Bullock v. Freightliner, LLC et al

Filing 372

ORDER. By Judge William J. Martinez on 1/17/2012. (sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 08-cv-00491-WJM-MEH
AMY BULLOCK, as an individual, as the next of kin and personal representative of
JEFFREY BULLOCK, deceased, and as parent and next friend of ADAM BULLOCK,
CHELSEA BULLOCK, and MELISSA BULLOCK,
Plaintiff,
v.
DAIMLER TRUCKS NORTH AMERICA, LLC, formerly known as Freightliner, LLC,
Defendant.

ORDER

Plaintiff Amy Bullock brings this products liability action against Defendant
Daimler Trucks North America, LLC, alleging that Plaintiff’s husband’s death in a 2006
tractor-trailer rollover accident was caused by design defects in the truck, which was
manufactured by Defendant.
This matter is before the Court for decision on two trial-related evidentiary issues
originally identified by the parties in their briefing on Plaintiff’s Motion in Limine (ECF
Nos. 344, 354, 360), and discussed by the Court in its Order on the Motion in Limine
(ECF No. 365). The issues are: (1) whether Defendant will be allowed to show a video
to the jury at trial of a different 2008 tractor-trailer rollover for purposes of showing
“substantial similarity” to the accident at issue in this action; and (2) whether a limiting
instruction should be given to the jury instructing it that evidence of the decedent’s use
or non-use of a safety restraint should only be considered as to Plaintiff’s claim that the

safety restraint itself was defective/unreasonably dangerous (and should not be
considered as to Plaintiff’s claim that the truck generally and the sleeper compartment
specifically were not crashworthy). At a hearing held on January 3, 2012, the Court
received evidence from the parties on the first issue, and also allowed the parties to
present oral argument on the second issue. (ECF No. 371.) The Court now proceeds
to analyze and resolve the two issues.
I. ANALYSIS
A.

Video of Different Tractor-Trailer Rollover Accident
The tractor-trailer rollover accident at issue in this action occurred on August 15,

2006 on Highway 50 near Monarch Pass in Gunnison County, Colorado. At the time of
the accident, Don Green was driving the tractor-trailer, and the decedent Jeffrey Bullock
was riding in the sleeper compartment of the tractor. The parties agree that during the
accident, the tractor and trailer rolled and came to rest at the bottom of an embankment
next to the roadway. (ECF No. 226, ¶ 19; ECF No. 231, ¶ 19.) There is no video of this
accident. The record indicates that the parties have invested significant resources,
including hiring expert witnesses, to attempt to reconstruct what occurred during the
accident. For example, Defendant has created a computer animation of the accident,
called a MADYMO modeling analysis, allegedly showing how Mr. Bullock’s body moved
in the tractor during the course of the accident. (ECF No. 317.) The Court has already
ruled that this animation will not be admissible as substantive evidence at trial, but that
one of Defendant’s experts, Dr. Harry Smith, will be allowed to show the animation to
the jury during his testimony in order to illustrate the principles Dr. Smith employed in

2

rendering his opinions. (ECF No. 331.)
Defendant now also seeks to show a video recording at trial of a different tractortrailer rollover accident that over two years later, on September 8, 2008, near Donner
Pass in California (“the Donner Pass accident”). In the briefing on Plaintiff’s Motion in
Limine, Defendant clarified that it seeks to show the video of the Donner Pass accident
at trial not only to show the general mechanics and physics of a tractor-trailer rollover,
but also to show that the Donner Pass accident was “substantially similar” to the
accident at issue. (See ECF No. 360.) The Court has already ruled that Defendant will
be allowed to show the video of the Donner Pass accident at trial for purposes of
showing the general mechanics and physics of a tractor-trailer rollover, but the Court
reserved ruling on whether Defendant would be allowed to show the video for purposes
of establishing “substantial similarity” to the accident at issue. (ECF No. 365, at 6-7.)
At the January 3, 2012 hearing before this Court, Defendant presented evidence
attempting to establish the “substantial similarity” of the two accidents. (ECF No. 371.)
The only witness who presented live testimony at the hearing was Dr. Robert J. Butler,
one of Defendant’s experts. Both parties also submitted exhibits to the Court for
consideration, to which there were no objections. Those exhibits are: (1) the video of
the Donner Pass accident; (2) the report and supplemental report of Dr. Butler; (3) a
PowerPoint presentation created by Dr. Butler; (4) an excerpt of the transcript of the
deposition of Dr. Stephen Batzer, one of Plaintiff’s experts; (5) the transcript of the
deposition of Officer James Sherman, a California Highway Patrol officer who
investigated the Donner Pass accident; and (6) two other exhibits to Mr. Sherman’s
deposition (other than the video of the accident).
3

This issue is now ripe for adjudication.
“The admissibility of evidence in diversity cases in federal court is generally
governed by federal law.” Sims v. Great Am. Life Ins. Co., 469 F.3d 870, 880 (10th Cir.
2006). “Nevertheless, it is well recognized that Congress did not intend the procedural
rules to preempt the so-called substantive state rules of evidence . . . .” Id.; see also
Romine v. Parman, 831 F.2d 944, 945 (10th Cir. 1987) (stating that, although
“admissibility of evidence in diversity cases in federal court is generally governed by
federal law,” state law must be applied when “an evidentiary question is so dependent
on a state substantive policy”). In the Court’s September 28, 2011 Order on Plaintiffs’
Motion in Limine, the Court noted,
The Court is not aware of any substantive Colorado rule of evidence or
Colorado substantive policy that would require the Court to depart from
the general rule that the Federal Rules of Evidence should govern the
admissibility of the evidence related to the [Donner Pass] accident.
Unless the parties . . . can direct the Court to such a state rule or policy,
the Court will apply federal law to the issue of the admissibility of this
evidence.
(ECF No. 365, at 7 n.6.) At the January 3, 2012 evidentiary hearing before the Court,
neither party called into question the Court’s conclusion that the Federal Rules of
Evidence should govern the admissibility of the video of the Donner Pass accident. The
Court finds it proper to apply the Federal Rules of Evidence to this issue.
Federal Rule of Evidence 401 provides that evidence is relevant if “it has any
tendency to make a fact more or less probable than it would be without the evidence”
and “the fact is of consequence in determining the action.” Relevant evidence is
generally admissible at trial, Fed. R. Evid. 402, but a court “may exclude relevant
evidence if its probative value is substantially outweighed by a danger of one or more of
4

the following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence,” Fed. R. Evid. 403. “The
district court has considerable discretion in performing the Rule 403 balancing test.”
United States v. Tan, 254 F.3d 1204, 1211 (10th Cir. 2001).
The Court has thoroughly reviewed the video of the Donner Pass accident, all of
the other exhibits submitted to the Court by the parties at the January 3, 2012 hearing,
the transcript of the January 3, 2012 hearing, and the arguments made by both parties
in their briefing on Plaintiff’s Motion in Limine. Based on this review, the Court has
concluded that Defendant will only be allowed to show the video of the Donner Pass
accident at trial for purposes of showing the general mechanics and physics of a tractortrailer rollover, and not for purposes of showing an allegedly “substantially similar”
accident to the accident at issue. At trial, the Court will provide a fairly strongly-worded
limiting instruction to the jury to clarify the limited purpose for which the video of the
Donner Pass accident may be considered.
The video constitutes relevant evidence in this action because it will assist the
jury in understanding Dr. Butler’s opinions regarding (1) the basic mechanics and
physics of how tractor-trailers generally begin to roll in rollover accidents, and (2) how
the tractor-trailer began to roll in the accident at issue. Specifically, Dr. Butler’s
(paraphrased) testimony at the January 3, 2012 hearing was that the video will assist
the jury in understanding how, during a typical tractor-trailer rollover accident, (1) the
accident begins by the trailer “sliding out” on the roadway, (2) the trailer begins to roll
before the tractor, (3) in rolling, the trailer begins pulling on the tractor, forcing the
tractor to begin to roll in the same direction, and (4) when the tractor begins to roll, it at
5

least initially rolls at a faster rate than the trailer in order to “catch up” with the alignment
of the trailer. The Court finds this evidence to be relevant to Plaintiff’s theories
regarding how the tractor-trailer rollover at issue occurred, which is ultimately relevant to
Plaintiff’s claims and Defendant’s defenses. The relevance of this evidence, for
purposes of showing the general mechanics and physics of a tractor-trailer rollover, is
not substantially outweighed by any competing concerns listed in Federal Rule of
Evidence 403.
However, for other purposes, including showing “substantial similarity,” the Court
holds that the relevance of the video of the Donner Pass accident is substantially
outweighed by the danger of unfair prejudice, confusing the issues, and misleading the
jury. See Fed. R. Evid. 403. First, there is insufficient evidence that the two accidents
are substantially similar, lessening the relevance of the video of the Donner Pass
accident. For example, Dr. Butler’s report and hearing testimony indicates his belief
that the tractor-trailer at issue in this action was traveling between 44 and 56 miles per
hour at the time of the accident. However, in his deposition, Officer Sherman testified
that, based on his investigation, the truck in the Donner Pass accident was going at
least 65 miles per hour at the time of the accident. Also, Dr. Butler’s report and hearing
testimony indicates his belief that the tractor-trailer at issue in this action rolled
approximately 315 degrees during the course of the accident (nearly one full revolution),
and ended up at the bottom of a 25-foot ravine. However, Dr. Butler’s hearing
testimony and Dr. Sherman’s deposition testimony indicate that the truck in the Donner
Pass accident rolled between 90 and 180 degrees total during the course of the
accident, and ended up within one truck width of the side of the roadway.
6

In addition, the Court concludes that the danger of unfair prejudice, confusing the
issues, and misleading the jury is great. Importantly, Defendant’s trial brief clarifies that
it seeks to introduce evidence to the jury regarding the negligence of Don Green, the
driver of the tractor-trailer, in causing the accident at issue. The Court believes the
video of the Donner Pass accident is therefore unfairly prejudicial and potentially
misleading given the nature of that accident. The video of the Donner Pass accident
was shot from the front of a Wal-Mart truck that was traveling in the right lane of the
roadway at the time of the accident. The video first shows a white pickup truck pass the
Wal-Mart truck on the left. The video then shows the tractor-trailer pass the Wal-Mart
truck on the left. The way in which the tractor-trailer was traveling at the time is quite
notable in two respects. First, the tractor-trailer appeared to be traveling in an unsafe
manner in relation to the Wal-Mart truck. The tractor-trailer passes the Wal-Mart truck
very quickly (reflecting the high speed in which the tractor-trailer was traveling). Also,
the tractor-trailer passes very close to the Wal-Mart truck (on the far right side of the left
lane), so close that it appears the Wal-Mart truck’s driver felt compelled to pull his truck
far to the right and partially onto the shoulder of the roadway. Second, the tractortrailer, given how fast it was traveling, appeared to be traveling too close to the white
pickup truck in front of it. These images of an out-of-control truck are unfairly prejudicial
in relation to Defendant’s claim that it should be shielded from liability, or its liability
should be lessened, due to Mr. Green’s alleged negligence in his driving of the tractortrailer at issue. The Court is not aware of any evidence in this case indicating that Mr.
Green was following too closely behind another vehicle, or that Mr. Green wildly passed
another vehicle immediately before the accident occurred. Notably, Dr. Butler’s
7

PowerPoint presentation indicates that the roadway on which Mr. Green was driving at
the time of the accident had only a single lane of traffic in that direction (no passing
lane). Therefore, the Court holds that the video of the Donner Pass accident may only
be shown at trial for purposes of showing the general mechanics and physics of a
tractor-trailer rollover accident.
Finally, the Court notes that the video presented by Defendant at the January 3,
2012 hearing contained not only moving images showing the Donner Pass accident
occurring, but also contained still images of the scene following the accident, including
the damaged tractor-trailer. The Court concludes that there is less indication that any of
these still images are relevant (the two trucks rolled different amounts and presumably
incurred different damage), and any relevance the still images might have is
substantially outweighed by the danger of confusion of issues and misleading the jury.
The Court directs Defendant to delete these post-accident still images from the video.
Defendant will only be allowed to show the video at trial containing the moving images
showing the Donner Pass accident actually occurring.
B.

Limiting Instruction Regarding Decedent’s Use or Non-Use of Safety
Restraint
In the parties’ briefing on Plaintiff’s Motion in Limine, they also addressed the

issue of whether evidence regarding Mr. Bullock’s use or non-use of the safety restraint
in the sleeper compartment of the tractor should be admissible at trial. In the Court’s
September 28, 2011 Order on Plaintiff’s Motion in Limine, the Court held that evidence
of Mr. Bullock’s use or non-use of the safety restraint was highly relevant, and would be
admissible, as to Plaintiff’s claim that the safety restraint itself was defective or
8

unreasonably dangerous. (ECF No. 365, at 2-5.) In so ruling, the Court noted,
[T]he Court is not passing judgment on whether evidence of Mr. Bullock’s
use or non-use of the safety restraint would be admissible as evidence
relevant to Plaintiff’s claims of other design defects in the truck, namely,
the truck’s general lack of crashworthiness and the sleeper compartment’s
lack of crashworthiness. The Court [reserves ruling on] whether a limiting
instruction to the jury might be appropriate on this issue.
(Id. at 5 n.5.) At the January 3, 2012 hearing before the Court, the parties presented
argument on this issue.
In reviewing the further briefing by the parties in their trial briefs, and in
considering the arguments presented by the parties at the January 3, 2012 hearing, the
Court believes it is appropriate to revisit the basis for its September 28, 2011 ruling on
Plaintiff’s Motion in Limine as to this issue (although the result of the ruling will be the
same). The Court revisits the issue and resolves it as follows.
There is a substantive common law evidentiary policy recognized in Colorado
that precludes admission of evidence of a failure to wear a seat belt (or safety restraint)
to limit the liability of a defendant, for example, based on contributory negligence. See
Pringle v. Valdez, 171 P.3d 624, 627-28 (Colo. 2007); Fischer v. Moore, 517 P.2d 458,
460 (Colo. 1973). However, the Colorado General Assembly, in passing Colorado
Revised Statute § 42-4-237(7), created a limited exception to this policy, allowing for the
admission of evidence of seat belt non-use by drivers and front-seat passengers to
mitigate non-economic damages. See Colo. Rev. Stat. § 42-4-237(7); Pringle, 171 P.3d
at 628-32. However, that statute is not properly read as affecting the general common
law rule as it is applied to seat belt non-use by passengers other than drivers and front
seat passengers. Mr. Bullock was riding in the sleeper compartment of the tractor at the
9

time of the accident, and therefore was not driving or a front seat passenger. Colorado
Revised Statute § 42-4-237(7) therefore does not apply here, and so the general
common law rule does apply.1 The Court holds that evidence of Mr. Bullock’s use or
non-use of the safety restraint will therefore be inadmissible at trial as to Plaintiff’s
product liability claims based on the truck’s general lack of crashworthiness and the
sleeper compartment’s lack of crashworthiness.
However, the Court holds that this general common law rule cannot be properly
applied to Plaintiff’s claim that the safety restraint itself was defective or unreasonably
dangerous. As explained by the Court in its September 28, 2011 Order, to succeed on
this claim, Plaintiff will need to show that the alleged defect in the safety restraint
caused or enhanced Mr. Bullock’s injuries. See Truck Ins. Exch. v. MagneTek, Inc., 360
F.3d 1206, 1214 (10th Cir. 2004); Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240,
1242-43 (Colo. 1987). The question of whether or not Mr. Bullock was using the safety
restraint at the time of the accident is highly relevant to the issue of whether a defect in
the safety restraint caused or enhanced Mr. Bullock’s injuries. The specific common
law rule at issue must give way to more fundamental requirements of proving the
elements of a legal claim. Plaintiff has cited no case law in which a court has ruled that
the common law rule should apply to a product liability claim based on a defect in the

1

The Court concludes that, only as to this very limited issue of Mr. Bullock’s use or nonuse of the safety restraint, this substantive evidentiary policy should be applied rather than
federal evidentiary rules. See Sims, 469 F.3d at 880 (“[I]t is well recognized that Congress did
not intend the procedural rules to preempt the so-called substantive state rules of evidence . . .
.”; Romine, 831 F.2d at 945 (stating that, although “admissibility of evidence in diversity cases in
federal court is generally governed by federal law,” state law must be applied when “an
evidentiary question is so dependent on a state substantive policy”).

10

seat belt itself. In fact, at the January 3, 2012 hearing, Plaintiff’s counsel conceded that
Mr. Bullock’s non-use of the safety restraint would be a complete defense to Plaintiff’s
claim that the safety restraint was defective or unreasonably dangerous. Therefore, the
Court concludes that evidence regarding Mr. Bullock’s use or non-use of the safety
restraint will be admissible at trial as to Plaintiff’s claim that the safety restraint itself was
defective or unreasonably dangerous.
At trial, the Court will give a limiting instruction to the jury on this issue, clarifying
that evidence of Mr. Bullock’s use or non-use of the safety restraint will only be
admissible as to Plaintiff’s claim that the safety restraint itself was defective or
unreasonably dangerous, and should in no way be considered as to Plaintiff’s claim that
the truck generally and the sleeper compartment specifically were not crashworthy.
C.

Proposed Drafts of the Two Limiting Instructions
As part of the proposed jury instructions submitted by the parties prior to the

Final Trial Preparation Conference in this action, the parties shall submit proposals for
the two limiting instructions discussed in this Order. As with the parties’ other proposed
jury instructions, the parties shall, to the maximum extent possible, agree and stipulate
as to the two proposed limiting instructions. See WJM Revised Practice Standard VI.B.
The parties’ two proposed limiting instructions should be drafted in a way that takes into
account the analysis and considerations discussed by the Court herein.
II. CONCLUSION
In accordance with the foregoing, the Court ORDERS as follows:
1.

Defendant will only be allowed to show the video of the Donner Pass

11

accident at trial for purposes of showing the general mechanics and
physics of a tractor-trailer rollover, and not for purposes of showing an
allegedly “substantially similar” accident to the accident at issue. At trial,
the Court will give a fairly strongly-worded limiting instruction to the jury on
this issue.
2.

Evidence of Mr. Bullock’s use or non-use of the safety restraint will be
admissible at trial as to Plaintiff’s claim that the safety restraint itself was
defective or unreasonably dangerous, but will be inadmissible as to
Plaintiff’s claims regarding the truck’s general lack of crashworthiness and
the sleeper compartment’s lack of crashworthiness. At trial, the Court will
give a limiting instruction to the jury on this issue.

3.

As part of the parties’ proposed jury instructions in this action, the parties
shall submit proposals for the two limiting instructions discussed herein.

Dated this 17th day of January, 2012.
BY THE COURT:

William J. Martínez
United States District Judge

12