United States District Court, E.D. Michigan, Southern Division
Elizabeth A. Stafford U.S. Magistrate Judge
OPINION AND ORDER ON MOTIONS IN LIMINE [136, 138,
139, 141, 142, 143, 144, 145, 146, 147, 148, 161]
J. TARNOW, SENIOR UNITED STATES DISTRICT JUDGE
Davis was an employee of a contractor tasked with moving an
approximately five-ton commercial chiller into Wayne Memorial
High School on March 30, 2012. The chiller fell over during
installation, crushed Mr. Davis, and rendered him a
Kyle Davis and his wife Betty Davis, brought this products
liability suit on March 26, 2015 to recover damages from the
allegedly dangerous design of the chiller, which was a Model
RTWD Series R 70-250 ton water-cooled helical and rotary
chiller manufactured by Defendant Trane, U.S., Inc. [Dkt. #
1]. Before the Court are 12 motions in limine brought by both
Plaintiffs [136, 138, 139, 141, 142, 161] and Defendant [143,
144, 145, 146, 147, 148]. A hearing was held on November 26,
2019, and all but one of these motions were taken under
in limine which exclude broad categories of evidence should
rarely be employed.” Sperberg v. Goodyear Tire
& Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). The
court should exclude evidence in advance of a trial only when
evidence is clearly inadmissible on all potential grounds.
Indiana Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d
844, 846 (N.D. Ohio 2004) (citing Luce v. United
States, 469 U.S. 38, 41 n. 4 (1984)). Unless movant
makes such a showing, evidentiary rulings should be made in
trial, so that “questions of foundation, relevance and
potential prejudice can be resolved in proper context.”
Id. The denial of a motion in limine, therefore,
creates no guarantee that the evidence at issue will be
admitted at trial. Id.
Motion in Limine To Exclude Dissimilar “TIM
Tickets” and Other Incident Evidence  and
Defendant's Motion to Exclude Quebec
Installation Video 
bring this products liability suit under several theories of
negligence: negligent design, negligent failure to warn,
implied warranty, express warranty, and negligent
misrepresentation. They have also alleged gross negligence
and willful disregard. At issue is whether evidence of other
similar incidents (“OSI”) is admissible to prove
negligent design. OSI evidence may also be admissible to
prove gross negligence or willful disregard where previous
accidents are alleged to have provided Trane with notice of
the chiller's dangerous design.
To prove a design defect under Michigan law, a plaintiff must
show that the product was “not reasonably safe for its
foreseeable uses” and that a “risk-utility
analysis” favored a safer design. Under this approach,
a plaintiff must show that (1) the product was not reasonably
safe when it left the control of the manufacturer; and (2) a
“feasible alternative production practice was available
that would have prevented the harm without significantly
impairing the usefulness or desirability of the product to
Croskey v. BMW of N. Am., Inc., 532 F.3d 511, 515-16
(6th Cir. 2008) (quoting M.C.L. 600.2946(2)).
first of the six factors under Michigan's risk-utility
doctrine is “that the severity of the injury was
foreseeable by the manufacturer.” Id. OSI
evidence may therefore goes not only to the danger of the
chiller's design, but also to the question of whether
“the manufacturer exercised reasonable care in making
the design choices it made.” Prentis v. Yale Mfg.
Co., 421 Mich. 670, 688, 365 N.W.2d 176 (Mich. 1984).
the jury's inquiry into this matter will incorporate OSI
evidence will depend on whether Plaintiff can prove that
those incidents are truly similar. Federal Rules of Evidence
401 & 403 require evidence introduced at trial to meet
minimum standards of relevancy. With that in mind, the United
States Court of Appeals for the Sixth Circuit has found that
other similar incidents must be “substantially
similar” to the one at issue to be admissible.
Surles ex. Rel. Johnson v. Greyhound Lines, Inc.,
474 F.3d 288 (6th Cir. 2007) (quoting Rye v. Black &
Decker Mfg. Co., 889 F.2d 100, 102 (6th Cir.1989)).
“Incidents which ‘occurred under similar
circumstances or share the same cause' can properly be
deemed substantially similar.” Id. For
instance, in a case where a railing on the fourth floor of a
stairwell gave way, evidence that the railing on the third
floor almost gave way when a worker leaned against it is
Such evidence is relevant as tending to show the dangerous
condition of the premises, and [Defendant's] knowledge of
such condition, if it relates to an occurrence which happened
under substantially the same conditions at substantially the
same place as the accident in suit and at a time not too
New York Life Ins. Co. v. Seighman, 140 F.2d 930,
932 (6th Cir. 1944).
challenge the admissibility of evidence of 29 incidents that
Plaintiffs maintain are substantially similar to the March
30, 2012 accident. Plaintiffs can prove admissibility if the
proposed OSI either a) occurred under similar circumstances,
or, b) shared the same cause, as the incident for which
damages are sought.
first grouping of other similar incidents can be found in
Plaintiff's exhibits of TIM Tickets. Trane produced
records in a system called Trane Interaction Management
(“TIM”) for the purpose of determining whether
warranties should be honored on damaged products. Plaintiff
has proffered 27 “tickets” from this system which
record discussions on whether warranties should be honored,
and whether repair was possible, for various chillers that
were damaged during installation, typically by falling over.
Each ticket provides a brief description of what happened and
a brief description of the parts of the chiller that were
damaged in the fall. Photographs of the damaged components
are usually attached. One of those TIM Tickets refers to the
“Quebec Installation, ” where a video is also
available of an RTWD chiller tipping over in a loading bay
while a man is doing something behind it that is not visible
from the video.
argues that these incidents are not substantially similar,
because they occurred under different circumstances and their
causality is unknown. Trane has observed that Kyle Davis was
supervising employees in an attempt to 1) install 2) a Trane
RTWD 250 model chiller 3) on isolator feet 4) by using a tool
as a jack to elevate the chiller up in the air from
underneath 5) without the use of an overhead lifting support
6) that tipped over during installation. It argues that
exceedingly few of these factors can be found in any of the
Sixth Circuit has cautioned against “too
narrowly” defining similar circumstances. Rimer v.
Rockwell, 641 F.2d 450, 456 (6th Cir. 1981). The
substantial similarity rule does not require that products be
identical, but only that there be “substantial
similarity among the variables relevant to the
plaintiff's theory of defect” Smith v.
Ingersoll-Rand Co., 214 F.3d 1235, 1248 (10th Cir.
2000). This rule has been adopted by the Sixth Circuit in
Clark v. Chrysler Corp., 310 F.3d 461, 473-74 (6th
Cir. 2002) (overruled on other grounds by State Farm Mut.
Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003)).
Relatedly, “the relevance of the evidence will thus
depend not only on the character of the evidence itself but
on the purpose for which it is offered.” Koloda v.
Gen. Motors Corp., 716 F.2d 373, 375 (6th Cir. 1983).
Plaintiffs offer several purposes for the other similar
• To prove the existence of a product defect.
• To prove notice of a hazardous condition.
• To prove indifference towards the risk.
• To prove a plan or a scheme.
• To prove causation.
is the tendency of a fact to prove or disprove the truth of a
point in issue. Incidents that do not take place under
similar circumstances might still be substantially similar if
they share a common cause. Plaintiffs' proffered common
cause is the high center of gravity, which makes tip-overs
jury would be far more likely to find that a design is
defective if it learns that the alleged defect resulted in a
number of accidents.” Rimer, 641 F.2d at 456.
Plaintiffs must, therefore, establish a reasonable connection
between the alleged defect and the other accidents. If the
other accidents were caused by forces not at play in
Plaintiffs' accident, they are not relevant.
unpublished Sixth Circuit opinion, a panel held that a
plaintiffs' proposed OSI in an exploding barrel firearm
case were properly excluded by the district court due to
plaintiff's inability to rule out other causes.
Although the other incidents identified by the Plaintiffs
involved barrel failures, they could not point to or rule out
any cause of those failures. Based on the Plaintiffs'
inability to describe the factual circumstances surrounding
each failure, the other incidents were properly excluded
because there was no showing that they were
“substantially similar” to Rodney's accident.
Palatka v. Savage Arms, Inc., 535 Fed.Appx. 448, 460
(6th Cir. 2013); but see Cincinatti Ins. Co. v.
Banks, 610 F.Appx. 453, 461 (6th Cir. 2015) (holding
that where an insurer claimed that an insured set the fire
that destroyed his house, the court did not err by admitting
into evidence other house fires that occurred within the same
area and time span, even though deeper similarities were not
27 TIM Tickets, some are more detailed than others. For
instance, the July 2009 Edmonton, AB Incident is given only
the one-line description: “chiller was dropped on
it's [sic] side.” (Dkt. 146-2). By contrast, the
June 2010 Jackson, TN incident provides a more detailed
description of how the chiller tipped over after hitting a
low spot in the mechanical room while being wheeled on
castors. (Id.). Defendant has not established that
no witness could capably testify that at least some of the
chiller tip-overs described in the TIM Tickets occurred
because of a high center of gravity. If Plaintiffs fail to
demonstrate either similar circumstances or similar cause at
trial for any given TIM Ticket, the evidence will be excluded
as irrelevant. That is not a determination that can be made,
however, until it is clear exactly how the witnesses
characterize the circumstances and causality of the OSI.
also argue that the TIM Tickets are hearsay. Rule 801 of the
Federal Rules of Evidence provides that a statement is not
hearsay if it is offered against a party and “was made
by the party's agent or employee within the scope of that
relationship and while it existed.” Fed.R.Evid.
801(d)(2)(D). This is not to say that every statement that
appears within every ...