Opinion
No. CIV 99-382 LH/DJS ACE
January 22, 2002
ORDER
THESE MATTERS come before the Court on the following motions: Defendant Reese Products, Inc.'s Motion to Preclude Plaintiffs from Calling at Trial Witnesses Involved in Unrelated Incidents of Trailer Separation (Docket No. 127), filed October 17, 2001; Defendant Reeses Motion to Exclude Evidence Concerning Unrelated Incidents (Docket No. 197), filed November 19, 2001;
Defendant Fleetwoods Motion to Exclude Evidence Not Substantially Similar to this Claim (Docket No. 230), filed November 20, 2001; and Defendant Reeses Motion to Exclude Evidence Concerning a Subsequent Accident (Temple) (Docket No. 210), filed November 19, 2001. The Court, having considered the pleadings submitted by the parties and otherwise being fully advised, grants Defendant Reese Products, Inc.'s Motion to Preclude Plaintiffs from Calling at Trial Witnesses Involved in Unrelated Incidents of Trailer Separation, Defendant Fleetwoods Motion to Exclude Evidence not Substantially Similar to this Claim, and Defendant Reeses Motion to Exclude Evidence Concerning a Subsequent Accident (Temple) in full, and grants in part and denies in part Defendant Reeses Motion to Exclude Evidence Concerning Unrelated Incidents.
A. Witnesses From Other Incidents Involving Reese Hitch
In its Motion to Preclude Plaintiffs From Calling At Trial Witnesses Involved in Unrelated Incidents of Trailer Separation, Reese requests that witnesses from thirteen incidents involving the Reese hitch (hereinafter warranty witnesses) be prevented from testifying at trial because those incidents were not substantially similar to the Garcia accident, or that their testimony should be excluded under Federal Rule of Evidence 403 as unfairly prejudicial, confusing to the jury, and a waste of time.
The names of the parties who submitted incident claims to Reese, are: Jim Hall, Robert Knott, William Tegge, Melvin and Gayle Kuhlman, Billy Claymon, Terry and Bonnie Heaton, Charles Sovern, William Johnson, Donald Leslie, Mark Walber, David Dumont, Marvin A. Bass, and Gary Gelowitz. The Court initially takes note that, of the thirteen witnesses Reese requests to exclude, Plaintiffs have listed only eleven in the pretrial order and their witness list. The two witnesses not listed by Plaintiffs, Donald Leslie and David Dumont, are precluded from testifying because they were never designated.
Plaintiffs assert that the warranty witnesses are needed to testify about alleged defects and notice to Reese of the defects, the need for warning decals, misunderstandings about proper hitching, and not receiving instructions. Plaintiffs maintain that the incidents about which these witnesses would testify are sufficiently similar to the Garcia accident for notice purposes, the testimony would not take up an excessive amount of time, and would not confuse the issues in the case.
Federal Rule of Civil Procedure 403 states, 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 delay, waste of time, or needless presentation of evidence. FED. R. CIV. P. 403. In this case, the Court is most concerned about confusion of the issues for the jury, cumulative evidence, and wasting time. Relevant or not, the presentation of each of these witnesses would become a trial within a trial, as Defendants would be entitled to cross-examine each of these witnesses to attempt to discredit them and to show that the incident was not similar to the Garcia accident. Allowing witnesses to testify about these other incidents will confuse the jury, and this detriment substantially outweighs any probative value live testimony about these other incidents may have. While a few of Reeses records of these incidents will be admissible to show notice (see discussion below), none of the warranty witnesses may testify. This motion is granted in its entirety.
B. Non-Witness Evidence of Other Incidents
In its Motion to Exclude Evidence Concerning Unrelated Incidents, Reese again argues that 85 warranty claims are not substantially similar and that evidence of the claims would be cumulative and confusing to the jury under Rule 403. Fleetwood, in its Motion to Exclude Evidence Not Substantially Similar To This Claim, maintains a similar stance regarding two incidents involving its trailers: the Ron Thallus incident (hereinafter the Thallus incident) and the incident of a trailer falling during a prototype fifth wheel hitch demonstration at Fleetwoods plant. (hereinafter the demonstration incident).
Evidence of similar accidents involving the same product is admissible to establish notice, the existence of a defect, or to refute testimony by a defense witness that a product was designed without safety hazards. See Ponder v. Warren Tool Corp. and Patch Rubber Co., 834 F.2d 1553, 1560 (10th Cir. 1987). In evaluating the other incidents for substantial similarity, the Court must focus on a plaintiffs theories of the case. See Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1246 (10th Cir. 2000). Applying Smith, the Court has evaluated numerous documents and summaries of incidents submitted by Plaintiffs and makes the following determinations.
1. Reese
Plaintiffs have a number of theories of liability against Reese. One of their negligence claims is that Reese breached its duty to ensure that its written instruction manual and a proper hitching demonstration reached the Garcias. One of their products liability claims is that Reese failed to warn the consumer of the dangers of using the drop-in method of hitching. Part of proving these claims involves showing that the acts of the dealer and/or the Garcias use of the hitch were foreseeable.
Thus, Plaintiffs want to show that Reese had notice that other consumers were experiencing these problems prior to the Garcia accident. A few of the incidents were similar enough to show that consumers were using the drop-in method, did not receive their written instructions, or received a potentially improper demonstration from the dealer, all resulting in accidental unhitchings. With respect to Reeses documentation of the warranty claims, the Court makes the following rulings about their admissibility.
1. Knott — The Letter to Robert Knott from Ron Teall of Reese, dated November 6, 1996, and Reeses Claim II Prop Damage form about the Robert Knott incident, dated August 4, 1997 (Ex. P) are admissible to show notice that customers were using the drop-in method to hitch a trailer.
All exhibit numbers are cited from Plaintiffs Exhibits submitted with their Response to Reeses Motion to Preclude Plaintiffs From Calling At Trial Witnesses Involved in Unrelated Incidents of Trailer Separation.
2. Walber — Letter to Mark Walber from Reese agent Chris Maffucci, dated September 15, 1995 (Ex. Q) is admissible to show notice that consumers were not receiving written instructions and that dealers could be demonstrating improper hitching procedures or failing to provide instructions. Letter from Mark Walber to Reese agent Chris Maffucci, dated August 4, 1995 (Ex. Q) is admissible to show notice that consumers were not receiving written instructions.
3. Dumont — Reese claim form filled out by Christine and David Dumont dated July 23, 1996 (Ex. T) is admissible to show notice that consumers were using the drop-in method to hitch a trailer. Fax Cover Sheet Letter from Ron Teall of Reese to David Dumont, dated September 17, 1996 (Ex. T) is admissible to show notice that consumers were not receiving instructions.
4. Bass — Reeses handwritten notes on the Marvin Bass incident (undated) (Ex. S) are admissible to show notice that consumers were not receiving instructions.
5. Gelowitz — Reeses handwritten notes on Gary Gelowitz incident (undated) (Ex. U) are admissible to show notice that consumers were not receiving instructions.
Each document will be admitted at trial upon a showing of relevance and proper foundation. The statements in these documents are admissible because they will not be admitted for the truth of the matter stated, but for the limited purpose of showing that Reese had notice of particular problems with their product. See FED. R. EVID. 801(c).
For that reason, each document must be redacted to allow the jury to read nothing but the material related to the notice issue for which the Court has deemed it admissible.
Defendant Reese touches on the issue of whether it can be held to have had prior knowledge about defects or shortcomings in the communication of proper instructions and warnings when such information came to it after the Garcia hitch left its factory.
The Court is cognizant of this issue but has not been sufficiently briefed by any party regarding its effect on the relevance of any of the prior incidents that fit within this time frame.
2. Fleetwood
Plaintiffs theories against Fleetwood are that it should not have placed the landing gear switch under the overhang and that it should have warned people not to be under the overhang while hitching. Based on these theories, Plaintiff seeks to offer evidence of the Thallus incident and the demonstration incident. Fleetwood argues that the two incidents are not substantially similar to the Garcia accident.
The Thallus incident involved a falling trailer that injured two people under the overhang, but it did not occur while hitching or unhitching the trailer. Plaintiffs seek to introduce the Thallus incident against Fleetwood to show that it had notice that people would operate the landing gear switch from under the overhang. However, Mr. Thallus was not under the overhang exclusively because the landing gear switch was located there. Mr. Thallus and his father-in-law were under the overhang to repair the landing gear legs, the internal mechanism for which is located under the overhang. The Thallus incident simply does not show that Fleetwood had notice that people were going under the overhang in order to operate the landing gear switch, or that people would do so for ordinary purposes (such as raising and lowering the king pin for hitching). Thus, the Thallus incident is not substantially similar and will be excluded from evidence. The demonstration incident, similarly, is not substantially similar to the Garcia accident. The only evidence presented to the Court concerning the demonstration incident are two pages from the deposition transcript of Chris Fosgett of Fleetwood.
Plaintiffs would, presumably, read this testimony into evidence at trial.
A hitch salesman was demonstrating a new hitch (not a Reese hitch) at an unidentified Fleetwood site. The trailer fell out of the hitch and damaged the trailer and truck. There is no evidence that anyone was under the overhang or was hurt, and no reason was given for the mishap. Most importantly though, no consumers were involved in the demonstration incident. Therefore, the incident could not have given Fleetwood notice of any consumer behavior with respect to the switch or the overhang, and it is not substantially similar to the Garcia accident. The demonstration incident will be excluded.
In the second portion of its motion Fleetwood argues that, because it is not relevant to showing Fleetwoods mental state for the purposes of punitive damages, Plaintiffs should not be permitted to introduce evidence that Fleetwood did not modify its product in response to Plaintiffs accident. Both parties argued the admissibility of this evidence solely in the context of punitive damages. Since the Court granted Fleetwoods motion for summary judgment with respect to punitive damages (Docket No. 410, filed January 16, 2002), evidence for that purpose is no longer relevant and will not be admitted.
C. The Temple Incident
In its Motion to Exclude Evidence Concerning a Subsequent Accident (Temple), Reese argues that evidence of the Temple accident, which occurred subsequent to the Garcia accident, should be excluded from trial since the accident is not substantially similar to the Garcia accident as gauged by Plaintiffs theories of liability, and it will confuse and distract the jury. The Court agrees.
Even if the Temple incident were substantially similar, which the Court believes it is not, this Court must exclude it under Rule 403. The Temple incident will confuse the jury because it necessarily would create a trial-within-a-trial, wherein Defendants attorneys would attempt to distinguish the Temple accident and discredit witnesses regarding an incident that is not the subject of this trial. Any probative value the Temple evidence might have is substantially outweighed by the confusion of the issues and unfair prejudice that would result.
Additionally, the photographs of Russell Temple are unfairly prejudicial and may inappropriately appeal to the jurors emotions if they were allowed to see them.
Evidence from the Temple incident is therefore excluded.
Plaintiffs identify Sheriff James Newman, Mrs. Russell E. Temple, and Ralph Chapman as witnesses to testify about the Russell Temple accident. Since the incident itself is excluded from the trial, these three witnesses will not be permitted to testify. IT IS, THEREFORE, ORDERED that Defendant Reeses Motion to Preclude Plaintiffs From Calling At Trial Witnesses Involved in Unrelated Incidents of Trailer Separation (Docket No. 127) and Motion to Exclude Evidence Concerning A Subsequent Accident (Temple) (Docket No. 210), as well as Defendant Fleetwoods Motion to Exclude Evidence Not Substantially Similar To This Claim (Docket No. 230), filed November 20, 2001, are granted in their entireties. Defendant Reeses Motion to Exclude Evidence Concerning Unrelated Incidents (Docket No. 197), filed November 19, 2001, is granted in part and denied in part, as delineated above.
Plaintiffs and Defendant Reese are further instructed to confer with one another and submit to the Court before the Pretrial Conference stipulated redactions of the allowed documents that conform with the purposes for which they are deemed admissible above.