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Jackson v. E-Z-GO Division of Textron, Inc.

United States District Court, W.D. Kentucky, Louisville Division

July 25, 2018

LORA MADONNA JACKSON, et al., PLAINTIFFS
v.
E-Z-GO Division of TEXTRON, INC., et al., DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          THOMAS B. RUSSELL, SENIOR JUDGE UNITED STATES DISTRICT COURT

         Currently pending before the Court are several motions in limine filed by the parties in anticipation of the upcoming trial scheduled in this matter. Defendant E-Z-GO filed five of these, [DN 165; DN 167; DN 168; DN 169], and Plaintiffs filed several motions in one document, [DN 173.] All motions have been responded to. [DN 186; DN 189; DN 190; DN 191; DN 194.] Fully briefed, these matters are now ripe for adjudication. For the reasons explained in detail below, Defendant E-Z-GO's Motion in Limine to Exclude Spoliation is DENIED; its Motion in Limine to Exclude Computer Simulations is DENIED; its Motion in Limine to Exclude Patents is GRANTED; and its Motion in Limine to Exclude Coroner and Scene Photographs is DENIED. Plaintiffs' Motion in Limine, which includes several motions, is GRANTED IN PART AND DENIED IN PART.

         BACKGROUND

         This lawsuit arises out of a rollover accident involving an electric golf cart that led to the tragic death of one of the passengers, fifteen year-old Jordan Kori Jackson, on July 25, 2010 in Grayson County, Kentucky. [See DN 1-2 (Complaint).] The golf cart (the “Vehicle”) was a 1993 E-Z-GO PC-4X manufactured and sold by Defendant E-Z-GO (“Defendant” or “E-Z-GO”). Jordan Jackson was a passenger in the front right seat of the Vehicle. Three other teenage passengers were also present: Molly Kyle, who was driving, Andrew O'Neill, whose parents owned the Vehicle, and Samantha Compton. Both Andrew O'Neill and Samantha Compton were sitting in the back of the Vehicle at the time of the incident.

         Lora Madonna Jackson, Jordan's mother and the administratrix of her estate, and Carmine T. Jackson, administratrix of the estate of Charles T. Jackson Jr., Jordan's father, brought the instant lawsuit against Defendant E-Z-GO Division of Textron, Inc. Herein, Plaintiffs allege that the Vehicle's design was defective, that E-Z-GO failed to provide adequate warnings regarding its safe operation, and that E-Z-GO breached express and implied warranties. [See DN 1-2 at 4-7.] Plaintiffs also bring negligence and gross negligence claims against Keith and Dianna O'Neill, Andrew O'Neill's parents, alleging that the O'Neills wrongly allowed their then-underage son and others to operate the Vehicle on the day of the incident. [DN 1-2 at 7-8.] This matter is scheduled for a jury trial beginning on August 1, 2018.

         STANDARD

         Using the inherent authority to manage the course of trials before it, this Court may exclude irrelevant, inadmissible, or prejudicial evidence through in limine rulings. See Luce v. United States, 469 U.S. 38, 41 n.4 (1984) (citing Fed.R.Evid. 103(c)); Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013); Mahaney ex rel. Estate of Kyle v. Novartis Pharm. Corp., 835 F.Supp.2d 299, 303 (W.D. Ky. 2011). Unless such evidence is patently “inadmissible for any purpose, ” Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997), though, the “better practice” is to defer evidentiary rulings until trial, Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975), so that “questions of foundation, relevancy and potential prejudice may be resolved in proper context, ” Gresh v. Waste Servs. of Am., Inc., 738 F.Supp.2d 702, 706 (E.D. Ky. 2010). A ruling in limine is “no more than a preliminary, or advisory, opinion.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994) (citing United States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983), aff'd, 469 U.S. 38). Consequently, the Court may revisit its in limine rulings at any time and “for whatever reason it deems appropriate.” Id. (citing Luce, 713 F.2d at 1239).

         DISCUSSION

         A. Defendant's Motions in Limine

         1. Motion in Limine to Exclude Evidence of Spoliation

         First, Defendants move to exclude testimony by witnesses or references by counsel to any spoliation of evidence Plaintiffs allege Defendants may have engaged in. [DN 165.] According to Defendant, “[i]n 2004 Textron converted its Legal Department matter management system from a discontinued and increasingly inadequate management system called ‘Corporate LawPack' to the current management system named ‘TeamConnect.'” [DN 165-1 at 2-3.] Defendant states that its “document retention schedule relating to ‘Litigation Files' was dated 1997, and preceded the data transfer [conducted in 2004] ¶ 7 years and the accident in this case by 13 years.” [Id. at 8.] Pursuant to that 1997 “records management policy, ” Defendant's practice was to “maintain[ ] litigation files only for three years following closure” of a claim or lawsuit. [Id.]

Thus . . . only information relating to claims or lawsuits that were open in 2004, or those that had been closed within the three years prior to the 2004 implementation (including matters that commenced well back into the 1990's, over a decade before this accident ever occurred), were entered into the TeamConnect Legal Matter Management System.

[Id.] In its motion, Defendants argue that “[t]he fact that the Textron Legal Department followed its records management policy and did not transfer litigation files closed prior to 2001 (i.e. three years) when it implemented in 2004 is not improper.” [Id. at 10.] Defendants contend that “[t]here was no business need or requirement for the Textron Legal Department to retain such closed records. Files were preserved for all pending litigation and, more significantly, there was no duty to preserve evidence for this case because the accident and accompanying lawsuit had not yet occurred.” [Id.] Moreover, Defendants rely on the United States Supreme Court's recognition that “‘[d]ocument retention policies, ” which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business . . . It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.” Arthur Andersen LLP v. United States, 544 U.S. 696, 704 (2005).

         Plaintiffs, however, contend that Defendant spoliated evidence due to its “actions in 2004 when it implemented its TeamConnect litigation database and destroyed all of the data before 2001, in its previous litigation database, Corporate Law Pack.” [DN 194 at 2.] In support of that argument, Plaintiffs argue that Defendant “conceded that it knew from experience that evidence about prior incidents could be used adversely to the company in the product liability cases against it.” [Id. (citing John Rupp Deposition).] According to Plaintiffs, Defendant's in-house legal counsel, John Rupp, testified that he “knew that other incidents could be admitted against Textron in civil suits, and could be prejudicial to Textron's defense.” [Id. (citing Rupp Deposition).][1]

         In their proposed jury instructions, Plaintiffs request that the Court include an adverse inference instruction advising the jury that Defendant “destroyed . . . documents and information in 2004” and that the jury is “instructed to infer that the documents and information about other incidents and other lawsuits involving rollovers of golf cars, personnel carrier vehicles, and related vehicles that Textron obtained and collected before and after the date of manufacture of the E-ZGO vehicle would be, if available, adverse to Textron and favorable to Plaintiffs.” [DN 178-1 at 4 (Proposed Jury Instructions).] However, Plaintiffs further argue “that a ruling of spoliation will be justified at the close of evidence, and that it is clearly premature at this point to conclude to the contrary.” [DN 194 at 1.]

         “Spoliation is ‘the intentional destruction of evidence that is presumed to be unfavorable to the party responsible for its destruction.'” Ross v. Am. Red Cross, 567 Fed.Appx. 296, 301-02 (6th Cir. 2014) (quoting United States v. Copeland, 321 F.3d 582, 597 (6th Cir. 2003)). In 2010, the Sixth Circuit explained the standard for giving an adverse inference instruction on the basis of spoliation as follows:

[A] a party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed “with a culpable state of mind”; and (3) that the destroyed evidence was “relevant” to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

Beaven v. U.S. Dep't of Justice, 622 F.3d 540, 553 (6th Cir. 2010). In adopting this standard, the Sixth Circuit further elaborated:

Thus, an adverse inference for evidence spoliation is appropriate if the Defendants “ ‘knew the evidence was relevant to some issue at trial and ... [their culpable] conduct resulted in its loss or destruction.' ” Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450 (4th Cir.2004) (quoting Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir.1995)). This depends on the alleged spoliator's mental state regarding any obligation to preserve evidence and the subsequent destruction. An obligation to preserve may arise “when a party should have known that the evidence may be relevant to future litigation, ” Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998), but, if there was “no notice of pending litigation, the destruction of evidence does not point to consciousness of a weak case” and intentional destruction, *554 Joostberns v. United Parcel Servs., Inc., 166 Fed.Appx. 783, 797 (6th Cir. 2006) (unpublished opinion) (applying federal law). “[T]he ‘culpable state of mind' factor is satisfied by a showing that the evidence was destroyed ‘knowingly, even if without intent to [breach a duty to preserve it], or negligently.' ” Residential Funding Corp., 306 F.3d at 108 (quoting Byrnie, 243 F.3d at 109).

Id. at 553-54. Rule 37(e) of the Federal Rules of Civil Procedure, which was amended to its current version in 2015, after the Sixth Circuit's decision in Beaven, likewise provides guidance on spoliation sanctions. Specifically, Rule 37(e) provides:

(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.

Fed. R. Civ. P. 37(e). Rule 37(e) permits the imposition of a sanction only if, at a minimum, “electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it.” Fed.R.Civ.P. 37(e) (emphasis added). Further, it permits an adverse inference instruction to the jury “only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation.” Fed.R.Civ.P. 37(e)(2) (emphasis added).

         In its motion to exclude, Defendant argues that “Plaintiffs should be precluded from making any arguments or introducing evidence suggesting an ‘improper' disposition of old claims or a suggestion of improper conduct on the part of E-Z-GO or Textron, or any alleged ‘spoliation' of evidence.” [DN 165-1 at 12-13.] In support of this argument, Defendant argues, first, that “[t]he Jackson accident did not occur until July 25, 2010, some 6 years after the conversion and 13 years after the document retention schedule was established” and “Jackson's complaint was not filed for yet another year, in 2011” and therefore, it had no reason to anticipate “future litigation” in 2004 when it converted to TeamConnect. [Id. at 12.] Second, Defendant argues that Plaintiffs cannot show the requisite prejudice from the unavailability of certain documents because they have since “received from Travelers the very information it claims was not preserved by Textron.” [DN 165-1 at 13.]

         In their response, Plaintiffs argue that “[a] duty to preserve arises ‘when a party should have known that the evidence may be relevant to future litigation[.]'” [DN 194 at 6 (citing Beaven, 622 F.3d at 553).] According to Plaintiffs, that fact that prior incidents could be relevant to any future products liability litigation in general established Defendant's duty to preserve documents in 2004.

         The Sixth Circuit has explained that “[w]hether an adverse inference is permissive or mandatory is determined on a case-by-case basis, corresponding in part to the sanctioned party's degree of fault.” Automated Sols. Corp. v. Paragon Data Sys., Inc., 756 F.3d 504, 513 (6th Cir. 2014) (quoting Flagg v. City of Detroit, 715 F.3d 165, 178 (6th Cir. 2013)). At this time, the Court agrees that Plaintiffs have not made the requisite showing of fault, whether through negligence or intent, necessary for an adverse inference instruction. However, the Court will permit Plaintiffs to raise this issue again in chambers when the parties and the Court discuss jury instructions at the end of trial.

         With regard to Defendant's request to exclude evidence of or reference to spoliation at all during trial, however, the Court will not go so far. Though the standard for proffering an adverse inference instruction requires a showing of a certain degree of fault and resulting prejudice, the standard of relevance for admissibility at trial is much lower. See Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, 774 F.3d 1065, 1070-71 (6th Cir. 2014) (Explaining that the showing of “relevance” necessary for an adverse inference instruction requires “something more than sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence.”). In the context of introducing evidence of spoliation, as opposed to tendering an adverse inference instruction, “[i]f relevant, courts have allowed spoliation evidence at trial.” VSI Holdings, Inc. v. SPX Corp., No. 03-CV-70225-DT, 2006 WL 568333, at *2 (E.D. Mich. Mar. 7, 2006) (citing United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986)); see also Harris v. Hogle, No. 1:05-CV-815, 2010 WL 2302309, at *2 (W.D. Mich. June 4, 2010) (Denying adverse inference instruction prior to trial because “Plaintiff ha[d] presented little evidence in support of his claim for spoliation sanctions, ” however, acknowledging that, “[p]resumably, further facts will be developed at trial.”); Ross v. Am. Red Cross, No. 2:09-CV-00905-GLF, 2012 WL 2004810, at *6 (S.D. Ohio June 5, 2012), aff'd, 567 Fed.Appx. 296 (6th Cir. 2014) (“Recently, this Court denied Plaintiff's motion for, among other things, an adverse inference of negligence as a discovery sanction for the Red Cross's ‘spoliation' of the post-September 19, 2008 DRIRs . . . The Court's ruling does not, however, necessarily mean that the Red Cross is entitled to keep from the jury the fact that the post-September 19, 2008 DRIRs that once existed are now gone. Indeed, this Court noted that ‘[t]he fact that the documents are missing is something the Plaintiff can explore on cross-examination with an appropriate witness.' Contrary to the Red Cross's contention that any ‘spoliation' of the DRIRs is not relevant to any issue in the case, the loss of the evidence could conceivably affect the weight the jury may give to the testimony of Red Cross witnesses regarding any ‘aftercare' provided to Plaintiff. Finding no basis to categorically exclude evidence or argument concerning ‘spoliation' of the DRIRs at this time, the Court DENIES the Red Cross's motion in limine to exclude them.”).

         Here, Plaintiffs argue that “‘[o]ther incident' proof is some of the most persuasive testimony that can be offered in a products case.” [DN 194 at 8.] Accordingly, to the extent Plaintiffs are unable to provide the jury with examples of other incidents that may have been recorded prior to 2004, Plaintiff wishes to inform the jury why such records are unavailable. The Court finds this evidence is relevant and admissible under Rule 401 of the Federal Rules of Evidence. Accordingly, the Court will allow Plaintiffs to put on evidence of what they believe was spoliation of evidence in 2004. Therefore, Defendant's motion in limine is denied.

         2. Motion in Limine to Exclude Computer Simulations

         Defendant also moves “to exclude the computer simulations offered by Kirstopher Seluga on the grounds that Mr. Seluga's computer simulation models for rear wheel, front-wheel, and all-wheel braking do not meet FRE 702 and should be excluded under FRE 402 and 403.” [DN 167 at 1.] Defendant made the same arguments in its motion to exclude the report and testimony of Plaintiffs' expert Kristopher Seluga pursuant to Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). [DN 132.] The Court addressed Defendant's arguments regarding Seluga's computer simulations and the applicable law in its Memorandum Opinion and Order ruling on all parties' Daubert motions. [DN 198 at 49-58.] Therein, the Court found Seluga's computer simulations to be reliable and admissible and noted that any deficiencies Defendant alleges can be addressed at trial during cross-examination. [Id. at 57-58.] On the basis of that ruling, and the lengthy analysis the Court underwent in its previous Memorandum Opinion and Order, Defendant's motion to exclude Seluga's computer simulations is denied.

         3. Motion in Limine to Exclude Patents

         Next, Defendant moves “to preclude plaintiffs from presenting evidence or argument relating [to] regenerative braking concepts patents because there is no evidence of feasibility or availability to E-Z-GO prior to manufacture of the vehicle in question.” [DN 168-1 at 1.] Two of Plaintiffs' experts, Andrew Lawyer and Kristopher Seluga, cite to various United States Patents in support of their opinions that regenerative braking, a type of speed governing system, could have been implemented in the Vehicle when it was manufactured in 1993 and that regenerative braking would have constituted a feasible, safer alternative design.

         Lawyer cites U.S. Patents 4, 242, 617 and 4, 730, 151. Patent No. 4, 242, 617 was issued on December 30, 1980 (the “1980 Patent”) and is for an “electric vehicle having dynamic braking and regeneration.” [DN 149-4.] Patent No. 4, 730, 151 was issued on March 8, 1988 (The “1988 Patent”) and is for “continuous field control of series wound motors.” [DN 149-5.] In his report, Lawyer cites to these two patents for the proposition that “[t]he concept of speed limiting, and/or dynamic braking/plug braking/regenerative braking, has been a known concept in the electrical powered vehicle industry since at least 1980.” [DN 119-1 at 5.]

         In his report, Seluga writes:

[T]he vehicle could have been equipped with a speed governing system that would have automatically limited the vehicle's speed to a safe level, even when traveling downhill. Such regenerative braking systems were invented long before the manufacture of the subject vehicle and had been implemented in other applications such as trains and concept electric automobiles decades prior.

[DN 113-1 at 25.] In support of this statement, Seluga cites, in footnotes, U.S. Patents 3, 984, 743, 4, 008, 423, 4, 389, 602, and 5, 261, 025. [Id. at 25 n.49-52.] Patent No. 3, 984, 743 was issued on October 5, 1976 (the “1976 Patent”) for a “Regenerative Braking Controller for D.C. Motor.” Its abstract states, in part, that it is for a “[r]egenerative braking controller for controlling a direct current motor adapted to drive a railway tramcar, an electric automobile or the like.”

         Patent No. 4, 008, 423 was issued on February 15, 1977 (the “1977 Patent”) for an “Electrically Propelled Vehicle.” Its abstract states, in part, that it covers “A propulsion system for an electrical vehicle including a linear proportional controller operable in a plurality of modes for operating a d.c. drive motor via power derived from a propulsion battery.”

         Patent No. 4, 389, 602 was issued on June 21, 1983 (the “1983 Patent”) and is for an “Electric Motor Controller.” Its abstract states that it covers “An electronic controller for DC motors is provided which is particularly adapted for use on electric vehicles.”

         Patent No. 5, 261, 025 was issued on November 9, 1993 (the “1993 Patent”) and covers “Method and Apparatus for DC Motor Speed Control.” Its abstract states: “In a preferred embodiment, a high-frequency, pulse-width-modulated, power-transistor, DC motor speed controller having current limiting in both drive and regenerative modes, essentially constant ramping rates regardless of whether or not the operator switches to neutral before changing direction.”

         Defendant makes multiple arguments in its motion in limine as to why these patents should be excluded from trial. Specifically, Defendant argues that “Plaintiffs do not even attempt to show how these ‘concepts in design' were ‘technologically practicable' under the circumstances in 1993 to a vehicle the form, size, weight, and expected performance of an electric powered golf car or personnel carrier.” [DN 168-1 at 2 (citing Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 41-42 (Ky. 2004)). Additionally, Defendant argues that the patents do not “accomplish the Plaintiffs' stated goal of limiting the top speed of an electric vehicle while coasting downhill” because two of the Patents “note, at the time of issuance, current technology meant that use of a regenerative brake system in a battery powered vehicle would require that vehicle being placed in a ‘coasting' condition during the transition to and from regenerative braking, and ‘involves a risk that a crash may occur in the coasting state before the driver treads the foot brake pedal to operate a mechanical brake.'” [Id. at 3 n.1.] Next, Defendant argues that the patents are irrelevant for many reasons, including that “a cursory review of these identified patents discloses that they are for unrelated vehicles” and that they “do not contain any safety testing or reference to such testing comparing the brake system on the subject PC-4X during this accident with the methods of regenerative braking proposed in the third-party patents for different applications and vehicles under different operational conditions.” [Id. at 3, 6.]

         Defendant relies heavily on the Fifth Circuit's decision in Casey v. Toyota Motor Engineering & Manufacturing North America, Inc., in which the court held that “[a] single patent or patent application may form the basis of an expert's conclusion that there exists a safer alternative design, but only if the patent or patent application, together with the expert's analysis of it, proves all of the elements of a safer alternative design.” 770 F.3d 322, 331 (5th Cir. 2014). Applying Casey, Defendant argues that ‚Äúthere is no research or showing by Mr. Lawyer [or Mr. Seluga] that the patents relate to any components manufactured by other companies, actually known and available to E-Z-GO prior to the manufacture and first sale of in June 1993, and demonstrated through industry testing as suitable for use in E-Z-GO electric ...


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