Jenks et al v. New Hampshire Motor Speedway, Inc. et al
Filing
149
ORDER denying 118 Motion in Limine to Exclude NEISS Evidence. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Melissa Jenks, Individually
and as g/n/f of Roderick Jenks
v.
Civil No. 09-cv-205-JD
Opinion No. 2012 DNH 027
New Hampshire Motor Speedway,
Breann Thompson, and Textron, Inc.
v.
A.B.L, Inc.
O R D E R
Melissa Jenks, as the guardian and next friend of her
husband, Roderick Jenks, and on her own behalf, sued New
Hampshire Motor Speedway, Breann Thompson, and Textron, Inc.,
alleging negligence claims against Thompson and the Speedway and
product liability claims against Textron.
Textron brought cross
claims against the Speedway and Thompson for contribution and
indemnification.
The Speedway and Thompson brought cross claims
against Textron for contribution and indemnification and thirdparty claims against Textron Financial Corporation and A.B.L.,
Inc.1
Textron moves to preclude the use of National Electronic
1
Summary judgment was granted in Textron Financial
Corporation’s favor on the third-party claims against it.
Injury Surveillance System (“NEISS”) reports.
Jenks, the
Speedway, and Thompson object to Textron’s motion.
Background
Roderick Jenks was injured while working at the New
Hampshire Motor Speedway on July 16, 2006.
The accident occurred
when Jenks and a fellow worker rode in a golf car driven by
Breann Thompson, a Speedway employee.
Jenks rode on the back of
the golf car in an area for carrying golf bags.
When Thompson
swerved, Jenks fell off the car, hit his head, and was seriously
injured.
The golf car driven by Thompson was an E-Z-GO model
that was manufactured by Textron, Inc.
In support of her claim against Textron, Jenks retained Dr.
Lara B. McKenzie as an expert witness.
Dr. McKenzie has a
doctoral degree in Public Health Policy and Management from Johns
Hopkins University.
She works at the Nationwide Children’s
Hospital Center for Injury Research and Policy in Ohio.
Dr.
McKenzie was an author of a peer-reviewed article, published in
2008, that is titled “Golf Car Related Injuries in the U.S.,” and
she reviewed data from the NEISS during her research for the
article.
The Speedway and Thompson retained Dr. Gerald McGwin, Jr. as
an expert witness in the field of injury epidemiology.
2
As part
of his work on this case, Dr. McGwin was asked to review the
NEISS database to determine whether there were reported injuries
between 1991 and 2009 that were associated with falling off the
back of golf cars.
NEISS is a database that is compiled and maintained by the
Consumer Product Safety Commission.
The information comes from
approximately 100 hospitals that maintain twenty-four hour
emergency rooms.
The reporting hospitals are selected based on
geographic location and the demographics of their service areas
to reflect the population of the United States as a whole.
Information is transmitted to NEISS by “coders” who review
emergency room records.
The coders provide the patient’s age,
gender, race, injury diagnosis, and body part injured and also
indicate the product involved in the injury and state the
treatment the patient received.
In addition, the coders write a
brief summary of the incident as part of the report to NEISS.
Golf cars have a specific product code in the NEISS database.
Each reported incident is assigned statistical weight that is
used to estimate the magnitude of a particular problem on a
nationwide basis.
In preparing reports for this case, Dr. McKenzie reviewed
NEISS data on golf car injuries from 1990 through 2006.
McGwin reviewed data from 1991 to 2009.
3
Dr.
After reviewing the
NEISS database, Dr. McKenzie found that golf car related injuries
had increased significantly since 1990 and noted that the
database under reported the actual number of golf car related
injuries because fatalities that did not involve emergency room
visits were not reported.
Dr. McKenzie found that the weighted
data showed 1,697 emergency room visits due to falls from the
back of golf cars.
Dr. McGwin found a weighted number of 1,869
injuries associated with falls from the back of golf cars between
1991 and 2009.
Discussion
Textron contends that the NEISS data about golf car injuries
is inadmissible hearsay and unreliable as the basis for expert
opinion.
Textron also contends that the NEISS data and the
opinions based on it are irrelevant and unfairly prejudicial.
Jenks, Thompson, and the Speedway object, arguing that the NEISS
data is not hearsay and that the data and the opinions based on
it are reliable, relevant, and admissible.
A.
Hearsay
Textron contends that the NEISS data about golf car injuries
is inadmissible hearsay because the database is a compilation of
out-of-court statements offered to prove the truth of the matter
4
asserted.
Specifically, Textron asserts that the database is
derived from a patient’s “self-serving account of an accident to
a doctor or nurse” or the report of someone who accompanied the
patient to the emergency room, that the report is summarized by a
medical provider into a medical record, and that the medical
record is then paraphrased by a coder into the NEISS database.
Jenks contends that the NEISS database falls within the exception
to hearsay for public records, and the Speedway and Thompson also
argue that the database information is not hearsay.
1.
Rule 803(8)
Rule 803(8) provides, in pertinent part, that a public
record is not excluded by the rule against hearsay if it is “[a]
record or statement of a public office [and] it sets out . . .
factual findings from a legally authorized investigation . . .
and [] neither the source of information nor other circumstances
indicate a lack of trustworthiness.”
The Consumer Product Safety Act requires the Consumer
Product Safety Commission (“CPSC”) “to collect, investigate,
analyze, and disseminate injury data, and information, relating
to the causes and prevention of death, injury, and illness
associated with consumer products.”
15 U.S.C. § 2054(a)(1).
NEISS is the mechanism through which the CPSC complies with
5
The
§ 2054.
Southland Mower Co. v. Consumer Prod. Safety Comm’n, 619
F.2d 499, 510 n.24 (5th Cir. 1980); United States v. Gen. Motors
Corp., 561 F.2d 923, 935 n.57 (D.C. Cir. 1977).
Therefore, the
NEISS database appears to satisfy the requirements for a public
record within the meaning of Rule 803(8).
See, e.g., Trull v.
Volkswagen of Am., Inc., 187 F.3d 88, 97 (1st Cir. 1999).
For the exception provided by Rule 803(8) to apply, however,
the public record also must be trustworthy.
803(8)(B).
Fed. R. Evid.
“‘The burden is on the party challenging the validity
of an official report to show that it is untrustworthy.’”
Taylor
v. Erna, 2009 WL 2146675, at *8 (D. Mass. July 14, 2009) (quoting
Baker v. Elcona Homes Corp., 588 F.2d 551, 556 (6th Cir. 1978)).
Dr. McKenzie testified at her deposition that the NEISS
database is “the gold standard for consumer product-related
injuries and it’s the best surveillance system out there to look
at this.”
She represented that the NEISS database is used by
Center for Disease Control centers and other trauma centers, as
well as experts in the field of consumer product safety.
Dr.
McGwin explained the NEISS database in his expert report and
noted that it is used by government agencies, manufacturers,
researchers, lawyers, and the general public.
Textron contends, nevertheless, that the NEISS database is
inherently unreliable because the information is transferred from
6
a patient to a medical provider and then to a coder who enters
the information in the database in summary form.2
As is noted
above, the CPSC developed the NEISS database and uses it to
monitor the safety of consumer products, which provides
persuasive authority that the NEISS database is reliable to show
the number of injuries related to certain products.3
See
Southland Mower, 619 F.2d at 510 n.24; ASG Indus., Inc. v.
Consumer Prod. Safety Comm’n, 593 F.2d 1323, 1326 n.3 (D.C. Cir.
1979); Nisanov v. Black & Decker (U.S.) Inc., 2008 WL 906708, at
*2 (E.D.N.Y. April 3, 2008).
2
Textron equates the NEISS database with investigative
accident reports produced by the CPSC, which were excluded as
hearsay on the issues of defect, causation, and negligent design,
in McKinnon v. Skil Corp., 638 F.2d 270, 278 (1st Cir. 1981), and
other cases. The NEISS database, however, is both qualitatively
and quantitatively different from the CPSC’s individual accident
investigations. See, e.g., Campos v. MTD Prods., Inc., 2009 WL
2252257, at *7 (M.D. Tenn. July 24, 2009) (explaining different
types of CPSC reports); Knotts v. Black & Decker, Inc., 204 F.
Supp. 2d. 1029, 1041 (N.D. Ohio 2002) (ruling that CPSC accident
investigation reports were hearsay when offered as factual
support for the expert’s opinion because the “documents are not
merely statistics but contain witness or eyewitness statements by
someone not an employee of the CPSC as to an incident).
3
Because of the way the data is collected, however, the
NEISS database has been construed to show only how many injuries
are associated with a product, not that the product caused
injury. See Bittner by Bittner v. Am. Honda Motor Co., Inc., 533
N.W.2d 476, 481 (Wis. 1995).
7
Because the NEISS database is a public record within the
meaning of Rule 803(8) and Textron has not shown that it is
untrustworthy, the NEISS database information is excepted from
the rule against hearsay.
2.
NEISS Information Not Hearsay
The Speedway and Thompson also argue that the NEISS database
information is not inadmissible hearsay because it is not being
offered for its truth.
Instead, they contend, the NEISS
information shows that Textron had notice of serious injuries due
to falls from the golf cars before the accident that injured Rod
Jenks.
Evidence that would be barred as hearsay if offered to show
the truth of the matter stated nevertheless may be admitted for a
non-hearsay purpose, such as to show that a party had notice of
that information.
Tuli v. Brigham & Women’s Hosp., 656 F.3d 33,
41 (1st Cir. 2011); Kelley v. Airborne Freight Corp., 140 F.3d
335, 345-46 (1st Cir. 1998).
In Toups v. Sears, Roebuck & Co.,
Inc., 507 So. 2d 809, 814 (La. 1987), the plaintiffs wanted to
introduce the publication, “NEISS News,” that reported injuries
associated with water heaters.
publication as hearsay.
Id.
The court excluded the
On appeal, however, the court ruled
that the NEISS News publication should have been admitted as an
8
official publication because it “was not proffered for the truth
of its content but as evidence of information which was available
to the manufacturer/vendor.
Irrespective of its accuracy, it
should have alerted Sears to inquire about the need for a
warning.”
Id. at 818.
See also Oberg v. Honda Motor Co., Ltd.,
814 P.2d 517, 520 (Or. App. 1991) (excerpts from CPSC documents
reporting ATV-associated deaths were “admissible for the limited
purpose of showing defendants’ knowledge of the purportedly
harmful characteristics of its products”), rev’d on other grounds
by 512 U.S. 415 (1994).
Therefore, the NEISS information about falls from golf cars
would not be hearsay if offered only to show that Textron was
aware of the potential risk before Rod Jenks’s accident.
3.
Expert Use of NEISS Database Information
Even if Textron were able to show that the NEISS database
information is inadmissible hearsay, that would not necessarily
preclude Dr. McKenzie and Dr. McGwin from relying on the
information in forming their opinions.
Expert witnesses may base
their opinions on inadmissible facts or data that are relied upon
by experts in the particular field, although the inadmissible
evidence may not be disclosed without additional safeguards.
Fed. R. Evid. 703; see also Nardi v. Pepe, 662 F.3d 107, 112 (1st
9
Cir. 2011); Trull, 187 F.3d at 97; Bartlett v. Mut. Pharm. Co.,
Inc., 760 F. Supp. 2d 220, 233 n.6 (D.N.H. 2011).
Dr. McKenzie testified that the NEISS database is used by
experts in the field of product safety and injury.
offers no evidence to the contrary.
Textron
Therefore, the NEISS
database, as used in this case, meets the requirements of Rule
703 for purposes of forming the bases of expert opinions.4
B.
Relevance
Textron contends that the NEISS database information is not
relevant because Jenks, the Speedway, and Thompson cannot show
that the accidents reported were substantially similar to Jenks’s
accident.
Evidence of prior accidents is relevant to show a duty
to warn, a defect, causation, or negligent design only if the
accident is substantially similar to the plaintiff’s accident.
McKinnon, 638 F.2d at 277; accord Downey v. Bob’s Discount
Furniture Holdings, Inc., 633 F.3d 1, 8 (1st Cir. 2011).
Substantial similarity “is a function of the theory of the case.”
Moulton v. Rival Co., 116 F.3d 22, 27 (1st Cir. 1997) (product
liability case decided under New Hampshire law).
4
The court does not address the additional safeguards
required under Rule 703.
10
Jenks alleges a product liability claim against Textron that
Textron failed to provide an adequate warning about the danger of
riding on the back of the golf car.
The Speedway and Thompson
seek contribution from Textron based on that theory.
Textron
contends that Jenks, the Speedway, and Thompson cannot show that
the NEISS database included accidents involving golf cars that
were substantially similar to Textron’s car which was involved in
Jenks’s accident or even that the NEISS database is limited to
falls from golf cars instead of utility vehicles or ATVs.
Under New Hampshire law, “one who sells any product in a
defective condition unreasonably dangerous to the user or
consumer or to his property is subject to liability for physical
harm thereby caused to the ultimate user or consumer.”
Kelleher
v. Marvin Lumber & Cedar Co., 152 N.H. 813, 824 (2005) (internal
quotation marks omitted).
“If the design of a product makes a
warning necessary to avoid an unreasonable risk of harm from a
foreseeable use, the lack of warning or an ineffective warning
causes the product to be defective and unreasonably dangerous.”
Chellman v. Saab-Scania AB, 138 N.H. 73, 78 (1993).
“[A]
manufacturer’s duty to warn is not limited to intended uses of
its product, but also extends to all reasonably foreseeable uses
to which the product may be put.”
386, 390 (1997).
11
Price v. BIC Corp., 142 N.H.
The danger associated with Jenks’s accident is falling off
the back of a golf car while riding in the area used for golf
bags.
Both Dr. McKenzie and Dr. McGwin testified at their
depositions about the specificity of the NEISS database with
respect to golf car falling accidents, and both found data about
injuries due to falling off the back of golf cars.
Textron does
not explain why the vehicles in the reported accidents are not
sufficiently similar to Textron’s car to provide notice about the
danger of riding on the back of any golf car.
In Moulton, the case arose from an accident when a child was
burned by hot liquid that spilled from a potpourri pot.
at 27.
116 F.3d
The court ruled that evidence of prior accidents which
involved different kinds of potpourri pots and different
circumstances was admissible to show a design defect.
Id.
The
court reasoned that the pots in all of the accidents “allowed the
rapid escape of a significant amount of hot liquid” despite the
differences in the products and circumstances.
Id.
In this case, Jenks, the Speedway, and Thompson intend to
introduce the NEISS information about the increase in the number
of golf car injuries, including injuries due to falls from the
back of golf cars, to show that Textron had notice of a danger
associated with falling from golf cars.
They contend that
because of the information available through the NEISS database,
12
Textron should have been aware of the problem and should have
considered whether its warning was appropriate.
For the purpose
of showing notice of the danger related to falls from golf cars,
the NEISS database information about golf car injuries is
sufficiently similar to Rod Jenks’s accident to be relevant.5
C.
Unfair Prejudice
Textron contends that the NEISS database information,
particularly as presented by the expert witnesses, will be
unfairly prejudicial and should be excluded under Federal Rule of
Evidence 403.
Evidence that is relevant may be excluded if it is
unfairly prejudicial, meaning that the prejudicial effect of the
evidence must substantially outweigh the probative value of the
evidence.
United States v. Brown, --- F.3d ---, 2012 WL 149484,
at * (1st Cir. Jan. 19, 2012).
Textron contends that the experts’ testimony about golf car
falling injuries from the NEISS database will be given undue
weight because of the government source, that the experts
5
Although Textron raises an issue that injuries involving
other vehicles may have been included in the golf car code, even
if that were the case, those injuries appear to be sufficiently
related to the dangers of falling from the back of a golf car to
provide notice of the danger. Textron provides no evidence that
it properly disregarded the NEISS database information because it
was not sufficiently related to its golf cars.
13
improperly use the NEISS information to show that falls from the
golf car caused injuries, and that the testimony will lead to
delay and mini trials while Textron cross examines the experts
about the facts in the NEISS database.
An appropriate jury
instruction could address any possible undue weight that might be
given the NEISS database because of its source.
The experts’
opinions appear to pertain to the notice available to Textron
about the danger of injury related to falls from the back of golf
cars, not to the causes of specific injuries or accidents.
To
the extent the experts’ testimony uses the NEISS database
information to assign a cause to Rod Jenks’s accident, Textron
may raise an appropriate objection at that time.
Textron represents that its cross examination of the expert
witnesses will necessarily involve the factual scenarios of each
injury reported in the NEISS database, which will lead to
collateral issues and cause delay in the trial.
The experts’
testimony about the NEISS database information is intended to
show that Textron had knowledge of the potential danger of injury
due to falls from golf cars.
As is noted above, Textron has not
demonstrated that any differences between the injuries reported
in the NEISS database and Jenks’s accident are material in this
case.
Therefore, as presented for purposes of this motion, no
14
extensive examination about the accidents reported in the NEISS
database would be necessary.
Conclusion
For the foregoing reasons, the defendant’s motion to exclude
NEISS evidence (document no. 118) is denied.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
January 31, 2012
cc:
R. Matthew Cairns, Esquire
James M. Campbell, Esquire
R. Peter Decato, Esquire
Dona Feeney, Esquire
Mark V. Franco, Esquire
Neil A. Goldberg, Esquire
John A.K. Grunert, Esquire
Daniel R. Mawhinney, Esquire
David S. Osterman, Esquire
Christopher B. Parkerson, Esquire
Michael D. Shalhoub, Esquire
William A. Whitten, Esquire
15
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