Sperberg v. Goodyear Tire & Rubber Co.

Citation519 F.2d 708
Decision Date03 July 1975
Docket NumberNo. 74-2063,74-2063
PartiesLawrence R. SPERBERG, Plaintiff-Appellant, v. GOODYEAR TIRE & RUBBER CO., Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Paul A. Weick, Weick & Genovese, Akron, Ohio, Thomas M. Marshall, New York City, for plaintiff-appellant.

Leslie W. Jacobs, Thompson, Hine & Flory, Cleveland, Ohio, Ford W. Brunner, Akron, Ohio, Hugh A. Chapin, New York City, Leo J. Biegenzahn, Los Angeles, Cal., for defendant-appellee.

Before PECK, McCREE and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

In this action the plaintiff sought damages for the defendant's alleged infringement of two method or process patents. One of the patents claimed discovery or invention of "a worthwhile non-destructive method or process of performing tire tests to determine useful tire life," while the other claimed discovery or invention of "a worthwhile non-destructive method or process of performing tire tests to determine wear susceptibility of tires." The plaintiff had originally filed suit as a class action alleging infringement by a large number of tire manufacturers. After the district court refused to certify the class action, the plaintiff filed separate actions against the five largest tire companies in the country. One of these companies, Uniroyal, was dismissed for lack of venue.

The plaintiff and the defendants in the four pending cases in the district court then entered into a stipulation by which it was agreed that the case against Goodyear would be tried first to a jury and that the plaintiff and each of the four defendants the Goodyear Tire and Rubber Company, the Firestone Tire and Rubber Company, the General Tire and Rubber Company and B. F. Goodrich Company would be bound by the judgment in the Goodyear case on the issue of validity or enforceability of the patents. Firestone also agreed to be bound by the judgment in the Goodyear case on the issue of infringement, but the other two defendants would be entitled to separate trials on this issue. Thereafter, Goodyear moved the court to enter an order "restraining the parties and their counsel from making reference to the pendency of other related cases and from informing the jury of the content, substance or spirit . . . " of the stipulation previously entered into. Goodyear filed a brief with its motion, pointing out that the trial court has broad discretion in the admission or rejection of evidence which might be prejudicial. Goodyear argued that the defendants in the other cases would not be represented at the Goodyear trial and that they might easily be prejudiced by references to the plaintiff's pending cases against them.

The court held a hearing on the motion at which plaintiff's counsel made the following argument:

Now, I think the jury is entitled to know the circumstances which pertain to this particular case. I think to put the jury into isolation and say you can only know that there is Goodyear here when, in fact, Goodyear, as well as Firestone, are completely bound by this trial, as well as General and Goodrich with respect to the interwoven issue of validity. I think it is important that the jury know what they are actually trying and not live in a vacuum created without that kind of knowledge that any other member of the public knows.

We have gone through the entire discovery in this case. It is a consolidated case. We have all dealt with it with all defendants being real and present, and I think it is wholly illusory to put the matter to the jury on just the matter of Goodyear's presence.

I have serious question whether the plaintiffs would get a fair trial under those circumstances.

THE COURT: Well, as I say, my inclination is to grant the motion, and in the event that you fail to convince me to the contrary by some authority, your exceptions will be noted, Mr. Marshall.

The plaintiff did not submit any authorities to the court on the subject or advise the court of any bases for his objection other than the statement quoted above.

So far as the record shows, the order in question was invoked only twice during the trial. During the opening statement by counsel for Goodyear, the court, without an objection or motion by the parties, cautioned attorneys not to refer to any other tire companies. Shortly thereafter counsel for Goodyear requested a clarification of the scope of the order "vis-a-vis the mentioning of other rubber companies." He pointed out that the primary witness for Goodyear, Mr. Robert Dunlop, had worked for Goodrich for nine years and that items of prior art had been developed by people from various other tire companies. The court then ruled that such evidence would be admissible "without referring directly, indirectly, or inferring that there is other outstanding litigation concerning this same patent as against those companies.

That is the scope of the order."

On appeal, Sperberg refers to the order as a "gag rule" and asserts that the application of this order by the district court denied him a fair trial. Specifically it is claimed that because of this rule, Sperberg was unable to get before the jury the substantial basis for a finding that the witness Dunlop was biased in favor of Goodyear. Dunlop was presented as an expert witness, and it was shown upon direct examination that he had worked for B. F. Goodrich for nearly ten years and for General Tire for approximately two years. He testified that after leaving General Tire he became an independent consulting engineer, specializing in tire development and manufacturing problems and that since 1955 he had operated Smithers Laboratories, an independent testing organization. He stated that he had testified in court 50 or 60 times, mostly in product liability cases, both for and against tire companies, and that he had appeared as a witness in one other patent case. He testified as an expert that he could find no correlation between the durability or wear susceptibility of tires and the presence of "force variation," which was diametrically opposed to the major thesis of Sperberg's two patents involved in the case. This was undoubtedly the most persuasive testimony in the case in support of Goodyear's claim that neither patent was valid.

Cross-examination of Dunlop fills approximately 200 pages of the transcript. It was brought out that he had testified on behalf of Goodyear in some of his previous court appearances and that he had appeared for Firestone in the patent case mentioned in his testimony on direct examination. The witness then testified that the gross receipts of Smithers Laboratories were approximately $1,000,000 per year and that he was the owner of 45 to 50 percent of the company. He further estimated that Smithers did $15,000 to $20,000 per year of business with Goodyear and that 35 percent of all of its business was done with tire companies in this country. In his reply brief, Sperberg concedes that the witness Dunlop could have been questioned further about his relationships with various other companies in the American tire industry, but claims this would have been meaningless to the jury without knowledge that three other tire companies were vitally interested in the outcome of this litigation. It is claimed that plaintiff was denied his right to let the jury know the identity of the real parties in interest and his related right to develop the bias of Dunlop as the primary witness for the defense, since the rule in question made effective cross-examination of Dunlop impossible. At no time was this basis for the plaintiff's objection to the order stated to the trial judge.

The Sixth Amendment guarantee of the right to confrontation of witnesses requires an opportunity for cross-examination of all prosecution witnesses in criminal cases. The chief purpose of such cross-examination is frequently to show bias or unreliability. In Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), the Supreme Court held that it was an abuse of discretion to limit cross-examination by an order in limine that prevented an inquiry designed to show that testimony of a witness was either untrue or biased. More recently the Supreme Court has held that the partiality or bias of a witness is always relevant and that a court may not restrict cross-examination whose purpose is to show the reason for bias or lack of credibility of a witness. The Court found that the partial cross-examination which had been permitted on the subject of bias was not sufficient since the cross-examining party is entitled to a meaningful inquiry which will disclose to the jury all possible facts upon which the jury may legitimately draw to reach an inference of bias or unreliability. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

In Majestic v. Louisville and Nashville Railroad Company, 147 F.2d 621, 627 (6th Cir. 1945), this court held that all facts and circumstances which tend to show bias or interest in litigation by a witness may properly be developed on cross-examination. In this civil case the court referred to the "undoubted right of a party to cross examine witnesses to show their interest or bias." Id. at 627. In Thurber Corp. v. Fairchild Motor Co., 269 F.2d 841 (5th Cir. 1959), the court by order kept from the jury in a patent case the fact that a third party had entered into an agreement with one of the defendants by which the third party would assist in the defense and share the expense of the law suit. Objection was made to the order excluding this information from the jury, and it was held that the objection made at the time of entry of the order was sufficient to preserve the issue for appellate review. Subsequently, the defendant introduced two witnesses, one of whom was a consultant to the undisclosed interested party and the other an employee of that party. The court of appeals reversed for a new trial, holding that the effect of exclusion of information of possible bias...

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