Opinion
Civil Action No. 99-3716, SECTION "N"
January 26, 2001
ORDER AND REASONS
Before the Court are numerous motions in limine filed by plaintiff James T. Vienne and defendants American Honda Motor Co., Inc, Honda Motor Co., Ltd., and Honda R D Co., Ltd. For the following reasons:
(1) Plaintiff's Motion in Limine to Exclude or Limit Testimony of Kevin C. Breen is DENIED.
(2) Plaintiffs Motion to Strike Defendant's Exhibits 5, 18, 20, 21 and 22 is GRANTED with respect to Exhibits 5 and 18, and DENIED with respect to Exhibits 20, 21 and 22.
(3) Plaintiffs Motion to Strike Defendants' Exhibits 19, 24, 25, 29, 32, 71, 99, 100, 148, 149, 150, 151, 153, and 154 is DENIED.
(4) Plaintiff's Motion in Limine to Strike and Exclude Defendants' Use of Deposition and Trial Testimony of Plaintiff's Expert Witnesses, Robert Wright, Ed Karnes, Randy Nelson and Stuart Statler; and, Certain Documents and Things which Defendants Have Presented Ex Parte, In Camera to the Court is DENIED.
(5) Plaintiff's Motion in Limine to Strike Defendants' Exhibits Number 154, 155, 156, 157, 158, 159, 160, 161, 162 is GRANTED.
(6) Plaintiff's Motion to Quash Subpoena of Honda Defendants is DEINIED.
(7) Defendants' Motion in Limine to Exclude References to Television, Newspaper and Magazine Stories Regarding All-Terrain Vehicles is GRANTED IN PART and DENIED IN PART.
(8) Defendants' Motion in Limine to Exclude All of Defendants' Advertising and Reference Thereto and to Preclude any Testimony Regarding the Alleged adequacies of the Honda Owners' Manual is GRANTED.
BACKGROUND
This case arises out of plaintiff James T. Vienne's ("Vienne") accident on December 23, 1998 on a 1984 Honda ATC 200S three-wheeler ("three-wheeler"). Vienne claims that he sustained severe head injuries when the three-wheeler "suddenly and without warning went into a pitch roll" as he was applying the brakes. Complaint at ¶ 12. Alleging that the vehicle is unreasonably dangerous, Vienne has filed suit against defendants American Honda Motor Company, Inc., Honda Motor Co., Ltd., and Honda RD Co., Ltd. (collectively, "Honda") under the Louisiana Products Liability Act, La.Rev.Stat. § 9:2800.51 ("LPLA").LAW AND ANALYSIS
I. Motion in Limine to Exclude or Limit Testimony of Kevin C. Breen
Vienne moves to exclude the testimony of Kevin C. Breen ("Breen") of Breen Associates, Inc. as to the cause or causes of the accident, or in the alternative, limit his testimony to matters based on his first hand inspection and knowledge. Citing Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), Vienne asserts that Breen's conclusions and opinions are based on conjecture, speculation, and mischaracterization of witness testimony.
Breen's ultimate opinion will be that Vienne's accident was due to poor vehicle maintenance and inappropriate operation. Vienne asserts that Breen' s testimony is unreliable because Breen did not actually inspect Vienne' s vehicle. However, Roger Spiegler ("Spiegler"), a senior researcher at Breen Associates, inspected the vehicle as part of Breen' s investigation. Because Breen reviewed Spiegler' s photographs and findings in formulating his opinion, the Court will not exclude Breen from testifying at trial.
In addition, Vienne's "Daubert" motion is untimely. On June 23, 2000, the Court ordered:
All pre-trial motions, including motions in limine regarding the admissibility of expert testimony, shall be filed and served in sufficient time to permit hearing thereon no later than 30 days prior to the trial date. Any motions filed in violation of this order shall be deemed waived unless good cause is shown.
Rec. Doc. No. 37 at 1. The instant motion was filed less than a week before trial. Accordingly, Vienne's motion to exclude the testimony of Kevin C. Breen is DENIED.
II. Plaintiffs Objections to Defendant's Exhibits 5, 18, 20, 21 and 22.
Vienne objects to Honda's exhibits 5, 18, 20, 21 and 22 on the grounds that they were not identified at the time of the preliminary exhibit conference. In addition, he claims that these exhibits were not produced, despite his formal request. Vienne claims that he was required to sign a "Protective Order" and pay for the documents listed as Exhibit 5. Finally, since the documents were not presented at the exhibit conference, the plaintiff asks to reserve any other objections, such as authenticity, hearsay, or relevance.
Honda first asserts that it does not intend to use Exhibit 18 at trial. Accordingly, Vienne's motion to strike Exhibit 18 is GRANTED.
Honda further asserts that Exhibits 20, 21 and 22 were in fact produced to Vienne at the exhibit exchange conference on January 4, 2001. Honda has submitted affidavits supporting this position. Accordingly, Vienne's motion to strike Exhibits 20, 21 and 22 is DENIED.
Finally, Honda assert that Exhibit 5 has always been available to Vienne as long as he executed a protective order that would prevent him from sharing the documents with anyone not connected to the instant litigation. On June 23, 2000, this Court ordered that,
where appropriate to preserve trade secrets or privileges, the listing of exhibits may be made subject to a protective order or in such other fashion as the Court may direct. If there are such exhibits, the pre-trial order will state: The parties will discuss exhibits alleged to be privileged (or to contain trade secrets, etc.) at the Pre-Trial Conference.
Rec. Doc. No. 37 at 6. The parties' pre-trial order contained no such language, and the necessity of a protective order was not discussed at the Pre-Trial conference. Accordingly, Vienne' s motion to strike Exhibit 5 is GRANTED.
III. Plaintiffs Objections to Defendant's Exhibits 19, 24, 25, 29, 32, 71, 99, 100, 148, 149, 150, 151, 153, and 154
The Plaintiff objects to Defendant's exhibits 19, 24, 25, 29, 32, 71, 99, 100, 148, 149, 150, 151, 153 and 154 on the basis that these exhibits were untimely provided and have been designed to enlarge the content of the report of the expert witness Kevin Breen, James McElhaney and others.
The parties held an exhibit exchange conference on January 4, 2001. Honda asserts that all these exhibits were provided at or before this conference, and has submitted affidavits by defense counsel staff stating that all the exhibits at issue in the instant motion were provided to plaintiff's counsel. Plaintiff's counsel has not refuted this evidence. Accordingly, Vienne' s motion to exclude Exhibits 19, 24, 25, 29, 32, 71, 99, 100, 148, 149, 150, 151, 153, and 154 is DENIED.
IV. Plaintiff's Motion in Limine to Plaintiff's Motion in Limine to Strike and Exclude Defendants' Use of Deposition and Trial Testimony of Plaintiff's Expert WitnessesHonda intends to use prior trial testimony of several of Vienne' s expert witnesses as impeachment evidence. The Court ordered Honda to make this testimony available for Vienne's inspection prior to trial. In accordance with this order, Honda's counsel made the transcripts it intends to use at trial available to Vienne's counsel at the offices of Honda's counsel on Wednesday, January 24. Vienne's counsel did not appear at this appointment. Vienne now asserts that he cannot possibly adequately review the numerous volumes of testimony Honda may use at trial. However, Honda's counsel narrowed the transcripts to an amount reasonably accessible to plaintiff's counsel. Since this impeachment material was available to plaintiff's counsel, Vienne's motion is DENIED.
V. Plaintiff's Motion in Limine to Strike Defendants' Exhibits Number 154, 155, 156, 157, 158, 159, 160, 161, 162.
Vienne objects to Honda's Exhibits 154, 155, 156, 157, 158, 159, 160, 161, 162 on the ground that these expert reports would be cumulative to the experts' live testimony.
Honda responds that the Court should decide to admit all the expert reports of both parties or to exclude them all.
The Court holds that experts' reports are cumulative to their testimony at trial. Accordingly, Plaintiff's Motion to Strike Defendants' Exhibits Number 154, 155, 156, 157, 158, 159, 160, 161, 162 is GRANTED.
VI. Plaintiff's Motion to Quash Subpoena of Honda Defendants
Plaintiff moves the Court to quash Honda's subpoena of Vienne's three-wheeler for use as an exhibit at trial on the grounds that the danger for prejudice far outweighs any probative value which the vehicle might offer to the jury. Vienne claims that the three-wheeler has deteriorated significantly over the past three years because it has been stored under a tarp in Vienne's backyard.
However, other than claiming that the wheels are flat, that the vehicle has not been cleaned since the time of the accident, and that it contains the same oil and gas it had at the time of the accident, Vienne does not indicate any substantial changes in condition since the time of the accident. In addition, the condition of Vienne's vehicle at the time of the accident is the key element of Honda's defense.
Excluding relevant evidence as prejudicial under Fed.R.Evid. 403 is an extraordinary measure that should be used sparingly. U.S. v. Morris, 79 F.3d 409 (5th Cir. 1996). Because the condition of Vienne' s vehicle is an essential element of Honda's defense and because Vienne has not proven that the three-wheeler has been significantly altered since the date of the accident, Vienne's motion to quash the subpoena of his three-wheeler is DENIED.
VII. Motion in Limine to Exclude References to Television, Newspaper and Magazine Stories Regarding All-Terrain Vehicles
Honda moves the Court to exclude any evidence of media coverage related to all-terrain vehicles such as the 1984 Honda ATC 200S on the ground that such coverage is (1) inadmissible hearsay, (2) irrelevant to the instant lawsuit, and (3) unduly prejudicial to the defendants.
Vienne asserts that this evidence falls within an exception to the hearsay rule because it is of "a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Fed.R.Evid. 703. Vienne seeks to introduce articles from Car and Driver, Dirt Bike, Cycle, and a Consumer Product Safety Commission ("CPSC") report. The Court finds that only the CPSC article is of a type reasonably relied on by experts. Accordingly, Honda's motion to exclude the Car and Driver, Dirt Bike, and Cycle articles is GRANTED.
VIII. Defendants' Motion in Limine to Exclude All of Defendants' Advertising and Reference Thereto and to Preclude any Testimony Regarding the Alleged Inadequacies of the Honda Owners' ManualHonda moves the Court to preclude all references to Honda's advertising practices or its Owner's Manual on the grounds that they are irrelevant to the factual issues in the instant case. Honda asserts that there is no evidence that Vienne saw or relied upon any advertisement or promotional material or read or relied on the owners' manual.
Vienne claims that the Court determined this issue when it denied Honda's Motion for Summary Judgment on Warnings Claims. In his opposition to Honda's summary judgment motion, Vienne included statements by his treating physicians (1) that Vienne did not comprehend the questions about reading the warning labels on the vehicle because of the nature of his brain injury and (2) that Vienne may have repeatedly answered that he did not read any warnings on the three wheeler due to his injury-induced "tendency towards perseveration." Blotner Aff. at ¶ 5. The Court held that the "physicians' testimony seems to raise a genuine issue of material fact as to whether Vienne actually read the warning labels." Rec. Doc. No. 222 at 4.
When the Court denied Honda's Motion for Summary Judgment regarding warnings claims, it found that Vienne's allegations that he remembered seeing warnings labels on the three-wheeler itself seemed to raise an issue of material fact precluding summary judgment on the basis that Vienne had not seen any warnings on the vehicle. However, neither Vienne nor his doctors have contradicted Vienne's deposition testimony that he did not read the owner's manual or see any advertisements for the 1984 ATC. Accordingly, Honda's Motion in Limine to Exclude All of Defendants' Advertising and Reference Thereto and to Preclude any Testimony Regarding the Alleged Inadequacies of the Honda Owners' Manual is GRANTED.
CONCLUSION
IT IS ORDERED THAT:
(1) Plaintiff's Motion in Limine to Exclude or Limit Testimony of Kevin C. Breen is DENIED.
(2) Plaintiffs Motion to Strike Defendant's Exhibits 5, 18, 20, 21 and 22 is GRANTED with respect to Exhibits 5 and 18, and DENIED with respect to Exhibits 20, 21 and 22.
(3) Plaintiff's Motion to Strike Defendants' Exhibits 19, 24, 25, 29, 32, 71, 99, 100, 148, 149, 150, 151, 153, and 154 is DENIED.
(4) Plaintiff's Motion in Limine to Strike and Exclude Defendants' Use of Deposition and Trial Testimony of Plaintiff's Expert Witnesses, Robert Wright, Ed Karnes, Randy Nelson and Stuart Statler; and, Certain Documents and Things which Defendants Have Presented Ex Parte, In Camera to the Court is DENIED.
(5) Plaintiff's Motion in Limine to Strike Defendants' Exhibits Number 154, 155, 156, 157, 158, 159, 160, 161, 162 is GRANTED.
(6) Plaintiff's Motion to Quash Subpoena of Honda Defendants is DENIED.
(7) Defendants' Motion in Limine to Exclude References to Television, Newspaper and Magazine Stories Regarding All-Terrain Vehicles is GRANTED IN PART and DENIED IN PART.
(8) Defendants' Motion in Limine to Exclude All of Defendants' Advertising and Reference Thereto and to Preclude any Testimony Regarding the Alleged Inadequacies of the Honda Owners' Manual is GRANTED.