IN THE SUPREME COURT
STATE OF GEORGIA
COOPER TIRE & RUBBER COMPANY, Petitioner
vs.
JAN D. CROSBY, etc., Respondent
CASE NO. S0000490
BRIEF OF AMICUS
GEORGIA TRIAL LAWYERS ASSOCIATION

 OVERVIEW

This amicus brief is filed on behalf of the over 2400 members of the Georgia Trial Lawyers Association. The Georgia Trial Lawyers Association (hereinafter "amicus") is an organization of attorneys representing victims of preventable injury in the courts of this state. That representation includes, but is not limited to, victims of defectively manufactured and designed products, including tires.

Amicus files this brief for two simple reasons. First, Cooper Tire & Rubber Co. ("Cooper Tire") has obtained the grant of certiorari based on an utter and complete misrepresentation of the scope and effect of the Court of Appeals opinion; amicus wants to be certain that the nature and purpose of Cooper Tire's misrepresentation of the opinion is revealed. Second, the position urged by appellant Cooper Tire ignores and, if adopted, will do irreparable harm to, three important principles of Georgia's product liability law established by this Court:

1. this Court's controlling Georgia law establishing a "risk/utility" analysis and manufacturer "reasonableness" inquiry for proof of product liability cases, as adopted in Banks v. ICI Americas, Inc., 264 Ga. 732, 734, 450 S.E.2d 671, 673 (1994);

2. this Court's controlling Georgia law requiring proof of the manufacturer's knowledge in failure to warn cases, as embodied in Batten v. Chrysler Corp., 264 Ga. 723, 450 S.E.2d 208 (1994); and

3. this Court's controlling law allowing the admission of similar product complaints known to the manufacturer in order to prove notice of defect and punitive damages, as embodied in Mack Trucks, Inc. v. Conkle, 263 Ga. 539, 436 S.E.2d 635 (1993).

This much is clear in Georgia law and almost every jurisdiction around the country: Customer and dealer complaints, warranty claims, incident reports and other such internal data involving similar product failures are routinely admissible in product liability actions against a manufacturer. The rationale enunciated by this Court and others for allowing such evidence is clear: similar complaints, claims and incidents are compelling evidence of what the manufacturer knew when it put (or kept) its product on the market. In most cases, as in this one, internal data about other product failures is the only evidence reflecting what the manufacturer is learning from dealers and customers about the performance of its own products, from its own elaborate record keeping system, in the real world. See Mack Trucks, 263 Ga. at 544, 436 S.E.2d at 640; Skil v. Lugsdin, 168 Ga. App. 754, 755, 309 S.E.2d 921, 923 (1983); Montano v. Lee Tire & Rubber Co., 893 P.2d 1298, 1299 (Ariz. 1995), Vassallo v. Baxter Healthcare Corp., 696 N.E.2d 909, 920-22 (Mass. 1998); Hessen v. Jaguar Cars, Inc., 915 F.2d 641, 649 (11th Cir. 1990); Benedi v. McNeil-P.P.C., Inc., 66 F.3d 1378, 1385-86 (4th Cir. 1995); Kehm v. Procter & Gamble Manuf. Co., 724 F.2d 613, 625-26 (8th Cir. 1983).

The very core of Banks v. ICI Americas is that the jury in a product liability case must consider evidence related to a wide variety of factors in order to determine whether a manufacturer's conduct was reasonable. Under Banks, neither Cooper Tire, nor any other product manufacturer, is entitled to have its liability decided in a vacuum that excludes what the defendant itself was learning about the real world performance and failures of its tires from customers and dealers. Neither Cooper Tire, nor any other product manufacturer, is entitled to pretend in a trial before a jury that the allegations of defect are "news" to it, when the indisputable truth is that the manufacturer has been inundated with similar complaints providing it with notice of the problems with its products.

Cooper Tire's unprecedented and untenable position should be rejected by this Court. This Court should dismiss certiorari as having been improvidently granted. Failing that, this Court should affirm the opinion of the Court of Appeals.

ARGUMENT AND CITATION OF AUTHORITY

A. What The Trial Court Excluded.

This inquiry needs to begin with exactly what evidence the trial court excluded (and why), what the Court of Appeals actually decided (and why), and what Cooper Tire, with this certiorari petition, wishes to exclude for itself, for the whole tire industry, and for all product manufacturers, for all time. The beginning of wisdom is to call a thing by its proper name. What Cooper Tire calls "customer satisfaction" or "adjustment data" is in fact an elaborate database and computerized record, maintained and compiled by Cooper Tire in the ordinary course of business, that meticulously tracks customer and dealer complaints and warranty claims, culminating in returned tires (claimed to be defective) for which some refund is issued by Cooper Tire. (R. at 4841, 5289-5290).

No matter how Cooper Tire tries to euphemize it to keep it from a jury, this is a warranty claim system. This is a customer complaint system. The customers receiving an "adjustment" from Cooper Tire are so dissatisfied with the manufacturing, design or other quality of Cooper Tire's products that they present those tires to the dealer for replacement or money back. These individuals are not presenting themselves at dealers demanding money back or replacement because the tire performed reasonably. (R. at 4687). Either they or the dealer are unhappy with the quality and performance of the Cooper Tire product they have purchased, and they are making their dissatisfaction known to Cooper Tire.

The significance of this data is underscored by how Cooper Tire handles it upon receipt: the data is meticulously organized and sorted by Cooper Tire and broken down by the kind of defect complained of by the tire dealer-- such as tread separation, belt separation, cosmetic problems, or tread problems. Cooper Tire can (and does) sort and analyze this data by plant, by production date range, by tire type and size, by defect, etc. (R. at 5427-5431, 5445-5455). Most importantly, Cooper Tire compares these claims to the overall production of the tires at different plants, at various times, and across the country to calculate what percentage of its tires are returned for particular types of defects, in particular time periods, and from particular plants. Cooper Tire's use of this data illustrates exactly why it is so relevant: These complaints are Cooper Tire's knowledge of the performance of, and complaints about, its tires in the real world.

That is the evidence that the trial court refused to admit in any way, form or fashion. Notably, the trial court did not undertake any individualized analysis of this evidence for similarity or relevance and simply excluded it all, and any reference to it.

B. What the Court of Appeals Decision Really Did

Cooper Tire's histrionic assault on the Court of Appeals in general, and Judge Eldridge in particular, is premised - as in its motion for reconsideration of the denial of certiorari - on a blatant misrepresentation of the effect of the Court of Appeals decision. To obtain its grant of certiorari, Cooper Tire would have this court believe the Court of Appeals admitted for all time all customer complaints, warranty claims, and notices of tire defects in this and other tire cases without the necessary showing of similarity. Cooper Tire goes even further to suggest that the opinion will allow all complaints against any manufacturer to be admitted in every case without any showing of similarity. That is not what the opinion holds at all.(1)

Cooper Tire suggests that because the Court of Appeals labeled some tire adjustment records to be "admissions" (because they were prepared by Cooper Tire and contain various concessions of defect against Cooper Tire's interests) then all the complaints, returns, and claims for all tires are "admissible." Under the actual language of the opinion, however, the fact the elaborate systems comprise "admissions" without more does not make all the complaints and claims per se "admissible."

The Court of Appeals conclusion that the data reflected "admissions" was made in the context of the "hearsay" issue. Crosby, 240 Ga. App. at 859, 524 S.E.2d at 318 (the "records are not hearsay"). An "admission" is an exception to the hearsay rule. The database was not hearsay because it is Cooper Tire's own record, it is inconsistent with their defenses on a variety of issues, and it advances the plaintiff's claims on a variety of issues. As such, it is an "admission" as well as an "admission against interest." Crosby v. Cooper Tire & Rubber Co., 240 Ga. App. 857, 859, 524 S.E.2d 313, 318 (1999).

This background is important because it uncovers the key hole in Cooper Tire's Petition for Writ of Certiorari: The "admission" exception deals only with the hearsay issue. Even after satisfying the hearsay issue, to admit into evidence any specific complaints and claims of product defects like belt separation, for example, the plaintiff still must jump through the relevance hoop of proving substantial similarity of the failures to those at issue in the case. See infra pp. 8-12. In section 2 (b) and (c) of the Crosby opinion, the Court of Appeals specifically acknowledged that similarity requirement and reiterated the longstanding principles requiring that showing (as set forth in the cases discussed infra). See Crosby, 240 Ga. App. at 860, 524 S.E.2d at 318. (citing Mack Trucks, 263 Ga. at 544, 436 S.E.2d at 640; Skil, 168 Ga. App. at 755-56, 309 S.E.2d at 922-24; Gen. Motors Corp. v. Moseley, 213 Ga. App. 875, 877-78, 447 S.E.2d 302, 306-307 (1994)).

How Cooper Tire can honestly suggest (much less obtain certiorari by arguing) that this aspect of this opinion plowed any new ground defies belief and common sense. See Crosby, 240 Ga. App. at 860, 524 S.E.2d at 318)("substantially similar manufacturing defects"; "[p]rior similar manufacturing defects"; "sufficiently substantially similar to be probative"; "[i]t is within the trial court's sound discretion to determine whether the prior similar occurrences or tire failures are sufficiently substantially similar to allow the admission of such evidence"). Even more puzzling is that the discussion by the Court of Appeals requiring similarity for admissibility adopts, cites, and relies on the same black letter rules out of the same series of cases Cooper Tire claims have been violated to justify its plea for certiorari. See Id.

In this case, the trial court excluded all the claims, returns, and complaints without undertaking any analysis for similarity. The court also excluded as "adjustment data" photographs from the "adjustment" manual that showed a belt separation as a result of a defect that looked just like the failed tire in the case. (T. 428-434). The court also precluded the plaintiff from using evidence in the adjustment records to prove belt separations from defects can arise after 30,000 miles, which particularized exhibits in the "adjustment data" irrefutably proved. (T. 484).

All the Court of Appeals decision did was instruct the trial court that it was improper to exclude in toto all adjustment data for all purposes. See Crosby, 240 Ga. App. at 859-60, 524 S.E.2d at 318. The opinion set forth the governing law and, point by point, indicated on which questions certain adjustment data could be admissible. Most importantly, the opinion specifically maintains the safeguard of similarity for admissibility of other claims of defect and failure. See Id. Thus, the opinion is entirely consistent with three important product liability principles of this Court, set forth below, which Cooper Tire now seeks to undermine.

C. Why Parts of Cooper Tire's complaint database are admissible.

1. The manufacturer's knowledge gained from the database is an integral part of the risk\utility and "reasonableness" inquiry for product defect under Banks v. ICI Americas, Inc.. In Banks, Justice Hunstein, writing for the Court, adopted a risk/utility analysis in which a manufacturer's knowledge of the risks of a challenged design are weighed against the utility of a design. Banks, 264 Ga. at 733, 450 S.E.2d at 673. The inquiry analyzes in part the state of mind of the manufacturer:

This risk utility analysis incorporates the concept of 'reasonableness,' i.e., whether the manufacturer acted reasonably in choosing a particular product design, given the probability and seriousness of the risk posed by the design, the usefulness of the product in that condition, and the burden on the manufacturer to take the necessary steps to eliminate the risk.

Banks, 264 Ga. at 734, 450 S.E.2d at 673. The court further specified particular factors that were part of the inquiry, including "the gravity and severity of the danger posed by the design" and "the likelihood of that danger." Banks, 264 Ga. at 736, 450 S.E.2d at 675.

These standards require the jury to step outside of a single-factor vacuum and look to what the manufacturer knows or is learning about its product. And what the manufacturer is learning from customer complaints and product returns is a critical part of this knowledge base. In a tire case, that knowledge is epitomized by the customer complaint, warranty claim database. The database addresses the risks of particular types of similar defects posed by the design, the statistical probability of those defects manifesting themselves (returns for defects as compared to production totals), and the gravity and severity of those defects. Evaluating the reasonableness of the manufacturer's design decisions without this information is like carving out a portion of the brain of the manufacturer. Stated differently, not allowing a jury to consider any evidence of the manufacturer's knowledge from other product claims would be like whiting out a core component of the Banks holding.

2. The manufacturer's knowledge gained from the database is critical proof on a failure to warn claim, as explained by this court in Chrysler Corp. v. Batten. In addition to being liable for designing or manufacturing a defective product, a manufacturer can have separate liability for failure to warn, even after the sale of the product. See Batten, 264 Ga. at 724, 450 S.E.2d at 211. As Justice Hunstein wrote for the court in Batten, "In failure to warn cases, the duty to warn arises whenever the manufacturer knows or reasonably should know of the danger arising from the use of its products." Batten, 264 Ga. at 724, 450 S.E.2d at 211. (emphasis added) The obligation to warn thus arises from what the manufacturer learns about the performance of its product. Cooper Tire's adjustment database reflects that knowledge. One can imagine no proof more relevant to this inquiry than the manufacturer's own collating of information reflecting what complaints of defect are being made "arising from the use of its products." Id.

The court also made it clear in Batten that a duty to warn can arise "from a manufacturer's post-sale knowledge acquired months, years or even decades after the date of the first sale of the product." Id. (emphasis added). At issue in this case is the very system Cooper Tire created to gather that "post-sale knowledge." Id. Allowing a manufacturer to pretend it "knows nothing" when its own documents prove that false will destroy the efficacy of most, if not all, failure to warn claims contemplated and authorized by Batten.

3. Customer complaints are routinely admissible to prove notice of defect and punitive damages under Mack Trucks v. Conkle, and Mack Trucks v. Conkle does not require that Plaintiffs demonstrate the extreme level of similarity that Cooper Tire suggests. In Mack Trucks, the manufacturer challenged a jury verdict for the plaintiff where the court had admitted evidence of "numerous complaints about cracks in the frame rails" of the type of truck at issue. Mack Trucks, 263 Ga. at 544, 436 S.E.2d at 639-40. In that case, the court evaluated the universe of complaint information (which the trial court here refused to do) and allowed evidence of complaints of similar cracking to that experienced in the instant case. Id. Justice Clarke, writing for the court, held that evidence of these complaints was "relevant to the issues of notice and punitive damages, and was properly admitted." Id. See also Skil, 168 Ga. at 755, 309 S.E.2d 922-23 (holding evidence of prior incidents was admissible because it was relevant to defendant's notice of alleged defect and appropriateness of punitive damages); Moseley, 213 Ga. App. at 877, 447 S.E.2d at 306 (1994) ("In product liability actions, evidence of other incidents involving the product is admissible, and relevant to the issue of punitive damages, provided there is a showing of substantial similarity"). It is ludicrous, and contrary to the truth, to allow a manufacturer to feign lack of prior knowledge of the problem by disallowing evidence of such notice.

Mack Trucks (and cases in almost every other jurisdiction) envision a process in which the trial court looks at the universe of complaint information and then admits complaints of product failure similar to that alleged in the pending case. Mack Trucks, 263 Ga. at 544, 436 S.E.2d at 544. For example, in a belt separation case, the complaints and returns for belt separation in similar tire products would likely meet the test of similarity, while complaints about cosmetic defects or tread malformation might not. The Court of Appeals decision in this case also envisions such an exercise of the trial court's discretion. See Crosby, 240 Ga. App. At 859-60, 524 S.E.2d at 318 ("It is within the trial court's sound discretion to determine whether the prior similar occurrences or tire failures are sufficiently similar to allow the admission of such evidence"). See also Mack Trucks, 263 Ga. at 544, 436 S.E.2d at 640; Skil, 168 Ga. App. At 756, 309 S.E.2d at 923; Moseley, 213 Ga. App. at 877, 447 S.E.2d at 306.

The problem in the instant case is the trial court did not undertake the requisite review for similarity. It excluded the evidence in toto - as Cooper Tire would have this Court so exclude this category of evidence for all time. As reflected above, however, this information is critical to proving a variety of elements in defect and failure to warn cases. In the year 2000, and under this Court's precedent, the question is not, as Cooper Tire would suggest, whether evidence of tire defects and complaints in the manufacturer's database is admissible; the question is merely which ones are admissible. The trial court in this case improperly declined to conduct that analysis and make that decision.

Finally, in another sleight of hand, Cooper Tire also subtly attempts to change the law of Mack Trucks by engrafting another requirement for admissibility of similar failures where none exists in Georgia law. Recognizing that adjustment data related to belt separations in similar products will most certainly meet the requirement of substantial similarity in a belt separation case, Cooper Tire suggests to this court that the tires it "adjusted" because of belt separations may not have been defective at all and that the plaintiff must prove that the "cause" of the underlying belt separation of each tire was a manufacturing defect.

By so contorting the law, Cooper Tire seeks to foist an additional burden on plaintiffs even though Cooper Tire's elaborate system and inspection (1) has logged the claim as "belt separation," (2) had it independently inspected by a Cooper Tire technician to confirm "belt separation," and (3) Cooper Tire has issued a "refund" (or "adjustment" in tire-speak) for a "belt separation." (Cooper Tire's Motion for Reconsideration of Petition for Writ of Certiorari at 5, Cooper Tire & Rubber Co. v. Crosby, 240 Ga. App. 857, 524 S.E.2d 313 (1999) (S00C0490)). The reason Cooper Tire wants to impose that burden on plaintiffs is simple - no plaintiff could ever prove the underlying cause of the separation in the returned tire beyond what Cooper Tire's representatives already have, and no adjustment data would ever be admissible. That is a burden required by neither Georgia law nor the law of any other state. That proof is also not required because these claims are admitted for notice and knowledge to Cooper Tire of a problem - not for the underlying proof that customer John Doe's tire in fact had a manufacturing defect. See Mack Trucks, 263 Ga. at 544, 436 S.E.2d at 639-40.

CONCLUSION

For the foregoing reasons, Amicus respectfully requests certiorari be dismissed as improvidently granted or, failing that, that the decision of the Court of Appeals be affirmed.

Respectfully submitted.

/s/ JAMES E. BUTLER, JR.

/s/ JOEL O. WOOTEN, JR.

/s/ GEORGE W. FRYHOFER III

/s/ TERRANCE C. SULLIVAN

/s/ CALE H. CONLEY

1. That the author of the assaulted opinion is the Court of Appeals Judge who "wrote the book" on product liability law and evidence in Georgia makes Cooper Tire's assault almost comical. See David J. Maleski & Frank M. Eldridge, Georgia Products Liability (2d. ed. 1993).