SILVER et al v. BAD BOY ENTERPRISES LLC et al
Filing
176
ORDER denying 108 Motion in Limine; granting in part and denying in part 109 Motion in Limine; denying 111 Motion in Limine; denying 112 Motion to Strike; granting 135 Motion in Limine; granting in part and denying in part 137 Motio n in Limine; granting in part and denying in part 138 Motion in Limine; ruling on objections made in 150 Notice of Exhibits Not Produced by Plaintiffs Prior to Disclosure as Trial Exhibits; denying 164 Motion for Reconsideration. Ordered by U.S. District Judge Clay D. Land on 11/08/2013. (CGC)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
MARK SILVER and LAURA SILVER,
Individually and as Next
Friends and Parents of Leslie
Erin Silver, a minor child,
*
*
*
Plaintiffs,
CASE NO. 4:12-CV-5 (CDL)
*
vs.
*
BAD BOY ENTERPRISES LLC, BB
BUGGIES INC., and TEXTRON INC., *
Defendants.
*
O R D E R
Leslie
driving
a
Erin
(“Elle”)
2008
Bad
Silver
Boy
Buggy
was
seriously
Classic
injured
vehicle
while
(“Vehicle”)
designed and manufactured by Defendant Bad Boy Enterprises LLC
(“BBE”).
this
Her parents, Plaintiffs Mark and Laura Silver, brought
product
liability
later this year.
action,
which
is
scheduled
for
trial
At the pretrial conference, the Court deferred
ruling on several motions to allow the parties additional time
to
brief
addition,
(together,
the
issues.
Defendants
“Textron
reconsideration
of
the
The
BB
briefing
Buggies,
Defendants”)
Court’s
is
now
and
Inc.
filed
summary
complete.
Textron,
Inc.
motion
for
a
judgment
order.
discussed below, the Court makes the following rulings.
In
As
BBE’s
motion to limit the testimony of R. Patrick Donahue (ECF No.
108) is denied.
BBE’s motion to limit the testimony of Lawrence
A. Wilson (ECF No. 109) is granted in part and denied in part.
BBE’s motion to limit the testimony of Paul R. Lewis (ECF No.
111) is denied.
Plaintiffs’ motion to strike those motions as
untimely (ECF No. 112) is denied.
vehicle
models
(ECF
No.
135)
BBE’s motion to exclude prior
is
granted.
BBE’s
motion
to
exclude dissimilar vehicles (ECF No. 137) is granted in part and
denied in part.
No.
138)
is
BBE’s motion to exclude other incidents (ECF
granted
in
part
and
denied
in
part.
BBE’s
objections to Plaintiffs’ proposed trial exhibits (ECF No. 150)
are sustained as discussed in more detail below.
The Textron
Defendants’ Motion for Reconsideration (ECF No. 164) is denied.
DISCUSSION
I.
BBE’s Motions to Exclude Plaintiffs’ Experts
An
expert
witness
may
offer
opinion
testimony
if
his
“scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a
fact in issue.”
a
proffered
Fed. R. Evid. 702.
expert
must
be
To offer opinion testimony,
qualified
to
render
a
reliable
opinion based on sufficient facts or data and the application of
accepted methodologies.
Id.; Kumho Tire Co. v. Carmichael, 526
U.S. 137, 152 (1999); Daubert v. Merrell Dow Pharmaceuticals,
Inc.,
509
“gatekeeper
U.S.
to
579,
keep
592-93
out
(1993).
irrelevant
2
The
or
Court
must
unreliable
act
as
expert
testimony.”
United States v. Ala. Power Co., 730 F.3d 1278,
1282 (11th Cir. 2013) (citing Kumho Tire Co., 526 U.S. at 145;
Daubert, 509 U.S. at 596).
“This gatekeeping role, however, is
not intended to supplant the adversary system or the role of the
jury:
vigorous
cross-examination,
presentation
of
contrary
evidence, and careful instruction on the burden of proof are the
traditional
and
appropriate
admissible evidence.”
means
of
attacking
shaky
but
Id. (internal quotation marks omitted).
“In evaluating the reliability of scientific expert testimony, a
district court must assess whether the reasoning or methodology
underlying the testimony is scientifically valid and whether the
reasoning or methodology properly can be applied to the facts in
issue.”
Id. (internal quotation marks omitted).
With these
principles in mind, the Court will evaluate BBE’s objections to
Plaintiffs’ experts.
A.
R.
Motion to Exclude Testimony of R. Patrick Donahue
Patrick
acceleration
Peacock,
injuries.
is
Plaintiffs’
the Vehicle.
testified
immediately
circuit
of
Donahue
that
before
the
they
Elle
expert
unintended
and her friend, Brittany
experienced
Vehicle
on
an
crashed
unexpected
and
caused
surge
Elle’s
Donahue did not find any physical evidence of an open
or
an
intermittent
open
circuit
in
the
Vehicle’s
electrical system that could cause unintended acceleration.
Donahue
opined
that
if
the
testimony
3
of
Elle
and
But
Brittany
regarding the surge is believed, then the surge of the Vehicle
was caused by an intermittent open circuit, which would not
necessarily leave physical evidence.
BBE objects to Donahue’s testimony on two main grounds.
First, BBE contends that Donahue is not qualified to testify
about
electric
vehicles.
Second,
BBE
argues
that
Donahue’s
methodology is unreliable and that his testimony will not assist
the jury.
The Court will address each argument in turn.
Donahue
During
his
specialized
is
a
licensed
eighteen-year
in
troubleshooting
the
of
professional
career
design,
vehicle
at
electrical
General
analysis,
electrical
Motors,
engineer.
Donahue
testing,
systems.
BBE
and
contends
that Donahue is not qualified to opine about an electric vehicle
such as the one at issue here because Donahue’s work experience
focused
on
electrical
control
systems
used
in
gas-powered
vehicles and did not include work on the design of any vehicle
propelled by an electric motor.
BBE cannot seriously dispute
that Donahue completed extensive training on electric circuits,
digital systems, control systems, electric fields, and electric
machines.
BBE also cannot seriously dispute that Donahue has
significant experience working with vehicle electric systems and
controls.
According to Donahue, the motor that propels the
Vehicle is a larger version of the electric motors he worked on
throughout his career, and the electrical control system at the
4
heart of Donahue’s analysis has the same basic characteristics
as electrical control systems found in other vehicles.
Donahue’s
education,
satisfied
that
training,
Donahue
is
and
experience,
qualified
to
Based on
the
testify
Court
about
is
the
Vehicle’s electrical control system.
The
next
question
sufficiently reliable.
an
exemplar
is
whether
Donahue’s
methodology
is
Donahue inspected the Vehicle and tested
vehicle.
He
documents in this case.
also
reviewed
the
testimony
and
Again, both Elle and Brittany Peacock
testified that they experienced an unexpected surge immediately
before the Vehicle crashed and caused Elle’s injuries.
Donahue
found no physical evidence in the Vehicle of an intermittent
open circuit that could have caused the unintended acceleration.
But Donahue’s “breakout box” testing revealed several “failure
modes”
that
could
cause
unintended
acceleration
due
to
an
intermittent open circuit without leaving physical evidence in
the parts of the Vehicle that could be examined.
According to
Donahue, the test for an open circuit is very basic, and BBE
does not argue that Donahue’s “breakout box” testing was flawed.
Rather,
BBE
intermittent
evidence.
insists
open
that
it
is
simply
circuit
to
occur
not
without
possible
leaving
for
an
physical
But Donahue pointed to at least two reasons why an
intermittent open circuit could occur without leaving physical
evidence in the parts of the Vehicle that could be examined:
5
poor insulation of the wiring and water intrusion.
BBE may
certainly cross-examine Donahue regarding these theories, but
the
Court
finds
evidence.
that
BBE’s
a
jury
motion
to
should
exclude
weigh
the
Donahue’s
conflicting
testimony
is
denied.
B.
Motion to Exclude Testimony of Lawrence A. Wilson
Lawrence
A.
reconstruction
appear
to
Wilson
and
is
occupant
challenge
Plaintiffs’
retention
Wilson’s
intends
to
offer
design.
accident
occupant retention design testimony.
also
expert
opinions
on
accident
BBE
does
reconstruction
not
and
BBE asserts that Wilson
regarding
unintended
acceleration, the Vehicle’s stability, the Vehicle’s warnings,
and the recalls conducted by Defendants.
According to BBE,
Wilson is not qualified to offer an opinion on these topics.
Wilson is a licensed professional mechanical engineer.
is
currently
engineering.
pursuing
a
graduate
of
experience
accidents.
in
biomedical
Wilson has completed extensive coursework in the
field of accident reconstruction.
years
degree
He
Wilson has more than twenty
investigating
and
reconstructing
vehicle
He has consulted on the development of a graduate
level course in vehicle handling and accident reconstruction,
and
he
has
authored
papers
and
accident reconstruction.
6
presented
seminars
regarding
Wilson does not intend to testify regarding the cause of
unintended acceleration, and he does not intend to opine that
the
Vehicle
problem.
was
defective
due
to
an
unintended
acceleration
Rather, Wilson intends to testify that based on his
inspection of the scene, his inspection of the Vehicle, his
reconstruction of the accident, the testimony of witnesses, and
the
documents,
sudden
unintended
likely cause of the crash.
acceleration
was
the
most
If the jury believes the testimony
of Elle and Brittany and the testimony of Donahue, then the jury
can conclude that the Vehicle had an unintended acceleration
problem.
Wilson’s
testimony
is
about
causation;
if
Elle,
Brittany, and Donahue are believed, then Wilson opines that the
most
likely
cause
of
the
crash
is
sudden
unintended
acceleration, which is consistent with Wilson’s reconstruction
of the crash.
The Court finds that Wilson may offer his opinion
on causation.
Wilson also does not intend to opine that the Vehicle was
defective due to a stability problem.
testify
that
the
Vehicle
was
Rather, he intends to
defective
because
BBE
did
not
provide adequate occupant containment devices even though BBE
knew that the Vehicle had a propensity to roll over.
Wilson
tested the stability of an exemplar vehicle and reviewed BBE’s
documents
regarding
Bad
Boy
Classic
vehicles,
including
the
testimony of BBE’s representative regarding the Vehicle’s static
7
stability
factor.
Based
on
all
of
this
evidence,
Wilson
concluded that the Vehicle had a propensity to roll over.
Given
that propensity, Wilson determined that BBE should have provided
safeguards, such as doors or safety nets.
The Court finds that
Wilson may offer his opinion on occupant safety devices.
Wilson does intend to testify that BBE should have warned
of the risks of unintended acceleration and rollover.
Wilson
does not intend to offer any opinion on the content of such
warnings, but he contends that BBE should have provided some
warning.
Wilson’s opinion is based on an engineer’s “design
hierarchy,” which was developed by the National Safety Council
and the U.S. Military.
The design hierarchy requires that if a
product’s hazard cannot be “designed out” without altering the
product’s
intended
use
and
guard against the hazard.
function,
then
the
designer
must
And if the designer does not guard
against the hazard, then the designer must provide a warning
about
the
hazard.
As
discussed
above,
Wilson’s
primary
contention is that BBE should have put safeguards on the Vehicle
to protect occupants in the event of a rollover.
Wilson also
asserts that because BBE did not place occupant safeguards on
the Vehicle, BBE should have warned of the risks of unintended
acceleration and rollover.
This opinion is in line with the
8
engineer’s design hierarchy, and the Court finds that it is
sufficiently reliable to be admitted.1
Wilson also intends to testify that BBE did not adequately
conduct recalls of the Bad Boy Buggy Classic vehicles because
(1)
BBE
conducted
the
first
recall
without
notifying
the
Consumer Product Safety Commission (“CPSC”) as it was required
to do, and (2) BBE did not meet its obligations in contacting
customers affected by the recall.
any
evidence
training,
or
that
Wilson
education
has
knowledge,
regarding
proper recall techniques.
Plaintiffs did not point to
CPSC
skill,
notice
experience,
requirements
or
Nonetheless, Plaintiffs contend that
Wilson may testify about the recall because he reviewed the CPSC
Recall Handbook.
Wilson, however, did not reference the CPSC
Recall Handbook in his expert report or his deposition.
Even if
he had, there is no evidence that Wilson is qualified to testify
about CPSC recall requirements.
Plaintiffs also assert that
Wilson can testify about the adequacy of BBE’s notice efforts
because
he
reviewed
documents
regarding
how
many
vehicles
received the fix following the recall.
But Plaintiffs offered
no
to
evidence
that
Wilson
is
qualified
render
an
opinion
regarding the adequacy of a recall effort based on the “fix”
1
Much of BBE’s objection focuses on the fact that Wilson is not
qualified to offer an opinion regarding the contents of the warning.
Again, Wilson does not intend to offer an opinion regarding the
contents of the warning.
9
rate.
For all of these reasons, the Court concludes that Wilson
may not offer an opinion on BBE’s recall efforts.
In summary, Wilson may offer expert opinions on accident
reconstruction and occupant retention design.
Wilson may also
offer opinions regarding unintended acceleration and stability
in
the
context
of
his
occupant
retention
design
theory.
Finally, Wilson may offer an opinion regarding design hierarchy,
including an opinion that some warning was required if occupant
safeguards were not included on the Vehicle.
Wilson may not
offer any expert testimony on BBE’s recall efforts.
C.
Motion to Exclude Testimony of Paul R. Lewis
Paul Lewis is Plaintiffs’ expert on biomechanics.
biomedical
dynamics.
engineer
He
with
intends
expertise
to
testify
in
biomechanics
that
Elle’s
He is a
and
crash
injuries
were
caused by a crashworthiness defect in the Vehicle.
BBE does not
object to Lewis’s qualifications or methodology.
Rather, BBE
contends
that
Lewis
simply
intends
to
testify
that
if
the
Vehicle had a door, then Elle would not have stuck her foot out
of the Vehicle and her foot would not have been crushed.
asserts
that
this
causation
opinion
is
within
the
knowledge of the jury, so no expert testimony is
Plaintiffs
assert
that
alternative
design
and
Lewis
explain
will
how
testify
the
common
necessary.
about
different
BBE
feasible
alternative
designs would have helped and would not have been too burdensome
10
to implement.
These topics are not within the common knowledge
of the average juror, so the Court will permit Lewis to offer
his causation opinion.
BBE
also
evidence
contends
without
that
Lewis
offering
will
simply
independent
parrot
expert
the
analysis.
Specifically, BBE asserts that Lewis will summarize documents
and
witness
testimony,
such
as
Elle’s
medical
records,
the
testimony about the crash, and testimony of BBE representatives
regarding occupant safety devices.
Lewis
to
testify
received
medical
because
about
Lewis
expert.
reference
The
Elle’s
crashworthiness
the
is
medical
defect
specific
not
Court
medical
seeking
will,
records
caused
The Court will not permit
to
Elle’s
to
be
however,
explain
specific
treatment
Elle
qualified
permit
how
as
Lewis
a
to
the
alleged
injury.
Lewis
also may not simply parrot the witness testimony regarding the
crash, but he may offer his opinion on occupant kinematics,
which
is
based
not
only
on
witness
testimony
but
on
his
examination of the crash site and his experience investigating
other vehicle crashes.
Finally, Lewis may not simply repeat the
testimony of BBE’s representatives about the need for occupant
safety devices, but he may offer an opinion regarding occupant
safety
devices
if
it
is
based
observations.
11
on
his
own
experience
and
BBE also objects to Lewis’s testimony regarding the proper
classification of the Vehicle.
Lewis
is
not
qualified
Plaintiffs do not dispute that
to
testify
classification of the Vehicle.
offer
an
opinion
on
how
the
about
the
proper
But Lewis does not intend to
Vehicle
should
be
classified.
Rather, he intends to testify that it does not matter how the
Vehicle is classified when determining whether it should have
had certain occupant safety devices.
Lewis compared the Vehicle
to other side-by-side all-terrain vehicles that weigh more than
1,000
pounds,
have
the
capability
to
tip
over
and
eject
an
occupant at relatively low speeds (regardless of maximum speed
capability), and have structures capable of crushing an occupant
following a tip-over crash.
Based on his comparison, Lewis
determined that it is appropriate to
compare the Vehicle to
other types of all-terrain vehicles, including recreational offhighway
vehicles,
measures.
for
purposes
of
evaluating
its
safety
The Court declines to exclude this testimony.
For
all of these reasons, BBE’s motion to exclude Lewis’s testimony
is denied.
II.
BBE’s Motion to Exclude Prior Vehicle Models
BBE manufactured the “Series Model” Bad Boy Classic vehicle
from 2004 to 2007 and then began manufacturing the “SePex Model”
in June 2007.
BBE modified certain features of the SePex Model
in June 2008.
The Vehicle at issue here is a SePex Model that
12
was
manufactured
on
September
25,
2008.
BBE
contends
that
vehicles manufactured prior to June 2008 are not substantially
similar to the Vehicle and asks the Court to exclude evidence of
all Bad Boy Buggies manufactured before June 2008.
“Evidence of similar occurrences may be offered to show a
defendant’s
magnitude
ability
notice
of
to
of
the
defect
correct
a
a
particular
or
known
danger
defect
or
involved,
defect,
the
lack
danger,
the
of
the
defendant’s
safety
for
intended uses, the strength of a product, the standard of care,
and causation.”
Hessen ex rel. Allstate Ins. Co. v. Jaguar
Cars, Inc., 915 F.2d 641, 650 (11th Cir. 1990).
similar
occurrences
substantially
“is
similar
to
only
the
admissible
occurrence
if
caused
Evidence of
conditions
the
prior
accidents, and the prior incidents were not too remote in time.”
Id.
at 649.
“The ‘substantially similar’ predicate for the
proof of similar accidents is defined . . . by the defect at
issue.
Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070,
1083 (5th Cir. 1986).
necessarily
Other cases involving similar, but not
identical,
products
can
be
admissible.
Id.
(finding that similar but not identical multi-piece tire wheel
rim
configurations
were
relevant
and
admissible
and
that
district court improperly concluded that substantial similarity
doctrine required exact same parts).
circumstances
surrounding
the[]
13
“Any differences in the
occurrences
go
merely
to
the
weight to be given the evidence.”
Id.; accord Toole v. Baxter
Healthcare Corp., 235 F.3d 1307, 1313 (11th Cir. 2000) (finding
that
the
district
court
did
not
abuse
its
discretion
in
admitting evidence of adverse incidents that were similar to—but
not
exactly
incidents
the
were
same
as—the
relevant
incident
to
notice
at
of
issue
because
design
issues
the
with
product).
Plaintiffs
seek
to
introduce
evidence
of
incidents
involving pre-June 2008 Bad Boy Buggies for two reasons.
they
seek
to
crashworthiness
introduce
claim
to
the
evidence
show
that
in
BBE
support
was
of
aware
First,
their
that
its
vehicles did not provide adequate safeguards in the event of a
tip-over
crash.
Second,
Plaintiffs
seek
to
introduce
the
evidence in support of their unintended acceleration claim to
show that BBE was aware that its vehicles had a propensity to
accelerate suddenly without input from the driver.
Plaintiffs
argue that the vehicles are substantially similar with regard to
these two defects.
Plaintiffs cited
evidence in support of
their assertion that both models have the same door opening size
and shape, but they did not point to evidence in support of
their assertion that both models travel at the same speed and
have similar rollover propensity.
cite
evidence
in
support
of
Likewise, Plaintiffs did not
their
assertion
that
despite
significant changes to the powertrain system from the Series
14
model
to
similar
the
in
SePex
terms
model,
of
their
the
two
risk
models
of
are
substantially
unintended
acceleration
because neither model contained a dual sensor in the accelerator
pedal
system.
While
Plaintiffs’
arguments
are
superficially
appealing, the Court cannot ignore the fact that Plaintiffs did
not cite evidence of substantial similarity in their brief.
The
Court cannot take Plaintiffs’ word for it that the different
models
search
are
the
arguments.
substantially
record
for
similar,
and
evidence
that
the
Court
supports
declines
to
Plaintiffs’
Based on the present record, BBE’s motion to exclude
evidence of prior vehicle models is granted.
If Plaintiffs
believe that the present record does support a finding that
Series Model vehicles and pre-June 2008 SePex model vehicles are
substantially similar to the Vehicle, Plaintiffs shall file a
motion for reconsideration of this issue within seven days of
today’s Order with a specific citation to the record evidence
supporting substantial similarity.
III. BBE’s Motion to Exclude Dissimilar Vehicles
BBE asks the Court to exclude
evidence of several gas-
powered side-by-side all-terrain vehicles, including the Yamaha
Rhino, the Honda Big Red, and the Gator XUV.
BBE offers several
bases for excluding this evidence, and the Court addresses each
argument in turn.
15
First, BBE contends that evidence of the 2007 Yamaha Rhino
should be excluded.
Plaintiffs seek to introduce evidence of
the 2007 Yamaha Rhino in support of their alternative design
theory.
In 2007, Yamaha began placing doors on the Rhino to
prevent foot injuries.
It is undisputed that the Yamaha Rhino
is classified as a recreational off-highway vehicle because it
has a maximum speed of more than thirty miles per hour.
It is
also undisputed that the Bad Boy Buggy Classic model is not a
recreational off-highway vehicle because its maximum speed is
slower than thirty miles per hour.
Plaintiffs’ experts opine
that recreational off-highway vehicles such as the Yamaha Rhino
are sufficiently similar to the Bad Boy Buggy Classic vehicle
for
purposes
devices.
of
evaluating
the
Vehicle’s
occupant
safety
That is because the Bad Boy Buggy Classic vehicle and
the Yamaha Rhino are both side-by-side all-terrain vehicles with
similar weights and physical dimensions that can roll or tip
over at relatively low speeds.
No.
109-1;
Lewis
Plaintiffs’
Dep.
evidence
See generally Wilson Report, ECF
22:18-23:10,
that
the
2007
ECF
No.
Yamaha
is
148.
Given
sufficiently
similar to the Bad Boy Buggy Classic vehicle for purposes of
evaluating
the
Vehicle’s
occupant
safety
devices,
the
Court
agrees with Plaintiffs that evidence of the 2007 Yamaha Rhino is
relevant to show that a safer design was technologically and
economically
feasible
before
the
16
manufacture
date
of
the
Vehicle.
Therefore, Plaintiffs will be permitted to introduce
evidence regarding the 2007 Yamaha Rhino.
Second,
BBE
recreational
Vehicle’s
contend
asks
the
off-highway
manufacture
that
vehicles
date,
evidence
Court
of
to
evidence
of
after
the
manufactured
September
occupant
exclude
25,
2008.
safety
Plaintiffs
characteristics
in
other vehicles is relevant to establish a defect in the Vehicle.
In support of this assertion, Plaintiffs cite Ross v. Black &
Decker, Inc., 977 F.2d 1178, 1185 (7th Cir. 1992), in which the
Seventh Circuit affirmed the district court’s decision to admit
evidence
of
occurred
after
stands
for
accidents
the
the
involving
the
plaintiff’s
proposition
defendant’s
injury
that
date.
subsequent
product
Ross,
adverse
that
however,
incidents
involving the exact same product may be relevant to establish
defect
and
causation.
Id.
Ross
does
not
establish
that
subsequent incidents involving different products are relevant
on these issues.
vehicles
Plaintiffs may not introduce evidence of other
manufactured
after
September
25,
2008
to
establish
defect or causation.
Plaintiffs also contend that the Court should permit them
to
introduce
evidence
of
recreational
off-highway
vehicles,
regardless of manufacture date, to demonstrate the principles
behind “rollovers.”
cite
Heath
v.
Suzuki
In support of this argument, Plaintiffs
Motor
Corp.,
17
126
F.3d
1391
(11th
Cir.
1997).
In Heath, the plaintiffs alleged that the defendant’s
vehicle
had
vehicles,
a
and
higher
the
propensity
rollover
for
rate
of
rollovers
comparable
Circuit
concluded
that
it
other
vehicles
was
Id. at 1396-97.
relevant to the plaintiffs’ defect claim.
Eleventh
than
The
was
not
an
abuse
of
discretion for the district court to admit evidence of rollovers
of “pointedly dissimilar” vehicles because the “evidence was not
offered to reenact the accident” at issue in the case but was
offered
“to
explain
how
rollovers
occur.”
Vehicle tipped over onto its side, and
Id.
Here,
the
the parties fiercely
debate whether this “tip over” constitutes a “rollover.”
The
Court finds that it would be confusing to permit evidence of
dissimilar vehicles to explain how “rollovers” occur and thus
declines to permit such evidence.
Third, BBE asks that the Court exclude a 2011 report called
“Vehicle
Characteristics
Measurements
of
Recreational
Off-
Highway Vehicles” because the vehicles referenced in that report
are classified as recreational off-highway vehicles, while the
Vehicle is not.
Plaintiffs did not respond to BBE’s motion
regarding the report or offer a reason why the report should be
admitted.
In
evidence
permitted
The report will thus be excluded.
summary,
of
to
the
Plaintiffs
2007
Yamaha
introduce
will
be
Rhino.
evidence
18
of
permitted
Plaintiffs
recreational
to
introduce
will
not
be
off-highway
vehicles manufactured after September 25, 2008, and they will
not be permitted to introduce the April 2011 report entitled
“Vehicle
Characteristics
Measurements
of
Recreational
Off-
Highway Vehicles.”
IV.
BBE’s Motion to Exclude Other Incidents
BBE asks the Court to exclude other incidents involving Bad
Boy Buggy vehicles.
incidents
are
acceleration
Plaintiffs contend that the following other
admissible:
incidents
with
(1)
a
Edwin
2008
Bad
Dear’s
Boy
unintended
Buggy,
(2)
Cody
Smith’s tip-over accident with a 2005 Bad Boy Buggy, (3) Gary
Knight and Jared Stice’s tip-over accident with a 2008 Bad Boy
Buggy,
and
(4)
BBE’s
unintended
acceleration
incident
report
charts.
As discussed above, “[e]vidence of similar occurrences may
be offered to show a defendant’s notice of a particular defect
or danger, the magnitude of the defect or danger involved, the
defendant’s
ability
safety
intended
for
to
correct
uses,
the
a
known
strength
defect,
of
a
the
lack
product,
of
the
standard of care, and causation.”
Hessen, 915 F.2d at 650.
Evidence
“is
of
similar
occurrences
only
admissible
if
conditions substantially similar to the occurrence caused the
prior accidents, and the prior incidents were not too remote in
time.”
Id. at 649.
19
A.
Edwin Dear Incidents
Edwin Dear had a 2008 Bad Boy Buggy Classic model vehicle.
He
experienced
unintended
acceleration
on
several
occasions.
First, while Dear was working on the vehicle in his shop during
the fall of 2008, the vehicle started on its own and ran into a
refrigerator.
The tires kept spinning until Dear turned off the
key switch.
Dear took the vehicle back to the dealer, and BBE
reprogrammed
it
recall.
In
so
May
that
2009,
it
was
Dear
in
compliance
again
with
experienced
the
2008
unintended
acceleration, and he was able to stop the vehicle by turning off
the key switch.
worked on it.
Dear took the vehicle back to BBE, and BBE
In August 2009, Dear experienced a surge while he
was driving his Bad Boy Buggy vehicle.
dealership,
and
BBE
had
the
vehicle
He took it back to the
in
its
shop
until
late
October 2009, which is also when BBE issued the second recall.
In the spring of 2010, Dear experienced another incident of
unintended acceleration, and he reported the incident to BBE’s
president and a number of other BBE employees.
BBE contends that the incidents with Dear’s vehicle are not
sufficiently similar to the issues Elle experienced because (1)
Dear experienced uncontrollable wheel spin but Elle was able to
achieve deceleration by using the brake pedal and (2) Dear’s
vehicle did not tip over or injure him.
Plaintiffs intend to
introduce evidence of Dear’s unintended acceleration experiences
20
to
show
(1)
2008
Bad
Boy
Buggy
Classic
vehicles
had
an
unintended acceleration defect, (2) BBE was aware of unintended
acceleration problems when it undertook its recalls, (3) the
2008 recall did not fix the unintended acceleration problem, and
(3) the
2009
problem.
recall did not fix the unintended acceleration
Given that Elle and Dear both testified that they
experienced an unintended “surge”
with a 2008 Bad Boy Buggy
Classic vehicle, the Court is satisfied that the conditions of
their
experiences
are
sufficiently
similar
for
the
evidence
regarding Dear’s vehicle to be admitted even though Dear did not
suffer a tip-over accident or a traumatic injury.
B.
Cody Smith Incident
Cody Smith was injured when he was driving a 2005 Series
Model Bad Boy Buggy.
As discussed above, Plaintiffs did not
point to sufficient evidence of substantial similarity between
Series Model vehicles and the Vehicle at issue in this action.
Therefore,
Plaintiffs
shall
evidence of Smith’s accident.
not
be
permitted
to
introduce
If Plaintiffs believe that the
present record does support a finding that Series Model vehicles
are substantially similar to the Vehicle, Plaintiffs shall file
a motion for reconsideration of this issue within seven days of
today’s Order with a specific citation to the record evidence
supporting substantial similarity.
21
C.
Gary Knight/Jared Stice Incident
In August 2008, Jared Stice was driving a 2008 Bad Boy
Classic vehicle with Gary Knight as his passenger.
The front
end of the vehicle locked up as Stice made a turn.
tipped over onto its side.
stuck out his leg.
broke it.
The vehicle
As the vehicle tipped over, Knight
The vehicle fell on top of Knight’s leg and
BBE contends that the Knight/Stice accident is not
sufficiently similar to Elle’s crash because the events leading
up to the tip-over were different: Plaintiffs contend that the
Vehicle here tipped over due to unintended acceleration, while
the Knight/Stice accident resulted after the front end of the
vehicle locked up.
Plaintiffs intend to introduce evidence of the Knight/Stice
incident to demonstrate that BBE was on notice of the need for
occupant safety devices such as doors, netting, or seatbelts
before
the
manufacture
date
of
the
Vehicle
at
issue
here.
Although the precise cause of the tip-over was not exactly the
same in both cases, the Court is satisfied that the incidents
are
sufficiently
similar,
intend
to
introduce
notice
of
a
the
potential
particularly
given
that
Plaintiffs
Knight/Stice
incident
to
crashworthiness
defect
prior
manufacture date of the Vehicle.
22
establish
to
the
D.
Other Unintended Acceleration Incidents
BBE objects to two exhibits proffered by Plaintiffs: P-115
and P-193.
are
BBE
Plaintiffs represent that both of these documents
business
records
that
summarize
sudden
acceleration issues with Bad Boy Buggy vehicles.
unintended
Plaintiffs
also contend that the charts may be introduced under Federal
Rule of Evidence 1006, which relates to summaries of voluminous
writings that cannot be conveniently examined in court.
Given
that
Court
the
charts
are
BBE’s
own
business
records,
declines to exclude them on hearsay grounds.
the
Therefore, the
Court would permit Plaintiffs to introduce the charts at least
to show notice of unintended acceleration issues, except for two
problems.
First, the charts contain summaries of incidents that
were, for the most part, reported to BBE after the Vehicle was
manufactured
and
thus
cannot
be
used
to
establish
notice.
Second, it is not possible to tell from the charts whether the
vehicle was a Series model, a pre-June 2008 SePex model, or a
post-June 2008 SePex model.
See generally Pl.’s Resp. to Def.’s
Mot. to Exclude Other Incidents Attach. 1, Summary of Complaints
– Sepex Units, ECF No. 156-1; Pl.’s Resp. to Def.’s Mot. to
Exclude Other Incidents Attach. 2, BBE Issue Event Log, ECF No.
156-2.
As
discussed
above,
Plaintiffs
did
not
point
to
sufficient evidence to establish that pre-June 2008 vehicles are
substantially similar to post-June 2008 vehicles in terms of
23
their
risk
of
unintended
acceleration.
For
these
reasons,
Plaintiffs will not be permitted to introduce P-115 and P-193.
If Plaintiffs believe that the present record does support a
finding that pre-June 2008 vehicles are substantially similar to
the Vehicle, Plaintiffs shall file a motion for reconsideration
of this issue within seven days of today’s Order with a specific
citation
to
the
record
evidence
supporting
substantial
similarity.
E.
Summary of “Other Incident” Evidence Rulings
As discussed above, Plaintiffs may introduce evidence of
the Dear unintended acceleration incidents and the Knight/Stice
accident.
Plaintiffs may not introduce evidence of the Smith
accident or the BBE incident reports.
V.
BBE’s Objections to Plaintiffs’ Trial Exhibits
BBE
objects
to
several
exhibits
on
Plaintiffs’
exhibit
list, contending that they should be excluded from trial because
they
were
not
produced
during
discovery.
BBE
withdrew
its
objections to P-585 to P-599 and P-2964, so those exhibits will
be
permitted
at
trial.
In
response
to
Plaintiffs withdrew the following exhibits:
2965, P-2966, P-2968, and P-2969.
BBE’s
objections,
P-615 to P-617, P-
Those exhibits will not be
permitted at trial.
As
to
the
remaining
exhibits,
which
include
regulatory
documents, videos, and photographs, Plaintiffs contend that BBE
24
did not request them and/or that the documents were produced as
soon as they were added to Plaintiffs’ file.
BBE requested
“[c]opies of all documents that [Plaintiffs] contend support or
tend to support any claims or allegations [they] assert against
Defendants in [their] Complaint that [they] have not previously
produced or are not producing in response to [BBE’s] document
requests.”
Def.’s Reply to Notice of Exs. Not Produced by Pls.
Prior to Disclosure as Trial Exhibits Ex. B, Def.’s 1st Req. for
Produc. of Docs. 9 ¶ 10, ECF No. 161-2.
includes
“reports,”
“books,”
“all
“photographs,” and “video recordings.”
The term “document”
writings
of
any
Id. at 2-3 ¶ K.
kind,”
Based
on this request, the Court concludes that BBE did request the
disputed exhibits.
Accordingly, the exhibits should have been
produced during discovery.
In general, if an exhibit was requested during discovery
but not produced until after the close of discovery, then the
Court will not permit the exhibit at trial unless a compelling
reason is given for the proffering party’s failure to disclose
it during discovery.
The Court finds that Plaintiffs did not,
in the abbreviated reasons given in their response and sur-reply
to BBE’s objections, establish a compelling reason for their
failure to produce the exhibits during discovery.
Therefore,
the following exhibits will not be permitted at trial: P-361, P-
25
403, P-409, P-600 to P-614, P-2934 to P-2950, P-2954 to P-2957,
P-2963, and P-2970.
VI.
Textron Defendants’ Motion for Reconsideration
The
order
Textron
denying
Defendants
their
ask
summary
the
Court
judgment
to
reconsider
motion.
The
its
summary
judgment motion focused on the Textron Defendants’ contention
that
they
did
not
have
adequate
information
to
notify
the
Vehicle’s owner of the recall—implying that they would have sent
him notice if they had his name and address.
See generally
Defs.’ Br. in Supp. of Mot. for Summ. J., ECF No. 92-1.
Textron
Defendants
now
contend
that
the
Court
The
erroneously
decided that the recall they undertook included direct notice to
BB Buggies customers.
undisputed
that
the
The Textron Defendants assert that it is
recall
they
undertook
did
not
encompass
direct notice to owners of BB Buggies vehicles and ask the Court
to find that their recall was reasonable as a matter of law.
The
Textron
Defendants
did
not,
in
their
statement
of
material facts, clearly assert that the recall they undertook
did not include direct notice.
Plaintiffs, however, pointed out
that the corrective action plan approved by the Consumer Product
Safety Commission (“CPSC”) “made no provision to address the
consumers who bought directly from the factory.”
Pls.’ Resp. to
Defs.’ Statement of Material Facts ¶ 26, ECF No. 96.
Seizing on
this statement, the Textron Defendants argue that because the
26
CPSC did not include direct notice to customers in its list of
actions included in the approved corrective action plan, there
is
no
fact
question
as
to
whether
the
Textron
Defendants
undertook a duty to provide direct notice to customers.
The Textron Defendants are correct that the CPSC stated
that the corrective action plan included a variety of notice
methods, including press releases and recall notices posted in
stores.
The CPSC letter did not list any letters to customers,
via dealers or otherwise.
Defs.’ Mot. for Summ. J. Ex. D,
Letter from T. Topka to M. Hall (Dec. 22, 2010), ECF No. 92-10.
When the CPSC approved the Textron Defendants’ action plan,
the CPSC stated that the Textron Defendants should “continue the
corrective actions implemented and initiate any others contained
in the [corrective action plan].”
looked
to
the
proposed
corrective
Id. at 2.
action
The Court thus
plan
the
Textron
Defendants sent to the CPSC, which the Textron Defendants cited
in support of their summary judgment motion.
Defs.’ Mot. for
Summ. J. Ex. C, Letter from M. Hall to T. Topka (Dec. 10, 2010),
ECF No. 92-9.
That proposed corrective action plan included a
“draft letter to owners”
and stated that the
“owner letter”
would “be sent to all known owners of Classic Buggies purchased
through June 2010.”
Id. at 1.
Based on the corrective action
plan proposal letter, the Court found a genuine fact dispute on
whether the Textron Defendants undertook a duty to send recall
27
notices directly to BB Buggies owners.
Even if there were no
such factual dispute, there would still be a fact question on
the reasonableness of the recall program.
If the recall program
did not include any direct notice to known BB Buggies owners as
the Textron Defendants argue, then a jury could conclude that
the
Textron
Defendants
did
not
exercise
reasonable
care
in
conducting the recall.
For
these
reasons,
the
Textron
Defendants’
Reconsideration (ECF No. 164) is denied.
Motion
for
There is no need to
certify this straightforward issue to the Georgia Supreme Court.
CONCLUSION
For the reasons set forth above, BBE’s motion to limit the
testimony of R. Patrick Donahue (ECF No. 108) is denied.
BBE’s
motion to limit the testimony of Lawrence A. Wilson (ECF No.
109) is granted in part and denied in part.
BBE’s motion to
limit the testimony of Paul R. Lewis (ECF No. 111) is denied.
Plaintiffs’ motion to strike those motions as untimely (ECF No.
112) is denied.
BBE’s motion to exclude prior vehicle models
(ECF No. 135) is granted.
BBE’s motion to exclude dissimilar
vehicles (ECF No. 137) is granted in part and denied in part.
BBE’s motion to exclude other incidents (ECF No. 138) is granted
in part and denied in part.
The Court sustains BBE’s objections
as to the following exhibits: P-361, P-403, P-409, P-600 to P614, P-615 to P-617, P-2934 to P-2950, P-2954 to P-2957, P-2963,
28
P-2965, P-2966, and P-2968 to P-2970.
The Textron Defendants’
Motion for Reconsideration (ECF No. 164) is denied.
IT IS SO ORDERED, this 8th day of November, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
29
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?