Ray et al v. Ford Motor Company
ORDER granting in part and denying in part 163 Motion in Limine, as further set out in order. Signed by Honorable Judge W. Harold Albritton, III on 12/13/11. (djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
MEREDITH CHADWICK RAY and
FORD MOTOR COMPANY,
) CIVIL ACTION NO. 3:07cv175-WHA-TFM
This cause is before the court on Plaintiffs’ Omnibus Motion in Limine (Doc. #163). The
Omnibus Motion identifies six categories of evidence for exclusion of which the Defendant
objects to three.
First, the Plaintiffs seek to “exclude all testimony, argument, documents, or the like
regarding accident causation or accident fault.” Id. at 2. The Plaintiffs contend that their claim
falls under the “crashworthiness doctrine” under Alabama law. This doctrine allows plaintiffs to
sue a manufacturer who makes a defective product which, although not a cause of the accident,
causes greater injury to result from the accident than would have resulted in the absence of the
defective product. See Volkswagen of America, Inc. v. Marinelli, 628 So. 2d 378, 383 (Ala.
1993) (citing General Motors Corp. v. Edwards, 482 So.2d 1176, 1181 (Ala.1985)). Therefore,
in a proper “crashworthiness” claim, the Plaintiffs’ negligence is not at issue because
“crashworthiness” claims attempt to compensate plaintiffs for the elevated harm caused by the
defendant’s defective product and not the harm caused by the accident itself. However, the
Plaintiffs’ claims in this case do not meet the definition of a “crashworthiness” claim because the
Plaintiffs allege that the Defendant’s part caused the accident which resulted in the Plaintiffs’
injuries. Therefore, the law governing “crashworthiness” claims is irrelevant to the Plaintiffs’
motion in limine.
Under Alabama law, “[c]ontributory negligence is an affirmative and complete defense
to a claim based on negligence.” Serio v. Merrell, Inc., 941 So. 2d 960, 964 (Ala. 2006) (quoting
Ridgeway v. CSX Transp., Inc., 723 So.2d 600, 606 (Ala.1998)). Contributory negligence also
“bar[s] recovery in an [AEMLD] case if a . . . contributing proximate cause of the accident was
the plaintiff’s failure to use reasonable care [in using the product].” Campbell v. Cutler Hammer,
Inc., 646 So. 2d 573, 574 (Ala. 1994) (brackets in original), see also Hannah v. Gregg, Bland &
Berry, Inc., 840 So. 2d 839, 860 (Ala. 2002) (citing Campbell for the rule that “a plaintiff's
contributory negligence will preclude recovery in an AEMLD action.”). In Alabama, “[t]he
question of contributory negligence is normally one for the jury.” Hannah, 840 So. 2d at 860.
Accordingly, this court will allow the jury to be instructed on contributory negligence as it
applies to the Plaintiff Meredith Chadwick Ray’s alleged failure to use reasonable care in the
use of the product, the Mercury Mountaineer.
The Plaintiffs attempt to circumvent Campbell and its progeny by relying on an older
Alabama case for the proposition that “contributory negligence relating to accident causation
will not bar a recovery in an AEMLD action.” Dennis v. American Honda Motor Co., Inc., 585
So. 2d 1336, 1342 (Ala. 1991). However, in General Motors Corp. v. Saint, the Alabama
Supreme Court explained that the Dennis Court did not hold that “a plaintiff's contributory
negligence relating to the defective product is no longer a defense in product liability cases.” 646
So. 2d 564, 565-66 (Ala. 1994) (citing Williams v. Delta International Machinery Corp., 619 So.
2d 1330 (Ala. 1993)). Furthermore, Dennis is distinguishable from the Plaintiffs’ claim. In
Dennis, the plaintiff was suing a helmet manufacturer because the defective helmet allowed
greater harm to befall the plaintiff during a motorcycle accident than if the helmet had not been
defective. Dennis, 585 So. 2d at 1337. The defendants raised the argument of contributory
negligence because there was testimony that the accident was caused by the plaintiff’s negligent
motorcycle driving. Id. The Alabama Supreme Court found that it was error for the trial judge to
instruct the jury as to the plaintiff’s contributory negligence in driving the motorcycle because
the theory of the case was, not that the motorcycle had caused the accident, but that the defective
helmet was the cause of the plaintiff’s damages during the accident. Id. at 1342.
Turning to the present case, the Plaintiffs allege that the Mercury Mountaineer was
defective and, unlike the helmet from Dennis, was the cause of the harm that the Plaintiffs
suffered. The Defendant contends that the Plaintiff was negligent in the use of the productautomobile and that a jury could find that the Plaintiff used the automobile in a negligent way.
To reiterate, “contributory negligence bar[s] recovery in an [AEMLD] case if a proximate cause
of the accident was the unreasonably dangerous condition of the product, [and] a contributing
proximate cause of the accident was the plaintiff's failure to use reasonable care [in using the
product].” Campbell, 646 So. 2d at 574. Therefore, this court finds that–unlike the Dennis case
where it was appropriate to limit the scope of contributory negligence to the plaintiff’s use of the
product and not accident causation–an instruction of contributory negligence is warranted as to
the accident because a jury could find that the product defect and the Plaintiffs’ negligent use of
the product were both proximate causes of the harm suffered by the Plaintiffs.
The court will leave the issue of contributory negligence to the jury as to the negligence
claim and the AEMLD claim.
Second, the Plaintiffs seek to exclude “any reference to or evidence, testimony, or
argument concerning any opinions or conclusions rendered by Defendant’s experts that were not
disclosed in initial disclosures nor identified at expert’s depositions.” (Doc. #163 at 4). The
Defendant does not contest this aspect of the motion and actually filed a substantially similar
motion. Having found no reason to allow such evidence, this court will GRANT the Plaintiff’s
motion on this issue.
Third, the Plaintiffs seek to prevent any mention of “[t]he defense lawyers, experts,
witnesses or their families driv[ing] and/or own[ing] Ford SUV’s/Explorers.” (Doc. #163 at 5).
The Defendant does not intend to offer such evidence unless the Plaintiffs call this subject into
question during the questioning of the Defendant’s witnesses. Accordingly, the court will
reserve judgment on the admissibility of such evidence until the occasion arises, but the
Defendant is not to refer to this evidence without first taking it up outside of the presence of the
Fourth, the Plaintiffs seek to prevent the Defendant from arguing to the jury that the
Plaintiffs’ burden is “innocent until proven guilty.” (Doc. #163 at 7). The Defendant does not
contest this motion other than to reiterate that the Defendant should be able to tell the jury that it
is the Plaintiffs’ responsibility to “affirmatively show that the product was sold with a defect or
in a defective condition.” (Doc. # 166) (quoting Tanksley v. ProSoft Automation, Inc., 982 so. 2d
1046, 1051 (Ala. 2007)). This court agrees that the Plaintiffs have the burden in this case, but
the Plaintiffs’ motion is due to be GRANTED as to any statement of the burden of proof as being
the criminal case standard of “innocent until proven guilty.”
Fifth, the Plaintiffs seek to prevent the Defendant from mentioning that “[s]tatistically,
Ford SUVs have a great overall safety record.” (Doc. # 163 at 7). Plaintiffs argue that any
mention of the overall safety record of the 2002 Mercury Mountaineer is irrelevant as to their
claim of a defective design of the BTSI. The Defendant counters by arguing that overall safety
is relevant to the Plaintiffs’ design defect claim. The court will reserve ruling on this until
presented outside the presence of the jury with the specific evidence offered and in the context of
all the evidence at that time. Until that time, the Defendant shall not refer to this, unless the
Plaintiffs open the door.
Sixth, the Plaintiffs’ seek to preclude “lay witnesses from testifying on matters which
call for an expert opinion.” (Doc. #163 at 8). The Defendant does not oppose this motion but
rather concurs with it. Because both parties agree to this straightforward application of the
Federal Rules of Evidence 702, this court will GRANT this aspect of the Plaintiffs’ motion.
For the foregoing reasons, it is hereby ORDERED that the Motion in Limine is
GRANTED in part and DENIED in part as set out above.
Done this 13th day of December, 2011.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
UNITED STATES DISTRICT JUDGE
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