Edwards v. Permobil, Inc. et al

Filing 217

ORDER AND REASONS the Court DENIES defendants'motion 190 to exclude evidence of earlier failures of plaintiff's wheelchair and DENIES plaintiff's "Motion to Exclude Corpus II Seating" 149 as moot. The evidence at issue is admissible for the sole purpose of showing that defendants were on notice that the design of the C-500 wheelchair was arguably dangerous.. Signed by Chief Judge Sarah S. Vance on 8/22/13. (jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DERRICK EDWARDS

CIVIL ACTION

VERSUS

NO: 11-1900

PERMOBIL, INC., ET AL.

SECTION: R

ORDER AND REASONS
Before the Court are two related motions in limine:
defendants' motion to exclude evidence of problems plaintiff
allegedly experienced with his previous Permobil wheelchair,1 and
plaintiff's motion to exclude testimony on the Corpus II
Seating.2 The Court considers these motions together because they
address the same issue: the admissibility of previous accidents
involving Permobil wheelchairs. For the following reasons,
defendants' motion is denied, and plaintiff's motion is denied as
moot.
I. THE ARGUMENTS OF THE PARTIES
Plaintiff has argued in this litigation that two previous
incidents involving a Permobil wheelchair should have should put

1

R. Doc. 190. Plaintiff contends that this
untimely. See R. Doc. 205 at 1. This is incorrect.
the Court's August 5, 2013 Order, the deadline for
limine was set for August 19, 2013. R. Doc. 174 at
motion was filed on August 15.
2

R. Doc. 149.

motion is
Pursuant to
motions in
2. Defendants'

defendants on notice that there was a design flaw in the C500
wheelchair that plaintiff was using at the time of the accident
at issue in this case: (1) an alleged failure of a bolt in
plaintiff's Chairman 2K wheelchair in 2001; and (2) alleged
slippage of the backrest adjustment mechanism in the Chairman 2K
between 2001 and 2007, which led Permobil to recommend that a
safety bolt be installed on the wheelchair.3 Plaintiff plans to
introduce evidence of these incidents in order "to show Permobil
was aware of issues with Derrick's chair."4
Defendants contend that these two incidents are not relevant
to this case because there is not sufficient evidence that they
are similar to the accident at issue in this litigation.
Defendants also argue that admission of evidence of the two
accidents would violate Rule 403 because it would lead to unfair
prejudice, confuse the issues, and mislead the jury. Plaintiff
responds that the seats in the Chairman 2K and C-500 wheelchairs

3

See R. Doc. 205 at 2-4. Plaintiff previously has
suggested that the chair he was using in 2001 was a third,
unidentified wheelchair. See R. Doc. 162 at 6 ("In 2001, Derrick
had a problem with his Permobil wheelchair. . . . Following the
2001 incident, Derrick was utilizing a Chairman 2K wheelchair);
R. Doc. 149-1 at 1 ("Plaintiff . . . . was utilizing a Permobil
wheelchair in 2001 and the bolt broke on that wheelchair.
Thereafter, he had a Chairman 2K wheelchair which bolt for the
back rest started to slip."). But the evidence submitted by
plaintiff in connection with the motions under considerations
supports plaintiff's current contention that the Chairman 2K was
involved in the 2001 incident.
4

R. Doc. 205 at 6.

are "the same,"5 and notes that Permobil "has never provided any
evidence that the seating mechanism was different."6 Plaintiff
contends that Permobil must produce such evidence in order to
argue that the previous incidents are irrelevant.7
II. LEGAL STANDARD
Evidence of similar accidents can be admissible in a
products liability case to show "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."
Ramos v. Liberty Mut. Ins. Co., 615 F.2d 334, 338-39 (5th Cir.
1980); see also Bailey v. Oliver, 504 So. 2d 152, 155 (La. Ct.
App. 1987) ("The jurisprudence, both state and federal, holds
that evidence of prior, similar accidents may be extremely
relevant in proving the defective and unreasonably dangerous
nature of a product."). Under Fifth Circuit law, evidence of
previous accidents is admissible at trial if it can be shown that
(1) the earlier failure occurred under conditions substantially
similar to those existing during the failure in the accident
central to the litigation, and (2) the earlier failure occurred

5

Id. at 4; see also R. Doc. 149-1 at 2.

6

R. Doc. 149-1 at 2.

7

Id.
3

at a time not too remote from the time of the failure in the
accident central to the litigation. Ramos, 615 F.2d at 339
(quoting Jones & Laughlin Steel Corp. v. Matherne, 348 F.2d 394,
400 (5th Cir. 1965)). Stated differently, the proponent of
evidence of other accidents or occurrences must establish “that
the facts and circumstances of other accidents or occurrences are
‘closely similar’ to the facts and circumstances at issue.”
Johnson v. Ford Motor Co., 988 F.2d 573, 579 (5th Cir. 1993)
(citing McGonigal v. Gearhart Indus., Inc., 851 F.2d 774, 778
(5th Cir. 1988); Jackson v. Firestone Tire & Rubber Co., 788 F.2d
1070, 1082–83 (5th Cir. 1986)). Of course, "[s]ubstantial
similarity does not require an exact match." Green v. Schutt
Sports Mfg. Co., 369 F. App'x 630, 638 (5th Cir. 2010). The
"substantial similarity" requirement is relaxed to "reasonable
similarity" if the earlier accident is offered only to show
defendants' awareness of an arguably dangerous condition.
Johnson, 988 F.2d at 580; Willis v. KIA Motors Corp., No.
2:07CV062-P-A, 2009 WL 2351766, at *1 (N.D. Miss. July 29, 2009)
("[O]nly 'reasonably similar' incidents will be admissible for
the purpose[] of establishing notice."); see also Young v. Ill.
Cent. Gulf R.R. Co., 618 F.2d 332, 339 (5th Cir. 1980) (noting
that evidence of earlier accidents offered for the "sole purpose"
of showing that defendant had notice of an "arguably dangerous"
condition can be considered by the jury for the purpose of
4

determining whether a reasonably prudent entity would have taken
precautions against future accidents).

III. DISCUSSION
Here, plaintiff purports to introduce evidence of the
earlier incidents only to show that defendants were on notice
that the design of the wheelchair was arguably dangerous.8 In
support of his contention that the previous accidents were
"reasonably similar," plaintiff has submitted a petition for
damages he filed after the 2001 bolt breakage, as well as the
deposition testimony of Marcel Farnet and Jerome Hellbach, two
technicians who worked on plaintiff's Chairman 2K.9 The petition
for damages establishes that Permobil received notice in 2002
that one of its customers had alleged that the Chairman 2K was
unreasonably dangerous because a bolt holding up the back of the
wheelchair had broken.10 The testimony of Farnet and Hellbach
supports plaintiff's contentions that the Chairman 2K and C-500

8

See, e.g., R. Doc. 205 at 4 ("These prior instances are
sufficient to show notice.").
9

R. Doc. 205-1.

10

R. Doc. 205-1 at 2-3. This petition is not hearsay
because it is being offered to show that Permobil had notice of
the allegations, not that the allegations themselves were
truthful. See Willis, 2009 WL 2351766, at *4; Hankins v. Ford
Motor Co., No. 2:08-cv-639-CWR-FKB, 2012 WL 174793, at *4 (S.D.
Miss. Jan. 20, 2012).
5

chairs had a similar backrest adjustment design and that Permobil
recommended that the technicians add a safety bolt to that
mechanism to prevent it from slipping.11 In this case, plaintiff
alleges that the 2010 accident occurred because defendants failed
to install a stronger primary bolt and/or a backup safety bolt to
prevent the backrest mechanism from failing.12
Plaintiff has met his burden of showing that the earlier
incidents were sufficiently similar to the accident at issue to
put defendants on notice that there were potential issues with
the design of the C-500 chair's backrest. The defect alleged in
both instances is a failure of a specific type of backrest
support due to bolts of inadequate strength and/or number. Even
though the chair models were different, it is the similarity of
the failed mechanism that is relevant. This is true even under
the stricter "substantial similarity" standard. See Smith v.
Ingersoll-Rand Co., 214 F.3d 1235, 1248 (10th Cir. 2000) ("The
substantial similarity rule does not require identical products;
nor does it require [courts] to compare products in their
entirety. The rule requires substantial similarity among the
variables relevant to the plaintiff's theory of defect."); Prats
v. Graco Children's Prods., Inc., No. 11-1765, 2012 WL 4854760,
at *1 (E.D. La. Oct. 11, 2012) (finding evidence of earlier

11

See R. Doc. 205-1 at 12, 16.

12

See R. Doc. 162 at 6.
6

incident substantially similar, even though it involved a
different model of product, because the alleged "defect and risk"
in the earlier incident was the same as the alleged defect and
risk at issue in the case). Plaintiff's showing is thus
sufficient to satisfy the "reasonable similarity" standard.
Plaintiff does not contend that the evidence of earlier incidents
will be offered to prove anything other than notice; accordingly,
the Court does not reach the issue of whether the earlier
incidents were "substantially similar" to the accident at issue.
Furthermore, the Court finds that the evidence of the
earlier incidents is not unfairly prejudicial to defendants.
Defendants know the manufacturing and design specifications for
the two wheelchairs and thus can offer evidence to rebut the
charge of similarity. Moreover, the evidence of earlier incidents
will not confuse the issues or mislead the jury, because the
Court expects that counsel for both sides will keep references to
the earlier incidents concise and offer them only for their
intended, limited purpose. The Court will not permit mini-trials
about the previous incidents.
Because the Court has concluded that the evidence in
question is admissible, plaintiff's motion urging that defendants
"must produce evidence of the prior seating other than the
argument of counsel" in order to "argue[] that the 2001 incident
is irrelevant" is now moot.
7

IV. CONCLUSION
For the foregoing reasons, the Court DENIES defendants'
motion to exclude evidence of earlier failures of plaintiff's
wheelchair13 and DENIES plaintiff's "Motion to Exclude Corpus II
Seating"14 as moot. The evidence at issue is admissible for the
sole purpose of showing that defendants were on notice that the
design of the C-500 wheelchair was arguably dangerous.

New Orleans, Louisiana, this 22ndday of August, 2013.
__
______________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

13

R. Doc. 190.

14

R. Doc. 149.
8