holding that “evidence 11 of such remedial measures may be admissible for certain purposes, including impeachment” which 12 may include “proving defendants’ knowledge of the alleged dangerous condition”
How later courts described this case
- holding that “evidence 11 of such remedial measures may be admissible for certain purposes, including impeachment” which 12 may include “proving defendants’ knowledge of the alleged dangerous condition”
- summary inadmissible because the proponent failed to provide the 19 underlying data
- “We agree that the lists should not have been admitted under Rule 803(6). The 3 summaries were prepared in response to litigation rather than in the regular course of business. 4 Business records prepared solely for purposes of litigation lack trustworthiness.”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 RAUL SIQUEIROS, et al., Case No. 16-cv-07244-EMC
8 Plaintiffs,
FINAL PRETRIAL CONFERENCE
9 v. ORDER
10 GENERAL MOTORS LLC,
11 Defendant.
12
13
14 I. BACKGROUND
15 The plaintiffs in this action are current owners of certain General Motors LLC (“GM”)
16 trucks and SUVs that allegedly contain an excess oil consumption defect in their vehicles’
17 engines. Plaintiffs claim that the excessive oil consumption can harm and disrupt the proper
18 functioning of the engine in multiple ways. Plaintiffs define the alleged engine defect as the “oil
19 consumption defect” caused primarily by wear in the engines’ piston ring assembly. GM denies
20 that there is any such “oil consumption defect,” and has also raised various affirmative defenses to
21 plaintiffs’ claims.
22 Not all plaintiffs will be proceeding to trial on September 13, 2022. Instead, the trial will
23 be limited to the claims of class representatives Garet Tarvin, William Davis, Jr., and Gabriel Del
24 Valle; and specifically, the trial will be limited to the three class claims that the Court has
25 permitted them to assert as representatives on behalf of statewide classes certified under Federal
26 Rule of Civil Procedure 23.
27 Plaintiff Tarvin, individually and on behalf of the California Class, asserts a breach of
1 Class is defined as “all current owners or lessees of a Class Vehicle that was purchased or leased
2 the vehicle in new condition in the State of California.” Plaintiff Davis, individually and on behalf
3 of the North Carolina Class, asserts a claim for breach of implied warranty under North Carolina
4 law. The North Carolina Class is defined as “all current owners or lessees of a Class Vehicle that
5 was purchased or leased in the State of North Carolina.” Plaintiff Del Valle, individually and on
6 behalf of the Idaho Class, asserts a claim for violation of the Idaho Consumer Protection Act. The
7 Idaho Class is defined as “all current owners or lessees of a Class Vehicle that was purchased or
8 leased in the State of Idaho from a GM-authorized dealer.”
9 II. TRIAL DATE & LENGTH OF TRIAL
10 The Court shall hold a hearing on Monday, September 12, 2022, at 12:30 p.m., to discuss
11 the completed jury questionnaires. At this time, the Court will discuss whether any potential
12 jurors should be excused for hardship in advance of jury selection. The Court will also discuss
13 imposing a vaccination requirement on jurors. The hearing shall be conducted via Zoom.
14 Jury selection shall take place on September 13, 2022, beginning at 1:00 p.m. Counsel
15 shall be present in the Courtroom at 12:30 p.m.
16 The jury trial shall begin on September 19, 2022. Trial shall last from 8:30 a.m. to 1:30
17 p.m. on each day, except for Thursdays, which are dark. Friday, September 23, 2022, shall also be
18 dark. On all trial days counsel shall be present in the Courtroom at 8:15 a.m. to discuss any
19 matters requiring resolution prior to commencement of trial at 8:30 a.m.
20 The trial shall last for eight days. Each party will be limited to fifteen hours to present its
21 case. This includes opening statements, time on direct and cross-examination, and closing
22 arguments, but does not include jury voir dire.
23 III. ADVANCED NOTICE OF WITNESSES AND EXHIBITS
24 During the pretrial conference, the Court instructed that each party shall provide 48
25 hours/two court days in advance for notice of witnesses and exhibits to be called each day. The
26 Court reserves the authority to exclude witness for non-compliance.
27 All objections to witnesses and exhibits must be filed with the Court at least one court day
1 8:30 a.m. on the following day. All objections should be provided in writing and filed with the
2 Court, and a courtesy copy should be given to chambers immediately.
3 Should a party fail to have enough witnesses to complete the trial day, the Court shall
4 charge the surplus time remaining on that day against the party’s total allotted time. For instance,
5 if a party concludes a witness’s examination with an hour remaining in the day and is not prepared
6 to call another witness, then the Court will subtract that hour from the party’s allotted fifteen
7 hours.
8 IV. WITNESSES
9 A. Plaintiffs
10 Plaintiffs have identified the following individuals as witnesses they may call in their case-
11 in-chief.
12 (1) Gabriel Del Valle. Mr. Del Valle is the Idaho Class Representative. He will be
13 testifying about the purchase, maintenance, and ownership of his vehicle, along
14 with his oil consumption experience.
15 (2) William Davis, Jr. Mr. Davis is the North Carolina Class Representative. He
16 will be testifying about the purchase, maintenance, and ownership of his
17 vehicle, along with his oil consumption experience.
18 (3) Mrs. Davis. Mrs. Davis will be testifying about her oil consumption
19 experience.
20 (4) Garet Tarvin. Mr. Tarvin is the California Class Representative. He will be
21 testifying about the purchase, maintenance, and ownership of his vehicle, along
22 with his oil consumption experience.
23 (5) Plaintiff Raul Siqueiros. GM has objected because Mr. Siqueiros is not a
24 member of the California Class. The objection is covered in GM’s MIL No. 3.
25 Mr. Siqueiros seeks to testify about the purchase, maintenance, and ownership
26 of his vehicle, along with his oil consumption experience.
27 (6) Plaintiff Cralley. As with Mr. Siqueiros, GM has objected to either Todd or Jill
1 objection is covered in GM’s MIL No. 3. Mr. Crawley seeks to testify about
2 the purchase, maintenance, and ownership of his vehicle, along with his oil
3 consumption experience.
4 (7) Ted Stockton (expert). Mr. Stockton is Plaintiffs’ damages expert.
5 (8) Dr. Werner Dahm (expert). Dr. Dahm is Plaintiffs’ technical expert. He will
6 testify regarding the design of the LC9 engines in the Class Vehicles.
7 (9) GM Corporate Representative.
8 (10) Steve Pfromm. Mr. Pfromm is a GM engineer who works in program quality
9 for small block engines. Although Plaintiffs seek to use Mr. Pfromm’s
10 deposition testimony because Mr. Pfromm is outside the subpoena power of the
11 Court, GM has offered to make this witness available to testify live during
12 Plaintiffs’ case-in-chief. See Docket 452 (Appendix A) at 3 n.6; Docket No.
13 451 (Joint Pretrial Statement) at 10. GM contends that Mr. Pfromm’s
14 deposition testimony is inadmissible hearsay and GM plans to cross-examine
15 Mr. Pfromm live.
16 (11) Dr. Jeffrey K. Ball (expert). Dr. Ball was Plaintiffs’ original technical expert.
17 Plaintiffs seek to introduce his opinions from his expert report and deposition
18 with regard to field performance and warranty data for oil consumption in the
19 Subject Vehicles, among other things. GM has objected to use of Dr. Ball’s
20 testimony on the bases of hearsay and relevance. The objection is covered in
21 GM’s MIL No. 2.
22 (12) Yoon Lee. Lee is currently employed by GM as a design system engineer for
23 small block systems. Lee served as a design systems engineer for GM’s Gen
24 IV LC9 engines.
25 (13) Grant Tappen. As with Mr. Pfromm, Plaintiffs seek to use Mr. Tappen’s
26 deposition testimony, and GM has objected on the basis that it will make Mr.
27 Tappen available and thus the deposition testimony is inadmissible hearsay.
1 testimony, and GM has objected on the basis that it will make Mr. Halka
2 available and thus the deposition testimony is inadmissible hearsay.
3 (15) Wai Nguyen. Plaintiffs seek to use Nguyen’s deposition testimony regarding
4 GM’s oil consumption investigation, oil consumption causes, Class Vehicle
5 field performance, and engine operability.
6 (16) Lisa Toth. Plaintiffs seek to use Ms. Toth’s deposition testimony regarding
7 GM’s oil consumption investigation, Class Vehicle field performance, GM’s
8 breakpoints, oil consumption causes, and engine operability.
9 (17) Rich Ricchi. Plaintiffs seek to use Mr. Ricchi’s deposition testimony regarding
10 GM’s oil consumption investigation, Class Vehicle field performance, and
11 engine operability.
12 (18) Gary Cygan. As with Mr. Pfromm, Plaintiffs seek to use Mr. Cygan’s
13 deposition testimony, and GM has objected on the basis that it will make Mr.
14 Cygan available and thus the deposition testimony is inadmissible hearsay.
15 B. Defendant
16 GM has identified the following individuals as witnesses it may call in its case-in-chief.
17 (1) Rene Befurt, Ph.D. (expert). Dr. Befurt will offer opinion testimony regarding
18 consumer expectations, the consumer buying and leasing process in the
19 automotive market, and rebuttal to Plaintiffs’ expert witnesses.
20 (2) Gary Cygan, Jr. Mr. Cygan also appears on Plaintiffs’ witness list.
21 (3) Thomas Halka. Mr. Halka also appears on Plaintiffs’ witness list.
22 (4) Michael C. Keeley, Ph.D. (expert). Dr. Keeley is GM’s damages expert. He
23 will offer opinion testimony regarding Plaintiffs’ alleged damages, Plaintiffs’
24 damages model, and rebuttal to Plaintiffs’ expert witnesses.
25 (5) Stephen Pfromm. Mr. Pfromm also appears on Plaintiffs’ witness list. Mr.
26 Pfromm will testify about warranty and repair rates associated with claims of
27 excessive oil consumption in the Subject Vehicles, design changes to the Gen
1 oil consumption in the Gen IV LC9 engines.
2 (6) Grant Tappen. Mr. Tappen is also on Plaintiffs’ witness list. Mr. Tappen will
3 testify about GM’s design, testing, and validation of the lubrication and
4 ventilation systems in the Gen IV LC9 engines, GM’s investigation of claims of
5 oil consumption, and GM’s design changes to address excess oil consumption
6 in pre-class period vehicles.
7 The parties are urged to re-examine and condense their witness list in view of the time
8 limits imposed.
9 V. MOTIONS IN LIMINE
10 A. Plaintiffs’ Motions in Limine
11 1. Motion in Limine No. 1 (Docket No. 469)
12 The National Highway Traffic Safety Administration (“NHTSA”) is the U.S. government
13 agency tasked with monitoring vehicle safety and regulating and initiating recalls for safety-
14 related issues. Plaintiffs seek to exclude two types of NHTSA recall-related evidence: (1)
15 evidence related to a specific NHTSA publication, and (2) evidence or argument regarding the fact
16 that the Class Vehicles were not recalled. Mot. at 1. For the reasons explained below, the
17 NHTSA recall-related evidence is relevant, not unfairly prejudicial, and admissible under the
18 public record exception to the hearsay rule. As a result, the Court DENIES Plaintiffs’ Motion in
19 Limine No. 1.
20 a. NHTSA Booklet (Exhibit 504)
21 Under the National Traffic and Motor Vehicle Safety Act, NHTSA has the authority to
22 write and enforce Federal Motor Vehicle Safety Standards, and to require recalls of motor
23 vehicles. See 49 U.S.C.A § 30101. In this role, NHTSA reviews complaints, and where
24 warranted, conducts investigations into alleged safety defects. Opp. at 1 (citing NHTSA website).
25 NHTSA also publishes guidance documents and other reports related to motor vehicle compliance
26 and safety. Id. In August 2017, NHTSA published a booklet titled DOT HS 808 795, Motor
27 Vehicle Safety Defects And Recalls, What Every Vehicle Owner Should Know (“Recalls”), which
1 on vehicle performance issues it considers to be “safety-related” and those it does not. See Docket
2 No. 469-2 (Exhibit A to Pl.’s MIL No. 1). Recalls lists “excessive oil consumption” under the
3 category “Examples of Defects Not Considered Safety-Related.” Id. at 4. GM cited Recalls in
4 connection with its first motion for summary judgment, see Docket No. 184 (MSJ) at 28, in
5 support of its argument that the alleged oil consumption defect is not an unreasonable safety
6 hazard.
7 i. Relevance and Unfair Prejudice
8 Plaintiffs argue that NHTSA’s statement in Recalls that excessive oil-consumption is not a
9 safety-related defect is irrelevant under Federal Rules of Evidence 401 and 402, and would be
10 confusing and unfairly prejudicial under Rule 403. Neither argument is persuasive.
11 Evidence is relevant if (i) it has any tendency to make a fact more or less probable than it
12 would be without the evidence, and (ii) that fact is of consequence in determining the action. Fed.
13 R. Evid. 401. “Irrelevant evidence is not admissible.” Fed. R. Evid. 402.
14 Plaintiffs argue that the statement is irrelevant because “the statement is made specifically
15 within the context of recalls under the United States Code for Motor Vehicle Safety, and the issue
16 of whether the excessive oil consumption defect alleged in this case is safety-related under the
17 United States Code for Motor Vehicle Safety will not be before the jury.” Mot. at 2. This
18 argument is weak. While the jury will not be considering the question of whether the defect is
19 safety-related pursuant to the United States Code for Motor Vehicle Safety, the NHTSA’s
20 assessment of excessive oil defects in general is still relevant. The NHTSA’s determination that
21 excessive oil consumption is not, in general, a safety-related defect under the Code makes
22 Plaintiffs’ theory that the alleged Oil Consumption Defect is a breach of the implied warranty of
23 merchantability less likely. Plaintiffs’ motion to exclude the NHTSA pamphlet on the grounds of
24 relevance is denied.
25 Plaintiffs also argue that Recalls is confusing and prejudicial under Rule 403. “The court
26 may exclude relevant evidence if its probative value is substantially outweighed by a danger of
27 one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue
1 Here, Plaintiffs argue that the jury is likely to attach undue weight to a statement of
2 NHTSA, even though NHTSA has not examined the specific oil consumption defect in the Class
3 Vehicles, because the NHTSA is a federal agency. Mot. at 2. In support of this theory, Plaintiffs
4 cite cases where courts excluded material produced by federal agencies under Rule 403. See id. at
5 2–3, see also Hynix Semiconductor Inc. v. Rambus, Inc., No. 00-cv-20905, 2008 WL 282376, at
6 *4 (N.D. Cal. Jan. 28, 2008) (excluding Federal Trade Commission opinion because of concern
7 that jury would attach undue weight to the opinion); Williams v. Nashville Network, 132 F.3d
8 1123, 1129 (6th Cir. 1997) (excluding EEOC letter because of risk that “a jury would attach undue
9 weight to this type of agency determination”); Walker ex rel. his Ct. Appointed Curator v. United
10 Healthcare of Hardin, Inc., 2010 WL 3092648, at *6–7 (W.D. Ky. Aug. 6, 2010) (excluding
11 Office of Inspector General report because jury “could potentially attach undue weight to this type
12 of agency determination”). But these cases are inapposite because they involve agency
13 determinations with regard to one of the parties: the FTC liability opinion considered Rambus’s
14 liability; the EEOC letter consisted of a determination that reasonable cause exists to believe
15 Williams’s allegations; and the OIG report in Walker arose out of Walker’s allegations of abuse.
16 See Hynix, 2008 WL 282376, at *4; Williams, 132 F.3d at 1127; Walker, 2010 WL 3092648, at
17 *6. These cases thus all present a much stronger risk of unfair prejudice. To the extent that
18 Plaintiffs contend that Recalls may confuse the jury because the NHTSA was not examining the
19 specific defect allegedly present in the Class Vehicles, Plaintiffs are free to probe this issue during
20 cross-examination and ensure the distinction is brought to the jury’s attention. Plaintiffs’ Rule 403
21 objection is overruled.
22 ii. Hearsay
23 Plaintiffs also argue that Recalls is inadmissible hearsay under Rule 801. An out of court
24 statement offered for the truth of the matter asserted is hearsay. Fed. R. Evid. 801. Hearsay is
25 inadmissible under the Federal Rules of Evidence unless it falls within a stated exception. Fed. R.
26 Evid. 802. Here, GM contends that the public records exception of Rule 803(8) and the treatise,
27 periodical or pamphlet exception of Rule 803(18) apply.
1 (a) Public Record Exception
2 Federal Rule of Evidence 803(8)(A) provides in relevant part that “a record or statement of
3 a public office” is not excluded by the rule against hearsay where the record sets out “the office’s
4 activities” and is sufficiently trustworthy. See Fed. R. Evid. 803(8)(A)(i) and B. In GM’s view,
5 Recalls is a statement by a public office “set[ting] out . . . the office’s activities” because Recalls
6 “describes in detail NHTSA’s process for investigating complaints and its standards for initiating
7 recalls.” Opp. at 3. Plaintiffs argue that “[t]he Recalls statement is an interpretation of the United
8 States Code for Motor Vehicle Safety; it is not a statement of NHTSA’s activities.” Mot. at 3.
9 Recalls is not excluded by the rule against hearsay because it constitutes a statement of a
10 public office that sets out the office’s activities and appears sufficiently trustworthy. As a result,
11 Recalls falls under the public records exception to the rule against hearsay. See Fed. R. Evid.
12 803(8)(A)(i).
13 (b) Learned Treatise Exception
14 In addition, Recalls may be read into evidence as a “treatise, periodical, or pamphlet”
15 under Rule 803(18) provided that GM’s technical expert Robert Kuhn establishes Recalls as a
16 reliable authority.
17 “A statement contained in a treatise, periodical, or pamphlet” is admissible under Rule
18 803(18) if “the statement is called to the attention of an expert witness on cross-examination or
19 relied on by the expert on direct examination” and “the publication is established as a reliable
20 authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial
21 notice.” Fed. R. Evid. 803(18).
22 Plaintiffs object that Recalls “is not the sort of ‘objective scientific evidence contemplated
23 by Rule 803(18).’” Mot. at 4 (quoting Dugas v. 3M Co., 2016 WL 3966142, at *6 (M.D. Fla. June
24 30, 2016)). Assuming arguendo that Recalls is not “objective scientific evidence,” nothing in
25 Rule 803(18) indicates that it should be read so narrowly, and Plaintiffs do not point to any in-
26 circuit authority supporting their theory. Cf. Hutchings v. F/V Alaska Beauty, 191 F.3d 460 (9th
27 Cir. 1999) (“Although the [North Pacific Fishing Vessel Owners’ Association Vessel] Safety
1 The Court concludes that Recalls is admissible under Rules 401–403, that it is not
2 excluded by the rule against hearsay pursuant to the public record exception, and, depending on
3 expert testimony, may qualify for the learned treatise exception (in which case it may be read but
4 not received as an exhibit).
5 iii. Lack of Recalls of Class Vehicles
6 Plaintiffs also argue that GM should be precluded from introducing evidence or making
7 arguments regarding the fact that NHTSA has not issued a recall of the Class Vehicles. Mot. at 2.
8 GM does not respond to this argument.
9 Plaintiffs contend that the fact that NHTSA has not instituted a safety recall of the Class
10 Vehicles is irrelevant because “there is no evidence that NHTSA’s determination of what
11 constitutes a safety-related defect is reliable or accurate, and there is no evidence that NHTSA
12 recalls every vehicle that fails to meet its safety standard.” Mot. at 2. Again, these are arguments
13 that can be made on cross-examination. The fact that NHTSA did not institute a safety recall of
14 the Class Vehicles is relevant because it tends to make a fact of consequence—the safety of the
15 Class Vehicles—less probable, and Plaintiffs did not establish that this evidence would be unfairly
16 prejudicial.
17 For the foregoing reasons, the Court DENIES Plaintiffs’ MIL No. 1.
18 2. Motion in Limine No. 2 (Docket No. 466)
19 Plaintiffs move to exclude argument or statements that GM fixed problems with the
20 alleged Oil Consumption Defect. Plaintiffs contend that such statements are belied by GM’s
21 engineers’ deposition testimony, in which they testified that the design improvements did not
22 eliminate issues related to the alleged Oil Consumption Defect. See MIL No. 2 Ex. A (Thomas
23 Halka Depo Tr.) at 252:23-253:6 (acknowledging the AFM cover “didn’t stop” oil consumption);
24 MIL No. 2 Ex. B (Yoon Lee Depo. Tr.) at 44:4-19 (acknowledging that “even an improved design
25 can be overwhelmed with oil”); MIL No. 2 Ex. C (Grant Tappen Depo Tr.) at 65:1-4
26 (acknowledging that there was “an increase in warranty consumption after these design changes
27 were implemented”). Because of a “significant possibility of jury confusion,” Plaintiffs seek to
1 Mot. at 1. For the reasons explained below, the Court DENIES Plaintiffs’ Motion in Limine No.
2 2.
3 Plaintiffs’ argument is unfounded. First, “having to decide between conflicting evidence”
4 is not the jury “confusion” contemplated by the Federal Rules of Evidence. See Positive Ions, Inc.
5 v. Ion Media Networks, Inc., No. 06-cv-4296, 2007 WL 9701734, at *6 (C.D. Cal. Nov. 7, 2007)
6 (denying motion in limine under Rule 403 where “[t]he jury ‘confusion’ that Plaintiff anticipates
7 therefore amounts to nothing more than the jury having to decide between conflicting evidence”).
8 Second, Plaintiffs contend that there is “no support in the record” for arguments that GM fixed the
9 alleged defect. Mot. at 2. But GM has pointed to evidence suggesting otherwise. Opp. at 3
10 (describing that GM’s Red-X investigation showed that oil consumption in 2007-2009 model year
11 engines was caused by the unshielded AFM pressure relief valve and exacerbated by the original
12 design of the PCV rocker cover baffle and explaining that GM’s design changes fixed these
13 particular issues). And in any event, Plaintiffs can use the cited deposition testimony to impeach
14 Mr. Halka and Mr. Tappen during cross-examination.
15 Because Plaintiffs have not shown that the probative value from argument or statements
16 from GM that it “fixed” or “cured” excessive oil consumption in the Class Vehicles is outweighed
17 by the risk of unfair prejudice, confusion, or misleading the jury, the Court DENIES Plaintiffs’
18 Motion in Limine No. 2.
19 3. Motion in Limine No. 3 (Docket No. 467)
20 Plaintiffs move under Rule 403 to preclude GM from “misconstruing purported piston
21 replacement data” based on a summary chart (“Chart”) showing the number of Class Vehicles
22 which have received new piston rings while under warranty. The Chart is Exhibit 510 on the Joint
23 Exhibit List. See Docket No. 453 (Appendix C, Joint Exhibit List) at 170; Docket No. 467-2
24 (Exhibit A to MIL No. 3). Both parties1 have described the Chart as showing that “3% of class
25 vehicles required new piston rings during the 100,000 mile/5-year warranty term.” Mot. at 1. For
26
27
1 As part of its Daubert briefing, GM cited the chart as showing that “only 3% of class vehicles
1 the reasons explained below, the Court DENIES Plaintiffs’ Motion in Limine No. 3.
2 Plaintiffs take issue with Mr. Kuhn’s characterization of the Chart in his expert report
3 because Mr. Kuhn described the Chart as showing the “average repair / complaint rate for excess
4 oil consumption” in the Class Vehicles. See Exhibit B to MIL No. 2 (“Kuhn Report”) at 13–14.2
5 As Plaintiffs point out, the number of vehicles that received in-warranty piston replacements is
6 different from the number of Class Vehicles that ever received any oil consumption-related repair
7 or were ever the subject of any oil consumption-related complaints. Mot. at 1. To avoid any
8 confusion or debate at trial, Plaintiffs request an order “excluding GM from misconstruing the
9 Chart and to make clear, in any reference to the Chart, that it purports to show only in-warranty
10 related piston repairs.” Id. Plaintiffs also “request an order preventing GM from presenting
11 testimony, documents, demonstratives or argument that indicates that piston replacement warranty
12 data captures the full universe of Class Vehicles affected by the Oil Consumption Defect.” Id.
13 The Court agrees with Plaintiffs that Mr. Kuhn’s representation of the Chart as showing
14 the “average repair / complaint rate for excess oil consumption” appears to be misleading because
15 (1) it does not make clear that the calculations were based on vehicles that were still under
16 warranty, and (2) it assumes that all oil consumption defect repairs are captured by piston
17 replacements. In GM’s response brief, GM professes that there “is no dispute over what the
18 Warranty Data shows—that less than 3% of 2011-2014 GM trucks and SUVs with Gen IV engines
19 manufactured on or after February 10, 2011 and sold nationwide ever needed a piston repair or
20 replacement during the 5-year/100,000-mile warranty term.” Opp. at 2. But this statement is itself
21 inconsistent with Mr. Kuhn’s broad characterization: here, GM cabins its statement by referencing
22 the warranty and mileage information and piston replacements, which Mr. Kuhn omits.
23 As for Plaintiffs’ request for an order preventing GM from presenting testimony,
24 documents, demonstratives or argument that indicates that piston replacement warranty data
25
2 Kuhn’s report says “[t]he subject 2011-14 LC9 engines produced with these changes experienced
26
an average repair/complaint rate for excess oil consumption that was roughly 6X lower in
magnitude (3% vs 18%) than that of the earlier non-subject 2007–2009 L9 engines. A chart
27
illustrating the repair rates as IPTV (Incidents per Thousand Vehicles) for both the subject engines
1 captures the full universe of Class Vehicles affected by the Oil Consumption Defect, the Court
2 disagrees that this is necessary. To the extent that Plaintiffs believe that the Warranty Data fails to
3 capture all oil consumption-related complaints or repairs over the relevant timeline, they are free
4 to argue as much during trial.
5 As a result, the Court DENIES Plaintiffs’ Motion in Limine No. 3 but requires that Mr.
6 Kuhn shall refrain from mischaracterizing the chart (by ignoring the limited data it represents).
7 4. Motion in Limine No. 4 (Docket No. 468)
8 Plaintiffs move to exclude two charts found in Exhibits 510 and 511 summarizing GM
9 records of oil consumption-related warranty claims on the basis that the evidence is inadmissible
10 hearsay and unfairly prejudicial. Mot. at 4, 6. The chart in Exhibit 510, or the “Pfromm
11 Summary,” was created by GM program quality engineer Steven Pfromm in April 2017 “using
12 data from GM’s internal warranty database on oil consumption-related warranty repair claims” for
13 all 2007-2014 vehicles equipped with Generation IV engines. Opp. at 1. Exhibit 511, or the
14 “Kuhn Summary,” was created at GM technical expert Robert Kuhn’s request by Mr. Pfromm in
15 July 2021 using a “contemporaneously updated set of oil consumption-related warranty data.” Id.
16 Unlike the “Pfromm Summary,” which was created before the Court’s April 23, 2020 Order
17 limiting the classes to LC9 engines, the “Kuhn Summary” reflects only oil consumption-related
18 warranty claims for vehicles equipped with LC9 engines. Id. Plaintiffs argue that both summaries
19 should be excluded because GM has not made the raw supporting data available.
20 For the reasons explained below, the summary charts are inadmissible hearsay. As a
21 result, the Court GRANTS Plaintiffs’ Motion in Limine No. 4. The Court will allow testimony
22 regarding the piston ring repair data provided a sufficient foundation is laid by the testifying
23 witness but the summary charts themselves are excluded from evidence.
24 a. Business Records
25 GM originally contended that the summary charts were exempt from the rule against
26 hearsay as business records under Rule 803(6) or as voluminous records pursuant to Rule 1006.
27 See Docket No. 453 (Appendix C, Joint Exhibit List) at 170–72. But the summary charts are not
1 rather than in the regular course of business. See United States v. Miller, 771 F.2d 1219, 1238 (9th
2 Cir. 1985) (“We agree that the lists should not have been admitted under Rule 803(6). The
3 summaries were prepared in response to litigation rather than in the regular course of business.
4 Business records prepared solely for purposes of litigation lack trustworthiness.”). Metadata
5 indicates that the Pfromm Summary was created on April 3, 2017, four months after the lawsuit
6 was filed, and ten years after the product went into production, while the Kuhn Summary was
7 created on July 20, 2021. Mot. at 4. As a result, the summary charts are not business records.
8 b. Voluminous Records
9 Nor are the charts admissible as voluminous records under Rule 1006 because GM did not
10 provide all of the underlying data. Under Rule 1006, “[t]he contents of voluminous writings,
11 recordings, or photographs which cannot conveniently be examined in court may be presented in
12 the form of a chart, summary, or calculation.” Fed. R. Evid. 1006. “The proponent of a summary
13 must establish a foundation that (1) the underlying materials upon which the summary is based are
14 admissible in evidence; and (2) the underlying documents were made available to the opposing
15 party for inspection.” Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1259 (9th Cir. 1984). In
16 keeping with Paddack, summaries are inadmissible under Rule 1006 where the underlying
17 documents were not made available to the opposing party for inspection prior to their introduction.
18 See Miller, 771 F.2d at 1238 (summary inadmissible because the proponent failed to provide the
19 underlying data); Amarel v. Connell, 102 F.3d 1494, 1517 (9th Cir. 1996), as amended (Jan. 15,
20 1997) (“The district court’s explanations unfortunately ignore the requirement—embodied in the
21 mandatory language of Federal Rule of Evidence 1006 and explicitly required by our Paddack
22 decision, that a party must make available to the opposing party the materials that have gone into
23 preparing the summary exhibit.”). That was not done here.
24 c. Rule 703
25 In its opposition to Plaintiffs’ motion, GM asserted for the first time that the summary
26 charts are admissible pursuant to Rule 703. Opp. at 1.
27 Rule 703 provides that:
expert has been made aware of or personally observed. If experts in
1 the particular field would reasonably rely on those kinds of facts or
data in forming an opinion on the subject, they need not be
2 admissible for the opinion to be admitted. But if the facts or data
would otherwise be inadmissible, the proponent of the opinion may
3 disclose them to the jury only if their probative value in helping the
jury evaluate the opinion substantially outweighs their prejudicial
4 effect.
5 Fed. R. Evid. 703 (emphasis added). In GM’s view, the summary charts are admissible because
6 (1) the facts or data is of a type reasonably relied on by experts in the particular field, and (2) the
7 probative value of the underlying data substantially outweighs its prejudicial effect. Opp. at 1.
8 Assuming, arguendo, that (1) is satisfied, the Court disagrees that the probative value of
9 the summaries “substantially outweighs” their prejudicial effect. Plaintiffs contend—and GM
10 does not dispute—that both charts purport to be a summary of “oil consumption complaints,” but
11 GM did not produce the underlying data (i.e., spreadsheets and reports capturing the alleged
12 158,182 oil consumption complaints). GM also did not produce any documents illustrating GM’s
13 method for quantifying or qualifying “oil consumption complaints.” Mot. at 5. And Mr. Kuhn
14 testified at his deposition that he too did not see the underlying data—he based his analysis off
15 summary data provided by Mr. Pfromm. See Docket No. 468-5 (Exhibit D, Kuhn Depo. Tr.) at
16 41:22–42:3 (“I believe all I looked at has been summary data, not necessarily raw claims.”).
17 Without access to the underlying data, Plaintiffs are prejudiced by an inability to cross-
18 examine GM witnesses on the collection methods and calculations used to generate the reported
19 “oil consumption complaints” totals. Plaintiffs cannot test the summaries’ reliability, thus
20 hindering their cross-examination. It is telling that the Federal Rules of Evidence only admit
21 summaries to prove content when “the proponent has made the originals . . . available for
22 examination or copying.” Fed. R. Evid. 1006; see also United States v. Lefevbre, 29 F.3d 636 (9th
23 Cir. 1994) (Table) (“The underlying materials of a summary chart must be available to the
24 opponent for inspection.”); City of Phoenix v. Com/Sys., Inc., 706 F.2d 1033, 1038 (9th Cir. 1983)
25 (holding that summary exhibit was admissible where underlying documents were available for
26 inspection).
27 Given the significant prejudice to Plaintiffs, the probative value of the summaries does not
1 Plaintiffs’ Motion in Limine No. 4 because the summary charts are thus inadmissible hearsay.
2 GM may, however, elicit testimony from its witnesses regarding the underlying data provided a
3 foundation is laid therefor.
4 B. Defendant’s Motions in Limine
5 1. Motion in Limine No. 1 (Docket No. 459)
6 GM moves to exclude evidence, testimony, and argument relating to (1) Gen IV engine
7 models other than the Gen IV aluminum block (LC9) engine currently at issue,3 and (2) Gen IV
8 engines manufactured before February 10, 2011. GM contends that such evidence should be
9 excluded under Rules 401 and 402 because it is not relevant to Plaintiffs’ class claims concerning
10 engines with a materially different design. Mot. at 1. GM also contends that such evidence and
11 related argument should be excluded under Rule 403 because the purported risk of jury confusion
12 and unfair prejudice substantially outweighs any probative value that could be derived “from
13 evidence about different engines with different components including different piston rings.” Id.
14 at 2. Finally, GM argues that forcing a “mini-trial” on what the Court has already determined are
15 materially different engines and uncommon evidence “would be a significant waste of the Court’s
16 time.” Id.
17 The critical question, and the key disagreement between the parties, is whether evidence of
18 the other Gen IV engines makes it more probable that the Gen IV engine at issue contains an oil-
19 related defect. As discussed below, because the Court agrees with Plaintiffs that evidence of an
20 oil-related defect in the other Gen IV engines may make it more likely that (1) the alleged Oil
21 Consumption Defect exists in the Gen IV Class LC9 engines, and (2) that GM knew of the alleged
22 defect in the Class Engines, the Court DENIES GM’s Motion in Limine No. 1 given the asserted
23 relatedness of the engines.
24
25
26
3 The broader Gen IV engine family includes four different models with different designs: (i) the
aluminum block (LC9) engine, (ii) the iron block (LMG) engine, (iii) LH9 model engine, and (iv)
27
the LMF engine. Mot. at 2. During the class certification briefing, Plaintiffs narrowed their
1 a. Relevance (Rules 401 and 402)
2 GM contends that because the Gen IV LC9 engine models are “materially different in
3 design” from other Gen IV models, evidence relating to the other Gen IV models is irrelevant.
4 Mot. at 3. GM made a series of design changes to its engine models after receiving “elevated
5 warranty claims related to oil consumption” for 2007 model year vehicles with LC9 engines. Mot
6 at 2.4 At the class certification stage, the Court concluded that these changes “introduce[d] a
7 sufficient variability in proof” to render class certification inappropriate, and limited the Class to
8 those vehicles made after the modifications. See Docket 237 (April 23, 2020 Order) at 75.
9 Plaintiffs contend that documents and testimony relating to the presence of excessive oil
10 consumption in other Gen IV engines are highly relevant. Opp. at 3. From Plaintiffs’ perspective,
11 the Gen IV LC9s in the Class Vehicles “are part of the Gen IV family,” and they “share the same
12 piston rings as other engines in the LC9 family.” (Exs. 5 and 6). Plaintiffs reason that documents
13 and testimony evidencing an oil consumption defect in Gen IV engines, generally, thus make it
14 more probable than it would be without such evidence that: (1) this same alleged oil consumption
15 defect exists in the Gen IV Class LC9s, and (2) that GM knew of the defect in the Class LC9s. Id.
16 “Generally, different models of a product will be relevant if they share with the accident-
17 causing model those characteristics pertinent to the legal issues raised in the litigation.” Barcenas
18 v. Ford Motor Co., No. 03-cv-04644-EAI, 2004 WL 2827249, at *3 (N.D. Cal. Dec. 9, 2004)
19 (quoting Fine v. Facet Aerospace Products Co., 133 F.R.D. 439, 441 (S.D.N.Y.1990)).
20 In support of their opposition to this motion in limine, Plaintiffs attached exhibits
21 purporting to show that the alleged Oil Consumption Defect existed in all variants of the Gen IV
22 engine, not just the LC9 aluminum-block variant present in the Class Vehicles. For instance,
23 GM’s 2014 technical service bulletin (“TSB”), which addresses the causes of engine oil
24 consumption in the Gen IV engines, encompasses “all 2007–2014 vehicles with Gen IV LC9
25 engines,” including vehicles with iron-block Gen IV engines. See Opp. at 1; Ex. 1 at 1. Plaintiffs
26
4 Beginning with model year 2010, GM: (1) switched from ‘251 piston ring material to more wear-
27
resistant ‘278 piston ring material, (2) added a metal “umbrella shield” over the AFM oil pressure
1 also attached emails from GM engineers discussing how iron block variants of the Gen IV engine
2 have the same “root cause” of ring/piston wear as with LC9 Gen IV engines. See Exs. 2 and 3; see
3 also Ex. 4 (GM engineer writing that GM is “still getting Gen IV LC9 engines returned due to
4 poor oil consumption” and the engines are “very similar to the 2007 M.Y. issue”).
5 The Court has never found that the oil consumption issues in the other Gen IV engines are
6 different or unrelated to the alleged Oil Consumption Defect in the Gen IV LC9 engines in Class
7 Vehicles. In fact, during in the class certification order, the Court characterized Plaintiffs’
8 evidence as supporting the argument that “the same piston ring problem contributed to the Oil
9 Consumption Defect and persisted across the class period.” Docket No. 237 (April 23, 2020
10 Order) at 74. The fact that differences precluded broader class certification under Fed. R. Civ. P.
11 23 does not imply the engines are not sufficiently related as to satisfy relevance under Fed. R.
12 Evid. 401 and 402.
13 In sum, the Court agrees with Plaintiffs that documents and testimony evidencing an oil
14 consumption defect in Gen IV engines make it more probable than it would be without such
15 evidence that: (1) this same alleged oil consumption defect exists in the Gen IV Class LC9s, and
16 (2) that GM knew of the defect in the Class LC9s. GM is, of course, free to attack the weight of
17 this evidence on cross-examination, but the evidence is not irrelevant.
18 i. Unfair Prejudice, Confusion, and Wasted Time (Rule 403)
19 GM argues that the Court should also exclude evidence relating to non-Class vehicles and
20 earlier versions of the Gen IV engines under Rule 403. Mot. at 5. GM contends that admitting
21 evidence related solely to non-LC9 Gen IV engine models or to Gen IV engines that do not have
22 GM’s design changes “is likely to confuse the jury and create a strong likelihood of unfair
23 prejudice to [GM] by inviting jurors to infer that because [of oil consumption complaints in] other
24 unrelated [GM] vehicles, there must have been an actionable defect in [the Class Vehicles].” Id. at
25 6 (quoting Fahimian v. BMW of N. Am., LLC, No. 19-cv-3587, 2021 WL 4786678, at *1 (C.D.
26 Cal. Aug. 18, 2021) (“Evidence regarding complaints, service bulletins, and/or recalls issued for
27 other year, make, and model BMW vehicles is likely to confuse the jury and create a strong
1 for other unrelated BMW vehicles, there must have been an actionable defect in Plaintiff’s
2 vehicle.”)).
3 GM has not shown that the probative value of this evidence is substantially outweighed by
4 a danger of unfair prejudice, confusing the issues, or misleading the jury. Fahimian is not
5 analogous to the instant case because Fahimian involved unrelated vehicle models, and, for the
6 reasons discussed above, the other Gen IV models are assertedly not unrelated. Additionally,
7 Plaintiffs make a good point that GM’s request to exclude “evidence, testimony, and argument
8 relating to (1) Gen IV engine models other than the Gen IV aluminum block (LC9) engine
9 currently at issue, and (2) Gen IV engines manufactured before February 10, 2011” cuts too
10 broadly because it would eliminate documents that discuss both the Gen IV LC9 and other models
11 (such as Exhibit 1). Mot. at i (emphasis added).
12 The Court DENIES GM’s Motion in Limine No. 1 to exclude evidence related to non-
13 class vehicles and out-of-scope engines.
14 2. Motion in Limine No. 2 (Docket No. 460)
15 GM moves to exclude the opinions, reports, and deposition testimony of Plaintiffs’ former
16 technical expert witness, Dr. Jeffrey K. Ball, under Rules 401–403 and 801. Plaintiffs designated
17 Dr. Ball to opine on one subject: GM’s “untrustworthy and misleading” warranty data, based on
18 testimony elicited by both sets of lawyers during Dr. Ball’s deposition. Opp. at 1.
19 Because Dr. Ball’s expert reports are hearsay and Plaintiffs have not shown that any
20 exception to the hearsay rule applies, the Court GRANTS in PART GM’s Motion in Limine No.
21 2 and excludes Dr. Ball’s expert reports. The Court DENIES GM’s motion as to Dr. Ball’s
22 deposition testimony.
23 Dr. Ball was Plaintiffs’ original technical expert witness. On September 16, 2019, Dr. Ball
24 submitted an expert report in which he sought to opine that all of the “Class Vehicles” suffer from
25 “a common design defect . . . leading to excessive oil consumption.” Docket No. 193-12 (“Initial
26 Ball Report”) at 20. According to GM, in his initial expert report, Dr. Ball did not “precisely
27 identify the purported defect or address the very low frequency of oil consumption concerns or
1 October 11, 2019, and a month later Dr. Ball submitted a supplemental report that included
2 analysis of the warranty claim rate for each of the four engines5 that were then included in the
3 Class Vehicles. No. 194-12 (“Supplemental Ball Expert Report”) at 2.
4 On December 23, 2019, GM moved under Federal Rule of Evidence 702 to exclude Dr.
5 Ball’s supplemental warranty claim calculations on the grounds that he lacked sufficient and
6 reliable facts and data and was not qualified to offer those opinions. See Docket No. 201 (“Mot. to
7 Exclude Ball”). The Court declined to exclude Dr. Ball’s opinions, finding that GM’s criticisms
8 went to weight rather than admissibility, and GM could deal with his opinions and any issues
9 through cross-examination of Dr. Ball at trial. See Docket No. 237 (Order) at 68.
10 Dr. Ball passed away over two years ago. After he died, plaintiffs retained another
11 technical expert, Dr. Dahm, who submitted his initial report in November 2020. In his report, Dr.
12 Dahm opined that the root cause of alleged oil consumption in all Class Vehicles is a piston ring
13 defect—a theory he claimed was “consistent with the opinions of Dr. Ball in his reports and in his
14 deposition testimony.” Docket No. 364-2 (“Dahm Report”) ¶ 36. On August 30, 2021, Dr. Dahm
15 submitted an updated report that included his view on the nature and cost of an adequate repair.
16 Docket No. 367-8 (“Updated Dahm Report”). The Court excluded Dr. Dahm from testifying at
17 trial that (1) a piston ring design defect in the Gen IV engine is the root cause of the alleged oil
18 consumption in Class Vehicles; (2) a piston ring design defect is present in all Class Vehicles; and
19 (3) the Class Vehicles’ alert systems pose a purported safety risk. Docket No. 395 (Daubert
20 Order) at 15.
21 GM now seeks to exclude any reference or evidence related to Dr. Ball’s opinions on the
22 bases that: (1) his opinions and deposition testimony are inadmissible hearsay; (2) allowing Dr.
23 Dahm to testify about Dr. Ball’s opinions would circumvent the rules against hearsay and the
24 Court’s Order precluding Dr. Dahl from testifying on the nature and existence of an alleged defect;
25
26
5 Dr. Ball’s opinions and testimony, which predated the Court’s rulings on class certification and
summary judgment, were based on Plaintiffs’ initial proposed class. This class included all model
27
year 2010-2014 GM trucks and SUVs with any type of Gen IV engine, including LMG, LH9, and
1 (3) Dr. Ball’s deposition testimony is inadmissible under Rule 403 because it is unnecessarily
2 cumulative and prejudicial; and (4) Dr. Ball’s opinions and testimony are inadmissible under
3 Rules 401 and 402 because they are predicated on information about engines in non-Class
4 Vehicles and the subjective experiences of non-Class members and non-trial plaintiffs. The Court
5 addresses each argument in turn.
6 a. Hearsay
7 GM contends that Dr. Ball’s opinions and testimony are inadmissible hearsay because he is
8 unavailable to testify at trial and no hearsay exception (including the residual exception under
9 Rule 807) applies. Mot. at 3. In the Joint Trial Exhibit List, Plaintiffs had indicated that Dr.
10 Ball’s expert report was admissible under Rule 807. In their opposition, though, Plaintiffs
11 clarified that they “intend to present Dr. Ball’s reports on cross examination.” Opp. at 2.
12 i. Dr. Ball’s Deposition Testimony
13 Dr. Ball’s deposition testimony is admissible under Rule 804(b), which provides that
14 “former testimony” “which was given as a witness at a . . . lawful deposition” is admissible under
15 certain circumstances where the declarant is “unavailable.” Fed. R. Evid. 804(b)(1). There is no
16 question that Dr. Ball’s death makes him unavailable. See Fed. R. Evid. (a)(4) (“A declarant is
17 considered to be unavailable as a witness if the declarant . . . cannot be present or testify at the trial
18 or hearing because of death . . .”). GM had an opportunity to cross-examine Dr. Ball at his
19 deposition.
20 GM argues that Rule 804(b) does not apply to Dr. Ball’s deposition testimony because
21 “when the unavailable witness is an expert, courts have historically designed to recognize the
22 exception when there is another expert available who could offer testimony.” Mot. at 4. In
23 support of this proposition, GM cites two out-of-circuit cases, Carter-Wallace, Inc. v. Otte and
24 Livers v. Schenk.
25 In response, Plaintiffs point out that Rule 804(b)(1) does not differentiate between lay
26 witnesses and expert witnesses, and that the Ninth Circuit has explicitly held that testimony of an
27 unavailable expert witness was admissible at trial pursuant to Rule 804(b)(1). Opp. at 1; see also
1 expert’s deposition testimony under Rule 804(b)(1) where expert’s residence in Alabama placed
2 him outside of the court’s subpoena power and defendants had an opportunity to cross-examine
3 expert at earlier deposition). GM’s out-of-circuit authority is neither binding nor persuasive.
4 Dr. Ball’s deposition testimony satisfies the requirements of Rule 804(b)(1). As a result,
5 his deposition testimony is not excluded by the rule against hearsay.
6 ii. Dr. Ball’s Expert Reports
7 Dr. Ball’s expert reports, on the other hand, are inadmissible hearsay. In the Joint Trial
8 List, Plaintiffs indicated just one possible exception to the rule against hearsay—the residual
9 exception under Rule 807. See Joint Trial List at 9–11. As explained below, this exception is
10 unavailing.
11 “FRE 807 involves discretion. It exists to provide judges a ‘fair degree of latitude’ and
12 ‘flexibility’ to admit statements that would otherwise be hearsay.” United States v. Bonds, 608
13 F.3d 495, 501 (9th Cir. 2010) (quoting U.S. v. Valdez–Soto, 31 F.3d 1467, 1471 (9th Cir. 1994)).
14 Under the residual exception, a hearsay statement is not excluded by the rule against hearsay if:
15 (1) “the statement is supported by sufficient guarantees of trustworthiness,” and (2) “it is more
16 probative on the point for which it is offered than any other evidence that the proponent can obtain
17 through reasonable efforts.” Fed. R. Evid. 807. Dr. Ball’s declaration does not satisfy prong two,
18 which “essentially creates a ‘best evidence’ requirement.” Larez v. City of Los Angeles, 946 F.2d
19 630, 644 (9th Cir. 1991).
20 Courts have excluded hearsay statements under Rule 807 where the evidence was not the
21 “best available evidence.” In Larez, for example, the district court admitted newspaper articles
22 quoting statements made by Gates, a police chief, under this exception. The Ninth Circuit
23 concluded that the articles were erroneously admitted “because the newspaper quotations were not
24 the best available evidence of what Gates said; testimony from the reporters themselves would
25 have been better.” Id. at 644. DeMars, also cited by GM, is on point: there, the district court
26 admitted a letter by plaintiff’s expert, who had died before trial. See deMars v. Equitable Life
27 Assur. Soc. of U.S., 610 F.2d 55, 60 (1st Cir. 1979). The First Circuit concluded that the residual
1 who could testify at trial. Id. at 61 (“Since Dr. Rattigan’s opinion was based solely on his
2 examination of the decedent’s medical and hospital records, the death certificate and the report of
3 the postmortem examination any other physician could have been obtained to render an opinion on
4 fairly short notice . . . [w]e find that the requirements of Fed. R. Evid. 804(b)(5)(B) were not
5 complied with and, therefore, the district court erred in admitting the letter.”).
6 Live testimony regarding the warranty data would be a better form of evidence, as
7 compared to Dr. Ball’s expert reports. Cf. Phoenix Techs. Ltd. v. VMware, Inc., No. 15-cv-01414-
8 HSG, 2017 WL 8069609, at *1 (N.D. Cal. June 7, 2017) (describing the “longstanding
9 presumption that live testimony is clearly preferable to deposition testimony, especially for
10 important witnesses . . .”); Wilson v. Walgreen Co., No. 11-cv-2930-EMC, 2011 WL 4345079, at
11 *4 (N.D. Cal. Sept. 14, 2011) (stating that “for trial, live testimony is as a general matter
12 preferable over deposition excerpts”). Plaintiffs’ new expert could have provided the best
13 evidence via Dr. Dahm. Plaintiffs did not explain why Dr. Dahm did not independently analyze
14 the warranty data following Dr. Ball’s death. Dr. Ball’s expert reports may not be admitted under
15 Rule 807.
16 In sum, Dr. Ball’s expert reports are hearsay and Plaintiffs have not shown that any
17 exception to the hearsay rule applies. As a result, these reports are inadmissible.
18 iii. Rule 403: Dr. Ball’s Testimony is not Cumulative
19 GM argues that Dr. Ball’s opinions run afoul of Rule 403 because they are “unnecessarily
20 cumulative and prejudicial.” Mot. at 6. GM insists that “[a]llowing plaintiffs to present evidence
21 to the jury about Dr. Ball’s opinions, when Dr. Dahm has reviewed the same materials and will
22 testify live at trial, would be unnecessarily duplicative and would also cause undue delay and
23 wasted time, both of which Rule 403 also seeks to prevent.” Id. GM also contends that it would
24 be prejudiced if Dr. Ball’s testimony reached the jury without cross-examination. Id.
25 Plaintiffs counter that Dr. Ball’s testimony is not cumulative because Dr. Ball will testify
26 as to one issue: “the dangerously deficient quality and scope of GM’s warranty data.” Opp. at 2.
27 In particular, Dr. Ball will testify that GM’s warranty data “excludes replacement claims for
1 consumption failure rate analysis.” Id. Dr. Dahm, on the other hand, will testify that only
2 considering “oil consumption complaints,” as GM’s expert did (who was disclosed after Dr. Ball’s
3 death), does not capture the full universe of damaged vehicles. In other words, Dr. Ball will
4 testify that GM’s warranty data is devoid of critical sister part replacement data, while Dr. Dahm
5 will testify that relying on “oil consumption” complaints alone hid the true total of vehicles
6 damaged by the defect. At the hearing, Plaintiffs also explained that they would narrow their
7 designations of Dr. Ball’s deposition testimony to ensure that it would not run afoul of the Court’s
8 Daubert order and the ruling herein permitted on the narrow scope of Dr. Balls’ admitted
9 deposition testimony, and that the parties would further meet and confer regarding Dr. Ball’s
10 deposition designations.
11 The Court will limit Dr. Ball’s deposition testimony to the quality and scope of GM’s
12 warranty data. Plaintiffs shall not designate portions of Dr. Ball’s deposition that include topics
13 covered by Dr. Dahm. Because Dr. Ball and Dr. Dahm will testify regarding different issues, Dr.
14 Ball’s testimony will not be cumulative. The Court thus denies GM’s motion in limine on this
15 ground.
16 iv. Relevance Under Rules 401 and 402
17 Finally, GM argues that the Court should also exclude any evidence and argument about
18 Dr. Ball’s opinions, reports, and deposition testimony because they are based entirely on data that
19 includes pre-Class Period vehicles without GM’s design changes and vehicles with other Gen IV
20 engine types that are not at issue in this case. Mot. at 6. According to GM, Dr. Ball’s opinions,
21 reports, and deposition testimony are irrelevant to the question of whether the Gen IV LC9
22 engines in the Class Vehicles have a common, oil consumption defect caused by the piston rings,
23 and are inadmissible under Federal Rules of Evidence 401 and 402. Id.
24 Plaintiffs respond that Dr. Ball is not providing any opinions on any particular engines or
25 vehicles. According to Plaintiffs, “Dr. Ball will testify on the narrow issue of warranty data
26 credibility, quality, and completeness. His opinions are offered to assist the jury in understanding
27 the warranty data, GM’s search criteria, and what is not included in the data but should be.” Opp.
1 objection regarding relevance is overruled.
2 In conclusion, the Court GRANTS in PART and DENIES in PART GM’s Motion in
3 Limine No. 2. Dr. Ball’s expert reports are hearsay and are inadmissible. Dr. Ball’s deposition
4 testimony is not hearsay but the Court will limit his testimony to the quality and scope of GM’s
5 warranty data on Rule 403 grounds.
6 3. Motion in Limine No. 3 (Docket No. 462)
7 GM moves to exclude evidence and testimony of non-class-member plaintiffs (including
8 the original proposed California class representatives, Raul Siqueiros and Todd and Jill Cralley6),
9 under Rules 401–403. Mot. at 1. In their opposition, Plaintiffs object that this motion in limine is
10 “premature,” and indicated that they may seek to call non-Class Plaintiffs to be used to rebut any
11 arguments by GM that oil consumption issues experienced by the Class Plaintiffs were not the
12 result of an inherent Oil Consumption Defect but the result of issues particular to these Class
13 Plaintiffs’ vehicles. Opp. at 1.
14 GM echoes its arguments from MIL No. 1 (in which it sought to exclude evidence and
15 arguments relating to other Gen IV engine models). Here, GM asserts that: (1) testimony from
16 non-class members including Siqueiros and the Cralleys about their experiences with materially
17 different engines in their non-Class Vehicles should be excluded under Federal Rules of Evidence
18 401 and 402 because it is not relevant to Plaintiffs’ class claims; (2) this evidence and testimony
19 should be excluded under Federal Rule of Evidence 403 because the risk of jury confusion and
20 unfair prejudice substantially outweighs any probative value that could be derived from evidence
21 about different engines with different designs and different components, including different piston
22 rings; and (3) forcing a mini-trial on what the Court has already determined are materially
23 different engines and uncommon evidence would be a significant waste of the Court’s and the
24 jury’s time. Mot. at 1–2.
25 Plaintiffs contend that this testimony is relevant because “it makes it more probable than it
26
27
6 As noted earlier, the certified classes are limited to owners and lessees of Gen IV LC9 aluminum
1 otherwise would be that the Gen IV engines in the Class Vehicles suffer from an inherent oil
2 consumption defect.” Opp. at 2. To the extent that GM argues that Class Plaintiffs’ issues with
3 their vehicles stemmed from owner misuse, then allowing Mr. Siqueiros or Mr. Cralley to testify
4 about their own experiences with their vehicles would rebut the argument that there is not an
5 inherent defect. To be clear, their testimony would seem to be less useful to Plaintiffs because it is
6 specifically limited to non-Class Vehicles, but it is relevant.
7 As for the risk of unfair prejudice and confusion under Rule 403, there is a risk of
8 prejudice over this evidence. Compared to GM’s MIL No. 1, the probative value of this evidence
9 is less obvious because it is anecdotal. On the other hand, though, GM’s concerns about unfair
10 prejudice may fairly be addressed on cross-examination by eliciting testimony that the relevant
11 vehicles are not included in the Class.
12 Because GM has not shown that the risk of unfair prejudice substantially outweighs the
13 probative value of this evidence, the Court DENIES GM’s Motion in Limine No. 3.
14 4. Motion in Limine No. 4 (Docket No. 463)
15 GM moves to exclude any evidence related to the Gen V engine under Rules 401–403 and
16 407. The evidence subject to this MIL includes correspondence, documents, deposition testimony,
17 and any potential trial testimony from GM witnesses discussing the design, testing, production,
18 and implementation of the Gen V engine. In support of this MIL, GM asserts that the Gen V
19 engine: (1) is completely different from the Generation IV internal combustion engine found in the
20 Class Vehicles, (2) was used only in GM vehicles produced after the Class Period, and (3) is not
21 the subject of any of the Plaintiffs’ claims in this case. Plaintiffs counter that this evidence is
22 relevant and admissible because evidence of GM’s piston ring design change in the Gen V engines
23 reveals GM’s knowledge about the “actual primary root cause of oil consumption in the Class
24 Vehicles,” and GM’s knowledge is an element of the Idaho Consumer Protection Act claim, as
25 well as for fraudulent concealment tolling. Opp. at 1 n.1.
26 The Court GRANTS in PART and DENIES in PART this motion in limine. For the
27 reasons discussed below, Plaintiffs may not introduce evidence related to the Gen V engine design
1 engines prove that there is an oil consumption defect in the Class Vehicles. Plaintiffs may,
2 however, introduce evidence to impeach any contention that GM lacked knowledge of the defect.
3 They may not, however, elicit details about Gen V engines that are not necessary to show GM’s
4 knowledge of defects in Gen IV engines. The Court instructs Plaintiffs to be judicious in its use of
5 such evidence.
6 a. Relevance
7 First, GM argues that the Court should exclude any evidence and argument about or
8 relating to the Gen V engine under Rules 401 and 402 because it is irrelevant to the question of
9 whether Class Vehicles with Gen IV engines have an oil consumption defect caused by defective
10 piston rings. Mot. at 3. GM cites one of the Court’s early decisions, in which the Court held that
11 evidence and argument about the Gen V engine is “of little to no probative value” in the case:
12 The fact that GM chose not to use the low-tension oil rings in the
context of its redesign of the full engine is of little or no probative
13 value as to whether it knew the rings were defective; it could have
chosen not use the rings for independent design or engineering
14 reasons. Thus, the mere fact that GM used different oil rings when
redesigning its engines does not show its prior knowledge of the
15 defect.
16 Sloan v. Gen. Motors LLC, No. 16-cv-07244-EMC, 2017 WL 3283998, at *6 (N.D. Cal. Aug. 1,
17 2017).
18 In response, Plaintiffs note that this finding came on a motion to dismiss before any
19 discovery had taken place. Opp. at 1. Plaintiffs argue that the record now demonstrates that GM’s
20 decision to employ a different piston ring coating material was driven primarily by its knowledge
21 that the material used in the Gen IV engines was causing excessive oil consumption. Id. Plaintiffs
22 attach documents from the Gen V engine development process which show that GM’s experience
23 with the Gen IV engines informed its design of the Gen V engines. See, e.g., Ex. 1 (discussing
24 testing on Gen V engines to prevent the oil consumption issues for which “most of our Gen IV
25 field issues are on the 5.3L”); Ex. 5 (Halka testifying about issues with the Gen IV engines as
26 compared to the Gen V engines).
27 The Court agrees with Plaintiffs that evidence regarding the Gen V engine is relevant
1 alleged Oil Consumption Defect.
2 b. Rule 403
3 Second, GM contends that any probative value is substantially outweighed by the risk of
4 jury confusion, unfair prejudice, and wasted time. Mot. at 3–4. In particular, GM asserts that
5 evidence concerning a different engine with design differences that was implemented only in GM
6 vehicles after the Class Period “is likely to confuse the jury and create a strong likelihood of unfair
7 prejudice to [GM] by inviting jurors to infer that because [of differently designed engines in] other
8 unrelated [GM] vehicles, there must have been an actionable defect in [the Class Vehicles].” Id. at
9 4 (quoting Fahimian, 2021 WL 4786678, at *1–2).
10 In response, Plaintiffs contend that the purpose for which Plaintiffs seek to offer Gen V
11 evidence is not to turn the trial into a referendum on the Gen IV versus Gen V design; the purpose
12 “is simply to demonstrate GM’s knowledge of the defect in the Gen IV engine.” Opp. at 3–4.
13 Because GM’s knowledge of the defect is a central issue in the case (and, as noted above, one of
14 the elements that Plaintiffs must prove), the probative value of this evidence is not substantially
15 outweighed by the risk of jury confusion, unfair prejudice, and wasted time. As a result, GM’s
16 objection under Rule 403 is overruled.
17 c. Rule 407
18 Finally, GM argues that Plaintiffs are also barred by Federal Rule of Evidence 407 from
19 introducing evidence related to the Gen V engine to the extent they intend to suggest that the
20 design differences between the Gen IV LC9 engines at issue and the later Gen V engines were
21 adopted in order to address an alleged oil consumption defect in the Class Vehicles. Mot. at 5.
22 Under Federal Rule of Evidence 407, subsequent remedial measures are not admissible to
23 prove design defect, “[b]ut the court may admit this evidence for another purpose, such as
24 impeachment or—if disputed—proving . . . feasibility of precautionary measures.” Fed. R. Evid.
25 407. The Court agrees with GM that Rule 407 forecloses Plaintiffs from arguing that Gen V’s
26 design differences shows that the Gen IV engine was defective.
27 Plaintiffs explained that they seek to introduce this evidence for a different purpose,
1 407 allows for the admission of evidence of subsequent remedial measures for certain purposes.
2 Courts have admitted evidence to show a defendant’s knowledge of a defective design and
3 impeach any contention to the contrary. For example, in Rozier v. Ford Motor Co., an engineer’s
4 memorandum analyzing alternate designs was “admissible as proof of subsidiary issues in the
5 case, such as knowledge of the dangerous condition.” 573 F.2d 1332, 1343 (5th Cir. 1978); see
6 also Prokenpek v. Los Angeles Cnty. Sheriff’s Dep’t, No. 13-cv-0094, 2015 WL 13918084, at *6
7 (C.D. Cal. Dec. 22, 2015), report and recommendation adopted, 2016 WL 11759098 (C.D. Cal.
8 Jan. 19, 2016) (“And even if the CCJV Report itself could be considered a subsequent remedial
9 measure, such report would still be admissible on issues such as knowledge and causation.”);
10 Kirkland v. Marriott Int’l Inc., 416 F. Supp. 2d 480, 489 (E.D. La. 2006) (holding that “evidence
11 of such remedial measures may be admissible for certain purposes, including impeachment” which
12 may include “proving defendants’ knowledge of the alleged dangerous condition”). To the extent
13 that GM seeks to argue that it had no knowledge of the alleged Oil Consumption Defect, Rule 407
14 does not bar Plaintiffs from introducing this evidence for impeachment. However, the scope of
15 evidence is limited to that purpose and may not focus on, e.g., details about how the Gen V
16 engines differ from Gen IV engines.
17 In sum, the Court GRANTS GM’s Motion in Limine No. 4 in PART and bars Plaintiffs
18 from introducing evidence related to the Gen V design to argue that design differences between
19 the Gen IV LC9 engines at issue and the later Gen V engines prove that there is an oil
20 consumption defect in the Class Vehicles. Plaintiffs may, however, introduce this evidence to
21 impeach any contention that GM lacked knowledge of the alleged defect in the Gen IV engines.
22 5. Motion in Limine No. 5 (Docket No. 464)
23 Lastly, GM moves to exclude evidence relating to (1) the existence or status of other
24 claims against GM, including experiences of other individuals who are not members of the
25 certified Classes; (2) the total number of lawsuits against GM; and (3) settlements and
26 negotiations between GM and third parties related to other claims and lawsuits. Plaintiffs do not
27 oppose Parts II and III of the motion in limine to exclude evidence of the total number of lawsuits
1 exclusively oppose Part I to the extent that it overlaps with GM’s MIL No. 3.
2 For the first issue, GM contends that evidence relating to the existence or status of other
3 lawsuits and claims against GM, including experiences of other individuals who are not members
4 of the Classes at issue, should be excluded under Federal Rules of Evidence 401, 402 and 403,
5 because it is not probative of the plaintiffs’ class claims, and any marginal probative value is
6 significantly outweighed by a danger of misleading the jury, confusing the issues, unfairly
7 prejudicing GM, and wasting the Court’s time. Mot. at 1.
8 Plaintiffs do not disagree. They merely want to introduce evidence and testimony from
9 non-Class members under Rules 401–403. This issue is identical to GM’s Motion in Limine No.
10 3. For the reasons explained in Part B.3, Plaintiffs may elicit testimony from non-Class members.
11 The Court thus DENIES this motion in limine with respect to testimony from non-Class members.
12 GM’s Motion in Limine No. 5 is otherwise GRANTED.
13 VI. EXHIBITS
14 Pursuant to the Court’s Civil Pretrial Instructions, the parties each submitted a list of
15 bellwether objections to up to fifteen proposed exhibits, set forth in the Joint Exhibit List, Docket
16 No. 453. See Docket No. 457 (“Bellwether Objections”). The Court’s rulings on these bellwether
17 objections follow in the attached chart.
18 VII. USE OF DISCOVERY RESPONSES
19 The parties submitted seventy pages of objections to deposition testimony as part of their
20 other pretrial filings. See Docket No. 458. Many of these evidentiary objections (i.e. with Dr.
21 Ball, the GM engineers, other Gen IV engines, etc.) have been addressed by the Court’s rulings
22 from the pretrial conference. As a result, the Court orders the parties to submit a modified and
23 narrowed list of the deposition objections that incorporates the Court’s evidentiary rulings from
24 the pretrial conference. The parties shall submit an updated joint memorandum identifying any
25 deposition testimony for which objections remain by Monday, September 12, 2022, at 12:00 p.m.
26 VIII. JURY INSTRUCTIONS
27 The Court will address the jury instructions in a separate order following the informal jury
1 opportunity to raise objections.
2 IX. PRELIMINARY STATEMENT OT THE JURY
3 The parties have submitted a joint proposed preliminary statement to be read to the jury.
4 See Docket No. 449. Per the Court’s Standing Order, the statement is supposed to be limited to
5 one paragraph unless the case is “extremely complex.” Because the proposed preliminary
6 statement is longer than advisable, the Court revised the parties’ proposed statement to read as
7 follows:
8 “Plaintiffs own model year 2012 and 2013 GM trucks with Gen IV
LC9 engines purchased in California, Idaho, and North Carolina.
9 Plaintiffs allege that their vehicles, and all other model year 2011-
2014 GM trucks and SUVs with the Gen IV LC9 engine
10 manufactured after February 10, 2011, have an “Oil Consumption
Defect” caused primarily by wear in the engines’ piston ring
11 assembly. Plaintiffs’ position is that these vehicles consume or
“burn” an excessive amount of oil, which endangers the vehicles’
12 engines and renders the vehicles unreliable. Plaintiffs further allege
that GM knew about the alleged Oil Consumption Defect but failed
13 to disclose it. Plaintiffs seek damages based on their contention that
if they had known about the Oil Consumption Defect, they would
14 not have purchased their vehicles or, at least, would have paid much
less for them.
15
GM denies Plaintiffs’ allegations, and contends the evidence will
16 show that internal combustion engines, including the Gen IV LC9
engines at issue, consume oil as part of their normal operation. GM
17 contends that issues with excess oil consumption are rare, and when
they do occur, do so for a multitude of different reasons having
18 nothing to do with an engine’s pistons or piston rings. GM’s
position is that there is no oil consumption defect caused by the
19 piston rings in plaintiffs’ own vehicles; nor is there a common oil
consumption defect in all model year 2011-2014 GM trucks and
20 SUVs with the Gen IV LC9 engine. Finally, GM contends that
plaintiffs have continued to use and drive their vehicles on a daily
21 basis, long past their vehicles’ warranty expiration dates, and that
Plaintiffs have no damages caused by GM.”
22
23 X. JURY VERDICT FORM
24 Each side has submitted a proposed special verdict form. See Docket Nos. 445, 447. Both
25 of the proposed special verdict forms have several questions and multiple sections: GM proposes
26 seventeen questions; Plaintiffs suggest thirteen. During the hearing, after the Court noted its
27 preference for a general verdict form, the parties expressed their intent to confer regarding a
1 not yet convinced that a special verdict form is necessary. In any event, the parties are directed to
2 meet and confer regarding the verdict form. The parties shall file the updated verdict form(s) by
3 September 12, 2022, at 12:00 p.m.
4 XI. JURY VOIR DIRE
5 The parties have submitted joint proposed voir dire questions for the electronic
6 questionnaire. Docket No. 446. In addition to the standard eleven questions included in the
7 Court’s Standing Order, the parties included eight case-specific questions. The Court added
8 additional questions. The completed questionnaires should be available by September 8 or 9.
9 XII. OTHER MATTERS
10 All lawyers, clients and client representatives, and witnesses must be fully vaccinated and
11 boosted or test negative before entering the courtroom. Additionally, anyone present in the
12 courtroom who is not speaking must wear a mask.
13 In the Joint Pretrial Conference Statement, the parties identified two issues for which they
14 request the Court’s guidance at the pretrial conference. See Joint Pretrial Conference Statement at
15 9 n.4, 10.
16 First, the parties disagree regarding the length of the statute of limitations for Plaintiff
17 Davis’s claim for breach of implied warranty of merchantability. GM contends that the statute of
18 limitations is three years, while Plaintiffs counter that it is four years. See Joint Pretrial
19 Conference Statement at 9 n.4. During the hearing, GM conceded that the statute of limitations is
20 four years because Plaintiffs are seeking to recover the value of the defective vehicles, not
21 damages associated with personal injuries or damage to property. See N.C. Gen. Stat. Ann. § 25-
22 2-725; see also Withers v. BMW of N. Am., LLC, 560 F. Supp. 3d 1010, 1021 (W.D.N.C. 2021)
23 (“The applicable statute of limitations for Plaintiff's warranty-based claims is four years after the
24 cause of action has accrued. N.C. Gen. Stat. § 25-2-725(1)”).
25 Second, the parties disagree about whether Plaintiffs can use the deposition testimony of
26 four GM witnesses who are outside the subpoena power of the Court but (according to GM) will
27 be physically present at trial. See Joint Pretrial Conference Statement at 10. In GM’s view, this
1 fact, will provide live testimony for GM’s cross-examination).
2 The Court agrees with GM. Rule 804 creates a carveout for deposition testimony where
3 the declarant is “unavailable”—but the Court cannot countenance how a witness who is present at
4 the courthouse and willing to testify could be “unavailable” under Rule 804. See Fed. R. Evid.
5 804(a) (listing various criteria for being “unavailable as a witness”); cf. Phoenix Techs. Ltd. v.
6 VMware, Inc., No. 15-cv-01414-HSG, 2017 WL 8069609, at *1 (N.D. Cal. June 7, 2017)
7 (admitting deposition testimony under Rule 32 where witness was farther than 100 miles at the
8 time that the deposition testimony was being offered in trial).
9 Because GM has agreed to make these witnesses available to testify in person within 48-
10 hour’s notice, these witnesses are not unavailable within the meaning of Rule 804. As a result,
11 their deposition testimony is inadmissible hearsay.7
12
13 IT IS SO ORDERED.
14
15 Dated: August 31, 2022
16
17 ______________________________________
EDWARD M. CHEN
18 United States District Judge
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