THE FACTS

While in the process of repairing a flat tire on a livestock trailer, Leonard Richards selected a used 16-inch Michelin tire as a replacement. Because the old rim also needed replacement, Leonard retrieved what he thought was a 16-inch rim from a storage shed. As Leonard attempted to mount the tire on the rim, the bead area of the tire would not fully seat in an area about five inches along the circumference of the rim.

Leonard and a coworker dismounted the tire, remounted it, and attempted to inflate it with seventy to seventy-five pounds of air, but the bead still would not fully seat against the rim. As Leonard and his coworker were standing beside the tire trying to figure out what the problem was, the tire violently exploded and struck Leonard in the head. As a result, Leonard suffered severe facial, head, and brain injuries and is presently in a vegetative state.

THE DEFECT

The facts of this accident are characteristic of what has become known as a tire/rim "mismatch". The problem typically arises in circumstances identical to those in Leonard Richards' case—a tire mounted mistakenly attempts to mount a 16-inch tire on what he thinks is a 16 inch rim when, in fact, the rim turns out to be a 16.5-inch rim.

Mismatch accidents occur even to people who have some degree of training and proficiency in mounting tires on rims. The reason for this is that many tire rims are not clearly marked regarding their size. Typically, size markings are obscured either through their positioning on the rim or through the obscure nature of the numbering on the rim. Furthermore, the 16-inch or 16.5-inch measurement can only be truly determined with a special device known as a "ball tape". Ball tapes have to be obtained from the Tire and Rim Association. To make matters worse, a separate ball tape must be used for each rim size. It is well known in the industry that most tire changers do not have ball tapes and probably do not even know about their existence.

Furthermore, when one uses a standard tape measure and stretches it across both a 16-inch rim and a 16.5inch rim to obtain a measure of their maximum outside diameters, the 16-inch rim actually has a larger diameter than the 16.5-inch rim. Moreover, when the two rims are simply stacked on top of one another, the 16-inch rim is actually larger than the 16.5-inch rim.

The potential for mismatch explosions began in the late 1960's when 16.5-inch rims were first marketed for use on light trucks such as pickups and vans. The minutes of the Tire and Rim Association (an organization made up of tire and rim manufacturers) reflect that instances of mismatch were reported as early as 1972. By the mid 1970's, numerous tire and rim manufacturers knew that mismatches were occurring and causing catastrophic injuries.

The Rubber Manufacturers' Association, in conjunction with an annual industry trade manual known as The Tire Guide, began publishing warnings about the mismatch hazard in the mid-1970's. These warnings were sent to tire dealerships and automobile manufacturing plants where tires and rims were assembled. The industry determined that even people in these specialized facilities needed warnings despite the fact that they had received at least some training concerning the proper mounting of tries. The people in these specialized facilities were relatively sophisticated compared to the average farmhand and service station attendant, like Leonard Richards.

Despite the efforts to warn, The Tire Guide seldom found its way into the hands of farm workers and service station mechanics. The industry did not begin to put mismatch warnings on tires and rims until approximately 1980-1982.

Kelsey-Hayes, a major rim manufacturer, began putting a warning on its rims in response to a specific request from General Motors, for whom Kelsey Hayes supplied rims for new vehicles. At the same time, Ford Motor Company requested all major tire manufacturers who supplied tires for new Ford vehicles to provide a warning of the mismatch hazard on the sidewalls of all of their 16inch tires.

Nearly all of the major manufacturers with whom Ford dealt, except Michelin, complied with the request by affixing various warnings about the mismatch hazard on the sidewalls of their 16-inch tires. Although the verbiage varied among the manufacturers, and some of the statements left much to be desired, most manufacturers at least made some effort to warm.

Michelin, on the other hand, argued that warnings were not necessary and vociferously resisted Ford's efforts. Michelin eventually agreed to at least put the following statement on the sidewalls of its tires: MOUNT ONLY ON APPROVED 16-lNCH RIMS.. While Michelin referred to this statement as a warning. in correspondence with Ford, Michelin confessed that this language did not constitute a bona fide "warning" under the accepted definition of the term. Michelin's corporate representatives admitted that at best the statement constituted an instruction.

By the time most tire and rim manufacturers began warning about the mismatch hazard, millions of 16.5-inch rims had been manufactured and sold with no warning of the hazard. Many of these rims were sold before the industry received actual notice of the hazard, but all manufacturers were capable, with proper thought, analysis, and testing, of foreseeing the hazard before the tires and rims were sold. Since a 16.5-inch rim has a useful life of 20 to 40 years, the only practical method of warning users of the hazard is to affix a warning on the sidewalls of new tires which are subsequently mounted on old rims.

In addition to placing warnings on the tires, by 1985, most of the major tire manufacturers, except Michelin, had increased the strength of the bead wire assembly which actually goes in the tire. Goodyear and General Tire developed bead wires which prevented their 16-inch tires from exploding when mismounted on 16.5-inch rims, at least when aired up to the capacity of the average air compressor ( 120 to 150 psi). Various tests conducted by The University of Michigan's Transportation Research Institute (''UMTRI") have shown that the bead wires on Goodyear and General tires will not typically explode in a mismatch until the pressure exceeds 200 psi. Interestingly, even though they had increased the strength in the bead wires, Goodyear and General still placed warnings regarding the mismatch hazard on the sidewalls of their tires.

The UMTRI tests further disclosed that, as of 1989, Michelin and Firestone had the weakest bead wires in the industry. The average failure pressure for the Michelin 1 6-inch tire in a mismatch situation was 80 psi - much lower than tires manufactured by other major tire manufacturers.

Perhaps the most incredible aspect about Michelin's conduct was that, despite having knowledge of the mismatch potential, Michelin never tested its tires to determine at what pressure the bead wire would fail in a mismatch scenario. Moreover, Michelin never built any prototypes of a tire with a stronger bead wire to determine whether it could prevent these explosions from occurring in the event of a mismatch.

As of February, 1992, Michelin was still manufacturing its 16inch tires without any warning on the sidewalls, without any warning in the owner's manuals or warranty booklets, and without a bead wire strong enough to minimize or eliminate the hazard.

THE LITIGATION

Leonard Richards' initial theories of recovery consisted of negligent/wanton design and failure to warn, plus defectiveness and failure to warn under the AEMLD. Michelin's answer contained general denials and allegations of contributory negligence, intervening and superseding negligence by plaintiff's employer, and misuse of the product.

As discovery proceeded, Michelin aggressively generated evidence in development of its defense. First, Michelin sought to establish that the plaintiff was himself negligent by selecting the wrong sized rim, by overinflating the tire while attempting to get the bead to seat properly, and by failing to utilize safety devices such as a mounting "cage".

The second prong of Michelin's defense focused on the conduct of the plaintiff's employer. Michelin contended that the employers committed acts of intervening, superseding negligence by failing to provide a training program to its employees regarding the proper methods for mounting tires on rims, by failing to assure that its employees did not mount tires on rims before first receiving proper training and instruction, by failing to provide appropriate safety devices and insisting on their use, and by failing to promulgate and enforce rules regarding a safe manner for mounting tires on rims.

The third prong of Michelin's defense alleged product misuse, (i.e., that the 16inch tire was not intended to be mounted on a 16.5-inch rim).

Shortly before triaL after settlement agreements were reached with Budd and Ford, Michelin adopted two additional theories of defense. Since Budd was out of the case, Michelin began pointing its finger at Budd, arguing that Budd's rim was defective because it contained inadequate warnings regarding tire/rim mismatches.

Michelin also argued that plaintiff's negligence, wantonness, and AEMID claims were preempted by regulations promulgated under the Federal Motor Vehicle Safety Act. Specifically, Michelin asserted that plaintiff's failure to warn claims were preempted by federal regulations which prescribe the minimum requisite sidewall labeling requirements.

Plaintiff was also deluged with over twenty motions in limine and other pretrial motions directed towards restricting all of the evidence demonstrating Michelin's knowledge of mismatch accidents, the need to place warnings on its tires (particularly its communications with Ford regarding the need for a warning), the results of the UMTRI studies, and video tapes demonstrating the force created by a tire/rim mismatch explosion.

Michelin also asserted other interesting defense tactics. For example, Michelin argued plaintiff could not prove proximate cause because there was no evidence that Mr. Richards would have read and heeded an adequate warning. Michelin argued that Mr. Richards should recover nothing for pain and suffering since he was in a chronic vegetative state. Michelin also argued that several OSHA regulations concerning the standard of care to be followed when conducting service operations on rims were admissible on the issue of the employer's alleged intervening, superseding negligence, despite the fact that the employer was a farm operation (which is exempt from OSHA coverage).

On the plaintiff's side of the ledger, pre-trial motions were essentially limited to responding to the asserted defense of preemption by the FMVSS, filing a motion to declare the collateral source rule abrogation statutes, Ala. Code ~ ~5-520-22, 12~2 i -45, unconstitutional, and filing a motion to suppress the results of secret tests which had been conducted by Michelin in preparation for the litigation.

The results of the secret tests generated a flurry of exchanges of motions, briefs and arguments immediately before trial. Plaintiff's counsel had filed interrogatories and requests for production early in the litigation which sought information regarding any testing conducted by Michelin concerning the beadwires' strength in mismounting situations. Throughout the litigation, plaintiff filed motions to compel and supplemented the formal discovery - requests with informal efforts at discerning the extent of Michelin's knowledge regarding testing of tires.

When plaintiff fortuitously re-noticed the deposition of one of Michelin's designated expert witnesses, several hundred pages of raw data concerning tire testing were served upon plaintiff's counsel two weeks before trial. The data revealed that Michelin had conducted numerous tests on Goodyear and General tires since March, 1991 in an effort to discredit the stronger bead design employed by Goodyear and General. Ultimately, the district court determined that Michelin had violated the rules of discovery, and sanctioned Michelin for its conduct in concealing the test results.

After all the pre-trial maneuvering and posturing, the case took two weeks to try before Judge Virgil Pittman in Mobile. While plaintiff named an engineering expert to testify that a stronger bead wire could have and should have been utilized, plaintiff opted to prove this theory of his case through Michelin's corporate trial representative and numerous exhibits. The warning theory was proven through plaintiff's warning expert, the depositions of numerous Ford and Michelin employees, and articles authored by Michelin's warnings expert. At the conclusion of the evidence, the plaintiff struck his AEMLD count and went to the jury strictly on negligence and wantonness theories.

After a full day of deliberation, the jury returned a verdict assessing $5 million in punitive damages against Michelin and awarding plaintiff his lost past and future wages. The jury awarded no damages for plaintiff's pain, suffering, or disfigurement because the trial judge instructed the jury that these damages could not be awarded if the jury concluded Mr. Richards was not consciously aware of his plight. Likewise, the jury did not award any damages for medical and hospital expenses because the trial court instructed the jury that such damages are not recoverable under the tort reform collateral source nuleabrogation statutes. Ultimately, the district court entered judgment for the full amount of the award, less a credit for the amounts already received from the pro tanto settlements.

CONCLUSION

During trial, it was revealed that Michelin has placed fifteen million of its 1 6-inch tires into the marketplace. Each and every one of these tires must be considered a potentially lethal bomb that may explode if mismounted upon a 16.5-inch rim. Michelin is acutely aware of the danger. It remains to be seen whether the jury ' s message in Richards will have its intended effect of changing this manufacturer's conduct.