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Thompson v. Polaris Industries Inc.

United States District Court, D. Arizona

May 17, 2019

Michael Thompson, et al., Plaintiffs,
v.
Polaris Industries Incorporated, et al., Defendants.

          ORDER

         Before the Court are Plaintiffs' twenty Motions in Limine (Docs. 186-89, 203, 204, 206, 209, 210, 213-27) and Defendants' Responses in Opposition (Docs. 230-42, 244, 245-49), and Defendants' eighteen Motions in Limine (Doc. 190-202, 205, 207, 208, 211, 212) and Plaintiffs' Responses in Opposition (Docs. 288, 229, 250-254, 255, 256-65).

         I. LEGAL STANDARD

         “Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials.Luce v. United States, 469 U.S. 38, 40 n.4 (1984). The Ninth Circuit has explained that motions in limine “allow parties to resolve evidentiary disputes ahead of trial, without first having to present potentially prejudicial evidence in front of a jury.” Brodit v. Cabra, 350 F.3d 985, 1004-05 (9th Cir. 2003) (citations omitted). Generally, motions in limine that seek exclusion of broad and unspecific categories of evidence are disfavored. See Sperberg v. Goodyear Tire and Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). Motions in limine are “entirely within the discretion of the Court.” Jaynes Corp. v. American Safety Indem. Co., 2014 WL 1154180, at *1 (D. Nev. March 20, 2014) (citing Luce, 469 U.S. at 41-42). Moreover, “[a] motion in limine is not the proper vehicle for seeking a dispositive ruling on a claim, particularly after the deadline for filing such motions has pass.” Hana Fin., Inc. v. Hana Bank, 735 F.3d 1158, 1162 (9th Cir. 2013), aff'd, 135 S.Ct. 907, 190 L.Ed.2d 800 (2015) (citing Dubner v. City & Cnty. of S.F., 266 F.3d 959, 968 (9th Cir. 2001).

         Motions in limine are “provisional” in nature. Goodman v. Las Vegas Metro. Police Dep't, 963 F.Supp.2d 1036 (D. Nev. 2013), aff'd in part, rev'd in part, and dismissed in part on other grounds, 613 Fed.Appx. 610 (9th Cir. 2015). The Court issues its rulings on motions in limine based on the record currently before it. Therefore, rulings on such motions “‘are not binding on the trial judge [who] may always change his [or her] mind during the course of a trial.'” Id. (quoting Ohler v. United States, 529 U.S. 753, 758 n.3 (2000) (citing Luce, 469 U.S. at 41 (noting that in limine rulings are always subject to change, especially if the evidence unfolds in an unanticipated manner))). “‘Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted to trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded.'” Id. (quoting Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004)).

         II. DISCUSSION

         A. Plaintiffs' Motions in Limine

         1. Doc. 186

         In this Motion in Limine, Plaintiffs argue that because they have withdrawn their claim of “defect predicated upon inadequate warnings[, ]” the Court should preclude the testimony of Defendants' expert, Dr. Dorris, because his opinions regarding the Polaris RZR warnings are irrelevant. (Doc. 186 at 1-2). Defendants contend that there were warning labels affixed to the Polaris RZR that “clearly stat[ed] that the RZR [could] overturn, resulting in serious injury or death.” (Doc. 231 at 2). Defendants further argue that evidence of the warning labels is essential to its assumption of the risk defense.

         In Arizona, the two recognized affirmative defenses to a strict products liability claim are: (1) assumption of risk and (2) product misuse. See Jimenez v. Sears, Roebuck & Co., 904 P.2d 861, 864 (Ariz. 1995) (en banc). Thus, the Court finds that Dr. Dorris's testimony may be relevant to Defendants' defenses of misuse or assumption of the risk. Furthermore, as discussed infra Sections II(A)(18) and II(A)(20), whether Plaintiffs misused the product or assumed the risk, under Arizona law, is an issue that must be submitted to a jury (if the requisite evidence for an instruction on the defense is adduced). See Sw. Pet Products, 273 F.Supp.2d at 1061 n.31. See States Aviation Underwriters, Inc. v. Aerospatiale, Societe Nationale Industrielle, 2005 WL 8161454, at *2 (D. Ariz. Nov. 1, 2005). Accordingly, Plaintiffs' Motion is denied without prejudice.

         2. Doc. 187

         In this Motion in Limine, Plaintiffs argue that the Court should exclude any reference to Exponent's Incident Specific Orientation Inversion Test (“Spit Test”). (Doc. 187 at 1). Specifically, Plaintiffs contend that the Spit Test did not rotate the Polaris RZR twice, the surrogate used in the test was two inches taller than Mr. Thompson, and the test was not filmed. (Id. at 2). Defendants contend that the Spit Test was “conducted by [Defendants'] experts to demonstrate and illustrate engineering principles that will be helpful to the jury's understanding of the experts' testimony, as well as the physics at work during the subject accident.” (Doc. 230 at 1). Defendants further argue that “Plaintiffs' critiques of the [Spit] Test go solely to the weight, not to the admissibility, of the evidence.” (Id. at 2). The Court agrees. As previously discussed in the Court's Order on the parties' Daubert motions (Doc. 268), Plaintiffs' challenges to the Spit Test go to the weight of the testimony and its credibility, not its admissibility. See Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010), as amended (Apr. 27, 2010) (“Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.”). Accordingly, Plaintiffs' Motion is denied without prejudice.

         3. Doc. 188

         In this Motion in Limine, Plaintiffs argue that the Court should exclude all “testimony, opinions, and arguments by [D]efendants regarding [Mr.] Thompson's alleged fault” because, “[i]n Arizona, the defense of contributory negligence and/or comparative fault is not available in a claim based on strict product liability.” (Doc. 188 at 1-2). In other words, Plaintiffs urge the Court to find that Arizona's bar of the contributory negligence defense in strict products liability actions requires the exclusion of evidence of Plaintiffs' conduct.

         Defendants contend that under Arizona law, a comparative fault instruction for misuse can be proper, even if there is no negligence theory.[1] See Jimenez, 904 P.2d at 867- 68 (“Thus, a comparative fault instruction for misuse, as well as one for assumption of risk, would be proper even if negligence theories have not been alleged . . . .”). Specifically, Defendants argue that Plaintiffs misused the Polaris RZR and, therefore, they are entitled to introduce evidence of Plaintiffs' conduct.

         “A prima facie case of strict products liability is established by showing that when the product left the defendant's control, it was in a defective condition that made it unreasonably dangerous and the defect was a proximate cause of plaintiff's injuries.” Jimenez, 904 P.2d at 864. As Plaintiffs note, contributory negligence is not a defense to a strict products liability suit. See id. “Contributory negligence is not applicable to strict liability because, under the doctrine of strict liability, no duty rests upon the ultimate consumer or user to search for or guard against the possibility of product defects.” Id. Rather, the Court found that the two recognized affirmative defenses to a strict products liability claim are: (1) assumption of risk and (2) product misuse. Id. Arizona defines these various liabilities as follows:

(1) Failure to discover a defect in the product which the plaintiff should, if he was reasonably diligent, have discovered is contributory negligence; (2) notwithstanding the discovery of such a defect, if the plaintiff nevertheless uses the article it is assumption of risk; and (3) the plaintiff's use of the product for certain purposes or in a manner not reasonably foreseen by the manufacturer is misuse.

Id. (emphasis added; internal quotations and brackets deleted).

         Thus, Arizona law provides that a defendant in a strict products liability action shall not be liable if it proves that the proximate cause of the plaintiff's injury was “a use or consumption of the product that was for a purpose, in a manner or in an activity other than that which was reasonably foreseeable or was contrary to any express and adequate instructions or warnings appearing on or attached to the product . . . .” A.R.S. § 12-683(3); see also Monje v. Spin Master Inc., 2015 WL 13648554, at *6 (D. Ariz. July 24, 2015), aff'd, 679 Fed.Appx. 535 (9th Cir. 2017). Arizona law defines a reasonably foreseeable use as one “that would be expected of an ordinary and prudent purchaser, user or consumer and that an ordinary and prudent manufacturer should have anticipated.” A.R.S. § 12-681(8). “[S]ome abnormal, or unintended uses will not constitute a legal misuse of the product, if they are reasonably foreseeable.” Kavanaugh v. Kavanaugh, 641 P.2d 258, 263 (Ariz.Ct.App. 1981) (citations omitted). “Whether misuse of a product is reasonably foreseeable is generally a question of fact for the jury.” Adams v. Pac. Cycle, L.L.C., 2009 WL 532629, at *7 (Ariz.Ct.App. Mar. 3, 2009).

         Therefore, under Arizona law, Plaintiffs' conduct is relevant to the defenses of assumption of the risk and product misuse. United States Aviation Underwriters, 2005 WL 8161454, at *2. Thus, the Court finds that Plaintiffs' conduct is relevant to prove that he used the product in a manner not reasonably foreseen by the product manufacturer. Id. Additionally, Plaintiffs' conduct is the type of evidence that is relevant to proving what caused the accident, an essential element of a strict products liability claim and arguably a matter for the jury to determine.[2] Accordingly, Plaintiffs' Motion is denied without prejudice.

         4. Doc. 189

         In this Motion in Limine, Plaintiffs argue that the Court should exclude “any evidence or argument regarding the absence of other similar incidents (“OSIs”) on the grounds that: (1) such evidence is without proper foundation; and (2) such evidence, if presented, permits an improper inference.” (Doc. 189 at 1-2). Defendants contend that Plaintiffs' Motion is premature because, as long as Defendants lay proper foundation, evidence regarding the absence of other similar accidents is admissible. (Doc. 233 at 2). The Court agrees. At this time, this Motion is too speculative and vague. Plaintiffs can object to specific testimony or evidence at the appropriate time during trial. Accordingly, Plaintiffs' Motion is denied without prejudice.

         5. Doc. 203

         In this Motion in Limine, Plaintiffs argue that the Court should exclude “the use of the ‘risk-benefit test' . . . and any evidence pertinent to that legal test and move for the application of the ‘consumer expectation' test . . . to gauge whether the Polaris RZR was defective and not crashworthy.” (Doc. 203 at 1). Defendants contend that Plaintiffs are asserting negligence and product liability theories based on design defect claims and under Arizona law the risk-benefit test is appropriate in determining if a design defect is unreasonably dangerous. (Doc. 234 at 1-2).[3]

         “A manufacturer is strictly liable for injuries caused by use of any product that was in a ‘defective condition unreasonably dangerous.'” Golonka v. GM Corp., 65 P.3d 956, 962 (Ariz.Ct.App. 2003) (quoting Dart v. Wiebe Mfg., Inc., 709 P.2d 876, 878 (Ariz. 1985)). In Arizona, two models may be used to determine whether a product was defectively designed: the consumer expectation test and risk-benefit analysis. See Long v. TRW Vehicle Safety Sys., Inc., 796 F.Supp.2d 1005, 1009 (D. Ariz. 2011). Under the consumer expectation test, “the fact-finder determines whether the product ‘failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonable manner.'” Golonka, 65 P.3d at 962 (quoting Dart, 709 P.2d at 879). Application of the consumer expectation test is warranted where “the ordinary consumer, through the use of a product, has developed an expectation regarding the performance safety of the product.” Brethauer v. GM Corp., 211 P.3d 1176, 1183 (Ariz.Ct.App. 2010). The risk-benefit analysis tests asks the fact-finder to decide, in light of relevant factors, whether “the benefits of [a] challenged design . . . outweigh the risk of danger inherent in [the] design.” Dart, 709 P.2d at 879. If not, the design was defective and unreasonably dangerous. Id. Courts apply the consumer expectation test when an ordinary customer through use of a product develops “an expectation regarding the performance safety of the product.” Brethauer, 211 P.3d at 1183. However, “when application of the consumer expectation test is unfeasible or uncertain . . . courts additionally or alternatively employ the risk/benefit analysis to determine whether a design is defective and unreasonably dangerous.” Golonka, 65 P.3d at 962.

         The Court finds persuasive the conclusion reached in Brethauer, and several other cases, that consumers have developed reasonable expectations about how safely seatbelts should perform. See Nance v. Toyota Motor Sales USA, Inc., 2014 WL 4702781, at *2 (D. Ariz. Sept. 22, 2014) (“In Arizona, the consumer expectation test applies to claims that seatbelts were defectively designed and unreasonably dangerous when they failed to restrain belted passengers.”); Brethauer, 211 P.3d at 1183 (“We are persuaded that consumers have expectations about how safely seatbelts will perform.”). Thus, the Court finds that under Arizona law-the applicable law in this case-the consumer expectation test applies to claims that seatbelts were defectively designed in that they failed to restrain belted passengers. See Brethauer, 211 P.3d at 1183-84; see also Nance, 2014 WL 4702781, at *2 (“It is for the jury to decide whether ordinary consumers expect that properly functioning seatbelts will keep a passenger's head inside a vehicle during a rollover crash.”). The Court recognizes that this case concerns not only the design of the restraint harness system/seatbelt, but also the design of the entire ROPS; nonetheless, the Court finds that the ordinary consumer could reasonably expect, similar to a seatbelt, that ROPS should restrain a passenger body within the confines of the vehicle during a rollover crash. See Nance, 2014 WL 4702781, at *2 (“Ordinary consumers could reasonably expect that a seatbelt should restrain a passenger's body within the confines of the vehicle.”).

         Therefore, the Court will provide the consumer expectation test jury instruction. Accordingly, Plaintiffs' Motion is granted.

         6. Doc. 204

         In this Motion in Limine, Plaintiffs argues that the Court should preclude “[D]efendants from making any reference to, or from cross-examining Plaintiffs' expert Alan Cantor regarding issues that arose more than 21 years ago in a case styled Wiley v. General Motors Corporation, including whether Mr. Cantor was sanctioned in that case.” (Doc. 204 at 2). Specifically, Plaintiffs argue that “evidence of the granting of a mistrial and the basis for it, as well as any alleged conduct by Mr. Cantor in an unrelated 21-year old case is simply not relevant.” (Id. at 3). Defendants contend that “Mr. Cantor's prior sworn testimony may be used to impeach him” and that “[s]pecific instances of a witness's misconduct are also admissible to undermine his or her character for veracity.” (Doc. 235 at 1-2).

         In Wiley v. General Motors, a mistrial was declared based on the defendant's objection that Mr. Cantor had removed seventeen seconds from a demonstrative videotape that he had shown to the jury during his testimony. See Pierson v. Ford Motor Co., 2008 WL 7084522, at *5 (N.D. Cal. Aug. 1, 2008), supplemented, 2008 WL 7074289 (N.D. Cal. Oct. 3, 2008), and supplemented, 2009 WL 1034233 (N.D. Cal. Apr. 16, 2009). The court in Wiley v. General Motors did not make a finding that Mr. Cantor engaged in intentional misconduct.

         The Court finds that the probative value of this material is far outweighed by the prejudice that will occur if it is allowed. The mistrial took place more than twenty years ago and involved a piece of demonstrative evidence that Plaintiffs are not offering at this trial. To explain the circumstances around the seventeen second omission in the videotape would require the parties to spend a considerable amount of resources and time responding to an issue that is of marginal relevance to Mr. Cantor's testimony here. Thus, these factors weigh in favor of excluding this information. See Milne v. Volkswagen AG, 2009 WL 10702722, at *2 (D. Vt. Jan. 22, 2009). However, pursuant to Rule 801(d), Defendants may of course use Mr. Cantor's prior recorded testimony for impeachment purposes should his testimony in this trial be different than prior testimony. See Pierson, 2008 WL 7084522, at *5. Accordingly, Plaintiffs' Motion is granted.

         7. Doc. 206

         In this Motion in Limine, Plaintiffs argue that the Court should exclude any mention of claims that were pled in Plaintiffs' original Complaint that have been withdrawn or dismissed, including Plaintiffs' negligence, warnings, and punitive damages claims. (Doc. 206 at 1). Specifically, Plaintiffs provide that they “have informed the [D]efendants that the evidence proffered at trial will be limited to the legal theory of strict products liability-crashworthiness-design defects. (Count One of Plaintiffs' Complaint).” Defendants contend that the “evidence of the existence of warnings is clearly relevant to [Defendants'] defenses of misuse and assumption of the risk, while evidence of nonparties Jet Rent and its owner Mark Frandsen's (jointly, ‘Jet Rent') fault is expressly permitted by the law.” (Doc. 239 at 1).

         On January 23, 2017, Defendants filed a Notice of Nonparty at Fault pursuant to A.R.S. § 12-2506(b)(5), which provided notice to Plaintiffs “that they intend to assert that Jet Rent and/or its owners, employees, or agents, is at fault, in whole or in part, for the damages alleged in [P]laintiffs' Complaint.” (Doc. 24). Plaintiffs argue that “because an allegation of comparative fault of a non-party is an affirmative defense, the defendant must prove the nonparty was causatively at fault” and because “the issues in this case relate to the design of the product, fault requires expert testimony.” (Doc. 206 at 2). Plaintiffs provided no case law that supports that position. Thus, as of now, the Court finds this request to be too vague and speculative. Plaintiffs can object at the appropriate time during trial. As to evidence regarding warnings, the Court finds that this evidence is admissible because it may be relevant to [Defendants'] defenses of misuse and assumption of the risk.

         See United States Aviation Underwriters, 2005 WL 8161454, at *2. Accordingly, Plaintiffs' Motion is denied without prejudice.

         8. Doc. 209

         In this Motion in Limine, Plaintiffs argue that Defendants should be precluded “from making any comments, reference to, or argument regarding any alleged ‘agreement' with Mark Frandsen relating to the subject RZR and the alleged fault of nonparties Jet Rent or Mark Frandsen.” (Doc. 209 at 1). Specifically, Plaintiffs provide that during Mr. Frandsen's deposition, he

testified that he believed he had an agreement with Plaintiffs that Jet Rent would not be named as party in the lawsuit. In fact, a letter was sent to Mr. Frandsen confirming that it was Plaintiffs' counsel's plan- at the time-not to name Jet Rent as a defendant. This letter and any discussions between counsel and Mr. Frandsen regarding the acquisition of the remnants of the RZR constitute inadmissible hearsay that is irrelevant to the issues in this case.

(Id. at 2). Defendants contend that “evidence of the agreement and Jet Rent's negligence is not only relevant; the jury is entitled by law to consider it.” (Doc. 240 at 3). Plaintiffs have provided no authority to support their position and at this time the Court finds their concerns speculative. Accordingly, Plaintiffs' Motion is denied without prejudice.

         9. Doc. 210

         In this Motion in Limine, Plaintiffs argue that the Court should preclude “[D]efendants, their counsel, and witnesses from making any comments, reference to, or argument that the 2011 RZR 800 complied with voluntary standards written by the industry and/or complied with irrelevant industry practices or customs on the grounds that: (1) there were no industry standards applicable to the crashworthiness of the RZR; and, (2) evidence of industry practices or customs is not relevant in a strict liability case.” (Doc. 210). Defendants contend that, in a strict liability case in Arizona, both state of the art and industry standards may be considered on the issue of whether a product is in a defective condition unreasonably dangerous to the user. (Doc. 241 at 2).

         “A manufacturer is strictly liable for injuries caused by use of any product that was in a ‘defective condition unreasonably dangerous.'” Golonka v. GM Corp., 65 P.3d 956, 962 (Ariz.Ct.App. 2003) (quoting Dart v. Wiebe Mfg., Inc., 709 P.2d 876, 878 (Ariz. 1985)). In any products liability case in Arizona, a defendant is not liable if it proves that “the defect in the product is alleged to result from inadequate design or fabrication, and if the plans or designs for the product or the methods and techniques of manufacturing, inspecting, testing and labeling the product conformed with the state of the art at the time the product was first sold by the defendant.” A.R.S. § 12-683(2). State of the art is defined as “the technical, mechanical and scientific knowledge of manufacturing, designing, testing or labeling the same or similar products that was in existence and reasonably feasible for use at the time of manufacturing.” A.R.S. § 12-681(10); see also Bauerline v. Equity Residential Properties Mgmt. Corp., 2006 WL 3834285, at *8 (D. Ariz. Dec. 29, 2006).

         Plaintiffs argue that customs of an industry are not the same as the state of the art defense and Defendants' compliance with voluntary standards written by the industry is irrelevant. (Doc. 210 at 3). Under Arizona law, customs of an industry are not the same as the state of the art defense; however, the Court nonetheless finds them relevant. See Bauerline, 2006 WL 3834285, at *8. Voluntary industry standards may be admissible because these standards may constitute substantive evidence on the strict liability issue of whether a product is in a defective condition unreasonably dangerous to the user. See Hohlenkamp v. Rheem Mfg. Co., 655 P.2d 32, 36 (Ariz.Ct.App. 1982). Accordingly, Plaintiffs' Motion is denied without prejudice.

         10. Doc. 213

         In this Motion in Limine, Plaintiffs argue that the Court should limit the testimony of Defendants' expert, Eddie Cooper. (Doc. 213). Defendants contend that “Plaintiffs' challenges go - if at all - to the weight of Cooper's testimony, not its admissibility.” (Doc. 236). The Court agrees. See Primiano, 598 F.3d at 564 (9th Cir. 2010) (“Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.”). Moreover, the Court finds that this Motion is akin to a Daubert motion and that the deadline for Daubert motions has since passed. (Doc. 174). Accordingly, Plaintiff's Motion is denied without prejudice.

         11. ...


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