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

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

August 1, 2018

E-Z-GO Division of TEXTRON, INC., et al., DEFENDANTS



         Currently pending before the Court is Defendant E-Z-GO's motion to exclude any references to and all evidence of prior and post-accident unrelated claims and other accidents. [DN 166.] Plaintiffs have responded, [DN 192], and the parties filed supplemental briefing at the Court's request. [See DN 201; DN 202; DN 206; DN 207; DN 209; DN 226[1].] Fully briefed, Defendant's motion is ripe for adjudication. For the reasons explained in detail below, Defendant's motion in limine to exclude evidence of prior incidents is GRANTED IN PART AND DENIED IN PART. Plaintiffs will be permitted to offer evidence of incident numbers 7, 8, 9, 12, 14, 16, 17, 18, 21, and 23 at trial.


         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 Thursday, August 1, 2018.


         In their supplemental briefing, Plaintiffs explain that they wish to introduce approximately 47 prior incidents with E-Z-GO vehicles as evidence in the trial of this matter. [See DN 201 at 3 (Index of Prior Incidents).] Specifically, Plaintiffs wish to introduce evidence of these prior incidents “as proof of notice and/or defect and/or failures of [E-Z-GO's] required corporate safety program.” [DN 202 at 2 (capitalization removed).]

Plaintiffs urge the Court to allow admission of the proof of other rollovers, other speed-related incidents, and other events that bear enough similarity to some of the facts in this tragic wreck so as to assist the jury in deciding if Textron had notice of use of its product by young teenagers, unlicensed drivers, on slopes, with braking issues and subsequent loss of control, and/or rollover, if one or more of those items constituted a known defect, if Textron intentionally minimized or destroyed evidence of such events, and if Textron's response and lack of response to such events reflects an adequate corporate safety program.

[DN 202 at 22-23.]

         The Sixth Circuit has explained that evidence of prior incidents may be offered in products liability cases for multiple reasons, including:

to (1) prove the existence of a particular defect; (2) prove causation; (3) prove the existence of a dangerous situation at the time of an accident; or (4) prove notice or knowledge of the danger. McCormick's Handbook of the Law of Evidence § 200 (2d ed. 1972); 1 D. Louisell, Federal Evidence § 98 (1977).

Koloda v. Gen. Motors Parts Div., Gen. Motors Corp., 716 F.2d 373, 375 (6th Cir. 1983). Because there are multiple purposes for which a party may introduce such evidence, the relevance of it “will thus depend not only on the character of the evidence itself but on the purpose for which it is offered. Id.

         Crucial for purposes of this case, the Sixth Circuit has made clear that “[o]nly prior incidents that are ‘substantially similar' to the one at issue will be admissible in evidence. Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 297 (6th Cir. 2007) (quoting Rye v. Black & Decker Mfg. Co., 889 F.2d 100, 102 (6th Cir. 1989)). “Incidents which ‘occurred under similar circumstances or share the same cause' can properly be deemed substantially similar. The proffering party bears the burden of proof to establish substantial similarity. A showing of substantial similarity insures that the evidence meets the relevancy requirements of Rules 401 and 403.” Id. (citing Rye, 889 F.2d at 102-103) (internal citations omitted). The Sixth Circuit has also indicated, though not expressly accepted or rejected the principle that, “[i]f the prior occurrence is offered to prove notice, however, a lesser degree of similarity is required provided the accident would have tended to warn the defendant.” Bryan v. Emerson Elec. Co., 856 F.2d 192 (6th Cir. 1988) (citing Exum v. General Elec. Co., 819 F.2d 1158, 1162-63 (D.C. Cir. 1987)).

         Defendant argues that the Court's July 21, 2015 order narrowly defined “[t]he scope of Plaintiffs' claims of defect, and thus the permissible search for claims.” [DN 207 at 5.] In that Order, the Court partially granted E-Z-GO's request for a protective order and held that Plaintiffs could not “[i]nquire about any E-Z-GO incidents not related to rear-wheel-only braking, speed governors, speed retardation, or over-steer technologies.” [DN 77 at 7.] In that ruling, the Court explained that Plaintiffs sought:

evidence to help [them] prove that Textron had notice of the supposed defects that [they] believe[e] contributed to the golf cart accident. In briefing, [they] specifically list[ed] four design features of concern: rear-wheel-only braking as opposed to all-wheel-braking, speed governors, speed retardation devices, and over-steer technology. Thus, only incidents that could have given Textron notice about these supposed problems are relevant to her proving this part of her case, and the Court will fashion its protective order accordingly. Textron need only turn over incident reports and the like that relate to rear-wheel-braking, speed governors and speed retardation devices, and over-steer technology.

[Id. at 5 (internal citations omitted).] According to Defendant, however, Plaintiffs' briefing on the issue of prior incidents shows “that they intend to expand the claims of defect at issue in this matter beyond the ‘four areas of inquiry' previously identified by the Court and which were further narrowed by Plaintiff's expert proof, and will seek to offer at trial any incident that involves an ‘overturn,' or a ‘hill', or ‘involves minors' without showing the cause of those alleged overturns was the claim of defect in this case.” [DN 207 at 7.]

         Defendant argues that “Plaintiffs cannot now argue, contrary to their experts' disclosures and testimony, generalized or undefined stability issues or the mere fact that a minor was a passenger to support their claims. They do not assert that the entire golf car and utility vehicle industry produces defective vehicles. The fact that a vehicle can overturn on a slope or slide on a wet cart path does not make that vehicle unreasonably dangerous or defective.” [Id.] Indeed, even Plaintiffs' expert Kristopher Seluga testified that, in certain circumstances, a rollover may occur even though “there was no defect that had anything to do with the accident.” [DN 132-6 at 7 (Seluga Deposition).] According to Defendant, “[t]he only other matters that could possibly have any ‘substantial similarity' to the Jackson incident would be electric powered, rear-wheel braking only vehicles being operated at speeds above 15 mph while on slopes 10º or less.” [DN 207 at 9.]

         In Rye, the seminal case on the admissibility of prior incidents, the “[a]ppellant was injured when his saw kicked back as he was trimming a narrow piece of wood from a board.” Rye, 889 F.2d at 102. There, the Sixth Circuit affirmed the district court's exclusion of certain prior incidents from evidence, finding that many of “the prior incidents [did not] contain[] sufficient facts for the District Court to find that the circumstances were substantially similar to those in appellant's case.” Id. For instance, the district court explained that “a lot of these cases are quite a bit different because they pertain to things like a saw hitting a knot in the wood or the saw cutting somebody's arm or leg but not really telling us the mechanism of how the injury occurred.” Id. (quoting district court's opinion). For other prior incidents, the “complaints merely alleged that the saw kicked back, . . . that the guard was defective, . . . and that Black & Decker failed to warn users of such dangers.” Id. at 103. According to the Sixth Circuit, “[n]one contained allegations specific enough for the District Court to determine whether they were sufficiently similar to admit at trial.” Id.

         In Morales v. Am. Honda Motor Co., 151 F.3d 500 (6th Cir. 1998), the plaintiff filed suit against Honda after her son sustained severe injuries “as he rode his 1988 Honda Z50R motorcycle into the path of an oncoming pickup truck driven by Helen Graham.” Id. at 505. There, plaintiff “alleged that Honda defectively designed the motorcycle because its small size combined with the lack of a safety flag gave the motorcycle extremely low visibility.” Id. On appeal, the Sixth Circuit affirmed the district court's admission of prior incident statistics because “the district court limited the accident statistics at issue to minibikes and small vehicles of the same sort, ” and therefore that “the ‘substantially similar' requirement was met because it may be said that these vehicles perform a similar purpose.” Id. at 512 (citing Bittner v. American Honda Co., Inc., 533 N.W.2d 476, 484- 85 (Wis. 1995)). The Sixth Circuit emphasized “that this is particularly so where the evidence was used to develop Plaintiffs' age appropriateness argument.” Id. (citing Bittner, 533 N.W.2d at 484- 85 (“finding that use of CPSC study comparing three and four wheel ATVs (all-terrain vehicles) was appropriate because these products, though different in design, were intended for a similar purpose and the information was relevant to establishing that Honda may have reasonably designed a safer vehicle”).

         In Surles, the “[p]laintiff sought to introduce evidence of prior incidents on Defendant's buses to show Defendant had been on notice of incidents likely to lead to the kind of injury suffered by Plaintiff.” Surles, 474 F.3d at 297. There, the [p]laintiff “suffered injury when Defendant's driver lost control of the bus after being attacked by another passenger on the bus, and after that passenger attempted to take control of the wheel.” Id. On appeal, the Sixth Circuit affirmed the district court's admission of prior incidents, finding that they “were substantially similar to the October 3, 2001 incident because they involved either passenger interference with the bus driver, or a passenger's attempt to take control of the bus's steering wheel or brakes. Those incidents therefore occurred under ‘similar circumstances' or ‘share the same cause' as the October 3, 2001 incident.” Id.

         In Siegel v. Dynamic Cooking Sys., Inc., 501 Fed.Appx. 397 (6th Cir. 2012), the plaintiff brought a product liability action against an oven manufacturer after her oven exploded and seriously injured her. [Id. at 398-99.] “Experts for both sides agreed that a gas leak in the regulator caused the explosion and that Siegel was not contributorily negligent.” Id. at 399. In that case, the district court excluded “evidence of other claims involving gas leaks from the same model range. Siegel argued that these incidents showed that gas leakage was a pervasive problem in Dynamic ranges, but offered no evidence that these leaks occurred under conditions substantially similar to [her] case. She ha[d] not shown, for example, that leaks in the prior incidents originated in the regulator.” Id. at 405. The Sixth Circuit agreed, and also held that “the district court did not abuse its discretion by excluding evidence of heat complaints because, once again, Siegel did not show similarity-that is, that heat from the kickplates in the other ovens caused a gas leakage or any other damage.” Id.

         Importantly, “[e]ven if there [is] such a showing of substantial similarity . . . the trial judge must ‘weigh the dangers of unfairness, confusion, and undue expenditure of time in the trial of collateral issues against the factors favoring admissibility.'” Rye, 889 F.2d at 103 (quoting McKinnon v. Skil Corp., 638 F.2d 270, 277 (1st Cir. 1981)). Because “[e]ach item of proffered evidence must be analyzed for the substantial similarity requirement, ” the Court will address each of the 47 incidents Plaintiffs wish to introduce in turn. Hayes v. MTD Prod., Inc., No. CIV. A. 3:05-CV-781H, 2008 WL 2859223, at *3 (W.D. Ky. July 22, 2008).

         1. Aleshire, Walter and Leslie, Appendix Ex. 1

         Plaintiffs explain that this suit was pending in 1994 and, in a set of interrogatory answers, Defendant identified “eight prior claimants, with law suits ranging back to 1987, ” including “Babin, John suit filed 6/29/1990, ” “Balmilero, Dante, suit filed 4/25/1990, ” “Ballinpley, Jason suit filed 4/4/1994, ” “Charron, Helene Lavasseur suit filed 6/6/1992, ” “Griffin, Thomas suit filed 2/13/1987, ” “Haney, Bradford suit filed 2/7/1994, ” “Harris, Lanny K. suit filed 4/21/1993, ” “Sowers, Cynthia suit filed 9/13/1993.” [DN 202 at 5-6.] However, Plaintiffs simply state that “No other documents were provided” and do not provide any additional explanation about any of the eight claimants. In Exhibit 1 to the Appendix Plaintiffs filed in support of their memorandum, Plaintiffs only include a document titled “Specially Prepared Interrogatories” in the case Aleshire v. American Golf Corporation, et. al. [See DN 201-1.] Therein, the plaintiffs in that case requested information regarding “any legal actions for personal injuries other than the instant action . . . for personal injuries within the past ten years.” [Id. at 2-3.] In response, E-Z-GO disclosed the names and dates of actions filed by the above eight plaintiffs.

         There is no indication, however, what the facts or circumstances of any of those eight cases were. As Defendant states in its supplemental brief, the interrogatories served in the Aleshire case “addressed ‘claims for personal injury' in the preceding 10 years and was not directed to any particular defect or claim facts.” [DN 207 at 10.] Defendant further argues that “the interrogatories contain the name and address of plaintiffs' attorney that would have allowed further investigation of the underlying facts needed to meet the Plaintiffs' burden of ‘substantial similarity' necessary for admission. Plaintiffs do not report any such contact with the listed counsel for plaintiffs the Aleshire case.” [Id.] The Court agrees, and because Plaintiffs do not provide any other information about the eight cases identified in the discovery responses in the Aleshire case, evidence of these lawsuits will be excluded.

         2. Hoo Han Yoo, Appendix Ex. 2

         Plaintiffs also wish to introduce evidence of a prior incident which occurred on April 22, 1990, in which the plaintiff, Hoo Han Yoo, filed suit following a wreck in an E-Z-GO vehicle. In his complaint, Yoo alleged that “[o]n or about April 22, 1990, plaintiff Hoo Hyun Yoo was . . . operating the E-Z-Go Gold Cart incidental to playing golf.” [DN 201-2 at 6.] According to Yoo, “the brake on the said golf cart failed to work properly, and plaintiff on account thereof was thrown from said gold cart while operating and driving it over the Fullerton Municipal Golf Course on said date…” [Id.] Yoo further alleged that the vehicle “failed to safely slow down and stop and proximately caused plaintiff to sustain the injuries and damages set forth” in the complaint. [Id. at 14.] In addition to suing E-Z-GO, Yoo sued the golf course, alleging that it “caused, permitted and allowed plaintiff to drive and operate the E-Z-GO golf cart on said premises on a downward slope, which resulted in said golf cart's accelerating to a dangerous speed and to tip over, thereby causing plaintiff to suffer the injuries and damages hereinafter described.” [Id. at 18.]

         In the traffic collision report from the wreck, Yoo's statement was that “he was coming down the hill in the golf cart” and “going faster and faster. He tried the brakes but it didn't slow down. At the bottom of the hill, he tried to turn to stay on the path but the cart overturned. It threw him out and the cart landed on top of him. Prior to the incident, he heard strange sounds every time he applied the brakes. He didn't think anything was wrong because the brakes stopped the car before the incident occurred.” [Id. at 26.] The opinions and conclusions section of the report stated that, though the brakes appeared to be working after the accident, “[i]t seems from the statements [that the vehicle] was going to[o] fast to initiate the turn at the bottom of the hill. Maybe the brakes couldn't stop the cart because of the speed it was traveling. The speed was the cause of the T/c to prevent the [driver] to initiate the turn.” [Id.]

         The Court does not find substantial similarity here. In this case, Plaintiffs allege that the brakes were defective in that they failed to safely stop the vehicle because applying them caused yaw instability and the subsequent rollover. In Yoo, by contrast, the allegation was that Yoo “tried the brakes but it didn't slow down.” [Id. at 26.] This is different from what happened when Molly Kyle was driving the Vehicle in this case. On the whole, the Court cannot say that this incident is substantially similar to the incident in this case.

         3. Dawn Long, Appendix Ex. 3

         Dawn Long brought suit against E-Z-GO and other defendants after she drove an E-Z-GO golf cart which “suddenly and without warning rolled over on its left side as the Plaintiff was making a right hand turn. The golf cart rolled over onto the Plaintiff's legs causing her to be dragged with the golf cart on top of her lower body.” [DN 201-3 at 8.] However, in that case, Long alleged that another defendant, Curtis Tractor Cab Company, Inc., modified the E-Z-Go golf cart by “install[ing] [a] Curtis hardbody cab[] upon it.” [Id. at 9.] Long alleged that the “E-Z-Go golf cart Model GX-444, with attached metal hardbody Curtis cab, was defective, unsafe, and unreasonably dangerous.” [Id. at 10.] Long alleged that the golf cart was defective due to “an overly narrow wheelbase proportionate to its center of gravity considering the loads it was expected to carry and the terrain it was expected to traverse.” [Id.] She also alleged that it was defective because of its “ability to execute a turn too sharply when the addition of a hardbody cab to the golf cart was made.” [Id.] Overall, the Court finds that the circumstances of this accident do not meet the substantially similar standard. There is no allegation of excessive speed, a steep slope, yaw instability, any particular steering input, or any issue with rear-wheel only brakes. As Defendant argues in its response, “[t]he issues presented in the claim arose from an allegation that the installation of the Curtis cab on the gasoline driven vehicle increased height of the center of gravity causing the accident.” [DN 207 at 12.] The Court agrees that this incident does not meet the standard for admissibility at trial.

         4. Phillip Coffelt, Appendix Ex. 4

         Plaintiffs state that the Phillip Coffelt “incident occurred on March 1, 1999, ” however allege that “Textron produced no documents about this event, and provided only the description that an EZ-GO golf cart [ ] rear axle locked up causing car to overturn.” [DN 202 at 6-7.] In response, E-Z-GO states that “[t]here is no indication as to the terrain over which it was being operated, or whether the issue was caused by improper braking or maintenance” and “[t]here is no suggestion the vehicle was going faster than 15 mph or that two wheel braking was at issue.” [Id.] There is also no information suggesting that the vehicle was being operated down a hill. Without more, the Court cannot say that it has enough information to find that this incident meets the substantially similar threshold. See Rye, 889 F.2d at 102 (“None of the prior incidents contained sufficient facts for the District Court to find that the circumstances were substantially similar to those in appellant's case.”).

         5. Sun Country Golf Cars v. EZ-GO, Appendix Ex. 5

         With regard to this incident, Plaintiffs explain as follows:

This incident occurred on August 2, 1999. Textron produced no documents about this event, and provided only the description that the “driver lost control when son slid into him and then brakes grabbed, driver turned steering wheel, lost control, and tipped. Claimed negligent in failing to warn of steepness of grade or turns on cart path.” No. other documents were provided.

         [DN 202 at 7.] In response, Defendant provides somewhat more information:

This was a third party action, not a direct claim. Driver had his son in the car with him and alleged that the brakes were not functioning. He was trying to negotiate a curve when his son slid and hit his hand from the steering wheel. He lost control while trying to hold his son with one hand and the steering wheel with the other. Allegedly the brakes grabbed, driver turned steering wheel, lost control, and tipped. Driver sustained burns from leaking battery acid.
Driver alleged that the mechanical brakes failed on the cart and that such failure was due to negligent maintenance by Sun Country Golf Club and also that Revere Dell Webb Golf Club were negligent in failing to warn plaintiff of either the steepness of the grade or the turns on the cart path.
There is no suggestion the vehicle was going faster than 15 mph or that two wheel braking was an issue.

         [DN 207 at 12.]

         Here, in contrast to this case, the driver alleges that he lost control as a result of his son hitting his hand from the steering wheel. However, there is no allegation of excessive speed as there is in this case. This is important because Plaintiffs' expert, Kristopher Seluga, opines that the accident at issue in this case would not have occurred if the Vehicle has been going 15 miles per hour or less. [DN 113-1 at 22.] Further, there is no allegation of defective rear-wheel brakes, which Seluga also opines the accident would not have occurred without. [Id. at 21.] Accordingly, the Court agrees that Plaintiffs have not shown this incident to be substantially similar to the circumstances of this case.

         6. Illich, Wilma et al v. EZ-GO, Appendix Ex. 6

         For the next incident, Plaintiffs state:

This incident occurred on May 19, 2000. Textron produced no documents about this event, and provided only the description “driving down a very steep hill, lost control, striking a tree, thrown from vehicle ‘(file destroyed)' .” No. other documents were provided.

         [DN 202 at 7.] In response, E-Z-GO argues that this incident also is not substantially similar because “[t]here is no reference to brake application” and “[t]here is no suggestion the vehicle was going faster than 15 mph or that two wheel braking was an issue.” [DN 207 at 13.] The Court agrees and finds that Plaintiffs have not made the requisite showing to find substantial similarity.

         There is simply not enough information to find the standard satisfied here.

         7. Davis, Russell adv. EZ-GO, Appendix Ex. 7

         Plaintiffs explain this incident as follows:

This incident occurred on June 12, 2000. Textron produced no documents about this event, and provided only the description “brake malfunction on fully loaded beverage car going down a sharp hill wet with rain when brakes locked up and the vehicle skidded into a bank.” No. other documents were provided.

[DN 202 at 7.] Defendant again argues that, “[t]here is no suggestion the vehicle was going faster than 15 mph or that two wheel braking was an issue.” [DN 207 at 13.] However, the Court finds the facts that the “brakes locked up” while traveling down a “sharp hill, ” which caused the vehicle to “skid, ” is sufficient to find that this incident “occurred under similar circumstances” as the incident in this case. Surles, 474 F.3d at 297 (citing Rye, 889 F.2d at 102-103). Similarly, in this case, Molly Kyle testified that she “locked the brake” and the Vehicle “just . . . went out of control.” [DN 131-4 at 9.] Therefore, this incident is admissible.

         8. Nelson, Donald, Appendix Ex. 8

         Plaintiffs state: “This incident occurred on July 4, 2000. The only reference is a mention in the Valente interrogatories, ‘Car overturned while negotiating a slight right turn on downhill grade.'” [DN 202 at 8 (citing DN 201-17).] In response, Defendant states that “[t]he particular interrogatory produced in discovery disclosed claims in which the[re] was an assertion of an accident that occurred ‘due to a claimed brake failure, '” however that “[t]here is no suggestion in the interrogatory answer that the vehicle had been going faster than 15 mph or that two wheel braking was an issue.” [DN 207 at 14.]

         Though it is not apparent whether the vehicle at issue in the Nelson incident had rear-wheel brakes, the fact that the defect was an alleged “brake failure” suggests that the brakes were applied in that incident. This, combined with the facts that the vehicle made a right turn (a steering input) on a downhill grade, which led to an overturn, is sufficient for the substantially similar standard. Specifically, the Court finds that there is sufficient information to say that this incident “occurred under similar circumstances” as the incident in this case. Surles, 474 F.3d at 297 (citing Rye, 889 F.2d at 102-103). This incident is admissible in evidence.

         9. Creech, William B. v. EZ-GO, Appendix Ex. 9

         In their memorandum, Plaintiffs explain:

This incident occurred on August 7, 2000. Textron produced no documents about this event, and provided only the description “sole occupant and alleged that the brakes on the golf car he was operating locked up causing him to lose control of the [golf car] which turned suddenly and overturned.” No. other documents were provided.

[DN 202 at 8.] In response, Defendant argues “[t]here is no suggestion the vehicle was going faster than 15 mph or that two wheel braking was an issue.” [DN 207 at 14.] Again, however, the Court finds that it is enough for substantial similarity that the brakes in the Creech incident “locked up, ” which suggests they were applied, and that this caused a loss of control, a sudden turn, and a rollover. This is sufficiently similar to find that the Creech incident “occurred under similar ...

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