United States District Court, D. New Hampshire
A. DiClerico, Jr. United States District Judge.
and Barbara Pukt brought suit against Nexgrill Industries,
Inc., alleging claims that arose from damage to their
property after a grill manufactured by Nexgrill caught fire.
Nexgrill moves, in limine, to preclude the Pukts from
offering evidence of other fires involving grills that it
manufactured. The Pukts object.
2005, Joseph Pukt received a grill from his family as a
Father's Day gift. The grill was manufactured by Nexgrill
and was one of its Model 720-0036-HD-05 grills. The
720-0036-HD-05 model grill was one of eight models that
Nexgrill produced and marketed in its 720 series. On
September 8, 2005, all Model 720-0036-HD-05 grills were
recalled because they contained a defect that, in some
instances, caused the fuel hose to come into contact with the
grill's firebox and melt, creating a propane leak that
1, 2012, the Pukts' grill caught fire shortly after a
family member finished cooking on it. The fire spread to the
Pukts' deck and house, causing extensive damage. The
Pukts assert that the fire was caused by the same fuel hose
defect that resulted in the recall of all Model
720-0036-HD-05 grills. The Pukts bring claims against
Nexgrill for negligence and strict liability.
Pukts intend to introduce evidence at trial concerning other
fires involving grills manufactured by Nexgrill. Nexgrill has
moved, in limine, to preclude the Pukts from introducing this
evidence, arguing that the evidence is inadmissible because
the other fires are not substantially similar to the accident
at issue here. Nexgrill also contends that the evidence of
other accidents is inadmissible because it is unfairly
prejudicial and risks confusing the jury.
admitted at trial, evidence must be relevant. Fed. R.
Evid. 402. Evidence is relevant when “it has any
tendency to make a fact more or less probable than it would
be without the evidence” and the “fact is of
consequence in determining the action.” Fed. R.
Evid. 401. A court may exclude relevant evidence,
however, “if its probative value is substantially
outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403.
products liability cases, courts employ a more particularized
inquiry into probative value when assessing whether evidence
of prior accidents is admissible. Trull v. Volkswagen of
Am., Inc., 187 F.3d 88, 98 n.9 (1st Cir. 1999). Under
this standard, “[e]vidence of prior accidents is
admissible . . . only if the proponent of the evidence shows
that the accidents occurred under circumstances substantially
similar to those at issue in the case at bar.”
Moulton v. Rival Co., 116 F.3d 22, 26-27 (1st Cir.
1997) (quoting McKinnon v. Skil Corp., 638 F.2d 270,
277 (1st Cir. 1981)). Substantial similarity is “a
function of the theory of the case” and, therefore,
does not require that the circumstances surrounding the other
accidents be identical. Moulton, 116 F.3d at 27.
party offers evidence of other accidents to show notice or
awareness of a dangerous condition, however, the similarity
requirement is relaxed. U.S. Aviation Underwriters, Inc.
v. Pilatus Bus. Aircraft, Ltd., 582 F.3d 1131, 1147-48
(10th Cir. 2009); Surles ex rel. Johnson v.
Greyhound Lines, Inc., 474 F.3d 288, 297-98 (6th Cir.
2007); Joy v. Bell Helicopter Textron, Inc., 999
F.2d 549, 555 (D.C. Cir. 1993); Jenks v. Textron,
Inc., No. 09-CV-205-JD, 2012 WL 2679495, at *6 (D.N.H.
July 6, 2012). In such circumstances, “a lack of exact
similarity . . . will not cause exclusion provided the
accident was of a kind which should have served to warn the
defendant.” Bado-Santana v. Ford Motor Co., 482
F.Supp. 2d 197, 200 (D.P.R. 2007) (quoting Exum v.
General Elec. Co., 819 F.2d 1158, 1162-63 (D.C. Cir.
moves to preclude the admission of the following three
categories of evidence of other accidents involving its
grills: (1) evidence of other fires involving Model
720-0036-HD-05 grills (doc. no. 78); (2) evidence of
customer returns of Model 720-0036-HD-05 grills because of
fires (doc. no. 81); and (3) evidence of fires
involving other models of Nexgrill grills (doc. no.
82). The Pukts contend that each category is
relevant and admissible.
Other Fires Involving Model 720-0036-HD-05 Grills
moves generally to exclude evidence of other fires involving
Model 720-0036-HD-05 grills. The Pukts' claims in this
case are based on the theory that the grill's fuel hose
contacted the fire box and melted, thereby allowing gas to
escape and ignite. Based on findings by the Consumer Product
Safety Commission (the “CPSC”) and subsequent
investigations, the Pukts ...