Last month, the BLF team successfully fought for—and won—the admission of other similar incident witnesses testimony in Ms. Goodman’s case.

Below is a copy of BLF’s successful reply brief.

PLAINTIFF’S REPLY REGARDING PLAINTIFF’S MOTION IN LIMINE TO ADMIT DEPOSITIONS OF SERGIO MARCHIONNE AND OTHER SIMILAR INCIDENT WITNESSES

The “subject matter” 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.

cid:image002.jpg@01D52C5D.7B65D6B0

This is not the first case to deal with that subject matter. In Walden v. Chrysler, the undersigned counsel deposed Segio Marchionne, FCA’s Chairman and CEO. That testimony is irreplaceable. Marchionne was the sole FCA representative at the crucial meeting at Chicago O’Hare 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. See Marchionne Dep. 120:17-122:14 Marchionne’s meeting was not transcribed, there is no memorandum about the meeting, and “there is no written record of what was being discussed.” Id. at 132:20-133:08. Mr. Marchionne is now deceased. There is nobody else from FCA to depose about the meeting. FCA’s position—that the evidence must now be lost forever, because one rear-tank Jeep involved in this same NHTSA investigation was not like another—is untenable, both practically and under the law.

Ms. was 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 Mr. . The undersigned knows of at least three other victims who have burned to death in rear-tank Jeeps while this case has been pending. If its own engineering documents weren’t enough to put FCA on notice of the danger that its customers were in, the rising death toll was. And is. That is what the other-similar-incident (“OSI”) depositions are about.

In Mr.‘s 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 (“the rear-tank Jeeps”) 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—who took time out of their lives, for no personal benefit, to tell painful stories about burning Jeeps—re-live the experience yet again merely because there is a new name at the top of this case caption.

 

SAME SUBJECT MATTER

There is a logistical reason not to re-take these twelve OSI depositions. FCA has named thirteen expert witnesses that 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.‘s case and Mr.‘s case were “brought between the same parties or their representatives or successors in interest,” and that these thirteen deponents are “unavailable as a witness at trial.” See Civ. R. 32(A)(4); Civ. R. 27(A)(4). Therefore, the only disputed issue is whether the cases “involve[e] the same subject matter,” meaning that there is “a substantial identity of issues.” Bushmaker v. A.W. Chesterton Co., 2013 WL 11079371, at *1 (W.D. Wis. March 1, 2013); see also Civ. 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:

  1. They all have gas tanks mounted approximately 10 inches from the extreme rear of the vehicle. See Subject Vehicle Measurement Data (Ex. A).
  2. They all have gas tanks hanging down approximately 6 inches. See Subject Vehicle Measurement Data (Ex. A).
  3. All their gas tanks are exposed to rear impact, as the below photographs show:

  1. FCA’s Chairman and CEO admitted that if one of these rear-tank Jeeps exploded in rear impact, FCA “has and would look at” the other Jeeps with rear-mounted gas tanks. Marchionne Dep. 43:08-17.
  2. All the rear-tank Jeeps have solid, or “live,” rear axles, such that when the Jeep is struck in the rear, the gas tank is squeezed between the striking vehicle and the Jeep’s rear axle, which causes the tank to rupture because there is nowhere for the tank to go.
  3. All the rear-tank Jeeps were all investigated in the very same NHTSA investigation, which defined the defect as “the placement of the fuel tanks in the position behind the axle and how they were positioned, including their height above the roadway.”
  4. Trial courts have held that these rear-tank Jeeps are “substantially similar,” and have been affirmed. Chrysler Group, LLC v. Walden, 792 S.E.2d 754, 763 (Ga. App. 2016).
  5. The rear-tank Jeeps are all midsize vehicles marketed to families in the United States.
  6. Plaintiff’s fuel systems expert, Fred Arndt, has so testified. See Arndt Aff. at ¶ 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? “The rule follows where its reason leads; where the reason stops, there stops the rule.” Karl Llewllyn, The Bramble Bush, 157-58 (1960). Marchionne has testified that the answer to this central question is “yes.” Marchionne Dep. 43:08-17.

 

 

The question here is whether these twelve depositions must be repeated. Under Rule 32 that depends on whether Ms. and Mr. involve “a substantial identity of issues.” Bushmaker, 2013 WL 11079371, at *1. FCA spends a lot of ink attempting to confuse that question: Ms.‘s case and Mr.‘s cases do not involve different “subject matter[s]” merely because an OSI that was admissible in Mr.‘s case occurred at a different speed, involved a different striking vehicle, or occurred at a slightly different angle than the collision in Ms.‘s case. Because both Ms.‘s case and Mr.‘s case share “a substantial identity of issues”—i.e., whether FCA is liable for the post-collision fires in its rear-tank Jeeps—the same ‘touchstones’ 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. See Arndt Aff. at ¶ 6.

 

FCA’S REMAINING ARGUMENTS LACK MERIT

FCA’s argument that these depositions cannot be used because “Plaintiff had to submit expert testimony” lacks merit. Opp. at 11. Whether there is “a substantial identity of issues” between Ms. and Mr. is 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’s suggestion that “the fuel tank was not breached in the initial impact but was rather breached in the second impact” between the Jeep and “the GMC pickup” is fanciful. The driver of the GMC pickup specifically testified that he saw the Jeep on fire in his rearview mirror before his truck was struck. Collins Dep. 72:19-22. He and other eyewitnesses testified that the fire was immediate. See Collins Dep. 41:18-21; C. Todd Dep. 22:13-20; Huening Dep. 48:01-11 (collectively Ex. C).

FCA’s argument that it “did not have the same motive when cross-examining the witnesses” is inaccurate, as a review of the transcripts reveals.[1] When 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’S CASE CITATIONS ARE UNAVAILING

FCA cites several non-binding cases, purportedly as persuasive authority, to support its position. Those cases do not support FCA’s position.

FCA relies on Hub v. Sun Valley Company, 582 F.2d 776 (9th Cir. 1982),[2] for the proposition that it would be “unfair” to bind a defendant to a previous deposition “that did not cover the same issues in the later litigation.” Opp. at 5. Hub is distinguishable. In Hub the plaintiff sued his former employer alleging a Title VII retaliation claim. Id. 777. The plaintiff tried to use another deposition involving his former employer’s predecessor, but the court did not allow it. Id. Critically, the deposition did not even involve the issue of retaliation. Id. at 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. Id.

FCA accurately states outcome of Powertrain, Incorporated v. Ma, 88 F. Supp. 3d 679 (N.D. Miss. 2015), but the case is inapposite. In Ma, the district court excluded a deposition because the subject matter of the cases was totally unrelated. Id. at 690. The predicate case involved indemnification based on penalties assessed in response to purported violations of EPA standards. Id. The excluded deposition was from a trademark infringement case—not the same subject matter or even the same area of the law. Id.

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 Zota, the district court opined that “[e]ven though the two lawsuits may have related factual content, they do not involve substantially identical issues.” Zota, 2009 WL 10668279, at *2. That case was a federal action to determine insurance coverage—the issues were interpretation of an insurance contract. Id. The excluded deposition was from a factually related negligence lawsuit, but simply did not involve the same legal issues or subject matter. Id.

The other authorities are equally unpersuasive. E.g., Wallace 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); In 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); Thompson 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 “have been construed liberally in light of the twin goals of fairness and efficiency.” 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 “a substantial identity of issues.” Bushmaker, 2013 WL 11079371, at *1–2 (allowing deposition where both cases involved product liability allegations concerning asbestos); see also Re Maxus Energy Corp., No. 16-11501, 2019 WL 2581609, at *3 (Bankr. D. Del. June 24, 2019) (“Courts generally take an expansive approach in construing the ‘same subject matter’ requirement, so as to require only a substantial identity of issues between the two actions. The prior case need not involve identical issues ‘so long as liability is based upon the ‘same condemned behavior thought to have occurred.’”); Coldwell v. RITECorp Envtl. Prop. Sols., No. 16-CV-01998-NYW, 2018 WL 5043904, at *8 (D. Colo. Oct. 17, 2018) (allowing prior deposition because “the prior case involved substantially similar allegations”); Illinois 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 “same subject matter where both cases involved “automotive service equipment” although different types of equipment); Runge 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 “broadly to general product history” and “any difference in [the] model . . . is inconsequential.”); Walker 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 “allegations 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.”).

Thus, unlike the “persuasive” authorities cited by FCA, Ms. case involves the “same subject matter” as in Mr.‘s 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 Ms. inside. Mr. ‘s involved 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 Mr. inside. The legal issues in both cases are the same—whether 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.

 

CONCLUSION

Marchionne’s 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.‘s case:

  1. Mr.
  2. Mr.
  3. Ms.
  4. Mr.
  5. Mr.
  6. Mr.
  7. Ms.
  8. Ms.
  9. Ms.
  10. Mr.
  11. Mr.
  12. Ms.
  13. Lt.

Respectfully submitted this 16th day of September 2019.

BUTLER LAW FIRM

BY:

JAMES E. BUTLER, III
MATTHEW R. KAHN
MORGAN LYNDALL

ATTORNEYS FOR PLAINTIFF

 

Footnotes:

  1. 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. , Mr. , Ms. , Ms. , Mr. , Lt. , Mr. , Mr. , Mr. , Ms. , Mr. , and Ms. .
  2. This case supports Plaintiff’s position more so than FCA’s. The Ninth Circuit noted that Rule 32(a) is to be “construed liberally in light of the twin goals of fairness and efficiency.” Hub, 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 “recall.” 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.

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