Gaddy v. Terex Corporation et al
Filing
480
OPINION AND ORDER granting Defendants Terex Corporation, Terex Utilities, Inc., and Terex South Dakota, Inc.'s Motion In Limine No. 3 to Exclude or Limit Evidence of Cracking In Other Terex XTs 412 . Signed by Judge William S. Duffey, Jr on 4/5/18. (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. 3 to Exclude Reference to Issues
Related to the Hinge Pin Area of XTs and Plaintiff’s Alleged Negligent Recall
Claim [412] (the “Motion”).
I.
BACKGROUND
Defendants seek to limit at trial any reference to issues related to the hinge
pin area (“SN608 Area”) of Defendants’ XT model trucks and any assertion of a
negligent recall claim. Defendants specifically argue that they anticipate Plaintiff
will attempt to present arguments and evidence regarding:
1. The issuance of safety notices alerting consumers to cracking in
the SN608 Area and whether Defendants were negligent in the
manner and scope of the issuance;
2. Testing and analysis conducted or directed by Defendants relating
to cracking in the SN608 Area, including Finite Element Analysis
testing in 2013;
3. Incidents of cracking and/or failures at the SN608 Area; and
4. Evidence of other lawsuits, claims, or incidents relating to cracking
in the SN608 Area.
([412] at 4). Defendants contend that “[s]uch arguments and evidence are barred
by the doctrine of substantial similarity and are otherwise irrelevant to the issues to
be tried.” (Id.). Defendants further argue that Plaintiff should be precluded from
asserting a negligent recall claim because Plaintiff did not allege such a claim until
the filing of the parties’ proposed Consolidated Pretrial Order (“PTO”) on
June 13, 2017. (Id. at 9).
Plaintiff argues that the SN608 Area is substantially similar to the area that
cracked in this case, and, therefore, evidence regarding this cracking is admissible
to show, for example, Defendants’ notice. (Plaintiff’s Response to Terex’s Motion
in Limine No. 3 [434] (“Response”)). Plaintiff next argues that he should be
permitted to pursue his negligent recall claim because (1) Plaintiff “set out in his
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complaint all the factual predicates of a defective recall claim[,]” and “[t]he fact
that he d[id] not use form language to label his legal theory as such is immaterial”
and (2) it is “settled case law in the Eleventh Circuit that issues not raised in the
pleadings may be treated as if they were properly raised when they are included in
a pretrial order.” ([434] at 2-3).
II.
DISCUSSION
A.
Substantial Similarity of SN608 Area
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
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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.
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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In its March 27, 2018, Order [478] (“March 27th Order”), the Court found
that evidence relating to the SN608 Area is inadmissible because the SN608 Area
is not substantially similar to the area that cracked and ultimately failed in this
case. ([478] at 7). The Court concluded, in relevant part:
[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.
(Id.). Plaintiff once again fails to demonstrate how the SN608 Area is substantially
similar to the area of the boom that cracked in this case, and, therefore, the Court
finds inadmissible any evidence, argument, or reference to the SN608 Area or
other incidents involving the SN608 Area.
B.
Plaintiff’s Negligent Recall Claim
Defendants also seek to strike Plaintiff’s negligent recall claim. Defendants
contend that Plaintiff failed to assert this claim in any of his amended complaints
and alleged it for the first time in the PTO, which was filed in June 2017.
Defendants argue this failure violates the notice pleading requirements set forth in
Rule 8(a) of the Federal Rules of Civil Procedure and would ultimately prejudice
Defendants if allowed. Plaintiff contends that he put Defendants on notice by
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alleging facts sufficient to state a negligent recall claim in his Sixth Amended
Complaint [215] (the “Complaint”) and that, even if he had not, asserting the claim
in the PTO is permitted under Eleventh Circuit precedent.
In Georgia, a negligent recall claim requires a plaintiff to assert facts
sufficient to show that (1) a manufacturer voluntarily chose to recall a product and
(2) the manufacturer failed to exercise ordinary care in conducting the recall
campaign.1 Ford Motor Co. v. Reese, 684 S.E.2d 279, 283-94 (2009). Plaintiff’s
Complaint makes the following three references to a recall:
1.
The Terex Defendants admit that these two defects are present
in the Subject Steel and the Subject Boom. But these defects
likely extends [sic] beyond the Subject Steel/Boom. The Terex
Defendants have recalled a paltry 48 booms as a result of
Gaddy proving these defects to them in this case; a number that
will likely expand as Gaddy further proves the defect in this
case and NHTSA reviews the available information about the
multiple defects present in all XT booms.
2.
Incredibly, despite the Terex Defendants’ admission of a safety
defect, their recall of the product (including the Subject Boom),
and their numerous warnings about the hazardous nature of
using a boom that contains the same nonconforming steel that
the Subject Boom contains, the Terex Defendants stubbornly
1
“A ‘failure to recall’ claim is not cognizable under Georgia law.” See, e.g.,
Silver v. Bad Boy Enterprises LLC, No. 4:12-cv-5 (CDL), 2013 WL 4495831, at
*6-7 (M.D. Ga. Aug. 20, 2013); Ford Motor Co., 684 S.E.2d at 283-85 (“We
conclude that absent special circumstances, no common law duty exists under
Georgia law requiring a manufacturer to recall a product after the product has left
the manufacturer’s control.”).
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refuse to admit to the parties and this Court that the Subject
Boom is defective.
3.
Based upon the foregoing, the Terex Defendants were negligent
and were the factual cause of the injuries, harm, damages, and
losses of Plaintiff in that those Defendants: . . . (c)
Manufactured the Subject Boom, which the Terex Defendants
ultimately had to recall for safety reasons[.]
([215] ¶¶ 99, 141, 155). Beyond these brief references, the Complaint is entirely
devoid of any facts surrounding an alleged negligent recall, any mention of the
SN608 Area or the hinge pin area, or any description of how the alleged negligent
recall was deficient in manner and scope. The Court therefore concludes that
Plaintiff’s Complaint fails to meet even the notice pleading standard required by
Rule 8(a) of the Federal Rules of Civil Procedure.2 To permit Plaintiff to assert
this claim now—after the close of discovery and after dispositive motions have
2
Plaintiff attempts to point the Court to various allegations in the Complaint
regarding his failure-to-warn claim to support the fact that the allegations were
sufficient to put Defendants on notice that he was also asserting some form of a
negligent recall claim—even arguing that the negligent recall claim is “not its own
species of claim so much as it is a subset of a failure-to-warn claim[.]” ([434] at 3;
see also [215] at ¶¶ 104, 135, 155(r), 156). The Court disagrees. A claim for
failure to warn based on adequacy of communication is distinct from a negligent
recall claim and Georgia courts treat it as such. See, e.g., Silver, 2013 WL
4495831 at *6-*7; Reese, 684 S.E.2d at 283-94. That some of the facts alleged in
Plaintiff’s Complaint might tend to support some portion of each, distinct claim
does not excuse Plaintiff from pleading a “short and plain statement” that
Defendants allegedly undertook a negligent recall.
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been briefed and decided—would almost certainly result in prejudice to
Defendants.
Plaintiff argues finally that even if his Complaint failed to properly allege a
negligent recall claim, he was permitted, according to the Eleventh Circuit, to
unilaterally assert the claim for the first time in the PTO filed on June 13, 2017.
The Court finds Plaintiff’s reading of the case law here misguided. What the
Eleventh Circuit has stated is that newly-added claims in a pretrial order are
permissible so long as there is consent by the opposing party. For example, in
Steger v. Gen Elec. Co., 318 F.3d 1066, 1077 (11th Cir. 2003), the Eleventh
Circuit found that the district court did not err where it permitted the defendant to
introduce evidence on affirmative defenses that it did not plead in its answer
because the plaintiff never objected. Conversely, in Enwonwu v. Fulton-DeKalb
Hosp. Auth., 286 F. App’x 586, 597 (11th Cir. 2008), the Eleventh Circuit upheld a
district court’s decision to strike from the parties’ pretrial order a paragraph
asserting, for the first time, a reckless endangerment claim where the defendant did
not consent and the parties did not file a joint pretrial order.
Here, Defendants specifically objected to the inclusion of a negligent recall
claim in the Consolidated Pretrial Order. Defendants’ lengthy objection in the
PTO states:
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Terex Defendants further object to Plaintiff’s outline of the case to the
extent it asserts claims that have not been properly plead [sic] in
Plaintiff’s Sixth Amended Complaint. Specifically, Plaintiff attempts
to assert a negligent recall claim, arguing that Terex “negligently
performed a duty that it voluntarily undertook when it recalled the
Original Design of its XT booms for cracking in the pedestal area of
those booms while failing to notify its customers about cracking in the
area that failed in this case and another similarly designed area of the
boom.” See Exhibit C; see also, Plaintiff’s legal issues to be tried,
¶ 17 (g) (“Whether [Terex], when they voluntarily undertook a duty to
recall the Original Design…negligently performed that duty when
they failed to warn its customers about known cracking in other areas
of the boom design…”) (emphasis added). Negligent recall is an
independent claim under Georgia law2 and the claim is not asserted in
any of the seven Complaints that Plaintiff has filed in this case. The
Proposed Consolidated Pretrial Order is the first time that Plaintiff’s
negligent recall claim has been mentioned to Terex Defendants and
the claim violates the notice pleading requirements set forth under
Fed. R. Civ. P. 8(a). See e.g., Campbell v. Emory Clinic, 166 F.3d
1157, 1161 (11th Cir. 1999) (Plaintiff failed to provide adequate
notice of breach of fiduciary duty claim where term “fiduciary” did
not appear anywhere in the complaint). Documents relating to the
November 2013 recall were produced to Plaintiff on or about
October 21, 2014 during discovery and Plaintiff could have amended
his complaint at any time thereafter to assert a negligent recall claim.
To allow Plaintiff to do so now would be highly prejudicial to Terex
Defendants as discovery has closed and summary judgment pleadings
have been filed and ruled upon. Any claim or argument relating to
Terex Defendants’ alleged negligent recall of the Subject Aerial
Device should be stricken. See e.g., Enwonwu v. Fulton-DeKalb
Hosp. Authority, 286 Fed. Appx. 586, 598 (11th Cir. 2008) (district
court did not abuse its discretion in striking the plaintiff’s reckless
endangerment claim when it was pled for the first time in the pretrial
order).
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([382] ¶ 14). The Court therefore finds that, because Defendants never consented
to the new claim, controlling Eleventh Circuit case law dictates that the Court may
strike the new claim. The negligent recall claim is struck.
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. 3 to Exclude
or Limit Evidence of Cracking In Other Terex XTs [412] is GRANTED.
SO ORDERED this 5th day of April, 2018.
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