[{"@context":"https:\/\/schema.org\/","@type":"BlogPosting","@id":"https:\/\/butlerfirm.com\/blog\/jeep-fire-case-successful-court-motion\/#BlogPosting","mainEntityOfPage":"https:\/\/butlerfirm.com\/blog\/jeep-fire-case-successful-court-motion\/","headline":"Jeep Fire Wrongful Death Case: Successful Court Motion to Admit Depositions of Witnesses from Similar Cases","name":"Jeep Fire Wrongful Death Case: Successful Court Motion to Admit Depositions of Witnesses from Similar Cases","description":"Last month, the Butler Kahn team successfully fought for\u2014and won\u2014the admission of other similar incident witnesses testimony in\u00a0Ms. Goodman\u2019s case. Below is a copy of BLF\u2019s successful reply brief.     Plaintiff\u2019s Reply Regarding Plaintiff\u2019s Motion In Limine To Admit Depositions Of Sergio Marchionne and Other Similar Incident Witnesses The \u201csubject matter\u201d of this case… Continue reading Jeep Fire Wrongful Death Case: Successful Court Motion to Admit Depositions of Witnesses from Similar Cases<\/span><\/a>","datePublished":"2019-10-08","dateModified":"2026-04-17","author":{"@type":"Person","@id":"https:\/\/butlerfirm.com\/blog\/author\/matt-kahn\/#Person","name":"Matt Kahn","url":"https:\/\/butlerfirm.com\/blog\/author\/matt-kahn\/","identifier":25,"image":{"@type":"ImageObject","@id":"https:\/\/secure.gravatar.com\/avatar\/e04949bdf1f2184cdeab337bb39535a4c17c4beb3ad3cd47e5524b20b38274a9?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/e04949bdf1f2184cdeab337bb39535a4c17c4beb3ad3cd47e5524b20b38274a9?s=96&d=mm&r=g","height":96,"width":96}},"publisher":{"@type":"Organization","name":"Butler Kahn","logo":{"@type":"ImageObject","@id":"https:\/\/butlerfirm.com\/wp-content\/uploads\/2020\/10\/Butler-Law-Firm-Logo.png","url":"https:\/\/butlerfirm.com\/wp-content\/uploads\/2020\/10\/Butler-Law-Firm-Logo.png","width":210,"height":93}},"image":{"@type":"ImageObject","@id":"https:\/\/butlerfirm.com\/wp-content\/uploads\/2020\/09\/jeep-fire-explosion-scaled.jpg","url":"https:\/\/butlerfirm.com\/wp-content\/uploads\/2020\/09\/jeep-fire-explosion-scaled.jpg","height":1920,"width":2560},"url":"https:\/\/butlerfirm.com\/blog\/jeep-fire-case-successful-court-motion\/","about":["Jeep Fire","Liability","Personal Injury","Wrongful Death"],"wordCount":2603,"articleBody":"Last month, the Butler Kahn team successfully fought for\u2014and won\u2014the admission of other similar incident witnesses testimony in\u00a0Ms. Goodman\u2019s case.Below is a copy of BLF\u2019s successful reply brief.  Plaintiff\u2019s Reply Regarding Plaintiff\u2019s Motion In Limine To Admit Depositions Of Sergio Marchionne and Other Similar Incident WitnessesThe \u201csubject matter\u201d of this case is whether an automaker is liable when it puts the gas tank in a place that the automaker knows to be dangerous, warns nobody, and allows people to burn to death as a result.This is not the first case to deal with that subject matter. In\u00a0Walden v. Chrysler, the undersigned counsel deposed Segio Marchionne, FCA\u2019s Chairman and CEO. That testimony is irreplaceable. Marchionne was\u00a0the\u00a0sole FCA representative\u00a0at the crucial meeting at Chicago O\u2019Hare Airport on June 10, 2013 when FCA talked NHTSA into letting FCA escape the recall investigation by merely installing trailer hitches on some of its rear-tank Jeeps.\u00a0See\u00a0Marchionne Dep. 120:17-122:14 Marchionne\u2019s meeting was not transcribed, there is no memorandum about the meeting, and \u201cthere is no written record of what was being discussed.\u201d\u00a0Id.\u00a0at 132:20-133:08. Mr. Marchionne is now deceased. There is nobody else from FCA to depose about the meeting. FCA\u2019s position\u2014that the evidence must now be lost forever, because one rear-tank Jeep involved in this same NHTSA investigation was not like another\u2014is untenable, both practically and under the law.Ms.\u00a0\u00a0was not the first or last person to burn to death in a rear-tank Jeep. There were many, many victims before her, one of whom was\u00a0Mr.\u00a0. The undersigned knows of at least three other victims who have burned to death in rear-tank Jeeps\u00a0while this case has been pending. If its own engineering documents weren\u2019t enough to put FCA on notice of the danger that its customers were in, the rising death toll was. And\u00a0is.\u00a0That is what the other-similar-incident (\u201cOSI\u201d) depositions are about.In Mr.\u2018s case, twelve OSI depositions were taken around the country. There is no need to repeat them. The people who testified did not like re-living their experiences with Jeep fires the first time. They were eyewitnesses, investigating officers, or drivers of 2002-2007 Jeep Liberties, 1993-2004 Jeep Grand Cherokees, or 1993-2001 Jeep Cherokees (\u201cthe rear-tank Jeeps\u201d) that got struck in the rear and either leaked fuel or burned as a result of the gas tank location. The undersigned met with many of them across kitchen tables. FCA has already cross-examined all of them. There is no need to make those people\u2014who took time out of their lives, for no personal benefit, to tell painful stories about burning Jeeps\u2014re-live the experience yet again merely because there is a new name at the top of this case caption.Same Subject MatterThere is a logistical reason not to re-take these twelve OSI depositions. FCA has named thirteen expert witnesses\u00a0that it claims it intends to call at trial. That is a lot of depositions to take. Our trial date is approaching, and time is going to run short.FCA appears to concede that Ms.\u2018s case and\u00a0Mr.\u2018s case were \u201cbrought between the same parties or their representatives or successors in interest,\u201d and that these thirteen deponents are \u201cunavailable as a witness at trial.\u201d\u00a0See\u00a0Civ. R. 32(A)(4); Civ. R. 27(A)(4). Therefore, the only disputed issue is whether the cases \u201cinvolve[e] the same subject matter,\u201d meaning that there is \u201ca substantial identity of issues.\u201d\u00a0Bushmaker v. A.W. Chesterton Co., 2013 WL 11079371, at *1 (W.D. Wis. March 1, 2013);\u00a0see also\u00a0Civ. R. 32(A)(4).The answer is yes. Both cases involved Jeeps with exposed rear gas tanks that were vulnerable to rear impact (as are millions of Jeeps that remain in the roads as the Court reads this sentence). The rear-tank Jeeps are substantially similar because:They all have gas tanks mounted approximately 10 inches from the extreme rear of the vehicle.\u00a0See\u00a0Subject Vehicle Measurement Data (Ex. A).They all have gas tanks hanging down approximately 6 inches.\u00a0See\u00a0Subject Vehicle Measurement Data (Ex. A).All their gas tanks are exposed to rear impact, as the below photographs show:FCA\u2019s Chairman and CEO admitted that if one of these rear-tank Jeeps exploded in rear impact, FCA \u201chas and would look at\u201d the other Jeeps with rear-mounted gas tanks. Marchionne Dep. 43:08-17.All the rear-tank Jeeps have solid, or \u201clive,\u201d rear axles, such that when the Jeep is struck in the rear, the gas tank is squeezed between the striking vehicle and the Jeep\u2019s rear axle, which causes the tank to rupture because there is nowhere for the tank to go.All the rear-tank Jeeps were all investigated in the very same NHTSA investigation, which defined the defect as \u201cthe placement of the fuel tanks in the position behind the axle and how they were positioned, including their height above the roadway.\u201dTrial courts have held that these rear-tank Jeeps are \u201csubstantially similar,\u201d and have been affirmed.\u00a0Chrysler Group, LLC v. Walden, 792 S.E.2d 754, 763 (Ga. App. 2016).The rear-tank Jeeps are all midsize vehicles marketed to families in the United States.Plaintiff\u2019s fuel systems expert, Fred Arndt, has so testified.\u00a0See\u00a0Arndt Aff. at \u00b6 5 (Ex. B).The central question for the jury, and the reason courts look for substantial similarity in OSIs, is whether the failure of one product would logically have alerted the manufacturer to the vulnerability of another product. In Jeep fire cases, the question is: when FCA learned that one of these rear-tank Jeeps under NHTSA investigation kept exploding in rear impact, would that logically alert FCA that another of these rear-tank Jeeps under NHTSA investigation might also explode in rear impact?\u00a0\u201cThe rule follows where its reason leads; where the reason stops, there stops the rule.\u201d Karl Llewllyn, The Bramble Bush, 157-58 (1960). Marchionne has testified that the answer to this central question is \u201cyes.\u201d Marchionne Dep. 43:08-17.The question here is whether these twelve depositions must be repeated. Under Rule 32 that depends on whether Ms.\u00a0and\u00a0Mr.\u00a0involve \u201ca substantial identity of issues.\u201d\u00a0Bushmaker, 2013 WL 11079371, at *1. FCA spends a lot of ink attempting to confuse that question:\u00a0Ms.\u2018s case and\u00a0Mr.\u2018s cases do not involve different \u201csubject matter[s]\u201d merely because an OSI that was admissible in Mr.\u2018s case occurred at a different speed, involved a different striking vehicle, or occurred at a slightly different angle than the collision in Ms.\u2018s case.\u00a0Because both\u00a0Ms.\u2018s case and\u00a0Mr.\u2018s case share \u201ca substantial identity of issues\u201d\u2014i.e., whether FCA is liable for the post-collision fires in its rear-tank Jeeps\u2014the same \u2018touchstones\u2019 apply for the determination of substantial similarity. All twelve of the OSI depositions at issue here involve (1) rear impact, (2) into a substantially similar Jeep, (3) which was part of the NHTSA investigation, (4) resulting in fuel leakage or fire, (5) as to which FCA had notice.\u00a0See\u00a0Arndt Aff. at \u00b6 6.FCA\u2019s Remaining Arguments Lack MeritFCA\u2019s argument that these depositions cannot be used because \u201cPlaintiff had to submit expert testimony\u201d lacks merit. Opp. at 11. Whether there is \u201ca substantial identity of issues\u201d between Ms.\u00a0and\u00a0Mr.\u00a0is a condition precedent to admissibility that the Court can decide as a matter of law. Ohio Evid. R. 104(A). Nonetheless, attached as Exhibit B is the affidavit of Fred Arndt, an extraordinarily well-qualified fuel systems expert, who testifies that these rear-tank Jeeps have substantially similar fuel systems and that these twelve rear-impact collisions are substantially similar.FCA\u2019s suggestion that \u201cthe fuel tank was not breached in the initial impact but was rather breached in the second impact\u201d between the Jeep and \u201cthe GMC pickup\u201d is fanciful. The driver of the GMC pickup specifically testified that he saw the Jeep on fire in his rearview mirror before\u00a0his truck was struck. Collins Dep. 72:19-22. He and other eyewitnesses testified that the fire was\u00a0immediate.\u00a0See\u00a0Collins Dep. 41:18-21; C. Todd Dep. 22:13-20; Huening Dep. 48:01-11 (collectively Ex. C).FCA\u2019s argument that it \u201cdid not have the same motive when cross-examining the witnesses\u201d is inaccurate, as a review of the transcripts reveals.[1]\u00a0When cross-examining the OSI witnesses, FCA repeatedly attempted to suggest that something other than the gas tank exploded, that the witness could not accurately recollect what happened, or that the impact was excessively forceful. FCA can make those arguments again, if it desires. If FCA wants to argue to the jury that it should disregard these OSIs because they involve different models of rear-tank Jeeps, FCA is free to make that argument as well.FCA\u2019s Case Citations are UnavailingFCA cites several non-binding cases, purportedly as persuasive authority, to support its position. Those cases do not support FCA\u2019s position.FCA relies on Hub v. Sun Valley Company, 582 F.2d 776 (9th Cir. 1982),[2]\u00a0for the proposition that it would be \u201cunfair\u201d to bind a defendant to a previous deposition \u201cthat did not cover the same issues in the later litigation.\u201d Opp. at 5.\u00a0Hub\u00a0is distinguishable. In\u00a0Hub\u00a0the plaintiff sued his former employer alleging a Title VII retaliation claim.\u00a0Id.\u00a0777. The plaintiff tried to use another deposition involving his former employer\u2019s predecessor, but the court did not allow it.\u00a0Id.\u00a0Critically, the deposition did\u00a0not even involve the issue of retaliation.\u00a0Id.\u00a0at 778. In that context, the court found that it would be unfair to bind the defendant who did not have the opportunity to cross examine the witness on retaliation.\u00a0Id.FCA accurately states outcome of Powertrain, Incorporated v. Ma, 88 F. Supp. 3d 679 (N.D. Miss. 2015), but the case is inapposite. In\u00a0Ma, the district court excluded a deposition because the subject matter of the cases was\u00a0totally\u00a0unrelated.\u00a0Id.\u00a0at 690. The predicate case involved indemnification based on penalties assessed in response to purported violations of EPA standards.\u00a0Id.\u00a0The excluded deposition was from a trademark infringement case\u2014not the same subject matter or even the same area of the law.\u00a0Id.FCA provides an out-of-context quote from Essex Insurance Company v. Zota, No. 04-60619-CIV, 2009 WL 10668279, at *1 (S.D. Fla. Feb. 5, 2009). Opp. at 5. In\u00a0Zota, the district court opined that \u201c[e]ven though the two lawsuits may have related factual content, they do not involve substantially identical issues.\u201d\u00a0Zota, 2009 WL 10668279, at *2. That case was a federal action to determine insurance coverage\u2014the issues were interpretation of an insurance contract.\u00a0Id.\u00a0The excluded deposition was from a factually related negligence lawsuit, but simply did not involve the same legal issues or subject matter.\u00a0Id.The other authorities are equally unpersuasive. E.g.,\u00a0Wallace v. City of Tarpon Springs, No. 8:05-CV-979-T-EAJ, 2007 WL 128839, at *1 (M.D. Fla. Jan. 12, 2007) (excluding deposition in a racial discrimination case because the deposition was from a case for malicious prosecution, false arrest, and battery);\u00a0In re Paramount Payphones, Inc., 256 B.R. 341 (Bankr. M.D. Fla. 2000) (excluding deposition in fraudulent transfer case because the deposition was in a fraudulent inducement case);\u00a0Thompson v. Atl. Richfield Co., 663 F. Supp. 206 (W.D. Wash. 1986) (the subject matter of the predicate case and the stricken deposition are entirely unclear from this opinion).The requirements of Rule 32 \u201chave been construed liberally in light of the twin goals of fairness and efficiency.\u201d Hub, 682 F.2d at 778 (9th Cir. 1982). Courts uniformly hold that, to be admissible, the prior cases need not be exactly the same, so long as there is \u201ca substantial identity of issues.\u201d\u00a0Bushmaker, 2013 WL 11079371, at *1\u20132 (allowing deposition where both cases involved product liability allegations concerning asbestos);\u00a0see also\u00a0Re Maxus Energy Corp., No. 16-11501, 2019 WL 2581609, at *3 (Bankr. D. Del. June 24, 2019) (\u201cCourts generally take an expansive approach in construing the \u2018same subject matter\u2019 requirement, so as to require only a substantial identity of issues between the two actions. The prior case need not involve identical issues \u2018so long as liability is based upon the \u2018same condemned behavior thought to have occurred.\u2019\u201d);\u00a0Coldwell v. RITECorp Envtl. Prop. Sols., No. 16-CV-01998-NYW, 2018 WL 5043904, at *8 (D. Colo. Oct. 17, 2018) (allowing prior deposition because \u201cthe prior case involved substantially similar allegations\u201d);\u00a0Illinois Tool Works, Inc. v. MOC Prod. Co., No. 09CV1887 JLS MDD, 2012 WL 3561984, at *4 (S.D. Cal. Aug. 17, 2012) (allowing deposition based on finding \u201csame subject matter where both cases involved \u201cautomotive service equipment\u201d although different types of equipment);\u00a0Runge v. Stanley Fastening Sys., L.P., No. 4:09-CV-00130-TWP, 2011 WL 6755161, at *2 (S.D. Ind. Dec. 23, 2011) (allowing deposition in product liability case involving different models because the depositions relate \u201cbroadly to general product history\u201d and \u201cany difference in [the] model . . . is inconsequential.\u201d);\u00a0Walker v. Blitz USA, Inc., No. 1:08-CV-121-ODE, 2009 WL 10669635, at *4 (N.D. Ga. Feb. 24, 2009) (allowing deposition based on finding same subject matter because all cases involved \u201callegations that Blitz failed to warn consumers of the risks of using the gas cans and failed to instruct consumers as to the safe uses of the gas cans.\u201d).Thus, unlike the \u201cpersuasive\u201d authorities cited by FCA, Ms.\u00a0case involves the \u201csame subject matter\u201d as in\u00a0Mr.\u2018s This case involves a Jeep with gas tank in the extreme rear. The Jeep was rear-ended, the gas tank was punctured, and the Jeep burned with\u00a0Ms.\u00a0inside.\u00a0Mr.\u00a0\u2018s\u00a0involved a Jeep with a gas tank in the extreme rear. The Jeep was rear-ended, the gas tank was punctured, and the Jeep burned with\u00a0Mr.\u00a0inside. The legal issues in both cases are\u00a0the same\u2014whether should FCA be liable for putting the gas tank in a place that it knew to be dangerous, warning nobody, and allowing people to burn to death as a result.ConclusionMarchionne\u2019s deposition cannot be retaken, and the twelve OSI depositions need not be retaken. Plaintiff respectfully asks the Court hold that the thirteen depositions identified below can be used in Ms.\u2018s\u00a0case:Mr.\u00a0\u00a0Mr.\u00a0\u00a0Ms.\u00a0\u00a0Mr.\u00a0\u00a0Mr.\u00a0\u00a0Mr.\u00a0\u00a0Ms.\u00a0\u00a0Ms.\u00a0\u00a0Ms.\u00a0\u00a0Mr.\u00a0\u00a0Mr.\u00a0\u00a0Ms.\u00a0\u00a0Lt.\u00a0\u00a0Respectfully submitted this 16th\u00a0day of September 2019.BUTLER KAHN LAW FIRMBY:JAMES E. BUTLER, IIIMATTHEW R. KAHNMORGAN LYNDALLAttorneys For PlaintiffFootnotes:Plaintiff was reluctant to file them all because they are collectively voluminous, but that now appears necessary. Accordingly, collective attached as Exhibit D, please find the consolidated transcripts of Ms.\u00a0, Mr.\u00a0, Ms.\u00a0, Ms.\u00a0, Mr.\u00a0, Lt.\u00a0, Mr.\u00a0\u00a0, Mr.\u00a0\u00a0, Mr.\u00a0\u00a0, Ms.\u00a0, Mr.\u00a0, and Ms.\u00a0.This case supports Plaintiff\u2019s position more so than FCA\u2019s. The Ninth Circuit noted that Rule 32(a) is to be \u201cconstrued liberally in light of the twin goals of fairness and efficiency.\u201d\u00a0Hub, 682 F.2d at 778.There are at-least 71 known prior wrecks where a rear gas-tank failed that resulted in a fire. Both FCA and Chrysler have been sued numerous times since they began selling the rear gas tank Jeeps. FCA knew of these dangers, yet proceeded to manufacture these defective products. Moreover, they knew their trailer hitch solution did nothing to lessen the danger of their rear gas-tanks, but, nevertheless, handed out hitches to customers as a \u201crecall.\u201d NHTSA is now conducting a federal investigation into these Jeep cases.Many victims could have survived their rear-end collision accidents had the manufacturers of Jeep placed fuel tanks in the front or middle of the vehicle rather than the rear. Despite increasing evidence of the injuries and deaths resulting from Jeep fires and faulty seat backs, FCA continued to sell its dangerous vehicle and still refuses to cooperate by making a full recall on its Jeeps with rear-end mounted tanks.If you or someone you know owns a Jeep model mentioned above, please be aware of the risk. And please speak with one our attorneys if a faulty rear-end mounted gas tank resulted in your injuries."},{"@context":"https:\/\/schema.org\/","@type":"BreadcrumbList","itemListElement":[{"@type":"ListItem","position":1,"name":"Blog","item":"https:\/\/butlerfirm.com\/blog\/#breadcrumbitem"},{"@type":"ListItem","position":2,"name":"Jeep Fire Wrongful Death Case: Successful Court Motion to Admit Depositions of Witnesses from Similar Cases","item":"https:\/\/butlerfirm.com\/blog\/jeep-fire-case-successful-court-motion\/#breadcrumbitem"}]}]