HARRISBURG – A trial court order that found an alleged tire malfunction-related injury lawsuit constituted a non-suit was upheld on appeal in a Feb. 28 decision issued by the Superior Court.

The Allegheny County Court of Common Pleas' ruling ultimately hinged on the qualifications of one of the plaintiffs’ expert witnesses.

Plaintiff David Dolby and his wife Susan filed the lawsuit against Ziegler Tire and Supply Co. and Kumho Tire USA Inc. after trucking company employee David Dolby was seriously injured in a dump truck accident allegedly caused by a tire blowout.

The lawsuit initially also named rim manufacturer Alcoa and Michelin Retread Technologies Inc. as defendants, but the Dolbys agreed to dismiss those defendants before the trial began.

“David suffered numerous injuries, including … severe head trauma, eye nerve damage, a punctured right lung, broken ribs and a fractured leg,” according to the Superior Court memorandum.

The sole claim at trial questioned whether the defendants were liable for David Dolby’s injuries because they failed to provide proper warning of the dangers of a retreaded tired.

David Dolby’s employer, Samuel D. Brink Trucking Inc., said it bought the retreaded tire that malfunctioned from Ziegler, which used a Michelin-developed process. The memorandum said the tire in question was originally manufactured by Kumho.

Although the trial court denied the defendants’ original motion for a “compulsory non-suit” based on their claim that the plaintiffs’ heavy truck and forensic mechanics expert witness was not qualified to testify regarding the failure-to-warn count, it did grant a later motion for a compulsory non-suit against the plaintiffs.

“The trial court granted the motion, finding that (the witness) conceded that he was not a warnings expert, and that he did not opine that the cause of the accident was the failure to warn,” the Superior Court memorandum said.

The Superior Court said the Dolbys’ appeal asked it to rule on whether the tire was “unreasonably dangerous,” whether David Dolby’s injuries stemmed from a lack of warning on the retreaded tire and whether the plaintiffs had proven to the trial court that the truck driven by David Dolby rolled over in the accident because of the placement of the retreaded tire on the steering axle.

In addition, the Dolbys asked the Superior Court to decide whether the trial court was wrong in “not recognizing and following the malfunction theory and the heeding presumption doctrine.”

If the Superior Court found that the trial court order was in error, the Dolbys felt that a new trial should be granted, according to the memorandum.

“Our standard of review is well-established: A non-suit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action had been established,” the Superior Court said in its ruling.

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