Ahlberg v. Chrysler – Eighth Circuit Limits Evidence of Prior Litigation and Product Recalls and Sets Tough Standard for Former Employee “Expert” Testimony
Plaintiffs often seek to expand the scope of admissible evidence far beyond that necessary to prove the elements of their case. They do so because proving the elements of a product liability claim can sometimes be more difficult than attempting to score jury points with evidence of retrofits, recalls, prior lawsuits, customer complaints and former employee expert testimony – evidence that is often more prejudicial than probative. Plaintiffs also use this type of evidence to pressure defendants, who prefer to avoid the public airing of dirty laundry and risk of negative media exposure, into settlement. Defendants must aggressively respond to these tactics. They can do so with motions in limine, Daubert1 motions or other motions challenging expert testimony and focused objections. And they can now use the recent Eighth Circuit decision in Ahlberg v. Chrysler Corp., 481 F. 3d 630 (8th Cir. 2007), for support.
The facts of Ahlberg, a wrongful death action, deserve attention. After leaving a 28-month-old child in a 1999 Dodge Ram pickup truck with the engine running, the decedent was killed while trying to stop the truck from rolling downhill. Allegedly the boy was able to shift the gear out of park and into reverse. The estate and survivors sued Chrysler – the vehicle’s manufacturer – and alleged all of the typical product liability claims.2 But the crux of the claims was that the failure to equip the truck with a brake-shift interlock (BSI) device – either originally or through a retrofit program – was negligent. A BSI device requires the driver to step on the brake before shifting out of park to prevent accidental acceleration. The plaintiffs attempted to use evidence of retrofits, recalls, prior lawsuits, customer complaints and a former employee expert to prove their claims. The trial judge, however, excluded all of this evidence. The jury subsequently returned a verdict for Chrysler on all counts. On appeal, the Eighth Circuit affirmed.
Exclusion of Evidence of Retrofits, Recalls, Prior Lawsuits and Complaints
Two Federal Rules of Evidence serve as the gatekeepers against the entry of certain types of evidence. Rule 401 defines “’relevant evidence’ as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” And, even if evidence is relevant, it may be excluded pursuant to Rule 403 “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Importantly, the application of these rules rests squarely within the trial court’s discretion, which will not be reversed absent a clear and prejudicial abuse of discretion. Id. at 632. And the analysis is fact intensive. Accordingly, it is crucial to win evidentiary battles before the trial judge because reversing an evidentiary ruling on appeal is very difficult (of course, as demonstrated in Ahlberg, it will be equally difficult for a plaintiff to challenge the exclusion of evidence.)
Exclusion of Retrofit Evidence
The plaintiffs in Ahlberg sought to admit evidence of retrofits performed by Chrysler on Jeep Cherokees in 1996 – even though their case involved a 1999 Dodge Ram pickup truck. The plaintiffs argued the retrofit evidence was admissible to prove numerous purported points, including notice, concealment, negligent design, dangerous condition and failure to warn. But the trial court excluded the retrofit evidence. It did so primarily because the evidence involved an entirely different vehicle. Moreover, the retrofit evidence was not relevant to prove feasibility of the retrofit, since Chrysler stipulated to feasibility. Thus, the retrofit evidence had limited probative value that was substantially outweighed by the danger of unfairly prejudicing, confusing and misleading the jury. Accordingly, for this type of retrofit evidence to potentially be admissible it must concern the same or substantially similar model as the product at issue or be used to prove some other relevant element, like feasibility. To exclude this type evidence, consider limiting the issues through stipulation. By stipulating to a relatively innocuous fact (i.e., feasibility), potentially devastating evidence can be excluded. Notably, “retrofit” was used interchangeably with “recalls” in this case, so the same analysis should apply to recall evidence.
Prior Lawsuits and Customer Complaints
The plaintiffs also attempted to use evidence of prior lawsuits and customer complaints3 concerning accidents involving Chrysler vehicles that lacked BSI devices. The evidence was properly excluded because no showing of substantial similarity was made. Notably, the trial judge determined that for any prior accident to be substantially similar it had to involve (1) a Jeep or Dodge truck with an automatic transmission manufactured between 1990 and 1999, (2) with a key left in the ignition, and (3) a child under age four. This standard was affirmed.
A party may offer evidence of prior accidents to show notice, causation, feasibility of correction, or magnitude of danger if a showing of substantial similarity is made. See, Drabik v. Stanley-Bostitch, 997 F.2d 496, 508 (8th Cir.1993). Even though the plaintiffs argued that the trial judge’s substantial similarity standard was too restrictive, the Eighth Circuit noted that it was broader than the standard used in other cases, because it permitted the introduction of accidents involving different trucks (by allowing Jeeps as well as Dodge trucks).
Examples of more restrictive substantial-similarity standards can be found in Lovett v. Union Pacific Railroad, 201 F.3d 1074 (8th Cir.2000), and Lewy v. Remington Arms, 836 F.2d 1104 (8th Cir.1988).
- In Lovett, a train collided with a 1985 Jeep Cherokee at a railroad crossing, and the substantial similarity test applied there required that evidence of other accidents (1) involve a 1985 Cherokee, (2) in a collision with a locomotive, (3) at a railroad crossing, (4) resulting in the Cherokee rolling over, (5) in a similar topographical area, and (6) at similar speeds to satisfy the substantial similarity requirement.
- In Lewy, the Eighth Circuit reversed the trial court’s admission of prior accident evidence, because the other accidents did not involve the same model rifle as that at issue. Arguably, an equally narrow substantial similarity standard should be used when analyzing the admissibility of prior accident and complaint evidence.
Potential Discovery Application
Discovery is limited to material relevant to any claim or defense and must be reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). Plaintiffs often seek discovery concerning retrofits/recalls, prior accidents and complaints. The Ahlberg decision can be used as persuasive authority to protect against discovery of these matters unless the requesting party can show that this evidence could reasonably be admissible at trial. This requires a showing of substantial similarity, which must be narrowly tailored. Furthermore, strategic stipulations should be considered – like stipulating to feasibility – which may render otherwise admissible evidence irrelevant.
Exclusion of Former Employee “Expert” Testimony
Federal Rule of Evidence 702 governs experts and provides that “a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” The factors to consider when making a determination under Rule 702 are whether the expert’s theory or technique (a) can be and has been tested, (b) has been subjected to peer review and publication, (c) has a known or potential rate of error, and (d) has gained general acceptance in the relevant community. Daubert, 509 U.S. at 592-93.
A common tactic was attempted by the plaintiffs in Ahlberg – the plaintiffs tried to use a former Chrysler employee as an expert. The plaintiffs had described the former employee “expert” as an engineer – despite the fact that he had no degree in engineering – because he had worked with and managed engineers and was familiar with technical issues. His purported “expertise” was in the management of safety issues at Chrysler. And he claimed to have personally retrofitted Chrysler vehicles with BSI devices that he made himself. To bolster their expert, the plaintiffs asserted that the BSI device was not complicated and the only necessary qualification was to understand how it worked and the risk involved to a vehicle without one. The trial court, however, rejected the plaintiffs’ attempts.
After a hearing, the expert was excluded, because the expert used no appreciable methodology as required by Daubert and its progeny. Moreover, the purported “peer review” conducted by the expert’s former coworkers was held to be insufficient. Otherwise, the court noted, any employee could arguably be considered an expert based on the fact that he worked with others. The plaintiffs argued that their expert’s opinions were generally accepted in the community, but this was unpersuasive to the court, because a particular methodology is required and not mere reliance on general engineering principles.
Therefore, prior employment within an industry alone is insufficient to qualify an individual as an expert. The expert must have sufficient education and practical experience to back up his claimed expertise. The expert must also utilize reliable methodology and techniques and outside peer review of that methodology is required. When a former employee is offered as an expert, a red flag is raised and the expert’s qualifications should be particularly scrutinized. And when a proposed expert’s sole qualification is his prior employment, a motion challenging the testimony should always be considered.
By broadly discovering and seeking to admit at trial information on retrofits/recalls, prior lawsuits, complaints and the testimony of defendants’ former employees as experts, plaintiffs raise the cost of litigation and seek to pressure defendants into settlement. To respond, defendants should, when appropriate, stipulate to certain undisputed facts and also seek to limit discovery of this prejudicial information and aggressively object to its use at trial. Ahlberg can be used as an important tool to do so.
1 Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993).
2 The plaintiffs’ complaint alleged causes of action for negligent design, manufacture, inspection, testing and distribution; failure to warn, both before and after the sale; fraudulent concealment of the dangerous defects; and sale in an unreasonably dangerous condition.
3 Note that customer complaints are also properly excluded as hearsay.