United States District Court, W.D. Washington, Seattle
NICLAS FOSTER, as Personal Representative of the Estate of MEIKE FOSTER, Plaintiff,
AMERICAN HONDA MOTOR COMPANY, INC., a foreign corporation, et al., Defendants.
ORDER RE: EVIDENTIARY HEARING REGARDING SIMILAR
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the parties' request for
an evidentiary hearing and significant briefing on what is
construed as early motions in limine to address the
admissibility of similar car fire incidents involving the
vehicle model in question in this case, a 2014 Honda CR-V,
and to address the admissibility of testimony from survivors
of similar car fires. See Dkts. #49, #51, #61, #63,
plaintiff attempts to introduce evidence of other incidences
or accidents as direct proof of a design defect or causation
in a products liability case, he or she has the burden of
establishing “substantial similarity” between the
other incidents and the incident at issue. Daniel v.
Coleman Co. Inc., 599 F.3d 1045, 1048 (9th Cir. 2010);
Cooper v. Firestone Tire & Rubber, 945
F.2d 1103, 1005 (9th Cir. 1991). The rule rests on the
concern that evidence of dissimilar accidents lacks the
relevance required for admissibility under FRE 401 and 402.
Cooper at 1105. Minor or immaterial dissimilarity
does not prevent admissibility. White v. Ford Motor
Co., 312 F.3d 998, 1009 (9th Cir. 2002).
argue that for other incidents to be offered to show
causation, the proponent of the evidence must demonstrate a
“high degree of similarity.” See Eisenbise v.
Crown Equipment Corp., 260 F.Supp.3d 1250, 1265 (S.D.
Cal. 2017). Plaintiff argues that the requirement for
substantial similarity should be relaxed when the evidence of
other accidents is only submitted to prove notice or
awareness of the potential defect as opposed to trying to
prove the existence of the dangerous condition. See Pau
v. Yosemite Park and Curry Co., 928 F.2d 880, 889 (9th
clarity, the Court will consider the incidents at issue as
described by Plaintiff's expert witness. Both parties
refer to the incidents as they are listed by Mr. Arendt. From
an original 60 incidents of spontaneous fire in 2012-2016
Honda CR-Vs produced by Defendants, Mr. Arendt created a list
of 17 incidents “that he considers substantially
similar to the Foster fire.” Dkt. #51 at 4; see
also Dkt. #53-5 (table of 17 incidents).
Court agrees with Plaintiff that those incidents occurring
substantially prior to the Foster fire arguably show notice
or awareness of the potential defect and that this serves as
an additional reason to admit into evidence. The Foster fire
occurred the day before Thanksgiving 2014. Arendt Incidents
1-4 occurred substantially prior; incident 5 occurred only
two weeks prior. See Dkt. #53-5.
those incidents occurring after the Foster fire, Plaintiff is
essentially arguing that these incidents are helpful for
showing causation. Plaintiff and Defendants have different
theories as to what caused the Foster fire and both theories
will be presented to the jury. Defendants are free to argue
that the evidence supports their theory and not
Court has reviewed the incidents, the testimony of Mr.
Arendt, and the briefing submitted by the parties and
concludes that incidents 1, 3, 5 and 8 are substantially
similar to the circumstances of the Foster fire as argued by
Plaintiff and are therefore admissible. These incidents point
to organic material trapped in roughly the same area of the
vehicle at issue in this case as a potential source of fire.
Defendants appear to concede that these incidents are the
most likely candidates for substantial similarity, but argue
that “it is undisputed that, unlike Ms. Foster's
CR-V fire, fires #1, 3, 5, and 8 on Mr. Arndt's list did
not involve vehicles parked off road over the top of organic
debris on the ground.” Dkt. #63 at 5. If these
incidents involved vehicles parked off road over organic
debris, they would not only be substantially similar they
would be functionally identical; such is not required for
admissibility. Defendants remaining arguments to exclude
these incidents go to the weight of the evidence. The Court
agrees with Defendants that little is known about the causes
of the fire in incidents 2 and 4, that incidents 6, 7 and 11
have evidence of organic material being the source of the
fire, but this evidence is purely speculative, and that the
remaining incidents do not adequately point to organic
material as the source of the fire.
to the question of the admissibility of “evidence of
emotional pain and suffering from survivors of similar
incidents, ” the Court finds that this evidence is on
its face more prejudicial than probative and that Plaintiff
has failed to provide the Court with an adequate legal basis
for its admissibility. The Court agrees with Defendants that
Wheeler v. John Deere Co., 862 F.2d 1404 (10th Cir.
1988) does not stand for the proposition that such testimony
can be offered to demonstrate the emotional pain and
suffering of Ms. Foster in this case. See Dkt. #63
at 5-6. This evidence will be excluded under FRE 403.
reviewed the relevant briefing and the remainder of the
record, the Court hereby finds and ORDERS that Arendt
Incidents 1, 3, 5, and 8 are admissible for the reasons
stated above. The remaining incidents cited by Plaintiffs are
excluded under FRE 403. Evidence of emotional pain ...