Motion to exclude evidence of statistical analysis

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Motion to exclude evidence of statistical analysis

Postby Administrator » Sun Nov 09, 2014 1:28 pm

Motion to exclude evidence of statistical analysis


[Attorney name, address]

Bar Number: [ ]

Attorney for PLAINTIFF

[Court Name]

[plaintiff's name], ) CASE NO.: [ ]
)
Plaintiff, ) MOTION IN LIMINE TO
) EXCLUDE DEFENDANT'S
vs. )
INTERNAL STATISTICAL
) REPORT; MEMORANDUM
) OF POINTS AND
) AUTHORITIES
[defendant's name], )
) TRIAL:
Defendant. ) TIME:
_______________________________ ) DEPT: Honorable [ ]



TO: ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that the plaintiff hereby moves this Court for an order excluding any and all evidence, references to evidence, testimony or argument relating to an internal report prepared by the defendant entitled “Seatback Failure: A Statistical Report,” dated May 4, 1999.

This motion is made under the provisions of Federal Rule of Evidence 403 and 401 and supporting case law; and is based on the attached Memorandum of Points and Authorities, the pleadings and papers on file in this action, and upon such of the argument and evidence as may be presented prior to or at the hearing of this matter.

Dated: [ ]


MEMORANDUM OF POINTS AND AUTHORITIES



1. PRELIMINARY STATEMENT


This is a products liability action arising from a failed “seatback” on the plaintiff's 1996 Ranchster automobile. The underlying accident occurred on February 2, 1998, when plaintiff's vehicle, which was stopped at a red light, was rear-ended by a mid-sized sedan at a speed of approximately 35 miles. As a result of the accident, the plaintiff's driver-side seatback failed and threw the plaintiff into the rear seat, breaking the plaintiff's C-2 vertebrae.

The issue raised by this motion relates to an internal report prepared by the defendant automobile manufacturer entitled “Seatback Failure: A Statistical Report” (“Report”). This Report is a compilation of repair records for the 1997 and 1998 model years of the Ranchster vehicle, analyzing seatback failure in rear-end accidents at speeds from 1-15 miles per hour. Not surprisingly, this self-serving document, prepared in anticipation of this litigation, shows no seatback failure at such low speeds.

By this motion, the plaintiff seeks to exclude the Report as irrelevant, confusing and prejudicial.

2. THIS COURT MAY EXCLUDE IRRELEVANT EVIDENCE


Federal Rule of Evidence 402 states, “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.” Relevant Evidence is defined by Federal Rule of Evidence 401 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.” See Huddleston v. U.S., 485 U.S. 681, 682-92, 108 S. Ct. 1496, 99 L. Ed. 2d 771, 25 Fed. R. Evid. Serv. 1 (1988); U.S. v. Brandon, 17 F.3d 409, 443-46 (1st Cir. 1994) (rejected by, U.S. v. Stockheimer, 157 F.3d 1082 (7th Cir. 1998)).

Evidence may be properly excluded where not relevant to matters at issue. See U.S. v. De Peri, 778 F.2d 963, 973, 19 Fed. R. Evid. Serv. 256 (3d Cir. 1985); Williams v. Board of Regents of University System of Georgia, 629 F.2d 993, 998-1000 (5th Cir. 1980); Paschal v. Flagstar Bank, 295 F.3d 565, 581, 59 Fed. R. Evid. Serv. 875, 2002 FED App. 0239P (6th Cir. 2002). In the present case, defendant's Report is clearly irrelevant and should be excluded.

The Report is a compilation of repair records relating to seatback failure for the 1997 and 1998 model years of the Ranchster vehicle. The plaintiff's vehicle is a 1996 model--manufactured prior to the adoption of a more rigid seatback design, which was added beginning with the 1997 models. Furthermore, the Report focuses on seatback failure in accidents of 1-15 miles per hour. The plaintiff's accident occurred at rate of 35 miles per hour, a much greater rate of speed. This is not disputed by the defendant.

Because the Report has no rational bearing on the facts of this case, it is clearly irrelevant and should be excluded. Further, as is discussed below, because of the clear lack of relevance, there is a great danger that the jurors will be confused, to the detriment of the plaintiff.

3. THIS COURT MAY EXCLUDE CONFUSING OR PREJUDICIAL STATISTICAL EVIDENCE


Federal Rule of Evidence 403 specifically states: “Although relevant, evidence may be excluded 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.” See Old Chief v. U.S., 519 U.S. 172, 180-92, 117 S. Ct. 644, 136 L. Ed. 2d 574, 45 Fed. R. Evid. Serv. 835 (1997); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 582-98, 113 S. Ct. 2786, 125 L. Ed. 2d 469, 37 Fed. R. Evid. Serv. 1 (1993); Navarro de Cosme v. Hospital Pavia, 922 F.2d 926, 931-32, 31 Fed. R. Evid. Serv. 1200 (1st Cir. 1991); Coleman v. Home Depot, Inc., 306 F.3d 1333, 1341-47, 59 Fed. R. Evid. Serv. 431 (3d Cir. 2002); and Chase v. General Motors Corp., 856 F.2d 17, 18-20, 26 Fed. R. Evid. Serv. 1010 (4th Cir. 1988).

The Court may exclude unreliable or potentially confusing statistical evidence in products liability actions. See General Elec. Co. v. Joiner, 522 U.S. 136, 145, 118 S. Ct. 512, 139 L. Ed. 2d 508, 48 Fed. R. Evid. Serv. 1, 177 A.L.R. Fed. 667 (1997) (no error in excluding evidence of a study related to exposure to carcinogens when the study did not demonstrate a statistically significant link between the exposure to the carcinogen and the increase in cancer); Rider v. Sandoz Pharmaceuticals Corp., 295 F.3d 1194, 1198-1201, 58 Fed. R. Evid. Serv. 1285 (11th Cir. 2002) (expert opinion was properly excluded under Daubert, when the studies the expert relied upon were not shown to be directly applicable to the plaintiff's situation); and Allison v. McGhan Medical Corp., 184 F.3d 1300, 1313-15, 52 Fed. R. Evid. Serv. 1081 (11th Cir. 1999) (no error in excluding expert testimony on the basis that the statistical studies used to support the expert's opinion did not allow for the analytical link required to apply the studies to the plaintiff's situation).

Moreover, experiment evidence and evidence of other incidents, should be excluded when the conditions surrounding the experiment or other incidents, are not substantially similar to the conditions surrounding the incident. See Bogosian v. Mercedes-Benz of North America, Inc., 104 F.3d 472, 479-80, 46 Fed. R. Evid. Serv. 271, 158 A.L.R. Fed. 781 (1st Cir. 1997) (trial court properly excluded expert testimony when there was no evidence that the circumstances surrounding the investigation conducted by the expert were substantially similar to the circumstances surrounding the actual incident); Glick v. White Motor Co., 458 F.2d 1287, 1294-95 (3d Cir. 1972) (no abuse of discretion by excluding experiment evidence as collateral and as lacking proper foundation to show that the conditions of the experiment were sufficiently similar to those of the actual incident); Chase v. General Motors Corp., 856 F.2d 17, 18-20, 26 Fed. R. Evid. Serv. 1010 (4th Cir. 1988) (experiment evidence should not have been admitted when the conditions of the experiments were not sufficiently similar to the conditions surrounding the actual incident); Mattis v. Carlon Elec. Products, 295 F.3d 856, 863, 59 Fed. R. Evid. Serv. 769 (8th Cir. 2002) (no error in excluding evidence of studies that were performed under different conditions than those surrounding the incident in question); J.B. Hunt Transport, Inc. v. General Motors Corp., 243 F.3d 441, 445, 56 Fed. R. Evid. Serv. 847 (8th Cir. 2001) (evidence regarding an experiment conducted thirty years prior to the incident in question); U.S. v. Gaskell, 985 F.2d 1056, 1060-62, 37 Fed. R. Evid. Serv. 159 (11th Cir. 1993) (trial judge improperly admitted highly inflammatory, misleading, and prejudicial experiment evidence, when the conditions of the experiment were not sufficiently similar to the actual incident, and the evidence was likely to provide the jury with a misleading view of the facts of the case); and Brooks v. Chrysler Corp., 786 F.2d 1191, 1194-99, 20 Fed. R. Evid. Serv. 251 (D.C. Cir. 1986) (study of prior incidents was properly excluded because there was insufficient evidence that the conditions of the prior incidents were substantially similar to the incident at issue).

In the present case, the defendant's Report contains the type of misleading and confusing pseudoscientific speculations that should be excluded.

The Report contains an internal analysis of seatback failure at rates of speed significantly lower than the speed of the subject accident. In addition, the Report analyzes accidents with newer Ranchster models, manufactured after important safety features were added to prevent exactly the type of failure that occurred in this case. Because of key differences between the analyzed data and the facts of this case, there is a very real danger that the jurors will be confused by the Report's findings, which shows no seatback failure in newer Ranchster vehicles at lower speeds.

The Report, which was prepared in anticipation of this litigation, excludes key data regarding the rate of speed and the model year involved in the subject accident. To allow this evidence would create undue prejudice to the plaintiff based upon the danger of jury confusion, while adding absolutely nothing of material value for the jury's consideration.

As such, it is respectfully requested that the Court exclude the Report and any mention of the findings contained therein.

DATED: [ ]



By: _______________

[name of counsel]

Attorneys for PLAINTIFF,

[name of plaintiff]
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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