Gaddy v. Terex Corporation et al
Filing
479
OPINION AND ORDER granting in part and denying in part Defendants Terex Corporation, Terex Utilities, Inc., and Terex South Dakota, Inc.'s Motion In Limine No. 1 To Exclude or Limit Evidence of Cracking In Other Terex XTs 410 . The motion is gr anted with respect to (1) incidents involving the Z887 Location or where it is unclear where the crack occurred and (2) sales of repair kits and it is denied with respect to incidents where the serial number is unknown. Signed by Judge William S. Duffey, Jr on 3/30/18. (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. 1 To Exclude or Limit Evidence
of Cracking In Other Terex XTs [410] (the “Motion”).
I.
BACKGROUND
This is a product liability action arising from the April 9, 2014, failure of a
2002 Terex Hi-Ranger XT 60/70 boom, Serial No. 2021020554 (“Subject Boom”).
([410] at 2). The accident occurred when the lower section of the Subject Boom
cracked, which caused the bucket, with Plaintiff inside, to fall to the ground. (Id.).
The Subject Boom was part of Terex SD’s XT aerial device line, which consisted
of XT 52, XT 55, XT 58, and XT 60 aerial lifts. (Id.). The number following the
XT designation represents the maximum height that the bucket platform can reach
when fully extended. (Id.). The Subject Truck, an XT 60, was originally designed
in 1999 (the “Original Design”). (Id.). Later, certain fix kits and modifications
were made to allegedly improve the quality and safety of the XT line. (Id.).
Defendants assert that, in March 2004, the design of the XT series was
revised in multiple locations to enhance the design and limit the areas of stress
concentration on the boom. (Id.). Terex SD also implemented a field kit to repair
reported cracking in the upper boom of pre-2004 machines (“Z887 Location”).
(Id.). In November 2013, Terex SD developed a field kit to repair reported
cracking in the lower boom of pre-2004 machines—the same area of the Subject
Boom that fractured in Plaintiff’s case (the “Z1290 Location”). A diagram
illustrating the Z1290 Location and Z887 Location is below:
2
Z887 Location
Gaddy Area/Z1290
Location
Defendants assert in the Motion that they anticipate Plaintiff will at trial
attempt to introduce a list of alleged cracking incidents in XT machines, including
alleged cracking incidents at the Z887 and Z1290 Locations. ([410] at 3).
Defendants argue that Plaintiff should be precluded from introducing evidence or
arguments regarding those cracking incidents where (1) there is an unknown serial
number; (2) the crack occurred at the Z887 Location or where it is unknown
whether the cracking occurred at the Z887 or Z1290 Locations; and (3) the crack
occurred after the date of Plaintiff’s accident. (Id. at 7). On August 7, 2017,
Plaintiffs filed their Response to Terex Defendants’ Motion In Limine to Exclude
or Limit Evidence of Cracking in Other Terex XTs [432] (“Response”). Plaintiff
argues that the Motion should be denied in its entirety because the evidence of
3
cracking shows that Defendants “under-designed its XT booms and [were] well
aware of those design defects.” ([432] at 3).
II.
DISCUSSION
A.
Legal Standard
The “substantial similarity doctrine” is implicated where a party seeks to
admit evidence of prior accidents or injuries caused by the same event or condition
to prove the existence of a dangerous condition, that the defendant had knowledge
of the dangerous condition, or that the dangerous condition was the cause of the
present injury. Custer v. Terex Corp., No. 4:02-cv-38-HLM, 2005 WL 5974434, at
*13 (N.D. Ga. May 17, 2005) (citing Heath v. Suzuki Motor Corp., 126 F.3d 1391,
1396 (11th Cir. 1997). “‘This doctrine applies to protect parties against the
admission of unfairly prejudicial evidence, evidence which, because it is not
substantially similar to the accident or incident at issue, is apt to confuse or mislead
the jury.’” Id. Where such evidence is admitted, it 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 to correct a known defect, the lack of
safety for intended uses, the strength of a product, the standard of care, and
causation.’” Reid v. BMW of North America, 464 F. Supp. 2d 1267, 1271 (N.D.
4
Ga. 2006) (quoting Hessen v. Jaguar Cars, Inc., 915 F.2d 641, 650 (11th Cir.
1990)).
The doctrine, however, is subject to a number of limitations. That is,
“[b]ecause 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 v. Remington Arms Co., 733 F.2d 1485, 1491
(11th Cir. 1984); see also Neagle v. Illinois Tool Works, Inc., No.
1:08-cv-2080-WSD, 2011 WL 13173913, at *4 (N.D. Ga. Feb. 11, 2011) (holding
prior incidents involving dissimilar injuries and different gun models did not meet
substantial similarity threshold); Reid, 464 F. Supp. at 1271-72 (finding
substantially similar prior incidents involving failure at same location of same part
of same model of automobile that caused plaintiff’s injury). “Conclusory
statements of alleged similarity are not enough.” Gibson v. Ford Motor Co., 510 F.
Supp. 2d 1116, 1120 (N.D. Ga. 2007).
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B.
Analysis
Defendants first argue that evidence of cracking in machines with unknown
serial numbers should be excluded because Plaintiff cannot demonstrate whether
these machines were an Original Design or a post-2004 design.1 ([410] at 7).
Defendants contend that it is undisputed that Terex SD redesigned the XT line in
March 2004 “such that XTs that were manufactured after March 2004 cannot be
substantially similar” to the Subject Boom, which is an Original Design vehicle.
(Id.). Defendants further argue that it is “impossible” to identify whether XTs with
unknown serial numbers were of an Original Design or were manufactured
following the redesign, Plaintiff cannot meet his burden of showing substantial
similarity in cracking incidents for machines with no identifiable serial number.
(Id.). Plaintiff contends, on the other hand, that he can demonstrate those machines
with unknown serial numbers are in fact Original Design XTs based on evidence
presented in the form of photographs, customer complaints and emails, service
orders, and deposition testimony. ([432] at 23). Plaintiff concludes that “[b]ecause
[he] has other trustworthy sources of evidence” showing that the cracking instances
relate to Original Design booms, those instances of cracking are relevant and
admissible. (Id. at 24).
1
The first three numbers of the serial number identify the date that the
machine was manufactured. ([410] at 7).
6
Having reviewed the record and Plaintiff’s assurances that it will for each
other boom crack it seeks to introduce demonstrate the conditions and
circumstances surrounding the cracking, the Court will not now exclude similar
cracking in Original Design booms simply because a machine lacks a serial
number. The record evidence, including the photographs, emails, complaints, and
service orders referenced in Plaintiff’s Response, may be used to substantiate that
these machines are pre-March 2004, Original Design machines. ([433.5-9]). For
example, Plaintiff’s Exhibit N is an email with a number of photographs attached.
([433.6]).2 The “Attachm ents” line states: “2003 Cracked Boom 001.jpg; 2003
Cracked Boom 002.jpg; 2003 Cracked Boom 003.jpg; 2003 Cracked Boom
004.jpg; 2003 Cracked Boom 005.jpg; 2003 Cracked Boom 006.jpg.” (Id. at 1).3
2
On the other hand, Plaintiff’s Exhibit M, an August 14, 2007, customer
complaint, states:
This is a picture of an 1999 XT where the lower boom cylinder
bracket attached to the lower boom on the bottom passenger side, it is
hard to tell if the metal along side [sic] the weld is cracking or if the
paint is [sic] just came off and is making it look like a crack. I looked
at 2 other XT’s of the same year and they all look similar to this one.
Is this a common problem and if so how can I tell if it is a crack or
not? And if it is a crack what is the proper way to fix this?
([433.5] at 1). Without evidence that there is a crack as opposed to a paint
problem, this evidence is not admissible.
3
If Defendants believe Plaintiff has not presented evidence to establish a
boom as one of an Original Design, they may object at trial.
7
Defendants also argue that each alleged cracking incident in the Z887
Location, or in a location that cannot be ascertained by Plaintiff, should be
excluded. ([410] at 8). Defendants argue that “the design of the Z887 Location is
not at issue [in] this case and has nothing to do with why or how the Subject Boom
Truck failed.” (Id). Defendants further contend that not only is the Z887 Location
a “separate place on the boom than what failed on April 9, 2014,” but Plaintiff “has
failed to gather sufficient evidence comparing the Z887 Location” to the area the
Z1290 Location that failed and resulted in Plaintiff’s injuries. (Id.). Defendants
even submit an affidavit attesting to the fact that the design of the Z887 Location,
and how loads are transferred at such location, is entirely “distinct” from the
Z1290 Location. (See Affidavit of Jim Olson [410.2] ¶ 5).
Plaintiff argues that the Z1290 and the Z887 Locations are similarly
designed. Specifically, Plaintiff contends that the side lift plates share the same
“v” shape design, which resulted in stress concentrations to be increased to
“dangerous levels” and cracking in the “exact same area[.]” ([432] at 15). In other
words, the design of the lift plates is defective in the same way, “thus channeling
stress into a specific area in identical ways.” (Id. at 20). The plates are designed
as follows:
8
Plaintiff argues further that Terex’s engineering expert, Jim Olson, conceded the
Z887 Location is similarly designed. (May 13, 2015 Deposition of Jim Olson
[432.1] at 32). Plaintiff asserts that “the areas are so similarly designed that when
Terex initiated testing in January 2004[,] in response to reports of cracking in the
Z887 [Location], Terex also tested the Z1290 [Location] area for the same issue.”
([432] at 19). Plaintiff also points to the fact that the same repair kit created for
Z887 Location was used to address cracking in the Z1290 Location. (Id.).
Plaintiff points to the testimony of Defendants’ own witness, Jim Olson, a product
safety engineer for Terex SD, who stated in his May 13, 2015, deposition the
following:
A: We did that area along with primarily the elbow cylinder area
(Z887 Location), which is the area in this area. That is the reason that
we started testing, because of reports of cracks in that area. And the
lower boom was also tested at the lower boom sub area at the same
time.
9
Q: It was tested because it has a design similar to the other areas that
were cracking further up the boom; correct?
A: It has a design similar, yes.
(See [432.1] at 32).
The Eleventh Circuit, in design defect cases, has cautioned that prior failures
a plaintiff seeks to introduce as probative regarding the failure at issue in a case,
must have occurred under conditions substantially similar to those existing during
the failure and that the prior failures 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. For
example, in Hessen, the Eleventh Circuit found that the district court properly
admitted evidence of similar defects where the plaintiff could show that the defect
alleged in the plaintiff’s product was the same as the defect involved in the recall.
Hessen, 915 F.2d at 650. Similarly, in Reid, the court allowed the plaintiff to
introduce evidence of prior, similar occurrences of a failed upper radiator neck in
BMW vehicles of the same series spanning approximately ten years. Reid, 464 F.
Supp. at 1271-72. All of the occurrences involved similar conditions, including
that the vehicle was overheating when the radiator neck broke off and that the
radiator plastic appeared brittle. Id. at 1272.
Plaintiff argues that evidence of similarity in design of two locations on the
boom and a similar repair kit to fix cracks at both locations meets the substantial
10
similarity test. The Court disagrees. The substantial similarity requirement allows
for the introduction of similar acts to support the act at issue in a trial where there
is evidence that a failure occurred as the result of the same circumstances—in this
case, similar use, forces, and conditions. It is this substantial similarity that allows
a jury to be presented with evidence that prior failures were similar enough to
deduce a failure occurred under the conditions that occurred in the comparable
case. There has not been a sufficient showing here that any failures at the Z887
Location were the result of substantially similar conditions as the failure at the
Z1290 Location at issue in this case, or that the failures occurred at a similar time
and as a result of similar forces and stresses.
Defendants contend finally that any evidence of the number of repair kits
sold for the Z887 and Z1290 Locations should be excluded because this evidence
“does not even remotely meet the substantial similarity test.” ([410] at 15). That
is, Defendants argue that Plaintiff does not and cannot identify who purchased each
repair kit, when each sale was made, the model or year of the machine that each kit
applied to, or whether the repair kit was even used or applied to the machine.
Plaintiff responds that the “number of repair kits for both Z887 [Locations] and
Z1290 [Locations] are highly probative of Terex’s notice that the XT booms had a
propensity to crack and, thus, are reviewed under a relaxed standard.” ([432] at
11
27-28). In other words, “[t]here is only one purpose for which any customer could
want such a kit, identical cracking due to an identical defect in either an identical
(Z1290) or similarly designed (Z887) area.” Plaintiff states further that the record
shows that Terex was selling Z887 Location report kits for cracks in the Z1290
Location, which “not only demonstrates the similarities of the two areas but serves
as a proxy for other instances of cracking in either area.”4 ([432] at 28).
The Court does not find evidence of the sale of repair kits admissible. That
Terex was selling repair kits does not show that the kits were to repair cracks or
were merely to have a repair kit in the event that a crack occurred. It also does not
show that the kits were for repairs that are sufficiently similar to the boom in this
case to show it had probative value.
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. 1 To Exclude
or Limit Evidence of Cracking In Other Terex XTs [410] is GRANTED IN PART
and DENIED IN PART. It is GRANTED with respect to (1) incidents involving
4
The decision to use a similar repair kit does not show it addressed the same
failure cause. The offer and use of a similar repair method could be for a number
of reasons, such as ease of implementation, cost, and convenience to the customer.
12
the Z887 Location or where it is unclear where the crack occurred and (2) sales of
repair kits. It is DENIED with respect to incidents where the serial number is
unknown.5
SO ORDERED this 30th day of March, 2018.
5
Admissibility of this evidence is, as noted above, subject to the “substantial
similarity” legal standard articulated in this Order. Defendants may reiterate their
objection to this evidence at trial.
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