Gaddy v. Terex Corporation et al
Filing
478
OPINION AND ORDER granting Defendants Terex Corporation, Terex Utilities, Inc., and Terex South Dakota, Inc.'s Motion In Limine No. 2 To Exclude All References to ABC Professional Tree Services, Inc. (ABC) 411 . Signed by Judge William S. Duffey, Jr on 3/27/18. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JEFFREY GADDY,
Plaintiff,
v.
1:14-cv-1928-WSD
AMERICAN INTERSTATE
INSURANCE COMPANY,
Intervenor Plaintiff,
v.
TEREX CORPORATION, TEREX
SOUTH DAKOTA, INC., and
TEREX UTILITIES, INC.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendants Terex Corporation, Terex
Utilities, Inc., and Terex South Dakota, Inc.’s (“Terex SD”) (collectively,
“Defendants” or “Terex”) Motion In Limine No. 2 To Exclude All References to
ABC Professional Tree Services, Inc. (“ABC”) [411] (the “Motion”).
I.
BACKGROUND
Defendants seek to limit at trial any reference to, or evidence of, an accident
(the “ABC Accident”) involving a 2006 Terex Hi-Ranger XT 55 owned and
operated by ABC. The ABC Accident occurred on or about January 30, 2013, and
it involved a crack in the lower boom area that eventually progressed to failure and
collapse of the boom. The following diagram illustrates the area of the boom that
cracked and ultimately failed in the ABC Accident and the area that cracked and
failed in this action.1
As a result of the ABC Accident, ABC submitted a claim to Defendants requesting
they repair all XTs that ABC owned at the SN608 Area. ([411] at 3). Defendants
ultimately agreed to repair all of ABC’s XTs at the SN608 Area. (Id.).
In their Motion, Defendants state that they believe Plaintiff will attempt to
present arguments and evidence of the ABC Accident, the alleged injuries that
1
The red circle, labeled the “Gaddy Area” denotes the area that fractured in
this action, while the green circle, labeled the “SN608 Area” denotes the area that
fractured in the ABC Accident.
2
resulted from it, and the claims or lawsuits filed against Defendants as a result of
the ABC Accident to show Defendants’ negligence in this case. (Id.). Defendants
contend that Plaintiff should be precluded from doing so because (1) the ABC
Accident is not substantially similar to the subject accident at issue in this action,
and (2) all evidence relating to the ABC Accident is otherwise barred as
inadmissible hearsay or evidence of settlement discussions. (Id.). Defendants
argue specifically that Plaintiff cannot fulfill his burden of demonstrating that the
ABC Accident is substantially similar to the accident in this action because the
boom in the ABC Accident was part of a redesign that occurred in March 2004,
and the SN608 Area is “completely distinct from the design and operation of the
Gaddy Area.” (Id. at 6-8). Defendants further argue that any statements regarding
visibility of cracking contain “multiple layers of inadmissible hearsay” and should
therefore be excluded. (Id. at 10). Defendants argue finally that any settlement
correspondence is inadmissible under Rule 408 of the Federal Rules of Evidence
because it is evidence of settlement discussions. (Id. at 11-13).
On August 7, 2017, Plaintiff filed his Response to Terex’s Motion In Limine
No. 2 to Exclude All References to ABC Professional Tree Services, Inc. [440]
(“Response”). In it, Plaintiff argues evidence regarding the ABC Accident should
be admitted because (1) it disproves Defendants’ “core defense in this case” by
3
showing that ABC failed to discover cracking despite regular and documented
inspections; (2) evidence of cracking in the lower boom is admissible to show
notice of the potential defect and that Defendants could not rely on customers’
visual inspections to detect the cracking; (3) evidence of the similar defects along
the lower boom is relevant to show any design defect; and (4) Defendants’
handling of the hinge pin safety notices is relevant to whether its conduct in this
case was willful, reckless, or wanton. ([440] at 11-18). Plaintiff further explains
that Defendants’ contention that the hinge pin cracking is not substantially similar
to the cracking at issue in this case is “incorrect.” (Id. at 18). Plaintiff argues
finally that any concern that the statements are hearsay is allayed because they are
offered for a non-hearsay purpose and Rule 408’s bar on the use of settlement
discussions, by its plain language, does not apply here. (Id. 24-25).
II.
DISCUSSION
A.
Legal Standard
Federal courts “routinely permit introduction of substantially similar acts or
occurrences in product liability actions to demonstrate the existence of a defect, to
prove notice, or to refute testimony given by defense witnesses.” C.A.
Associates v. Dow Chem. Co., 918 F.2d 1485, 1489 (10th Cir. 1990); see also In re
Wright Medical Technology Inc., No. 1:13-cv-297-WSD, 2015 WL 6690046, at *6
4
(N.D. Ga. Oct. 30, 2015). “In a product liability action, the occurrence of similar
accidents or failures involving the same product holds great relevance, since
evidence of such failures tends to make the existence of a defect more probable
than it would be without the evidence.” Id.; see also Weeks v. Remington Arms
Co., 733 F.2d 1485, 1491 (11th Cir. 1984) (“Evidence of similar accidents might
be relevant to the defendant’s 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, and causation.”) (quoting Ramos v.
Liberty Mut. Ins. Co., 615 F.2d 334, 338-39 (5th Cir. 1980)).
“Because of the potential impact that evidence of similar accidents can have
on juries, [the Eleventh Circuit] has placed two additional limitations on the use of
such evidence: (1) the prior failure(s) must have occurred under conditions
substantially similar to those existing during the failure in question, and (2) the
prior failure(s) must have occurred at a time that is not too remote from the time of
the failure in question.” Weeks, 733 F.2d at 1491. “Substantially similar”
conditions do not need to be identical. Wheeler v. John Deere Co., 862 F.2d 1404,
1408 (10th Cir. 1988). The similarity requirement appears to be less restrictive
when the similar failures are submitted to prove the existence of notice. See
Worsham v. A.H. Robins Co., 734 F.2d 676, 689 (11th Cir. 1984).
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B.
Analysis
Defendants’ primarily argue that Plaintiff should be excluded from making
any reference to the ABC Accident because it is not substantially similar to the
facts of the accident that occurred in this case. In particular, Defendants argue that
the cracking in the SN608 Area that occurred in the ABC Accident is not
comparable because the design of the SN608 Area is “completely distinct.”
Plaintiff, on the other hand, argues that even though the ABC Accident involved a
somewhat differently designed truck and boom, and even though the cracking
occurred in a slightly different area than where it occurred in this case, the design
of the two areas is “trivial[ly]” distinct and “mere legal gloss.” ([440] at 20-21).
Plaintiff further asserts that the ways in which the two booms “nominally differ
have nothing to do with the reasons for which [Plaintiff] seeks to introduce the
evidence” and that the two incidents are substantially similar “for the purpose for
which the evidence is proffered.” ([440] at 22).
The Court finds that Plaintiff has failed to demonstrate that the ABC
Accident is substantially similar to the incident in this case. First, it is undisputed
that the truck involved in the ABC Accident was not the same as the one involved
in this action. In the ABC Accident, the cracking occurred in a 2006 Terex HiRanger XT 55 boom. ([411] at 2). This machine was not only an entirely different
6
model but was manufactured after Defendants completed a redesign in March 2004
“in an effort to improve the quality and safety of the machines.” (Id. at 6). Here,
the cracking, and ultimate failure, occurred in a 2002 Terex Hi-Ranger XT 60/70
boom. Second, it is plain that the underlying function of the area of the boom in
the ABC Accident is different from that in the Subject Boom. The crack that
progressed to failure in the ABC Accident was located in the “hinge pin” area of
the machine. (Id.). This area rotates the boom and bucket in a 360 degree manner
at the base of the boom, while the area that ultimately failed in this action extends
and retracts the boom vertically. (Id. at 7). It appears that the cause of the
cracking and the way that the cracking manifests itself is also different.
Defendants contend that “[a]ny cracking and/or failure at the [ABC Accident]
[a]rea was caused from a twisting action on the lower boom due to rapidly starting
and stopping the rotation of the booms.” (Id.). Defendants also contend that
cracking in the ABC Accident part of the boom occurred on the side plates, where
the cracking in the Gaddy Area occurred on the lower boom itself. (Id. at 8).
Plaintiff provides no further evidence regarding similarities other than to
point to the fact that there was a similar hand calculation used to design the trucks
that it alleges contributed to their defective designs and ultimate failures. ([440] at
7
14). This is simply not enough.2 Although the “substantial similarity” standard
does not demand absolutely “identical” conditions, it does demand at least some
threshold above what Plaintiff has submitted here.
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendants Terex Corporation, Terex
Utilities, Inc., and Terex South Dakota, Inc.’s Motion In Limine No. 2 To Exclude
All References to ABC Professional Tree Services, Inc. (“ABC”) [411] is
GRANTED.
SO ORDERED this 27th day of March, 2018.
2
Because the Court finds that the ABC Accident is not substantially similar to
the accident here, the Court need not address Defendants’ additional grounds for
exclusion based on hearsay and settlement discussions.
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