ORDER REGARDING DEFENDANTS' MOTIONS IN LIMINE

HENRY T. WINGATE, District Judge.

BEFORE THIS COURT are the following interrelated motions in limine filed by defendants: Suzuki Motor Corporation's (hereinafter referred to as "SMC") Motion in Limine to Exclude Customer Complaints of Brake Failure [Docket no. 250]; and SMC's Motion in Limine to Exclude Post-Crash Investigative Documents [Docket no. 252]. Plaintiffs oppose both motions in limine.

I. FACTUAL BASIS

On January 12, 2012, Plaintiff Bradley Stubblefield (hereinafter referred to as "B. Stubblefield") had an unfortunate tragedy when he was driving his GSX-R 1000 motorcycle (hereinafter referred to as "subject motorcycle") to work from his house. B. Stubblefield had purchased the subject motorcycle in a used condition from a private party in Georgia in 2010. Since the time he had bought the subject motorcycle, B. Stubblefield performed the maintenance on the subject motorcycle himself, along with installing aftermarket modifications to the subject motorcycle.

During his commute, B. Stubblefield attempted to enter Interstate 55 South, utilizing an on-ramp near Madison, Mississippi. For some reason unknown to this court, B. Stubblefield left the roadway, crossed the gore, and traveled down into a ditch where he ultimately came to a catastrophic stop. The subject motorcycle landed on B. Stubblefield and he was severely injured.

B. Stubblefield has no memory of the accident. One eyewitness to the accident testified that she did not see B. Stubblefield apply his brakes, front or rear. That witness, Karen Richmond, testified that B. Stubblefield was traveling faster than she was and passed her vehicle on the left side, so close that she could reach out and touch him. Initially, B. Stubblefield and his family all believed that B. Stubblefield simply had lost control of the subject motorcycle due to loose gravel in the curve.

At some time after B. Stubblefield's accident, SMC began investigating other motorcycle accidents. SMC generated three (3) types of reports: Field Technical Information Reports (hereinafter referred to as "FTIR"); Siebel Reports (hereinafter referred to as "SR"); and Accident Information Questionnaires (hereinafter referred to as "AIQ"). SMC developed the three types of reports based upon different information and sources. SMC personnel prepared: (1) FTIRs based upon customer complaints possibly involving safety issues; and (2) SRs based upon customer telephonic reports of problems. SMC sent AIQs to customers who had complained about accidents or incidents to SMC for the customers to provide various information including: personal information; motorcycle information; and incident information.

On October 28, 2013, Suzuki issued a voluntary recall of three (3) motorcycle lines: 2004-2013 GSX-R600; 2004-2013 GSX-R750; and 2005-2013 GSX-R1000. Both before and after this recall, SMC had worked towards and on the three reports above mentioned.

The recall affected the front brake master cylinder installed on the recalled motorcycles. The relevant text of the recall notice reads:

[Docket no. 248-1, P. 2].

After plaintiffs received the recall notice from Suzuki, they changed their opinion about what had caused the subject motorcycle accident at issue here.1 Based on their new belief that the front brake master cylinder (hereinafter referred to as "FBMC") on the subject motorcycle had failed, plaintiffs filed the instant lawsuit in this federal forum on January 9, 2015.

II. SMC's Motion in Limine to Exclude Customer Complaints of Brake Failure [Docket no. 250]

SMC first asks this court to exclude all FTIRs, SRs, and AIQs (hereinafter referred to collectively as the "contested reports"), for three (3) reasons: they are irrelevant; any probative value is outweighed by unfair prejudice; and the reports contain hearsay within hearsay. Plaintiffs oppose SMC's arguments.

A. Relevancy

In order for evidence to be admissible, it must be relevant.2 SMC says that for the FTIR, SR, or AIQ to be considered relevant, plaintiffs must show that the brake failures in those reports are "substantially similar" to B. Stubblefield's. Citing Mills v. Beech Aircraft Corp., 886 F.2d 758, 762 (5th Cir. 1989) ("In order to obtain the admission of evidence concerning a prior related accident, the proponent must show that the accident occurred under circumstances `substantially similar' to the case at bar."). Plaintiffs respond that "substantial similarity" is not the same as an "exact match" and that the Fifth Circuit has expressly rejected the "exact match" analysis. Quoting Hankins v. Ford Motor Co., No. 3:08-CV-639-CWR-FKB, 2012 WL 174793, at *3 (S.D. Miss. Jan. 20, 2012) ("Substantial similarity does not require an exact match.")).

SMC argues that several differences are present in the reports from the subject motorcycle accident which affect relevancy: none of the reported accidents involves injuries; and in the majority of the reports, the drivers noticed spongy brakes before the accident. Plaintiffs respond that because all the motorcycles had the same FBMC installed, the evidence weighs in favor of admitting the reports as relevant.

This court finds several factors must be present for this court to find a "substantial similarity" between this accident and the challenged accidents. The other accidents must feature a front brake failure due to the brake lacking stopping power and a spongy feel in the front brake lever. The brake failure must have occurred suddenly and must have occurred after the front brake had been functioning normally. The front brake failure must have occurred on the same or a similar model. The bike must have been serviced periodically as the maintenance specifications require. Finally, the other accident must feature the absence of any other clear, credible reason for the accident (the court will cautiously gauge this last factor).

This court does not find the following factors to be necessarily relevant to the inquiry regarding the "substantial similarity" of the accidents: rider advanced competence; condition of the highway/road; whether an injury followed; whether an accident happened; and whether the driver noticed the loss of power, before or after an accident.

SMC does not challenge specific reports; rather, SMC challenges three (3) class of reports: FTIRs; AIQs; and SRs. This court is not comfortable with excluding a general class of documents without knowing what is contained therein. Without being able to look at the documents and compare them to the factors this court has identified above as dispositive, this court cannot make a determination as to the admissibility of such. Accordingly, this court will deny SMC's motion on this ground. Plaintiffs, however, must inform this court, with specificity, what documents they intend to introduce during the jury trial of this matter and why such documents satisfy the court's factors as explained above. If plaintiffs fail to do so, this court will not allow such documents to be introduced to the jury.

B. Unfair Prejudice

Even if this court had found that the contested reports were relevant evidence, they may still be excluded by the court if this court finds that their "probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. SMC says that Harrower v. La. ex rel. La. Dep't of Transp., 327 F.App'x 501, 502-502 (5th Cir. 2009) provides it support. Harrower is a per curiam opinion3 that offers some insight. In Harrower, the court analyzed the factual scenarios surrounding the individual accidents and found that none of the accidents was "substantially similar" to the accident at bar in Harrower.

SMC also says that if the FTIRs, SRs, and AIQs are introduced, the parties would have to have a series of mini-trials and would overwhelm and confuse the jury. Plaintiffs respond that a series of mini-trials are not necessary for the same reason that the United States Eighth Circuit Court of Appeals recently addressed in Adams v. Toyota Motor Corp., 867 F.3d 903, 904 (8th Cir. 2017) (holding that a series of mini-trials is not necessary where the circumstances surrounding the other accidents were substantially similar to the case at bar). Plaintiffs also cite United States District Judge Carlton Reeves of the Southern District of Mississippi who held that a series of accidents at the same curve of the road was substantially similar enough that an expansive record is not required. Hankins v. Ford Motor Co., 2012 WL 174793, at *4 (S.D. Miss. Jan. 20, 2012). Plaintiffs state that by introducing SMC's reports of other accidents they are merely trying to establish that "these riders were on Suzuki GSX-Rs at the time of their events, their brakes worked moments earlier, suddenly lost pressure while riding, and there was no other objective explanation for the crash other than failure of the front brake." [Docket no. 294, P. 10]. Here, however, there is the possibility of rider error on a gravel road. As this court stated above, SMC did not identify the reports to which it objects with specificity to allow this court to review the documents.

Again, this court is not willing to exclude a generically described class of documents. This court cannot, on the record here, say whether these documents are more prejudicial than probative. Accordingly, this court will deny SMC's motion in limine on this ground. Plaintiffs must, before introducing such documents to the jury in this matter, inform this court about the documents in question so that this court may review such and make a determination as to the admissibility of specific documents.

C. Hearsay

Hearsay is generally not admissible under the Federal Rules of Evidence.4 "`Hearsay' means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." Fed. R. Evid. 801. Where a statement contains hearsay within hearsay, each level of the hearsay must conform to a hearsay exception to be admissible.5

SMC argues that reports made to a manufacturer of incidents, accidents, or product failures are not admissible because they are hearsay. Quoting Shields v. Sturm, Ruger & Co., 864 F.2d 379, 381 (5th Cir. 1989) (Finding reports to defendant gun manufacturer by consumers were not admissible except to show notice and awareness of danger). According to SMC, the FTIRs, SRs, and AIQs do not fit within any exception to the general ban on hearsay.

Plaintiffs respond that all three (3) types of reports are admissible as records of a regularly conducted activity under Rule 803(6)6 of the Federal Rules of Evidence. According to plaintiffs, the statements from which SMC generated the reports contain sufficient trustworthiness to satisfy the hearsay rule.

This court cannot make a determination of the admissibility of these documents because SMC failed to identify such documents with specificity. This court is not persuaded that it can make a blanket determination that each level of the hearsay within hearsay statements contained within the contested reports falls under an exception to the general hearsay ban. Accordingly, this court denies SMC's hearsay challenge to the general class of documents.

D. Notice

Plaintiff, almost as an afterthought, argues in a one sentence paragraph, the following:

[Docket no. 294]. SMC never responded to this argument.

This court is persuaded by plaintiffs' seemingly "kitchen-sink" argument, and will deny SMC's motion in limine based on this argument by plaintiffs. This court may change its mind at the jury trial of this matter based upon: the other evidence introduced during the jury trial; the arguments of counsel during such jury trial; and the parties identifying the documents with specificity. Accordingly, the parties must inform the court out of the presence of the jury if they intend to re-urge the introduction of the FTIRs, SRs, and AIQs.

E. Conclusion

In conclusion, this court is persuaded that it cannot make a blanket determination whether the class of documents — FTIRs, SRs, and AIQs — are relevant to the litigation at bar. Similarly, this court cannot determine whether the contested reports are also not admissible because: they are unfairly prejudicial; and are hearsay within hearsay. The court may, after hearing testimony and seeing evidence during the jury trial of this matter, decide to revisit these issues, but only if the parties identify the specific documents that they intend to introduce or challenge and show this court how such relates to this court's factors as described above.

III. SMC'S MOTION IN LIMINE TO EXCLUDE POST-CRASH INVESTIGATIVE DOCUMENTS [Docket no. 252]

SMC also asks this court to exclude all evidence of post-crash investigative documents7 generated by SMC after B. Stubblefield's accident. According to SMC, such investigative documents are all inadmissible for three (3) reasons: they are irrelevant; they are subsequent remedial measures; and are unfairly prejudicial. Plaintiffs oppose SMC's motion stating: they are relevant; are not subsequent remedial measures; are not unfairly prejudicial; and may be used for impeachment.

A. Relevancy

Plaintiffs' causes of action all arise under the Mississippi Products Liability Act (hereinafter referred to as "MPLA") — codified at Miss. Code § 11-1-63 — and, as such, plaintiffs must prove the product was defective at the time it left the control of the manufacturer. See Miss. Code § 11-1-63(a). Manufacturers cannot be held liable for a design defect unless the manufacturer "knew, or in light of reasonably available knowledge or in the exercise of reasonable care should have known, about the danger that caused the damage for which recovery is sought [. . .]." Miss. Code. § 11-1-63(f)(i).

According to SMC, the MPLA requires that plaintiffs prove what SMC knew before the subject motorcycle left its control in 2006, namely, that it was defective, either in manufacture or design. SMC allegedly learned about the subject motorcycle accident in April, 2014 — six (6) months after it had issued its voluntary product recall on October 18, 2013. Thus, SMC argues, any post-crash investigative reports are irrelevant because the documents are not of consequence in determining the action. See Fed. R. Evid. 401.

B. Stubblefield purchased the subject motorcycle from a private seller in Georgia in a used condition in 2010. The subject motorcycle was originally sold in a new condition — that is, it left SMC's control — in 2006. The subject accident herein litigated occurred in January, 2012. SMC issued its voluntary product recall in October, 2013 and allegedly learned of B. Stubblefield's accident in April, 2014. After the product recall, SMC allegedly investigated complaints from other customers about the FBMC. The MPLA requires that the manufacturer can only be liable for damages that are caused by a condition that the manufacturer knew or reasonably should have known about before the product left its control. Any post-crash investigative documents are not relevant to whether SMC knew about the defect in the subject motorcycle before it left SMC's control in 2006 when it was originally sold as a new motorcycle.

Accordingly, this court will grant SMC's motion in limine on this ground.

This court finds that the introduction of the post-crash investigative reports may be unfairly prejudicial even were they relevant. The reports were generated about other accidents that occurred after B. Stubblefield's accident. Plaintiffs did not assert that they may be introduced to show that SMC had notice of the defect in B. Stubblefield's bike. Further, plaintiffs say that they intend to use the reports to show that other riders experienced front brake failure while riding a bike similar to B. Stubblefield's. Neither SMC nor plaintiffs have identified with any specificity the documents in question. As such, this court is unable to conceive of an exception to the general jurisprudence of non-admissibility at this time. If they somehow are to be used for impeachment, this court is to be notified before that attempt occurs.

IV. CONCLUSION

IT IS, THEREFORE, ORDERED that SMC's Motion in Limine to Exclude Customer Complaints of Brake Failure [Docket no. 250] is DENIED WITHOUT PREJUDICE.

IT IS FINALLY ORDERED that SMC's Motion in Limine to Exclude Post-Crash Investigative Documents [Docket no. 252] is GRANTED.

SO ORDERED.