Pukt et al v. Nexgrill Industries, Inc.
ORDER denying 78 Motion to Exclude; denying 81 Motion to Exclude to the extent the evidence is offered to show notice of a defect and is otherwise granted; granting 82 Motion to Exclude. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Joseph and Barbara Pukt
Civil No. 14-cv-215-JD
Opinion No. 2016 DNH 157
Nexgrill Industries, Inc.
O R D E R
Joseph and Barbara Pukt brought suit against Nexgrill
Industries, Inc., alleging claims that arose from damage to
their property after a grill manufactured by Nexgrill caught
Nexgrill moves, in limine, to preclude the Pukts from
offering evidence of other fires involving grills that it
The Pukts object.
In 2005, Joseph Pukt received a grill from his family as a
Father’s Day gift.
The grill was manufactured by Nexgrill and
was one of its Model 720-0036-HD-05 grills.
model grill was one of eight models that Nexgrill produced and
marketed in its 720 series.
On September 8, 2005, all Model
720-0036-HD-05 grills were recalled because they contained a
defect that, in some instances, caused the fuel hose to come
into contact with the grill’s firebox and melt, creating a
propane leak that could ignite.
On July 1, 2012, the Pukts’ grill caught fire shortly after
a family member finished cooking on it.
The fire spread to the
Pukts’ deck and house, causing extensive damage.
assert that the fire was caused by the same fuel hose defect
that resulted in the recall of all Model 720-0036-HD-05 grills.
The Pukts bring claims against Nexgrill for negligence and
The Pukts intend to introduce evidence at trial concerning
other fires involving grills manufactured by Nexgrill.
has moved, in limine, to preclude the Pukts from introducing
this evidence, arguing that the evidence is inadmissible because
the other fires are not substantially similar to the accident at
Nexgrill also contends that the evidence of other
accidents is inadmissible because it is unfairly prejudicial and
risks confusing the jury.
Standard of Review
To be admitted at trial, evidence must be relevant.
R. Evid. 402.
Evidence is relevant when “it has any tendency to
make a fact more or less probable than it would be without the
evidence” and the “fact is of consequence in determining the
Fed. R. Evid. 401.
A court may exclude relevant
evidence, however, “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
Fed. R. Evid. 403.
In products liability cases, courts employ a more
particularized inquiry into probative value when assessing
whether evidence of prior accidents is admissible.
Volkswagen of Am., Inc., 187 F.3d 88, 98 n.9 (1st Cir. 1999).
Under this standard, “[e]vidence of prior accidents is
admissible . . . only if the proponent of the evidence shows
that the accidents occurred under circumstances substantially
similar to those at issue in the case at bar.”
Moulton v. Rival
Co., 116 F.3d 22, 26-27 (1st Cir. 1997) (quoting McKinnon v.
Skil Corp., 638 F.2d 270, 277 (1st Cir. 1981)).
similarity is “a function of the theory of the case” and,
therefore, does not require that the circumstances surrounding
the other accidents be identical.
Moulton, 116 F.3d at 27.
When a party offers evidence of other accidents to show
notice or awareness of a dangerous condition, however, the
similarity requirement is relaxed.
U.S. Aviation Underwriters,
Inc. v. Pilatus Bus. Aircraft, Ltd., 582 F.3d 1131, 1147-48
(10th Cir. 2009); Surles ex rel. Johnson v. Greyhound Lines,
Inc., 474 F.3d 288, 297–98 (6th Cir. 2007); Joy v. Bell
Helicopter Textron, Inc., 999 F.2d 549, 555 (D.C. Cir. 1993);
Jenks v. Textron, Inc., No. 09-CV-205-JD, 2012 WL 2679495, at *6
(D.N.H. July 6, 2012).
In such circumstances, “a lack of exact
similarity . . . will not cause exclusion provided the accident
was of a kind which should have served to warn the defendant.”
Bado-Santana v. Ford Motor Co., 482 F. Supp. 2d 197, 200 (D.P.R.
2007) (quoting Exum v. General Elec. Co., 819 F.2d 1158, 1162–63
(D.C. Cir. 1987)).
Nexgrill moves to preclude the admission of the following
three categories of evidence of other accidents involving its
grills: (1) evidence of other fires involving Model 720-0036-HD05 grills (doc. no. 78); (2) evidence of customer returns of
Model 720-0036-HD-05 grills because of fires (doc. no. 81); and
(3) evidence of fires involving other models of Nexgrill grills
(doc. no. 82).
The Pukts contend that each category is relevant
Other Fires Involving Model 720-0036-HD-05 Grills
Nexgrill moves generally to exclude evidence of other fires
involving Model 720-0036-HD-05 grills.
The Pukts’ claims in
this case are based on the theory that the grill’s fuel hose
contacted the fire box and melted, thereby allowing gas to
escape and ignite.
Based on findings by the Consumer Product
Safety Commission (the “CPSC”) and subsequent investigations,
the Pukts assert that the other fires involving Model 720-0036HD-05 grills are substantially similar to their grill fire.
The Pukts have attached to their objection a number of
exhibits containing evidence of other fires in Model 720-0035HD-05 grills.1
Several of these documents contain evidence of
fires that were caused under circumstances similar to those
alleged in the Pukts’ complaint.
For example, one Nexgrill
incident report concerning a grill that caught fire notes that
“ALL HOSES MELTED.”
Ex. D., Doc. 132-5 at 1.
In a discussion
about that fire, a Nexgrill employee states that “the reason
grill caught on fire is regulator hose touched fire box (or
Id. at 5.
Other documents in the Pukts’
submission contain similar evidence of fires caused by a hose
failure in Model 720-0036-HD-05 grills.
See e.g., Doc. 132-5 at
25 (“Pictures showed that regulator hose melted.”), 61
The Pukts attached evidence of other fires in support of
their objection to Nexgrill’s motion to exclude the evidence of
customer returns. The Pukts, however, incorporated that
objection into their objection to Nexgrill’s motion to exclude
evidence of other fires involving Model 720-0036-HD-05 grills.
(referencing a burn caused “from hose melting”), 66 (“The hoses
melted . . . and started to catch fire!”); doc. no. 132-6 at 25
(“[T]he hoses caught on fire, customer was able to turn tank
Those incidents comport with the Pukts’ theory of the
case, namely, that the fuel hose in their Model 720-0035-HD-05
grill contacted the fire box and melted, causing the grill to
The Pukts have shown that at least some of the other fires
are substantially similar to the fire at issue in this case.
such, the evidence of those fires is relevant to prove the
elements of the Pukts’ claims.
Although Nexgrill asserts that
this evidence should be excluded under Federal Rule of Evidence
403, it has provided no developed argument to show that the
evidence should be excluded on that basis.
Nexgrill also moves to preclude the Pukts from introducing
specific evidence about fires involving Model 720-0036-HD-05
grills found in Nexgrill’s Return Good Authorization (“RGA”)
Home Depot was the retailer for Nexgrill’s Model 720-
When Home Depot reported to Nexgrill that a
customer returned a grill, Nexgrill recorded the return in a RGA
Report and used the RGA Reports to track warranty claims.
The Pukts intend to introduce RGA Reports for a ten-month
period that show that 1812 Model 720-0036-HD-05 grills were
returned to Home Depot because the grills caught fire.
Pukts contend that the Reports are relevant to show that the
grills we defective, that Nexgrill had notice of the defect,
that Nexgrill had a duty to warn of the defect, and that the
defect cause the fire in the Pukts’ grill.
Nexgrill argues that
the RGA Reports are not admissible because the Pukts cannot show
that the reported fires were substantially similar to the fires
involving their grill and because the evidence is inadmissible
under Federal Rule of Evidence 403.
i. Defect, Duty to Warn, Causation
The RGA Reports contain no evidence explaining the
circumstances of each reported grill fire.
There are no details
in the reports that would support an inference that the reported
fires are substantially similar to the fire at the Pukts’ home.
Therefore, standing alone, the RGA Reports do not satisfy the
substantial similarity requirement.
The Pukts contend that the RGA Reports show that “at least
181 grills ‘caught fire' between January, 2005 and October,
2005.” Doc. no. 132-1. However, the spreadsheet that they
attached to their objection to the motion to compel appears to
report a total of 188 reported fires. See Doc. no. 132-3.
The Pukts contend, however, that the information on the RGA
Reports “correspond with many other items” and that “[l]ike
pieces to a puzzle” they have been able to link certain RGA
Reports to other evidence.
In support, the Pukts cite a number
of incident reports and investigations in which customer returns
and correspondence are referenced.
The Pukts, however, have not
shown any link between this evidence and any specific RGA Report
out of the 181 RGA Reports concerning fires in Model 720-0036HD-05 grills.
As a result, the Pukts have not shown that the
RGA Reports are admissible to show a duty to warn, defect, or
The Pukts also argue that the RGA Reports are admissible to
show that Nexgrill had notice of a defect in the Model 720-0036HD-05 grills.
Nexgrill does not address the issue of notice
specifically but states that the RGA Reports should be excluded
under Rule 403 as being more unfairly prejudicial than probative
and likely to cause jury confusion.
The RGA Reports show that during a ten-month period long
before the Pukts’ grill caught fire, 181 people returned Model
720-0036-HD-05 grills to Home Depot because they caught fire.
The reports of those returns notified Nexgrill that 181 Model
720-036-HD-05 grills had caught fire.
Those reported fires were
warnings to Nexgrill that the Model 720-0036-HD-05 grills
contained a dangerous condition.
As Nexgrill admitted to the
CPSC, it began its initial investigation into the Model 7200036-HD-05 grills based in part on the RGA Reports.
the RGA Reports are probative of the fact that Nexgrill had
notice of a potential defect in its Model 720-0036-HD-05 grills
before the Pukts’ grill caught fire.
To the extent those RGA Reports occurred before September
8, 2005, the date of Nexgrill’s recall, they are relevant to the
question of whether Nexgrill initiated the recall in a timely
The probative value and relevance of RGA Reports after
September 8, 2005, must be determined at trial based on the
circumstances and evidence presented.
Nexgrill contends, however, that the RGA Reports should be
excluded under Rule 403.
As the party opposing admission,
Nexgrill bears the burden of showing that the RGA Reports are
not admissible under Rule 403.
United States v. Tse, 375 F.3d
148, 164 (1st Cir. 2004) (internal quotation marks omitted).
Nexgrill does not identify any unfair prejudice or likely
confusion to the jury that substantially outweighs the RGA
Reports’ probative value in showing notice.
respect to notice before the September 8, 2005 recall, Nexgrill
has not met its burden, and the RGA Reports before that time are
not barred by Rule 403.
As to the RGA Reports after September
8, 2005, the court will undertake as necessary any Rule 403
analysis at trial.
Accordingly, Nexgrill’s motion to preclude all evidence of
RGA Reports is denied to the extent that such evidence is used
to prove notice of a defect.
Evidence Involving Fires in Other Grills
Nexgrill moves to preclude the Pukts from introducing
evidence of fires involving models of its grills other than the
Model 720-0036-HD-05 grill.
Nexgrill and the Pukts focus their
argument on evidence of fires in Model 720-0025 grills, another
grill in the 720 series of grills.
As with the Model 720-0036-
HD-05 grill, Model 720-0025 grills were recalled due to a defect
that allowed a fuel hose to run up too close to the firebox.
The Pukts intend to introduce evidence of the 720-025 fires
as “evidence of Nexgrill's failure to properly test and inspect
the model series and grill family at issue in this case, which
included the subject grill.”
Doc. no. 133-1 at 4.
that there is substantial similarity between those fires and
their grill because (1) both models of grills were submitted for
certification as members of the Nexgrill’s 720 series without
testing and (2) both ultimately exhibited similar defects.
Nexgrill contends that fires involving 720-0025 model
grills are not substantially similar, and, therefore, evidence
concerning them is inadmissible.
In support, Nexgrill asserts
that the two grills were different products, containing
different hoses, fireboxes, and failure mechanisms.
also asserts that the probative value of evidence concerning the
Model 720-025 grill would be outweighed by its prejudicial
effect and the risk that it will confuse the jury.
Although evidence of accidents occurring in similar but
different products may be admissible, the circumstances of the
accidents must be substantially similar.
See Moulton, 116 F.3d
The Pukts have not demonstrated substantial
similarity between fires involving Model 720-0025 grills and the
fire involving their grill.
Among other differences, the Model
720-0025 grill was bigger than the 720-0036-HD-05 grill, was
designed differently, and had a different firebox construction.
That both grills were subject to similar testing is not a basis
for disregarding the requirement that the other accidents
occurred under circumstances substantially similar to the fire
in the Pukts’ grill.
Moreover, it is likely that any probative value of the
evidence that the Pukts seek to introduce would be substantially
outweighed by the danger of unfair prejudice, confusing the
jury, wasting time, and needlessly presenting cumulative
See Fed. R. Evid. 403.
The Pukts’ negligent testing
theory would likely result in the introduction of technical
evidence involving the design, manufacture, and certification of
the Model 720-0025 grill, which is not the grill model at issue
in this case.
Further, the evidence of fires in Model 720-0025
grills will not only be cumulative of the evidence of other
grill fires but will also involve a model different from the one
that the Pukts owned.
Therefore, the Pukts have not shown that the evidence of
fires in the Model 720-0025 grills is relevant, and, as a
result, the evidence would likely be more unfairly prejudicial
For the foregoing reasons, the defendant’s motion to
preclude evidence of fires involving the subject grill (doc. no.
78) is denied.
The defendant’s motion to preclude evidence of
the RGA Reports (doc. no. 81) is denied to the extent the
evidence is offered to show notice of a defect and is otherwise
The defendant’s motion to preclude evidence of fires
involving other model grills (doc. no. 82) is granted.
Joseph A. DiClerico, Jr.
United States District Judge
September 6, 2016
Raymond E. Mack, Esq.
Joseph L. McGlynn, Esq.
Kevin Truland, Esq.
Richard F. Wholley, Esq.
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