Michael Ray Thomas vs. Harley-Davidson Motor Company Group, LLC

MICHAEL RAY THOMAS,

Appellant,

v.

HARLEY-DAVIDSON MOTOR COMPANY GROUP, LLC,

Respondent.

          

WD81329

OPINION FILED:

APRIL 2, 2019

Appeal from the Circuit Court of Saline County, Missouri The Honorable Dennis Allen Rolf, Judge

Before Division Three: Mark D. Pfeiffer, Presiding Judge, Lisa White Hardwick, Judge, Anthony Rex Gabbert, Judge

Michael Thomas appeals the circuit court's Judgment entered after a jury verdict finding in favor of Harley-Davidson Motor Company Group, LLC, on Thomas's Petition for Damages for Personal Injury. Thomas contends the circuit court, 1) abused its discretion in admitting Exhibit RR into evidence because it was neither logically nor legally relevant and was prejudicial to Thomas, 2) abused its discretion in refusing to admit Exhibits 1, 10, and 11 because the exhibits were not hearsay and constituted admissions by Harley-Davidson, and 3) erred in overruling Thomas's motion for new trial. We affirm.

2 Factual and Procedural Background On September 2, 2006, Thomas was injured when his 2003 Harley-Davidson Ultra Classic Electra Glide motorcycle went off a curve on Highway YY in Saline County, Missouri. Thomas believed the accident was due to a design defect in the motorcycle and filed suit against Harley- Davidson in a three-count petition. In Count I he alleged strict product liability for design defect, manufacturing defect, and failure to warn. In Count II he alleged negligence. In Count III he alleged breach of express and implied warranties of merchantability and violation of the Missouri Merchandising Practices Act. The case was tried before a jury on August 16 and 17, 2017. Thomas offered the testimony of Master Sergeant Ryan Smith of the Missouri Highway Patrol. Smith investigated Thomas's accident and completed a report. Smith testified that it was daylight at the time of the September 2006 crash and the pavement was dry. Smith was familiar with Route YY due to his responsibilities in patrolling that road. He testified that the section where the crash occurred was curvy. From his investigation, he believed the motorcycle left the roadway seventy-five feet south of the 304 and Highway YY intersection and came to rest fifteen feet north of the intersection after hitting an embankment. Thomas was either lying or sitting on the ground when Smith arrived and Thomas told Smith, "I ran off the road, I don't know why." Smith testified that if Thomas had told him there was a problem with the motorcycle, he would have included that in his report. Further, if there had been tire marks on the roadway, those would have been noted. Larry Yeager, owner of Yeager Cycles, also testified for Thomas. Thomas purchased his motorcycle from Yeager three years prior to the accident. At the time Thomas purchased his motorcycle, it would have been shipped from Harley-Davidson crated, with no assembly beyond

3 mirrors, antenna, and windshield required. Yeager Cycles serviced Thomas's motorcycle at 1,000 miles, 5,000 miles, and 10,000 miles. Gregory Billingsley, Thomas's uncle, testified that on September 2, 2006, he was scheduled to meet Thomas in Marshall, Missouri at noon. The two planned to ride down to a bike rally in south Missouri. Thomas called Billingsley at about noon and said that he was on his way but running late. Billingsley owned a motorcycle nearly identical to Thomas's. Billingsley purchased his used with 34,999 miles, and at the time of trial it had 80,000 miles. Billingsley was completely happy with his motorcycle and had no complaints regarding its handling or stability. After Thomas's wreck, Thomas encouraged Billingsley to get rid of his motorcycle because Thomas believed it was unsafe. Billingsley testified that he really enjoyed his motorcycle so, to address Thomas's concerns, he purchased a device that mounts below the transmission and attaches to the motor and frame. Billingsley noticed no difference with the motorcycle after the device was installed, and as far as he knew, the device did nothing. William Smith, an employee of Yeager, testified for Thomas as well. He testified that he was a technician at Yeager who worked on all models of motorcycles, including Harley-Davidson motorcycles. He received ongoing training regarding maintenance and repair of Harley-Davidson motorcycles. He testified that the engine and transmission on Thomas's motorcycle is stabilized to the frame through a rubber mount which attaches to a swing arm. At Thomas's motorcycle's 10,000 mile checkup, which was performed at 11,000 miles, the front engine mount on the motorcycle was in good shape. In support of Thomas's case, portions of deposition testimony of Bjorn Christensen were read into evidence. Christensen was an engineer employed by Harley, tendered by Harley as an expert, and deposed by Thomas. Christensen testified that misalignment of tires on motorcycles

4 can cause "offset tracking of vehicle" and "irregular tire wear." Irregular tire wear can lead to a slight pull of the vehicle to one side. He testified that there was a slight misalignment of the wheels on Thomas's motorcycle, but considered the alignment within acceptable limits. Christensen stated that he did not believe the offset on Thomas's motorcycle would have had any effect on the handling of the motorcycle, and was not enough "to have any impact on this incident." He was aware the service manual for Thomas's motorcycle states that the front/back wheel alignment measurements should be within .030 of an inch, and Thomas's motorcycle was .21875 of an inch, but considered the manual specifications "over specified." He testified that, "based on what I know about motorcycles and the alignment and its effect on them, this level of alignment wouldn't be a problem." He stated that he had "tested many different bikes with offsets such as this and of varying amounts with no issue." Christensen also testified that, based on Thomas reporting that his motorcycle was scraping the pavement as he went into a particular turn, it was possible Thomas was riding at a speed higher than fifty-five miles per hour. When asked if it was also possible that there was something wrong with Thomas's motorcycle, Christensen replied, "I didn't see anything that would indicate anything wrong with his bike." Portions of deposition testimony of Gary Kmiecik were also read into evidence. Kmiecik was a mechanic hired by Thomas, tendered as an expert by Thomas, and deposed by Harley- Davidson. Kmiecik testified that he reviewed the accident report and service records of Thomas's motorcycle and also inspected the motorcycle. He had been asked to determine if Thomas's motorcycle would be sensitive to changes in the clamp load in F and G bolts with respect to stability and handling. He testified that the torque values on the bolts are part of the vehicle alignment, and that the "whole system can shift about those timings without those bolts being correctly tightened." Kmiecik testified that Thomas's vehicle was out of alignment by under one

5 fourth of an inch, and he did not see any indication from the damage on the motorcycle that the wreck caused that misalignment. Kmiecik testified that the most common cause of single vehicle motorcycle accidents is rider error, and that the most common form of rider error is a reflex in running wide in a corner. Kmiecik testified that he believed Thomas ran wide in the corner and ran off the road. He did not attribute the accident to the condition of the front and rear mounts on Thomas's motorcycle. Thomas also offered portions of deposition testimony by Martin Hageman, a corporate representative of Harley-Davidson. Hageman testified that he determined the torque on the fasteners F and G had no detrimental effect on the stability of the motorcycle and could not have caused Thomas's crash. Hageman was asked about Patent 4,776,423. He testified Harley- Davidson may have acquired the patent when Harley-Davidson purchased the Buell Motorcycle Company. Hageman stated that he disagreed with the basic premise of the patent – that three links are required in the vibration isolated powertrain. He based this belief on the fact that Harley- Davidson's current touring motorcycle had only one tie link but was still vibration isolated. He testified that he knew three tie links were not required to establish lateral stiffness. When Hageman was asked how lateral stiffness could be established in Thomas's motorcycle other than by Patent 4,776,423, he replied, "By the design of the isolation system." He testified the isolator in Thomas's motorcycle was designed so that it had very high stiffness in one direction while being "compliant in another direction." Thomas introduced himself as his final witness. Thomas testified that on the day of the wreck, he was scheduled to meet Billingsley at around noon but was moving slowly that morning. He called Billingsley at 12:04 and told him he would be there in five or ten minutes. Prior to the wreck, he had noticed no problems with the suspension or handling of the motorcycle. He testified

6 that as he rode his motorcycle to meet Billingsley, when he rounded a corner near Mt. Olive Road and Hunter Road, the rear end of his motorcycle felt "squishy." He stopped and inspected the shocks on his motorcycle. He could find nothing wrong so continued on. There were six turns leading up to the accident. On the first, a sharp right, he accelerated slowly and noticed there was a little bit of a mushy feeling. This required him to lean into the curve more to counteract the motorcycle's behavior. He then engaged cruise control at fifty-five miles per hour -- the speed limit. At that time, there were no advisory signs of any kind on the highway and the only limit signs stated fifty-five. Thomas had driven that same road for nine years and had traveled that road on a motorcycle several hundred times. Thomas did not recall ever taking the road faster than fifty-five miles per hour. With the second curve, to the left, the issue with the motorcycle seemed a little more pronounced. With each curve the problem became more pronounced and Thomas had to lean more and more because the bike was fighting him to stand up the opposite direction. Thomas crashed on the seventh curve, which Thomas testified was the least tight of any of the curves. He was not sure why he did not try to slow down when the issues with his bike began, but he was trying to troubleshoot and wanted to determine what was wrong with the bike. He was driving on the right half to right third of the lane, away from the centerline to avoid potential oncoming traffic. When the bike's footboard began to drag due to his lean, Thomas instinctively let up on the lean. When he did, the bike jerked straight up and he went off the road. Thomas received serious injuries from the accident and recovery was lengthy. The accident caused long-term damage to Thomas's body, and Thomas is unable to enjoy many activities he previously participated in. On cross examination, Thomas testified he received an owner's manual with his motorcycle and familiarized himself with the parts he used most, including portions regarding the

7 cruise control. He acknowledged that, prior to the accident, he was aware the owner's manual stated that cruise control is not intended for use with sharp or blind curves, and that using cruise control in such circumstances could result in death or serious injury. He testified he never applied his brakes when proceeding through the curves on the road, despite noticing something different with his bike. He testified that, when his motorcycle scraped the footboard around