SILVER et al v. BAD BOY ENTERPRISES LLC et al

Filing 212

ORDER granting 178 Motion for Reconsideration re 138 MOTION in Limine regarding to Exclude Other Incidents; granting 179 Motion for Reconsideration re 135 MOTION in Limine regarding to Exclude Prior Vehicle Models. Ordered by U.S. District Judge Clay D. Land on 11/25/2013. (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
The

Court

granted

Defendant

Bad

Boy

Enterprises

LLC’s

(“BBE”) motions in limine to exclude evidence of pre-June 2008
Bad Boy Buggy Classic Model vehicles and evidence of certain
other incidents involving prior model Bad Boy Buggy vehicles.
Order November 8, 2013, ECF No. 176.

The Court based its

ruling on Plaintiffs’ failure to point to evidence in the
present record that supports their argument that the prior
model Bad Boy Buggy vehicles are substantially similar to the
vehicle at issue in this case.
permit

Plaintiffs

to

file

a

The Court noted that it would
motion

for

reconsideration

of

these rulings with specific citation to the record evidence
supporting

substantial

similarity.

Plaintiffs

filed

two

motions for reconsideration (ECF Nos. 178 & 179), which are
granted.
BBE

emphasizes

that

there

are

differences

between

the

powertrain of the Series model Bad Boy Classic Buggy, which
was manufactured until June 2007, and the powertrain of the
SepEx model, which BBE began manufacturing in June 2007.
also

stresses

SepEx

model

that

it

vehicles

upgraded

the

manufactured

controller
after

June

software
2008.

BBE
in
But

Plaintiffs contend that all of the Bad Boy Buggy Classic model
vehicles suffered from common defects, including the location
of the accelerator pedal and the lack of a dual sensor in the
accelerator pedal system.

Plaintiffs pointed to the testimony

of David Brower, a BBE employee, who stated that the root
cause of unintended acceleration in all Bad Boy Buggy Classic
Model

vehicles,

including

pre-June

issues with the throttle pedal.

2008

vehicles,

involved

All Bad Boy Buggy Classic

model vehicles were subject to the exact same 2010 recall to
fix

issues

with

the

throttle

pedal.

The

recall

included

moving the location of the accelerator pedal, adding a dual
sensor, and adding a stop switch.

While there is evidence

that some unintended acceleration issues in pre-2008 Bad Boy
Buggy Classic model vehicles were caused by defects that did
not exist in the vehicle at issue here, there is also evidence
that the vehicles all shared a common defect that could lead

2

to unintended acceleration.

Based on this evidence, the Court

is satisfied that that there is a genuine fact dispute as to
whether a common defect caused a common effect in pre-June
2008 Bad Boy Buggy Classic model vehicles and the vehicle at
issue here.
jury

to

In other words, there is enough evidence for the

decide

that

a

common

defect

existed

and

caused

unintended acceleration.
Plaintiffs

also

pointed

to

evidence

that

the

pre-June

2008 Bad Boy Buggy Classic model vehicles and the vehicle at
issue in this case have same size and shape doorways and no
occupant containment safeguards, such as doors or seat belts.
Based on this evidence, the Court is satisfied that the preJune 2008 Bad Boy Buggy Classic model vehicles and the vehicle
at issue in this case are substantially similar in terms of
their

crashworthiness

in

tip-over

wrecks.

In

addition,

Plaintiffs pointed to evidence that the SepEx model Bad Boy
Buggy Classic Model vehicles actually had an increased risk of
tip-overs compared to the earlier Series models, so evidence
that BBE had notice of tip-overs and crashworthiness issues
involving Series model vehicles is relevant.
Because Plaintiffs pointed to sufficient evidence that
the pre-June 2008 Bad Boy Buggy Classic Model vehicles are
substantially similar to the vehicle at issue in this case in
terms

of

crashworthiness

and

unintended

3

acceleration,

the

Court vacates the portion of its order granting BBE’s motion
in limine to exclude prior vehicle models (ECF No. 135).

That

motion is now denied, and Plaintiffs shall be permitted to
introduce evidence of prior vehicle models at trial.

The

Court also vacates the portion of its order granting in part
BBE’s motion in limine to exclude other incidents (ECF No.
138).

That

motion

is

now

denied.

Plaintiffs

shall

be

permitted to introduce evidence of the Cody Smith incident.
Plaintiffs shall also be permitted to introduce P-115 and P193,

as

long

as

those

exhibits

are

redacted

to

exclude

incidents that occurred after September 25, 2008 as Plaintiffs
represent they will be.

IT IS SO ORDERED, this 25th day of November, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

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