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In re General Motors LLC Ignition Switch Litigation

United States District Court, S.D. New York

June 9, 2017

IN RE GENERAL MOTORS LLC IGNITION SWITCH LITIGATION
v.
General Motors LLC, This Document Relates To Ward

          OPINION AND ORDER

          JESSE M. FURMAN, United States District Judge:

         [Regarding the Parties' Motions in Limine and the Admissibility of Plaintiff's Other Similar Incident Evidence]

         The next bellwether trial in this multidistrict litigation (“MDL”), brought by Plaintiff Dennis Ward in connection with his accident while driving his 2009 Chevrolet HHR on March 27, 2014, and familiarity with which is presumed, is scheduled to begin on July 10, 2017. Now pending are five disputed motions in limine, to wit:

• Ward's First Motion, which seeks to exclude argument and evidence concerning the fact that he received a traffic citation for the accident at issue, as well as characterizations of the citation as a criminal offense (see Docket No. 3927);[1]
• Ward's Second Motion, which seeks to exclude evidence and argument that he failed to preserve, destroyed, or otherwise spoliated sensing and diagnostic module (“SDM”) data from his car (see Docket No. 3933);
• Ward's Third Motion and New GM's Thirty-Third Motion, [2] which concern the admissibility of two demonstrative videos made by Ward and his son (see Docket Nos. 3924, 3937); and
• Ward's Fourth Motion, which seeks to preclude evidence and argument regarding his history of smoking. (See Docket No. 3941).

         In addition, Ward seeks an advanced ruling that he may introduce certain other similar incident (“OSI”) evidence - namely, evidence concerning sixty other crashes allegedly attributable to the ignition switch defect in certain General Motors cars. (Docket No. 3761 (“Pl.'s OSI Br.”)).

         For the reasons stated below, Ward's First Motion and New GM's Thirty-Third Motion are GRANTED, Ward's Third and Fourth Motions are DENIED, and the Court reserves judgment on Ward's Second Motion pending trial. In addition, Ward's application to admit OSI evidence is GRANTED in part and DENIED in part.[3]

         A. Ward's First Motion in Limine

         In his first motion in limine, Ward argues principally that Arizona law precludes New GM from introducing evidence (or argument) concerning the fact that he was cited for a civil traffic infraction in connection with the accident at issue and ultimately admitted responsibility for a civil traffic violation. (Docket No. 3928, at 5-6). New GM does not appear to dispute that evidence of the citation and Ward's admission of responsibility would be inadmissible under Arizona law, which provides that “an admission of the allegation of a civil traffic complaint or a judgment on the complaint is not evidence of negligence in a civil . . . proceeding.” Ariz. Rev. Stat. Ann. § 28-1599; see also, e.g., Ingrum v. Tuscon Yellow Cab. Co., 642 P.2d 868, 872 (Ariz.Ct.App. 1981) (“The fact of citation or non-citation of a driver … is inadmissible in an action for negligence.”). Instead, New GM contends that, under Erie v. Tompkins, 304 U.S. 64 (1938), the admissibility of Ward's citation and admission of responsibility is a function of federal law - namely, the Federal Rules of Evidence - rather than state law and that federal law allows such evidence “as party admissions and/or pursuant to the public records exception.” (Docket No. 3980 (“Def.'s MIL 1 Opp'n”), at 4-5 (citing cases)).

         The Court concludes that Ward has the better of the argument. Although there is general consensus that the Federal Rules of Evidence ordinarily govern in diversity cases, courts disagree about whether that is because Erie applies or because the Federal Rules of Evidence (at least in their original form) were enacted by Congress. See, e.g., Sims v. Great Am. Life Ins. Co., 469 F.3d 870, 877-81 (10th Cir. 2006) (holding that Erie does not apply, but that the original Federal Rules of Evidence govern in diversity cases because they were enacted by Congress); Feldman v. Allstate Ins. Co., 322 F.3d 660, 666 (9th Cir. 2003) (applying Erie). In either case, though, the overwhelming weight of authority holds that “[w]here a state law excludes certain evidence in order to effect substantive policy considerations, ” such evidence should not be admitted by a federal court sitting in diversity. Sims, 469 F.3d at 881 (emphasis added) (reaching that conclusion on the ground that Rule 401 of the Federal Rules of Evidence itself “acts to exclude the evidence since the proposition for which the evidence is submitted is not properly provable and, therefore, irrelevant to the claim”); see Feldman, 322 F.3d at 666 (reaching the same conclusion because, “[p]ursuant to Erie and its progeny, federal courts sitting in diversity apply state substantive law and federal procedural law”); Hottle v. Beech Aircraft Corp., 47 F.3d 106, 110 (4th Cir. 1995) (same); Potts v. Benjamin, 882 F.2d 1320, 1324 (8th Cir. 1989) (same). More specifically, if the language and policy of a state rule “point to achieving fair, accurate, and efficient resolutions of disputes, the rule is procedural” and does not apply in diversity cases; by contrast, “[i]f . . . the primary objective” of a state rule “is directed to influencing conduct through legal incentives, the rule is substantive” and does. Sims, 469 F.3d at 883.

         Applying those standards here, the Court concludes that the Arizona statute barring admission of a civil traffic complaint or a judgment on the complaint is substantive and thus applies. That is, the purpose of the statute is not “to achieve accuracy, efficiency, and fair play in litigation, without regard to the substantive interests of the parties.” Id. at 882. Instead, the language and policy of the Arizona rule make plain that its “primary objective” is to “influenc[e] conduct through legal incentives, ” id. at 883 - namely, to encourage the quick resolution of traffic citations by allaying motorists' fears that if they pay a fine, that payment will be used against them in later proceedings. See, e.g., 22A Fed. Prac. & Proc. Evid. § 5201 (2d ed.) (“[M]any states have adopted statutes making guilty pleas in motor vehicle prosecutions inadmissible in subsequent civil litigation. The legislators approved these statutes to encourage defendants to plead guilty rather than to turn the traffic court into a battleground or discovery site for ensuing civil litigation.”). It follows that the rule applies in this case and precludes New GM from using evidence of Ward's citation and admission of responsibility to prove his negligence. Cf. Feldman, 322 F.3d at 666-67 (applying California law to exclude recorded conversations); Gardner v. Chrysler Corp., 89 F.3d 729, 736 (10th Cir. 1996) (applying a Kansas statute prohibiting the admission of seat belt nonuse evidence); Potts, 882 F.2d at 1324 (applying an Arkansas statute excluding evidence concerning the failure to secure minors in child seats).

         In arguing otherwise, New GM relies almost exclusively on the Third Circuit's decision in Rain v. Pavkov, 357 F.2d 506 (3d Cir. 1966), which held that a guilty plea to reckless driving was admissible in a diversity action despite a Pennsylvania law to the contrary. (New GM cites several other cases and a treatise as well, but all of those authorities rely, in turn, on Rain. (Def.'s MIL 1 Opp'n 4-5)). But Rain was decided before the Federal Rules of Evidence were enacted and turned, instead, on application of Rule 43(a) of the Federal Rules of Civil Procedure. Under that Rule, evidence that met “any one of [three] prescribed tests [was] admissible in the federal courts. In the event of a conflict between state and federal law, the rule which favor[ed] admissibility . . . [was] followed.” Rain, 357 F.2d at 510. Thus, Rain's analysis and conclusion have only limited applicability and utility today, and the Court declines to follow the decision. Instead, applying the more modern federal law discussed above, the Court concludes that the Arizona statute barring evidence of a civil traffic complaint and a judgment on such a complaint applies to this case. It follows that Ward's first motion in limine must be and is granted.

         B. Ward's Second ...


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