Ritch, Adm. v. A M Gen'l

• Court: District Court, D. New Hampshire
• Decided: November 17, 1997
• Docket: CV-93-451-SD
• Status: Published

Opinion

Ritch, Adm. v. A M Gen'1 CV-93-451-SD 11/17/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Manton Ritch, Administrator and Sandra J. Ritch, Administratrix of the Estate of Todd Ritch

v. Civil No. 93-451-SD

A M General Corporation

O R D E R Manton Ritch and Sandra J. Ritch, Administrator and

Administratrix, respectively, of the Estate of Todd Ritch, bring

this wrongful death action against A M General Corporation, the

manufacturer of a vehicle in which plaintiff's decedent was a

passenger while on active duty with the National Guard in Saudi

Arabia. The complaint alleges, in essence, failure to warn

regarding the vehicle's safety. Presently before the court are

various pretrial motions.

1. Defendant's Motion in Limine to Bar Plaintiff from

Introducing Expert Rebuttal Testimony (document 67)

Defendant claims that plaintiff did not file a timely

disclosure of expert rebuttal testimony as was reguired by Rule

26(a) (2) (C) , Fed. R. Civ. P., which provides that the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party . . . within 30 days after the disclosure made by the other party.

In January 1997, defendant disclosed the expert testimony of Mr.

Bartlett. Approximately nine months later at the final pretrial,

plaintiff's attorney indicated that his expert, Mr. Rapperport,

would offer rebuttal testimony against Mr. Bartlett's disclosed

expert testimony. Defendant argues that plaintiff is barred from

offering Mr. Rapperport's rebuttal testimony since plaintiff

failed to disclose such rebuttal testimony within 30 days after

defendant's January 1997 disclosure of Mr. Bartlett's testimony.

However, Rule 26(a) (2) (C) contains two deadlines for expert

disclosures. The first applies to experts who will testify to

support the party's case, for which a disclosure must be made "at

least 90 days before the trial date." The second applies to

experts who will testify "solely to contradict or rebut"

[emphasis added], for which a disclosure must be made 30 days

after the other party's disclosure. The disclosure of

plaintiff's expert, Mr. Rapperport, was subject to the first

deadline because he will testify to support the plaintiff's case

in chief. Accordingly, plaintiff made the reguisite disclosure

"at least 90 days before the trial date." The rule does not

2 further require a party to make an additional disclosure upon

deciding to use their expert also in rebuttal. Thus this court

finds that plaintiff disclosed the testimony of Mr. Rapperport in

compliance with Rule 26(a) (2) (C) .

This is not to say that there are no limits on the

permissible scope of Mr. Rapperport's testimony. Unless a

separate rebuttal disclosure is filed, an expert's rebuttal

testimony may not go too far beyond the scope of the report

submitted with the original disclosure. Rule 26(a) (2) (B)

provides that "[t]he report shall contain a complete statement of

all opinions to be expressed [emphasis added]." Furthermore,

Rule 26(e)(1) provides that a party has a duty to supplement its

disclosures if "the information disclosed is incomplete . . . and

if the additional or corrective information has not otherwise

been made known to the other parties during the discovery

process." Since plaintiff has not supplemented its disclosure,

Mr. Rapperport may not testify in rebuttal as to opinions neither

contained in the original report nor made known to the defendant

during the discovery process.

Otherwise, defendant's motion to bar plaintiff from

introducing expert rebuttal testimony is denied.

3 2. Defendant's Motion in Limine to Bar Plaintiff from

Introducing Testimony Concerning What Knowledge Military

Personnel Would Have Common to the Use and Dangers of Driving

Military Vehicles and Hummers, in Particular (document 39)

Defendant asks the court to bar plaintiff's expert

Rapperport from testifying as to whether the vehicle was

unreasonably dangerous. Defendant apparently relies on Bellotte

v . Zavre Corp., 116 N.H. 52, 352 A.2d 723 (1976), in which the

New Hampshire Supreme Court said:

The test for determining whether a product is "unreasonably dangerous," R e s t a t e m e n t (Se c o n d ) o f T o r t s § 402A(1) (1965) as stated in Comment i is that it "must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics."

Defendants contend that Rapperport has no ordinary knowledge

common to the community of drivers and users of military

vehicles, and he cannot therefore testify as to whether the

Hummer was unreasonably dangerous.

However, New Hampshire courts have moved away from the

Bellotte test for strict liability toward a test that balances a

product's social utility against the risk of danger. Thibault v.

Sears, Roebuck & Co., 118 N.H. 802 (1978); Price v. Bic Corp.,

slip op. (N.H. Nov. 3, 1997) ("Whether a product is dangerous to

4 an extent beyond that which would be contemplated by the ordinary

consumer is determined by the jury using a risk-utility balancing

test."); Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652 (1st

Cir. 1981). Under a balancing test, plaintiff's expert

Rapperport can provide useful testimony on whether the Hummer is

unreasonably dangerous, despite his alleged lack of ordinary

knowledge common to the community of drivers of military

vehicles.

Defendant's motion is thus denied.

3. Plaintiff's Motion in Limine to Redact Conclusions which

Appear in the Accident Investigation Report Concerning Todd

Ritch's Nonuse of a Seat Belt and a Helmet (document 47)

Under New Hampshire law, a plaintiff's failure to wear a

seat belt is irrelevant to comparative fault or mitigation of

damages. Thibeault v. Campbell, 136 N.H. 698, 701-02 (1993)

("evidence of a party's failure to use a seat belt is

inadmissible to show negligence where the nonuse may have

contributed to the party's injuries but was not a cause of the

collision itself"); Forsberq v. Volkswagen of America, Inc. 769

F. Supp. 33, 36 (D.N.H. 1990) ("Under New Hampshire law, a

plaintiff in a tort action has a duty to act reasonably to

mitigate damages. The Supreme Court of New Hampshire has applied

5 this duty only to plaintiff's acts performed subsequent to the

event giving rise to her tort claim. Thus understood, this duty

cannot apply to a passenger's decision to refrain from wearing a

seat belt, a decision made prior to such event.") While New

Hampshire courts have not explicitly made such an extension, this

court finds the same principles are applicable to nonuse of a

helmet by military personnel.

Apparently conceding this, defendants argue that nonuse of a

helmet and seat belt is relevant, not to comparative fault, but

to whether plaintiff would have followed other safety warnings.

Plaintiff's products liability theory is based on a failure to

warn, and to prove causation, plaintiff must show that he would

have heeded sufficient warnings. Pointing to military

regulations requiring use of a seat belt and helmet, defendant

argues that the fact that plaintiff failed to abide by those

regulations renders it more likely that plaintiff would have

disregarded any warning that allegedly should have been posted on

the vehicle. However, this use of the evidence of plaintiff's

nonuse of seat belt and helmet is impermissible under Rule 404,

Fed. R. Evid., which prohibits "[e]vidence of a person's

character or a trait of character [to prove] action in

conformity therewith on a particular occasion . . . ." Defendant

is attempting to argue that plaintiff did not follow military

6 regulations on the use of a helmet and seat belt and would have

acted in conformity with his character by failing to heed a

warning.

Plaintiff's motion is granted.

4. Plaintiff's Motion in Limine to Strike the Affirmative

Defenses of Comparative Negligence and Product Misuse (document

49)

The issue of whether plaintiff acted unreasonably and

negligently so as to contribute to causing his own injury is a

guestion of fact for the jury. Plaintiff seeks to avoid this

conclusion with several legal arguments, which the court will

briefly address in turn. First, plaintiff claims that any

negligence of the driver, Wade Hector, in "dunehopping" the

Hummer cannot be imputed to plaintiff, because plaintiff was

merely a passenger who had no right to control the driver. This

argument falls far outside the mark because defendant's

affirmative defense does not rely on imputed negligence. Rather,

defendant seeks to hold plaintiff accountable for his own

negligence in voluntarily embarking as a passenger in the Hummer

knowing the driver's intent to go "dunehopping." As an analogy,

one does not have to rely on imputed negligence when a plaintiff

knowingly and voluntarily enters a car as a passenger with a

7 drunk driver.

Next, plaintiff argues that he had no right to control the

driver, and thus cannot be found negligent in failing to get the

driver to stop "dunehopping" and drive more carefully. Once

again, plaintiff misses the point. Defendant's theory is that

plaintiff was negligent in voluntarily embarking and remaining as

a passenger in the Hummer, knowing the driver's intent to go

"dunehopping." The right to control the driver is irrelevant to

defendant's theory.

Next, plaintiff points out that under the "crashworthiness"

doctrine, a supplier is liable for injuries sustained in a

vehicular accident because of a defect that, while not the cause

of the accident, caused or enhanced the degree of injuries

suffered. Plaintiff further argues that this doctrine renders

the negligence of plaintiff entirely irrelevant. The court finds

this to be an overstatement. The "crashworthiness" doctrine

simply overrules the position previously held by some courts that

driver negligence is a complete bar to recovery against a

manufacturer. The doctrine is founded on the premise that

accidents caused by driver negligence are foreseeable, and

manufacturers should design their vehicles to be reasonably safe

for such foreseeable uses. However, holding that driver

negligence is not a complete bar to recovery against the vehicle manufacturer is a far cry from saying that the plaintiff's

negligence is irrelevant. The crashworthiness doctrine does not

foreclose proof of plaintiff's negligence in assessing

comparative fault.

The issue under defendant's affirmative defense of product

misuse is whether the use was foreseeable, and that is a guestion

for the jury.

Thus, plaintiff's motion is denied without prejudice to the

right to raise such motion at the close of defendant's case.

5. Plaintiff's Motion in Limine to Redact Certain Entries from

the Military Accident Investigation Records (document 50)

Plaintiff seeks to eradicate any reference to "dunehopping"

and "joy riding" from the military accident report. Plaintiff's

ground is that defendant's affirmative defense of comparative

negligence is meritless, rendering irrelevant the references to

"joyriding" and "dunehopping." However, having ruled that there

remains an issue of fact on defendant's comparative negligence

defense, this court denies plaintiff's motion to redact the

accident report.

Plaintiff's motion is denied.

9 6. Plaintiff's Motion in Limine to Redact from the Accident

Investigation Records All References to Prior Drug Use by the

Decedent (document 48)

The military accident report contains references to prior

drug use by both the driver and the plaintiff. However, the

medical examinations of the driver and plaintiff contain no

indication that either was under the influence of drugs at the

time of the accident. Thus evidence of prior drug use is

irrelevant and must be excluded under Rule 402, Fed. R. Evid.

Apparently conceding this, defendant argues that drug use is

relevant to whether a warning would have been heeded by

plaintiff, but, once again, that use of the evidence is

foreclosed by Rule 404.

7. Plaintiff's Motion in Limine to Preclude Cross Examination of

Plaintiff's Economist on the Effect of Income Taxes on the

Decedent's Future Earnings (document 46)

In Cov v. Simpson Marine Safety Eguipment, 787 F.2d 19, 26-

27 (1st Cir. 1986), the First Circuit upheld a district court's

exclusion of evidence relating to the effect of income tax

liability on the decedent's future lost earnings. Under the

weight of such precedent, this court grants plaintiff's motion.

10 8. Defendant's Motion In Limine [to Bar Plaintiff from

Introducing Their Claim for Hedonic Damages, and Alternatively!

to Bar Use of Economist Formula in Calculating [Such! Damages

(document 63)

This court has already held that hedonic damages are

permitted in wrongful death cases. Maxwell v. Hitchcock Clinic,

CV-88-480-SD, slip op. (D.N.H. Mar. 12, 1993) (Devine, J.). In

the absence of any intervening definitive state law rulings on

this issue, the court stands by the judgment in that case.

Furthermore, the court has reviewed Steel v. Beemis, 121

N.H. 425, 428 (1981), relied upon by defendants and finds that

nothing in that case prevents plaintiff's economist from relying

on prevailing minimum wage standards in calculating hedonic

damages. The court finds defendant's attempt to characterize

reliance on prevailing minimum wage standards as a formula

misguided.

9. Plaintiff's Motion in Limine to Preclude Admission into

Evidence of Correspondence and Documents Concerning Consideration

bv the Military of Warning Labels (document 71)

Plaintiff argues that this evidence is irrelevant. However,

the court finds that it cannot at this time rule on the relevance

of that evidence and therefore defers such ruling until the

11 issues are better developed at trial.

10. Plaintiffs' Motion to Strike Superseding Cause Defense

(document 70)

Plaintiff objects to defendant's requested jury instruction

No. 10 on the ground that defendant has not appropriately pled

superseding cause as an affirmative defense. Rule 8(c) places

the burden of pleading affirmative defenses on the defendant.

This court finds that superseding cause is an affirmative defense

within the meaning of Rule 8 (c). Since defendant has entirely

failed to plead superseding cause, defendant has waived that

defense and the right to admit evidence relevant to such defense.

Accordingly, plaintiff's motion is granted.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

November 17, 1997

cc: Stephen R. Fine, Esq. Robert G. Whaland, Esq.