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In re General Motors LLC Ignition Switch Litigation

United States District Court, S.D. New York

June 30, 2017

General Motors LLC, 14-CV-8317 (JMF) This Document Relates To: Ward


          JESSE M. FURMAN, United States District Judge.

         [Regarding Categorical Deposition Designation Disputes and the Redaction or Admissibility of the Valukas Report and the Statement of Facts]

         The next bellwether trial in this multidistrict litigation (“MDL”), brought by Plaintiff Dennis Ward and familiarity with which is presumed, is scheduled to begin on July 10, 2017. As in prior bellwether trials, the parties are vigorously litigating the admissibility of evidence concerning the long and complex history leading to New GM's 2014 recalls of certain vehicles equipped with defective ignitions switches and other accidents attributable to defective ignition switches. This case, however, contains a wrinkle that the earlier cases did not: Ward's vehicle did not contain the ignition switch at the center of that long and complex history (known as the “'423 switch” after its part number: 10392423), which New GM has conceded was defective. Instead, it contained a different switch (known as the “'190 switch” after its part number: 15886190), which was installed in model year 2008 and later vehicles. The '190 switch included a longer and stronger detent spring and plunger assembly, which allegedly resulted in the switch having a higher torque resistance than the '423 switch. In New GM's view, that cured the problems with the '423 switch. In any event, whereas the company (wisely) concedes that the '423 switch was defective, it does not concede the same as to the '190 switch.

         In light of this wrinkle, New GM has aggressively argued for exclusion of most, if not all, evidence concerning the history leading up to the 2014 recalls and accidents involving the '423 switch. At times, Ward has taken an equally aggressive position at the opposite end of the spectrum, more or less seeking to introduce all of the evidence that was introduced in the earlier trials on the ground that the '190 switch, while perhaps better, suffered from the same basic defects as the '423 switch. In multiple rulings, the Court has adopted a middle-ground position between these two extremes. (See, e.g., Docket Nos. 3947, 3972, 4065, 4104). On the one hand, the Court has explained, the history of the '423 switch is plainly relevant. It is inextricably intertwined with, and provides context for, the creation of the '190 switch. And it tends to show that New GM was long on notice of - and ignored or downplayed - the precise problems that Ward alleges were in his switch and allowed for inadvertent rotation. On the other hand, the Court has stressed that “the focus of the upcoming trial should remain fixed on whether the 190 switch in Plaintiff's car was defective (and caused Plaintiff's accident)” and, thus, “that evidence concerning the 423 switch should be limited on Rule 403 grounds.” (Docket No. 4104).

         The Court hoped (perhaps overly optimistically) that, with this guidance, the parties could narrow, if not eliminate, their disagreements about the evidence to be admitted at the upcoming trial - and that the Court would not be put in the position of having to resolve dozens of disputes over individual excerpts of documents, let alone set (potentially crude) limits on how much evidence Ward could offer concerning these matters. But the parties' briefing on two issues - their categorical disputes concerning deposition designations and their disputes over the admissibility or redaction of the Valukas Report and the Statement of Facts (“SOF”) (familiarity with both of which is assumed) - makes clear that their visions of what this trial should look like remain far apart. (See Docket Nos. 4098, 4099, 4130, 4137, 4139). This Memorandum Opinion and Order addresses the disputes presently before the Court and will hopefully provide the parties with enough guidance to apply the Court's views to other disputed matters, including their more specific disputes over deposition designations.

         To that end, the Court begins by articulating some core conclusions that will guide its rulings below and going forward (to the extent that the parties cannot themselves agree on how to apply the conclusions to specific depositions or items of evidence):

• As the Court has explained before, Ward should be permitted to present evidence concerning the history of, and accidents relating to, the '423 switch to prove that New GM (and Old GM before it) was on notice of the defect or defects alleged here. (Docket No. 4065, at 17-18). More specifically, the Court agrees with Ward that such evidence is relevant to prove, among other things, that GM knew that mounting the ignition low on a steering column was potentially dangerous due to the possibility of “knee-key” interactions; knew that the use of a slotted key and heavy keychain increased the risk of inadvertent switch rotation; knew (or should have known) that having a “single point of failure” was problematic; and failed to view the risk of moving stalls as a safety problem. (Docket No. 4130, at 2-3; Docket No. 4139, at 4-5).
• As important as evidence concerning the '423 switch may be to the jury's understanding of the full story, Ward should not be permitted to make this trial about the '423 switch. To that end, and because evidence concerning the '423 switch is not admissible to prove the existence of a defect or causation (see 4065, at 15-17), evidence concerning the '423 switch and accidents involving the '423 switch should be significantly more limited than it was in the first two bellwether trials. So too, the Court will not permit Ward to introduce “excessive evidence of airbag non-deployment” given his concession that his crash did not exceed the deployment threshold. (Docket No. 4065, at 18-19).
• While evidence of the fact that the '423 switch caused deadly accidents has some probative value (with respect to notice and GM's culpability), that value is more limited than it was in the first two bellwether trials given that Ward's car contained a different switch. At the same time, the risk of unfair prejudice arising from such evidence is substantially greater here, as there is a danger that the jury could seek to punish New GM for bad conduct unrelated to Ward and the '190 switch. To that end, while the Court will permit (within reason) generic references to the fact that some of the OSIs resulted in deaths and serious injuries, it will not permit Ward to introduce details relating to the accidents or victims.
• Ward should not be limited to introducing evidence concerning the '423 switch through any one means. That is, the Court will permit him to introduce portions of the Valukas Report, the SOF, and deposition testimony, even if there is some duplication among this evidence, mindful that there may be subtle, but important, differences between different evidence (see, e.g., Docket No. 4130, at 3-4 (discussing an arguable discrepancy between the SOF and the Valukas Report)) and that documentary evidence and testimonial evidence may not be equally effective for all jurors.
• To avoid wasting time, however, cumulative evidence should be kept to a minimum.
• It is important to ensure that the jury understands the distinction between the '423 switch and the '190 switch. To that end, the Court is prepared to give (1) a preliminary instruction about the two switches to the jury after it has been empaneled; (2) to give an appropriate instruction when the Valukas Report and SOF are admitted; and (3) to give curative instructions as appropriate during trial (including, for example, if deposition testimony is admitted and it is unclear from the testimony to which switch it refers).[1]
• The interests in not wasting time, limiting cumulative evidence, and avoiding confusion of the two switches counsel in favor of keeping the amount of deposition testimony concerning the '423 switch to a minimum. At the same time, New GM should not be permitted to exclude otherwise admissible evidence concerning the '423 switch by, on the one hand, forcing Ward to use videotaped deposition testimony in lieu of live testimony - thereby preventing the Court or Ward from clarifying when a witness is testifying about the '423 switch as opposed to the '190 switch - and, on the other hand, pointing to the fact that a witness does not specify the switch to which he or she is referring.


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