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Galloway v. Big G Express

July 3, 2008

SAM GALLOWAY, PLAINTIFF,
v.
BIG G EXPRESS, INC. AND COMMERCE AND INDUSTRY INSURANCE COMPANY, INTERVENING PLAINTIFFS,
v.
VOLVO TRUCKS NORTH AMERICA, INC., DEFENDANT.



The opinion of the court was delivered by: Thomas A. Varlan United States District Judge

(VARLAN/GUYTON)

MEMORANDUM AND ORDER

This civil action was before the Court on June 30, 2008, for a final pretrial conference. The Court heard the arguments by counsel on several pending pretrial motions. [Docs. 149, 150, 153, 154, 155, 156, 158, 160.] After orally ruling on a majority of the pending motions, the Court withheld ruling on Defendant Volvo Trucks North America, Inc.'s Motion in Limine [Doc. 149] and the seventh item identified in Defendant Volvo Trucks North America, Inc.'s Omnibus Motion in Limine. [Doc. 150.] After considering the motions in limine, related briefs, counsel's oral arguments, and relevant law, the Court will address the remaining motions in limine in turn.

I. MOTIONS IN LIMINE

A. Defendant Volvo Trucks North America, Inc.'s Motion in Limine [Doc.149]

In the motion in limine, Defendant Volvo Trucks North America, Inc. ("Defendant") seeks to bar Plaintiff Sam Galloway ("Plaintiff") from introducing into evidence, making any reference to, or having any witness testify based on or regarding documents obtained from Guardian Industries ("Guardian Documents") related to the windshield at issue. The Guardian Documents consist of 668 pages of documents, including warranty claims, correspondence pertaining to warranty claims, and various purchase agreements, design, and testing documents and communications between Guardian Industries and Defendant.

Defendant makes several arguments as to why the Guardian Documents should be excluded. First, the Guardian Documents are hearsay to which no applicable hearsay exception applies. Second, the Guardian Documents are inadmissible to show causation or notice to Defendant of Plaintiff's claimed defectiveness because the documents do not describe failures or windshield problems that are substantially similar to the incident at issue in this case. Third, the Guardian Documents and their content are irrelevant and inadmissible because there is no evidence of the leaking or cracking conditions described therein that the Plaintiff relies on to show the existence of a defect and causation.

Plaintiff and Intervening Plaintiffs, Big G Express, Inc. and Commerce and Industry Insurance Company, (hereinafter collectively referred to as "Plaintiffs") respond that the warranty documents at issue contain reports of prior windshield failures which are substantially similar to the windshield failure in this case. Plaintiff contends that the reports are highly probative to the issues of "Defendant's knowledge of the deficiencies in its windshield installation process and of the deficiencies themselves." [Doc. 151 at 2.] Plaintiffs also contend that the reports also are temporally limited to within four years of the accident and relate exclusively to Defendant's tractor windshields similar to the windshield in the present case. Thus, the records satisfy the "substantial similarity" criteria established by the Sixth Circuit. Plaintiffs also contend that the warranty records are not hearsay under Federal Rule of Evidence 801(d)(2), admission by a party-opponent, and are further admissible under Federal Rule of Evidence 803(6), records of regularly conducted activity.

1. Use of Warranty Claims to Establish Defective Condition

According to Defendant, the Guardian Documents consist of warranty claims, correspondence pertaining to warranty claims, and various purchase agreements, design, and testing documents and communications. During the final pretrial conference, Plaintiffs provided the Court with summaries of the warranty claims and an e-mail correspondence dated May 21, 2004, between Volvo employees. After reviewing the documents and relevant law, the Court finds that the warranty claims constitute hearsay, but the e-mail correspondence is not hearsay, when offered for purposes of establishing a defective condition.

Under Rule 801(c), hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c). However, admissions by party-opponents do not constitute hearsay. Fed. R. Evid. 801(d)(2). As to the warranty claims, the Court finds that they constitute hearsay to the extent such evidence is offered to establish a defective condition. The warranty claims are out-of-court statements and offered to prove the truth of such assertions, namely, that the deficiencies identified in the warranty claims actually occurred. In other words, Plaintiffs rely "on the truth of the underlying assertions in the customer complaints" and "regardless of how the evidence is characterized, the customer complaints would be offered for the truth of the matters asserted therein." Olson v. Ford Motor Co., 410 F. Supp. 2d 855, 861 (D.N.D. 2006). Furthermore, Rule 801(d)(2) is not applicable because the statements were made by Defendant's customers, and there is no indication that Defendant manifested an adoption or belief in the truth of such statements. Fed. R. Evid. 801(d)(2).

Additionally, to the extent Plaintiffs rely on the business records exception, the Court notes that the warranty claims involve "hearsay within hearsay" or "an out-of-court statement that is nested within another." United States v. Payne, 437 F.3d 540, 547 (6th Cir. 2006). Under Rule 805, "[h]earsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules." Fed. R. Evid. 805. Even though the warranty claim records themselves may satisfy the business records exception, the underlying statements made by customers would still need an independent basis for admissibility. See also Olson, 410 F. Supp. 2d at 861 ("[C]ustomer complaints, whether contained in [defendant's] business records or compiled by another party, all constitute hearsay.") Because the customer's statements are not independently admissible, Plaintiffs will be precluded from introducing or making reference to the warranty claims in order to prove a defective condition.

As to the e-mail messages, they are not hearsay because they are statements "by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Fed. R. Evid. 801(d)(2). The e-mail messages are from Paul Ewing and Kenneth Moore, both employees of Defendant. Furthermore, a review of the e-mail messages shows that Mr. Ewing and Moore made statements within the scope of and during their employment with Defendant. Thus, the e-mail correspondence will not be excluded on the basis of hearsay.

Notably, the e-mail message by Mr. Moore identifies three "out of the ordinary" cases. The Sixth Circuit has recognized that "prior accidents must be 'substantially similar' to the one at issue before they will be admitted into evidence." Rye v. Black & Decker Mfg. Co., 889 F.2d 100, 103 (6th Cir. 1989). Substantial similarity refers to incidents that "occurred under similar circumstances or share the same cause." Id. Plaintiffs have "the burden of proving the substantial similarity between prior accidents and [their] own." Id. According to the Sixth Circuit, substantial similarity is required "in large part because all evidence deemed admissible by the district court must meet the minimal standards of relevance articulated in Federal Rules of Evidence 401 and 403." Surles v. Greyhound Lines, Inc., 474 F.3d 288, 297 (6th Cir. 2007). Thus, a "showing of substantial similarity insures that the evidence meets the relevancy requirements of Rules 401 and 403. Id. (citation omitted).

In light of the substantial similarity requirement, Plaintiffs have not met the burden of establishing substantial similarity as to the incidents identified in the e-mail correspondence. The Court is guided by the Sixth Circuit's decision in Rye, where "[n]one of the prior incidents contained sufficient facts for the District Court to find that the circumstances were substantially similar to those in the [plaintiff's] case." Rye, 889 F.2d at 102. In other words, the prior incidents did not tell "the mechanism of how the injury occurred." Id. Likewise, the e-mail message describes three instances of cracks in windshields but provides little indication of the circumstances under which these windshields cracked or whether the windshields mentioned in the e-mail message shared the same cause as the windshield at issue. Though Plaintiffs claim that all of the windshield incidents share the same cause of defective windshield installation, they ...


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