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Philadelphia Indemnity Insurance Co. v. BMW of North America LLC

United States District Court, D. Arizona

January 29, 2016

Philadelphia Indemnity Insurance Company, et al., Plaintiffs,
v.
BMW of North America LLC, et al., Defendants.

ORDER

Honorable John Z. Boyle United States Magistrate Judge

Pending before the Court are the following Motions in Limine: (1) Defendant’s Motion in Limine to Exclude Testimony re Alleged Other Incidents (Doc. 112); (2) Defendant’s Motion in Limine to Preclude References to Opinions of Non-Testifying Experts (Doc. 113); (3) Defendant’s Motion in Limine to Exclude Opinions Contained in George Hogge’s and Willie Nelsons’ Rebuttal Reports (Doc. 114); (4) Defendant’s Motion in Limine to Preclude Admission of and All References to Technical Service Bulletin S.I. M12 07 05 (Doc. 115); (5) Plaintiff’s Motion to Exclude the Testimony of Defendant’s Experts Regarding the Ryobi Drill Charger as a Competent Ignition Source (Doc. 118); and (6) Plaintiff’s Motion to Exclude Argument that Plaintiff and/or its Experts Improperly Spoiled Evidence at the Fire Scene (Doc. 119). On January 25, 2016, the Court heard argument on the parties’ Motions in Limine during the Final Pretrial Conference. (Doc. 130.) Below, the Court addresses each Motion.

I. Defendant’s Motion to Exclude Testimony re Alleged Other Incidents

Defendant seeks to exclude testimony by Plaintiff’s expert George Hogge regarding other alleged incidents of battery-cable-caused fires involving vehicles other than Mini Coopers, pursuant to Rule 403 of the Federal Rules of Evidence. (Doc. 112.) Specifically, in his Report, Mr. Hogge states that “lack of secure mounting would make [the] battery cable [in the Mini Cooper] susceptible to chafing against the metal underbody which has been the cause of a multitude of fires in motorized equipment and vehicles examined by this Engineer and documented by many others.” (Doc. 112, Ex. A.) In his deposition testimony, Mr. Hogge clarified he is aware of approximately ten such incidents, none of those instances involved Mini Coopers, and he cannot recall the specifics of those instances. (Doc. 112, Ex. B.) Plaintiff opposes the Motion and argues that Mr. Hogge’s testimony regarding other battery-cable-caused fires in vehicles is relevant and Defendant can limit any prejudice on cross-examination. (Doc. 123.)

The parties agree that evidence of the specifics of other incidents is admissible only to the extent those incidents occurred under substantially similar circumstances. See Pau v. Yosemeite Park and Curry Co., 928 F.2d 880, 889 (9th Cir. 1991). Plaintiff admittedly has not provided any details regarding the vehicles or conditions involved in the other fires to which Mr. Hogge refers in his Report. Accordingly, the Court will grant in part and deny in part Defendant’s Motion. Mr. Hogge may testify generally that an unprotected battery cable is a competent ignition source in a vehicle (an uncontested proposition), and that he has observed other instances where an unprotected battery cable caused a fire in a vehicle. Mr. Hogge may not testify regarding the specifics of those other instances, any defects that may or may not have been present in those vehicles, or that any such defects allowed for chafing of the battery cable and caused a fire.

II. Defendant’s Motion in Limine to Preclude References to Opinions of Non-Testifying Experts

Defendant also seeks to exclude references by Plaintiffs’ testifying experts to reports and opinions of non-testifying experts. (Doc. 113.) Defendant clarified at the Pretrial Conference that it seeks to exclude any testimony that Plaintiffs’ experts’ opinions are consistent with and bolstered by the opinions of other non-testifying experts. Plaintiffs asserted at the Conference that they intend to reference previous opinions of non-testifying experts as consistent with the opinions of Plaintiffs’ testifying experts only to the extent it is needed for rehabilitation after cross-examination-i.e., to respond to any questions by Defendant regarding a theory that Plaintiff hired their testifying experts because the opinions of the non-testifying experts were not consistent with Plaintiffs’ theory of the case. Defendant stated that it does not intend to cross-examine Plaintiff’s experts regarding such issues.

Experts may testify to their own opinions formed based on inadmissible materials, but they may not recite the opinions of non-expert witnesses. See United States v. Mejia, 545 F.3d 179, 197 (2d Cir. 2008); Mike’s Train House, Inc. v. Lionel, LLC, 472 F.3d 398, 409 (6th Cir. 2006) (concluding that an expert’s testimony about the conclusions of another non-expert is inadmissible hearsay). Here, as stated above, there appears to be no dispute that Plaintiffs’ experts may testify regarding the data or evidence collected by other non-testifying experts, but that Plaintiffs’ experts may not testify to the conclusions or opinions of non-testifying experts to bolster their own testimony. Accordingly, the Court will grant Defendant’s Motion in Limine at Doc. 113. If, during trial, Defendant opens the door to questions regarding the opinions of non-testifying experts by its cross-examination, and Plaintiffs believe they need to rehabilitate their witness with regard to consistency with the reports of non-testifying experts, counsel may approach the Court and ask for permission to question the witness about those issues.

III. Defendant’s Motion in Limine to Exclude Opinions Contained in George Hogge’s and Willie Nelsons’ Rebuttal Reports

Defendant also seeks to exclude (1) opinions by Mr. Hogge included in his Rebuttal Report regarding a defect in the battery cable of Ms. Brown’s Mini Cooper; (2) Mr. Hogge’s opinions regarding the design of the Ryobi cordless drill and recall associated with it; and (3) Mr. Nelson’s opinions that the Mini Cooper engine compartment would burn differently from “a typical vehicle.” (Doc. 114.) As an initial matter, the Court has already ruled that Mr. Hogge cannot testify that a defect in the battery cable of the Mini Cooper led to chafing and caused the fire. (See Doc. 103 at 23-24.) Accordingly, for the reasons stated in the Court’s previous Order at Doc. 103, the Court will grant Defendant’s Motion in Limine and exclude the opinions in Mr. Hogge’s Rebuttal Report cited by Defendant: (1) on page 6 (reference to examination of the exemplar vehicle on which Mr. Hogge claims the insulation and the supports for the battery cable failed), (2) on page 7 (reference to photographs of an exemplar Mini Cooper with allegedly failed insulation and supports); and (3) on page 9 (reference to the exemplar study).

Likewise, the Court has already ruled that Mr. Nelson may testify regarding burn patterns on the Mini Cooper. (Doc. 103 at 18-19.) Defendant does not provide any new basis to exclude Mr. Nelson’s testimony. Therefore, the Court will deny Defendant’s Motion with regard to Mr. Nelson’s opinions.

Finally, Defendant moves to exclude Mr. Hogge’s testimony regarding the cordless drill and the recall associated with it. Defendant contends that Mr. Hogge is not qualified to testify regarding the drill or his analysis of the recall notice. Defendant further contends that Mr. Hogge’s opinions about the functioning of the drill are not the result of a reliable methodology because he has not tested his hypothesis regarding the circumstances under which the drill might malfunction. (Doc. 114 at 3-4.) The Court disagrees. Mr. Hogge testified that he has experience with drills and the conditions under which they may overheat. Additionally, Mr. Hogge has sufficient experience as an electrical engineer to understand whether, and under what conditions, a drill can be a competent ignition source. Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1015-16 (9th Cir. 2004) (only a “minimal foundation of knowledge, skill, and experience” is required for the admissibility of expert testimony); United States v. Garcia, 7 F.3d 885, 890 (9th Cir. 1993) (any lack of particularized experience or knowledge goes to the weight of the testimony rather than to its admissibility). With regard to methodology, Mr. Hogge appears to have analyzed the recall of the specific Ryobi drill model Defendant’s expert identifies, in conjunction with Mr. Hogge’s own review of the scene, in forming his rebuttal opinions as to whether the drill is a competent ignition source. The Court finds his methodology sufficiently reliable.

IV. Defendant’s Motion in Limine to Preclude Admission of and All References to Technical Service Bulletin S.I. M12 07 05

Defendant seeks to preclude reference to a Technical Service Bulletin (TSB) regarding electrical issues resulting from misrouting of the wiring harness in certain Mini Coopers. (Doc. 115.) Defendant contends that even if Plaintiffs only seek to use the TSB in response to Defendant’s assertion of a “state of the art” defense, or an assertion by Defendant that there have never been any known battery cable defects in Mini Coopers, the Court should prohibit Plaintiffs from referencing the TSB. More specifically, Defendant contends that the TSB relates to a different model of Mini Cooper than the Mini Cooper at issue in this case, the ...


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