Gaddy v. American Interstate Insurance Co.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendants Terex Corporation, Terex Utilities, Inc., and Terex South Dakota, Inc.'s (“Terex SD”) (collectively, “Defendants” or “Terex”) Motion In Limine No. 1 To Exclude or Limit Evidence of Cracking In Other Terex XTs [410] (the “Motion”).

         I. BACKGROUND

         This is a product liability action arising from the April 9, 2014, failure of a 2002 Terex Hi-Ranger XT 60/70 boom, Serial No. 2021020554 (“Subject Boom”). ([410] at 2). The accident occurred when the lower section of the Subject Boom cracked, which caused the bucket, with Plaintiff inside, to fall to the ground. (Id.). The Subject Boom was part of Terex SD's XT aerial device line, which consisted of XT 52, XT 55, XT 58, and XT 60 aerial lifts. (Id.). The number following the XT designation represents the maximum height that the bucket platform can reach when fully extended. (Id.). The Subject Truck, an XT 60, was originally designed in 1999 (the “Original Design”). (Id.). Later, certain fix kits and modifications were made to allegedly improve the quality and safety of the XT line. (Id.). Defendants assert that, in March 2004, the design of the XT series was revised in multiple locations to enhance the design and limit the areas of stress concentration on the boom. (Id.). Terex S.D. also implemented a field kit to repair reported cracking in the upper boom of pre-2004 machines (“Z887 Location”). (Id.). In November 2013, Terex S.D. developed a field kit to repair reported cracking in the lower boom of pre-2004 machines-the same area of the Subject Boom that fractured in Plaintiff's case (the “Z1290 Location”). A diagram illustrating the Z1290 Location and Z887 Location is below:

(Image Omitted)

         Defendants assert in the Motion that they anticipate Plaintiff will at trial attempt to introduce a list of alleged cracking incidents in XT machines, including alleged cracking incidents at the Z887 and Z1290 Locations. ([410] at 3). Defendants argue that Plaintiff should be precluded from introducing evidence or arguments regarding those cracking incidents where (1) there is an unknown serial number; (2) the crack occurred at the Z887 Location or where it is unknown whether the cracking occurred at the Z887 or Z1290 Locations; and (3) the crack occurred after the date of Plaintiff's accident. (Id. at 7). On August 7, 2017, Plaintiffs filed their Response to Terex Defendants' Motion In Limine to Exclude or Limit Evidence of Cracking in Other Terex XTs [432] (“Response”). Plaintiff argues that the Motion should be denied in its entirety because the evidence of cracking shows that Defendants “under-designed its XT booms and [were] well aware of those design defects.” ([432] at 3).

         II. DISCUSSION

         A. Legal Standard

         The “substantial similarity doctrine” is implicated where a party seeks to admit evidence of prior accidents or injuries caused by the same event or condition to prove the existence of a dangerous condition, that the defendant had knowledge of the dangerous condition, or that the dangerous condition was the cause of the present injury. Custer v. Terex Corp., No. 4:02-cv-38-HLM, 2005 WL 5974434, at *13 (N.D.Ga. May 17, 2005) (citing Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1396 (11th Cir. 1997). “‘This doctrine applies to protect parties against the admission of unfairly prejudicial evidence, evidence which, because it is not substantially similar to the accident or incident at issue, is apt to confuse or mislead the jury.'” Id. Where such evidence is admitted, it may be offered to show a “‘defendant's notice of a particular defect or danger, the magnitude of the defect or danger involved, the defendant's ability to correct a known defect, the lack of safety for intended uses, the strength of a product, the standard of care, and causation.'” Reid v. BMW of North America, 464 F.Supp.2d 1267, 1271 (N.D.Ga. 2006) (quoting Hessen v. Jaguar Cars, Inc., 915 F.2d 641, 650 (11th Cir. 1990)).

         The doctrine, however, is subject to a number of limitations. That is, “[b]ecause of the potential impact that evidence of similar accidents can have on juries, [the Eleventh Circuit] has placed two additional limitations on the use of such evidence: (1) the prior failure(s) must have occurred under conditions substantially similar to those existing during the failure in question, and (2) the prior failure(s) must have occurred at a time that is not too remote from the time of the failure in question.” Weeks v. Remington Arms Co., 733 F.2d 1485, 1491 (11th Cir. 1984); see also Neagle v. Illinois Tool Works, Inc., No. 1:08-cv-2080-WSD, 2011 WL 13173913, at *4 (N.D.Ga. Feb. 11, 2011) (holding prior incidents involving dissimilar injuries and different gun models did not meet substantial similarity threshold); Reid, 464 F.Supp. at 1271-72 (finding substantially similar prior incidents involving failure at same location of same part of same model of automobile that caused plaintiff's injury). “Conclusory statements of alleged similarity are not enough.” Gibson v. Ford Motor Co., 510 F.Supp.2d 1116, 1120 (N.D.Ga. 2007).

         B. Analysis

         Defendants first argue that evidence of cracking in machines with unknown serial numbers should be excluded because Plaintiff cannot demonstrate whether these machines were an Original Design or a post-2004 design.^[1] ([410] at 7). Defendants contend that it is undisputed that Terex S.D. redesigned the XT line in March 2004 “such that XTs that were manufactured after March 2004 cannot be substantially similar” to the Subject Boom, which is an Original Design vehicle. (Id.). Defendants further argue that it is “impossible” to identify whether XTs with unknown serial numbers were of an Original Design or were manufactured following the redesign, Plaintiff cannot meet his burden of showing substantial similarity in cracking incidents for machines with no identifiable serial number. (Id.). Plaintiff contends, on the other hand, that he can demonstrate those machines with unknown serial numbers are in fact Original Design XTs based on evidence presented in the form of photographs, customer complaints and emails, service orders, and deposition testimony. ([432] at 23). Plaintiff concludes that “[b]ecause [he] has other trustworthy sources of evidence” showing that the cracking instances relate to Original Design booms, those instances of cracking are relevant and admissible. (Id. at 24).

         Having reviewed the record and Plaintiff's assurances that it will for each other boom crack it seeks to introduce demonstrate the conditions and circumstances surrounding the cracking, the Court will not now exclude similar cracking in Original Design booms simply because a machine lacks a serial number. The record evidence, including the photographs, emails, complaints, and service orders referenced in Plaintiff's Response, may be used to substantiate that these machines are pre-March 2004, Original Design machines. ([433.5-9]). For example, Plaintiff's Exhibit N is an email with a number of photographs attached. ([433.6]).^[2] The “Attachm ents” line states: “2003 Cracked Boom 001.jpg; 2003 Cracked Boom 002.jpg; 2003 Cracked Boom 003.jpg; 2003 Cracked Boom 004.jpg; 2003 Cracked Boom 005.jpg; 2003 Cracked Boom 006.jpg.” (Id. at 1).^[3]

         Defendants also argue that each alleged cracking incident in the Z887 Location, or in a location that cannot be ascertained by Plaintiff, should be excluded. ([410] at 8). Defendants argue that “the design of the Z887 Location is not at issue [in] this case and has nothing to do with why or how the Subject Boom Truck failed.” (Id.). Defendants further contend that not only is the Z887 Location a “separate place on the boom than what failed on April 9, 2014, ” but Plaintiff “has failed to gather sufficient evidence comparing the Z887 Location” to the area the Z1290 Location that failed and resulted in Plaintiff's injuries. (Id.). Defendants even submit an affidavit attesting to the fact ...