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2000 TOWN CENTER • SUITE 900 • SOUTHFIELD, MICHIGAN 48075 • (248) 355-0300

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARY VIED, Personal Representative of the 

DONNA LEE, DECEASED; MARY VIED,

Personal Representative of the ESTATE OF 

JENNIFER LEE, DECEASED; MARY VIED as 

Next Friend of KL A MINOR, and

NICHOLAS LEE, individually;

Plaintiffs,

Case No. 09-13734

vs.

Judge Patrick Duggan

CONTINENTAL TIRE NORTH AMERICA, INC.,

a foreign corporation,

Defendants.

________________________________________________________________________

ROBERT H. DARLING (P25523)

SOMMERS SCHWARTZ, P.C.

Attorney for Plaintiff 

2000 Town Center, Suite 900

Southfield, MI 48075-1100

(248) 355-0300 / (248) 936-2125 (Fax)

rdarling@sommerspc.com

EDWARD KRONK (P16258)

MAUREEN T. TAYLOR (P63547)

BUTZEL LONG

Attorney for Defendant Continental Tire NA

150 West Jefferson, Suite 100

Detroit, MI 48226

(313) 225-7000 / (313) 225-7080 (Fax)

taylorm@butzel.com; kronk@butzel.com

________________________________________________________________________

PLAINTIFFS’ RESPONSE TO DEFENDANT’S

MOTION TO EXCLUDE EVIDENCE OR IN THE ALTERNATIVE,

MOTION IN LIMINE REGARDING DISSIMILAR TIRES

NOW COME the Plaintiffs herein, by and through their attorneys, Sommers 

Schwartz, P.C., and in answer to Defendant, Continental Tire North America, Inc.’s motion 

in limine to exclude evidence of and expert testimony concerning dissimilar tires asks that 

Defendant’s motion be denied for the reasons in the attached Brief.

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Respectfully submitted,

SOMMERS SCHWARTZ, P.C.

BY: s/ROBERT H. DARLING (P25523)

Attorney for Plaintiffs

2000 Town Center, Suite 900

Southfield, Michigan 48075

(248)355-0300

rdarling@sommerspc.com

Dated: December 6, 2010

CERTIFICATE OF SERVICE

The undersigned certifies that on December 6, 2010, I electronically filed the 

foregoing Plaintiffs’ Response to Defendant Continental Tire’s Motion to Exclude Evidence

Regarding Dissimilar Tires and Other Defenses to Plaintiffs’ Complaint and this Certificate 

of Service with the Clerk of the Court using the ECF filing system which will send 

notification of such filing to Maureen Taylor (taylorm@butzel.com) and Edward Kronk 

(kronk@butzel.com). 

BY: s/ROBERT H. DARLING (P25523)

Attorney for Plaintiffs

2000 Town Center, Suite 900

Southfield, Michigan 48075

(248)355-0300

rdarling@sommerspc.com

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LAW OFFICES

SOMMERS SCHWARTZ, P.C.

2000 TOWN CENTER • SUITE 900 • SOUTHFIELD, MICHIGAN 48075 • (248) 355-0300

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARY VIED, Personal Representative of the 

DONNA LEE, DECEASED; MARY VIED,

Personal Representative of the ESTATE OF 

JENNIFER LEE, DECEASED; MARY VIED as 

Next Friend of KL A MINOR, and

NICHOLAS LEE, individually;

Plaintiffs,

Case No. 09-13734

vs.

Judge Patrick Duggan

CONTINENTAL TIRE NORTH AMERICA, INC.,

a foreign corporation,

Defendants.

________________________________________________________________________

ROBERT H. DARLING (P25523)

SOMMERS SCHWARTZ, P.C.

Attorney for Plaintiff 

2000 Town Center, Suite 900

Southfield, MI 48075-1100

(248) 355-0300 / (248) 936-2125 (Fax)

rdarling@sommerspc.com

EDWARD KRONK (P16258)

MAUREEN T. TAYLOR (P63547)

BUTZEL LONG

Attorney for Defendant Continental Tire NA

150 West Jefferson, Suite 100

Detroit, MI 48226

(313) 225-7000 / (313) 225-7080 (Fax)

taylorm@butzel.com; kronk@butzel.com

________________________________________________________________________

PLAINTIFFS’ BRIEF IN OPPOSITION TO DEFENDANT’S

MOTION TO EXCLUDE EVIDENCE OR IN THE ALTERNATIVE,

MOTION IN LIMINE REGARDING DISSIMILAR TIRES

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SUMMARY OF ISSUES PRESENTED

Whether the Court should exclude all evidence of failures of similar tires without 

allowing a foundation to be given?

Plaintiffs say “NO”.

Defendant says “YES”.

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INDEX OFAUTHORITIES

CASES

Bailey v. Kawasaki-Kisen, K.K., 455 F.2d 392 (5th Cir.1972)................................................3

Bryan v. Emerson Elec. Co., Inc., 856 F.2d 192 (6th Cir. 1988).........................................2, 3

In re Beverly Hills Fire Litigation, 695 F.2d 207 (6th Cir.1982), cert. denied, 461 

U.S. 929 (1983) .................................................................................................................3

Koloda v. General Motors Parts Div., General Motors Corp., 716 F.2d 373 (6th Cir. 

1983) .........................................................................................................................2, 3, 4

Payne v. A.O. Smith Corp., 99 F.R.D. 534 (S.D.Ohio 1983) .................................................3

Rhodes v. Michelin Tire Corp., 542 F.Supp. 60 (E.D.Ky.1982) .............................................3

Rimer v. Rockwell Int'l Corp., 641 F.2d 450 (6th Cir.1981) ...................................................3

U.S. v. Johnson, 697 F.2d 735 (6th Cir.1983).......................................................................3

RULES

FRE 401........................................................................................................................1, 2, 3

FRE 402................................................................................................................................2

FRE 403............................................................................................................................2, 3

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FACTUAL BACKGROUND

This case arises out of a single vehicle accident caused by the sudden and 

unexpected delamination of a tire manufactured by Defendant Continental. The tire was 

the right rear tire of a 1998 Ford Explorer and its failure caused the driver of the vehicle to 

lose control and drive off the road resulting in a vehicle roll over. At the time the vehicle 

was occupied by four persons – its driver, Jennifer Lee, and passengers, Donna Lee, 

Nicholas Lee and KL, a minor. All four occupants suffered discrete personal injuries in this 

incident. Passenger, Donna Lee, was cut in two and died at the scene. Jennifer Lee 

suffered grievous personal injuries that contributed to her death arising from the medical 

treatment of those injuries. Nicholas, age 17 at the time, and KL, then age 4, survived the 

accident, but each also sustained personal injuries as well as suffering from the emotional 

distress of witnessing the death of their grandmother, Donna Lee.

The Defendant has filed a motion in limine to exclude the testimony of “dissimilar 

tires”. The Defendant does not identify what it means by the term “dissimilar” or does it 

identify what tires are “dissimilar”. It offers no evidence whatsoever in support of its 

argument. It is the Defendant’s burden to prove dissimilarity in support of its motion in 

limine. Granted, at the time of trial Plaintiffs are bound to identify substantial similarity in 

order for the evidence to be permitted in the record. The Defendant requests this Court to 

not allow Plaintiffs the opportunity to establish such. 

STANDARD OF REVIEW

Relevant evidence is defined in Federal Rule of Evidence (“FRE”) 401, as “evidence 

having any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without the 

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evidence.” “All relevant evidence is admissible . . .” FRE 402. Under FRE 403, a court may 

exclude relevant evidence “if its probative value is substantially outweighed by the danger 

of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of 

undue delay, waste of time, or needless presentation of cumulative evidence.”

Under FRE 401, evidence is relevant if it has any tendency to make the existence of 

any fact that is on consequence of the action more probable or less probable than it would 

be without the evidence. Under FRE 402, all relevant evidence is admissible unless as 

otherwise provided by law.

In Koloda v. General Motors Parts Div., General Motors Corp., 716 F.2d 373 (6th Cir. 

1983), the Sixth Circuit Court of Appeals described the standard that should be relied upon 

when ruling on the admissibility of evidence of “similar incidents” under FRE 401, 402 and 

403. In Bryan v. Emerson Elec. Co., Inc., 856 F.2d 192 (6th Cir. 1988), the Court

summarized the holding in Koloda regarding “substantial similarity”: 

Notwithstanding the parties' citation of little Sixth Circuit case law, the use of 

prior accident evidence has been endorsed by this Circuit. See, e.g., Koloda

v. General Motors Parts Div., General Motors Corp., 716 F.2d 373, 376 (6th 

Cir.1983); The “substantial similarity” test applied by many courts and 

proposed by defendant is really an outgrowth of the application of Rules 401 

and 403. If a prior accident is not similar in some way to the case before the 

court, then its admission will not make it more, or less, probable that the 

plaintiff suffered an injury nor will it prove any other issue in this case. 

Conversely, evidence of prior “similar” accidents admitted under a more 

restrictive standard are relevant to make any number of issues more or less 

probable. See Koloda, 716 F.2d at 376.

The degree of similarity required to ensure the relevancy of a prior accident 

or injury will vary with the issue to which the evidence is directed. Id. at 375. 

These issues may include: (1) physical condition or defect; (2) causation; 

(3) existence of a dangerous situation at the time of the accident; or (4) 

notice or knowledge [sic] of danger. Koloda, 716 F.2d at 375. When 

plaintiffs attempt to prove causation with the existence of prior accident 

evidence, many courts have required that the prior accidents must be 

“substantially similar” to the accident in question in order to be relevant. If 

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the prior occurrence is offered to prove notice, however, a lesser degree of 

similarity is required provided the accident would have tended to warn the 

defendant. This Court has found evidence of prior similar incidents to be 

relevant to prove notice of a dangerous condition provided similar 

circumstances exist. See, e.g., Koloda, 716 F.2d at 376 (citing cases).

Id. (emphasis added). See also In re Beverly Hills Fire Litigation, 695 F.2d 207, 217-18 (6th 

Cir.1982), cert. denied, 461 U.S. 929 (1983); Rimer v. Rockwell Int'l Corp., 641 F.2d 450, 

456 (6th Cir.1981); Payne v. A.O. Smith Corp., 99 F.R.D. 534, 537 (S.D.Ohio 1983); 

Rhodes v. Michelin Tire Corp., 542 F.Supp. 60, 62 (E.D.Ky.1982). The 6th Circuit Court of 

Appeals in Bryan later went on to opine that there is no “fixed definition of the degree of 

‘similarity’ required before prior accidents or occurrences become relevant. We do not feel 

any magic ‘formula’ could adequately sum up the various considerations involved. We will 

simply evaluate the trial judge’s decision under the mandate of [FRE] 401.” Thus, the 6th

Circuit made it clear in Bryan, supra, that admissibility of similar occurrences is the trial 

judge’s decision pursuant to FRE 401. 

In regards to FRE 403, the Bryan court went on to opine that: 

The second step in the inquiry is an analysis under Rule 403. Fed.R.Evid. 

403. Notwithstanding the relevance of prior accident evidence, the trial court 

in its discretion may decide to exclude the evidence if its probative value is 

substantially outweighed by unfair prejudice or jury confusion. Koloda, 716 

F.2d at 377; In re Beverly Hills, 695 F.2d at 217-18. 

The court in Koloda went on to outline the district court’s role in deciding these 

issues of admissibility under FRE 403:

District courts are allowed a broad range of discretion in deciding issues of 

admissibility under Rule 403. U.S. v. Johnson, 697 F.2d 735 (6th Cir.1983); 

In re Beverly Hills Fire Litigation, 695 F.2d 207 (6th Cir.1982). However, 

such discretion is not unlimited. In finding that evidence of similar incidents 

should not have been excluded, the court in Bailey v. Kawasaki-Kisen, K.K., 

455 F.2d 392 (5th Cir.1972), stated:

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It is true that we often say that the exclusion of evidence of this 

nature is within the “sound discretion” of the Trial Judge. This 

discretionary power does not, however, allow the Trial Court to 

exclude competent evidence which is essential and vital to a 

litigant's case unless there is a sound practicable reason for 

barring it. All must be looked to in terms of the purpose of the 

rule of exclusion, the interests to be served by admissibility and 

the qualifying instructions, if any, needed to eliminate the 

probability of harm. (Citations and footnotes omitted).

Id. at 378. The court in Koloda further stated that “In order to exclude evidence under Rule 

403, it must be more than damaging to the adverse party; it must be unfairly prejudicial. In 

this regard it has been held: Of course, ‘unfair prejudice’ as used in Rule 403 is not to be 

equated with testimony simply adverse to the opposing party. Virtually all evidence is 

prejudicial or it isn't material. The prejudice must be ‘unfair.’” Id. (internal citation omitted).

ARGUMENT

The fact that other tires of the same make, model and size have suffered similar 

failures as the one involved in the present case is relevant evidence under Federal Rules of 

Evidence 401 and 402 because this case concerns design and manufacturing defects that 

result from characteristics that those other tires have in common. The fact that other tires 

are the same make and model but different size (yet designed and manufactured similarly) 

have suffered similar failures are the one involved in the present case is relevant evidence 

as well under Federal Rules of Evidence 401 and 4021

 1 The Defendant recalled the Continental model tire as the subject matter tire but did not (?) 

tire within the recall. This is the subject of a separate motion by the Defendant.

. The fact that other brands of tires 

has sustained similar belt separation failures as the one involved in the present case is 

relevant evidence under Federal Rules of Evidence 401 and 402 for knowledge and notice

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that the condition must be corrected to reduce unreasonable and foreseeable risks of 

injury.

The Defendant requests this Court to preclude introduction of evidence of any and 

all tire failures unless it is a “General Grabber AW P255/70R16-109S radial passenger tire 

manufactured at the CTNA’s Mt. Vernon, Illinois plant in the 45th week of 2000” (Document

33, p 1). It is surprising that the Defendant does not also include that the tire should be 

made in the morning of the same day, molded by the same tire technician or else it is not 

substantially similar as it fails to make any definition to “dissimilarity”. The Defendant’s 

request for preclusion of “dissimilar tires” (of which no evidence is presented before this 

Court to establish its burden) is not that myopic.

While there may be some differences between “different” steel belted radial ply tires, 

the elements that go into making this particular type of tire are essentially the same as 

others. All involve a manufacturing process in which different materials building up the 

tread of the tire are bonded together in layers. And all such tires are subject to sudden and 

unexpected failure if the bond between the layers is compromised and gives way. While 

the specific circumstances of each failure may be different, the mechanics of the failure are 

essentially the same.

Defendant’s General Grabber AW P255/70R16 109S radial tire, in this regard, is not 

therefore unique, but falls within a class of tires that encompasses many other brands as 

well as others within its own model. Defendant seeks a motion in limine that would exclude 

all evidence of similar tire failures occurring among other tires allegedly “different” from the 

subject tire notwithstanding that the tires are of the same size and model, the same model 

but different size, substantial similarities made by different manufacturers, having similar 

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belt edge and shoulder pocket characteristics is relevant evidence for consideration by the 

jury. Plaintiff objects to such a wholesale exclusion of evidence as being unduly restrictive 

and prejudicially barring Plaintiffs from introducing relevant evidence particularly when the 

Plaintiff is given no opportunity to prove relevance.

It is ironic that the defense expert bases his opinion testimony upon “his experience” 

– i.e. failures of tires of other makes, models, sizes, manufacturers. (Exhibit 1, Grant 

deposition, pp 109 and 124). Defendant’s motion would prohibit Plaintiffs’ experts from 

referring to similar failures in other brands of tires, prohibit Plaintiffs from cross-examining 

Defendant’s experts about like failures in other tires but allow the defense expert artistic 

license to testify on anything he wishes. The conclusions and opinions of the Defendant’s

expert in this case are necessarily informed by what this expert knew of other such tire 

failures in other tires. Plaintiff’s expert’s understanding of how the tire likely failed in this 

case is based upon a careful study of past tire failures that give insight as to the cause of 

such failures. Defendant would silence Plaintiff’s experts by unduly limiting the scope of 

their knowledge and experience while allowing defense experts that ability.

As with Defendant’s similar motion in limine to bar evidence of dissimilar incidents, 

the similarities or dissimilarities of pertinent facts and characteristics of the tires in question 

would be best addressed as the proofs that are further developed by the witnesses at trial. 

Plaintiffs, therefore, ask that Defendant’s motion in limine be denied as failing in proof.

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2000 TOWN CENTER • SUITE 900 • SOUTHFIELD, MICHIGAN 48075 • (248) 355-0300

Respectfully submitted,

SOMMERS SCHWARTZ, P.C.

BY: s/ROBERT H. DARLING (P25523)

Attorney for Plaintiffs

2000 Town Center, Suite 900

Southfield, Michigan 48075

(248)355-0300

rdarling@sommerspc.com

Dated: December 6, 2010

CERTIFICATE OF SERVICE

The undersigned certifies that on December 6, 2010, I electronically filed the 

foregoing Plaintiffs’ Response to Defendant Continental Tire’s Motion to Exclude Evidence 

Regarding Dissimilar Tires and Other Defenses to Plaintiffs’ Complaint and this Certificate 

of Service with the Clerk of the Court using the ECF filing system which will send 

notification of such filing to Maureen Taylor (taylorm@butzel.com) and Edward Kronk 

(kronk@butzel.com). 

BY: s/ROBERT H. DARLING (P25523)

Attorney for Plaintiffs

2000 Town Center, Suite 900

Southfield, Michigan 48075

(248)355-0300

rdarling@sommerspc.com

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