Updike v. American Honda Motor Company Incorporated

• Court: District Court, D. Arizona
• Decided: February 5, 2025
• Docket: 2:21-cv-01379
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Steven Updike, No. CV-21-01379-PHX-DJH

10 Plaintiff, ORDER

11 v.

12 American Honda Motor Company Incorporated, et al., 13 Defendants. 14 15 This case arises from a roll-over accident Mr. James Updike, Sr. (“Decedent”) was 16 involved in while driving his 2019 Honda Talon utility terrain vehicle (“Talon”). 17 (Doc. 124 at 1). Plaintiff Steven Updike (“Plaintiff”) and Defendant American Honda 18 Motor Company Incorporated (“Defendant”) have each filed Motions in Limine. 19 (Docs. 149-152, 162-163). The Motions are fully briefed. (Docs. 156-159, 166-167). The 20 Court will address each Motion in turn. 21 I. Background 22 Plaintiff, Decedent’s son, has brought this wrongful death action on behalf of 23 Decedent and Decedent’s statutory beneficiaries. (Doc. 1-2 at 13). On February 7, 2020, 24 Decedent was driving his Talon in the Imperial Sand Dunes in Glamis, California. 25 (Id. at ¶¶ 10-15). Decedent was driving approximately twenty to twenty-five miles per 26 hour when he drove over a soft sand dune and became airborne as he reached its crest. 27 (Doc. 124 at 2). 28 During its descent, the Subject Talon pitched forward, rolled end-over-end, and 1 came to rest on its wheels. (Docs. 83 at 2; Doc. 84 at 2). Plaintiff alleges that the Talon’s 2 rollover protection system (“ROPS”) failed when the rear cross bar at the top of the roll 3 cage directly behind and above the driver’s head “snapped” and several other parts of the 4 roll cage buckled and injured Decedent. (Id.) Decedent added several aftermarket 5 modifications to the Talon, including a “Quick Lite whip and a Rugged Radio aerial 6 antenna” to the cross bar that fractured. (Id). He also added an aftermarket Pro Armor 7 restraint harness. (Id). Defendant has argued that these aftermarket accessories can be 8 attributed to the failure of the ROPS and Decedent’s injuries. (Id). 9 Stemming from this roll-over accident, Plaintiff has brought claims for negligence 10 (Doc. 1-2 at ¶¶ 20–30), strict product liability id. at ¶¶ 31–44), breach of express/implied 11 warranty (id. at ¶¶ 45–48) and punitive damages (id. at ¶¶ 49–52) against Defendant. 12 However, the parties have stipulated to dismiss every count besides the strict liability count. 13 (Doc. 160; Doc. 84 at 5 n. 4). This count, as well as Defendant’s affirmative defense of 14 misuse, are now ripe for trial. 15 II. Legal Standard 16 A. Motions in Limine 17 “Although the Federal Rules of Evidence do not explicitly authorize in limine 18 rulings, the practice has developed pursuant to the district court’s inherent authority to 19 manage the course of trials.” Luce v. United States, 469 U.S. 38, 40 n.4 (1984). Motions 20 in limine “allow parties to resolve evidentiary disputes ahead of trial, without first having 21 to present potentially prejudicial evidence in front of a jury.” Brodit v. Cabra, 350 F.3d 22 985, 1004–05 (9th Cir. 2003) (citations omitted). Motions in limine are “entirely within 23 the discretion of the [trial] Court.” Jaynes Corp. v. American Safety Indem. Co., 2014 WL 24 1154180, at *1 (D. Nev. March 20, 2014) (citing Luce, 469 U.S. at 41–42). 25 However, motions in limine are “provisional” in nature. Goodman v. Las Vegas 26 Metro. Police Dep’t, 963 F.Supp.2d 1036, 1047 (D. Nev. 2013), aff’d in part, rev’d in part, 27 and dismissed in part on other grounds, 613 F. App’x 610 (9th Cir. 2015). The Court 28 issues its rulings on these motions based on the record currently before it, therefore, rulings 1 on such motions “are not binding on the trial judge [who] may always change [ her] mind 2 during the course of a trial.” Id. (quoting Ohler v. United States, 529 U.S. 753, 758 n.3 3 (2000) (citing Luce, 469 U.S. at 41 (noting that in limine rulings are always subject to 4 change, especially if the evidence unfolds in an unanticipated manner))). “Denial of a 5 motion in limine does not necessarily mean that all evidence contemplated by the motion 6 will be admitted at trial. Denial merely means that without the context of trial, the court is 7 unable to determine whether the evidence in question should be excluded.” Id. (quoting 8 Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004)). 9 B. Relevance 10 Federal Rule of Evidence 4011 provides that “[e]vidence is relevant if it has any 11 tendency to make a fact more or less probable than it would be without the evidence and 12 the fact is of consequence in determining the action.” Fed. R. Evid. 401. Under Rule 402, 13 relevant evidence is admissible unless otherwise provided. Fed. R. Evid. 402. However, 14 all relevant evidence is subject to Rule 403’s balancing test. That is, a court “may exclude 15 relevant evidence if its probative value is substantially outweighed by a danger of one or 16 more of the following: unfair prejudice, confusing the issues, misleading the jury, undue 17 delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. 18 C. Expert Witnesses 19 Rule 702 of the Federal Rules of Evidence tasks the trial court with ensuring that 20 any expert testimony provided is relevant and reliable. Daubert v. Merrell Dow Pharm., 21 Inc., 509 U.S. 579, 589 (1999). A qualified expert may testify based on their “scientific, 22 technical, or other specialized knowledge” if it “will assist the trier of fact to understand 23 the evidence.” Fed. R. Evid. 702(a). An expert may be qualified to testify based on his 24 or her “knowledge, skill, experience, training, or education.” Id. The expert’s testimony 25 must also be based on “sufficient facts or data,” be the “product of reliable principles and 26 methods,” and the expert must have “reliably applied the principles and methods to the 27 facts of the case.” Id. at 702(b)–(d). The trial court must first assess whether the testimony 28 1 Except where otherwise noted, all Rule references are to the Federal Rules of Evidence. 1 is valid and whether the reasoning or methodology can properly be applied to the facts in 2 issue. Daubert, 509 U.S. at 592–93. “The inquiry envisioned by Rule 702” is “a flexible 3 one.” Id. at 594. The proponent of expert testimony has the ultimate burden of showing 4 that the expert is qualified and that the proposed testimony is admissible under Rule 702. 5 See Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996). 6 That the opinion testimony aids, rather than confuses, the trier of fact goes primarily 7 to relevance. See Temple v. Hartford Ins. Co. of Midwest, 40 F.Supp. 2nd, 1156, 1161 (D. 8 Ariz. 2014) (citing Primiono v. Cook, 598 F.3d 558, 564 (9th Cir. 2010)). “Evidence is 9 relevant if it has any tendency to make a fact more or less probable than it would be without 10 the evidence and the fact is of consequence in determining the action.” Fed. R. Evid. 401. 11 However, an expert witness, “cannot give an opinion as to her legal conclusion, i.e., an 12 opinion on an ultimate issue of law.” United States v. Diaz, 876 F.3d 1194, 1197 (9th Cir. 13 2017) (internal citations omitted); see also Fed. R. Evid. 704. 14 III. Discussion 15 Defendant has filed four Motion in Limine seeking to exclude: (1); evidence of 16 decedent on his deathbed or his funeral (Doc. 149); (2) medical bill evidence and travel 17 expenses associated with Decedent’s medevac from the crash site (Doc. 150); (3) lay 18 witnesses from impermissibly offering expert opinions (Doc. 151); and (4) exclude 19 advertising, marketing and demonstration videos and materials (Doc. 152). 20 Plaintiff has filed two Motions in Limine seeking to preclude: (1) argument or 21 evidence that Decedent used the Talon in a manner that was not appropriate or foreseeable, 22 i.e., that he misused the Talon (Doc. 162); and (2) witnesses from testifying to what they 23 perceived upon arriving at the crash moments after it had happened (Doc. 163).2 The 24 Court will address each Motion in turn. 25 1. Defendant’s First Motion in Limine (Doc. 149) 26 Defendant seeks to preclude evidence of cumulative, irrelevant and inflammatory 27 materials including (1) photographs and videos of Decedent in the hospital and of his

28 2 The Court will rule on Plaintiff’s second Motion in Limine (Doc. 163) at the Final Pretrial Conference. 1 casket; (2) letters and voicemails from Decedent to his family (3) transcripts and audio- 2 recordings of eulogies given at Decedent’s funeral; and (4) portions of the funeral montage. 3 (Doc. 149). Defendant avers that the evidence is irrelevant, and because Plaintiff will 4 introduce testimony to support the damages claim, the probative value of the evidence is 5 outweighed by its prejudicial effect. (Id. at 2). Plaintiff asserts that such evidence is 6 relevant as “[t]he picture of Jim in the hospital will help the jury to fully understand the 7 terrible scene that Jim’s family found themselves in, following the incident.” 8 (Doc. 156 at 2). Plaintiff states that it is directly relevant to the issues of his damages and 9 its probative value is not outweighed by substantial prejudice. (Id). Furthermore, Plaintiff 10 asserts that the pre-death communications between Decedent and his children and the 11 eulogies given are also relevant to show damages for anguish, sorrow, mental suffering, 12 pain and shock. (Id. at 3). 13 Plaintiff has made a claim for damages including pain and suffering. Plaintiff is 14 entitled to introduce evidence of the pain and suffering endured as a result of the incident 15 resulting in decedent’s death. However, each item of evidence must be probative of the 16 damages sought. Cumulative evidence, though probative, may become substantially 17 prejudicial to the Defendant, and therefore is inadmissible. Fed. R. Evid. 403. Plaintiff’s 18 witness list includes many family members who intend to testify about the impact of losing 19 a father and husband. That testimony will likely include the impact of seeing him in a 20 hospital bed, the decision to have him removed from life support, in addition to the 21 premature loss to his dependents and the results therefrom. 22 This testimony, along with voice audio, photographs of the decedent in a hospital 23 bed, his casket and eulogies vier into inflaming the jury—especially when witnesses will 24 testify as to his loss. Therefore, Plaintiff will be precluded from introducing photographs 25 of the decedents casket, eulogy transcripts and videos. See Fed. R. Evid. 403. 26 As for letters and audio recordings to family members made prior to decedents 27 passing, at the Final Pretrial Conference, Plaintiff shall inform the Court when the letters 28 were authored and the audio recordings made, their respective content and how each are 1 probative of the damages claim and their authenticity. 2 Regarding the hospital bed photograph, it may be probative of the injuries sustained 3 and treatment received. It may be probative of the mental anguish experienced by Plaintiff 4 and thus, relevant to the damages claim. At the Final Pretrial Conference, the Court will 5 hear from Plaintiff how he intends to use the photograph, through which witnesses it will 6 be introduced and determine whether the hospital bed photo may be introduced into 7 evidence. 8 IT IS ORDERED, granting, in part, the Defendant’s First Motion in Limine (Doc. 9 149). The Motion is granted as to photographs and videos of James Updike, Sr.’s casket; 10 transcripts and audio-recordings of eulogies given at Decedent’s funeral; and any portions 11 of the funeral montage. 12 The Court will address the admissibility of the photograph of James Updike, Sr.’ in 13 the hospital bed and letters and voicemails from Decedent to his family at the Final Pretrial 14 Conference. 2. Defendant’s Second Motion in Limine (Doc. 150) 15 Defendant seeks an order precluding medical expenses “which plaintiff cannot 16 prove are reasonable , and of all other economic damages sustained, if at all, by the estate 17 and not the statutory beneficiaries.” (Doc. 150). Defendant asserts that Plaintiff “cannot 18 prove the medical expenses he seeks to recover are reasonable and necessary.” (Id. at 2). 19 Plaintiff asserts that it intends to establish the reasonableness and necessity of the medical 20 care and medical expenses, including “recovering medical costs incurred while seeking a 21 second opinion[.]” (Doc. 157).3 The Court will deny the Motion. 22 Defendant asserts that Plaintiff cannot show that $91,128.40 to have the decedent 23 flown to St. Joseph’s Hospital was not a reasonable and necessary medical expense as 24 evidenced by the medical insurance denial of coverage for the transportation because the 25 Decedent had “already gone through the process.” (Id.) In addition to the insurance denial 26 of coverage, Defendant also proffers deposition testimony of a family member who 27

28 3 Plaintiff’s response appears to indicate the intent to seek damages only for the statutory beneficiaries, so, the Court need not address that issue. 1 confirms “we went through the process with the doctors in Palm Springs. Then we chose 2 to, on our dime, fly him to Phoenix. His insurance wouldn’t cover it because he had already 3 gone through the process.” (Doc. 150-1 at 8). She also indicated that the family did so to 4 seek a second opinion. (Id. at 5). 5 Plaintiff asserts that “nothing in the Wrongful Death statute or Arizona law prevents 6 a family from recovering medical costs incurred while seeking a second opinion.” 7 (Doc. 157 at 3). Yet, all medical expenses sought must be probative and relevant to the 8 medical care received. Larsen v. Decker, 196 Ariz. 239 (App. 2000). Therefore, the 9 Defendant may cross-examine treating physician witnesses to elicit testimony of the 10 reasonable and necessary costs associated with the decedents transportation from Palm 11 Springs to Phoenix. Defendant may also introduce evidence, upon proper foundation laid, 12 that the request for reimbursement was denied as unreasonable and unnecessary. 13 IT IS ORDERED that Defendant’s second Motion in Limine (Doc. 150) is 14 DENIED. 15 3. Defendant’s Third Motion in Limine (Doc. 151) 16 Defendant argues that the Court should preclude lay witnesses from “impermissibly 17 offering opinions (1) on defect and causation issues, including opinions about the softness 18 of the sand at the crash scene in the Imperial Sand Dunes in Glamis, California (“Glamis”), 19 which should be reserved for experts; and (2) on the strength and performance of either 20 original equipment (‘OE’) or aftermarket [ROPS].” (Doc. 151 at 1). Plaintiff counters that 21 the lay witnesses ought to be allowed to offer opinions rationally based on their perception. 22 (Doc. 158 at 2 (citing Fed. R. Evid. 701(a))). Specifically, Plaintiff argues that some of its 23 witnesses should be allowed to testify regarding the strength of the Talon’s ROPS and their 24 expectations of a ROPS because they are ordinary consumers as well as the softness of the 25 sand at the crash site as they experienced it. (Id). 26 Indeed, as the parties have noted, lay witnesses may testify “in the form of an 27 opinion” if it is: “(a) rationally based on the witness’s perception; (b) helpful to clearly 28 understanding the witness’s testimony or to determining a fact in issue; and (c) not based 1 on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. 2 R. Evid. 701. “[T]he distinction between lay and expert witness testimony is that lay 3 testimony ‘results from a process of reasoning familiar in everyday life,’ while expert 4 testimony ‘results from a process of reasoning which can be mastered only by specialists 5 in the field.’ ” Joshua David Mellberg LLC v. Will, 386 F. Supp. 3d 1098, 1101 (D. Ariz. 6 2019) (quoting Fed. R. Evid. 701 advisory committee’s notes to 2000 Amendments). Lay 7 opinion testimony “is not to provide specialized explanations or interpretations that an 8 untrained layman could not make if perceiving the same acts or events.” Id. (citations 9 omitted). 10 Plaintiff states that some of the purported witnesses were riding their UTVs and 11 walking in the sand dunes, so, they can testify to how the sand felt that day: soft. (Doc. 12 158 at 2). The Court agrees. The witnesses can describe the sand as they experienced it 13 on the day of the accident as that is testimony rationally based on their perception. Fed. R. 14 Evid. 701. Furthermore, if they can lay the proper foundation, they can also testify to their 15 expectations of a UTV’s ROPS. See Fed. R. Evid. 701. However, the witnesses may not 16 testify to the effect the softness of the sand would have on a crash as that testimony is 17 expert testimony. Fed. R. Evid. 701(c); 702. 18 IT IS ORDERED that Defendant’s third Motion in Limine (Doc. 151) is DENIED. 19 4. Defendant’s Fourth Motion in Limine (Doc. 152) 20 Defendant seeks an order precluding Plaintiff from introducing “evidence of 21 advertising, marketing, and demonstration materials for the Honda Talon 1000R (“Talon”) 22 including, but not limited to, press releases, videos, screenshots from videos, or other still 23 photographs.” (Doc. 152). Defendant states that Plaintiff “will offer various marketing 24 evidence including videos and press releases to imply that the Talon was a dangerous 25 vehicle that was unsafe for its expected and intended use.” (Id. at 3). Furthermore, 26 Defendant asserts that Plaintiff cannot establish authenticity as to some of the 27 advertisements, videos and photos. (Id.) 28 Plaintiff asserts that the evidence it seeks to introduce is probative and relevant “to 1 the issue of consumer expectations [and] Honda plays an active role in setting those 2 expectations through the release of their advertising material.” (Doc. 159 at 3). Plaintiff 3 further states that the advertisements are self-authenticating because they contain trade 4 inscriptions. (Id. at 1). 5 The Court agrees that some photographs and advertisements of the Talon are 6 probative and relevant to consumer expectations. However, admissibility of each item 7 sought admitted must meet the requirements of Rule 901(a). See Fed. R. Evid. 901(a) (“To 8 satisfy the requirement of authenticating or identifying an item of evidence, the proponent 9 must produce evidence sufficient to support a finding that the item is what the proponent 10 claims it is.”). Moreover, Plaintiff must lay proper foundation that the decedent was aware 11 of the advertisement and/or video and/or photograph sought to be introduced. It is 12 noteworthy that the advertisement Defendant refers to is a 2021 ad, and the incident at issue 13 here occurred in 2019. Therefore, Plaintiff shall specifically identify each 14 advertisement/video/photo it intends to introduce and how its authenticity is established 15 prior to its introduction. Finally, the Court will determine whether Plaintiff’s introduction 16 of such evidence becomes cumulative resulting in prejudice to the Defendant. 17 IT IS ORDERED that Defendant’s Fourth Motion in Limine (Doc. 152) is 18 DENIED. 19 5. Plaintiff’s First Motion in Limine (Doc. 162) 20 Plaintiff seeks to exclude any evidence or argument of misuse. (Doc. 162). 21 Defendant has asserted the affirmative defense of misuse and contends that Plaintiff 22 “materially altered” the Talon and that this alteration was not foreseeable. (Doc. 124 at 2). 23 Both parties previously sought summary judgment on this issue, but the Court denied these 24 requests as disputes of material fact precluded such a finding. (Id. at 15-16). Plaintiff 25 essentially seeks reconsideration of its argument that the Court should enter summary 26 judgment on Defendant’s misuse defense. (See Doc. 162 at 2–3). The Court will not grant 27 such a request as it is improper. 28 Arizona law provides that a defendant in a strict products liability action shall not 1 be liable if it proves that “[t]he proximate cause of the incident giving rise to the action 2 was an alteration or modification of the product that was not reasonably foreseeable, made 3 by a person other than the defendant and subsequent to the time the product was first sold 4 by the defendant.” A.R.S. § 12-683(2). Similarly, a defendant can also shield themselves 5 from liability by proving that the proximate cause of the plaintiff’s injury was (1) “a use or 6 consumption of the product that was for a purpose, in a manner or in an activity other than 7 that which was reasonably foreseeable or [(2)] was contrary to any express and adequate 8 instructions or warnings appearing on or attached to the product . . .” A.R.S. § 12-683(3) 9 (emphasis added); see also Monje v. Spin Master Inc., 2015 WL 13648554, at *6 (D. Ariz. 10 July 24, 2015), aff'd, 679 Fed. Appx. 535 (9th Cir. 2017). Arizona law defines a reasonably 11 foreseeable use as one “that would be expected of an ordinary and prudent purchaser, user 12 or consumer and that an ordinary and prudent manufacturer should have anticipated.” 13 A.R.S. § 12-681(8). As a general rule, whether misuse, modification, or alteration of a 14 product is reasonably foreseeable is a question of fact for the jury. See Kavanaugh v. 15 Kavanaugh, 641 P.2d 258, 263 (Ariz. Ct. App. 1981) (misuse); Piper v. Bear Med. Sys., 16 883 P.2d 407, 412–13 (Ariz. Ct. App. 1993) (alteration or modification). 17 At the summary judgment stage, Plaintiff argued that the affirmative defense of 18 misuse is not available in this case because the Talon’s rollover was foreseeable. (Doc. 83 19 at 6 (citing Cota v. Harley Davidson, 141 Ariz. 7, 684 P.2d 888 (Az. Ct. App. 1984)). 20 Plaintiff essentially recycles this argument in its Motion in Limine. (See Doc. 162). 21 On the issue of modification, the Court has already found that “Defendant has set 22 forth evidence that Decedent’s modifications to the Talon could have caused the cross bar 23 to fracture[,]” so, it has “demonstrate[d] that there are genuine fact issue for trial.” (Doc. 24 124 at 17 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fed. R. Civ. 25 P. 56(e)). The Court will not reconsider this issue here because, as Defendant points out, 26 seeking summary judgment in a motion in limine is improper. See IceMOS Tech. Corp. v. 27 Omron Corp., 2020 WL 1083817, at *3 (D. Ariz. 2020) (denying motion in limine where 28 “plaintiff’s request to preclude evidence . . . is an improper belated partial summary 1 || judgment motion”). Furthermore, it runs afoul of this Court’s reconsideration procedures. 2|| See LRCiv 7.2(g)(1) (“[t]he Court will ordinarily deny a motion for reconsideration of an || Order absent a showing of manifest error or a showing of new facts or legal authority that could not have been brought to its attention earlier with reasonable diligence . . . Failure to 5 || comply with this subsection may be grounds for denial of the motion.”). 6 On the issue of Decedent’s operation of the Talon, Plaintiff's Rule 401 and 403 || arguments fail because the Court has already found that the issue of misuse is an issue for 8 || the jury; so, evidence and testimony concerning misuse is relevant. See Fed. R. Evid. 401; 9|| see also Thompson v. Polaris Indus. Inc., 2019 WL 2173965, at *3 (D. Ariz. May 17, 2019) 10|| (“Therefore, under Arizona law, Plaintiffs’ conduct is relevant to the defenses of 11 || assumption of the risk and product misuse.”’) (citations omitted). The Court also finds that this relevant evidence is highly probative because it goes directly to Defendant’s 13 || affirmative defense of misuse and therefore is not substantially outweighed by a danger of unfair prejudice. See Fed. R. Evid. 403. 15 Accordingly, 16 IT IS ORDERED that Plaintiffs first Motion in Limine (Doc. 162) is DENIED. 17 IT IS FURTHER ORDERED that Defendant’s Second, Third and Fourth Motions 18 || in Limine (Docs. 150-152) are DENIED. 19 IT IS FURTHER ORDERED that Defendant’s First Motion in Limine (Doc. 149) 20 || is GRANTED IN PART and DENIED IN PART. 21 IT IS FINALLY ORDERED that Plaintiffs First Motion in Limine (Doc. 162) is 22 || DENIED. The Court will rule on Plaintiff's Second Motion in Limine (Doc. 163) at the 23 || Final Pretrial Conference. 24 Dated this 5th day of February, 2025. 25 fe 26 norable'Diang4. Huretewa United States District Judge 28

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