White v. Deere & Company et al

Filing 220

ORDER. ORDERED that plaintiff's Motion in Limine No. 1 187 is held in abeyance. ORDERED that plaintiff's Motion in Limine No. 2 188 is GRANTED in part and DENIED in part. ORDERED that Kirk Ney may not testify regarding the total number of hours in which the Model 4600 tractor has been operated. ORDERED that plaintiff's Motion in Limine No. 3 189 is held in abeyance. ORDERED that plaintiffs Motion in Limine No. 4 190 is GRANTED in part and DENIED in part. ORDERED that plain tiffs Motion in Limine No. 5 191 is GRANTED. ORDERED that defendants may not introduce Exhibit A. ORDERED that plaintiffs Motion in Limine No. 6 196 is GRANTED in part and DENIED in part.ORDERED that defendants' Proposed Jury Instruction No. 19 is rejected. Signed by Judge Philip A. Brimmer on 02/11/16.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-02173-PAB-NYW
MIRIAM WHITE,
Plaintiff,
v.
DEERE & COMPANY and
JOHN DEERE LIMITED,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on plaintiff’s Motion in Limine No. 1–6 [Docket
No.187-91, 196].
I. BACKGROUND
This is a products liability action that arises out of an accident that occurred on
August 17, 2011 while plaintiff Miriam White was operating her Deere Model 4600
compact utility tractor and Model 460 loader. Ms. W hite claims that she suffered facial
injuries and traumatic brain injury as a result of a hay bale falling onto her while
operating the tractor. Docket No. 150 at 2. Ms. W hite alleges that her tractor had
design defects that created an unreasonable risk of injury from falling hay bales and
that her injuries resulted from these defects. Docket No. 150 at 2-3.

II. ANALYSIS
A. Plaintiff’s Motion in Limine No. 1
Plaintiff’s Motion in Limine No. 1 [Docket No. 187] seeks to exclude defendants’
Proposed Jury Instruction No. 29 and any evidence or argument regarding the
presumption of Colo. Rev. Stat. § 13-21-403(3). Colo. Rev. Stat. §13-21-403(3)
provides:
Ten years after a product is first sold for use or consumption, it shall be
rebuttably presumed that the product was not defective and that the
manufacturer or seller thereof was not negligent and that all warnings and
instructions were proper and adequate.
It is evident that there are numerous factual issues that prevent the Court from
resolving this motion before trial. Thus, this issue will be resolved in the course of
determining jury instructions.
B. Plaintiff’s Motion in Limine No. 2
Plaintiff’s Motion in Limine No. 2 [Docket No. 188] seeks to exclude any
testimony from Kirk Ney regarding the total number of customer hours in which the
Model 4600 tractor has been operated without any similar accidents. Docket No. 188 at
1. Plaintiff asserts that Mr. Ney’s expert report and deposition do not include any
discussion of how he calculated the total number of customer hours in which the Model
4600 tractor has been put to use or the criteria he used to characteriz e “similar
incidents.” Id. at 1-2.
Defendants generally respond that Mr. Ney will testify as a fact witness as to the
lack of similar incidents. Docket No. 204 at 3. On the issue of how many hours the
Model 4600 tractor has operated without a similar incident, defendants simply state that
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“Mr. Ney will testify as to how he calculated that figure.” Id. The question becomes
whether defendants’ failure to disclose how Mr. Ney made this calculation should be
grounds to exclude his testimony about the total number of hours.1
Mr. Ney has stated on several occasions that the Model 4600 tractor or models
similar to it have operated for millions of hours without similar accidents. See Docket
No. 104-1 at 11 (Ney expert report dated May 7, 2015); Docket No. 108-3 at 4 (Ney
declaration in support of summary judgment motion). However, on no occasion has he
explained how he arrived at his estimation of the number of hours. Defendants do not
claim that information allowing plaintiff to estimate the number of hours has been
produced. Presumably, this calculation has to do with the number of tractors estimated
to be in operation and the number of hours that a typical tractor is used. Without
identifying the formula or type of data that Mr. Ney used to perform his estimation,
defendants do not provide the information necessary to decide whether Mr. Ney can
testify to his estimation as a fact witness, which he claims to be doing, or whether he is
basing his estimation on assumptions or judgments that make it expert testimony.
Compare James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1214-15 (10th
Cir. 2011) (Rule 701). Because this information is only known to defendants and
because it concerns a matter of importance (tractors being operated for millions of
hours without similar accidents may be persuasive to the jury as to whether the tractor
has a design defect or whether there was a failure to warn), defendants’ failure to
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Plaintiff cites Fed. R. Evid. 702 and 403 in support of her motion. However,
because the issue seems to be a lack of disclosure, the Court will charitably assume
that plaintiff moves to exclude such testimony because defendants failed to disclose the
basis for the expert opinion pursuant to Fed. R. Civ. P. 26(a)(2)(B)(ii).
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disclose the basis for Mr. Ney’s testimony, either in connection with defendants’ Rule
26(a) discovery obligations or in connection with defendants’ response to plaintiff’s
motion in limine, precludes Mr. Ney from testifying about the number of hours.
Defendants also claim that Mr. Ney has a proper basis to testify that there have
been no similar accidents or incidents regarding the Model 4600 tractor or models
similar to it. Defendants contend Mr. Ney’s definition of “similar incident” is provided in
his April 29, 2015 deposition as “the overall universe of fall-off of the front end loader,
pallet fork, bucket, or any other attachment . . . for the [Models] 4500, 4600, and 4700.”
See Docket No. 204 at 2. Defendants note that this mirrors the magistrate judge’s
March 23, 2015 discovery order limiting the scope of discovery. Docket No. 77 at 3.
There, the magistrate judge ordered the defendants to produce “any accident reports or
documents reflecting accidents involving fall back incidents with the 4600 Tractor, 4500
Tractor, 4700 Tractor, 460 Loader, and any attachment to the 460 Loader.” Docket No.
77 at 24. That is the criteria Mr. Ney used in responding to questions about the lack of
similar accidents in his deposition. See Docket No. 204-1 at 3-4 (Ney Depo., 19:523:11).
The Court agrees with defendants that Mr. Ney has identified the criteria for what
constitutes a similar incident and provided a foundation for his statement that no similar
accident has occurred. In his Rule 30(b)(6) deposition, Mr. Ney testified regarding the
search he conducted for similar accidents, specifically, those relating to a load falling
from the front end loader, pallet fork, bucket, or other attachment for the Model 4500,
4600, and 4700 tractors, using Deere’s Enterprise Product Incident Report System
(“EPIRS”), a system with which he is familiar. Id., 204-1 at 3 (Ney Depo., 20:12-21:20).
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Mr. Ney stated that there are many sources from which EPIRS collects incident reports.
Id. (Ney Depo., 21:18-22). Customers may report incidents directly to Deere by phone
or email, and Deere encourages its dealers to report incidents. Id. at 4 (Ney Depo.,
22:3-9). Mr. Ney testified that Deere also uses web crawlers to automatically search
the internet using certain keywords for incidents involving Deere products and then
generate reports for input into EPIRS. Id. at 4 (Ney Depo., 22:20-23:1). Mr. Ney
testified that insurance and legal claims regarding Deere products are added to EPIRS
once Deere receives notice of those claims. Id. (Ney Depo., 23:2-8). Based on the
evidence provided by defendants, the Court finds that Mr. Ney has an appropriate
foundation to testify as to the results of his search of the EPIRS for similar incidents.
“[E]vidence of the lack of similar accidents is relevant to show (1) absence of the
defect or other condition alleged, (2) lack of a causal relationship between the injury
and the defect or condition charged, and (3) nonexistence of an unduly dangerous
situation. . . . [Thus,] evidence of the absence of similar accidents or claims is
admissible as long as the proponent provides adequate foundation.” Pandit v. Am.
Honda Motor Co., 82 F.3d 376, 380 (10th Cir. 1996) (internal citations om itted). The
Court finds that Mr. Ney’s testimony that there have been no similar accidents or
incidents regarding the Model 4600 tractor or models similar to it is relevant and
admissible.
C. Plaintiff’s Motion in Limine No. 3
Plaintiff asks the Court to deny defendants’ Proposed Jury Instruction No. 22 and
to exclude any evidence defendants may offer that she “failed to purchase a tractor that

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had the capabilities and safety features that she alleges were not provided with the
460/4600 tractor/loader.” Docket No. 189 at 1.
Due to the factual disputes regarding what choices plaintiff was aware of at the
time she purchased the tractor, loader, and attachm ents in question, see Docket No.
178 at 14-15, the Court will defer any ruling on plaintiff’s motion until the jury instruction
conferences.
D. Plaintiff’s Motion in Limine No. 4
Plaintiff’s Motion in Limine No. 4 [Docket No. 190] seeks to exclude any opinion
testimony from Ray and Sue Koplin, who purchased the 4600 tractor previously
belonging to Ms. White. Docket No. 190 at 1. Defendants respond, somewhat
ambiguously, that they do not intend to offer any opinion testimony through Mr. and Ms.
Koplin, but rather “only provide factual testimony. . . about the tractor, loader, and
equipment sold to them by [p]laintiff.” Docket No. 206 at 2. Defendants may ask the
Koplins about the condition of the tractor at the time they purchased it and at the time
the parties later inspected it. Otherwise, plaintiff’s motion in limine is granted on the
grounds that testimony about the subjects identified in plaintiff’s motion in limine would
be irrelevant and unduly prejudicial.
E. Plaintiff’s Motion in Limine No. 5
Plaintiff’s Motion in Limine No. 5 [Docket No. 191] seeks to exclude defendants’
Exhibit A-97, a video recording of defendants’ expert Robert Cargill operating a 4600
Model tractor with a 460 Model loader lifting a large bale of hay. Docket No. 191 at 1.
Plaintiff states that the video recording depicts the operation of a tractor that is not

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ballasted and in which the operator has loaded the bale of f-center, two conditions which
do not replicate the circumstances of plaintiff’s accident. Id. at 1, 8-10. Plaintiff
attaches several still images from the video which support her description of Dr.
Cargill’s operation of the tractor in the video–unballasted and with an off-center load.
Id. at 5-7. The Court has viewed the video, which shows at various times at least one
of the tractor’s back wheels coming off the ground and the tractor rocking sideways.
Plaintiff argues that the video is inadmissible under Fed. R. Evid. 402 and 403
and that it fails to satisfy the requirements of Fed. R. Evid. 702 and 703. Id at 1. In
support, plaintiff cites Gilbert v. Cosco, Inc., 989 F.2d 399, 402 (10th Cir. 1993), which
held that “experiments which purport to recreate an accident must be conducted under
conditions similar to that accident, while experiments which demonstrate general
principles used in forming an expert’s opinion are not required to strictly adhere to the
conditions of the accident.”
Defendants respond that the video is not an accident reconstruction video and
that it is only offered to demonstrate general principles of physics. Docket No. 207 at 12. Defendants also argue that plaintiff’s objection is untimely because she did not move
to exclude the video within thirty days of rebuttal disclosures. See Practice Standards
(Civil cases), Judge Philip A. Brimmer, § III.G. Docket No. 207 at 4. The Court rejects
defendants’ second argument because plaintiff’s motion in limine does not focus on an
opinion of Dr. Cargill, but instead on the introduction of an exhibit.
The Court finds that the video is inadmissible pursuant to Gilbert and Rule 403.
Defendants cite no facts in the record that support the tractor being unballasted or the

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hay bale being loaded unevenly on the pallet fork tines. Thus, any physical principles
the video allegedly demonstrates are combined with visuals supporting Dr. Cargill’s
causation theory (that the bale fell to the side, not over the back of the loader) and
suggesting a dangerous tipping risk due to an absence of ballast, which is speculative.
The video’s probative value concerning relevant physical principles is substantially
outweighed by the danger that the jury will be misled as to the conditions under which
the accident occurred.
F. Plaintiff’s Motion in Limine No. 6
Plaintiff’s Motion in Limine No. 6 [Docket No. 196] asks the Court to deny
defendants’ Proposed Jury Instruction No. 19 and seeks to preclude def endants from
introducing any evidence to support their affirmative defense of misuse. Docket No.
196 at 1.
Plaintiff argues that defendants’ Proposed Jury Instruction No. 19 improperly
places the burden on plaintiff to establish that she did not misuse the product, as
compared to placing the burden on defendants to establish that plaintiff misused the
product. Id. Defendants’ Proposed Jury Instruction No. 19 states: “For the plaintiff,
Miriam White, to recover from the defendant, Deere & Company, on her claim of sale of
a defective product, you must find all of the following have been proved by a
preponderance of the evidence: . . . 10. Misuse of the 4600 Tractor and 460 Loader
was not a cause of her injuries.” Docket No. 163-1 at 20. The Court addressed this
issue in its order on defendants’ motion for summary judgment and held that the burden
is on defendants. Docket No. 178 at 10. Accordingly, the Court finds that defendants’
Proposed Jury Instruction No. 19 improperly places the burden on plaintiff to show that
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her misuse was not a cause of her injuries.
Plaintiff next argues that because defendants cannot establish that plaintiff’s
conduct was unforeseeable, they should not be able to present any evidence regarding
their theory of misuse and that doing so would only serve to confuse the jury. Docket
No. 196 at 3. Plaintiff cites portions of Mr. Ney’s deposition in which he states that
defendants knew that operators used front-end loaders with pallet fork attachments to
lift square and round hay bales, and that operators have been killed by falling round
bales of hay. Id. at 2, 5-6.
The cases cited by plaintiff do not require in limine exclusion of defendants’
misuse theory in this case. The propriety of misuse instructions in Armentrout v. FMC
Corp., 842 P.2d 175, 187-89 (Colo. 1992), and Schmutz v. Bolles, 800 P.2d 1307, 1316
(Colo. 1990), was determined based on evidence presented at trial. Further, the cited
portions of Mr. Ney’s deposition do not establish whether prior accidents involving the
4600 Model tractor and 460 Model loader did, in f act, involve operator conduct similar
to Ms. White’s. Specifically, none of the cited portions of Mr. Ney’s deposition
discusses conduct similar to Ms. White’s alleged misuse in lifting a hay bale exceeding
the weight limits warned of in the operator’s manual.
Additionally, “[a] misuse instruction is also proper when an individual fails to read
or heed a manufacturer’s instructions and warnings.” White v. Caterpillar, Inc., 867
P.2d 100, 107 (Colo. App. 1993) (citing Peterson v. Parke Davis & Co., 705 P.2d 1001
(Colo. App. 1985)). Here, the undisputed evidence is that Ms. White read the entire
operator’s manual and that the manual repeatedly warns the user not to exceed a bale
weight of 700 pounds. Docket No. 178 at 2-4. The bale involved in this incident
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apparently weighed approximately 1500 pounds.
Accordingly, the Court finds that defendants may introduce evidence in support
of their misuse theory. Whether defendants are entitled to a misuse instruction will be
determined at the close of the evidence.

III. CONCLUSION
For the foregoing reasons it is
ORDERED that plaintiff’s Motion in Limine No. 1 [Docket No. 187] is held in
abeyance. It is further
ORDERED that plaintiff’s Motion in Limine No. 2 [Docket No. 188] is GRANTED
in part and DENIED in part. It is further
ORDERED that Kirk Ney may not testify regarding the total number of hours in
which the Model 4600 tractor has been operated.
ORDERED that plaintiff’s Motion in Limine No. 3 [Docket No. 189] is held in
abeyance. It is further
ORDERED that plaintiff’s Motion in Limine No. 4 [Docket No. 190] is GRANTED
in part and DENIED in part. It is further
ORDERED that plaintiff’s Motion in Limine No. 5 [Docket No. 191] is GRANTED.
It is further
ORDERED that defendants may not introduce Exhibit A-97. It is further
ORDERED that plaintiff’s Motion in Limine No. 6 [Docket No. 196] is GRANTED
in part and DENIED in part. It is further

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ORDERED that defendants’ Proposed Jury Instruction No. 19 is rejected.

DATED February 11, 2016.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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