Hendriks v. Ford Motor Company

Filing 134

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART #98 Opposed MOTION Admit Evidence of Other Accidents from Same or Similar Cause filed by Teresa Hendriks. Signed by Magistrate Judge Amos L. Mazzant on 9/27/2012. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

TERESA HENDRICKS, INVIDUALLY
and as NEXT FRIEND TO MH, SH and
SH
v.
FORD MOTOR COMPANY

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Case No. 4:12cv71
(Judge Mazzant)

OPINION AND ORDER ON PLAINTIFF’S MOTION TO ADMIT
EVIDENCE OF OTHER ACCIDENTS FROM SAME OR SIMILAR CAUSE

Pending before the Court is Plaintiff Teresa Hendricks Motion to Admit Evidence of
Other Accidents from Same or Similar Cause (Dkt. #98). Having considered the relevant
pleadings and exhibits, the Court finds the motion to be denied in part and granted in part.
BACKGROUND
This is a products liability action with a trial setting of October 22, 2012. Briefly stated,
the facts are as follows. On March 7, 2011, a scissor OEM jack sold and marketed by Defendant
with its 2004 Freestar failed and collapsed. The decedent’s van fell, and he was crushed,
resulting in his death. Defendant moved for summary judgment on the claims asserted by
Plaintiff.

This Court denied in part and granted in part Defendant’s motion for summary

judgment, leaving Plaintiff’s claims for manufacturing defect, misrepresentation based on
Restatement (Second) of Torts, section 402(B), breach of implied warranty of merchantability
and various alleged elements of survival damages pending. (Dkt. ##86, 130). It is with these
claims in mind this Court evaluates the admissibility of Plaintiff’s “evidence of other accidents
from same or similar cause.”
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ANALYSIS
Plaintiff seeks to admit several categories of evidence of other incidents from same or
similar causes.1 Plaintiff argues that the evidence should be admitted because it is relevant to
proving notice and defective design, can be used for impeachment purposes, and is relevant to
the issue of exemplary damages. Plaintiff also argues that Defendant is now estopped from
arguing the evidentiary incidents are not the same as those in this case since it did not do so
when responding to the NHTSA’s request for information.
Defendant, of course, disagrees with Plaintiff’s contentions and argues that the evidence
should be excluded. Defendant objects on the grounds that the OASIS and MORS III documents
contain hearsay. Defendant further argues that the incidents are not relevant because they are not
sufficiently similar to the alleged accident in the instant case. Finally, Defendant contends that
even if the incidents were otherwise admissible, any probative value is substantially outweighed
by the dangers of unfair prejudice, confusion of the issues and waste of time, and the evidence is
therefore inadmissible under Federal Rule of Evidence 403.
A.

Defendant’s hearsay objections.
Defendant argues that that the 309 OASIS consumer complaints and the 56 MORS III

consumer complaints constitute hearsay to which no hearsay exception applies, and the
complaints are therefore inadmissible. Plaintiff disagrees.
1

Plaintiff states she seeks to admit evidence from four different sources but it is unclear what the four sources are.
Defendant categorizes the evidence Plaintiff seeks to admit into three categories. This Court will address the
evidence falling into the following categories: (1) the 309 incident reports contained in Defendant’s Online
Automotive Service Information System (“OASIS”); (2) the 56 incident reports contained in Defendant’s Master
Owner Relations Systems III (“MORS III”); and (3) testimony from six witnesses claiming to have experienced
similar incidents with the jack at issue in the instant case. The OASIS and MORS III records were compiled after
the National Highway Transportation Safety Administration (“NHTSA”) requested the information from Ford for
purposes of a preliminary investigation. To the extent Plaintiff seeks to admit the NHTSA communications and the
Preliminary Investigation itself, including letters between Defendant and NHSTA, that request is denied. See Smith
v. Isuzu Motors Ltd., 137 F.3d 859, 862 (5th Cir. 1998) (holding that preliminary investigation by the NHTSA was
not factual findings and constituted inadmissible hearsay). See also Johnson v. Ford Motor Co., 988 F.2d 573, 580
(5th Cir. 1993) (finding that the “official nature” of a NHTSA preliminary investigation could mislead a jury into
believing something was wrong with the cars).

2

Customer complaints in a company’s files are out-of-court statements. If they are offered
to prove the truth of the matter asserted – that the incidents complained of in the report occurred
as reported – they are hearsay and are inadmissible. Nissan Motor Co. v. Armstrong, 145 S.W.3d
131, 139-40 (Tex. 2004). While the record of the complaints, if made in the regular course of
business, may fall under the business records exception, the consumer complaints themselves are
hearsay within hearsay and must fall under their own exception. Id. at 140; Wilson v. Zapata
Off-Shore Co., 939 F.2d 260, 271 (5th Cir. 1991) (finding that when the business record contains
information from an outsider, the business records exception does not by itself permit the
admission of the business record; rather, the outsider’s statement must fall within another
hearsay exception). If the documents were being used to prove something other than the truth of
the matter asserted, they might then be admissible. Nissan, 145 S.W.3d at 140; Uniroyal
Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 340-41 (Tex. 1998). A party cannot circumvent
the hearsay rules, however, by arguing that the hearsay is offered not to show the truth of the
matters asserted but rather to show the opposing party’s knowledge of the truth of the matters
asserted. Nissan, 145 S.W.3d at 141-42.
The OASIS reports contain text identified as “CUST_TXT” followed by the customer
complaint and “TECH_TXT1” followed by the technician’s response or resolution of the
complaint. The text in the MORS III reports begin with “CUSTOMER SAID” which is followed
by the customer complaint. The customer complaints and comments contained in the reports are
hearsay and Plaintiff has yet to provide an applicable hearsay exception. Plaintiff contends that
the comments are not hearsay because they are not being offered for the truth of the matter
asserted but rather to prove Defendant had notice of the matters asserted therein. Plaintiff cannot
avoid hearsay issues by arguing that the evidence is being offered to show only Defendant’s

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knowledge of the truth of the matters asserted in the reports. See Nissan, 145 S.W.3d at 141-42.
Indeed, even if the documents are being offered to prove notice, they must still meet the
necessary evidentiary requirements to be admissible. See Williams v. Remington Arms Co., No.
3:05-CV-1383-D, 2008 WL 222496, at *8 (N.D. Tex. Jan. 28, 2008) (finding that before
customer complaint letters could be admitted to prove notice of design defects, the court must
find that the evidence was in admissible form, i.e., not hearsay, or it fell within a hearsay
exception). The OASIS and MORS III reports constitute hearsay and are inadmissible.2
To the extent Plaintiff argues the reports are not hearsay because they contain admissions
by a party opponent, this Court disagrees. The technicians and call center representatives were
merely repeating what was told to them; there is no indication that Defendant, or even the report
authors, were adopting the version of events contained in the reports. Therefore, they do not
constitute party admissions. See Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 281 (5th Cir.
1991) (finding that statements contained in a report made by defendant’s agent were not party
admissions when the statements were documenting plaintiff’s account of the events with no
indications that the defendants adopted the version of the facts as recorded).3
B.

Witness testimony regarding other similar incidents.
1.

Defendant is Not Estopped from Making Arguments that the Incidents are Not
Substantially Similar.

As an initial matter, Plaintiff claims that Defendant is estopped from objecting to the
other similar incident evidence on the grounds that it is not sufficiently similar to the incident in

2

Plaintiff may argue that the reports still contain comments of Defendant’s technicians or call center representatives
who were acting in the regular course of business and therefore are not hearsay. While that may be true, these
comments, standing alone, are not relevant to the issues in the case at hand. Additionally, many of these comments
contain information from the customer or are based on customer complaints and are therefore still hearsay.
3
Because this Court concludes that these documents are inadmissible, Plaintiff’s remaining arguments with respect
to them are moot and will not be considered. That said, Plaintiff presented over 350 incidents to be admitted. The
Court recognizes that such a large volume of incidents would likely also present issues with respect to admission
under Federal Rule of Evidence 403.

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this case.

This Court disagrees.

A preliminary investigation does not constitute a legal

proceeding, or a quasi-legal proceeding, and Plaintiff has not provided case law to prove
otherwise. The one case upon which Plaintiff relies involves live proceedings in front of another
individual or administration. See Harris v. Marathon Oil Co., 948 F. Supp. 27, 29 (W.D. Tex.
1996). The Court is further persuaded by Defendant’s argument that it took no final position as
is required under estoppel law and therefore is not estopped from making arguments that the
incidents are not substantially similar.
2. Defendant Objects that the Evidence is Not Reasonably or Substantially Similar.
Plaintiff argues that other similar incidents evidence is relevant to showing notice and
defect.

Defendant argues that the incidents are not sufficiently similar and are therefore

irrelevant. When evidence of other similar incidents is offered solely to show notice, the party
submitting the evidence “must establish reasonable similarity.” Johnson v. Ford Motor Co., 988
F.2d 573, 579 (5th Cir. 1993). When the same evidence is offered as proof of defect, the
proponent must establish the accidents occurred “under substantially similar circumstances and
involving substantially similar components.” Jackson v. Firestone Tire & Rubber Co., 788 F.2d
1070, 1082-83 (5th Cir. 1986). Thus, to show notice the rule of admission is somewhat more
relaxed than when the same evidence is used to show defect. Id. at 1083. As such, the Court
must examine whether the evidence meets the standard to be used to prove notice and if it does,
then turn to whether the evidence may also be used to prove defect.
Because this Court has concluded that the OASIS, MORS III and NHTSA documents are
otherwise inadmissible,4 the only remaining evidence to be evaluated is the witness testimony.

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Despite its earlier ruling of inadmissibility, the Court notes that this evidence would be inadmissible to show notice
and defect as well because there is not enough information for Plaintiff to prove the accidents were substantially, or
even reasonably, similar. A review of the OASIS and MORS III documents demonstrates that they contain only a

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Plaintiff wishes to offer testimony from six witnesses who were using the OEM jack in a manner
similar to the decedent and had the jack fail in a manner similar to the failure in the instant case.
Reviewing the applicable testimony and case law, this Court finds that the incidents were
reasonably similar and therefore are admissible as to notice. In each instance, the witness
testified that a similar vehicle was raised on the jack and the jack failed in a similar manner: the
scissor joint was askew (Hansen), the jack snapped in half and the screw holding it together was
gone (Struck), the jack “arms” failed and collapsed and the jack was twisted metal (Harper), the
jack bent (Hume), the jack completely came open at the joint (Milner), and the jack bent and
collapsed (Ulery). Such occurrences are reasonably similar enough to permit admission into
evidence. See Knauff v. Dorel Juvenile Group, No. SA:08-CV-336-XR, 2010 WL 114014, at
*2-3 (W.D. Tex. Jan. 6, 2010); see also Jackson, 788 F.2d at 1082-83 (finding that cases
involving similar products (multi-piece rims) failing in similar manners (exploding) were
sufficiently similar to be admissible). This evidence is relevant to whether Defendant had notice
of an issue with the jack. Any difference in the circumstances from that of the instant case goes
to the weight of the evidence rather than its admissibility. See Jackson, 788 F.2d at 1083.
The Court must now determine whether this evidence is sufficiently similar enough to
warrant admission as evidence of defect. Unlike the witnesses in Nissan, each witness examined
the jack and was able to describe what the actual defect appeared to be: a jack that bent or broke,
in the same general area, causing it to collapse. Had there been no evidence as to what caused
the jacks to collapse (as in Nissan when the only evidence was that the cars unintentionally
accelerated), then the testimony might not be relevant. But the Court finds enough evidence to

few sentences describing the incidents. Such information is insufficient to make a determination as to whether the
events were reasonably or substantially similar to the event in the instant case.

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conclude that the incidents were substantially similar. As such, the testimony is relevant as to
defect.5
In sum, the Court finds that the testimony from the six witnesses is sufficiently similar such
that it may be admitted to show notice and defect. Should Defendant request it, the jury will be
instructed accordingly.
3. Defendant Objects that the Evidence is Otherwise Inadmissible Under Rule 403.
“Even when a substantial similarity of circumstances is established, the district court has
broad discretion to exclude such evidence under Rule 403 of the Federal Rules of Evidence.”
Johnson, 988 F.2d at 579. Thus, otherwise 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. FED. R. EVID. 403. The Court finds that it would not be unduly
prejudicial to Defendant if Plaintiff was permitted to introduce six incidents as proof of only
notice and defect. Accordingly, Defendant’s Rule 403 objection is overruled.
C.

Any Argument the Evidence May be Used for Impeachment is Premature.
Plaintiff argues that the other incidents evidence is admissible for impeachment purposes.

This argument is premature as it is unknown what the testimony will be at trial. Should Plaintiff
determine that certain evidence is necessary for impeachment purposes, it may address the Court,
outside the presence of the jury, at that time.

5

Defendant argues that Plaintiff must present expert testimony as a predicate to introducing similar accidents
testimony. The cases relied on by Defendant, however, indicate that expert testimony may be needed to
conclusively prove a defect existed not that expert testimony is required to prove accidents were sufficiently similar
as to be admissible. See, e.g., Nissan, 145 S.W.3d at 137.

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D.

Similar Incidents May Be Relevant to Exemplary Damages Claims.
Plaintiff argues that the other similar incidents are relevant to a claim for exemplary

damages. Specifically, Plaintiff contends that the other incidents are proof that Defendant was
consciously indifferent toward accidents involving the OEM jack. Defendant responds that any
award of punitive damages based on out-of-state conduct raises due process and federalism
concerns.
Whether the defendant had actual knowledge of the alleged defect is relevant to whether
punitive damages should be awarded. See, e.g., Smith v. Aqua-Flo, Inc., 23 S.W.3d 473, 481-82
(Tex. App.—Houston [1st Dist.] 2000, pet. denied); Int’l Armament Corp. v. King, 674 S.W.2d
413, 417-18 (Tex. App.—Corpus Christi 1984), aff’d, 686 S.W.2d 595 (Tex. 1985). Moreover,
in Nissan the Texas Supreme Court remanded the exemplary damages issue for consideration,
stating that there was testimony which could be construed to indicate Nissan knew of the defect
claims prior to the accident at issue. Nissan, 145 S.W.3d at 148. Thus, Plaintiff is correct that
evidence of notice may be relevant to an award of exemplary damages.
Defendant is also correct that the Supreme Court has held that out-of-state conduct may
not be considered to punish a defendant for action that was lawful in the jurisdiction where it
occurred. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422-23 (2003); BMW of N.
Am., Inc. v. Gore, 517 U.S. 559, 572-73 (1996). In Campbell, however, fundamental to the
Supreme Court’s decision was that fact that the out-of-state conduct bore no relation to the
plaintiff’s harm. Campbell, 538 U.S. at 422 (“A defendant’s dissimilar acts, independent from
the acts upon which liability was premised, may not serve as the basis for punitive damages.”).
Conversely, this Court has concluded that the acts were reasonably similar enough to be relevant
and to be considered as proof of notice. And notice, or knowledge, as discussed above is an

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element of the exemplary damages claim. Accordingly, the similar out-of-state incidents may be
considered with respect to exemplary damages, to the extent notice is a component of any
damages issues.6
CONCLUSION
Plaintiff’s Motion to Admit Evidence of Other Accidents from Same or Similar Cause is
granted in part and denied in part. Documents and complaints from the 309 OASIS and 56
MORS III reports are inadmissible hearsay and the sheer volume of records would potentially
violate Federal Rule of Evidence 403.

The witness testimony covers incidents that were

reasonably and substantially similar to the alleged accident in the instant case. It is therefore
relevant to notice and defect. It will be admitted for those limited purposes.
The Court notes that admissibility of evidence cannot be considered in a vacuum. While
evidence may not initially appear to be admissible, events may occur at trial which make
evidence previously deemed inadmissible become admissible.
.

Accordingly, the Court

recognizes Plaintiff may wish to introduce this evidence at trial for purposes that have not yet
presented themselves. The Court instructs Plaintiff to make its request and present the evidence
outside the presence of the jury.
IT IS SO ORDERED.
SIGNED this 27th day of September, 2012.

___________________________________
AMOS L. MAZZANT
UNITED STATES MAGISTRATE JUDGE

6

The Court is referring only to the testimony from the six witnesses regarding other similar incidents. As
previously stated, the OASIS, MORS III and NHTSA documents are all inadmissible.

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