NASHVILLE, Tenn.(May 22, 2000)—While cruising down the freeway, how many times have you routinely moved into the left lane to pass a slower-moving 18-wheeler?
A pharmaceutical salesman was doing just that when one of the truck´s tires—a retread—failed, showering his car with chunks of rubber. He lost control of his car and was seriously injured in the resulting crash.
That was the scenario played out before a "jury" of about 100 conference attendees on May 3 at the World International Tire and Rubber Association Expo in Nashville.
Nashville-area attorney Barry L. Howard presided as judge at the mock civil trial. Buck Blair, a national accounts manager for Tech International, played the role of plaintiff "Adam Smith," who sought $400,000 in damages from the mythical Baxter Tire Co., which had retreaded the tire that failed.
Two other local barristers represented the parties in the case: Michael Evans represented the plaintiff, Mr. Smith; John Floyd represented the defendant, Baxter Tire.
The tire that exploded and caused Mr. Smith´s accident had been retreaded once and also had a puncture repaired at Baxter Tire about a month before the incident. Mr. Smith´s suit alleged that Baxter Tire´s questionable retreading practice and a faulty repair created an unsafe tire.
"As a result of one faulty tire, Mr. Smith´s earning capacity is now reduced," said Mr. Evans in his opening statement. "We´ll prove that the tire was improperly repaired."
Mr. Floyd, the defense attorney, said Mr. Smith´s injuries were unfortunate.
"But, those injuries were not caused by anything Baxter Tire did or its employees did," he said.
Mr. Smith testified that he was driving on Interstate 65 outside of Nashville and attempted to pass a truck. While passing the truck, "It seemed like a bomb went off," he said.
Debris from the tire showered the car and he lost control, Mr. Smith said, and the next thing he remembered he was in the hospital. The plaintiff said he was hospitalized for about four and a half months, had numerous surgeries on his right leg and ankle and still suffers from memory loss.
Mr. Smith also said he now has a phobia of driving and is unable to drive to call on customers. He contacts customers by phone, but has been unable to return to his pre-crash annual income of $100,000 in the two years since the accident.
Fictional tire tech "Phil Bass´´—played by Michael Berra Jr., an ITRA Advisory Council member—told the court he had retreaded and made the repair on the tire in question.
An employee at Baxter Tire for three years, Mr. Bass said current and former employers had taught him what he needed to know during his 10 years in the tire business. "I trained myself, too," Mr. Bass said.
He also said he had received training from representatives of tire repair supply manufacturers when they visited the shop.
Mr. Evans questioned him about using repair materials from different manufacturers.
"Do you use materials exclusively from a supplier when you repair a tire," Mr. Evans asked, "or do you sometimes mix and match whatever´s handy?´´
"I use whatever´s there," Mr. Bass said.
"Do these suppliers recommend that you use only their material to fix a flat?´´
Mr. Bass said he had repaired and retreaded the tire in question about three months prior to the accident.
Originally manufactured and sold as a trailer tire, he said it was retreaded with a thicker tread and used as a drive tire.
A couple of months later, a driver brought the truck in and said this same tire was going flat. Mr. Bass said he found a nail puncture in the tire.
He removed the tire and decided to repair the hole with a single plug. Mr. Bass added he buffed the inner liner "like I always do," and cemented the plug in place. Later, he covered the plug with a patch, remounted the tire on the rim and put it back on the outside left-front drive position.
Mr. Evans asked about the diameter of the puncture and use of a one-piece repair plug to repair it.
"I believe we were told anything under three-eights of an inch was OK for a one-piece (repair)," Mr. Bass said.
"Who told you that?´´
"I don´t remember," Mr. Bass replied. "I just remember being told that´s the way you´re supposed to do it."
Mr. Evans asked Mr. Bass about the angle of this puncture and how it compared with the limits on puncture angles—25 degrees for many repair kits was mentioned—for using a one-piece plug.
Mr. Evans asked, "Do you know what a 25-degree angle is?"
"I couldn´t draw it," said Mr. Bass, "But I could look at it and tell you about what it is."
"Do you know the angle of that puncture?´´
Mr. Bass said he might wipe the inner liner of the tire and buff the area before making a repair, but never used a cleaning solution, even though he knew manufacturers recommended it.
On cross-examination, Mr. Floyd asked: "You don´t make the decision what tread to put on a tire do you? That´s made by someone else, correct?´´
"In fact, the driver told you the best place for the tire, is that correct?´´
Jim Osborn, vice president for technology at Oliver Rubber Co., who was playing himself as an expert witness for the plaintiff, said he didn´t know whether this tire had been driven underinflated, overloaded or at high speeds.
As to whether a different type of tread should have been applied, Mr Osborn said, "The retreader should determine that based on tread depth, based on design criteria, based on application recommendations from the manufacturer."
However, Mr. Osborn added, "We have no reason to believe that the retread portion (of the tire) was at fault."
He focused on the repair as a possible cause of the failure. He questioned mixing materials from different manufacturers when repairing a tire, and said Baxter Tire had no documentation about repairs or material used.
Mr. Bass should have used more than buffing to clean the inside of the tire, which is coated with a soapy, silicon substance during manufacturing to aid curing, Mr. Osborn said. "That material will prohibit the proper bond of repair material."
Mr. Osborn also said the angle of puncture was too great to use a one-piece plug to repair this tire, and the stress caused the repair to fail.
"The defense has alleged that the incident was not due to anything that they (Baxter Tire) did," Mr. Osborn concluded. "It, in fact, was due to a host of things they did not do."
On cross-examination, Mr. Osborn told Mr. Floyd the angle of the puncture was 27 degrees, more than the recommended limit of several manufacturers. However, there is no industry standard nor is there an instrument available to precisely measure puncture angles, he said.
"To the best of your knowledge, all across the nation, when repairing a puncture, " said Mr. Floyd, "most individuals such as Mr. Bass would be pretty standard in using their eyeball to estimate whether the angle was OK."
Mr. Osborn agreed.
In redirect questioning by Mr. Evans, Mr. Osborn said a tire technician can insert a drill bit into the puncture to determine its diameter and use a protractor to determine the angle.
The dealership´s owner, "Burt Baxter" (played by ITRA Technical Director Bill Gragg), testified he had been in the tire business 40 years and was familiar with industry standards for retreading and repairing tires.
Mr. Bass was an excellent employee, he said. "I´ve had no complaints with the work he (Mr. Bass) does or from customers."
Mr. Baxter admitted there were no regularly scheduled training sessions for the firm´s six employees. When suppliers visit, he said, "They provide us with the information and training that we need to use their products the way that they recommend being used."
On cross-examination, Mr. Evans asked about using materials from different manufacturers in the same repair.
"Using and mixing repair materials from different manufacturers simply is not proper, is it?" Mr. Evans asked.
"It´s not recommended," Mr. Baxter replied.
"Why doesn´t Mr. Bass know that?´´
"I can´t tell you that."
Edward J. Wagner, owner of Tire Technical Services in Louisville, Ky., testified that using a one-piece repair plug is popular with tire technicians. "It is functional, fast and effective," he said.
Mr. Wagner also said cleaning the patch area with a buffing tool was sufficient to "remove contamination of that area and provide a texturized surface for the adhesive."
The plug was in place until the tire failed, he said, when the separation of the tread and belts pulled the plug out. He also said the solutions used by different manufacturers of repair systems were compatible.
The failed tire was a size 11R22.5 designed for use on a trailer, and Mr. Wagner said three major manufacturers—Goodyear, Michelin and Bridgestone/Firestone—all say their trailer tires may be retreaded for use as drive tires "with no loss of performance."
During cross-examination, Mr. Wagner attributed the tire´s failure to "a detachment of the belt brought on by accumulated damage." He said the damage could have been caused by underinflation and/or overloading.
Mr. Evans wondered if Mr. Bass was competent enough to observe the damage, since he had no formal training.
The outside of the tire may not show any signs of abuse, Mr. Wagner said, even if the tire had been run underinflated for a significant amount of time.
Mr. Wagner added that it is difficult to determine if the cable strength of the belts has been weakened. "There is no practical, universal tool for non-destructive testing on the market today," he said.
In his closing argument, Mr. Evans stressed that "industry standards are a minimum." He questioned applying a different type of tread application on a tire manufactured for another use and mixing repair materials from different suppliers.
He blamed the incident on the lack of training at Baxter Tire, which prevented Mr. Bass from performing as a competent tire tech.
"We don´t accuse Mr. Bass of trying to cause any harm," he said. "He just didn´t know any better."
Mr. Floyd stressed that the plaintiff has the burden of proof in this case.
"There was one thing that wasn´t proved," he said. "It wasn´t proved that the plug, the one-piece plug, was ever separated from the tire."
He said the plaintiff´s expert witness could only speculate on the cause of the tire failure.
Mr. Floyd asked the "jury" to forget about the lack of training and other factors and remember that the plaintiff didn´t prove the plug caused the accident.
Mr. Howard polled the audience about which side they would favor as "jurors."
Only about 10 audience members favored the plaintiff and the vast majority favored the defense. "This is what you get when a jury of your peers is tire dealers," said Mr. Howard, drawing a laugh from the crowd.
However, Messrs. Howard, Evans and Floyd all indicated that a regular jury would probably have ruled for the plaintiff. Mr. Howard thought a jury might have awarded damages of $2 million or more.
Mr. Evans said a jury would have concentrated on Mr. Bass´s lack of formal training, rather than all the technical testimony about the cause of the tire´s failure.
In cases such as this, Mr. Evans said: "It´s not a search for the truth. It´s a search for what you can prove."
Mr. Floyd agreed that a jury would have place "significant emphasis" on the lack of formal training. "The jury says: `I don´t care how it happened. You´ve got some guy here, who doesn´t know what he´s doing, doing repairs—and this man´s injured.´ ´´