Calhoun v. Honda Motor Co., Ltd.

• Decision Date: 28 June 1984
• Docket Number: No. 82-5512,82-5512
• Citation: 738 F.2d 126
• Parties: 15 Fed. R. Evid. Serv. 1624 Richard Lee CALHOUN, Plaintiff-Appellant, v. HONDA MOTOR COMPANY, LTD. and American Honda Motor Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 126

738 F.2d 126

15 Fed. R. Evid. Serv. 1624

Richard Lee CALHOUN, Plaintiff-Appellant, v. HONDA MOTOR COMPANY, LTD. and American Honda Motor Company,

Defendants-Appellees.

No. 82-5512.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 26, 1984.

Decided June 28, 1984.

Charles Chaney [Lead Counsel], argued, Paducah, Ky., Terry Wells, Smithland, Ky., for plaintiff-appellant.

Thomas B. Russell, Richard C. Roberts, [Lead], argued, Jonathan Freed, Boehl, Stopher, Graves & Deindoerfer, Paducah, Ky., for defendants-appellees.

Before KEITH and KRUPANSKY, Circuit Judges, and WEICK, Senior Circuit Judge.

KEITH, Circuit Judge.

This diversity case arises from injuries received by plaintiff's son who rear-ended a stopped truck while operating his Honda 750 CB Motorcycle. Plaintiff brought suit alleging that a brake defect in the motorcycle was the proximate cause of the collision. A jury awarded a verdict to the plaintiff which was superseded by the trial judge's grant of a judgment notwithstanding the verdict (JNOV). The trial judge concluded that plaintiff had failed to establish a prima-facie case under Kentucky's strict liability law. In the event this Court reversed the JNOV, the trial judge granted a new trial to plaintiff, based on the trial court's belief that it was error to allow into evidence a recall letter issued by Honda. For the reasons set forth below, the district court's grant of JNOV is affirmed.

I. Facts

On July 18, 1978 plaintiff, Richard Calhoun was driving his Honda 750 CB motorcycle to work when he collided with the rear of a stationary tractor trailer truck. There were no witnesses to the accident and as a result of his injuries Calhoun does not recall what happened. A Kentucky state policeman was called to the scene and he later testified that the motorcycle had left forty feet of skid marks on the pavement.

Plaintiff filed an action against Honda alleging strict liability for his injuries under Restatement (Second) of Torts Sec. 402A (1974). The alleged product defect was poor wet braking performance due to a design defect present in all 1977 Honda 750 CB motorcycles. In support of his allegation, plaintiff relied upon a recall letter issued by Honda five months prior to the accident. The letter stated that the performance of the rear brake pad was reduced by heavy rain conditions. Although it had not rained the day of the accident, plaintiff had visited a car wash approximately thirty minutes prior to the collision.

In the pretrial order, Honda challenged the admissibility of the recall letter. A hearing was held in chambers. Both parties had already briefed the court on this issue and the trial judge ruled that the letter could go into evidence. Plaintiff took a deposition of Honda's Vice President for Legal Affairs, Doug Somers. Somers stated that the recall was a result of customer complaints, but that Honda's testing was not duplicative of these complaints. Honda found that the efficiency of the brakes was reduced by heavy rain conditions, which resulted in a longer stopping distance. To correct this problem, grooves were cut into the brake pads which allowed the captured water between the disc and puck of the brake to escape as pressure was applied.

After placing the Somers deposition into evidence, plaintiff called his expert witness, Stanley Klein, to testify. The witness read the recall letter into evidence. He testified he had examined the motorcycle after the accident. In response to trial counsel's question as to what in his opinion was the cause of the accident, he stated:

A. [M]y opinion as to the cause of the accident was uncontrolled braking performance which caused the motorcycle's brakes to lock up and the driver, lose steering control, an unexpected property of the braking performance, I would characterize it.

Q. What is that performance related to in terms of this particular motorcycle?

A. It is related to the dynamics of the braking characteristics in terms of braking, the characteristics of the brakes as related to the brake pedal pressure. In this case, a characteristic which shows up when the brake surfaces or pad surfaces are wet, namely, ununiform braking pressure, a loss of braking effectiveness until the brakes dry out, and during that time, and it is an indeterminate time when the initial braking effectiveness requires increased pedal pressure, and after an indeterminate period of time the brakes suddenly regain their normal effectiveness, and unless there is a sudden compensation for that in the pedal pressure the brakes lock up causing the vehicle to go into a skid, and it is this unanticipated characteristic that causes the problem. The inability of the operator to determine just at what point to release the pressure or to gradually release the pressure so as to maintain a constant friction characteristic or braking characteristic, I should say, and uniform braking effectiveness. It is an erratic condition that exists when the brake pads are wet. (Trial transcript at 31, 32).

On cross-examination Klein was asked if he had an opinion as to whether the brakes were wet at the time of the accident. He replied:

A. I do.

Q. What is that based on?

A. It is based on the fact that they were washed with a high-pressure hose just a short distance or short time interval prior to the accident, and a mixture of soap and wax and water .... (Transcript at 21, 40).

Honda's experts, William Otto and C. Bruce Gambardella testified they conducted tests which simulated the events leading up to the accident. Using an identical make of motorcycle with rear brake pads taken from Calhoun's bike, they attached instruments to the motorcycle which measured the pressure the rider would apply to the brakes and the corresponding deceleration. Prior to testing the bike they took it to a car wash and applied water directly on the rear brake. After driving the motorcycle at forty-five miles an hour and applying the rear brake with varying intensity, Otto testified at trial:

1. I found no significant difference in the rear brake performance between the pre-wash and post-wash. (Transcript 50-17).

2. On the pre-wash test, at 400 PSI, the deceleration was 11 to 12 feet per second, per second; on the post wash test the deceleration was 10 to 11 feet per second, per second, which is within the accuracy of the test. (Transcript 87-12).

3. There were no control problems. (transcript 87-17).

The purpose of this test was not to gauge stopping distances, but rather to measure the rate of deceleration when the rear brake was applied and to determine, after the wash sequence, whether the brakes failed to catch.

Gambardella also testified that considering how plaintiff had operated the motorcycle prior to the accident, there was no way that the condition of "heavy rain" mentioned in the recall letter could have been present. "A little bit of water just won't do it." (Transcript at 38-9).

At the conclusion of all evidence, Honda made a motion for a directed verdict which was denied. The jury found for plaintiff and awarded him $1,250,000.

Nine months later, the district court granted Honda a judgment notwithstanding the verdict or a new trial if this court reversed the judgment notwithstanding the verdict. It is from this order that plaintiff appeals.

II. Judgment Notwithstanding the Verdict

Calhoun argues that the district court's grant of a judgment notwithstanding the verdict was erroneous because the jury's verdict was supported by substantial evidence. Regretfully, we disagree.

A judgment notwithstanding the verdict has long been recognized as the legal equivalent of a directed verdict and both are governed by the same standards. See Warkentien v. Vondracek, 633 F.2d 1, 7 (6th Cir.1980); Garrison v. Webb Co., 583 F.2d 258, 261 (6th Cir.1978). In a diversity case our Circuit looks to state law in determining whether there was sufficient evidence presented to withstand a motion for judgment notwithstanding the verdict or directed verdict. Garrison v. Webb, supra; O'Neill v. Kiledjian, 511 F.2d 511, 513 (6th Cir.1975); Chumbler v. McClure, 505 F.2d 489, 491 (6th Cir.1974). To determine the sufficiency of the evidence under the law of Kentucky, "the court must draw all fair and rational inferences from the evidence in favor of the party opposing the motion and a verdict should not be directed unless the evidence is insufficient to sustain the verdict." Spivey v. Sheeler, 514 S.W.2d 667, 673 (Ky.1974). See also Perry v. Ernest R. Hamilton Assocs., Inc., 485 S.W.2d 505 (Ky.1972).

A. The Evidence Did Not Support the Verdict Because Plaintiff Failed to Establish Causation.

The jury found Honda liable for Calhoun's injuries on the theory of strict liability in torts. Restatement (Second) of Torts Sec. 402A. ¹ In order to find a manufacturer liable for injury sustained by his product, the jury must have found that the product in question was defective and that this defect was the cause of plaintiff's injury.

Calhoun alleges that there was a defect in the rear brake of the motorcycle. Although Calhoun cannot remember what took place because of his injuries, he hypothesized that when he applied the brakes they did not perform properly. He claims this failure was the result of the brake pads becoming wet when he took his motorcycle to a car wash.

Plaintiff relied upon a recall letter sent by Honda to all owners of Honda 750 CB motorcycles as proof of a braking defect. The letter stated:

Honda Motor Co., Ltd., has determined that a defect which related to motor vehicle safety exists in the rear brake pads of certain Honda motorcycles.

When the rear disc brake is applied during operation in heavy rain, there may be noticeable initial reduction in effectiveness of the brake followed by gradual recovery to normal, dry condition effectiveness. If pedal force is not increased to compensate for the reduced initial effectiveness, a longer stopping distance will result. If...