witness who is scheduled to testify at trial. Nevertheless, the report is hearsay.
The report is not a business record under Rule 803(6). It is not a record of events made at or near the time of the event, involving Arndt's regularly conducted business activity.
The fact that the report was submitted to the National Highway Traffic Safety Administration ("NHTSA") does not make it a public record under Rule 803(8), because it was not prepared by a government agency.
The report is not admissible as a prior consistent statement under Rule 801(d)(1)(B), because it was not offered to rebut a charge of recent fabrication or improper influence or motive. It is not admissible as an adoptive admission because it is not being offered against the party who adopted it.
Finally, the report is not admissible as a basis for Mark Arndt's expert opinion. The report is his opinion. Arndt may testify about some things in the report, but the report itself is inadmissible.
F. Motion to Exclude Evidence of GM's Post-Manufacture Conduct
Defendant moved to exclude evidence of its conduct after decedent's vehicle was manufactured. This evidence allegedly relates to design changes, internal tests and studies performed by GM, and internal communications within GM.
This motion is granted in part and denied in part. The evidence would be admissible only on the failure-to-warn claim, if a proffer by plaintiff shows that it is sufficiently relevant to defendant's knowledge of alleged defect.
Plaintiff concedes that evidence of post-manufacture conduct is inadmissible on a negligence claim, but contends that it is relevant to the issue of defect on a strict liability claim.
In Caprara v. Chrysler Corp., 52 N.Y.2d 114, 436 N.Y.S.2d 251, 417 N.E.2d 545 (1981), the court said that evidence of subsequent design changes could be admitted in a strict liability case, but Caprara involved an alleged manufacturing defect. The New York Court of Appeals subsequently held that such evidence is inadmissible in a strict liability design defect case. Haran v. Union Carbide Corp., 68 N.Y.2d 710, 506 N.Y.S.2d 311, 497 N.E.2d 678 (1986). The court in Haran said that postmanufacture, preaccident design changes are admissible only: in a design defect case to show feasibility (if defendant contests feasibility); or in a failure-to-warn case to show failure to warn of a known risk or defect.
Here, GM conceded the feasibility of alternative designs, so this evidence is inadmissible on the design defect claim.
The evidence is admissible only on the failure-to-warn claim, and clear cautionary instructions for the jury will be required.. See, e.g., Liriano v. Hobart Corp., 1996 U.S. Dist. LEXIS 7727, No. 94 CIV 5279, 1996 WL 304337 *7 (S.D.N.Y. June 6, 1996) (evidence that defendant began putting warning on machine one year after machine that injured plaintiff was manufactured was relevant to demonstrate defendant's knowledge that the guard on its machine could be removed and that this presented a danger to consumers; evidence "was highly probative and was properly admitted").
However, plaintiff would first have to present evidence that defendant was on notice of a danger or defect; design modifications alone are not evidence that defendant knew that the original design was inadequate. Haran, 68 N.Y.2d at 712 (evidence of modification to warning label not admissible on defendant's continuing duty to warn, since there was no evidence that defendant had been put on notice of danger or defect; "clearly, the modification itself cannot be received as an admission that defendant knew that the original warning label was inadequate"). The simple fact that a design was changed, without some evidence of the reason for the change, is not probative of whether defendant believed that the original design was defective.
I also note, however, that defendant's citation to In re Joint Eastern and Southern District Asbestos Litigation, 995 F.2d 343, 345 (2d Cir. 1993), for the proposition that subsequent design changes are inadmissible "in all product liability actions" is inapposite, since that case applied Rule 407, which does not apply to preaccident conduct. See In re Air Crash Disaster, 86 F.3d 498, 531 (6th Cir. 1996) (Rule 407 does not apply to postmanufacture, preaccident measures); U.S. Fidelity & Guaranty v. Baker Material Handling Corp., 62 F.3d 24, 27 (1st Cir. 1995) (same); Cates v. Sears, Roebuck & Co., 928 F.2d 679, 686 (5th Cir. 1991) (same); City of Richmond, Virginia v. Madison Mgmt. Group, 918 F.2d 438, 460 (4th Cir. 1990); Huffman v. Caterpillar Tractor Co., 908 F.2d 1470, 1481 (10th Cir. 1990) (same).
I am also unpersuaded by defendant's contention that the evidence should be excluded because plaintiff alleges that GM knew at the time of manufacture that the vehicle was defective. It is well established that a party may pursue alternative theories. See AT&T Co. v. North American Indus. of New York, 772 F. Supp. 777, 786-87 (S.D.N.Y. 1991), amended in part on other grounds, 783 F. Supp. 810 (S.D.N.Y. 1992). Thus, plaintiff could allege that GM knew of the defect at the time of manufacture, or in the alternative, the GM learned of the defect after the vehicle was manufactured. Secondly, even if plaintiff alleged that GM knew of the defect at the time of manufacture, plaintiff could also attempt to show that subsequent events increased the level of GM's awareness, or that events showed the defect to pose a greater risk to drivers than GM had previously believed. Thus, the evidence is relevant to GM's continuing duty to warn of subsequently discovered defects.
G. Motion to Exclude Deposition Testimony of Theodore Kashmerick
Defendant moved to exclude testimony that Theodore Kashmerick, now deceased, gave in another case, Elwell v. General Motors Corp., which involved an employment dispute between one Ronald Elwell and GM. Kashmerick, who was a GM employee from 1953 to 1989, testified that around 1980 or 1981, unidentified persons in "the legal group" at GM told him not to keep so many documents around "because sometimes it's controversial," and that they came and "took every damn thing they thought was a problem." Allegedly some of the documents related to truck design, but Kashmerick did not identify specific documents or their contents.
This motion is granted. Kashmerick's testimony is inadmissible hearsay not within any exception.
The unavailable-witness exception of Rule 804 does not apply. That exception only applies if the party against whom testimony is offered "had an opportunity and similar motive" to examine the witness. The issues in this case are different from those in Elwell. Although Elwell alleged that GM had temporarily concealed certain information from him, destroying documents was not an issue in that case. Therefore, GM did not have a similar motive to cross-examine Kashmerick as they would in this case. See Moseley v. GMC, 213 Ga. App. 875, 880, 447 S.E.2d 302 (Ct. App. Ga. 1994) (reaching same conclusion based on state rule of evidence similar to Rule 804).
Plaintiff's argument that the testimony is admissible under Rule 804(b)(5) based on its "circumstantial guarantees of trustworthiness" is without merit. Kashmerick was vague on details, and he himself said that his "memory wasn't too damn good any more."
H. Motion to Exclude References to the Closed Investigation of the National Highway Traffic Safety Administration ("NHTSA")
Defendant moves to exclude evidence concerning an investigation of the C/K truck fuel system design by the NHTSA.
In 1992, a private consumers' group petitioned the NHTSA to investigate the C/K trucks' fuel system design. After an investigation, the NHTSA technical staff found no safety defect. Transportation Secretary Federico Pena then overruled the staff and issued a preliminary finding that a safety defect existed. Under the NHTSA's regulatory scheme, that finding remained tentative pending a public hearing on the matter.
GM then sued Pena, challenging his authority to issue his finding. Prior to the public hearing on the findings, Pena agreed to settle the case with GM and close the investigation. As a result, a "final" decision was never issued.
The motion to exclude this evidence is granted in part and denied in part. Rule 803(8) provides a hearsay exception for "records, reports, statements, or data compilations, in any form, of public offices or agencies ..." concerning matters which the agency had a duty to report.
As to those portions of the report finding that the C/K fuel system was defective, would cause unnecessary deaths, etc., the findings were tentative and might have been revised or withdrawn after a hearing. For purposes of Rule 803(8), then, I do not believe that there ever was a true "finding" in that regard.
Regarding investigative reports, "even if the opinion seems to offer valuable information to the jury, it must be excluded if it is unreliable." 4 Weinstein's Evidence at 803-286 (citing City of New York v. Pullman Inc., 662 F.2d 910, 914 (2d Cir. 1981) (upholding exclusion of investigative report by federal agency in part because it was interim report subject to revision, and was not a final finding), cert. denied, 454 U.S. 1164 (1982)). In making that determination, the court may consider whether a hearing was held in connection with investigation. Weinstein at 803-287. See also Cramer v. Kuhns, 213 A.D.2d 131, 630 N.Y.S.2d 128, 131 (3d Dep't 1995) (results of NHTSA motorcycle study inadmissible under state's public-document exception, since study was "preliminary in nature").
Some matters contained in the report may be admitted if they are purely factual (such as test results), provided that a proper foundation is laid.
Although plaintiff stated that she sought only to introduce "findings," and not "conclusions," some things labeled "findings" in the report are clearly conclusions: for instance, the Engineering Analysis Report makes "findings" that there would be future deaths involving GM trucks that would not have occurred if the drivers had been driving Ford trucks, and that GM knew when it designed the C/K trucks that the design increased the risk of post-crash fires. These are inadmissible.
Nor would plaintiff be allowed to refer to NHTSA's "investigation" of the C/K trucks. Plaintiff could elicit the fact that NHTSA had conducted certain tests, but the fact that an investigation occurred would be unduly prejudicial to GM, and would prove nothing.
I. Motion to Preclude Elwell from Testifying
Defendant moved to preclude Ronald Elwell from testifying for plaintiff. Elwell is a former GM employee who was a member of GM's Engineering Analysis Group for eighteen years. This group assisted GM attorneys in the technical defense of product liability suits. Consequently, Elwell testified frequently on behalf of GM.
Elwell and GM terminated their relationship in 1989 after an employment dispute, and Elwell began testifying against GM in various cases.
Elwell also sued GM in a Michigan state court for wrongful discharge. GM counterclaimed, alleging that by testifying against GM, Elwell was wrongfully disclosing privileged and confidential information. The parties eventually negotiated a settlement that, among other things, permanently enjoined Elwell from testifying in any product liability case involving GM.
On this motion in limine, GM sought to enforce the Michigan injunction in this action. Resolution of this matter turns on whether this Court will give full faith and credit to the Michigan injunction.
After considering the both parties' arguments on this issue, as well as the decisions of other courts that have ruled on this issue, I am persuaded by the reasoning contained in the numerous authorities submitted by the plaintiff, e.g., Kibler v. General Motors Corp., C94-1494R (W.D.Wash. July 10, 1996); Hannah v. General Motors Corp., 93-1368 (D.Ariz. May 30, 1996); Bishop v. General Motors Corp., 94-286-S (E.D.Okla. June 29, 1994); Williams v. General Motors Corp., 147 F.R.D. 270 (S.D.Ga. 1993), and I find that the appropriate course is to not enforce the Michigan injunction and to permit Elwell to testify at trial.
New York courts recognize that the Full Faith and Credit Clause requires a state to give full effect to the public acts, records, and judicial proceedings of other states. Farmland Dairies v. Barber, 65 N.Y.2d 51, 55, 489 N.Y.S.2d 713, 478 N.E.2d 1314 (1985). However, "the Full Faith and Credit Clause does not require a State to apply another State's law in violation of its own legitimate public policy." Williams, 147 F.R.D. at 272 (quoting Nevada v. Hall, 440 U.S. 410, 422, 59 L. Ed. 2d 416, 99 S. Ct. 1182 (1979)).
New York has a "strong public policy favoring full disclosure." Spectrum Sys. Int'l Corp. v. Chemical Bank, 157 A.D.2d 444, 447, 558 N.Y.S.2d 486 (1st Dep't 1990), aff'd as mod. on other grounds, 78 N.Y.2d 371 (1991). Because the Michigan injunction precludes Elwell from offering any testimony at all, it violates New York's public policy in favor of full disclosure. Therefore, the Full Faith and Credit Clause does not require this Court to enforce the Michigan injunction.
I note that I am familiar with the Eighth Circuit's decision enforcing the Michigan injunction in Baker v. GMC, 86 F.3d 811 (8th Cir. 1996), and I decline to adopt its approach to this issue. Accordingly, Elwell would be permitted to testify to any relevant non-privileged matters.
Plaintiff's motions to preclude evidence of defendant's compliance with federal safety standards and to preclude evidence of industry practice are denied. Plaintiff's motion to preclude evidence of the overall safety of the C/K series trucks and evidence of the number of accident-free miles driven by C/K series trucks is granted in part and denied in part. Plaintiff's motions to preclude evidence of decedent's intoxication and to preclude evidence of the fact that decedent was not wearing a seat belt are denied.
Defendant's motion to preclude references to defendant's financial condition or profits is granted in part and denied in part. Defendant's motion to preclude references to a privileged internal investigation is granted. Defendant's motion to preclude plaintiff from offering or eliciting testimony regarding legal standards is granted. Defendant's motions to bifurcate and to preclude evidence or argument regarding plaintiff's compensatory damages unless and until the jury determines that such damages are warranted are denied. Defendant's motion to exclude the report by Arndt & Associates is granted. Defendant's motion to preclude evidence of defendant's post-manufacture conduct is granted in part and denied in part. Defendant's motion to exclude the deposition testimony of Theodore Kashmerick is granted. Defendant's motion to preclude references to the closed investigation of the National Highway Traffic Safety Administration is granted in part and denied in part. Defendant's motion to preclude Ronald Elwell from testifying is denied.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
October 21, 1996.