Abney et al v. General Motors, LLC

Filing 277

OPINION AND ORDER re: New GM's Motion for Partial Summary Judgment, the Admissibility of Evidence Relating to Airbag Non-Deployment, and Other Similar Incident Evidence (212 in 1:14-cv-05810-JMF, 2209 in 1:14-md-02543-JMF) MOTION in Limine; (2186 in 1:14-md-02543-JMF, 204 in 1:14-cv-05810-JMF) MOTION for Summary Judgment. -- For the reasons stated within and in a more detailed opinion to follow, New GM's motion for partial summary judgment is GRANTED in part and DENIED in part, and its twentieth motion in limine is DENIED (without prejudice to specific objections at trial). Further, the Court finds that Plaintiffs may offer OSI evidence, but only evidence concerning the Melton, Rose, Chansuthus, and Sullivan crashes and only for the purpose of proving notice. As discussed at the status conference on February 23, 2016, these rulings may well bear on other issues, including what portions of the Valukas Report and the SOF are admissible at trial. After all, Scheuer was permitted to introduce OSI evidence with respect to incidents beyond the four that Plaintiffs may use here and for purposes that are not relevant or applicable here namely, causation and punitive damages. The Court sincerely hopes that the parties can agree (or narrow their disputes) with respect to whether and to what extent the redactions made in Scheuer to those exhibits (and perhaps others, such as the attorney case evaluations) are affected by the Court's ruling. The parties shall immediately confer with respect to the implications of this ruling on those issues (and any others). Any disagreements shall be raised with the Court, in simultaneous letter briefs not to exceed ten pages, by March 4, 2016, at noon. The Clerk of Court is directed to terminate 14-MD-2543, Docket Nos. 2186 and 2209, and 14-CV-5810, Docket Nos. 204 and 212. (Signed by Judge Jesse M. Furman on 2/25/2016) (ab)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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IN RE:

02/25/2016
14-MD-2543 (JMF)

GENERAL MOTORS LLC IGNITION SWITCH LITIGATION
This Document Relates To:
Abney, et al. v. General Motors LLC, 14-CV-5810
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OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:
[Regarding New GM’s Motion for Partial Summary Judgment, the Admissibility of
Evidence Relating to Airbag Non-Deployment, and Other Similar Incident Evidence]
The second bellwether trial in this multidistrict litigation (“MDL”), brought by Plaintiffs
Lawrence Barthelemy and Dionne Spain and familiarity with which is presumed, is scheduled to
begin on March 14, 2016. (See Order No. 94 (Docket No. 2183)). The parties filed various pretrial motions, all but two of which — New GM’s motion for partial summary judgment (Docket
No. 2186) and New GM’s twentieth motion in limine, regarding the admissibility of evidence
relating to airbag non-deployment (Docket No. 2209) — have been resolved. This Opinion and
Order provides the Court’s “bottom-line” ruling with respect to New GM’s partial summary
judgment motion and resolves both New GM’s twentieth motion in limine and a related dispute
between the parties concerning the admissibility of “other similar incidents” (or “OSI”)
evidence. (See Docket Nos. 2201-2202, 2320; see also Order No. 86 (Docket No. 1772) § XV;
Order No. 91 (Docket No. 2001) at 4). The Court will issue a more detailed opinion with respect
to the partial summary judgment motion in due course, but provides its “bottom-line” ruling
now, both because it has a bearing on the OSI dispute addressed herein and because it will help
to facilitate timely resolution of any disputes with respect to other matters, such as what portions

of the Valukas Report and the Deferred Prosecution Agreement (“DPA”) Statement of Facts
(“SOF”) may be admitted at trial.
NEW GM’S PARTIAL SUMMARY JUDGMENT MOTION
First, upon review of the parties’ papers, and for reasons to be provided in the Court’s
forthcoming opinion, New GM’s motion for partial summary judgment is GRANTED in part and
DENIED in part. More specifically, New GM’s motion is granted on the merits with respect to
•

Plaintiffs’ independent claim against New GM under the Louisiana Products
Liability Act (“LPLA”), because Plaintiffs fail to show that New GM is a
“manufacturer” within the meaning of the LPLA;

•

Plaintiffs’ negligence claim, because New GM owed Plaintiffs no independent
duty of care and because negligence per se does not exist under Louisiana law;

•

Plaintiffs’ redhibition claim, because New GM and Plaintiffs were not in a buyerseller relationship; and

•

Barthelemy’s fraudulent misrepresentation claim, because Plaintiffs do not argue,
let alone present evidence, that Barthelemy relied on any misrepresentation or
omission by New GM.

Additionally, because Plaintiffs did not oppose New GM’s motion for summary judgment on
their claim under the Louisiana Unfair Trade Practices Act or their punitive damages claims (see
Docket No. 2264), those claims are also dismissed as abandoned. See, e.g., Jackson v. Federal
Express, 766 F.3d 189, 198 (2d Cir. 2014) (“[I]n the case of a counseled party, a court may,
when appropriate, infer from a party’s partial opposition [to summary judgment] that relevant
claims or defenses that are not defended have been abandoned.”). New GM’s motion is denied,
however, with respect to Spain’s fraudulent misrepresentation claim, as the Court concludes that
the LPLA does not preclude Spain from bringing non-LPLA claims against New GM and that a
reasonable jury could find that Spain relied on misrepresentations and omissions by New GM
regarding the existence and implications of the ignition switch defect. In addition, New GM did

2

not move for summary judgment with respect to Plaintiffs claims under the LPLA with respect to
the conduct of Old GM, which were assumed by New GM in the 2009 Sale Order.
NEW GM’S TWENTIETH MOTION IN LIMINE AND THE OSI DISPUTE
The Court turns, then, to New GM’s twentieth motion in limine and the parties’ related
disagreement with respect to OSI evidence. As was the case in advance of the first bellwether
trial, Scheuer v. General Motors LLC, No. 14-CV-8071, the relevant principles are not really in
dispute. See In re Gen. Motors LLC Ignition Switch Litig., No. 14-MD-2543 (JMF), 2015 WL
9463183, at *1 (S.D.N.Y. Dec. 28, 2015). It is well established that in a product liability case
such as this, OSI evidence may be admitted to prove “negligence, a design defect, notice of a
defect, or causation.” Hershberger v. Ethicon Endo-Surgery, Inc., No. 10-CV-0837, 2012 WL
1113955, at *2 (S.D. W.Va. Mar. 30, 2012). But before such evidence “may be admitted for any
purpose, the proponent must establish [the prior accidents’] relevance by showing that they
occurred under the same or substantially similar circumstances as the accident at issue.”
Schmelzer v. Hilton Hotels Corp., No. 05-CV-10307 (JFK), 2007 WL 2826628, at *2 (S.D.N.Y.
Sept. 24, 2007); see also Barker v. Deere & Co., 60 F.3d 158, 162 (3d Cir. 1995) (noting that
every Court of Appeals that has considered the admissibility of prior accidents in products
liability cases has applied the substantial similarity standard). “Whether a prior accident
occurred under ‘substantially similar’ conditions necessarily ‘depends upon the underlying
theory of the case, and is defined by the particular defect at issue.’” Lidle v. Cirrus Design
Corp., 505 F. App’x 72, 74 (2d Cir. 2012) (summary order) (quoting Guild v. Gen. Motors
Corp., 53 F. Supp. 2d 363, 367 (W.D.N.Y. 1999)).
Significantly, the requisite degree of similarity varies according to the purpose for which
OSI evidence is offered. For example, “[e]vidence proffered to illustrate the existence of a
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dangerous condition necessitates a high degree of similarity because it weighs directly on the
ultimate issue to be decided by the jury.” Four Corners Helicopters, Inc. v. Turbomeca, S.A.,
979 F.2d 1434, 1440 (10th Cir. 1992) (internal quotation marks omitted). Similarly, where OSI
is offered to prove causation, courts tend to consider multiple factors — namely, whether “(1)
the products are similar; (2) the alleged defect is similar; (3) causation related to the defect in the
other incidents; and (4) exclusion of all reasonable secondary explanations for the cause of the
other incidents.” Watson v. Ford Motor Co., 389 S.C. 434, 453 (2010); see also 1 McCormick
on Evid. § 200 (7th ed. 2013) (noting that courts are more likely to allow OSI evidence to show
causation “when the defendant contends that the alleged conduct could not possibly have caused
the plaintiff’s injury”). By contrast, the substantial similarity standard is “relaxed” where OSI
evidence is offered to show notice; that is, “‘the similarity in the circumstances of the accidents
can be considerably less than that which is demanded when the same evidence is used for one of
the other valid purposes.’” Schmelzer, 2007 WL 2826628, at *2 (quoting 1 McCormick on Evid.
§ 200 (6th ed. 2006)). As the substantial similarity inquiry is “fact-specific,” a “district court is
owed considerable deference in its determination of substantial similarity.” Bitler v. A.O. Smith
Corp., 391 F.3d 1114, 1126 (10th Cir.), as clarified on reh’g, 400 F.3d 1227 (10th Cir. 2004). If
substantial similarity is established, “[a]ny differences in the accidents . . . go to the weight of the
evidence.” Four Corners, 979 F.2d at 1440 (internal quotation marks omitted).
Applying those principles and the rules of evidence, the Court allowed the plaintiff in
Scheuer to introduce some, but not all, of the OSI evidence he had proffered. Specifically,
Scheuer sought to introduce OSI evidence from fifteen other accidents on the ground that they
were relevant both to prove notice and causation and to the issue of punitive damages. See In re
Gen. Motors LLC Ignition Switch Litig., 2015 WL 9463183, at *1. In opposition, New GM
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argued that Scheuer’s accident was not “substantially similar” to the alleged OSIs because only
the former involved a “single key” in the ignition (which reduced the likelihood of inadvertent
ignition switch rotation). Id. at *2. Stating that “one of the most salient factors in the
[substantial similarity] analysis is whether the other incidents involved the same alleged defect as
the incident at issue,” the Court rejected that argument. Id. The Court noted, however, that
“New GM may argue, and the jury may ultimate agree, that Plaintiff’s use of a single key
differentiates his accident from the other incidents.” Id. The Court also rejected New GM’s
argument that Scheuer’s experts’ testimony with respect to the OSI evidence was improper,
finding that, although not disclosed in their original expert reports, (1) it was within the scope of
rebuttal and, additionally, that (2) there was “no evidence of bad faith on the part of Plaintiff or
prejudice to New GM.” Id. Nonetheless, the Court did not approve all of Scheuer’s OSI
evidence wholesale, and instead deferred ruling on the admissibility of specific OSI evidence
until after Plaintiff submitted an additional proffer providing further, even more detailed
information relating to the contents and propriety of such testimony. Id. at *3.
In this second bellwether trial, Plaintiffs seek to offer OSI evidence from seven prior
accidents. (Pls.’ Mem. Law Regarding OSIs (Docket No. 2201) (“Pls.’ OSI Mem.”) 7-11).
Evidence relating to four of those alleged OSIs (the crashes of Brooke Melton, Amber Rose,
Hasaya Chansuthus, and Bridgette Sullivan) was presented in Scheuer; in addition, they are
discussed in the Valukas Report and the SOF. (Pls.’ OSI Mem. 4 n.8, 8 n.10). The remaining
three alleged OSIs (the crashes of Morgan Hildwen, Linnet Caban, and Miranda Gill), however,
were not offered in Scheuer; nor are they discussed in the Valukas Report, the SOF, or the
NHTSA Consent Order. (See Pls.’ OSI Mem. 10-11). Instead, for two of the incidents (Caban
and Gill), Plaintiffs rely on documents that New GM describes as “customer complaints”; for the
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third incident (Hildwen), Plaintiffs submit no documentary evidence at all. (Gen. Motors LLC’s
Mem. Law Regarding Pls.’ Purported Other Similar Incident Evidence (Docket No. 2320) (“New
GM’s OSI Mem.”) 10; Pls.’ OSI Mem. 10-11; see Decl. Randall W. Jackson Supp. Pls’ Mem.
Law (Docket No. 2202) (“Jackson Decl.”), Exs. 4-5). 1
Plaintiffs’ submissions are — to put it mildly — not particularly illuminating as to the
precise evidence they propose to offer of these incidents. (See, e.g., Pls.’ OSI Mem. 10-11
(providing two- or three-sentence summaries of the accidents of Hildwen, Caban, and Gill, and
with respect to Hildwen, failing even to cite a source); id. at 12-13 (discussing the Valukas
Report, the SOF, and the “NHTSA compiled reports,” and stating their intention to introduce
“these documents” without further specification)). Nor are Plaintiffs particularly clear with
respect to the purposes for which they seek to introduce the evidence. They argue that the
evidence is relevant to prove notice, but at times they seem to suggest that it is also admissible to
prove causation. (See, e.g., id. at 3 (“Plaintiffs have the burden of establishing that it was the
Defective Switch that caused the accident at issue, and [the OSI] evidence is certainly relevant
on that point.”); id. at 15 (discussing Stevick’s expert testimony and stating he “will be prepared
to testify” regarding “similar incidents” to establish not only that New GM was on notice but
also “that . . . the Defective Switch may have caused the accident and injuries here” (emphasis
added); id. at 8 n.10 (stating that Plaintiffs’ experts will give opinions with respect to both notice
and the “impact that the defect had on the vehicle and anyone driving [it]” (whatever that
means)); id. at 15-16 (arguing that Plaintiffs “should be permitted to demonstrate through the use

1

Although New GM calls the documents “customer complaints,” it is not clear that is what
they are, as each document indicates that it was “[p]repared at the request of counsel in
anticipation of litigation.” (Jackson Decl., Exs. 4-5).

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of their experts that, at a minimum, New GM was on notice of the Defective Switch, and to
establish causation as well”)).
New GM objects to Plaintiff’s proposed OSI evidence on multiple grounds. First, New
GM contends that Plaintiffs’ initial disclosures of OSI evidence were so vague and non-specific
that they violated this Court’s Orders and that Plaintiffs’ proffer to the Court is little better.
(New GM’s OSI Mem. 3-6). Next, New GM argues that the OSI evidence is not substantially
similar to Plaintiff’s crash (and therefore not relevant), because Plaintiff’s crash — unlike many,
if not all, of the OSIs Plaintiffs proffer — did not involve a frontal impact forceful enough to
deploy the airbags. (Mem. Law Supp. GM LLC’s Mot. In Limine No. 20 (Docket No. 2210)
(“New GM’s Twentieth Mem.”) 7-14; New GM’s OSI Mem. 7-10). In fact, because Plaintiffs
concede that their airbags should not have deployed in the crash, New GM argues — in its
twentieth motion in limine — that they should be precluded altogether from introducing
“(i) airbag non-deployment accidents and investigations described in the Valukas Report and the
[SOF] . . . , (ii) any alleged [OSIs] related to airbag non-deployment, and (iii) expert opinions
relating to alleged insufficiencies in airbag design or function.” (New GM’s Twentieth Mem. 12). Lastly, citing Rule 37(c)(1) of the Federal Rules of Civil Procedure, New GM asserts that
Plaintiffs’ experts should not be permitted to introduce or testify about the OSI evidence
because, “[o]ther than . . . the Melton matter, none of the” other OSIs was “identified as materials
relied upon or considered by plaintiffs’ experts — let alone discussed in their expert reports or
depositions.” (New GM’s OSI Mem. 13-16).
New GM’s objections are well founded with respect to the three alleged OSIs that were
not introduced in Scheuer and do not appear in the Valukas Report or the SOF. Notably,
Plaintiffs proffer no evidence whatsoever with respect to the Hildwen incident. Instead, they
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assert in their unsworn memorandum of law that Hildwen “lost control of her 2005 Cobalt while
attempting to change lanes” because her “steering locked up.” (Pls.’ OSI Mem. 10). Even
taking those allegations as true, however, they fall far short of establishing that Hildwen
experienced a moving stall, let alone a moving stall that was a result of inadvertent ignition
switch rotation; after all, cars could stall for all sorts of reasons having nothing to do with the
ignition switch defect (or at least Plaintiffs have not proved the contrary).
Plaintiffs do proffer “evidence” with respect to the Caban and Gill incidents, but that
evidence is not much better. For Caban, Plaintiffs provide only a two-page form (apparently
created by New GM), titled “Early Technical Assessment System Data Sheet,” which states that
while making a U-turn, Caban’s steering wheel “got loose and kept spinning” causing a crash in
which Caban’s airbags did not deploy. (Jackson Decl., Ex. 4). The report further notes that the
car’s data showed that a “non-deploy event [was] recorded” and concludes that the “steering . . .
functioned as designed, but driver errors . . . caused . . . the crash.” Id. Plaintiffs proffer the
same kind of form for Gill, which states that she “rear-impacted a vehicle in front of her that
slammed on its brakes” and that her airbags did not deploy; much of the form is redacted, but it
does note that “no SDM data was available for review” and that Gill no longer possessed the
vehicle. (Jackson Decl., Ex. 5). Putting aside the glaring hearsay problems raised by these
forms, this “evidence” provides no basis to conclude that either crash was similar, let alone
substantially similar, to Plaintiffs’ crash. (Moreover, the forms do not even establish that the
crashes involved inadvertent ignition switch rotation.) In short, with respect to the three newly
proffered OSIs, Plaintiffs fall far short of meeting even the “relaxed” standard that applies where
such evidence is offered to show notice. Schmelzer, 2007 WL 2826628, at *2. It follows that

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they come nowhere near satisfying the higher standard applicable to OSI offered for other
purposes, including causation. See Watson, 389 S.C. at 453.
In a footnote, Plaintiffs state that they “did not read the OSI Disclosure requirement to
mean that they were required to provide a detailed proffer on the OSI disclosure date” and that it
is their “understanding that, as was the case in Scheuer, if this Court agrees that such evidence is
admissible, a more detailed proffer may later be required.” (Pls.’ OSI Mem. 4 n.8; see Order No.
89 (Docket No. 1864) at 4; Order No. 91 at 4). To the extent that footnote can be construed to
argue that Plaintiffs should be permitted to supplement their proffer if the Court finds it
insufficient, the argument is thoroughly unpersuasive. First, as the Court made clear at the status
conference held on February 23, 2016, the disclosure requirement was indeed more demanding
than Plaintiffs read it to be. Among other things, the nature of the disclosure needed arose at a
status conference in advance of the first bellwether trial, when the Court credited New GM’s
concerns that “unless they have a better idea about what evidence the plaintiffs want to offer on
[OSI], that it’s hard for [New GM] to tee the issue up for [the Court] to decide any disputes.”
(Nov. 20, 2016 Tr. 28). Counsel for New GM explained further that in order to “reasonabl[y]
present[] to the court” New GM’s position on Scheuer’s use of OSI, New GM needed to have
“an understanding of” the specific incidents being offered, the form in which the evidence would
be introduced at trial, and “the purpose for which it is being offered.” (Id. at 33).
In any event, through its Orders and colloquy with counsel, the Court made abundantly
clear that, in their submissions to the Court, the parties were to “brief the admissibility of specific
[OSI] evidence and related witnesses . . . including the specific purpose(s) for which that
evidence is offered and to which the witnesses will testify.” (Order No. 86 (Docket No. 1772)
§ XV (emphasis added); see also Order No. 91 at 4 (directing the parties to brief OSI disputes in
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Barthelemy (or other bellwether cases) “in accordance with the Court’s guidance in Order No. 86
§ XV”)). During a telephone conference that preceded Order No. 86, the Court made plain its
expectation that “plaintiff’s [OSI] submission is going to not only identify who the witness is and
what the proposed evidence is but make an argument as to why it is admissible” including “an
argument as to what the purpose of it is.” (Nov. 30, 2016 Tr. 16). The Court concluded by
stating generally that the parties’ OSI briefing should be sufficient “for [the Court] to adjudicate
these issues so that everybody understands precisely what is coming in and [the Court] ha[s]
whatever meaningful information [it] need[s] to make those determinations.” (Id. (emphasis
added)). The fact that the Court ordered Scheuer to make a detailed follow-up proffer with
respect to the precise evidence he proposed to offer was not a basis for Plaintiffs here to
conclude that they would be given a second bite at the apple in the event that Court found their
showing of substantial similarity inadequate; if anything, it should have made clear to them the
level of specificity that they needed to meet in order for OSI evidence to be admitted.
Plaintiffs’ proffer with respect to the other four alleged OSIs is less problematic, if only
because the incidents are discussed in both the Valukas Report and the SOF and were presented
during the Scheuer trial (making any deficiencies in Plaintiffs’ disclosure or expert reports
harmless). Thus, the Court turns to New GM’s primary argument: that the OSIs are inadmissible
to the extent they involved allegations of improper airbag non-deployment and, in fact, that all
evidence of improper airbag non-deployment should be excluded given Plaintiffs’ concession
that their crash was not a deployment-level event. That argument fails, at least with respect to
notice, substantially for the reason that New GM’s OSI arguments failed in Scheuer: because the
proposed OSIs all involve the same defect alleged in this case. See In re Gen. Motors LLC
Ignition Switch Litig., 2015 WL 9463183, at *2; see also Jackson v. Firestone Tire & Rubber
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Co., 788 F.2d 1070, 1083 (5th Cir. 1986) (“The ‘substantially similar’ predicate for the proof of
similar accidents is defined . . . by the defect (or, as we have also termed it, the product) at
issue.”); Bellinger v. Deere & Co., 881 F. Supp. 813, 818 (N.D.N.Y. 1995) (“In product liability
actions, it is appropriate to define the similarity of the accidents based upon the product or defect
at issue.”). In arguing otherwise, New GM takes an artificially narrow view not only of the
Court’s decisions with respect to the OSI evidence in Scheuer, but also of the defect alleged in
this case, calling it “the loss-of-control defect at issue.” (New GM’s Twentieth Mem. 11; see
also id. at 8 (“[T]he sole defect at issue here is one in which the ignition switch caused a loss of
control.”)). The alleged defect in this case, however, is precisely the same as that alleged in
Scheuer and, indeed, in the MDL as a whole — namely, a defective ignition switch, installed in
certain GM model-year cars, that may inadvertently rotate from “run” to “accessory” or “off,”
thereby disabling critical safety features of the vehicle, such as power steering, power brakes,
and airbag deployment. (See Compl., United States v. $900,000,000 in U.S. Currency, No. 15CV-7342 (S.D.N.Y. Sept. 17, 2015), Docket No. 1, Ex A. (DPA), Ex. C (SOF) ¶ 4 (“The defect
at issue is a low-torque ignition switch . . . which . . . may move out of the “Run” position . . . .
If this movement occurs, the driver loses the assistance of power steering and power brakes.
And if a collision occurs . . . airbags may fail to deploy.” (emphasis added))). More to the point,
the alleged defect is the same as that which caused the Melton, Rose, Chansuthus, and Sullivan
crashes. Thus, Plaintiffs are entitled to introduce evidence of those crashes for purposes of
showing that New GM was on notice of the defect, which is relevant to Spain’s surviving
fraudulent misrepresentation claim. (See Pls.’ OSI Mem. 6). 2

2

In accordance with the Court’s ruling on Plaintiffs’ second motion in limine (see Docket
Nos. 2215, 2346), New GM may make it plain to the jury, within reasonable limits, that
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Plaintiffs fail to establish, however, that the evidence is admissible for any purpose other
than proving notice. As noted, Plaintiffs appear to contend that the OSI evidence is also
admissible to prove causation, but they do so only in conclusory fashion. That is reason enough
to limit Plaintiffs’ proof to the issue of notice, but — more fundamentally — they present no
theory of how the evidence is relevant to the question of causation in this case. New GM does
not contest that there was an ignition switch defect in the kind of car Plaintiffs drove or that that
defect could result in an accident due to the failure of power steering and power brakes. Cf. 1
McCormick on Evid. § 200 (7th ed. 2013) (noting that courts are more likely to allow OSI
evidence to show causation “when the defendant contends that the alleged conduct could not
possibly have caused the plaintiff’s injury” (emphasis added)). Instead, New GM’s primary
defense appears to be that, based on the evidence in this case, Plaintiffs’ crash was not caused by
the defect, but by icy road conditions and Plaintiffs’ driving. The fact that four other crashes
(under very different circumstances) were the result of inadvertent switch rotation sheds no light
on whether New GM or Plaintiffs have the better of that issue in this case. In that regard, the
contrast to Scheuer is telling. There, the plaintiff’s theory was that the airbags in his car should
have deployed when he crashed and that the only explanation for the fact that they did not deploy
was inadvertent switch rotation. The fact that there were other crashes (under relatively similar
circumstances, no less) in which the only explanation found for airbag non-deployment was the
ignition switch defect plainly tended to support that theory (and tended to support the plaintiff’s

Plaintiffs’ crash was not a deployment-level crash. By the same token, although the Court holds
that Plaintiffs are not categorically barred from introducing evidence of airbag non-deployment
in other incidents, the Court will not permit Plaintiffs to introduce excessive evidence of airbag
non-deployment given their concession that their crash did not exceed the deployment threshold.
Put another way, the Court’s denial of New GM’s twentieth motion in limine is without prejudice
to New GM making specific objections, on Rule 403 grounds or others, at trial.
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experts’ opinions to that effect). Here, by contrast, there is nothing about the OSI evidence that
tends to make Plaintiffs’ theory of causation “more or less probable than it would be without the
evidence.” Fed. R. Evid. 401. Accordingly, the evidence is not admissible to prove causation.
That leaves only one question: how Plaintiffs may prove up the four OSIs that are
admissible for purposes of notice. The Court concludes, as it did in Scheuer, that Plaintiffs may
introduce evidence of the permissible OSIs in the Valukas Report and the SOF (and, subject to
any other evidentiary objections, see, e.g., Fed. R. Evid. 403, other documentary evidence, such
as the attorney case evaluations of the Melton, Chansuthus, and Sullivan crashes that were
admitted into evidence at the Scheuer trial). 3 The Court reserves judgment until trial on whether
and to what extent Plaintiffs may elicit testimony from their experts about the OSIs, as they
apparently would like to do. (See Pls.’ OSI Mem. 8 n.10 (stating that Plaintiffs intend “to have
their experts discuss generally their opinions and conclusions regarding the Defective Switch,
including their opinions regarding New GM’s notice of the defect”); id. at 13 (stating that “[i]t is
Plaintiffs’ intention to introduce” the Valukas Report, among other documents, “through their

3

Plaintiffs may not, however, introduce OSI evidence through “NHTSA complaints” or
the like. (In their memorandum, Plaintiffs suggest that they seek to introduce OSI evidence
“contained in NHTSA compiled reports, which would include the NHTSA Complaints reports
appended to Steve Loudon’s” expert report (Pls.’ OSI Mem. 12), but it is not clear whether those
documents relate to the Melton, Rose, Chansuthus, and Sullivan incidents or only to the three
incidents that the Court has already excluded.) For one thing, because Plaintiffs fail to identify
the specific complaints they propose to use, they fail to carry their burden of showing substantial
similarity. Additionally, the use of customer complaints would pose cumulativeness issues and
other evidentiary issues. See, e.g., Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1147 (9th Cir.
2012) (“Some courts have expressed doubt that customer complaints in and of themselves
adequately support an inference that a manufacturer was aware of a defect, noting that
complaints posted on a manufacturer’s webpage merely establish the fact that some consumers
were complaining. By themselves they are insufficient to show that [the manufacturer] had
knowledge [of the defect].” (internal quotation marks omitted)).

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experts in order to show that New GM was on notice of the defective ignition switch . . .”)).
Such testimony may present cumulativeness concerns. See Fed. R. Evid. 403. Additionally, the
Court is not entirely sure how or why expert testimony about the OSIs would be helpful to the
jury in assessing the question of whether the incidents put New GM on notice of the ignition
switch defect. See Fed. R. Evid. 702 (noting that an expert may proffer an opinion only if, as
relevant here, “the expert’s scientific, technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue”). Assuming that Plaintiffs
intend to elicit testimony from their experts on the OSI evidence, they should be prepared in
advance to make a proffer of the testimony and to explain how it would be helpful to the jury.
CONCLUSION
For the reasons stated above and in a more detailed opinion to follow, New GM’s motion
for partial summary judgment is GRANTED in part and DENIED in part, and its twentieth
motion in limine is DENIED (without prejudice to specific objections at trial). Further, the Court
finds that Plaintiffs may offer OSI evidence, but only evidence concerning the Melton, Rose,
Chansuthus, and Sullivan crashes and only for the purpose of proving notice. 4
As discussed at the status conference on February 23, 2016, these rulings may well bear
on other issues, including what portions of the Valukas Report and the SOF are admissible at

4

On occasion, Plaintiffs appear to suggest that they may offer unspecified OSI evidence
above and beyond the seven named incidents discussed above. (See Pls.’ OSI Mem. 2 n.3
(noting that Plaintiffs’ OSI disclosure “identified” the seven named incidents “‘as well as any
other similar instances contained in the Valukas Report, the DPA, the NHTSA Report, or the
Statement of Facts’”); id. at 4 n.8 (noting that the Melton, Rose, Chansuthus, and Sullivan
incidents were “briefed . . . in Scheuer” and that unspecified “others were detailed in the Valukas
Report, the DPA SOF, [and] the NHTSA Complaint database”)). Suffice it to say, given the
ruling above with respect to the Hildwen, Caban, and Gill incidents — as to which Plaintiffs did
make an offer of proof, however inadequate — the Court will not allow Plaintiffs to introduce
OSI evidence that they do not even bother to identify in their OSI submissions.
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trial. After all, Scheuer was permitted to introduce OSI evidence with respect to incidents
beyond the four that Plaintiffs may use here and for purposes that are not relevant or applicable
here — namely, causation and punitive damages. The Court sincerely hopes that the parties can
agree (or narrow their disputes) with respect to whether and to what extent the redactions made
in Scheuer to those exhibits (and perhaps others, such as the attorney case evaluations) are
affected by the Court’s ruling. The parties shall immediately confer with respect to the
implications of this ruling on those issues (and any others). Any disagreements shall be raised
with the Court, in simultaneous letter briefs not to exceed ten pages, by March 4, 2016, at noon.
The Clerk of Court is directed to terminate 14-MD-2543, Docket Nos. 2186 and 2209,
and 14-CV-5810, Docket Nos. 204 and 212.

SO ORDERED.
Dated: February 25, 2016
New York, New York

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