Hickerson v. Yamaha Motor Corporation USA

Filing 98

ORDER granting in part and denying in part 62 Motion in Limine as set out. Signed by Honorable J Michelle Childs on 7/19/16.(kmca)

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

)
)
)
)
)
)
)
)
)
)
)

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

ORDER AND OPINION

This matter is before the court pursuant to Defendants’ Motion in Limine seeking to
exclude “any evidence of or reference to other incidents, claims or lawsuits, and medical reports
related to the same.” (ECF No. 62 at 1.) Specifically, citing Fed. R. Evid. 401, 402, and 403
(relating to relevance) and Fed. R. Evid. 801 and 802 (relating to hearsay), Defendants seek an
order barring (1) post-distribution/manufacture evidence and (2) pre-distribution/manufacture
evidence of “other incidents” that are not substantially similar to the instant action. (Id. at 3–6.)
As to relevance, Defendants argue that pre-distribution/manufacture evidence of other
incidents is irrelevant because they are neither substantially similar to “the particular (and unique)
circumstances of the accident at issue in this case,” nor are they relevant to “proving Plaintiffs’
[sic] product liability claims.” (Id. at 3.) Additionally, Defendants assert that “any evidence of or
reference to other incidents, claims or lawsuits, and medical reports related to the same” after 2010,
when the subject WaveRunner was manufactured, should be excluded because South Carolina case
law prohibits the use of post-distribution/manufacture evidence as a basis for liability. (Id. at 3
(citing Branham v. Ford Motor Co., 390 S.C. 203, 227 (2010)).) Defendants further argue that
even if the evidence at issue is deemed relevant, it should still be excluded because the prejudice

1

to Defendants substantially outweighs its relevance. (Id. at 7–9 (citing Fed. R. Civ. P. 403).) As
to hearsay, Defendants argue that “claims and complaints filed in other actions about other
accidents or incidents are clearly hearsay” that require Plaintiff to “establish the proper foundation”
for such documents to be admissible. (Id. at 6.)
In response, Plaintiff only opposes the exclusion of evidence regarding other incidents
claims and lawsuits, based on its relevance in establishing Defendants’ notice about issues in the
instant action. (ECF No. 85 at 1.) Plaintiff identifies eight prior incidents that she is seeking to
introduce as evidence of notice. (Id. at 4.) Plaintiff notes that each prior incident exhibits “salient
characteristics” to the matter before this court, which she asserts supports her contention that the
evidence is substantially similar to the instant action and thus admissible as evidence. (Id.)
I.

ANALYSIS

Under Fed. R. Evid. 401, evidence is relevant if (1) “it has a tendency to make a fact more
or less probable than it would be without the evidence” and (2) “the fact is of consequence in
determining the action.” Irrelevant evidence may not be admitted as evidence. Fed. R. Evid. 402.
As an initial matter, the court notes that Plaintiff does not oppose excluding postdistribution/manufacture evidence. (ECF No. 85.) Because liability in a product liability action
may not be established by post-distribution evidence, Branham, 390 S.C. at 226–27, the court finds
that excluding post-distribution evidence is appropriate.
Regarding pre-distribution/manufacture evidence, both parties are correct that the standard
for relevance of other incidents is proof of substantial similarity. Jimenez v. Daimler Chrysler
Corp., 269 F.3d 439, 456 (4th Cir. 2001). Courts utilize the following factors to determine whether
evidence regarding causation is sufficiently similar to be admissible: “(1) the products are similar;
(2) the alleged defect is similar; (3) causation related to the defect in the other incidents; and (4)

2

exclusion of all reasonable secondary explanations for the cause of the other incidents.” Buckman
v. Bombardier Corp., 893 F. Supp. 547, 552 (E.D.N.C.1995) (citing cases); accord Watson v. Ford
Motor Co., 389 S.C. 434, 453–54 (2010) (citations omitted) (utilizing the same factors articulated
in federal court to determine whether evidence of other incidents are admissible in South Carolina
state court). Plaintiff, however, explains that the standard to determine admissibility of evidence
submitted to prove notice, rather than negligence, “‘is more relaxed.’” (ECF No. 85 at 4 (quoting
Benedi v. McNeil-PPC, Inc., 66 F.3d 1378, 1386 (4th Cir.)).) Indeed, in the context of proving
notice, “incidents need only be sufficiently similar to make the defendants aware of the dangerous
situation.” Benedi, 66 F.3d at 1386.
The court is inclined to adopt Plaintiff’s characterization as to what characteristics other
incidents must share with the instant action to be relevant as to Defendants’ notice. Mainly, to the
extent other incidents involve (1) Defendants, (2) a WaveRunner manufactured by Defendants, (3)
“a passenger [that] experienced a rear ejection,” into a “jet thrust [that] was propelling the personal
water craft,” and (4) an expulsion that caused “orifice injury of the anal or vaginal canal,” they
may be considered relevant evidence in the instant action to prove notice. (ECF No. 85 at 4.) As
such, the Exhibits Plaintiff submitted (ECF Nos. 85-1–85-5) are relevant to the instant action under
Fed. R. Evid. 401.
The next issue this court must address is whether the probative value of other incident
evidence is substantially outweighed by unfair prejudice to Defendants. See Fed. R. Evid. 403.
The other incidents Plaintiff submits are probative on the issue of notice. The court finds that the
prejudice Defendants identify in admitting evidence of other incidents does not outweigh its
probative value because (1) Plaintiff is submitting the other incidents as evidence of notice not
negligence, (2) Defendants maintain the ability to rebut the significance of the identified other

3

incidents at trial, and (3) to the extent necessary, the court maintains its ability to issue a limiting
instruction to the jury to consider the evidence of other incidents solely as evidence of Defendants’
notice. See, e.g., Smith v. Wyeth-Ayerst Lab. Co., 278 F. Supp. 2d 684, 703–04 (W.D.N.C. 2003)
(denying defendant’s motion to exclude related incidents in light of their probative value and in
light of the existence of alternative means to curtail prejudice to the defendant).
Finally, in the context of utilizing other incidents as evidence of notice, the truth of the
matter asserted in each complaint is irrelevant; therefore hearsay does not apply. See, e.g.,
Hershberger v. Ethicon Endo-Surgery, Inc., No. 2:10-cv-00837, 2012 WL 1113955, at *4 (S.D.W.
Va. Mar. 30, 2012) (discussing how “knowledge and notice of other complaints is likely a nonhearsay purpose” because “the focus would be on [defendant’s] receipt of the allegations and its
subsequent actions”).
II.

CONCLUSION

Based on the foregoing, the court GRANTS IN PART and DENIES IN PART
Defendants’ Motion in Limine (ECF No. 62). Specifically, evidence of or reference to postdistribution/manufacture evidence must be excluded. However, to the extent Defendants seeks to
exclude pre-distribution/manufacture evidence of other incidents which exhibit the characteristics
identified as sufficiently similar by the court herein and which is being used to prove Defendants’
notice, that request is denied.

IT IS SO ORDERED.

United States District Judge
July 19, 2016
Columbia, South Carolina
4