Great Northern Insurance Company et al v. Brentlinger Enterprises et al
Filing
150
OPINION AND ORDER granting 107 Motion in Limine; denying 108 Motion in Limine; denying 109 Motion in Limine; denying 110 Motion in Limine; denying 111 Motion in Limine; granting in part and denying in part 113 Motion in Limine; gran ting in part and denying in part 119 Motion in Limine; granting in part and denying in part 120 Motion in Limine; denying 121 Motion in Limine; granting 123 Motion in Limine; granting in part and denying in part 126 Motion in Limine. Signed by Judge Algenon L. Marbley on 6/26/2015. (cw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GREAT NORTHERN INSURANCE
COMPANY, et al.,
Plaintiffs,
v.
BMW OF NORTH AMERICA LLC,
et al.,
Defendants.
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Case No. 2:11-CV-1153
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp
OPINION & ORDER
I.
Introduction
This matter is before the Court on the Plaintiffs’ following motions in limine: (1) to
exclude evidence regarding the alleged lack of similar incidents, (Doc. 108); (2) to exclude
evidence that the Patricks’ home was demolished and rebuilt, (Doc. 110); and (3) to exclude
expert testimony of Thomas W. McCloskey, (Doc. 111). In addition, this matter is before the
Court on the Defendants’ following motions in limine: (1) to exclude evidence of product recalls
and traffic safety bulletins, (Doc. 107); (2) to exclude evidence of subsequent model vehicles,
(109); (3) to exclude evidence of alleged other similar incidents, (Doc. 113); (4) to exclude or
limit the testimony of Richard Clarke, (Doc. 119); (5) to exclude or limit the testimony of
Michael Steele, (Doc. 120); (6) to limit the testimony of Kevin Keaton, (Doc. 121); (7) to
exclude the testimony of Nicholas Biery, (Doc. 123); and, (8) to limit the testimony of Jeffrey
Lindsey, (Doc. 126).
II.
Background
The facts of this case have been briefed fully in this Court’s February 4, 2015 Opinion &
Order denying Defendants’ motion for summary judgment. (Doc. 100). In summary, this suit
arises from a fire that occurred on March 16, 2010, in a 2007 BMW 328xi leased by the Patricks.
The fire resulted in substantial damage to the vehicle and the Patricks’ home. The Plaintiffs filed
this subrogation lawsuit against Defendants after reimbursing the insured. Defendants do not
contest that the fire began in the engine compartment of the BMW, and was caused by the
combustion of leafy material, but do contest how such material arrived in the engine
compartment. Specifically, Plaintiffs allege that the fire was caused by a design defect of the
stiffener plate, or under-engine compartment cover, which is to blame for the accumulation of
combustible debris too close to hot exhaust components. Defendants deny that the stiffener plate
is defective as designed.
On June 19, 2015, at the Final Pretrial Conference in this case, the Court made rulings on
the pending motions in limine, which are restated below, seriatim.
III.
A.
Legal Standards
Motions in Limine
This Court has summarized the law related to motions in limine as follows:
Motions in limine allow the Court to rule on the admissibility of evidence in
advance of trial in order to expedite proceedings and give the parties advance
notice of the evidence upon which they may not rely to prove their case. See
Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir.1997).
To prevail on a motion in limine, the moving party must show that the evidence is
clearly inadmissible. Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846
(N.D.Oh.2004). Courts are typically “reluctant to grant broad exclusions of
evidence in limine because a court is almost always better situated during the
actual trial to assess the value and utility of evidence.” Black v. Columbus Pub.
Sch., No. 2:96–CV–326, 2007 U.S. Dist. LEXIS 68672, at *2, 2007 WL 2713873
(S.D.Oh. Sept. 17, 2007); accord Sperberg v. Goodyear Tire & Rubber Co., 519
F.2d 708, 712 (6th Cir.1975). If the Court does deny a motion in limine, however,
the Court can reconsider the admissibility of the evidence as the proceedings give
context to the pretrial objections. Black, 2007 U.S. Dist. LEXIS 68672, at *2,
2007 WL 2713873.
2
Jackson v. City of Gahanna, No. C2:08-CV-0068, 2011 WL 587283, at *2 (S.D. Ohio Feb. 9,
2011) (Marbley, J).
A.
Federal Rules of Evidence 401, 402, and 403
Relevancy is the threshold determination regarding the admissibility of evidence. Cervelli
v. Thompson/Ctr. Arms, No. C2-99-1409, 2002 WL 193577, at *4 (S.D. Ohio Jan. 28, 2002)
(citing Koloda v. General Motors Parts Div., General Motors Corp., 716 F.2d 373, 375 (6th
Cir.1983), and Fed.R.Evid. R. 402. The “standard for relevancy under Rule 401 is ‘extremely
liberal.’ ” Ayers v. City of Cleveland, 773 F.3d 161, 169 (6th Cir. 2014) (citing Dortch v. Fowler,
588 F.3d 396, 400 (6th Cir.2009)). According to Federal Rule of Evidence 401, relevant
evidence is “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” Under Rule 402, all irrelevant evidence is inadmissible.
Rule 402 is constrained by Rule 403, which states that “although relevant, evidence may
be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.” Under Rule 403,
[t]his Court has broad discretion in deciding issues of admissibility . . . . Koloda,
716 F.2d at 378. This discretionary power does not allow the Court to exclude
competent evidence which is essential and vital to a litigant's case unless there is a
sound and practicable reason for barring it. Id. at 378.
The Sixth Circuit has noted the requirement that the probative value must be
substantially outweighed is significant in excluding evidence under this rule. U.S.
v. Hans, 684 F.2d 343 (6th Cir.1982). In addition, to exclude evidence under Rule
403, it must be more than damaging to the adverse party; it must be unfairly
prejudicial. Id. The Sixth Circuit has found evidence not to be unfairly prejudicial
where the evidence is directly probative of a defendant's knowledge as of the time
of the incident in question, where it does not require a foray into collateral matters
damaging to plaintiff's interests or appeal to the emotions or prejudices of the
jurors. Koloda, 716 F.2d at 377–78.
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Cervelli, 2002 WL 193577, at *2-3.
B.
Federal Rule of Evidence 702
Under Rule 702, an expert’s opinion is admissible, by the discretion of the trial court, if:
(1) the expert is qualified as such by knowledge, skill, experience, training, or education; (2) the
testimony is relevant, meaning it will assist the trier of fact to understand the evidence or to
determine a fact in issue; and (3) the testimony is reliable, meaning it is based on sufficient facts
or data, is the product of reliable principles and methods, and the witness has applied the
principles and methods reliably to the facts of the case. In re Scrap Metal Antitrust Litig., 527
F.3d 517, 528-29 (6th Cir. 2008).
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that while the
evaluation of expert testimony is generally left to juries, district courts must serve in a
“gatekeeping” capacity, “ensuring that an expert’s testimony both rests on a reliable foundation
and is relevant to the task at hand.” 509 U.S. 579, 597-98 (1993). Daubert set forth a nonexclusive check-list for assessing the reliability of scientific expert testimony: (1) whether the
theory or methodology has been or can be tested; (2) whether it has been subjected to peer
review; (3) whether it has a known or potential rate of error; and (4) whether it has been
generally accepted in the scientific community. Id. at 593-94.
In Kumho Tire Co. v. Carmichael, the Supreme Court clarified that the reliability inquiry
Daubert outlined covers not just scientific testimony, but also expert testimony based on—in the
language of Rule 702—“technical” and “other specialized knowledge.” 526 U.S. 137 (1999). In
Kumho the Supreme Court also recognized, however, that the Daubert factors “may or may not
be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular
expertise, and the subject of his testimony.” Kumho Tire, 526 U.S. at 150; see Gross v. Comm’r,
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272 F.3d 333, 339 (6th Cir. 2001) (explaining that the Daubert factors “are not dispositive in
every case” and should be applied only “where they are reasonable measures of reliability of
expert testimony”).
This Circuit has held that an expert must utilize in the courtroom the “same level of
intellectual rigor that characterizes the practice of an expert in the relevant field.” Best v. Lowe’s
Home Ctrs., Inc., 563 F.3d 171, 177 (6th Cir. 2009) (internal quotation marks omitted).
Determining the admissibility of expert testimony pursuant to Rule 702, however, entails a
flexible inquiry. Daubert, 509 U.S. at 594. The burden on a party proffering expert testimony is
to “show by a preponderance of proof that the expert whose testimony is being offered is
qualified and will testify to scientific knowledge that will assist the trier of fact in understanding
and disposing of relevant issues.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 478 (6th Cir.
2008) (citing Pride v. BIC Corp., 218 F.3d 566, 578 (6th Cir.2000) (internal quotation marks
omitted)).
Where the reliability of the evidence is in dispute, it is more appropriate for a judge to
admit the evidence than to keep it from the fact-finder because “[v]igorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509
U.S. at 596. Additionally, if the evidence is deemed admissible by a court, but it is ultimately
found “insufficient to allow a reasonable juror to conclude that the position more likely than not
is true, the court remains free to direct a judgment.” Id.; see Fed. R. Civ. P. 50.
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IV.
A.
1.
Analysis
Plaintiffs’ Motions in Limine
Plaintiffs’ Motion to Exclude Evidence of No Prior Similar Incidents
The Plaintiffs do not argue that it is never appropriate for a defendant to submit evidence
that no similar incidents of malfunction in the same product has ever occurred, but only that in
this case, Defendants are unable to lay the proper foundation to prove that if prior, similar
accidents had occurred, the witness would probably have known about them. They contend that
Thomas Slaba, who will testify that no prior incidents have occurred, began working for BMW
in 2011, at least four years after the 2007 BMW 328xi E90 platform was put on the market, and
so would not be aware of earlier incidents. In addition, Plaintiffs contend that BMW does not
maintain a database to keep track of fire reports in E90 vehicles.
The law of this Circuit permits admission of evidence of lack of prior similar incidents.
Minichello v. U.S. Indus., Inc., 756 F.2d 26, 31 (6th Cir. 1985) (finding the modern trend favors
admission of evidence of nonexistence of similar incidents to show causation); Koloda v. Gen.
Motors Parts Div., Gen. Motors Corp., 716 F.2d 373, 375 (6th Cir. 1983) (permitting
introduction of lack of prior complaints or similar incidents arising out of the use of a lubricant
to show defendant’s lack of knowledge that any dangerous propensities existed; whether it could
be used to prove the defect was not before the court). As the Sixth Circuit has noted, “the mosaic
of evidence that comprises the record before a jury includes both the evidence and the lack of
evidence on material matters.” Dortch v. Fowler, 588 F.3d 396, 401 (6th Cir. 2009) (citing
United States v. Poindexter, 942 F.2d 354, 360 (6th Cir.1991) (emphasis in original). Thus,
evidence of lack of similar incidents is relevant to Defendants’ claim that the BMW does not
have a design defect.
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The issue, however, is whether such evidence is prejudicial or misleading under Rule
403, which is dependent on whether Defendants can lay a sufficient foundation to show that their
lack of knowledge of similar incidents actually indicates similar incidents likely have not
occurred. Both parties rely on Forrest v. Beloit Corp., 424 F.3d 344, 358 (3d Cir. 2005), which
held that a defendant can meet its burden of showing that if a similar incident had occurred, it
would have known, by laying a proper foundation. The Forrest Court reasoned that a party can
meet this burden by showing the following three elements:
(a) similarity—the defendant must show that the proffered testimony relates to
substantially identical products used in similar circumstances; (b) breadth—the
defendant must provide the court with information concerning the number of prior
units sold and the extent of prior use; and (c) awareness—the defendant must
show that it would likely have known of prior accidents had they occurred.
Id. at 358. This Court adopts the rule in Forrest, and will apply it accordingly.
In terms of breadth and similarity, Defendants argue that the proffered testimony relates
to substantially identical products—Slaba testifies that from 2004-2012, approximately 1.8
million E90 vehicles were sold, and they were equipped with identical or virtually identical
under-engine compartments. Further, Defendants argue that it can be assumed that most of these
vehicles were used in similar circumstances—driven on roads in suburban environments.
In terms of awareness, Defendants put forth that Mr. Yeldham—BMW’s Special Product
Investigation Manager and certified fire inspector—would have known about a similar fire. He
personally investigates or oversees investigation of any fire incident. Defendants state it also has
a network of information gathering, including from dealerships. Further, BMW owners are
provided vehicle maintenance the first 48,000 months, at which time the underbody of the car is
inspected and cleaned. Thus, Defendants argue they would have known about debris
accumulation on the stiffener plate. In addition, Thomas Slaba will testify that he routinely
evaluates materials provided by BMW NA regarding vehicle fire investigations. He will testify
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that he thoroughly interviewed members of different departments regarding this issue, and that
he reviewed Legal Department files on fires prior to his deposition, both facts that overcome the
Plaintiffs’ assertion that he would not have known about similar incidents because of his more
recent employment at BMW.
This Court finds that Defendants have put forth sufficient evidence of a foundation to
indicate they likely would have known had a similar vehicle fire occurred in the same model of
BMW. While the foundation is imperfect, as they have not stated definitively that they keep
track of all vehicle fires in one database, they have shown that they have multiple methodologies
to collect such information. Further, this weakness can be resolved through cross-examination.
Thus, Plaintiffs’ motion is DENIED.
2.
Plaintiff’s Motion to Preclude Evidence that the Patricks’ Home was
Demolished and Rebuilt
Plaintiffs argue that under Federal Rules of Civil Procedure 402 and 403, this Court
should preclude Defendants from offering evidence that the Patricks’ home was demolished and
rebuilt. They argue that such evidence is irrelevant because Plaintiff Pacific Indemnity Insurance
Company is not seeking to recover damages for the cost to tear down and rebuild the Patricks’
home, which their expert estimates would have exceeded $1,000,000, but only to recover
damages for the reasonable cost of repair, which their expert approximated was $850,000.
Plaintiffs contend that at the time the insurance claim relating to the repair damages for the home
were finalized, the Plaintiffs had no knowledge that the home would be torn down and rebuilt,
and, so, they did not consider the cost to rebuild the home as a relevant factor in their adjustment
of the Patricks’ claim. Plaintiffs also argue that the admission of such evidence would be
prejudicial under Rule 403 because it may mislead jurors into believing that: (1) the Plaintiff
considered the cost to rebuild the home when adjusting the Patricks’ claim; (2) the Plaintiff paid
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the Patricks more than the cost of repair; and (3) the Patricks were dishonest in their dealings
with the insurance companies.
Defendants respond that such evidence is relevant because the evidence shows that
estimates prepared by Plaintiff's’ expert adjuster and independent contractor estimated the cost of
repair was less than $450,000, yet, one year later, the Plaintiffs paid the Patricks $839,488.55 for
cost of repair. Further, Defendants contend that the record is replete with evidence that the
amount actually paid represents the cost of having the partially-damaged home razed and rebuilt,
which is bolstered by evidence that the Patricks did in fact raze their home and build a new one
with insurance monies received. This includes Mr. Patrick’s own testimony that the Plaintiffs
agreed to pay him approximately $800,000 to demolish and rebuild the home; and, evidence of
intentional delay on the Patricks’ behalf, which lead to further damage to the home, and fulfilled
the Patricks’ alleged desire to have the home fully rebuilt.
As Plaintiffs set forth, the proper measure of damages for temporary injury to real
property is the reasonable cost of restoration. Martin v. Design Constr. Serv. 902 N.E.2d 13
(Ohio 2009). At trial, Plaintiffs will present testimony that they paid Plaintiffs only for the cost
of repair, accordingly to Ohio law. In contrast, Defendants intend to present evidence that
Plaintiffs understood they were paying for the cost of rebuilding a new home. Accordingly, the
fact that the Patricks did in fact raze their home and build a new one makes it more probable that
Plaintiffs paid them for that purpose. See Fed. R. Evid. 401. This Court does not find that such
evidence will mislead the jury under Rule 403; instead, its relevance will assist the jury in
making a determination regarding whether the monies paid to the Patricks were merely for cost
of repair, or were, in fact, for rebuilding the home, in contravention of Ohio law. Thus, Plaintiffs’
Motion is hereby DENIED.
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3.
Plaintiffs’ Motion to Exclude Expert Testimony of Thomas W. McCloskey
Plaintiffs argue that the testimony of Defendants’ damages expert, Thomas McCloskey,
is inadmissible because: (1) his calculations were based on an improper legal standard for
calculating damages under Ohio law; and (2) his opinion is unreliable and not independently
verified.
a.
Whether McCloskey’s Testimony is Relevant
Plaintiffs argue that McCloskey’s reliance on an improper legal standard when
calculating damages renders his opinion irrelevant under Rule 702. See Info-Hold, Inc. v. Muzak
LLC, No. 1:11-CV-283, 2013 WL 4482442, at *2-5 (S.D. Ohio Aug. 20, 2013) reconsideration
denied, No. 1:11-CV-283, 2013 WL 6008619 (S.D. Ohio Nov. 13, 2013) and aff'd in part, rev'd
in part, 783 F.3d 1365 (Fed. Cir. 2015) (excluding expert’s testimony, and citing as his most
egregious error his reliance on an improper legal standard for calculating damages as a matter of
law).
Under Ohio law, if the injury to noncommercial real property is temporary or can be
repaired, “the measure of damages is the reasonable cost of restoration, plus reasonable
compensation for the loss of the use of the property between the time of the injury and the
restoration, unless such cost of restoration exceeds the difference in the market value of the
property before and after the injury, in which case the difference in market value becomes the
measure.” Martin v. Design Constr. Servs., Inc., 2009-Ohio-1, ¶¶ 12-27, 121 Ohio St. 3d 66, 6872, 902 N.E.2d 10, 13-15. The rule that the cost of restoration cannot exceed the difference
between market value before and after the injury is limited, however. Id. This is because “a
plaintiff need not prove diminution in the market value of the property in order to recover the
10
reasonable costs of restoration, but either party may offer evidence of diminution of the market
value of the property as a factor bearing on the reasonableness of the cost of restoration.” Id.
Plaintiffs contend that McCloskey veered from the proper legal standard because,
although he calculated the cost of repair of the Patricks’ home to arrive at the base damages
amount, he then discounted that amount to account for depreciation. Further, McCloskey based
the depreciation amount on the value of the entire property. Plaintiffs argue that it was improper
to base the depreciation amount on the value of the property under Ohio law, because cost of
repair is the proper legal standard for temporary harm to real property.
This Court finds that the Ohio rule that the proper measure of damages for temporary
harm to real property is cost of repair is not in conflict with McCloskey’s expert opinion that
those damages should be discounted to account for depreciation of the property. Further, basing
that depreciation amount on the actual cash value of the property, rather than the cost of repair, is
not undermined directly by the above expression of Ohio law regarding the proper calculation of
damages in temporary injury to property cases. Instead, McCloskey opines that after determining
the restoration costs, it is proper to reduce those costs by the depreciation amount of the property,
and the depreciation amount is appropriately based on the total value of the property, not just the
restoration amount. Whether cost of repair should be reduced by property depreciation, and what
methodology should be used in calculating cost of depreciation, is for a valuation expert to
prove. Plaintiffs will be free to cross-examine McCloskey as to this point, and Plaintiffs also are
free to offer rebuttal testimony. Thus, this testimony is admissible under Rule 402.
b.
Whether McCloskey’s Testimony is Reliable
Next, Plaintiffs argue that Mr. McCloskey’s testimony is not reliable under Rule 702
because: (1) he did not perform an independent evaluation, but, instead, relied on estimates put
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forth by other experts without evaluating the bases for these estimates; (2) he never contacted the
contractors to verify if estimates were fair/reasonable; and (3) he did not perform his own
programming or computer analysis. Further, Plaintiffs contend that McCloskey presented no
independent basis for his determination that the proper depreciation figure is 30%.
Plaintiffs urge this Court to rely on Ask Chemicals, LP v. Computer Packages, Inc., 593
F. App'x 506, 510-11 (6th Cir. 2014), which held that particularly in light of the unreliability of
the evidence underlying plaintiff’s expert’s estimates, the district court was within its discretion
to determine that the lack of independent verification or analysis of the data on which the
expert’s opinion relied rendered his opinions unreliable.
Defendants respond that McCloskey’s cost of repair estimate relied entirely on 3,000
pages of an insurance file generated by Plaintiffs’ own adjuster and expert, which is precisely the
type of information that adjusters need to rely on to opine as to how the claim was resolved. This
Court agrees. Unlike in Ask Chemicals, there is no evidence that these insurance files are
inherently unreliable, and Plaintiffs do not argue that they are unreliable.
In terms of McCloskey’s opinion that 30% is the proper depreciation rate, Defendants
argue McCloskey’s opinion is not arbitrary, and cite to McCloskey’s deposition, in which he
states: “I didn’t say it didn’t have any basis in fact. I said the percentage I elected to use was
predicted on what I can see in the photograph, as so on, from that house, and so on.” At this point
in time, this Court finds that McCloskey’s qualifications, which Plaintiffs do not challenge,
qualify him to opine as to a proper depreciation rate. It is well established that experience-based
testimony satisfies Daubert's reliability requirements. United States v. Poulsen, 543 F. Supp. 2d
809, 811-12 (S.D. Ohio 2008) (Marbley, J) (finding expert witness’ “proposed expert testimony
grows out of the knowledge and experience he acquired as an FBI agent, not out of any
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procedures he has employed-or should be expected to have employed-in forming his opinions”)
(citing First Tennessee Bank National Association v. Barreto, 268 F.3d 319, 333 (6th Cir.2001)
(finding Daubert factors related to a reliable methodology inapplicable where expert’s testimony
was derived from his practical experience in the banking industry)). This Court finds, however,
that considering McCloskey’s deposition testimony, it will allow a voir dire of McCloskey for
the proper foundation underlying his opinion, to ensure it is not based on utter speculation.
In sum, Plaintiffs’ Motion is DENIED.
B.
1.
Defendants’ Motions in Limine
Defendants’ Motion to Exclude Evidence of Product Recalls
and Traffic Safety Bulletins
Defendants argue that evidence of product recalls and safety bulletins are not relevant,
and should be excluded under Rules 401 and 403, as Richard Clarke, Plaintiffs’ expert, conceded
in his deposition that he has not discovered any relevant information regarding recalls associated
with the 2007 BMW 328xi. Since no on-point bulletins have been discovered, Defendants assert
it would mislead the jury to discuss unrelated recalls or bulletins.
Plaintiffs respond that they do not intend to offer evidence in their case in chief with
respect to traffic safety bulletins or product recalls. Should BMW “open the door” through
evidence presented by their own witnesses, however, they request that they be permitted to
introduce evidence of safety bulletins and/or product recalls issued.
Considering Plaintiffs’ representation to this Court that they do not have any such
evidence, this Court finds that such unidentified evidence is irrelevant. Accordingly, Defendants’
motion is hereby GRANTED. If Defendants, however, offer evidence of lack of safety bulletins
in their case in chief, this Court will reevaluate its determination, should Plaintiffs attempt to
enter evidence of safety bulletins or product recalls.
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2.
Defendants’ Motion to Exclude Evidence of Subsequent Model Vehicles
Pursuant to Rules 401, 402 and 403, Defendants request that this Court preclude
Plaintiffs from introducing, discussing or referring to the F30 platform, which is the next
generation of the 3-series BMW after the E90 series. They argue the F30 is a complete redesign,
and without any evidence establishing similarity, the F30 has no relevance to this case. Further,
they argue that Plaintiffs have not developed any evidence to suggest that the F30 stiffener plate
was designed to allow debris to pass through the engine compartment; in fact, the stiffener
plate’s cutout is filled with the axle gear, which extends below the plate, to permit cooling of the
axle gear.
Plaintiffs respond that the stiffener plates in both models perform the same essential
function, and introduction of evidence showing that the F30 platform has a stiffener plate with
holes is relevant to Plaintiffs’ contention that a safer alternative design of the stiffener plate is
feasible.
While a subsequent design is not permissible to prove a design defect under Rule 407, it
is admissible to show the feasibility of an alternative design and/or remedial measures. Siegel v.
Dynamic Cooking Sys., Inc., 501 F. App'x 397, 405 (6th Cir. 2012). This issue hinges on whether
the F30 series is so dissimilar from the E90 series that they cannot be compared without
substantially prejudicing the Defendants. This Court is not persuaded currently that an
immediately subsequent model of the same vehicle is so dissimilar that any reference to it is
irrelevant. Indeed, for the purposes of discovery, courts generally permit “discovery of similar, if
not identical, [product] models[.]” Tolstih v. L.G. Electronics, USA, Inc., No. CIV.A. 2:07-CV582, 2009 WL 439564, at *5 (S.D. Ohio Feb. 20, 2009). Thus, this Court holds that the F30
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model is admissible to show feasibility of alternative design, although it is not admissible to
prove the design defect. Accordingly, Defendants’ motion is hereby DENIED.
3.
Defendants’ Motion to Exclude Evidence of Alleged Other Similar Incidents
Defendants urge this Court to exclude testimony under Rules 401, 402 and 403 that Slaba
is aware of 20-30 vehicle fires in BMW E-90 series where BMW was unable to determine the
cause of the fire. Defendants argue that evidence of prior similar incidents is admissible only if
Plaintiffs meet their burden of showing the 20-30 vehicle fires were “substantially similar,”
meaning they occurred in the same model and design of vehicle, were caused by the same defect,
and occurred under similar circumstances. Tolstih v. L.G. Electronics, USA, Inc., No. CIV.A.
2:07-CV-582, 2009 WL 439564, at *5 (S.D. Ohio Feb. 20, 2009). Defendants contend that
Plaintiffs cannot meet their burden.
Plaintiffs respond that it did not intend to introduce evidence in their case in chief that
there have been other fires in BMW vehicles which were substantially similar to the fire in this
case. If Defendants open the door, however, by offering evidence of lack of similar incidents,
Plaintiffs will seek to introduce evidence that there have been at least 20 to 30 reported fires
involving BMW E90 platform vehicles, many of which have undetermined causes.
The Sixth Circuit has endorsed the use of prior accident evidence. Bryan v. Emerson
Electric Co., No. 87–6027, 1988 WL 90910, at *4 (6th Cir. Sept. 1, 1988). Such evidence,
however, is limited by the “substantial similarity” test, which is an outgrowth of the application
of Rules 401 and 403. Id. If a prior accident is not similar in some way to the case before the
Court, then its admission will not make it more, or less, probable that the plaintiff suffered an
injury; it will not prove any other issue in the particular case. Id. The plaintiff has the burden of
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showing the substantial similarity between prior accidents and his own. Croskey v. BMW of N.
Am., Inc., 532 F.3d 511, 518 (6th Cir. 2008).
The degree of similarity required to ensure the relevancy of a prior accident or injury,
however, will vary with the issue to which the evidence is directed. Koloda v. General Motors
Parts Div., General Motors Corp., 716 F.2d 373, 375 (6th Cir.1983). “Such issues may include:
(1) physical condition or defect; (2) causation; (3) existence of a dangerous situation at the time
of the accident; or (4) notice or knowledge of danger.” Id. “If the prior occurrence is offered to
prove notice, a lesser degree of similarity is required provided the accident would have tended to
warn the defendant.” Cervelli, 2002 WL 193577, at *2 (citing Bryan, 1988 WL 90910, at *5).
The Sixth Circuit has found evidence of prior similar incidents to be relevant to provide notice of
a dangerous condition, as long as similar circumstances exist. Id. (citing Bryan, 1988 WL 90910,
at *5).
This Court finds that evidence of 20 to 30 undiagnosed fires in E90 platform vehicles is
relevant as it relates to Defendants’ contention that it is certain no other similar incidents have
ever occurred. Further, this Court holds such evidence is admissible to show Defendants were on
notice that some unknown defect which causes fires may have existed in the platform. At this
time, however, this Court excludes this evidence for any other purpose, particularly to prove
causation, as Plaintiffs have not shown they will lay the proper foundation to prove the prior
incidents were sufficiently similar to the accident at issue. Thus, Defendants’ motion is
GRANTED in part, and DENIED in part.
4.
Defendants’ Motion to Exclude or Limit the Testimony of Richard Clarke
This Court already analyzed and rejected Defendants’ prior motion to exclude the
testimony of Richard Clark, (see Doc. 100), and will not revisit that motion.
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Defendants ask, in the alternative, that this Court exclude Clarke’s deposition statements
made in response to photographs shown to him of the undersides of other manufacturers’
vehicles, which were taken by Defendants’ expert, Richard Keefer. Defendants argue that such
testimony is excludable under Rule 702 because Clarke did not rely upon an evaluation of other
vehicles prior to forming his opinions in this case; he was shown the photographs of other
vehicles only during his deposition, and thus his opinions about the undersides of other cars are
not reliable. Defendants add that even if this Court admits Clarke’s deposition testimony, he
should not be permitted independently to introduce evidence of other vehicle designs.
Defendants argue that such testimony would only mislead or confuse the jury because no
discovery has been done on these designs, nor any scientific evaluation conducted on the
question of comparable vehicle designs.
This Court holds that Clarke is permitted to testify as to his own statements in the context
of his deposition. Further, it is within his general knowledge as an engineer and mechanic to
opine about differences between different cars’ under- engine compartments. See Poulsen, 543
F. Supp. 2d at 811-12 (finding it is well established that experience-based testimony satisfies
Daubert's reliability requirements). He is not permitted, however, to testify as to comparator
vehicles that he did not discuss in his deposition or in his expert report, as Defendants do not
have notice of such expert opinions. Thus, Defendants’ motion is DENIED in part, and
GRANTED in part.
5.
Defendants’ Motion to Exclude or Limit the Testimony of Michael Steele
Steele is a rebuttal witness, retained to respond to Dr. Gates’ opinions that a squirrel
caused the collection of debris which caused the fire. Steele primarily opines that it is more
likely than not that the fox squirrel whose remains were found on November 1, 2013 inhabited
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the vehicle after it was stored, outside, at the SEA facility. Defendants argue that Steele has no
education, training or experience regarding vehicle design, so under Rule 702 he should not be
permitted to offer the following opinions stated during his deposition: (1) that spaces on both
sides of the car would have allowed road debris to accumulate on top of the stiffener plate; and,
(2) that it would be impossible for an animal to crawl from the vehicle’s engine compartment to
the back end of the vehicle without crawling directly alongside the exhaust system. They also
argue that Steele is not an entomologist, so he is not qualified to analyze the insects, allegedly
maggots, identified within the squirrel carcass he inspected.
This Court holds that Steele is not permitted to testify as to vehicle design, as such
testimony is outside of his area of expertise, and any such testimony is unrelated to his opinion
rebutting the “squirrel theory.” This holding does not mean, however, that he cannot testify as to
the behavior a squirrel may or may not have exhibited in order to enter the vehicle, as long as
those opinions do not depend on assumptions regarding vehicle design that he is unqualified to
make. Further, Steele is a scientist with a PhD is biology, and thus is qualified to opine as to the
remains of the insect found in the squirrel carcass. Accordingly, Defendants’ motion is
GRANTED in part, and DENIED in part.
6.
Defendants’ Motion to Limit the Testimony of Kevin Keaton
Keaton is a fire cause-and-origin expert, who, Defendants argue, has no education and
training in vehicle design. As such, Defendants assert that under Rule 702 he cannot: (1) discuss
vehicle design, aerodynamics or airflow, including by opining that openings in the vehicle’s
wheel wells allowed organic debris to get within the origin area; or, (2) discuss his opinion that
he discovered no indication there was any type of rodent activity in the area of origin.
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Plaintiffs retort that as a vehicle fire-origin expert, Keaton is qualified to use deductive
reasoning to opine as to how the debris causing the fire may have gotten onto the stiffener plate.
Further, they assert that since he is a fire-origin expert, he is permitted to testify from experience
that he has never seen a rodent build a nest in a vehicle that is operated daily and stored in a
garage.
This Court concludes that as a vehicle fire-origin expert, Keaton is qualified to opine as
to how debris may have arrived at the point of the fire’s origin, as well as to opine as to whether,
based on his experience, a squirrel next may have caused the debris accumulation. Any
weaknesses in his qualifications go to the weight of his testimony, not to its admissibility.
Defendants’ Motion is hereby DENIED.
7.
Defendants’ Motion to Exclude or Limit the Testimony of Nicholas Biery
Nicholas Biery was a participant in the SEA team of experts who investigated the vehicle
fire. Defendants argue that Nicholas Biery’s only role was evaluating a small portion of loose
debris for rodent activity. Defendants assert Biery is unqualified under Rule 702 to offer his
opinions regarding his search of that debris because he never before had examined evidence for
rodent activity, and he has not received specialized training in biology or zoology.
Plaintiffs respond that as an expert who assisted the SEA fire-causation experts in the
investigation of the vehicle, Biery will provide relevant testimony beyond his examination of the
debris for evidence of rodents. Plaintiffs do not respond to Defendants’ contention that he does
not have qualifications to identify rodent evidence in debris.
This Court agrees that Biery’s testimony regarding his failure to find rodent activity in
the debris should be excluded. Biery has not shown himself to be qualified to perform such an
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investigation, and thus his conclusion that no evidence of rodent activity existed in the debris is
unreliable. Thus, Defendants’ motion is GRANTED.
Further, while Biery’s testimony regarding the SEA fire-causation investigation may be
admissible, this Court warns that if it is nothing more than “needless presentation of cumulative
evidence,” considering Keaton likely will provide all necessary information regarding the SEA
investigation, this Court will exclude it at trial under Rule 403.
8.
Defendants’ Motion To Limit the Testimony of Jeff Lindsey
Jeff Lindsey is an electrical engineer who evaluated the vehicle for electrical issues.
Defendants argue that since Plaintiffs concede that electrical issues are not relevant to this case,
Lindsey’s testimony concerning his evaluation is irrelevant, and excludable under Rule 402.
Further, they argue Lindsey is not qualified under Rule 702 to opine as to the aerodynamics and
design of the vehicle, how the debris got onto the stiffener plate, and whether a rodent was
responsible for the accumulation of material on the stiffener plate.
Plaintiffs respond that Lindsey’s testimony was not limited to his opinion as to electrical
issues, but also included an examination of evidence at the Patrick home, and the physical
evidence removed from the fire scene. He also analyzed burn patterns in the fire damaged BMW.
Plaintiffs argue that Mr. Lindsey’s elimination of the electrical components as the cause of fire
support the fire investigative team’s focus on the combustion of leafy materials. Further, Lindsey
was involved in the acquisition and testing of the exemplar vehicle, and took pictures of the
vehicle.
Defendants do not contest that the combustion of leafy material caused the fire; they
contest, only, how such material arrived at the fire origin. Thus, any testimony regarding
electrical issues is irrelevant, and will be excluded under Rule 402. At this point in time, this
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Court will admit testimony regarding burn patters, and physical evidence from the Patricks’
home, so long as Plaintiffs show at trial how this evidence is relevant to a fact at issue under
Rule 402. In addition, pursuant to Rule 702, this Court will exclude any of Lindsey’s testimony
regarding vehicle design and how debris got onto the stiffener plate, as such testimony is outside
of Lindsey’s field of expertise. Lastly, Lindsey may testify as to the acquisition of the exemplar
vehicle, but only insomuch as such testimony is relevant, and is not cumulative of other
testimony. See Fed. R. Evid. 401, 402, 403. Thus, Defendants’ motion is GRANTED in part,
and DENIED in part.
V.
Conclusion
Plaintiffs’ motion in limine (1) to exclude evidence regarding the alleged lack of similar
incidents, (Doc. 108), is DENIED; (2) to exclude evidence that the Patricks’ home was
demolished and rebuilt, (Doc. 110), is DENIED; and (3) to exclude expert testimony of Thomas
W. McCloskey, (Doc. 111), is DENIED. Defendants’ motion in limine: (1) to exclude evidence
of product recalls and traffic safety bulletins, (Doc. 107), is GRANTED; (2) to exclude evidence
of subsequent model vehicles, (109), is DENIED; (3) to exclude evidence of alleged other
similar incidents, (Doc. 113), is GRANTED in part, and DENIED in part; (4) to exclude or limit
the testimony of Richard Clarke, (Doc. 119), is GRANTED in part, and DENIED in part; (5) to
exclude or limit the testimony of Michael Steele, (Doc. 120), is GRANTED in part, and
DENIED in part; (6) to limit the testimony of Kevin Keaton, (Doc. 121), is DENIED; (7) to
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exclude the testimony of Nicholas Biery, (Doc. 123), is GRANTED; and, (8) to limit the
testimony of Jeffrey Lindsey, (Doc. 126), is GRANTED in part and DENIED in part.
IT IS SO ORDERED.
/s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: June 26, 2015
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