Jones v. Goodyear Tire & Rubber Co.

• Decision Date: 12 November 2003
• Docket Number: No. 3D01-3583.,3D01-3583.
• Citation: 871 So.2d 899
• Parties: Ronnie JONES and Sylvia Jones, Appellants, v. GOODYEAR TIRE & RUBBER COMPANY, Appellee.
• Court: Florida District Court of Appeals

871 So.2d 899

Ronnie JONES and Sylvia Jones, Appellants, v. GOODYEAR TIRE & RUBBER COMPANY, Appellee.

No. 3D01-3583.

District Court of Appeal of Florida, Third District.

November 12, 2003.

Rehearing Denied May 12, 2004.

Wetherington, Klein & Hubbart and Phillip A. Hubbart; Lauri Waldman Ross, for appellants.

Thornton, Davis & Fein, P.A., and Frederick J. Fein, and Kathleen M. O'Connor, for appellee.

Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.

GREEN, J.

Ronnie Jones and his wife Sylvia, plaintiffs below, appeal a post-trial entry of a directed verdict for the defense and/or order for new trial as well as a pre-trial confidentiality order in their personal injury action against Goodyear Tire and Rubber Company ("Goodyear"). For the reasons that follow, we reverse and remand for a reinstatement of the jury's verdict and vacate the confidentiality order.

Facts

Jones, a tire mechanic for the Dade County Public Schools ("DCPS"), received on-the-job training from his co-worker, Patrick Redding. Jones and Redding repaired the tires on DCPS vehicles, and made road service calls when necessary. Their jobs required them to completely service tires, including rebuilding them if necessary.

On October 18, 1994, Jones and Redding transported a school bus for repair to a northeast facility. Jones noticed that one of the bus' interior tires was low on air.¹ Jones, using a hydraulic jack, lifted the bus from the ground and checked the tire for a "hollow" sound, which would have indicated that the tire was flat. The tire did not sound hollow, nor did it have any nails or objects protruding from it. In addition, the tire contained approximately forty to fifty pounds of air pressure. Given these facts, both men assumed that the tire had a valve stem leak. These leaks are usually checked by filling the tire with air. Jones began filling the tire, which was still mounted on the bus, when suddenly the tire exploded. Jones was thrown back against a gate, and knocked unconscious. He sustained serious injuries, requiring four separate surgeries, including two surgical fusions of the spine. Jones sustained a 16% whole body impairment, severe brain damage and "intractable depression." He was also deemed unemployable.

Jones instituted this action against Goodyear, seeking personal injury damages for negligence in design, testing and/or failure to test, and failure to warn; and strict liability for a design defect in the tire.² Goodyear answered with a general denial and various affirmative defenses. Its answer was subsequently amended to add possible Fabre³ defendants, including Jones' employer, DCPS.

On the first day of trial, Goodyear filed two motions in limine. The one relevant to this appeal sought a Frye hearing to exclude the opinion testimony of Jones' only tire expert, Richard Baumgardner, on grounds that there was no underlying support for Baumgardner's testimony and consequently the testimony would be nothing but pure speculation.⁴ The court denied the motion and permitted Baumgardner to testify.

Baumgardner, a tire engineer with 43 years of designing, inspecting, and testing experience, opined that there was a design defect in the Goodyear tire which caused "zipper failure."⁵ He stated that the "flaw" in the Goodyear tire design was that there was too much of a difference between the thickness of the center portion of the sidewall of the tire and the areas above and below it. Baumgardner opined that the solution to the "zipper failure" problem was to either increase the thickness of the rubber at the "flex point" or to thin out other areas of the sidewall rubber to create a wider flex area.

Goodyear's expert, Charles Gold, on the other hand, opined that the applicable tire was not defectively designed and that no tire has been created which would not "zipper." He stated that zipper failure occurs when a tire has been under-inflated or flat for a significant period of time. It was Gold's opinion that Jones' injuries were caused by using unsafe procedures to reinflate a damaged tire.

At the close of Jones' case, and at the close of all the evidence, the trial court "reserved" ruling on a defense motion for directed verdict, although no such motion had been presented to the court. The case was thereafter submitted to the jury on a special interrogatory verdict. The jury found Goodyear liable for strict liability and negligence, and awarded Jones $1,800,000 in damages.⁶ The jury found no fault on Jones' part, but attributed 80% fault to Goodyear and 20% to DCPS.

Goodyear filed a post-trial motion for directed verdict and new trial. The motion for directed verdict asserted that Jones did not present sufficient evidence of Goodyear's negligence and strict liability because Baumgardner's opinions were unsupported, speculative and inadmissible. In addition, Goodyear claimed that there was no evidence to support a finding of its negligent failure to warn. At the hearing on the post-trial motions, Goodyear renewed its motion in limine, seeking to exclude Baumgardner's testimony on the ground that it was inadmissible under Frye. Goodyear contended that Baumgardner had offered opinions which involved "new and novel scientific evidence," because the redesigning of a tire involves the scientific principles of engineering, physics and chemistry. The trial court granted Goodyear's motion for directed verdict specifically finding that:

a. The testimony of Plaintiffs' expert witness [H. Richard] Baumgardner, was incompetent, speculative and inadmissible pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923) and Florida Statute 90.702 and therefore Plaintiffs' proof of their negligence and strict liability claims, Counts I and II of the complaint, was legally insufficient b. There was a lack of evidence submitted at trial upon which the jury could lawfully find that Goodyear failed to warn; and

c. There was a lack of evidence submitted at trial upon which the jury could lawfully find that the subject tire was defective in any way.

Moreover, the trial court's order also granted Goodyear's motion for new trial on grounds that:

b. The verdict was against the manifest weight of the evidence and was motivated more by the jurors' sympathies than by the testimony and the evidence presented at trial.

c. There was a lack of evidence presented at trial to warrant a jury instruction on negligent failure to warn; and

d. Goodyear was prejudiced in that it was not permitted to call Mr. Edward Martino as a witness at trial.

This appeal followed. For the following reasons, we reverse.

Law

The Directed Verdict

It is well-settled that in determining a motion for directed verdict, all evidence and reasonable inferences must be viewed in the light most favorable to the non-moving party. Woods v. Winn Dixie Stores, Inc., 621 So.2d 710, 711 (Fla. 3d DCA 1993). If there are conflicts in the evidence or in inferences drawn from it, the issue is a factual one for the jury, not a legal matter to be resolved by the court. Blake v. Hi-Lu Corp., 781 So.2d 1122, 1124 (Fla. 3d DCA 2001).

In his complaint Jones alleged causes of action for both negligence and strict liability. The negligence count was premised on two different theories: 1) failure to warn, and 2) negligent design. The strict liability count, on the other hand, alleged that Goodyear placed a product into the marketplace which was unreasonably dangerous to the user. The jury found in Jones' favor on both counts. Thus, there must be insufficient evidence on both counts to support a directed verdict. See Teichner & Mella, P.A. v. Butler, 600 So.2d 507, 508 (Fla. 3d DCA 1992).

Under Florida law expert opinions involving "new or novel scientific techniques" must meet the test set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). See Spann v. State, 857 So.2d 845, 852 (Fla. 2003). This test requires the scientific principle or discovery underlying an expert's opinion to be "sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye, 293 F. at 1014. See also Hadden v. State, 690 So.2d 573, 576 (Fla.1997) (stating that the Frye test requires the scientific principles undergirding an expert's opinion be found by the trial court to be generally accepted by the relevant members of its particular field). By definition, however, the Frye test is only applicable to cases where an expert's opinion is based upon new and/or novel scientific evidence. See U.S. Sugar Corp. v. Henson, 823 So.2d 104, 109 (Fla.2002); Brim v. State, 695 So.2d 268, 271-72 (Fla. 1997). "Therefore, in the vast majority of cases, no Frye inquiry will be required— because no innovative scientific theories will be at issue." Henson, 823 So.2d at 109; see also Spann, supra, 857 So.2d at 852.

Expert opinion that is based on an expert's own experience or training, however, is deemed "pure opinion." Holy Cross Hosp., Inc. v. Marrone, 816 So.2d 1113, 1117 (Fla. 4th DCA 2001)("`Pure opinion' refers to expert opinion developed from inductive reasoning based on the experts' own experience, observation, or research, whereas the Frye test applies when an expert witness reaches a conclusion by deduction, from applying new and novel scientific principle, formula, or procedure developed by others."). An expert's pure opinion testimony does not have to pass the Frye test because the testimony is based on the expert's personal opinion. Rickgauer v. Sarkar, 804 So.2d 502, 504 (Fla. 5th DCA 2001).

In this case, Baumgardner's testimony made no reference to a "new or novel scientific principle or discovery." Instead, Baumgardner personally inspected the tire at issue and opined that based upon his 27 years' experience in designing and testing tires with Firestone Tire and Rubber Company and 16 additional years as a consultant in tire failure, he believed that the tire in question exploded because of a design defect which led to "zipper failure," and that this "defect"...