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Alvarez v. Cooper Tire & Rubber Co.

Florida Court of Appeal, Fourth District

November 30, 2011

Mario A. ALVAREZ, Appellant,

Page 790

Lauri Waldman Ross and Theresa L. Girten of Ross & Girten, Miami, and Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, for appellant.

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



We grant appellee's motion for rehearing en banc, vacate the prior opinion in this case, and substitute the following opinion in its place. [1]

Appellant, Mario Alvarez, as personal representative of the estate of Jose Ramon Alvarez, appeals a final judgment in favor of Cooper Tire Company in a products liability action. Alvarez complains that the trial court abused its discretion in limiting document discovery from Cooper Tire to those involving tires with the same or similar specifications. Two trial judges conducted multiple hearings and document reviews, both concluding that the limitations were appropriate. We find no abuse of discretion and affirm.

In December 2000, Abraham Calel was driving his 1994 Isuzu P15 pick-up truck on the Sawgrass Expressway with Jose Alvarez, sitting in the right-side passenger seat, and Rudy Velasquez, sitting in the middle. Neither the driver nor the passengers had on their seatbelts. Without warning, the right rear tire tread completely separated from the tire but the tire remained inflated. When this happened, the driver lost control of the pick-up truck, went off the highway, and the truck rolled over. Alvarez was partially ejected from the vehicle and ended up pinned underneath the truck. He died by asphyxiation. The other passenger was also killed in the accident. The driver survived.

In his capacity as personal representative of his brother's estate, Mario Alvarez filed a lawsuit against Cooper Tire and others for the wrongful death of his brother, claiming that the tire on the truck was defective in its design and manufacture, thereby causing the accident and Jose's death. Cooper denied the material allegations of strict liability and negligence and raised twelve affirmative defenses, including the seat belt defense, misuse of the subject tire, and defective vehicle design, among others.

The failed tire was a Cooper Trendsetter Steel Belted Radial Tire (Cooper Trendsetter SE, P205/70R14),[2] produced in

Page 791

Tupelo, Mississippi during the 15th week of 1998 pursuant to Green [3] Tire Specification 3011. After institution of the lawsuit, Alvarez filed a multitude of discovery requests. Those requests demanded discovery of information and documents regarding all light truck tires manufactured by Cooper.

Cooper objected to the discovery based upon trade secret, burdensomeness, and that the plaintiff was entitled to discovery only for those tires which were substantially similar to the tire which was the subject of the lawsuit. Cooper maintained that those tires with the same or related GTS number, namely GTS 3011 and 3163, were the only tires substantially similar to the subject tire. Alvarez, however, claimed that the tires manufactured to other Green Tire Specifications were substantially similar in that all Cooper tires were manufactured using the same basic processes. Two of the main defects claimed by Alvarez' tire expert constituted the lack of nylon overlays and a belt wedge, which the expert maintained were similar in all Cooper tires, thus making more than the same GTS number relevant for discovery purposes. Cooper, however, claimed that the differences in the processing and specifications made each GTS tire different. It had produced over 1,500,000 tires under the two GTS numbers which it claimed were substantially similar, and it had never been sued for tires involving either specification number.

We should point out that both sides have litigated many, many other tire defect cases involving Cooper tires. They have employed the same experts on many cases and have received document discovery in other cases. The experts are thoroughly familiar with the tire production methods, and the plaintiff's expert formulated opinions as to the cause of the tread separation of this particular tire without use of any documents from Cooper which were not produced in this case. The plaintiff, nevertheless, wanted documents both to show that Cooper had notice of a tread separation problem involving some tires with different GTS numbers and in later hearings admitted that he wanted documents for purposes of his claim for punitive damages.

The original trial judge, Judge Brunson, held a two day hearing in 2003. Although no live testimony was taken, the parties showed the judge a demonstration tire to explain tire construction and the manufacturing process. Both sides proffered expert affidavits and argued their respective implications. In a relatively short affidavit, Alvarez' expert, Dennis Carlson, opined that much of what Cooper sought to protect as trade secrets was not confidential at all. He claimed that information such as chemical composition could be acquired by reverse engineering of the tire. He also set forth nine cases where he appeared as an expert involving tread separation of Cooper tires. With respect to those cases he stated that all were substantially similar in that a " failure occurs between ...

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