The opinion of the court was delivered by: Honorable Candy W. Dale Chief United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
The pretrial conference in this case took place on January 30, 2012. During the pretrial conference the Court heard oral arguments on both parties' motions in limine and Plaintiffs' motion to amend their complaint to include a claim for punitive damages. Having fully considered the parties' motions, briefing, and oral arguments on the motions, for the reasons discussed below, the Court will rule as follows:
(1) Four Winds' Motion In Limine to Exclude Various Inadmissible Evidence, (Dkt. 88), will be granted in part and denied in part;
(2) Four Winds' Motion In Limine to Exclude Testimony of Larry Tompkins, (Dkt. 89), will be denied;
(3) Plaintiffs' Motion for Leave to Amend Complaint to Include Claim for Punitive Damages, (Dkt. 101), will be denied;
(4) Plaintiffs' Motion In Limine, (Dkt. 118), will be denied; and
(5) Four Winds' Motion In Limine to Exclude Mechanic Hearsay Statements, (Dkt. 119), will be denied.
1. Four Winds' Motion to Exclude Various Inadmissible Evidence
In its first motion in limine, (Dkt. 88), Four Winds requests that the Court exclude five categories of evidence: (1) evidence of or references to other alleged incidents involving problems with motorhomes other than the one at issue in this case; (2) references to the death of Plaintiff Miller's mother; (3) speculative evidence about the value of the motorhome; (4) expert testimony from Paul and Steve Marton; and (5) evidence of alleged problems with the motorhome that arose after the limited warranty expired. Four Winds claims the above evidence is inadmissible under the Federal Rules of Evidence. Plaintiffs disagree, and ask the Court to deny the motion with regard to all five categories of evidence.
Based upon the deposition testimony of Plaintiffs' expert Larry Tompkins, Four Winds anticipates that Plaintiffs may offer evidence of incidents or problems involving motorhomes other than the one at issue in this case. Specifically, during his deposition, Mr. Tompkins testified to an incident involving another motorhome in which the vehicle's slideout extended unexpectedly while the vehicle was being driven, which is a problem that Plaintiffs claim they experienced with the motorhome at issue in this case.*fn1 Four Winds asserts that "Tompkins does not know if the slideout mechanism in that incident was the same as the one on Plaintiff's motorhome, does not know any of the details about how the slideout came out, and does not have any other details of that incident." (Mem. Of Law in Supp. Of Four Winds' Mot. In Lim. To Exclude Various Inadmissible Evid. at 3, Dkt. 88-1.) Given Mr. Tompkins' limited knowledge of these other incidents, Four Winds argues that "any testimony or evidence about this or any other alleged incident would be inadmissible without proof of substantial similarity to the facts, circumstances, and products involved in this case." (Id.)
In response, Plaintiffs assert that they will seek to admit this evidence only for the purposes of qualifying Mr. Tompkins as an expert witness. (Pl.s' Resp. To Def.'s Mot. In lim. To Exclude Various Evid. at 3, Dkt. 129.) Plaintiffs argue that Mr. Tompkins' experience working on other motorhomes with slideout problems is germane to Mr. Tompkins' qualifications as an expert in this case and that "[h]is testimony regarding other motor homes he has inspected in the past constitute part of the basis for his experience and knowledge about the technical specialized knowledge of engineering."
(Id.) Plaintiffs request that the Court allow the admission of the evidence for "foundational purposes in proving the qualifications of Plaintiffs' expert." (Id.)
Rule 403 of the Federal Rules of Evidence provides that, "[a]lthough 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 . . . ." Fed. R. Evid. 403. The case law establishes that evidence of prior accidents must be evaluated carefully due to their inflammatory nature and possible misinterpretation by the jury. See Barker v. Deere and Co., 60 F.3d 158, 162 (3d Cir. 1995) ("every court of appeals . . . agrees that when a plaintiff attempts to introduce evidence of other accidents as direct proof of a design defect, the evidence is admissible only if the proponent demonstrates that the accidents occurred under circumstances substantially similar to those at issue in the case at bar.") Given the dangers of misleading the jury and confusion of the issues, the Ninth Circuit requires a showing of "substantial similarity" before evidence of prior incidents is allowed. Cooper v. Firestone Tire and Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991) ("A showing of substantial similarity is required when a plaintiff attempts to introduce evidence of other accidents as direct proof of negligence, a design defect, or notice of the defect.").
Here, Plaintiffs are correct that Mr. Tompkins' experience in working on motorhomes with issues similar to the ones alleged in this case is pertinent to, and may be used in, establishing Mr. Tompkins' credentials as an expert. Four Winds' argument, however, is well taken. Anecdotal stories of other motorhomes'slideouts moving out while the vehicle is being driven, without establishing substantial similarity in the incidents, may confuse the issues, mislead the jury, and ultimately result in unfair prejudice to Four Winds. Given these considerations, the Court will not restrict Plaintiffs' direct examination of Mr. Tompkins regarding his prior experience as foundation for establishing his expert credentials, but will require that Plaintiffs demonstrate substantial similarity through an offer of proof outside the presence of the jury before eliciting testimony or other evidence of other incidents in which a motorhome's slideout extended unexpectedly.
B. Reference to Plaintiff's Mother's Death
In their complaint, Plaintiffs allege that, "[b]ecause of the ongoing issues with the RV, Ms. Miller was unable to visit with her mother on her death bed." (Compl. at ¶ 3.12, Dkt. 1.) During her deposition, Ms. Miller gave an emotional account of a conversation with her mother in which she told her mother that she wanted to take her on a trip in the motorhome once her mother was released from the hospital (which release did not happen). Ms. Miller also testified that, after her mother passed away, she had to tell her family that she would not be able to drive the motorhome to her mother's funeral because it was undergoing repairs.*fn2 Four Winds argues that this testimony is irrelevant under Fed. R. Evid. 401, should be excluded under Fed. R. Evid. 402, and that, even if the evidence is relevant, its probative value is substantially outweighed by the danger of unfair prejudice under Fed. R. Evid. 403.
Rule 401 of the Federal Rules of Evidence defines "relevant evidence" 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." Fed. R. Evid. 401. In their response to Four Winds' motion, Plaintiffs state "[t]he fact that Ms. Miller's mother died and she [Ms. Miller] was not able to drive the motor home to see her before her death is relevant to her inability to use the motor home because of its defects. (Dkt. 129 at 4.) Although they do not say it in so many words, the "fact of consequence" offered by the Plaintiffs for purposes of Rule 401 is that Ms. Miller was unable to use the motor home due to its defects. It is unclear how the death of Ms. Miller's mother makes this fact any more or less probable than it would be without the evidence.
Emotional distress damages are not available in this breach of warranty action and Plaintiffs have not explained how Ms. Miller's testimony concerning her mother's death tends to prove or disprove a fact of consequence to the determination of the case. The Court therefore finds the evidence irrelevant under Fed. R. Evid. 401 and inadmissible under Fed. R. Evid. 402. Moreover, even if the Court were to deem such evidence relevant, the Court finds there is a high probability that the evidence would unfairly appeal to the jury's emotions and should therefore be excluded under Fed. R. Evid. 403. "'Unfair prejudice' within [the] context [of Rule 403] means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Fed. R. Evid. 403, Advisory Committee Notes (emphasis added).
Based on the above discussion, Four Winds' motion will be granted on this issue and Plaintiffs will be prohibited from introducing any evidence of or making references to Ms. Miller's mother's death or Ms. Miller's inability to drive the motorhome to her mother's funeral.
C. Speculation About Value of Motorhome
Four Winds once again raises their contention that Plaintiffs have not put forward any evidence concerning the diminution in value of the motorhome, which is the ordinary measure of damages for breach of warranty under the Idaho Code and requires a showing of the difference between the fair market value of the vehicle as warranted and its fair market value as delivered in the allegedly defective condition. This issue previously was raised in Four Winds' motion for summary judgment and addressed in the Court's Memorandum Decision and Order entered on October 25, 2011. (Dkt. 100.) In that Order, the Court held that Plaintiffs may present evidence of "special circumstances" in this case, which provides an exception to the ordinary measure of damages for breach of warranty under Idaho law and allows the buyer to establish damages "in any manner which is reasonable." Idaho Code § 28-2-714(1).*fn3
Four Winds now asks the Court to prohibit Plaintiffs from testifying that, in their opinion, the motorhome is worthless. Four Winds argues that such testimony is speculation and may not be used to establish damages under Idaho law. Four Winds' argument, however, is not supported by Idaho law. "It is a settled rule in [Idaho] that the owner of property is a competent witness to its value." Garrett v. Neitzel, 285 P. 472 (Idaho 1930). Indeed, the Idaho Supreme Court has expressly stated that "[t]he owner of an automobile is competent to testify to its value." Mitchell v. Dyer, 341 P.2d 891, (Idaho 1959) (holding that plaintiff's testimony concerning value of car before and after an accident to establish damages was properly admitted by trial court).
Four Winds' motion in limine to preclude Plaintiffs' testimony as to the value of the motorhome is denied.
D. Expert Testimony from Paul and/or Steve Marton
Four Winds moves the Court for an order precluding Plaintiffs from offering Paul and Steve Marton as expert witnesses.
On February 24, 2011, Plaintiffs moved the Court to modify the case management order and extend the expert witness disclosure deadline so that they could disclose Paul and Steve Marton as experts. (Dkt. 32.) That motion was denied based on Plainitffs' failure to show good cause for the late disclosure. (Dkt. 34.) Although the Court denied Plaintiffs' request to name the Martons as experts, the Order expressly provides that "[n]othing in this Order should be construed as limiting Plaintiffs from utilizing Paul and Steve Mart[o]n as fact witnesses in this case if they are competent to testify as such under the Federal Rules of Evidence." (Order at 4 n.3, Dkt. 34) (emphasis added). Four Winds ...