Case 3:13-cv-00784-DJH-CHL Document 138 Filed 01/18/16 Page 1 of 17 PageID #: 1581
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF KENTUCKY
`LOUISVILLE DIVISION
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`TANYA WILDEN, LEGAL GUARDIAN OF
`JANICE WILDEN, et al
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`Plaintiffs
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`v.
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`LAURY TRANSPORTATION, LLC, et al
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`Defendants
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`CIVIL ACTION NO.: 3:13CV00784-H
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`PLAINTIFFS' RESPONSE TO GREAT DANE'S ADDITIONAL MOTIONS IN LIMINE
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`Plaintiffs, TANYA WILDEN, et al, files the following responses and authorities to
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`Defendant, GREAT DANE LIMITED PARTNERSHIP's (hereinafter "Great Dane") Additional
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`Motions in Limine.
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`Alternative designs do not have to be "in existence" at the time the trailer in
`question was manufactured.
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`While Kentucky product liability law requires proof of a safer alternative design that was
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`1.
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`practical, or feasible, under the circumstances, an alternative design does not have to be "in
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`existence"1 at the time the trailer in question was manufactured.2 "Practical" and "feasible" are
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`interchangeable terms. Compare Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 41 ("practical
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`under the circumstances") with 136 S.W.3d at 42 ("feasible"). "Feasibility", by definition, means
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`"capable of being done or carried out."3 If a safer alternative design (whether "in existence or
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`not") was capable of being done or carried out at the relevant time then it is "practical" and
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`"feasible". This does not equate to being "in existence".4
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`1 Defendant's argument is silent as to what "in existence" would mean. Does it mean drawn? patented? built?
`2 "Practical" and "feasible" are interchangeable terms. Compare Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 41
`("practical under the circumstances") with 136 S.W.3d at 42 ("feasible").
`3 "Feasibility", by definition, means "capable of being done or carried out." See, e.g. http://www.merriam-
`webster.com/dictionary/feasible.
`4 None of the cases cited by defendant, however, stands for the proposition that a safer alternative design had to be
`in existence at the time the trailer in question was manufactured. Brock v. Caterpillar, Inc., 94 F.3d 220 (6th Cir.
`1996) excluded a subsequent design under a FED. R. EVID. 403 analysis because it was a "substantially different"
`model. McCoy v. GMC, 47 F. Supp. 838 (E.D. Ky. 1998) involved the grant of a summary judgment when a
`plaintiff's sole expert could not identify why an air bag failed to deploy.
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`1
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`Case 3:13-cv-00784-DJH-CHL Document 138 Filed 01/18/16 Page 2 of 17 PageID #: 1582
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`First, a plaintiff in a product liability case is not required to have built a prototype as of
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`the time of trial to meets its evidentiary burden. See Johnson v. Manitowoc Boom Trucks, Inc.,
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`484 F.3d 426, 432-33 ("The plaintiff is not required to produce a prototype design in order to
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`make out a prima facie case.") See also RESTATEMENT (THIRD) OF TORTS SEC. 2, CMT. F
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`(1998). If a prototype is not required then there can be no requirement that a safer alternative
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`design be in existence. Second, post-manufacture evidence has been found relevant on the
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`issue of feasibility. In Hinkle v. Ford Motor Co., 2012 U.S. Dist. LEXIS 65568 (E.D. Ky. 2012),
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`the court considered evidence that post-dated the manufacture of the product in question,
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`noting "[o]ther courts within the Sixth Circuit have found that information relating not only to
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`feasibility of an alternative design, but also information regarding the effectiveness of an
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`alternative design and the defendant's knowledge of this technology is relevant in design defect
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`product liability claims." The Hinkle court went on, finding,
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`"But even if the articles do not predate the manufacture of the subject vehicle, the Court
`is not willing at this time to adopt Ford's argument that these marketing articles are not
`relevant regarding what Ford "allegedly knew, and what was allegedly feasible, when
`designing [plaintiff's vehicle]."
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`Hinkle v. Ford Motor Co. at [23]. (emphasis supplied). Likewise, "[d]iscovery of alternative
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`design information relating to subsequent designs, such as the third generation of GM U-Van, is
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`likewise relevant under Rule 26(b)." Brownlow v. GMC, 2007 U.S. Dist. LEXIS 67973 at [20]
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`(W.D. Ky. 2007) (emphasis supplied).
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`Plaintiffs recognize that any alternative design that they propose is to be "practical" or
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`"feasible" as of the date of the trailer's manufacture. Contrary to defendant's assertion, plaintiffs'
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`alternative designs do not contain post-sale design advancements; rather, they are designs that,
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`by the application of reasonably and then-existing technology and knowledge, could have been
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`implemented by or before 1998. This has been established by, inter alia, plaintiffs' experts.
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`See e.g. Ponder Depo. at p. 175-76 (the concepts for the alternative design existed in 1998;
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`"the technology and side underride protection certainly [existed in 1998].")
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`2
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`Case 3:13-cv-00784-DJH-CHL Document 138 Filed 01/18/16 Page 3 of 17 PageID #: 1583
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`The occurrence of other side underride crashes is relevant.
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`Plaintiffs agree, in part, that there should be some limitation regarding other
`lawsuits; however, defendant's request is not briefed and is overly broad on
`its face.
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`Defendant groups these two items together for briefing purposes despite the fact they
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`2.
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`3.
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`each raise separate and very different issues.
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`Other Side Underride Crashes
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`Whether Defendant is asking the court to exclude references to individual, specific side
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`underride crashes, or to statistical compilations regarding side underride crashes, both are
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`relevant to the degree and unreasonableness of the dangers of the product: a box van trailer
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`without any side underride protection. Plaintiffs recognize that references to individual crashes
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`may require a showing of similarity; however, that showing does not require an exactitude.
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`Surles v. Greyhound Lines, Inc., 474 F.3d 288, 297 (6th Cir. 2007) holding that "[i]ncidents
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`which "occurred under similar circumstances or share the same cause" can properly be deemed
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`substantially similar." These other cases involve circumstances and causes that are similar to
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`the ones here: (1) impact (2) to the side of a trailer (3) that has no side underride protection
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`and (4) caused death or injury (5) due to passenger compartment intrusion.
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`Certain of those individual crashes were investigated and evaluated by some of plaintiffs'
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`experts and provides a portion of the basis for their opinions. For example, plaintiffs' experts
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`have investigated side underride crashes involving vehicles from compact cars through
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`Suburbans at varying speeds and angles. This involved testing and evaluation of how the
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`proposed alternative designs would react in those wide range of crashes and evaluate those
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`factors into the overall effectiveness of the proposed alternative design.
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`Likewise, the compilation of side underride crashes in a statistical form (e.g., how many
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`deaths per year, how many severe injuries, etc.) provide evidentiary support that the product is
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`unreasonably dangerous. The happenstance that one or more of defendant's witnesses
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`concede that there is a "potential danger" from a side underride crash undervalues the danger
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`3
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`Case 3:13-cv-00784-DJH-CHL Document 138 Filed 01/18/16 Page 4 of 17 PageID #: 1584
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`shown from hundreds of Americans being killed annually from these crashes and the thousands
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`more catastrophically injured. This evidence also addresses plaintiffs' proof that the risks of
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`side underride crashes outweigh any perceived benefit of a trailer without this protection.5
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`Other Lawsuits
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`Plaintiffs agree that this case should not degenerate into a re-trial of other side underride
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`cases. On the other hand, some mention or reference to other lawsuits may be inevitable.
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`Many of the experts in this case have testified in other similar cases. One can anticipate that
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`one or more of these experts could be cross-examined or impeached from his testimony in a
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`prior case. Second, Great Dane wants to offer a "test" performed specifically for use by lawyers
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`in another case.6 If that test is allowed into evidence, there will be cross-examination that will
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`undoubtedly inject that prior case. Third, one of Great Dane's own counsel in this case (Mr.
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`Glen Darbyshire) has been involved in underride issues for many years. His name appears in
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`depositions and documents produced in this case. It is inevitable that this will be mentioned.
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`Finally, plaintiffs intend to offer the testimony of witnesses (one deceased) from a prior lawsuit.
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`Again, it is almost inevitable that the other case will be mentioned.
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`Again, plaintiffs do not wish to re-visit other lawsuits in their entirety; however, some
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`reference is unavoidable and a wholesale grant of a limine would be overly broad.
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`Plaintiffs agree that all parties should comply with Rule 26 and any orders
`related thereto.
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`These issues raised here were raised in the parties' respective Rule 702 motions. As
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`4.
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`such, Plaintiffs agree that all parties should comply with the Court's rulings thereon.
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`5 The number and extent of fatalities and injuries is also relevant to the cost/economic feasibility analysis.
`6 For clarity, Plaintiffs have objected to the use of that test in this case.
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`4
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`Case 3:13-cv-00784-DJH-CHL Document 138 Filed 01/18/16 Page 5 of 17 PageID #: 1585
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`5.
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`These witnesses are not "late-disclosed".
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`Plaintiffs have designated multiple witnesses.7 Great Dane's asserts that some of the
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`witnesses disclosed within the court-ordered time are "late-disclosed". The Court's discovery
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`order provided that discovery remained open until December 31, 2015. These witnesses were
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`all disclosed prior to that (December 15, 2015). As a matter of course, compliance with the time
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`frame set by a court cannot be "late-disclosed".
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`Defendant's reliance on Luty v. City of Saginaw, 2007 U.S. Dist. LEXIS 38190 (E.D.
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`Mich. 2007) is misplaced. There, the "late-disclosed" witnesses were disclosed approximately 1
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`month before trial and 10 months after the court's discovery deadline. Great Dane's other
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`authority is to the same effect. Smith v. Pfizer, 265 F.R.D. 278 (M.D. Tenn. 2010) (holding that
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`witnesses identified after court-imposed deadline and parties' agreement were not timely
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`disclosed). In sum, the witnesses challenged here were disclosed timely and in compliance with
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`court order. This limine should be denied.8
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`Deposition testimony obtained in other cases should be handled on a case-by-
`case basis and in accordance with the Federal Rules of Evidence.
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`The breadth of this limine renders it inappropriate. For example, the use of deposition
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`6.
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`testimony from other cases to impeach witnesses in clearly permitted. Plaintiffs do agree that
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`both parties should not be allowed to use or read unfettered excerpts from depositions in other
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`cases.9 The crux of defendant's argument, however, appears to center on two witnesses:
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`(1)
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`Lavan Watts
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`Mr. Watts is the consummate industry insider, having served as the Chief Engineer for
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`the Trailer Division of Lufkin Industries from the 1970s through his retirement in 1998. He also
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`7 Defendant's challenge to the initial treating physicians is particularly confusing. Plaintiff had long before disclosed
`the treating physicians through their designation of the University of Louisville Hospital health care providers and,
`further, provided those medical records to defendant.
`8 Defendant implies that a party must "immediately" designate any potential trial witness. The purpose of a
`discovery deadline is to give both parties the opportunity to evaluate (as part of their work product) potential
`witnesses and make a decision by the court's deadline. Plaintiffs did exactly that.
`9 For example, one of Great Dane's own experts reviewed a deposition from another case and it formed the basis of
`all of his knowledge on that particular topic. Hofstetter 12-21-15 Depo. at p. 75-78. Plaintiffs agree with defendant
`that this is precisely the type of information or testimony that should not be allowed.
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`5
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`Case 3:13-cv-00784-DJH-CHL Document 138 Filed 01/18/16 Page 6 of 17 PageID #: 1586
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`participated with Great Dane on TTMA, serving on its Board of Directors, Litigation Committee
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`and Engineering Committee. In particular, Mr. Watts provides substantial information regarding
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`the "state of the art" up until 1998 (the time the Great Dane trailer was sold) including his
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`"inside" information that side underride guards were both technologically and economically
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`feasible. He testified in cases involving both his former employer (Lufkin) and another trailer
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`manufacturer (Utility).
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`(2)
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`John Tomassoni
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`Mr. Tomassoni is a former NHTSA engineer who has been described by one of Great
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`Dane's own experts as "the NHTSA underride engineer". Simons Depo. at p. 13-14. Mr.
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`Tomassoni passed away in 2011. Prior to his death, Mr. Tomassoni had testified (both at trial
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`and in deposition) in multiple side underride cases. While at NHTSA, Mr. Tomassoni ran or set
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`up multiple underride crash tests and provided the engineering analysis for the agency. Mr.
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`Tomassoni had, over the course of his career, designed and tested side underride guards, and
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`he had been published on this topic in the peer-reviewed literature.10
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`Unquestionably, both witnesses have relevant evidence to offer that includes their
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`insight and knowledge from (a) inside the trailer industry and (b) inside the government. This
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`testimony is admissible under FED. R. EVID. 804 (B)(2) and FED. R. CIV. P. 32. FED. R. EVID.
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`804 provides that such former testimony is admissible if (a) the witness is unavailable and (b)
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`there had been an opportunity for the witness to be cross-examined by someone with a similar
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`motive. Rule 804 (b)(1). See Clay v. Johns-Manville Sales Corp., 722 F.2d 1289 (6th Cir.
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`1983):
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`"We believe that what has been described as "the practical and expedient view"
`expresses the congressional intention: "if it appears that in the former suit a party
`having a like motive to cross-examine about the same matters as the present party
`would have, was accorded an adequate opportunity for such examination, the
`testimony may be received against the present party." Under these circumstances, the
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`10 Plaintiffs will provide the testimony "cuts" of Mr. Tomassoni along with their other deposition "cuts" as required
`by the Court's scheduling order.
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`6
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`previous party having like motive to develop the testimony about the same material facts
`is, in the final analysis, a predecessor in interest to the present party."
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`722 F.2d at 1295. This rule continues to maintain its vitality within the Circuit. See Thurman v.
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`Sunbeam Prods., 2004 U.S. Dist. LEXIS 30237 (W.D. Ky. 2004).
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`(3)
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`Both witnesses are unavailable
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`Both witnesses are unavailable. Mr. Tomassoni passed away in 2011. Plaintiffs are
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`attempting to schedule Mr. Watts' trial deposition; however, Mr. Watts' circumstances have
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`proven that difficult. If his deposition proves unattainable, then his prior testimony will be
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`used.11
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`(4)
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`The opponents in the other cases had like motives to develop the
`testimony of these witnesses
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`Plaintiffs will use these witnesses' prior testimony from Baker v. Lufkin Industries and
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`Beane v. Utility Trailer Manufacturing.12 In both of those cases, Great Dane's current counsel
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`(Glen Darbyshire) was also counsel. Mr. Darbyshire even took Mr. Tomassoni's deposition in
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`Baker.13 Both of those cases involved similar issues and circumstances as faced here,
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`including: (1) the plaintiff's vehicle struck the side of a trailer crossing his/her path of travel while
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`moving in a right-to-left path; (2) the vehicles underrode the side of the trailer, causing
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`passenger compartment intrusion and significant head injuries; (3) both cases alleged, as here,
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`that the trailer was unreasonably dangerous due to the lack of side underride protection; (4) the
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`parties in both cases disagreed as to whether a side underride guard was technologically and
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`economically feasible; (5) the plaintiffs alternative designs in those cases were made and tested
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`11 Mr. Watts lives outside of Lufkin, Texas which is clearly more than 100 miles from Louisville. This makes him
`unavailable as well. FED. R. CIV. P. 32 (4) (B).
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`12 Mr. Tomassoni has also testified in other side underride cases including those where Great Dane was a defendant.
`13 In would be an understatement to say that Mr. Darbyshire is well versed in side underride litigation. Not only
`does he appear as counsel in numerous such cases, he also serves as counsel to the trailer industry's industry trade
`group (Truck Trailer Manufacturer's Association) (TTMA) but further serves on TTMA's Product Liability
`Committee where he signed a joint defense agreement regarding product liability issues including side underride.
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`7
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`Case 3:13-cv-00784-DJH-CHL Document 138 Filed 01/18/16 Page 8 of 17 PageID #: 1588
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`by Mr. Enz and Mr. Ponder;14 (6) the defendants raised the issue of "covering the back sliding
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`tandems"; (7) the parties disputed whether the trailer industry lobbied or influenced NHTSA to
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`avoid underride regulations; (8) the parties disputed the basis of that one sentence in NHTSA's
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`1991 Preliminary Regulatory Evaluation regarding the cost-benefit of a side guard; (9) the
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`plaintiffs' speed in both accidents were substantially similar to that in this crash; and (10) like our
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`crash, the prior accidents involved some impact with more than the trailer side rail - there was
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`also some contact with other trailer structures. Ultimately, both Mr. Tomassoni and Mr. Watts
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`provide testimony that trailers without side underride protection are unreasonably dangerous,
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`and that it was scientifically and economically feasible to have provided such well before 1998.
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`Those positions are hotly contested here and were hotly contested in the prior cases. Similar
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`motives to question the witness existed when these depositions were taken.
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`Mr. Tomassoni's testimony regarding the historical development of underride protection,
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`given his place within the scientific community, is invaluable. His own work in the design and
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`testing of underride devices (including side underride designs) is equally invaluable.15 To avoid
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`any direct comparison of the Baker or Beane accidents to this crash, Plaintiffs have edited Mr.
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`Tomassoni's testimony to minimize those issues.16 The same is true of Mr. Watts, only from a
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`different perspective - he testifies from a position of a person who was inside the trailer industry
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`and who, up until the date the 1998 trailer was manufactured, interacted with other
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`manufacturers (including Great Dane). Neither of plaintiffs' current experts can bring these
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`perspectives to bear in their testimony.
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`14 Mr. Tomassoni was also involved in the early design and testing work with Mr. Enz. He also was a co-author in a
`peer-reviewed publication addressing these issues.
`15 Great Dane's cite to the district court's refusal to allow Mr. Tomassoni's testimony in the Beane case is misleading.
`Mr. Tomassoni's posthumous testimony was excluded for a Rule 26 procedural deficiency. Here, and unlike Beane,
`Plaintiffs timely and properly designated Mr. Tomassoni as a non-retained testifying expert. Plaintiffs further note
`that, when those procedural deficiencies were not present, Mr. Tomassoni's testimony was held admissible in Baker.
`16 Mr. Tomassoni's testimony was given in 2009, meaning that at least one of Great Dane's counsel has had access to
`it for the past 7 years. That same counsel has had the edited version of the testimony for at least 3 years.
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`8
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`Case 3:13-cv-00784-DJH-CHL Document 138 Filed 01/18/16 Page 9 of 17 PageID #: 1589
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`Whether a document reviewed and relied upon by plaintiffs' expert is, or is
`not, hearsay/irrelevant is a factually intensive inquiry. The documents
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`identified by Great Dane do not suffer from the infirmary.
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`While plaintiffs generally agree that an expert should not be allowed to use or discuss
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`7.
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`documents that experts within his field customarily do not rely upon, plaintiffs disagree that this
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`has happened here. Defendant focuses its argument solely on certain materials used by one of
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`plaintiffs' experts, Mr. Perry Ponder.17
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`(1)
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`The Nixon Tapes/Ron Erlichman
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`In the late 1960s, the U.S. Department of Transportation undertook multiple safety
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`programs including those dealing with underride. Those programs ended in 1970-71. The
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`culprit? The White House. Excerpts obtained and authenticated from the Nixon Tapes
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`demonstrate that the White House was lobbied by the transportation industry to end "costly"
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`safety regulations. These excerpts further reflect the extent that the White House went to in
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`order to force the agency to discontinue such safety work. This was confirmed in a later
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`deposition of Ron Erlichman. To the extent that Great Dane will use a lack of regulation to
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`excuse its failure to provide side underride protection, this evidence is critical to explain
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`how/why not regulation was passed.
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`(2)
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`Deposition Testimony from Other Trailer Engineers
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`As part of Mr. Ponder's role as a historian, he has read and used deposition testimony
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`from certain engineers from other trailer manufacturers. This comprises part of his knowledge
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`and, in that regard, he reviewed and relied upon them. Great Dane misstates Mr. Ponder's use
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`of these documents and his Rule 26 report. His report did discuss the historical perspective of
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`underride and his subsequent deposition permissibly elaborated on that.
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`Great Dane takes particular umbrage at Mr. Ponder's use of 1 page from the deposition
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`of another trailer manufacturer's engineer which contained a cost calculation for a side
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`17 Mr. Ponder will testify, inter alia, about the history of underride protection as well as the unreasonably dangerous
`nature of a trailer without such protection and the availability of safer alternative designs.
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`9
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`Case 3:13-cv-00784-DJH-CHL Document 138 Filed 01/18/16 Page 10 of 17 PageID #: 1590
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`underride guard with a telescoping portion. Irrespective of that single page, Mr. Ponder also
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`has the actual design and cost documents for that guard and referenced 1 page for confirmation
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`of those costs. Mr. Ponder can rely on such information whether he reads verbatim from that
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`deposition or not. Mr. Ponder has produced the actual documents and was questioned about
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`them at some length during his deposition.18
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`(3)
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`U.S. News and World Report Article
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`Mr. Ponder uses and relies on an U.S. News and World Report article from 2000 which
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`was spurred by a verdict in a side underride case in Texas. In that article, Great Dane's trade
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`association president states that it is within the industry's power to build a side underride guard.
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`That is admissible.19 Plaintiffs do agree that the result in the prior case should not be
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`discussed.
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`Evidence of lobbying or influencing the government or any federal agency is
`admissible in the context of Great Dane's defense(s)
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`Since the inception of this lawsuit, Great Dane has consistently taken the position that it
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`8.
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`did not provide a side underride guard on the subject trailer because the government did not
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`require it. When the façade of that claim is pulled back, one discovers that Defendant (and its
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`trade organization, the Truck Trailer Manufacturers Association a/k/a TTMA) exerted significant
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`political and lobbying influence over both Congress and the National Highway Traffic Safety
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`Administration (NHTSA) to buy and to maintain deregulation. For that reason, this evidence is
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`both relevant and admissible.
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`The absence of government regulation requiring side underride guards on their trailers is
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`Great Dane's primary defense to Plaintiffs' claims. Plaintiffs will rebut this defense with
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`competent evidence that Great Dane engaged in lobbying efforts aimed at continued
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`deregulation and maintaining the "status quo." Seeking to have their cake and eat it too, Great
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`18 Great Dane argues that the Strick Trailer design is not relevant because it was drawn in 2000. This shows that
`Great Dane continues to miss the mark - the issue is whether that design (as plaintiffs have already shown) was
`"feasible" or "practical" in 1998.
`19 The publication meets the hearsay exception applicable to periodicals. FED. R. EVID. 813 (18).
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`10
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`Dane now claims that the Noerr and Pennington cases bar evidence of its lobbying against the
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`side underride guards, which in fact explains why there is an absence of such government
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`regulation.
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`Great Dane relies on the Noerr-Pennington doctrine, a doctrine that provides limited
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`immunity under limited circumstances regarding certain lobbying activities.20 See Eastern R.R.
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`Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 5 L.Ed.2d 464, 81 S.Ct. 523
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`(1961); United Mine Workers v. Pennington, 381 U.S. 657, 14 L.Ed.2d 626, 85 S. Ct. 1585
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`(1965). Great Dane’s argument that such evidence is per se inadmissible flies in the face of the
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`U.S. Supreme Court’s language from these very cases: “It would of course still be within the
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`province of the trial judge to admit this evidence, if he deemed it probative and not unduly
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`prejudicial, under the ‘established judicial rule of evidence that testimony of prior or subsequent
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`transactions, which for some reason are barred from forming the basis for a suit, may
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`nevertheless be introduced if it tends reasonably to show the purpose and character of the
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`particular transactions under scrutiny.” United Mine Workers v. Pennington, 381 U.S. at 670,
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`n.3.
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`Likewise, this rule of admissibility is applied in the Sixth Circuit. See In re Welding Fume
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`Prods. Liab. Litig., 2010 U.S. Dist. LEXIS 146067, *419-421 (N.D. Ohio June 4, 2010). There,
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`several welding-rod defendants urged OSHA and other federal agencies not to lower the
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`threshold limit value exposure limit for manganese. The magistrate judge denied their motion to
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`exclude the documentary lobbying evidence based on the Noerr-Pennington doctrine. The
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`district judge affirmed this pretrial ruling:
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`The Court agreed with defendants' general contention that documents are not
`admissible only to show their lobbying efforts, which are constitutionally-
`protected activities. But the Court denied defendants' motion, ruling again that a
`pretrial, blanket ruling was not appropriate. To the contrary, the Court has since
`admitted several such documents over defendants' objection because, even
`though the document was arguably created for lobbying purposes, it also
`contains statements directly relevant to issues central to every Welding Fume
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`20 Noerr-Pennington is a rule of immunity from liability, not exclusion from evidence.
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`Case 3:13-cv-00784-DJH-CHL Document 138 Filed 01/18/16 Page 12 of 17 PageID #: 1592
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`case. For example, a document which unsuccessfully urged the ACGIH not to
`lower its manganese TLVs, and also asserted that many welders would be
`"overexposed" if the TLV was lowered, contains an admission against interest;
`the fact that the document involved First Amendment lobbying activity does not
`immunize the communication from coming into evidence, and defendants cannot
`use the First Amendment as a shield to keep relevant evidence from a jury.
`Other, similar documents may be relevant to show defendants' knowledge that
`manganese exposure has neurological health effects, or that defendants
`considered funding various studies to examine neurotoxicity of welding fumes.
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`Id. at 421.
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`In any event, Noerr-Pennington does not apply in product liability actions. In Hernandez
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`v. Amcord, Inc., 215 Cal. App. 4th 659 (Cal. App. 2d Dist.) review denied (Cal. 2013), the
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`exclusion of this precise type of evidence was held to be reversible error:
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`The trial court's reliance on the Noerr-Pennington doctrine to exclude evidence in
`this negligence/strict liability case is a misapplication of the doctrine. As
`discussed above, the Noerr-Pennington doctrine shields defendants from liability
`for their actions in petitioning government officials. It does not provide a basis for
`exclusion of evidence of lobbying activities that might be relevant to show a
`defendant's knowledge of the dangerous nature of its product or a failure to
`exercise ordinary care. The evidentiary ruling is therefore reversed.
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`215 Cal. App. 4th at 680. See also Wolfe v. McNeil-PPC, Inc., 2012 U.S. Dist. LEXIS 2160 at
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`*17-19 (E.D. Pa. 2012) (in products liability case, evidence that defendant petitioned
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`governmental agency admissible).
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`Simple stated, Great Dane cannot have it both ways. Even setting aside the case law
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`for a moment, Great Dane's lobbying efforts are admissible for a more basic reason: they
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`cannot use governmental documents and the lack of governmental regulation as a defense, yet
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`ask the Court to bar the Plaintiff from offering evidence to explain or rebut those positions.
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`Great Dane wants to tell the jury, "The government didn't make us do it," but does not want the
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`jury to know why the government didn't make them do it. That misleads the jury. Great Dane
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`chose this defense – Plaintiff is entitled to respond to it and to give the jury a fair understanding
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`of the facts.
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`Case 3:13-cv-00784-DJH-CHL Document 138 Filed 01/18/16 Page 13 of 17 PageID #: 1593
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`Evidence of Great Dane's activities within TTMA is relevant as is its
`participation in a 'joint defense agreement'
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`Great Dane, along with nearly every other trailer manufacturer in the country, is a
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`9.
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`member of TTMA. TTMA is led by a Board of Directors (of which Great Dane has continuously
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`been a member) as well as several committees including: the Engineering Committee (of which
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`Great Dane has always had a member, including Great Dane's own retained expert and
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`30(b)(6) witness, James Hofstetter) and the Product Liability Committee (Mr. Hofstetter has also
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`been a member of that committee as has other Great Dane staff and counsel). Lavon Watts,
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`while employed at Lufkin, was a member of all three and also signed the joint defense
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`agreement.
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`The joint defense agreement is the product of the Product Liability Committee, a "top
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`secret" group that meets about safety problems including side underride. Witnesses such as
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`Mr. Hofstetter refuse to testify about the activities of that committee. It is unquestioned that this
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`committee (and Great Dane) have information regarding side underride that it will not disclose.21
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`This is proper fodder for cross-examination.22
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`TTMA's lawyer is also Great Dane's lawyer in this case (Glen Darbyshire). He signed
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`the joint defense agreement. He also appears in, and has authored, various documents that
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`have been produced in this case. While defendant may not want it known that its attorney is
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`also TTMA's attorney, the evidence in this case will disclose and leave no doubt about that.
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`Membership and participation in a trade association is a relevant inquiry. George v. Celotex
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`Corp., 914 F.2d 26, 29-30 (2nd Cir. 1990); Dartez v. Fibreboard Corp., 765 F.2d 456, 465 (5th
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`Cir. 1985); Hamilton v. Garlock, Inc., 96 F. Supp.2d 352, 355 (S.D. N.Y.