Hickerson v. Yamaha Motor Corporation USA

Filing 101

ORDER AND OPINION granting in part and denying in part 69 Motion in Limine Signed by Honorable J Michelle Childs on 7/21/2016.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Deborah Meek Hickerson,
Plaintiff,
v.
Yamaha Motor Corporation, U.S.A., and
Yamaha Motor Co., Ltd.,
Defendants.

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Civil Action No. 8:13-cv-02311-JMC

ORDER AND OPINION

This matter is before the court under Defendants’ Motion in Limine to Exclude the Use of
English Translations of Japanese Test Report, Including the Phrase “Safety Contour Seat” (ECF
No. 69). Specifically, Defendants seek to exclude “the English translations of [Yamaha Motor
Corporation (“YMC”)]’s December 10 Japanese test report.” (Id. at 1.)
Presumably to support her claims in this case, Plaintiff’s expert witness, Dr. Anand
Kaskebar, proposes an alternative design for the product at issue here that incorporates the more
sculpted seat from the “Cruiser” design rather than the standard seat on the Yamaha WaveRunner
VXS design. (See generally ECF No. 69-2.) Plaintiff’s expert witness partly relied on a report
Defendants had translated and then disclosed to Plaintiff; that report documented the testing
Defendants conducted on the more sculpted seat of the Cruiser design. (See ECF Nos. 69 at 3, 691, 69-2.)

The translated version of the report document states that the purpose of the test was to

“[e]valuate the safety contour.” (ECF No. 69-1).
As part of its Motion, Defendants request that “Plaintiff, her counsel, or her expert witness,
Dr. Kaskebar” be precluded from using 1) the phrase, “Safety Contour,” to describe features of the
Cruiser seat, and 2) the phrase, “Safety Contour Seat,” a phrase Dr. Kaskebar uses in his deposition
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testimony, to refer to the Cruiser seat. (ECF No. 69 at 3.) Defendants first argue that the English
translation of the YMC test report is inadmissible hearsay under Rules 801 and 802 of the Federal
Rules of Evidence. (Id. at 4–5.) Defendants secondly maintain that Dr. Kaskebar “lacks the
specialized knowledge to assess the reliability of the document” under Rule 703 of the Federal
Rules of Evidence. (Id. at 3, 6.) Defendants lastly contend that Plaintiff’s use of the term, “Safety
Contour Seat,” is overly prejudicial in violation of Rule 403 of the Federal Rules of Evidence. (Id.
at 6–7.)
On the question of when a translated document constitutes hearsay, Plaintiff responds that
the translated test report at issue here is admissible under the prevailing standard of United States
v. Vidacack, 553 F.3d 344, 352 (4th Cir. 2009) (citing United States v. Martinez-Gaytan, 213 F.3d
890 (5th Cir. 2000)). (ECF No. 88 at 3–4.) In Vidacack, the Court of Appeals for the Fourth
Circuit recognized that, generally, “‘an interpreter is no more than a language conduit and therefore
his translation does not create an additional level of hearsay.’” Vidacack, 553 F.3d at 352 (quoting
Martinez-Gaytan, 213 F.3d at 892). The court identified and applied four factors, however, to
determine when an exception applies to this general rule: “1) which party supplied the interpreter;
2) whether the interpreter had a motive to mislead or distort; 3) the interpreter’s qualifications and
language skills; and 4) whether actions taken subsequent to the conversation were consistent with
the statements translated.” Id. (quotation marks omitted). In applying these factors, “the particular
facts of a case [should] cast significant doubt upon the accuracy of a [translation]” such that an
exception to the general rule is warranted. Id. (quotation marks omitted).
Applying the Vidacack standard to this case’s facts, this court agrees with Plaintiff. The
court first notes that Defendants provided the translated test report, that which, by itself, weighs
against any apparent motive for the interpreter to misrepresent the translation. (ECF No. 88 at 4.)

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Moreover, there is no obvious reason for this court to question the qualifications of the interpreter
Defendants used to translate the arguments before they provided them to Plaintiff. (Id.)
To prove the inadmissibility of the translated test report, Defendants appear to rely
especially on a showing of the fourth factor in Vidacack—that is, that actions taken after the
translated conversation are not consistent with translated statements. (See ECF No. 69 at 5.)
Defendants argue:
YMC’s disagreement that the translation of the “Safety Contour” language is
accurate, including Mr. [Yashuhiko] Henmi’s[ 1] testimony that it was not
reasonable to assume that the term “Safety Contour” referred to the seat’s purported
enhanced safety, make the translations inadmissible under Martinez-Gaytan and
Vidacak. Moreover, the fact that YMC does not treat the Cruiser seat as a safety
feature, but as a comfort design and continues to offer the standard seat on its
products also makes the translation inadmissible under the test’s fourth factor.
(Id.) But upon close inspection of Mr. Henmi’s testimony in its full context, it appears that what
he deemed “not reasonable” was an assumption that the “sculpting for the last passenger” be
referred to as “safety contours” because it has “safety features.” (ECF No. 69-3 at 3 (emphasis
added).) Contrary to what Defendants suggest, however, this does not equate to Mr. Henmi
deeming altogether unreasonable—much less, incorrect—a reference to the sculpting as “safety
contours”; his testimony suggests that the sculpting could reasonably be referred to as “safety
contours” for other reasons besides having “safety features.” Indeed, when asked why the test
documents refer to the sculpting as a “safety contour,” Mr. Henmi’s explanation suggests that there
was a reason:
This evaluation is not limited to sculpting passenger seat alone. As I explained to
you earlier, we are looking at getting on and off the craft or time of towing and so
on. So, we are really evaluating various shapes of the craft, making sure that there
is nothing sharp edges [sic], which may cause injury to one’s leg, or something
protruding, which may cause the falling passenger being stuck or hooked. So, here
we are evaluating the overall shape.
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Mr. Yashuhiko Henmi is identified as Defendant YMC’s “representative.” (ECF No. 69 at 3.)
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(Id. at 2.) Thus, this court cannot conclude that any of the post-translation actions Defendants
point to—including Mr. Henmi’s testimony or Defendants’ continued “treatment” of the Cruiser
seat as a “comfort design”—are so inconsistent with the translated statements that the report should
be deemed inadmissible. 2 (ECF No. 69 at 5.)
In sum, the court finds that no facts of this case suggest that “significant doubt” as to the
translation’s accuracy is warranted such that hearsay arguments should be merited. United States
v. Vidacack, 553 F.3d 344, 352 (4th Cir. 2009) (citing United States v. Martinez-Gaytan, 213 F.3d
890 (5th Cir. 2000)). Because the court does not find that the translated report constitutes hearsay,
the court also rejects Defendants’ argument that because Plaintiff’s testing expert “lacks . . .
expertise to assess the reliability of the English translation . . . he is doing nothing more than
transmitting hearsay to the jury.” 3 (ECF No. 69 at 6.)
Finally, this court does not find availing Defendants’ argument that any use of the
translated document is unfairly prejudicial under Rule 403. In light of the translation transcript
and Mr. Henmi’s testimony as to the reasonableness of the translation’s meaning, however, this
court does find unduly prejudicial a characterization of the sculpted seat on the Cruiser design as
a “safety contour seat.” The specific term, “safety contour seat,” is not in the translated report and
could mislead the jury into concluding that Defendants knew that the jet ski in dispute here did not
have a seat Defendants, themselves, referred to as a “safety” seat. Therefore, the court finds it

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It also is not clear why Defendants did not determine the “unreasonableness” of the translated
statements before disclosing the report to Plaintiff.
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Given this ruling, this court does not address Defendants’ argument that a hearsay exception does
not apply because, Defendants contend, they did not provide the translated document to Plaintiff
as a business record. (See ECF No. 69 at 3–4 (arguing that the translated document does not fall
within any hearsay exceptions, including business records, under Fed. R. Evid. 803(6).)
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appropriate to require Plaintiff, either herself or through other evidence or testimony, 4 to refrain
from using the specific phrases, “safety contour seat” or “safety contour cruiser seat.”
This court therefore DENIES IN PART and GRANTS IN PART Defendants’ Motion
in Limine (ECF No. 69). The Motion is denied with respect to its request for the court to exclude
the English translation of YMC’s December 10, 2002 Japanese test report. The Motion is granted
as to any use by Plaintiff of the phrases, “safety contour seat” or “safety contour cruiser seat.”
IT IS SO ORDERED.

United States District Judge
July 21, 2016
Columbia, South Carolina

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See, e.g., ECF No. 69-2 (Ex. B, Kasbekar Dep. at 217:2-6) (“I think a contoured seat similar if
not identical to the safety contour cruiser seat . . . would make it reasonably safe with regard to the
seat.”).
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