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Barrett v. Badger Ladder, LLC

United States District Court, D. New Hampshire

February 3, 2017

Kenneth Barrett
v.
Badger Ladder, LLC and Michigan Ladder Co., LLC Opinion No. 2017 DNH 022P

          MEMORANDUM ORDER

          Joseph N. Laplante United States District Judge.

         Plaintiff Kenneth Barrett has brought negligence and product liability claims against defendant Michigan Ladder Company seeking damages for injuries he sustained when an articulating ladder[1] designed and distributed by the defendant (the “Climb Pro ladder”) collapsed under him.[2] It did so, Barrett contends, because the ladder's hinges were not locked, despite having given off visual, audial, and physical indications of being locked (a “false lock”). Before the court are the parties' several motions in limine seeking to exclude a variety of evidence and areas of inquiry from the upcoming trial. The court addresses each motion in turn.

         The court reminds the parties that the rulings herein are made without prejudice to revisiting particular issues in response to circumstances that might arise during trial. Furthermore, these rulings are limited to grounds argued in the parties' filings and raised at the final pretrial conference. The court reserves the right to assess other factors at trial, such as authenticity, hearsay, and best evidence, see Fed.R.Evid. 800 et seq., 900 et seq., and 1000 et seq., and where appropriate, arguments and grounds not raised by counsel.

         I. Motions in limine

         A. Krause articulated ladders[3]

         Michigan Ladder moves to exclude evidence and testimony concerning articulated ladders designed by Krause, the originator of the Climb Pro ladder, on prejudice grounds. See Fed.R.Evid. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of, ” inter alia, “unfair prejudice, confusing the issues, [or] misleading the jury.”). Michigan Ladder contends that allowing the plaintiff to present evidence about or discuss the Krause ladders, including reference to Krause's recall of certain of its ladders in 1998, would prejudice Michigan Ladder because the “Climb Pro ladder is not based on the Krause design.”[4]Concluding that the plaintiff may be able to establish a connection between the Climb Pro ladder and the Krause ladder design such that evidence concerning Krause ladders would not unfairly prejudice the defendant or confuse the jury, the court denies the defendant's motion.

         This pre-trial ruling is subject to two important caveats. First, it hinges on the plaintiff's introduction of evidence sufficient to connect the Krause ladders' design to that of the defendant's Climb Pro ladder as discussed below. Should plaintiff fail to establish such a connection, see Fed.R.Evid. 104(b), the court will reevaluate this decision. Second, and to be clear, this is not a ruling that all evidence concerning Krause ladders is admissible; rather, the court merely declines to exclude that broad category of evidence wholesale on the basis of defendant's Rule 403 objection.

         As best the court can make out, [5] the plaintiff's evidence will demonstrate that Krause ladders were a predecessor in design and manufacture to defendant's Climb Pro ladders. Krause designed, manufactured, and sold at least one model of articulated ladder. In 1998, Krause recalled certain of its articulated ladders because the hinges of those ladders could spontaneously unlock during use, causing the ladder to collapse. Krause revised the design of the hinge to address this problem, then subsequently sold the ladder design and manufacturing rights to Climb Tek, Inc. It is unclear whether or to what extent Climb Tek altered the ladder's design or manufacture before conveying those same rights to Michigan Ladder in or around 2009.[6] According to its president and owner, Thomas Harrison, Michigan Ladder altered the design of the Krause/Climb Tek ladder in at least two respects unrelated to its hinges, and then began manufacturing and selling its ladder under the designation “Climb Pro.”[7]

         This connection, if the plaintiff can introduce evidence and testimony at trial to draw it, suffices to raise the inference of a relationship between the design of the defendant's ladders and the design of the Krause ladder -- and, more specifically, between the design of the hinges on both ladders. Michigan Ladder has offered no evidence in rebuttal. Specifically, Michigan Ladder has not identified any alterations that Climb Tek made to the hinges during the period that it held the design and manufacture rights to the Krause ladder, and has identified only two alterations that Michigan Ladder made to the Climb Tek ladder. Neither of the defendant's alterations -- a change in how the release rod worked and adding an additional stabilizer bar -- affected the hinges.[8] Accordingly, defendant's motion to exclude any and all reference to the Krause ladder is denied, contingent upon plaintiff eliciting evidence to establish this connection. See Fed. R. Evid. 104(b).

         The court turns next to the defendant's more specific request that it exclude any reference to Krause's 1998 recall of certain of its ladders. According to the defendant, Krause recalled its ladders “because of a problem with the coating on the bolt of the hinges that allowed it to slip out when it was locked.”[9] The parties agreed at the final pretrial conference that this issue -- wherein the hinges, having been locked, spontaneously unlock -- is unrelated to that which allegedly caused the plaintiff's accident, wherein the hinges never locked, despite purportedly giving indications to the contrary. The defendant argues, therefore, that evidence of the recall is unfairly prejudicial. See Fed. R. Evid. 403.

         Barrett counters that the recall of the Krause ladders put Michigan Ladder on notice of potential defects in the Krause ladder's hinge design. Given such notice, he argues, Michigan Ladder had a duty to review the design of the hinge mechanism --which, Barrett contends, and the evidence appears to suggest, the defendant did not. To the extent that Barrett seeks to introduce the fact of the recall to establish notice to the defendant of potential defects, the probative value of the evidence outweighs the risk of unfair prejudice, see Fed.R.Evid. 403, and the court will allow it.

         For these reasons, the court denies the defendant's motion in limine to exclude evidence concerning the Krause ladders. This ruling is conditional on the plaintiff's ability to introduce evidence and elicit testimony establishing a connection between the Krause ladders' hinges and the Climb Pro ladder's hinges as discussed supra.

         B. Defendant's notice of false lock problems in Krause ladders[10]

         Barrett seeks to introduce evidence that Michigan Ladder knew or should have known about the false lock issue, which allegedly caused his Climb Pro ladder to collapse. Presuming such knowledge (actual or imputed), he contends that the defendant had a duty to warn its users of this issue, and also to review the hinge design and manufacture to address the problem. He proposes two categories of evidence supporting this theory: (1) other “ladder accidents involving the failure of the hinges to lock when they seemingly click into place and where there is a claim of excessive joint stiffness that contributed to an accident, ”[11] and (2) drafts of a report by the Consumer Product Safety Commission (CPSC) prepared in connection with the Krause ladder recall, which noted the false lock problem that allegedly caused Barrett's accident.[12]

         The court grants this motion as to the draft report and certain of the other ladder accidents, as detailed below, based on the information provided to the court during this pre-trial stage. Also as detailed below, the court may revisit this ruling at trial based on the manner in which the plaintiff attempts to introduce the evidence and the plaintiff's proffer of appropriate foundation.

         1. Krause ladder accidents

         Barrett has collected information regarding or generated during five cases wherein a Krause ladder purportedly experienced the same false lock issue that Barrett alleges caused his accident.[13] Michigan Ladder has moved to exclude this evidence as irrelevant and unduly prejudicial. See Fed.R.Evid. 401-403. The court grants this motion in part and denies it in part. This ruling hinges, however, on the plaintiff's ability to establish the similarity between the Krause ladder's hinges and those in the defendant's Climb Pro ladder, as discussed supra Part II.A. Should Barrett fail to make that fundamental preliminary showing, see Fed.R.Evid. 104(b), the similarity between plaintiff's accident and any involving the Krause ladders will be substantially undermined, and the court will revisit this determination.

         Evidence of prior accidents concerning the same product may be admissible to show the defendant's knowledge of those accidents (which is relevant to at least its duty to warn users of its product), as well as to establish the existence of the complained-of defect, causation, and negligent design. Cf. McKinnon v. Skil Corp., 638 F.2d 270, 277 (1st Cir. 1981). Admissibility of that evidence for those purposes depends on a showing that the “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, 638 F.2d at 277). “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.” Pukt v. Nexgrill Indus., Inc., 2016 DNH 157, 3 (quoting Moulton, 116 F.3d at 27).

         When offered to show “notice or awareness of a dangerous condition, ” however, the requirement of substantially similar circumstances “is relaxed. 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.'” Pukt, 2016 DNH 157, 3-4 (quoting Bado-Santana v. Ford Motor Co., 482 F.Supp.2d 197, 200 (D.P.R. 2007)). However, the plaintiff must be prepared to establish a foundation for the evidence, including “a showing that the evidence related to substantially similar products . . . and a showing that the defendant would have been aware of other accidents.” Serna v. Olde Jackson Vill., Inc., 2015 DNH 159, 4-5 (DiClerico J.) (citing Forest v. Beloit Corp., 424 F.3d 344 (3d Cir. 2005)). Though the court in Serna addressed itself to the foundation necessary for admission of evidence of lack of prior accidents, the same foundational considerations are relevant to the admissibility of evidence of other accidents in this case.

         Plaintiff, as “[t]he party offering the evidence[, ] bears the burden of showing that it is admissible.” McKinnon, 638 F.2d at 277. Upon the court's verbal order at the final pretrial conference, plaintiff filed a list of “other accidents” that he would seek to introduce at trial for this purpose.[14] He cites five lawsuits in which a plaintiff testified in deposition or an expert opined that the Krause ladder suffered from the false locking problem and, more specifically, that one or more users of Krause ladders heard the hinges click even though the hinges were not fully locked.

         The information contained in this filing alone does not permit the court to determine whether Barrett has made the requisite foundational showings. If the lawsuits cited by Barrett involve a claim or finding of substantially the same defect (the false locking condition) in substantially the same product (the Krause ladder) the plaintiff may well satisfy this burden. Accordingly, if the plaintiff seeks to introduce this evidence affirmatively, he should be prepared to lay the appropriate foundations, and the court will evaluate the evidence's admissibility under the “substantial similarity” standard and Federal Rules of Evidence 401-403, 602, and 901.

         At the final pretrial conference, plaintiff's counsel represented that he intended to show documents from these five cases to Michigan Ladder's president and owner to establish the defendant's knowledge (or lack thereof) of the false lock problem in Krause ladders.[15] For this purpose, and subject to an appropriate limiting instruction given by the court if the defendant so requests, see Fed.R.Evid. 105, plaintiff may introduce Czarnecki v. Home Depot, Inc., No. 07-4384, 2009 WL 1560194 (E.D. Pa. June 3, 2009). It is reasonable to conclude that the defendant, had it performed due diligence on claims against Krause ladders, would have encountered this opinion, which was available on a public docket and through reporting services at or around the time that Michigan Ladder acquired the rights to the ladder and well before Barrett's accident.

         Furthermore, though the opinion resolves a motion to exclude expert testimony, it describes the ladder used (a Krause Multimatic, consisting of four sections with three sets of hinges) and the plaintiff's claims (strict products liability following the ladder's collapse after the plaintiff took steps to make sure the hinges were locked), which mirror the ladder and claims at issue in this action. See Czarnecki, 2009 WL 1560194 at *1.

         The plaintiff may not introduce documents from Truitt v. Westlake Hardware, No. 2:14-cv-00065-HEA (E.D. Mo. Filed June 20, 2014). This lawsuit was filed nearly two years after Barrett's accident occurred on September 11, 2012. As such, it could not have provided notice to the defendant of false lock problems in Krause ladders before the date of the accident.

         Nor may the plaintiff introduce documents from Hudson v. Home Depot, No. 03-2-28389 (Wash. Super. Ct. filed June 26, 2003), Schneider v. Home Depot, Inc., No. 4:01-cv-02306 (filed July 9, 2001), or Smith v. Krause, Inc., No. 99-17618 (Fla. Cir. Ct. filed Oct. 14, 1999), on the basis of information presented in plaintiff's notice. The plaintiff references (1) a deposition, (2) an expert report, and (3) an expert deposition, all of which he alleges describe the Krause ladder as falsely locking.[16] The cases appear to have been filed before Barrett's accident, but the court cannot discern the context of the information from the limited description provided by plaintiff's counsel. Thus, the plaintiff has not established the necessary foundation for use of these documents to establish notice to the defendant, as described supra, and their admissibility at trial will depend on whether the plaintiff can establish that foundation.

         2. Consumer Product Safety Commission draft reports

         At the final pretrial conference, the plaintiff represented that he would seek to introduce drafts of a report by the CPSC prepared in connection with the Krause ladder recall, which noted the false lock problem that allegedly caused Barrett's accident. Barrett indicated that his expert witness, Gene Litwin, would testify as to their contents. Michigan Ladder objected.

         Barrett may not introduce these draft reports through Mr. Litwin. “A party seeking to introduce expert testimony at trial must disclose to the opposing party a written report that includes ‘a complete statement of all opinions the witness will express and the basis and reasons for them.'” Gay v. Stonebridge Life Ins. Co., 660 F.3d 58, 62 (1st Cir. 2011) (quoting Fed.R.Civ.P. 26(a)(2)(B)). That report must also disclose “the facts or data considered by the witness in forming” his or her opinions. Fed.R.Civ.P. 26(a)(2)(B)(ii). Failure to comply with this rule may preclude a party from “us[ing] that information or witness to supply evidence . . . at trial, unless the failure was substantially justified or is harmless'” Id. at Rule 37(c)(1); see also Gay, 660 F.3d at 62 (quoting Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 77 (1st Cir. 2009)).

         As Barrett acknowledges, Mr. Litwin did not disclose the CPSC draft reports in his report. Nor did he testify as to his reliance on them during his deposition. Indeed, plaintiff's counsel represented at the final pretrial conference that Mr. Litwin had been unaware of the draft report when he wrote his own report. Barrett has offered no justification for his failure to obtain the documents in advance of the expert report deadline or, upon obtaining them, to seek leave to supplement Mr. Litwin's report. Accordingly, Mr. Litwin is precluded from testifying concerning the draft reports or their contents. See Contour Design, Inc. v. Chance Mold Steel Co., 2011 DNH 154, 9-10, 25 (precluding introduction of expert testimony opinion not disclosed in expert's report and based on information expert did not rely on in preparing report). Nor does the plaintiff's argument that the draft reports fall, generally, within the penumbra of Mr. Litwin's disclosed opinions alter this exclusion. See EnergyNorth Nat. Gas, Inc. v. Century Indem. Co., No. CIV. 99-502-JD, 2005 WL 6762591, at *2 (D.N.H. Feb. 16, 2005).

         To the extent that Barrett seeks to affirmatively introduce the draft CPSC reports as direct evidence to establish the defendant's notice (actual or imputed) of the false lock problem with Krause's ladders by some other means, the court will conduct the ...


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