BROGDON et al v. FORD MOTOR COMPANY
Filing
327
ORDER denying 231 Motion in Limine Ordered by US DISTRICT JUDGE CLAY D LAND on 1/23/2025 (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
JAMES EDWARD BROGDON, JR., et
al.,
Plaintiffs,
vs.
FORD MOTOR COMPANY,
Defendant.
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CASE NO. 4:23-CV-88 (CDL)
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O R D E R
Ford Motor Company filed a motion in limine (ECF No. 231) to
limit Plaintiffs’ “Evidence of Other Incidents” at trial.
The
Court allowed Plaintiffs to submit a supplemental expert affidavit
in opposition to the motion, and it permitted Ford to make specific
objections to Plaintiffs’ proffered similar incident evidence.
Order 11-12 (Dec. 17, 2024), ECF No. 297.
The Court reviewed the
supplemental affidavit, as well as Ford’s specific objections, and
the Court finds that Ford’s motion to exclude the other similar
incident (“OSI”) evidence should be denied.
DISCUSSION
In a product liability case, if “a party seeks to admit prior
accidents or occurrences involving the opposing party to show . . .
‘notice, magnitude of the danger involved, the defendant’s ability
to correct a known defect, the lack of safety for intended uses,
strength of a product, the standard of care, [or] causation,’ the
substantial similarity doctrine applies.”
Henderson v. Ford Motor
Co., 72 F.4th 1237, 1242 (11th Cir. 2023) (quoting Jones v. Otis
Elevator Co., 861 F.2d 655, 661–62 (11th Cir. 1988)); accord Heath
v. Suzuki Motor Corp., 126 F.3d 1391, 1396 (11th Cir. 1997).
“The
doctrine ‘does not require identical circumstances, and allows for
some play in the joints depending on the scenario presented and
the desired use of the evidence.’”
Henderson, 72 F.4th at 1243
(quoting Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1288, 1287
(11th Cir. 2015)).
But, to be admissible, a prior incident “must
be similar enough to the present incident ‘to allow the jury to
draw a reasonable inference’ regarding the defendant’s knowledge
or ability to foresee the incident at issue.”
Sorrels, 796 F.3d at 1288).
remote in time.”
Id. (quoting
And, it “must not have occurred too
Id. (quoting Jones, 861 F.2d at 662).
The
purpose of this rule is “to limit the substantial prejudice that
might inure to a party should” dissimilar “past occurrences or
accidents be admitted into evidence.”
Heath, 126 F.3d at 1396.
In his supplemental expert affidavit, Plaintiffs’ engineering
expert, Brian Herbst, explained that he and other automotive
engineers regularly rely on other similar incidents in reaching
their opinions on the safety of vehicle designs, including roof
structure designs.
Herbst 2d Aff. ¶¶ 4-5, ECF No. 302-1.
To
determine whether an “other incident” involving a rollover crash
is sufficiently similar to the subject incident, Herbst considers
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the following “touchstones”: “(1) common design of the vehicle
with similar or the same roof structure; (2) the commonly designed
roofs crushed down in a rollover; (3) the vehicles were not
carrying an extraordinary amount of payload weight; (4) the failure
modes of roof components were substantially similar; and (5) Ford
knew, or should have known, about the rollover incident.”
¶ 8.
Id.
According to Herbst, each of the 110 OSI incidents he
identified for this case meets these touchstones.
Id.
So,
according to Herbst, each of the other vehicles had the same roof
structure or a similar roof structure as the Millses’ truck, the
vehicles were involved in rollover wrecks like the Millses’ wreck
where the roof crushed during the rollover, and the failure modes
of the roof components in the other vehicles were substantially
similar to the failure modes of the roof components in the Millses’
truck.
Herbst’s
Ford’s arguments to the contrary go to the weight of
testimony
admissibility.
regarding
the
OSI
evidence,
not
its
For these reasons, the Court is satisfied the OSI
evidence proffered by Plaintiffs is sufficiently and substantially
similar to be admitted for the purposes for which Plaintiffs seek
to admit it.
Ford also argues that the OSI evidence should be excluded as
inadmissible
hearsay.
It
is
the
Court’s
understanding
that
Plaintiffs intend to introduce the OSI evidence to show notice of
the defect, among other things, and not for the truth of the matter
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asserted.
If the OSI is introduced for that purpose, then it is
not hearsay.
Moreover, in forming their opinions, experts like
Herbst are allowed to rely on evidence that is not otherwise
admissible—including hearsay evidence—as long as that type of
evidence is reasonably relied on by experts in the field to form
opinions.
Knight through Kerr v. Miami-Dade Cnty., 856 F.3d 795,
809 (11th Cir. 2017); accord Fed. R. Evid. 703.
Herbst stated in
his affidavit that automotive engineers routinely consider OSI
evidence
in
evaluating
the
crashworthiness
of
roof
structure
designs.
The Court therefore denies Ford’s motion to exclude the
OSI evidence on hearsay grounds.
Finally, Ford seeks to exclude the OSI evidence under Federal
Rule of Evidence 403.
The Court rejects Ford’s argument that the
probative value of the OSI evidence is substantially outweighed by
a danger of unfair prejudice, confusing the issues, or misleading
the jury.
It is not.
Ford also argues that allowing Plaintiffs
to present evidence of all 100+ other similar incidents would be
needlessly cumulative, result in undue delay, and waste the jury’s
time.
The Court is concerned that allowing the introduction of
all 100+ other similar incidents would be unnecessarily cumulative
and unreasonably expand the trial.
Thus, the Court directs that
Plaintiffs’ counsel choose a sample of 50 cases representative of
the OSI evidence to introduce.
If Ford’s counsel opens the door
to the admission of additional OSI evidence by suggesting that the
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sample represents the entire universe of other similar incidents,
Plaintiffs’ counsel should alert the Court at that time, and the
Court
will
decide
whether
additional
OSI
evidence
should
be
admitted.
CONCLUSION
For the reasons set forth above, the Court denies Ford’s
motion in limine regarding “Evidence of Other Incidents” (ECF No.
231).
Nothing in this order should be construed as permitting
evidence the Court previously concluded is inadmissible on other
grounds, such as evidence of the disposition or settlement of other
claims.
IT IS SO ORDERED, this 23rd day of January, 2025.
S/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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