Eveler, et al v. Ford Motor Company

Filing 86

ORDER AND REASONS granting in part, deferring in part, denying in part, and dismissing as moot in part #68 and #70 Motions in Limine, as stated herein. Signed by Judge Lance M Africk on 7/19/2017. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KAYLEE EVELER ET AL.

CIVIL ACTION

VERSUS
FORD MOTOR CO.

No. 16-14776
ORDER AND REASONS

SECTION I

Before the Court are two motions in limine filed by Ford. See R. Doc. Nos. 68,
70.

For the following reasons, the motions are granted in part, deferred in part,

denied in part, and dismissed as moot in part.
I.
Ford moves under Rules 401 and 403 to exclude certain Ford development
documents concerning vehicles other that the particular generation of Ford Explorer
at issue in this case.
A.
“Evidence is relevant if (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Fed. R. Evid. 401. Relevant evidence is admissible unless
otherwise provided by the Constitution, a federal statute, another Federal Rule of
Evidence, or another rule prescribed by the Supreme Court. Fed. R. Evid. 402.
Relevant evidence may be excluded “if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403.

At the outset, the Court rejects Ford’s blanket assertion that any documents
relating to Ford vehicles other than the one at issue are necessarily irrelevant. “[T]he
standard of relevance in an evidentiary context is not a steep or difficult one to
satisfy,” Pub. Emps. Retirement Sys. of Miss. v. Amedisys, Inc., 769 F.3d 313, 321 (5th
Cir. 2014), and many of the documents that Ford seeks to exclude have information
regarding the physics of rollovers and rollover testing procedures that are indubitably
relevant to evaluating the parties’ competing theories of the case.
Thus, the admissibility of the documents largely turns on Rule 403. Rule 403
is meant to be applied “sparingly.” Baker v. Can. Nat./Ill. Cent. R.R., 536 F.3d 357,
369 (5th Cir. 2008). Therefore, this Court will not entirely exclude all documents
referring to Ford vehicles other than the Ford Explorer at issue. That is particularly
true as Ford has the ability to mitigate any jury confusion and/or prejudice through
the use of cross-examination that points out the differences between, for example, the
2001 Ford Explorer and the Ford Bronco. Knowing the differences between a Ford
Explorer and a Ford Bronco is not exactly rocket science, and the Court fully expects
that the jurors—most of whom likely own automobiles—will have no trouble being
cognizant of the differences. The Court may also be willing to consider providing an
appropriate limiting instruction for such exhibits, should Ford propose one.
The real Rule 403 concern here is whether a particular exhibit would result in
“time-consuming mini-trials on [] minimally relevant issues.” In re Paoli R.R. Yard
PCB Litig., 113 F.3d 444, 454 (3d Cir. 1997). And having reviewed the plaintiffs’
proposed exhibits, some of them certainly threaten to bog the Court and the jury down

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in time consuming mini-trials, the main purpose of which is to embarrass Ford on
issues that have little relevance to the main issues in this case. The Court will
exclude some, but not all, of plaintiffs’ proposed exhibits.
With those general principles in mind, the Court turns to Ford’s objections to
specific documents.
B.
Ford moves to exclude any reference to two development documents relating
to the Ford Bronco. The Court denies Ford’s objections to the two Ford Bronco
documents.
1.
The first document Ford moves to exclude is a 1973 letter from Ford to NHTSA
concerning NHTSA’s request for comment regarding the development of a rollover
performance standard. Pl. Ex. 41. Ford objects that the document is irrelevant and
that plaintiffs cannot lay a foundation necessary to support the argument that the
statements in the letter were meant to apply to a sport utility vehicle.
The central problem with Ford’s arguments is that the document is relevant to
proper rollover testing procedures—which is a hotly debated issue between the
parties—regardless of whether it speaks to the specific issue of whether the 2001
Ford Explorer was defectively designed. For example, Ford’s memorandum argues
in favor of human-driven rollover tests. See, e.g., Pl. Ex. 41, at 6-7; Pl. Ex. 41, at 22.
That directly contradicts Ford’s argument in this case that human-driven tests are
not based in science. As such, the Court finds that the document—though certainly

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old—will help the jury evaluate plaintiffs’ expert opinion that human-driven rollover
tests can be helpful in determining whether a vehicle has a propensity to rollover.
The Court notes that Ford can mitigate any unfair prejudice relating to the age of the
document with effective cross-examination, particularly given that the jury should
have little trouble understanding that technology has advanced since 1973.
Therefore, the Court finds that the probative value of plaintiffs’ exhibit 41 is not
substantially “outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
2.
Ford next moves to exclude a Ford Bronco development document suggesting
that Ford should take into account the effect that passengers have on a vehicle’s
center of gravity when testing for rollover proclivity. Pl. Ex. 49. The exhibit includes
a graph suggesting that a vehicle’s rollover proclivity increases when there are more
passengers in a vehicle. Pl. Ex. 49, at 2. Thus, the exhibit is directly relevant to
plaintiffs’ theory that the higher a vehicle’s center of gravity is—all other things being
held equal—the more likely that vehicle is to rollover. That is directly relevant to
plaintiff’s liability theory, and the Court concludes that Ford can mitigate any unfair
prejudice through cross-examination. Therefore, the Court finds that the probative
value of plaintiffs’ exhibit 49 is not substantially “outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues, misleading the jury,

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undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R.
Evid. 403.
C.
Ford also seeks to exclude documents relating to the first generation Ford
Explorer. The Court concludes that some—but not all—of the first generation Ford
Explorer documents should be excluded. 1
1.
Ford first seeks to exclude a Ford Explorer development document examining
whether the Ford Explorer’s track width should be widened and vehicle height
lowered so as to improve the vehicle’s performance on Consumer Union’s rollover
tests. Pl. Ex. 44, at 1-3. (Consumer Union publishes Consumer Reports.) Ford was
evidently considering such changes based upon its own internal testing suggesting
that the Explorer would fail the Consumer Union tests.
The document is relevant and probative in at least two ways. First, Ford’s
proposed actions in response to rollover concerns—widening the track and lowering
the body of the vehicle—is exactly consistent with plaintiffs’ expert’s theory that track

Ford indicated in the pre-trial order that it opposed the introduction of plaintiffs’
exhibits 77, 78, and 82. However, Ford did not brief its objections to those exhibits in
accordance with the pre-trial order. Accordingly, those objections are deemed waived
for failure to comply with the scheduling order. See R. Doc. No. 65, at 4 (“No objection
to any exhibit or any deposition testimony shall be allowed at trial unless the
objection was briefed in writing in accordance with this order. Failure to sufficiently
brief an objection will result in waiver of that objection.”). Nonetheless, the videos—
while not particularly prejudicial insofar as the jury will know what a rollover
accident looks like—appear to be a waste of the Court’s and the jury’s time insofar as
they simply display a rollover accident of a prior model Ford Explorer.

1

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width and center of gravity are directly related to rollover proclivity. Second, the fact
that Ford was performing Consumer Union’s rollover tests—tests that this Court
previously ruled were admissible under Rule 702, see R. Doc. No. 54, at 9-10—and
Ford believed that it could predict the likely results, Pl. Ex. 44, at 3, suggests that
the Consumer Union test is substantially less random than Ford has argued it to be
in this matter. The Court finds that the document will assist the jury in evaluating
the battle of the experts and judging whether there were various alternative product
designs that would not have rolled over. As always, Ford remains free to use crossexamination and its own evidence to point out that this document concerned a
prototype of a previous model of the Ford Explorer, as well as to highlight the various
shortcomings of Consumer Union’s rollover tests, see R. Doc. No. 54, at 10 n.3 (“[T]he
Court observes that the methodological flaws of the [Consumer Union short course
test] can be easily understood and contextualized by lay-persons.”). Accordingly, the
probative value of plaintiffs’ exhibit 44 is not substantially “outweighed by a danger
of one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.
R. Evid. 403.
2.
Ford next seeks to exclude a series of emails between Ford engineers regarding
possible revisions to the first generation Ford Explorer to increase its performance on
the Consumer Union rollover test. Pl. Ex. 45, at 1-2. One of the proposals included
lowering the vehicle, Pl. Ex. 45, at 1, and noted possible longer-term consideration of

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widening the track, Pl. Ex. 45, at 2. So, as with plaintiffs’ exhibit 44, the document
is directly relevant to plaintiffs’ design defect theory as well as the reliability of the
Consumer Union tests. Therefore, the Court will not exclude Plaintiff’s Exhibit 44
under Rule 401. Likewise the Court finds that the probative value of Exhibit 44 is
not “outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed. R. Evid. 403.

Therefore, the Court will not

exclude plaintiffs’ exhibit 44 under Rule 403.
3.
Ford next seeks to exclude a document that purports to set out various
revisions to the first generation Ford Explorer. Pl. Ex. 46. However, the document
that the Court received is entirely illegible. As such, the Court has no basis to
presently determine whether it would assist the jury and/or would be unduly
prejudicial.

Therefore, the Court defers consideration of the admissibility of

plaintiffs’ exhibit 46 until it is presented with a legible copy. No mention or display
of plaintiffs’ exhibit 46 should be made in front of the jury until after plaintiffs receive
permission to do the same at a bench conference.
4.
Ford next seeks to exclude a Ford memorandum discussing Ford’s plan to lower
the chassis of the first generation Ford Explorer as well as to initially limit the
diameter of the tires used. Pl. Ex. 47. The Court observes that the exhibit, on its
face, does not link those actions to concerns regarding rollover accidents. Therefore,

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the Court defers consideration of Ford’s objections to the exhibit until plaintiffs can
establish that Ford was taking such actions in response to rollover concerns. The
Court notes an additional concern that even if plaintiffs could establish such a
foundation, the exhibit may well be repetitive with Exhibits 44 and 45 and would
waste the jury’s time. Nonetheless, the Court postpones consideration of that issue
until trial, when it will be better positioned to engage in the Rule 403 calculus. No
mention or display of plaintiffs’ exhibit 47 should be made in front of the jury until
after plaintiffs receive permission to do the same at a bench conference.
5.
Ford next seeks to exclude Ford emails discussing whether the Explorer will
pass the Consumer Union rollover tests and the effect that tire diameter has on
rollovers. Pl. Ex 48. (Indeed, there is helpful information in the exhibit regarding
the effect of smaller tires for both sides—the Ford engineers suggest that smaller
tires improve rollover test performance, but are detrimental in the real world because
the rim is more likely to hit the road and cause a rollover).
Thus, much like plaintiffs’ exhibit 44, the document is relevant to multiple
issues in the case, particularly as relates to the parties’ battle of the experts and
plaintiffs’ proposed alternative design. Moreover, the Court also notes that Ford can
use cross-examination to mitigate any unfair prejudice or clear up any confusion
related to the fact that this document concerns a prototype of a previous version of
the Explorer. Therefore, the Court determines that the probative value of exhibit 48
is not substantially “outweighed by a danger of one or more of the following: unfair

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prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

Accordingly, the

Court will deny Ford’s objections to plaintiffs’ exhibit 48.
6.
Ford next moves to exclude a thirty-plus page compendium of documents
detailing Ford’s approval of the first generation Ford Explorer. Pl. Ex. 50. Editorial
comments attached to the documents—by whom it is unclear 2—suggest that
plaintiffs intend to use the documents to argue to the jury that Ford relied on factual
assumptions that it knew or should have known were untrue when Ford signed off
on the rollover performance of the first generation Ford Explorer.
Such an argument, however, is just the sort of prejudicial, tangentially
relevant evidence that Rule 403 empowers this Court to exclude. See In re Paoli R.R.
Yard PCB Litig., 113 F.3d at 454.

The relevant issue here is whether the second

generation Ford Explorer had a design defect.

Documents relating to the first

generation Ford Explorer are really only relevant and probative of that question
insofar as they speak to general questions of vehicle physics, designs, and the
competing merits of various rollover testing procedures.
Plaintiffs’ exhibit 50 does not appear to touch on any of those issues. Instead,
it attempts to highlight supposed errors Ford made in data entry and analysis when

The Court observes that the comments appear likely to have been added by some
non-Ford individual after the creation of the documents. Needless to say, to the
extent that they are comments of plaintiffs’ counsel or expert, those comments are
not evidence and may provide an independent basis to exclude this exhibit.
2

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performing rollover testing on the first generation Ford Explorer. That Ford allegedly
erred its data entry or ignored certain test results for a separate vehicle over a decade
before plaintiffs’ vehicle was manufactured—regardless of whether the supposed
error was intentional—is not particularly probative of any of the relevant issues here.
Moreover, it also veers dangerously close to the impermissible argument that Ford
must have acted carelessly when developing the second generation Ford Explorer
because of its careless behavior when developing the first generation Ford Explorer.
See, e.g., Fed. R. Evid. 404(a)(1). The Court sees little purpose for plaintiffs’ exhibit
50 except to make Ford look sloppy, careless, or worse in front of the jury over an
issue that has little to do with this case.
Finally, to the extent that there are any relevant points in plaintiffs’ exhibit 50
relating to the physics of a rollover accident, general principles of vehicle design,
and/or potential alternative designs, plaintiffs do not explain how they are not
duplicative of multiple other exhibits submitted by the plaintiffs. Therefore, the
exhibit is unduly prejudicial and a waste of the Court’s and the jury’s time, and the
Court finds that the probative value of plaintiffs exhibit 50 is substantially
“outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. The Court excludes plaintiffs’ exhibit 50
under Rule 403. No mention or display of plaintiffs’ exhibit 50 should be made in front
of the jury, and plaintiffs should instruct their witnesses accordingly.

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D.
Ford also moves to exclude a compendium of test data concerning Ford rollover
tests on the Ford Explorer Sport. Ex. 63. Plaintiffs’ sole justification for admission
of the documents is that “[t]he same reasoning for inclusion of the above-argued
exhibits also applies to Exhibit 63 concerning the U207.” R. Doc. No. 76, at n.5. That
argument does not provide the Court with sufficient information regarding how
plaintiffs’ exhibit 63 is relevant to this case, whether it should be admitted, or
whether it would be a waste of the jury’s time—which is of no small concern when
considering a two hundred plus page exhibit.

Accordingly, the Court defers

consideration of Ford’s objections to exhibit 63 until trial. No mention or display of
plaintiffs’ exhibit 63 should be made in front of the jury until plaintiffs receive
permission from the Court following a bench conference, and plaintiffs should
instruct their witnesses accordingly.
II.
Finally, Ford also raises a series of hearsay and Rule 403 objections to a variety
of government documents. The Court dismisses as moot in part and defers in part
Ford’s objections.
A.
Ford originally moved to exclude testimony from a Ford representative at a
congressional hearing.

Pl. Ex. 65.

Plaintiffs responded to Ford that they only

intended to introduce a single paragraph of the exhibit. Ford subsequently informed

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Court staff that, in light of plaintiffs’ concession, Ford would withdraw its objection.
Accordingly, the Court dismisses as moot Ford’s objection to plaintiffs’ exhibit 65.
B.
Ford also sought to exclude a NHTSA report discussing the relationship
between a vehicle’s static stability factor and rollover accidents. Pl. Ex. 66. Ford
subsequently informed Court staff that Ford would withdraw its objection.
Accordingly, the Court dismisses as moot Ford’s objection to plaintiffs’ exhibit 66.
C.
Ford moves to exclude, on hearsay grounds, a presentation provided by a
Toyota employee at a NHTSA hearing. See Pl. Ex. 68. The Court agrees with Ford
that the testimony is hearsay, but defers the issue as to whether the testimony
regarding the presentation would be admissible in some form until trial.
Rule 803(8) excludes from the bar against admission of hearsay,
A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not
including, in a criminal case, a matter observed by lawenforcement personnel; or
(iii) in a civil case or against the government in a criminal case,
factual findings from a legally authorized investigation; and
(B) the opponent does not show that the source of information or other
circumstances indicate a lack of trustworthiness.
Rule 803(8) does not save plaintiffs’ proffer of the Toyota presentation. “Mere
transcripts of third-party statements do not constitute factual findings and still count
as hearsay.”

Daniel v. Cook Cnty., 833 F.3d 728, 740 (7th Cir. 2016) (internal

quotation marks omitted). Therefore, plaintiffs have a double hearsay problem, and

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they have not demonstrated that the Toyota presentation falls within any applicable
hearsay exception. See, e.g., Goodman v. Kimbrough, 718 F.3d 1325, 1333 n.2 (11th
Cir. 2013) (“Even accepting that the conclusions drawn in the report itself are
admissible under the public records exception to the hearsay rule . . . the statements
of third-parties within that report are double hearsay not within any exception to the
rule.”); United States v. De Peri, 778 F.2d 963, 977 (3d Cir. 1985) (observing that “outof-court statements contained in [public] records require a separate hearsay
exception before they can be admitted”).
That said, the mere fact that the presentation is hearsay is not necessarily
conclusive of the question of whether the plaintiffs will be permitted to inform the
jury regarding Toyota’s presentation. Rule 703 permits an expert to rely on reliable,
yet otherwise inadmissible, facts and data so as to avoid the “expenditure of
substantial time in producing and examining various authenticating witnesses.”
Factory Mut. Ins. Co. v. Alon USA L.P., 705 F.3d 518, 523 (5th Cir. 2013) (internal
quotation marks omitted). To do so, plaintiffs must establish that (1) “experts in the
particular field would reasonably rely on” the kind of inadmissible “facts or data in
forming an opinion on the subject,” and (2) the “probative value” of disclosing the
otherwise inadmissible information for the purpose of “helping the jury evaluate the
opinion

substantially

outweighs”

the

otherwise

inadmissible

information’s

“prejudicial effect.” Fed. R. Evid. 703.
Moreover, the Fifth Circuit has cautioned district courts to ensure that Rule
703 is not being used “as a vehicle for circumventing the rules of evidence.” Factory

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Mut. Ins. Co., 705 F.3d at 524 (internal quotation marks omitted). Thus, for example,
a court should ensure that an expert is doing “more than just repeat[ing] information
gleaned from external sources,” id. at 525, so as to prevent evasion of the hearsay
rules.
Because the Court will be better placed to evaluate the applicability of the Rule
703 exception at trial, the Court will defer Ford’s objection until then. No mention or
display shall be made of the Toyota presentation until the Court permits the same
following a bench conference.

Plaintiffs should therefore instruct the relevant

witnesses that no mention of the Toyota presentation should be made before the jury
until permitted by the Court.
IV.
Accordingly,
IT IS ORDERED that Ford’s motions in limine are granted in part, deferred
in part, denied in part, and dismissed as moot in part as set forth above.

New Orleans, Louisiana, July 19, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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