limine to prevent CTA from presenting evidence of the
non-occurrence of prior incidents, claims, lawsuits or adjustments,5 arguing: (1) the
evidence was irrelevant; (2) CTA could not establish the requisite substantial
similarity; (3) adjustment data in particular is unreliable; and (4) any claimed
relevance is outweighed by the danger of unfair prejudice. (R. 16:3013-24).
CTA responded that the safety history of a product is admissible and, thus,
the jury should be told that: (1) more than 1.4 million of the same model tire were
manufactured at the same plant from 2004 to 2006; (2) the 1.4 million tires were
all shipped to the same General Motors plant and mounted on Chevy Cobalt
vehicles; (3) the records of CTA show that, with respect to 1.4 million tires, there
were no claims or lawsuits against CTA for the condition alleged in this case; and
(4) a search of the adjustment data did not reveal a single tire returned for the
alleged defect asserted here. (R. 19:3611-25). CTA argued that the proffered
evidence met the test of substantial similarity. (R. 19:3611-25). Further, after
Plaintiffs argued that adjustment data was "misleading" because not everyone who
experiences a failed tire returns it to CTA through the adjustment system, CTA
5
An adjustment refers to a situation where a customer has returned a tire to a
dealer because of some complaint, and the dealer gets a credit back from the tire
manufacturer. (T. 10:1596-97; 15:2479-81). A warranty claim is one type of
adjustment. (T. 15:2479).
15
offered to present only evidence of lawsuits and claims. (R. 51:10007).
The court recognized that, "if I don't allow this, I've taken away their, kind
of, central defense of this case," (R. 51:10017-18), but then granted Plaintiffs'
motion. (R. 25:4953-54). It ruled, however:
Evidence of non-occurrence of prior incidents, etc. may become
relevant at trial if the plaintiff opens the door on this issue. Defense
counsel shall be required to first approach the bench to seek
permission to ask questions on this issue.
(R. 25:4953-54).
In fact, as described below, Plaintiffs did just that. Over objection, the court
admitted CTA's Adjustment Manual which describes field conditions that result in
a customer returning a tire (Conf. App. B at 3-7); and CTA's Off-Standard
Catalogue (also referred to as CTA's visual inspection policy), which relates to the
inspection of tires before they leave the plant. (T. 11:1731-38; 17:2742; Conf. App.
C). Plaintiffs used these documents with their witnesses to create the impression
that not only was it possible for tires to be manufactured with bead wires sticking
out, but, in fact, tires had left the plant in that condition.
CTA's experts responded that Plaintiffs were misconstruing these documents
and that none of the cited sections related to the condition at issue in this case.
(T. 15:2474-79, 2483-84, 2499-2501; 17:2742-43, 2752). But Boeschel – the CTA
corporate representative who searched CTA's files – was not permitted to testify
that he checked the adjustment data related to the 1.4 million tires made between
16
2004 and 2006, and there were no tires returned under any of the codes referenced
by Cottles and, in particular, there were no claims made, or lawsuits filed, for
personal injury or property damage related to a bead wire sticking out.
(T. 17:2826-31).
Plaintiffs Open the Door to Non-Occurrence Evidence: In opening
statement, Plaintiffs' counsel told the jury CTA had rules addressing "conditions
that Continental says are defects," including "wires sticking out of belt of the tire,
wires sticking out of the bead of the tire, wires sticking out of the inner liner of the
tire – all things that happen in the plant." (T. 4:598). Later, counsel stated:
[CTA is] also going to say, it's impossible to get the wires out. Just the
way we make tires, we can't envision how this could ever happen. We
are going to show you their own policies that says if that happens, you
have to scrap the tire. It seems kind of silly to suggest that you have a
policy on how to do something if it doesn't ever happen.
(T. 4:642).
Plaintiffs' expert, Cottles, repeatedly suggested CTA's documents recognized
bead wires could be, and were, cured outside the bead. Referring to the OffStandard Catalogue, Cottles testified that the policy required a final inspection for
visible cords at the bead and, had that inspection been done, they would have
scrapped this tire. (T. 11:1737-39; Plfs' Exh. 22). He also stated that the tire should
never have been sold "with design defects and manufacturing defects" because,
"according to Continental's own internal documentation, the tire had conditions in
17
it which they acknowledge should have been scrapped if they were identified."
(T. 11:1759-60; see also T. 10:1679). When CTA's counsel sought to clarify that
Cottles had never seen a loose bead wire, he answered: "according to the
Continental documents, it's obvious that they have seen it, they have conditions
assigned for it to scrap a tire." (T. 11:1844).
Likewise, after Plaintiffs' counsel argued that the Adjustment Manual went
"directly to their this-is-impossible-to-happen defense," because the "manual
shows that it does happen," the court allowed Cottles to testify that "post
manufacturing Continental has a process or policy for what you do when bead
wires are out of the tire." (T. 11:1731-34). Cottles then went through pages from
the manual that he claimed related to the alleged defect at issue here.
(T. 11:1734-36; Conf. App. B). Cottles also stated that, if there were "a stray wire
sticking out of a tire, and they are willing to pay for an adjustment obviously they
felt responsibility for the mismanufacture of it." (T. 11:1839).
Over objection, Plaintiffs also elicited testimony from a former CTA plant
worker, James Rich, that he had "personally seen tires with bead wires protruding
out of a cured tire like the Parker tire" on the scrap line. (T. 14:2315).6 And
Plaintiffs read the deposition of another former CTA employee, Paul Moses, who
6
When CTA objected to this evidence, the court recognized this testimony could
open the door to the absence of claims. (T. 7:1221-22).
18
testified there was a specific code for wild wires, and "the reason that inspectors
are trained to like [sic] for wild wires at the 100 percent inspection is because
sometimes mistakes occur and wild wires occur in a cured tire." (T. 14:2320,
2243-51; S.R. 9-14). He agreed that "if . . . it didn't happen they wouldn't have to
look for it." (T. 14:2320).
Plaintiffs continued to open the door with their cross-examination of CTA's
corporate representative, Boeschel. Over objection, Plaintiffs' counsel reminded the
jury of Rich's testimony that he had personally observed bead wires outside of
tires. (T. 17:2688). Counsel again referred to the visual inspection policy
concerning the discovery of a bead wire or cord and sought Boeschel's
confirmation that a wire sticking out of the bead would be a warranty (adjustment)
claim. (T. 17:2741, 2749-50; see also T. 20:3256) (asking Grant to agree that tires
with manufacturing defects occasionally get out of the plant).
The Court Rejects CTA's Argument That the Door has Been Opened:
CTA continually argued the door had been opened to evidence of the absence of
claims. (See, e.g., T. 15:2485-98). Although Plaintiffs conceded they were using
this testimony to "counteract [CTA's] defense" that "[t]his just can't happen, we've
never seen it," the court would not admit CTA's evidence. (T. 15:2496; see also
T. 15:2485-98, 2504).
CTA renewed argument at the conclusion of Boeschel's testimony was again
19
rejected. (T. 17:2774-80). Immediately thereafter, Plaintiffs' counsel was permitted
to ask Boeschel whether an inspector would be spoken to if a tire came back with a
defect. (T. 17:2784-87). The court again ruled this did not open the door.
(T. 17:2787). Counsel's question triggered a juror question:
For post accident tires returned to CTA, were any bead wires found
outside the tire? If so, please elaborate on conditions found.
(R. 37:7253; see also T. 17:2788). The court rejected CTA's argument that this
showed jurors believed this had happened before and that there were claims, and
did not allow the juror's question. (T. 17:2788-89, 2814; see also T. 20:3273-74).
Plaintiffs' Closing: Plaintiffs capitalized on the impression they had created
that tires could be, and were, manufactured with the defect asserted in this case:
Brian Rich. The only guy that you heard from that was in the plant
doing the dirty-hands work was Mr. Rich. Brave fellow. Comes in –
not here, but through deposition – raises his hand and says something
that Continental doesn't want to hear. Very brave to do that. "Yes, not
only does this happen. I've seen it happen repeatedly."
Mr. Grant went out of his way to use the "inconceivable." "That's
inconceivable." I stopped counting when we got to 20. What does Mr.
Rich, the guy on the floor, the dirty-hands guy say? "It was
conceivable. It happened. I saw it."
(T. 21:3495-96).
3.
Improper Exclusion Of CTA's Animations Of The
Manufacturing Process
CTA next claims the court abused its discretion in precluding CTA's experts
from using animations of the stages of the manufacturing process. (Conf. App. E).
20
These animations were prepared to provide the jury with a visual understanding of
the tire making process, including the manner in which the component at issue was
manufactured. They were necessary because the process would be foreign to lay
persons, and it was difficult to visualize from words or even hand drawings.
Moreover, they were intended to illustrate CTA's defense that it was essentially
impossible to build a tire with bead wires sticking out of it. (R. 50:9893;
52:10210).7
Animation 1: Bead Making Process (3:32 min.) This animation shows the
process by which bead wires are coated with rubber, wrapped around a wheel four
times, cut with a "cutter" and crimped together. (T. 15:2393-2408). Among other
points, it illustrated CTA's defense that: (1) the wires tended to straighten back
"up," and not "down," as Plaintiffs suggested; and (2) the five bead wires were cut
at the same time in one movement, in response to Plaintiffs' experts' contention that
the wires were cut to different lengths. (T. 15:2395-2403; 19:3028).
Animation 2: First-Stage Tire Building (1:54 min.). This animation shows
the process by which the beads are placed into "setters;" the inner liner and
polyester ply are wrapped around a tire building drum; the beads are placed on top
of those components; the polyester ply is "turned up" and "locked down" around
the beads; and then the sidewalls are placed over the ply and "locked down" around
7
The animations were filed under seal but are available for the Court's review.
21
the beads to form the first-stage tire carcass. (T. 15:2421-30; 19:3028-32). It
illustrated CTA's position that: (1) the beads could not have been placed into the
setters if there was a wire sticking out; and (2) the wire could not possibly have
been sticking out during the "turn up" and "lock down" of the polyester ply and
sidewall. (T. 15:2424; 19:3029-32).
Animation 3: Second-Stage Tire Building (1:32 min.) In this animation,
the first-stage tire carcass is placed over a building drum, and beads and treads are
added to build a "green tire" that is ready to be cured. (T. 15:2433-35; 19:3031-32).
It illustrated CTA's defense that, if there had been a protruding wire, the first-stage
carcass could not have fit over the building drum. (T. 19:3028-29).
Animation 4: Curing Stage (2:08 min.) This animation shows the "green
tire" being placed into the curing press and it also shows a cross-section of the
internal parts of the curing press. (T. 15:2448-56; 19:3032-36). It illustrated CTA's
defense that there was no gap between the tire and the curing press as alleged by
Plaintiffs' expert and that any protruding wires would have left a permanent
impression on some part of the green tire. (T. 19:3033-42).
Discussion Concerning Demonstrative Aids and Exhibits Prior To Trial:
About seven months before trial, CTA's expert Grant testified in deposition that he
was considering preparing animations depicting phases of the tire manufacturing
process. (R. 29:5689-91). Ultimately, CTA's experts developed four animations
22
and, although there was no order requiring it to do so, CTA filed an Amended Trial
Exhibit List which included these four animations about two weeks before trial.
(S.R. 1-4).8 A week later, Plaintiffs moved to strike the four animations, claiming
surprise and that CTA intended to use the animations as "substantive" evidence.
(R. 28:5551-54). CTA responded that Plaintiffs were on notice of the animations;
the disclosure of the animations was timely; and the animations were
demonstrative aids, not substantive evidence. (R. 29:5679-91).
At the hearing on the Motion to Strike, Plaintiffs added that CTA should not
be able to use the animations because the court had previously denied Plaintiffs'
requests for discovery of certain videos of a CTA plant. (R. 49:9731). CTA
responded that the plant videos did not depict the bead making process, first-stage
tire building, or second-stage tire building that were depicted in the animations.
(R: 49:9732). One animation also depicted what happens inside the curing press
machine, which was also not on the video. (R. 49:9732).
After reviewing the animations in camera, the court granted Plaintiffs'
Motion to Strike Animations:
The Court: … I'm going to grant the plaintiff's motion to strike. If
you had videos of the manufacturing process, I would consider
allowing that, but I don't believe that the simulation9 should be used.
8
On at least two occasions, CTA sent emails to Plaintiffs' counsel suggesting that
the parties set a time to review, inter alia, demonstrative aids. (R. 29:5685-86).
9
The court corrected itself acknowledging it was an animation, not a simulation.
23
You didn't want them to have the video and I just don't think the
simulation is appropriate. I'm going to grant the plaintiff's motion.
(R. 49:9755; see also R. 29:5702).
CTA moved for reconsideration noting that, in denying Plaintiffs' Motion to
Compel production of the videos, the court found the two videos did not contain
footage of the bead making process and did not even show the machines used to
manufacture the subject tire. (R. 29:5708-28). The motion was denied. (T. 2:285).
At Trial: CTA sought reconsideration of the ruling excluding the
animations, before its corporate representative, Boeschel, testified (T. 14:2327-30).
CTA's counsel reminded the court of the difficulty CTA's attorney had in crossexamining Cottles in that he had to use his arms to talk "about the curing press and
how … it has to kind of come in and wrap around." (T. 14:2329). CTA also
proffered 49 still "frames" taken from the animations, then narrowed the "frames"
down to 13 and finally to 2. (T. 14:2337-40). The court initially agreed to allow 2
frames, but then changed its mind stating: "I'm not going to allow it. I think you all
could have taken pictures of this. In light of the fact you fought production of the
video, I'm not going to allow it." (T. 14:2339-40; see also T. 14:2330, 2337, 2342).
In a proffer, Boeschel testified that he assisted in the preparation of the
animations and still "frames," they were intended to illustrate his testimony to the
jury and they fairly and adequately depicted the machinery and the processes used
to build the Parker tire. (T. 15:2384-87). He further stated that tire making is a
24
complex process, using complex equipment which cannot easily be explained or
understood without visual aids. (T. 15:2384). Boeschel believed he would be
handicapped in describing the manufacturing process, and the jury would be
handicapped in understanding his testimony, without these aids. (T. 15:2387).
D.
Jury Verdict
The jury found that the tire was manufactured in a defective condition.
(R. 37:7351). It found Ed Parker was 3.5% negligent with respect to the
maintenance of the tire and that General Motors was 6.5% responsible for not
discovering the wires. (R. 37:7352). Judgment was entered against CTA.
(R. 38:7441).
E.
Post-trial Motions
CTA sought post-trial relief including a new trial based on the evidentiary
issues asserted herein. (R. 38:7489-7503; S.R. 15-89). After Plaintiffs' response
and a hearing, the
motion was denied. (R. 40:7941-8000–41:8001-163;
52:10228-10355).
25
SUMMARY OF THE ARGUMENT
Evidence of the non-occurrence of other incidents, claims, etc., is admissible
where, as here, the proponent establishes substantial similarity. In this case, this
evidence became admissible for a second reason – Plaintiffs' witnesses opened the
door by testifying that CTA's documents showed tires could be, and were, made
with wires sticking out, and that tires had in fact left the plant in that condition. Not
only was this testimony misleading because the documents did not even relate to
bead wires, but once Plaintiffs' expert offered those opinions, it opened the door to
CTA's response that, out of 1.4 million of the same tires used in a similar manner,
there was not a single claim, lawsuit or adjustment for the alleged defect. The court
recognized this evidence was central to CTA's defense. That this issue was of
concern to the jury is evidenced by the fact that one juror specifically asked if tires
had been returned with bead wires sticking out. On these facts, Plaintiffs cannot
demonstrate that it is more likely than not that the error did not influence the jury
and thereby contribute to the verdict.
Second, the court abused its discretion when it deprived CTA of the
opportunity to use animations and stills taken from the animations, even though
these accurately depicted the complex manufacturing process and would have
aided the jury in understanding the issues. Without them, CTA was "handicapped"
in its ability to explain the manufacturing process and thus could not fairly defend
26
itself by using the visual evidence showing the tire could not have been
manufactured as Plaintiffs claimed.
Finally, the court abused its discretion when it allowed Plaintiffs to read the
deposition of CTA's withdrawn expert, using him as an extra expert who agreed
with Plaintiffs. Despite well recognized prohibition against bolstering, Plaintiffs
repeatedly told the jury that, like their expert Dr. McSwain, another highly
qualified material scientist, Dr. Thomas Eagar from MIT, agreed with them on the
two central points in the case: that photographs proved that bead wires were cured
outside the tire; and that the wires could not have pushed through during the
accident sequence. Using Eagar, the jury heard cumulative testimony about the
alleged defect such that they could simply "count experts" and conclude that
Plaintiffs' experts were more credible because there were more of them. And,
despite the prohibition against telling the jury that CTA had originally hired him,
Plaintiffs made numerous comments that would have led the jury to realize that
Eagar had been CTA's expert. As Plaintiffs stated, Eagar became a "very critical
part" of their case and "infected the entire case." These violations of core principles
of Florida law concerning expert testimony deprived CTA of a fair trial. Plaintiffs
cannot establish this was harmless error.
Individually or collectively, these errors deprived CTA of a fair trial,
entitling CTA to a new trial on the manufacturing defect theory and damages.
27
ARGUMENT
I.
STANDARD OF REVIEW
The standard of review is abuse of discretion. A court does not have
discretion to ignore the rules of evidence. Castaneda ex rel. Cardona v. Redlands
Christian Migrant Ass'n, Inc., 884 So. 2d 1087, 1090 (Fla. 4th DCA 2004).
II.
CTA IS ENTITLED TO A NEW TRIAL BASED ON THE
EXCLUSION OF NON-OCCURRENCE EVIDENCE WHICH WAS
ESPECIALLY CRITICAL TO CTA'S DEFENSE AFTER
PLAINTIFFS OPENED THE DOOR BY IMPLYING THAT THE
ALLEGED DEFECTIVE CONDITION HAD OCCURRED BEFORE
A.
Evidence Of CTA's Safety History Was Admissible In The First
Instance
It is well established in Florida that the safety history of a product –
including the lack of prior complaints/accidents – is admissible as long as a twopart test is met: the evidence (1) pertains to the same type of product; and (2) is
based on use of the product under substantially similar conditions. See Emerson
Elec. Co. v. Garcia, 623 So. 2d 523, 525 (Fla. 3d DCA 1993); see also Jackson v.
H.L. Bouton Co., 630 So. 2d 1173, 1177 (Fla. 1st DCA 1994) ("A lack of
complaints is relevant to rebut the allegation that the [product does] not meet a
reasonable consumer's expectation as to safety."); cf. Lewis v. Sun Time Corp., 47
So. 3d 872, 874-75 (Fla. 3d DCA 2010) (trial court did not abuse discretion in
admitting evidence that there had been no prior falls on subject stairway in the 70
28
years since the building was opened).10
CTA met the two-part test. The proffered evidence related exclusively to
Continental Touring Contact AS tires, size P195/60R15, made at the Charlotte
plant from 2004-2006 (the same model, size, plant and time frame as the tire at
issue). These tires were all used under "substantially similar" conditions in that
they were sold to General Motors, shipped to General Motors' Lordstown Plant,
mounted on Chevy Cobalts, and intended to be used as passenger car tires on
normal streets and highways. As such, the court abused its discretion in excluding
the tire's safety history, including the lack of claims, lawsuits and adjustments.
B.
In Any Event, Plaintiffs Opened The Door To This Evidence By
Suggesting Tires Were Manufactured And Left The Plant With
The Alleged Defect
Even assuming arguendo the court did not abuse its discretion by initially
excluding the evidence, the concept of "opening the door" allows the admission of
otherwise inadmissible testimony to qualify, explain, or limit testimony or
evidence previously admitted. Peterson v. State, 94 So. 3d 514, 534 (Fla. 2012). It
is "'based on considerations of fairness and the truth-seeking function of a trial,'
and the consideration that without the fuller explication, the testimony that opened
the door would be 'incomplete and misleading.'" Id. (citations omitted); see also
Pelham v. Walker, 135 So. 3d 1114, 1118 (Fla. 2d DCA 2013) ("fairness
10
Plaintiffs' reliance below on a series of out-of-state cases is of no import in light
of established Florida law on this issue.
29
considerations required that once the defense introduced the incomplete and
misleading testimony, [plaintiff] should have been allowed to offer the complete
picture to the jury . . . .").
Once a party opens the door, any order in limine implicated by that evidence
is rendered a "nullity." See Ryder Truck Rental, Inc. v. Johnson, 466 So. 2d 1240,
1243 (Fla. 1st DCA 1985). Instead, the opposing party is then "absolutely entitled
to eradicate" that "unwarranted prejudicial image" on cross-examination. See
Cont'l Baking Co. v. Slack, 556 So. 2d 754, 756 (Fla. 2d DCA 1990).
Applying these principles, in Bohack v. Keller Industries, 895 So. 2d 1113,
1114 (Fla. 4th DCA 2005), this Court held that a ladder manufacturer's expert
opened the door to cross-examination on the state of the art when he testified that
"every other manufacturer had made at least one ladder of this type at some point
in time." More recently, in Jackson v. Albright, 120 So. 3d 37, 40 (Fla. 4th DCA
2013), the Court held that the plaintiff's testimony that she did not have the ability
to pay for treatment opened the door to impeachment evidence that she received a
settlement from an unrelated lawsuit shortly before the subject accident.
Here, Plaintiffs opened the door to non-occurrence evidence by repeatedly
suggesting tires had been manufactured and sold with wires protruding from the
bead. It began in opening statement, when Plaintiffs stated that wires sticking out
of the bead was something that "happen[ed] in the plant" (T. 4:598), and that "it
30
seems kind of silly to suggest that you have a policy on how to do something if
it doesn't ever happen." (T. 5:642). It continued through the examination of
Plaintiffs' expert Cottles, and the cross-examination of CTA's experts Grant and
Boeschel, where counsel hammered home his theme that the Off-Standard
Catalogue showed tires were manufactured in this condition and that the
Adjustment Manual showed CTA anticipated tires being returned from the field in
this condition. (T. 11:1731-39, 1759-60, 1844; 17:2688, 2741, 2749-50; 20:3256;
Conf. App. B, C). Plaintiffs then reinforced this point through the testimony of
former CTA employee Rich, who had seen tires in this condition, and employee
Moses, that inspectors were trained to look for this condition. (T. 14:2315, 2320).
As a result, the jury was left with the impression that tires could be, and
were, manufactured with loose bead wires, and CTA knew it. Therefore, evidence
of the non-occurrence of claims, lawsuits and adjustments was necessary to
provide the fuller explanation without which the testimony was be "incomplete and
misleading." Peterson, 94 So. 3d at 534.
Below, Plaintiffs argued they did not open the door because the comments
were not directed to the subject make and model tire. (See, e.g., T. 15:2486;
R. 40:7951-54). If true, then the court should have sustained CTA's objections to
this evidence as irrelevant. But by Plaintiffs' own admission, this evidence was
offered to rebut CTA's position that this condition could never happen. Thus,
31
evidence showing that, in fact, it did not happen, was directly responsive and
necessary to CTA's defense. See Bohack, 895 So. 2d at 1115 (once expert violated
motion in limine, only effective cure was cross-examination of the expert).
C.
Plaintiffs Cannot Establish That The Exclusion Of This Evidence
Was Harmless Error
In Special v. Beaux, 79 So. 3d 755, 771 (Fla. 4th DCA 2011), rev. granted
sub nom. Special v. W. Boca Med. Ctr., 90 So. 3d 273 (Fla. 2012), this Court held
that the beneficiary of error in the trial court must show "it is more likely than not
that the error did not influence the trier of fact and thereby contribute to the
verdict." See also Reffaie v. Wal-Mart Stores, Inc., 96 So. 3d 1073, 1075-76 (Fla.
4th DCA 2012) (applying Special to conclude appellee had not met burden of
showing error more likely than not did not influence verdict).
Plaintiffs cannot meet that burden. As the court recognized, this evidence
was "central" to the defense. (R. 51:10017-18). And we know it was important
because a juror asked whether "for post accident tires returned to CTA were any
bead wires found outside the tire?" (R. 37:7251; T. 17:2788). By precluding CTA
from answering that question with affirmative evidence of the absence of any
claims, lawsuits or adjustments, the court deprived CTA of a "central defense."11
Plaintiffs argued below that any error was harmless because CTA witnesses
11
Plaintiffs noted that the juror who asked the question was an alternate, but the
question is still a reflection of how the jurors perceived the evidence.
32
testified they had never seen this happen before. But once Plaintiffs introduced
testimony of an employee who claimed he had seen it, CTA needed to respond.
And, beyond that, there is a significant difference between a witness who testifies
based on his own limited personal experience, and a witness whose responsibility it
was to review and collect the actual data from the company's records. The
exclusion of this evidence unfairly impaired CTA's right to a fair trial and Plaintiffs
cannot prove it was more likely than not that the erroneous exclusion of this
evidence did not affect the verdict. Special, 79 So. 3d at 771.12
III.
CTA IS ENTITLED TO A NEW TRIAL BASED ON THE
EXCLUSION OF ANIMATIONS AND STILL FRAMES THAT
DEPICTED
CRUCIAL
ASPECTS
OF
THE
TIRE
MANUFACTURING PROCESS AND SUPORTED CTA'S DEFENSE
A.
The Animations Satisfied Florida Law Concerning The Use Of
Demonstrative Aids
The purpose of demonstrative evidence is to "provide[] a visual reference
that helps the judge or jury understand the case." Philip J. Padovano, FLORIDA
CIVIL PRACTICE § 20.3 (2014 ed.); see also Harris v. State, 843 So. 2d 856, 863
(Fla. 2003) (Demonstrative evidence is "generally more effective than a description
given by a witness, for it enables the jury, or the court, to see and thereby better
understand the question or issue involved.") (quoting Alston v. Shiver, 105 So. 2d
12
Prior to Special, the standard for harmful error was "whether, but for the error, a
different result would have been reached." Pascale v. Fed. Express Corp., 656 So.
2d 1351, 1353 (Fla. 4th DCA 1995). Under either standard, CTA is entitled to a
new trial.
33
785, 791 (Fla. 1958)); Simmons v. Roorda, 601 So. 2d 609, 611 (Fla. 2d DCA
1992) (reversible error for court to exclude photograph that witness would have
used to explain testimony and enable jury to understand the case).
In Pierce v. State, 718 So. 2d 806, 808 (Fla. 4th DCA 1997), this Court set
forth the test for the use of computer animations, and, in doing so, distinguished
between computer simulations – which are substantive evidence used by an expert
to perform calculations and obtain results forming the basis of the expert's opinion
– and animations, which are used solely to illustrate testimony or facts in evidence.
See also Charles W. Ehrhardt, FLORIDA EVIDENCE § 401.3b (2014 ed.) ("When a
computer is used to generate a presentation that illustrates the testimony of a
witness or facts admitted during the trial, the graphic display is a 'computer
animation' which is being offered as demonstrative evidence.").
The Court held that, to use a demonstrative exhibit, the proponent must
demonstrate the foundation necessary for the expert opinion (i.e., the opinion is
helpful to the trier of fact, the witness is qualified as an expert, the opinion is
applicable to the evidence offered at trial, and section 90.403 is satisfied). Pierce,
718 So. 2d at 809. Further, the proponent must establish that the facts or data upon
which the expert relied in forming the opinion expressed by the animation are of a
type reasonably relied upon. See id. And, finally, the animation must be a fair and
accurate depiction of that which it purports to be. See id. Applying that test, this
34
Court upheld the admission of a computer animation used as a demonstrative
exhibit of an accident reconstruction. See id. at 810.
CTA's proffer established the animations fairly and accurately depicted the
expert's testimony with regard to the tire manufacturing process, and they would be
used solely as demonstrative aids. At the hearing on post-trial motions, the court
stated that the animations were a "sanitized" version of the manufacturing process.
(R. 52:10288). But that did not change the fact that it was a fair and accurate
depiction of what the process was like. As such, this aspect of Pierce was satisfied.
Moreover, it is undeniable that the manufacturing process was complex. As
Boeschel testified, the experts were "handicapped" in explaining the process
without them. While the court commented that the experts were allowed to draw
on an easel, hand drawings by non-artist experts were no substitute for animations
that depicted each stage of the process in an understandable manner. It is
undeniable that they would have assisted the jurors, who had no familiarity with
the complexities of the tire manufacturing process. Indeed, CTA asks this Court to
review the animations, after which it should be clear that they truly were worth a
thousand words. The animations were critical to CTA's defense that the tire simply
could not have been manufactured as Plaintiffs alleged. See supra at 21-22.
35
B.
Plaintiffs' Arguments For Striking the Animations Were
Factually and Legally Incorrect
1.
CTA's Disclosure Of The Animations Was Timely
Plaintiffs' principal argument below was that CTA's disclosure of the
animations was untimely. But Plaintiffs did not point to a pre-trial order requiring
disclosure of demonstrative aids. Notwithstanding, a month before trial, CTA's
counsel attempted to reach an agreement with Plaintiffs as to demonstrative aids to
no avail, and it was CTA that initiated the exchange of amended exhibit lists.13
Tellingly, Plaintiffs did not disclose their demonstrative aids until three days after
CTA disclosed its animations. (S.R. 5-8). There is no timing issue.
Even assuming a late disclosure, Plaintiffs failed to show prejudice.
Plaintiffs argued that they could have used the animations in their case or reviewed
them during expert depositions. There is no case law, procedural rule, or court
order that required CTA to make its demonstrative aids available to Plaintiffs
before trial. Moreover, there is no dispute that the substantive evidence concerning
the manufacturing process was "discovered" before trial, through depositions. The
animations were "pictures" of the testimony intended to assist the jury to better
13
Plaintiffs will likely contend that they were not given the opportunity to review
the animations. Initially, CTA offered to turn the animations over to Plaintiffs,
subject to a protective order to protect trade secret information. (R. 25:4966-78;
51:10204). The court granted Plaintiffs' motion to strike the animations before
Plaintiffs saw them. (R. 28:5551; 29:5702-03). That same day, CTA advised
Plaintiffs it intended to seek reconsideration, and offered to show the animations to
Plaintiffs at the exhibit exchange, but Plaintiffs refused to view them. (R. 38:7517).
36
understand that testimony.
2.
CTA's Opposition To The Discovery Of Manufacturing
Plant Videos Was Not A Basis To Exclude The Animations
In deciding to exclude the animations, the court expressed concern that CTA
had opposed the production of two videos of a CTA plant. But when the court
ruled on the videos, it specifically recognized there was nothing on the videos that
was relevant to this case. The videos did not show the bead-making process, firststage tire building, second-stage tire building, or the actual curing of a tire inside
the curing press. Each of these processes was relevant to CTA's defense that the
processes could not occur if bead wires were sticking out.
C.
Plaintiffs Cannot Establish That The Exclusion Of The
Animations Was Harmless Error
To find that there was a manufacturing defect, the jury had to accept
Plaintiffs' contention that bead wires were cured outside the tire during the
manufacturing process. But the jurors, who obviously were unfamiliar with the
tire manufacturing process, were not allowed to "see" the process so they might
better understand CTA's defense that this could not have happened.
As Plaintiffs' counsel stated in making an argument as to the admissibility of
other demonstrative aids, "[w]e all know a picture is worth a thousand words."
(T. 10:1686). This is particularly true where the "words" used by witnesses
included extremely technical jargon unfamiliar to the jurors (e.g., "extruder dies,
baffles, pressure wheels, [and] crimpers." (T. 14:2328). With animations or still
37
"frames," these foreign terms could have been translated into a visual format that
would have greatly assisted the jurors in comprehending this case and CTA's
primary defense. Plaintiffs cannot demonstrate it was more likely than not that the
error excluding this evidence did not affect the verdict. Special, 79 So. 3d at 771.14
IV.
CTA IS ENTITLED TO A NEW TRIAL BASED ON THE IMPROPER
AND MISLEADING MANNER IN WHICH PLAINTIFFS USED THE
TESTIMONY OF CTA'S WITHDRAWN EXPERT, EAGAR
The court ruled that Plaintiffs could read the deposition of CTA's withdrawn
expert and refer to his testimony, but they could not indicate that the expert had
been originally retained by CTA. Although extensively argued below,15 the Court
need not decide whether, as a matter of law, a withdrawn expert's testimony should
be precluded, because, under the facts of this case, the reading of Eagar's
deposition and references to his testimony were improper.
First, Plaintiffs should have been precluded from using Eagar's testimony by
virtue of the order they obtained on experts. Second, independent of the order and
of Eagar's status as a withdrawn expert, Plaintiffs used Eagar's testimony in ways
that violated Florida law and the court's ruling. By Plaintiffs’ own admission, this
testimony "infected the entire case." (T. 7:1185). A new trial is required.
14
Once again, even under the test prior to Special, the error was harmful because it
is apparent that the result would have been different but for the error.
15
See, e.g., R. 49:9725-37, 9765-71; Peterson v. Willie, 81 F.3d 1033, 1037-38
(11th Cir. 1996) (ordinarily party should not be permitted to present testimony of
expert originally retained by the opposing party when other experts are available).
38
A.
Having Successfully Obtained An Order Precluding References
To Withdrawn Experts, Plaintiffs Were Bound By That Order
As a threshold issue, fundamental principles of fairness dictate that "a party
who assumed a certain position in a legal proceeding may not thereafter assume a
contrary position, especially if it is prejudicial to the party who acquiesced in the
former position." McCurdy v. Collis, 508 So. 2d 380, 384 (Fla. 1st DCA 1987); see
also; D.P.P. v. C.P., 39 Fla. L. Weekly D1073 (Fla. 5th DCA May 21, 2014)
("[E]stoppel . . . prevents a party who sought and benefited from an order from
questioning its validity."); MacKay v. Fla. Power & Light Co., 524 So. 2d 1068,
1070 (Fla. 4th DCA 1988) (defendant estopped from denying plaintiff's right to
additional interest where defendant initially directed clerk not to disburse money).
But that is precisely what Plaintiffs did here. They moved in limine to
preclude references to withdrawn experts, arguing that such testimony was
irrelevant and highly prejudicial. CTA agreed to the order on that motion as long as
it was reciprocal. CTA then relied on that order when it made the decision to
withdraw Eagar as an expert. (R. 49:9726). After protecting themselves against
CTA commenting on an expert Plaintiffs had withdrawn, they should not have
been permitted to later take the inconsistent position that they were not bound by
the order in limine. They waived any right to refer to CTA's withdrawn expert.16
16
Plaintiffs argued below that their motion was prompted by an expert who could
not testify for medical reasons and, thus, it was irrelevant to the issue of CTA's
39
B.
Irrespective Of His Status As A Withdrawn Expert, The Manner
In Which Plaintiffs Used Eagar's Testimony Violated Florida Law
Pretrial, CTA also argued that any use of Eagar's testimony would amount to
bolstering and cumulative testimony. See, e.g., Milburn v. State, 742 So. 2d 362,
364 (Fla. 2d DCA 1999) (discussing potential for improper bolstering and
presentation of cumulative evidence). The court overruled CTA's objections. As
CTA had predicted, Plaintiffs improperly used Eagar to bolster their own experts'
opinions, adding one more expert for the jury to count against CTA. They also
implied that he was formerly CTA's expert in violation of the court's ruling.
1.
Plaintiffs Impermissibly Used Eagar's Testimony To Bolster
The Opinions Of Their Experts.
It is well settled that it is improper to "bolster" the testimony of an expert by
allowing him to testify that another expert reached the same conclusion. Tolbert v.
State, 114 So. 3d 291, 295 (Fla. 4th DCA 2013); see also Miller v. State, 127
So. 3d 580, 586 (Fla. 4th DCA 2012) (concluding harmful error occurred where
handwriting examiner testified a second, non-testifying examiner came to same
conclusion); Harvin v. State, 886 So. 2d 1041, 1042 (Fla. 1st DCA 2004) (same);
Schwarz v. State, 695 So. 2d 452, 455 (Fla. 4th DCA 1997) (experts may not
bolster testimony by testifying other experts agree with their opinions), approved
withdrawn expert. (R. 40:7976-77). But their motion was generic and not directed
to a specific expert. (R. 16:3064). And the fact remains that the agreed upon order
covered any withdrawn expert and, thus, the order should have been followed.
40
by Linn v. Fossum, 946 So. 2d 1032, 1041 (Fla. 2006) (prohibiting testimony that
expert relied upon medical providers not involved in the treatment of a patient).
The rationale for this rule is that the opposing party cannot cross-examine
and impeach the hearsay, and the probative value of the testimony is substantially
outweighed by the danger of unfair prejudice, confusion of issues or misleading of
the jury. See § 90.403, Fla. Stat.; Dufour v. State, 69 So. 3d 235, 255 (Fla. 2011)
(citing Schwarz, 695 So. 2d at 455). The rule is consistent with the established law
precluding experts from bolstering by testimony that a learned treatise supports
their opinion. See § 90.706, Fla. Stat.; S.E. v. D.W., 946 So. 2d 620, 622 (Fla. 2d
DCA 2007) (reversing where expert bolstered opinion by testifying regarding
contents of journal articles); Liberatore v. Kaufman, 835 So. 2d 404, 407 (Fla. 4th
DCA 2003) (same, where two experts' opinions "were clearly supported and
reinforced with" an authoritative publication).
Here, Plaintiffs impermissibly bolstered their expert's testimony on two
critical issues – the ratchet marks and the wire push–through tests. Plaintiffs
repeatedly reminded the jury that the experts all agreed the marks seen on the tire
after the accident proved that the bead wire had been cured in the wrong location.
It began in opening, when Plaintiffs used McSwain's photographs, on which Eagar
had circled certain marks, to argue that "the only two materials scientists you are
going to hear from in this case are Dr. McSwain and Dr. Eagar, both of them
41
agreed that the marks … the ratchet marks, the triangular shaped rubber indicate
that the tire wires were molded in that … location." (T. 4:613). Plaintiffs reinforced
this theme in their direct examination of McSwain and Cottles, and on crossexamination of CTA's
corporate
representative
Boeschel.
(T. 6:1081-83;
11:1747-49; 17:2679-82). Plaintiffs also read Eagar's testimony on this subject,
which served to further emphasize this point. (T. 14:2269-71).
As to the wire push-through test results, in opening, Plaintiffs argued that
Eagar had conducted the push-through testing and "got the exact same results" as
McSwain. (T. 4:646). Then counsel used a PowerPoint during McSwain's
testimony to show that Eagar's test results were "essentially the same as what I
got ...." (T. 6:991-92; 986-94; see also T. 6:1017) ("you can't tell them apart.");
(T. 7:1155-57) (testifying that Eagar's test produced the same result, even when
higher rate of push was used). Plaintiffs also asked CTA's expert, Grant, to "agree
that Dr. McSwain and Dr. Eagar's test results are the same …." (T. 20:3249).
In closing, Plaintiffs discussed the experts' "agreement" as to both issues,
reminding the jury that: (1) Eagar agreed with McSwain as to the ratchet marks,
and (2) the two experts got the same test results. (T. 21:3404-05, 3415-18; 3483).
On this record, it is clear that the prohibition against bolstering was violated.
The jury was told to believe that McSwain and Cottles were correct because
another expert agreed with them. Plaintiffs' only response to CTA's bolstering
42
argument was that Eagar was CTA's former expert. (R. 52:10269). But that status
is precisely why it was improper. Ehrhardt, FLORIDA EVIDENCE § 702.5. (2014 ed.)
(collecting cases) ("[t[he fact that the expert was originally retained by the adverse
party is inadmissible to bolster the credibility of the expert.").
And, not to be ignored here, when Plaintiffs described Eagar, he was not just
any expert, he was Dr. Tom Eagar, the "professor from MIT," the "prominent
materials science expert and lecturer" with the "PhD degree like Dr. McSwain."
(T. 21:3415; see also T. 4:598; 6:996, 1018, 1081-82; 7:1155-56; 12:1898-99;
14:2268-69; 17:2681-82; 21:3415-16, 3483). This improper bolstering, alone, was
error requiring a new trial. See § 90.403, Fla. Stat.
2.
Eagar's Testimony Should Have Been Excluded Because It
Was Cumulative Of Plaintiffs' Other Experts' Testimony
CTA recognizes that a decision on cumulative testimony falls within a
court's discretion. Probkevitz v. Velda Farms, LLC, 22 So. 3d 609 (Fla. 3d DCA
2009); see also Gavin v Promo Brands USA, Inc., 578 So. 2d 518, 519 (Fla. 4th
DCA 1991) (no error in excluding cumulative testimony). But the exercise of this
discretion requires close scrutiny in the context of experts because there is a danger
that a litigant will prevail by "the sheer weight of successive expert testimony."
United States v. Walker, 910 F. Supp. 861, 863 (N.D.N.Y. 1995).17
17
Florida courts rely upon federal decisions applying Rule 403, after which section
90.403 is patterned. See McLean v. State, 934 So. 2d 1248, 1261 (Fla. 2006).
43
In other words, not only are "[m]ultiple expert witnesses expressing the
same opinions on a subject … a waste of time and needlessly cumulative," but
"[u]nnecessarily similar and cumulative expert testimony may create the risk that a
jury will resolve differences in expert opinion by 'counting heads' instead of giving
fair consideration to the quality and credibility of each expert's opinions." Sunstar,
Inc. v. Alberta Culver Co., No. 01C0736, 2004 WL 1899927, at *25 (N.D. Ill.,
Aug. 23, 2004); Royal Bahamian Ass'n, Inc. v. QBE Ins. Corp., No. 10–21511–
CIV, 2010 WL 4225947 *2 (S.D. Fla. Oct. 21, 2010); see also Goldstein v.
Centocor, No. 05-215, 2007 WL 61913, at *2 (S.D. Fla. Jan. 5, 2007) (precluding
testimony from multiple expert pulmonologists where "[t]he clear suggestion [was]
that defendant wants to tell the jury that 'not one, not two, but three pulmonologists
have told you ….'").
Here, each time that Plaintiffs asserted that Eagar, McSwain and Cottles
agreed as to the interpretation of the marks and/or the test results, they reminded
the jury that Plaintiffs had an extra expert, Dr. Eagar, to support their theory, while
CTA had only one expert – thus suggesting that the jury "count heads" and
conclude that Plaintiffs should win. The prejudice was compounded when the court
allowed Plaintiffs to show portions of Dr. Eagar's video deposition which
duplicated the opinions of McSwain and Cottles.
Under this circumstance, where Plaintiffs' counsel was able not only to tell
44
the jury that there were three experts on one side – Eagar, McSwain and Cottles –
who offered the same opinion, but to state explicitly that they "agreed" with each
other, the cumulative testimony was harmful error. Royal Bahamian, 2010 WL
4225947 at *2. See also § 90.403.
3.
Plaintiffs Impermissibly Implied That Eagar Had Been
CTA's Expert
As discussed supra, the court ruled that Plaintiffs could not refer to the fact
that Eagar had been CTA's expert. This position is well supported. In the seminal
case, Sun Charm Ranch, Inc. v. City of Orlando, 407 So. 2d 938 (Fla. 5th DCA
1982), the court followed the "better reasoned," majority approach, prohibiting a
party from eliciting evidence that its adversary had originally retained the expert
now testifying on its behalf. Id. at 941. As the court explained,
The relevancy of this evidence is the inference that the party who fails
to call an expert is covering up harmful evidence or concealing bad
facts. But there are many other reasons why an expert consulted
prior to trial may not be called: inadequate background and
qualifications; ability to testify in court not as good as another
available expert's; scheduling problems; fees too high; testimony
cumulative to another expert's. Further, expert opinion is not "fact." It
is supposed to help the fact-finder discern the truth of the matter in
controversy. Such opinions often vary and at trial, the experts may
absolutely contradict one another. So long as it is legitimate and
honest, each party should be free to seek out and produce at trial
the expert testimony most favorable to his case. We question the
fairness of a rule that would require a party to explain and
apologize to the jury for not having called an expert witness to
testify.
45
Id. at 940; Ehrhardt, FLORIDA EVIDENCE § 702.5.18
In response, Plaintiffs placed principal reliance on Broward County v. Cento,
611 So. 2d 1339 (Fla. 4th DCA 1993). Cento is distinguishable because, inter alia,
the withdrawn witness was independent medical examiner who, under Florida Rule
of Civil Procedure 1.360(c), could be called by either party. (R. 49:9728).
Additionally, unlike this case, Cento did not involve cumulative expert testimony
used to bolster the other side's own expert in violation of a pre-trial order.
Notwithstanding Plaintiffs' disagreement with the court's ruling, they were
required to follow it and they plainly did not. Instead, Plaintiffs capitalized on
every opportunity to slide this information in through the backdoor. For example,
in questioning McSwain as to why his bills were high, counsel "testified" that "Dr.
Eagar, an expert that … did a lot of work … was deposed on five or six different
days." (T. 7:1161). At least twenty percent of his work related to "Dr. Tom Eagar's
original opinions; Dr. Tom Eagar's additional work; Dr. Tom Eagar's new
opinions; Joe Grant deciding to take on some additional responsibilities about
responding to [McSwain]; additional work that Joe Grant did?" (T. 7:1161). Based
on these comments, the only conclusion the jury could have drawn was that Eagar
18
Accord Bogosian v. State Farm Mut. Auto. Ins. Co., 817 So. 2d 968 (Fla. 3d
DCA 2002); Milburn, 742 So. 2d at 364-65; Jacksonville Trans. Auth. v. ASC
Assocs., 559 So. 2d 330, 332-33 (Fla. 1st DCA 1990); see also Peterson, 81 F.3d at
1037-38.
46
was CTA's expert at some point, and that, once he was withdrawn, Grant was
tasked with supporting the defense.
This was reinforced when Plaintiffs were permitted to elicit testimony from
CTA's only expert, Joe Grant, that Grant had earlier "deferred to another person
with respect to his metallurgical opinions" and interpretation of the tire CT scan,
but that, after McSwain was deposed, Grant met with CTA's counsel and Grant
then became "the clean-up hitter" to rebut McSwain. (T. 20:3191-93). In closing,
Plaintiffs' counsel once again reminded the jury of this testimony. (T. 21:3418).
On this record, there is inference other than that Eagar had been CTA's expert.19
C.
Plaintiffs Cannot Establish That The Admission Of This Evidence
Was Harmless Error
"It is beyond dispute that expert opinion testimony has heightened-and at
times even perhaps undue-influence on the minds of the jurors." Fla. Dept. of
Transp. v. Armadillo Partners, Inc., 849 So. 2d 279, 291 (Fla. 2003) (Lewis, J.,
dissenting). "Indeed, it is difficult to conceive of evidence fraught with more
potential to mislead fact finders than legally erroneous expert testimony." Id. For
this reason, Florida courts are particularly vigilant when it comes to the
introduction and scope of expert testimony. See, e.g., Kruse v. State, 483 So. 2d
1383, 1386 (Fla. 4th DCA 1986) ("We are aware ... of the danger that the trier of
19
As discussed in Peterson, 81 F.3d at 1038 this danger is precisely why such
evidence should not be admitted in the first instance.
47
fact may place undue emphasis on evidence offered by an expert, simply because
of the special gloss placed on that evidence by reason of the witness' status as an
expert."); see also Flanagan v. State, 625 So. 2d 827, 828 (Fla. 1993) (noting that
"the jury will naturally assume that the scientific principles underlying the expert's
opinion are valid.").
In this "battle of the experts," there is no doubt this evidence tipped the
scales in Plaintiffs' favor. See Linn, 946 So. 2d at 1041 (improper admission of
expert testimony was harmful where competing expert opinions were focal point of
trial). Amplifying the prejudice were Plaintiffs' constant reminders of Eagar's
status as the eminently qualified "MIT" professor.
Plaintiffs conceded Eagar was a prominent feature of their case, stating
Eagar was a "very, very critical part of our case," was of "number one importance
to [Plaintiffs]," and had "infected the entire case." (T. 4:563-65; 7:1185; 13:2049).
The references to Eagar – particularly the improper bolstering – bookended the
trial. On this record, Plaintiffs cannot establish that it was more likely than not that
their introduction and use of Eagar's testimony did not influence the trier of fact
and thereby contribute to the verdict. Special, 79 So. 3d at 771.20
20
Even under the pre-Special standard, the result would have been different but for
the error since, by Plaintiffs' own admission, Eager's testimony was central to the
case.
48
CONCLUSION
Based on the foregoing, Appellant Continental Tire the Americas, LLC,
respectfully requests that the Court reverse and remand for a new trial on the
manufacturing defect claim and damages.
Respectfully submitted,
PETER D. WEBSTER
Florida Bar No. 185180
E-mail: [email protected]
CARLTON FIELDS
JORDEN BURT, P.A.
215 S. Monroe Street, Suite 500
Tallahassee, Florida 32301
Telephone: (850) 224-1585
Facsimile: (850) 222-0389
CARLTON FIELDS JORDEN BURT, P.A.
Suite 4200, Miami Tower
100 Southeast Second Street
Miami, Florida 33131
Telephone: (305) 530-0050
Facsimile: (305) 530-0055
By:
s/Wendy F. Lumish
WENDY F. LUMISH
Florida Bar No. 334332
Email: [email protected]
ALINA ALONSO RODRIGUEZ
Florida Bar No. 178985
Email: [email protected]
STEVEN M. BLICKENSDERFER
Florida Bar No. 092701
Email: [email protected]
Counsel for Appellant
49
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing Initial
Brief of Continental Tire The Americas was electronically filed through the eDCA
portal and served via e-mail on this 18th day of August, 2014 to: Don Fountain,
Esquire ([email protected]; [email protected]) and Julie S.
Littky-Rubin, Esquire ([email protected]), Clark, Fountain, La
Vista Prather, Keen & Littky-Rubin, 1919 North Flagler Drive, Second Floor,
West Palm Beach, Florida 33407; and Douglas E. Horelick, Esquire
([email protected]) and Carly M. Celmer, Esquire ([email protected]),
Thornton, Davis & Fein, P.A., Brickell Bayview Center, 80 Southwest 8th Street,
Suite 2900, Miami, Florida 33130.
By:
s/Wendy F. Lumish
WENDY F. LUMISH
CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that this brief complies with the font
requirements set forth in Florida Rule of Appellate Procedure 9.210 by using
Times New Roman 14-point font.
s/Wendy F. Lumish
WENDY F. LUMISH
29373731
50