United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE
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  (the “Motion”).
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”). ( 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:
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. ( 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 
(“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.”
( at 3).
“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)).
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).
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. ( 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. ( 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).
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]). 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).
also argue that each alleged cracking incident in the Z887
Location, or in a location that cannot be ascertained by
Plaintiff, should be excluded. ( 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 ...