2023.08.28 - Adient - Youngers - Defs Resp to Pl Motions in Limine August 28, 2023 (2024)

 
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 IN THE STATE COURT OF GWINNETT COUNTY STATE OF GEORGIA REBEKAH YOUNGERS and LEONARD ) GREENE as Co-Guardians and Co- ) Conservators for BRENDA ELAINE ) GREENE, and LEONARD GREENE, ) individually, ) ) Plaintiffs, ) ) v. ) Civil Action File No. ) 22-c-0917-S4 FORD MOTOR COMPANY, JOHNSON ) CONTROLS, INC, ADIENT US LLC, and ) ALEXANDER CHASE WILSON, ) ) Defendants. ) ) DEFENDANTS FORD MOTOR COMPANY, JOHNSON CONTROLS, INC., AND ADIENT US LLC’S RESPONSE TO PLAINTIFFS’ OMNIBUS MOTION IN LIMINE COME NOW, Defendant Ford Motor Company (“Ford”) and Defendants JohnsonControls, Inc. and Adient US LLC (“Adient”) (collectively with Ford, “Defendants”), and herebyrespond to Plaintiffs’ Omnibus Motions In Limine (“Pls.’ Mot.”), as follows: 1. Plaintiffs’ MIL No. 1: “Defendants Should Be Precluded From Referencing A Lack Of Other Similar Incidents.” Plaintiffs seek to prevent Defendants from introducing evidence and testimony regardingthe lack of other similar incidents. However, long-standing case law in Georgia allows for thisexact type of evidence (or lack thereof). Further, Plaintiffs ignore that Defendants have a sufficientfoundation to introduce such evidence. Finally, Plaintiffs’ appeals to a Rule 403 argument areunavailing. A. Evidence regarding a lack of other similar incidents is sufficiently relevant and admissible. As Plaintiffs acknowledge, in Georgia, evidence of other similar incidents is generally 1allowed (provided a sufficient showing of similarity is made, and subject to Rule 403) with respectto the issue of notice, i.e., a showing of other similar incidents is relevant because it tends to showthat a defendant had notice of an alleged defect. (See, e.g., Pls.’ Mot. 4.) It holds, then, that a lackof other similar incidents can also be relevant to the issue of notice (as well as to any attendantduty to warn and/or take corrective action). See, e.g., Browning v. Paccar, Inc., 214 Ga. App. 496,498 (Aug. 23, 1994) (holding that evidence that no truck of the type at issue had ever been recalledor subjected to regulatory proceeding was admissible). Plaintiffs do not appear to dispute this. In Browning, the Georgia Supreme Court affirmed the admissibility of a lack of similarincidents in a product liability case against the automobile manufacturer. 214 Ga. App. at 498.Because the plaintiff alleged a defective vehicle design and manufacture, the Court reasoned, thelack of incident with thousands of identically designed and manufactured vehicles tended to negateplaintiff’s claim. Id. The common design and manufacture among the vehicles rendered thatevidence relevant to the claim. Id. Accordingly, the Browning Court found the evidence of nosimilar incidents relevant and otherwise admissible. Id. Moreover, Plaintiffs’ cited case — Williams v. Naidu, 168 Ga. App. 539 (1983) — isdistinguishable. See Browning, 214 Ga. App. at 498 (distinguishing Williams). In Williams, theappellate court held that it was error to allow defendant doctors in a medical malpractice case totestify that they had never been sued before, because such testimony was tantamount to stating that“they had never been negligent as medical practitioners, from which it is inferable that they werenot negligent in treating [the plaintiff].” Williams, 168 Ga. App. at 540. However, as the Browningcourt observed, unlike the defendant-physicians’ inadmissible evidence of “no prior suits” inWilliams, the evidence in Browning (as in this case), fell within an exception to the Williamsgeneral rule. See Browning, 214 Ga. App. at 498. As in Browning, Defendants here intend to 2show that “if what was claimed as a dangerous defect were such, it would have occurred in thethousands of identical vehicles which has been produced upon the same design and by way of thesame manufacturing process as the subject vehicle.” Thus, Browning is directly on point andPlaintiffs’ claimed foundational concerns are unwarranted. B. In the alternative, Defendants have a sufficient foundation for this evidence. Plaintiffs next argue that whether evidence regarding the absence of other similar incidentsdepends on the foundation laid. (Pls.’ Mot. 5–7.) They contend that such a showing is generallymade “where a witness has testified that: (1) a significant number of substantially identicalproducts have been used in similar circ*mstances over a period of time; (2) the witness wouldlikely be aware of prior accidents involving these products; and (3) to the witness’s knowledge, nosuch prior accidents have occurred.” (Id. at 6.) Defendants have such evidence. Indeed, Ford Design Analysis Engineer and expert witness Roger Burnett, whose expertiseis in automobile seats and restraint systems, testified that he is part of a group of engineers whom*onitor the field performance of Ford vehicles. See Burnett Dep. at pp. 9, 22. He would be awareof a lawsuit if it alleged a design defect related to those systems. Id. at 11. Mr. Burnett has alsogathered and is aware of statistical accident data on vehicle crashes. Id. at 26. This foundation—with more to be established at trial—supports his ability to testify that Ford is not aware of anyother rear crash to a Focus with similar front seats that resulted in serious or fatal injuries. At thevery least, it is sufficient to show that Plaintiffs have failed to meet their burden to show that theirmotion should be granted. Beyond that, the cases Plaintiffs cite with respect to an evidentiary foundation aredistinguishable. For example, in Forrest v. Beloit Corp., 424 F.3d 344 (3d Cir. 2005), the ThirdCircuit dealt with a very narrow evidentiary issue, specifically, the alleged lack of prior accidents 3concerning the particular machine that harmed the plaintiff in the paper mill where he worked. Id.at 353–54. There, a company witness admitted that records were not kept regarding safetycomplaints by its customers or past accidents involving that type of machine. Id. at 354. Thus, thetestimony from two employees of the paper mill who testified that in their decades of working atthe mill they had never seen an accident was so narrow that its probative value was outweighed bythe risk of unfair prejudice. Id. at 356–57. Similarly, in Hasenauer v. Celotex Corp., 1996 WL 481529 (E.D. Pa. Aug. 22, 1996), thedefendant refused to produce witnesses or evidence that would lay a sufficient foundation forevidence regarding the lack of other incidents. Id. at *3. Moreover, while Celotex attempted toargue it had an accident-free history with respect to ladders for over 80 years at the plant inquestion, it “offered no evidence that the physical conditions at the Marrero plant remainedunchanged,” and in fact, it “successfully opposed introduction of expert testimony about theconditions of the plant floor on the day of the expert inspection for lack of evidence the conditionswere the same on the day of the accident.” Id. In short, while the court recognized that the lack ofother substantially similar incidents could be relevant and legitimate, in that instance, Celotexfailed to meet its burden to show that such evidence should have been admitted. Id. As for Hockensmith v. Ford Motor Co., 116 F. App’x 244 (11th Cir. Aug. 5, 2004) (Ex. Ato Pls.’ Mot.), unlike here, the evidence in question was to show a lack of accidents with a Fordvehicle in comparison to more accidents with respect to other, non-Ford vehicles. The plaintiffthere claimed the district court erred “by allowing Ford’s expert, Dr. Wecker, to present statisticalevidence of thousands of accidents involving Ford Explorers without any showing of substantialsimilarity to the Hockensmith accident” while simultaneously precluding the plaintiff frompresenting any rebuttal evidence of a supposed substantially similar accident. (See Pls.’ Ex. A at 4p. 9.) The Eleventh Circuit found that this ruling was in error because “Ford introduced itsstatistical evidence in order to show that the Ford Explorer does not have an unreasonablepropensity to roll over in comparison to other compact utility vehicles.” (Id. at 11.) In short, the takeaway from these cases (other than that they are distinguishable) is thatwhether a sufficient foundation has been laid for evidence regarding a lack of other similarincidents is fact- and case-specific. And here, Defendants have made and can make at trial such ashowing. The Court should therefore deny Plaintiffs’ motion. 2. Plaintiffs’ MIL No. 2: “Defendants Should Be Precluded From Introducing, Referencing Or Eliciting Testimony Regarding Certain Unreliable Articles On Statistics Of Accident Severity And Frequency.” Plaintiffs seek to prevent Defendants from arguing that the delta-V (or change in velocity)of this crash was more severe than 99% of all rear-end collisions. In particular, Plaintiffs takeumbrage with the underlying data that Defendants’ experts have relied on in coming to thisconclusion. They identify references to a 2010 paper from Goertz and Yaek titled “AccidentStatistical Distributions from NASS CDS,” and, more specifically, the graph that appears as Figure4 in that paper, as supposedly inadmissible for a host of reasons.1 None of Plaintiffs’ argumentsare persuasive, and the Court should deny this motion.1 Plaintiffs also seek to preclude reference to “other alleged accident severity statistics.” (Pls.’ Mot.10.) But Plaintiffs fail to identify with any specificity, let alone sufficient specificity, the evidenceand/or testimony sought to be excluded—much less do Plaintiffs meet their burden to show thatsuch evidence and/or testimony is properly excluded as inadmissible for all purposes for which itwould be offered. See, e.g., Williams v. Harvey, 311 Ga. 439, 452 (2021) (“[A] motion in limineto exclude evidence should be granted only if there is no circ*mstance under which the evidenceis likely to be admissible at trial.”). Without such specificity, Plaintiffs’ motion is entirely—andimproperly—abstract and the Court should summarily deny it as such. To the extent Plaintiffsidentify another article in footnote 6 as encompassing the “same issues of unreliability” as theGoertz and Yaek paper, the motion should be denied for the same reasons discussed throughoutDefendants’ opposition. 5 A. The NASS data is reliable. Plaintiffs first argue generally that the paper from SAE International is unreliable and thusshould be excluded. (Pls.’ Mot. 11–13.) Not so. The Goertz and Yaek paper—and the identifiedgraph—are based on real-world accident data reported to and maintained by the federalgovernment in the National Automotive Sampling System (NASS) database, which “wasestablished in 1979 as part of a nationwide effort to reduce motor vehicle crashes, injuries, anddeaths on our highways.” National Automotive Sampling System: Research on Motor VehicleCrashes and Injuries to Support Safety Programs, attached as Exhibit A. NASS is operated by thefederal government’s National Highway Traffic Safety Administration (NHTSA), and the NASSdatabase—which contains “crash data to help government scientists and engineers analyze motorvehicle crashes and injuries”—is a resource used by government regulators, researchers, experts,and automobile manufacturers to study motor-vehicle crash safety. See id. Importantly, courts in both the state and federal systems, including in Georgia, have founddata in the NASS database to be reliable and the type of data generally accepted as valid by therelevant scientific community on numerous occasions. See, e.g., Fox v. Gen. Motors LLC, No.1:17-cv-209, 2019 WL 3483171, at *25 (N.D. Ga. Feb. 4, 2019) (noting that “multiple courts havefound the NASS-CDS data a reasonable source on which experts may rely”); Bacho v. RoughCountry, LLC, No. 3:14-cv-40, 2016 WL 4607880, at *5 (N.D. Ga. Mar. 17, 2016); Hernandez v.Ford Motor Co., No. 04-cv-319, 2005 WL 6240743, at *1 & n.2 (S.D. Tex. July 20, 2015) (notingthat certain databases, including NASS, “are maintained with accuracy and generally accepted asvalid by the relevant scientific community, including NHTSA”); Christian v. Ford Motor Co., No.SUCV2017000091, at 3 (Super. Ct. of Clay Cnty., Ga., Mar. 11, 2022) (noting that the NASS“databases are maintained by the federal government and acknowledged to be reliable”), attached 6as Exhibit B. Plaintiffs ignore this body of law and these cases’ conclusions that the NASS dataon which Ford’s experts rely is reliable, accurate, “generally accepted as valid by the relevantscientific community”, and thus properly admissible. B. Plaintiffs’ attacks on the Goertz & Yaek paper are not persuasive. Turning to Plaintiffs’ more specific arguments, each is unavailing. First, Plaintiffs state in conclusory fashion that “Defendants have not designated a‘statistics’ expert.” (Pls.’ Mot. 10.) Beside being completely undeveloped, this argument is a redherring. Defendants’ experts are not doing statistical analysis. Rather, they are relying on thereliable data presented in the paper vis-à-vis the delta-V in this crash to show where on that chartthis crash fits, i.e., in the 99th percentile. As many courts have reasoned, such an approach is nota “statistical analysis” that need be undertaken by a statistician. Instead, as explained in greaterdetail below, it is common and acceptable approach for experts in their disciplines to rely on thestatistical analysis performed by others. See Bacho, 2016 WL 4607880, at *4 (“Using statisticaltools to analyze a dataset is a common practice in many fields; one does not need a degree instatistics to be able to understand and apply basic statistical concepts.” (emphasis added)). Next, in a footnote, Plaintiffs try to clarify that they are not “in any way suggesting thatDefendants cannot argue that their seat met or exceeded FMVSS standards (related to the frontseat assembly) and was safe, or that the impact was so severe that the fact that the seatbackcollapsed is not a product failure,” but they nonetheless do argue that any statistical arguments“lack foundation and are unreliable” and seek to preclude Defendants from arguing that the crashwas unforeseeable based on the delta-V. (Pls.’ Mot. 10 n.4.) For the latter, these are classicexamples of issues to be resolved at trial. Indeed, foreseeability is a factor the jury must considerin the risk-utility analysis. See Banks v. ICI Ams., Inc., 264 Ga. 732, 736 n.6 (1994). And 7Defendants are entitled to argue that there is no duty to design a vehicle to withstand a crash thatis far and away a statistical outlier, as those are also factors for the jury to consider. See id.(identifying factors such as “the gravity and severity of the danger posed by the design; thelikelihood of that danger; the avoidability of the danger”; “the state of the art at the time the productis manufactured; [and] the ability to eliminate danger without impairing the usefulness of theproduct or making it too expensive”). That said, Plaintiffs’ position is misplaced. Defendants donot intend to argue that this crash was “unforeseeable” based on the delta-V; rather, they intend toargue that given the severity of the crash as reflected by the delta-V, the design of the Focus wasnot defective under Georgia law. Plaintiffs then contend that the data “is too dissimilar . . . to be introduced as evidence”because it covers crashes from 1988 to 2007, but this crash was in 2016. (Pls.’ Mot. 11.) Initially,and as explained more below, the NASS data does not necessarily need to be admissible inevidence for Defendants’ experts to reference or rely on it at trial. As for the timing argument, Plaintiffs miss the point. Although this crash occurred in 2016,the subject vehicle—a 2014 Ford Focus—was part of a platform first introduced with the 2012model year. Ford’s Answers to Pls.’ First Interrogs., attached as Exhibit C. The design anddevelopment of this vehicle platform would started several years before that. The Goertz & Yaekpaper was published in April 2010. And Plaintiffs allege a design defect, i.e., an issue with thedesign that was developed years before this crash. Vehicles are designed with the majority ofcrashes in mind. In other words, when the Ford Focus was being designed, consideration of theNASS data referenced and reflected in the Goertz & Yaek paper made sense and was scientificallyreliable. Finally, Plaintiffs offer nothing but unsupported attorney argument that the underlyingdata is irrelevant or unreliable based on the timing, i.e., there is no suggestion (much less any 8evidentiary support) that the severity of crashes changed dramatically from 2007 to 2016, suchthat the data is not relevant or reliable.2 Next, Plaintiffs contend that the sample size used by the Goertz and Yaek paper is toosmall, as it only used approximately 5,000 crashes per year, whereas there are approximatelymillions of crashes each year. (Pls.’ Mot. 12.) This criticism is misplaced—the NASS databaseitself only selects “about 5,000 crashes a year.” National Automotive Sampling System: Researchon Motor Vehicle Crashes and Injuries to Support Safety Programs, at 1. In other words, theGoertz & Yaek paper looked at all crashes in the database, which, again, is consistently held to bereliable. Further, given the overall reliability of the database itself, criticisms of the sample sizeitself have been rejected. See, e.g., Roberts v. Gen. Motors, LLC, No. 4:13-cv-541, 2015 WL6955362, at *11 (E.D. Mo. Nov. 10, 2015 (“The databases have been tested and are in wide useby not only government agencies but also academic entities. The possibility of errors and smallsample sizes are known and can be accounted for.”). Accordingly, if the underlying database hasbeen deemed reliable (it has), then Plaintiffs’ unsupported attorney argument criticizing the Goertz& Yaek paper because of its sample size of 5,000 crashes per year (which is all that the databaseincludes) is misplaced. Plaintiffs also contend there is missing data with respect to the delta-V in the chart. (Pls.’Mot. 12.) This argument is equally unavailing for the same reason as the previous one—the graphin question simply maps the delta-V for the available crashes in the database. Courts have said this2 Plaintiffs also emphasize that “the subject incident is not even reflected in the data that appearsin the above graph.” (Pls.’ Mot. 11.) This misses the point of the graph, which is to show wherethis crash would fall in terms of severity in relation to other rear-end crashes in the database. Thiscrash doesn’t need to be “reflected in the data” to do so. Moreover, as explained below, this datais not being used as evidence of other similar incidents, so Plaintiffs’ argument is further irrelevant. 9data is reliable. To the extent Plaintiffs take issue with the sample size being smaller based on alack of certain data, as the Roberts court explained, these criticisms are “known and can beaccounted for,” but they provide no reason to preclude reference to and reliance on the data itself.See also Fox, 2019 WL 3483171, at *25–26 (quoting Roberts). Similarly, Plaintiffs argue that the authors of the paper include a disclaimer, specificallythat “[t]here are an infinite number of ways to look at the data and this paper touches on a few ofthem.” (Pls.’ Mot. 12–13 (quoting Goertz & Yaek).) Plaintiffs contend this means the data is“unreliable, misleading and should be kept out of the courtroom and away from the jury.” (Id. at13.) Again, this is nothing more than unsupported attorney argument. The general “disclaimer” isnothing more than an observation that the underlying data can be used in a variety of ways—including to map out the delta-V of all crashes in the database for which such data is available. Ifthere are other ways to look at the data, then Plaintiffs were free to retain experts and commissionwork to do so—but it does not make Defendants’ experts’ reliance on the NASS data or the Goertz& Yaek paper inadmissible. And again, courts have repeatedly held that this data is reliable andcan properly be referenced by experts. C. Defendants’ experts properly rely on this paper and the underlying NASS data. Plaintiffs also argue that the data should be excluded because neither Goertz nor Yaek weredisclosed as experts in this matter and accordingly, Defendants’ experts are improperly serving asconduits for them. (Pls.’ Mot. 13.) Again, Plaintiffs are mistaken.3 Under Georgia law, in formingtheir opinions, experts are allowed to rely on facts or data on which experts in the field would3 Moreover, to the extent Plaintiffs now seek to challenge the reliability of Defendants’ experts’opinions and conclusions based on the Goertz & Yaek paper, such objections should have beenraised two years ago in a Daubert motion. The Court’s scheduling order required all motions toexclude or limit expert opinions to be filed by November 5, 2021. (See June 7, 2021 SchedulingOrder.) 10typically rely. See, e.g., O.C.G.A. § 24-7-703; Stovall v. DaimlerChrysler Motors Corp., 270 Ga.App. 791, 793 (2004) (“Expert witnesses may rely upon scientific works and government reportsin forming their opinions about matters at issue in a case.”). And that is exactly the case here—asexplained above, the NASS data is commonly relied on by experts in the field in the manner inwhich Defendants’ experts use this data to formulate their own independent opinions. See alsoBacho, 2016 WL 4607880, at *4. Indeed, the case Plaintiffs cite reinforces, rather than undermines, this point. The Nashcourt simply announced an undisputed general principle—i.e., that “a witness must give his or herown opinion and not act as a conduit for the opinions of others”—and went on to state that, as anexample, “a doctor may render her own opinion based on reading a textbook, but she cannot merelycite the opinion of the textbook.” Nash v. Compass Bank, 296 Ga. App. 874, 876 (2009). Here,Defendants’ experts base their own opinions on the data in the Goertz & Yaek paper, they are notmerely reciting the opinions of others contained therein (to the extent the paper even expresses any“opinions”)—an approach which is undisputedly allowed under Georgia law. Likewise, Plaintiffs complain that they cannot attack the reliability of the underlying databecause neither Goertz nor Yaek will testify at trial. This is of no consequence. Again, the NASSdata is considered reliable, making the argument moot. But to the extent Plaintiffs want to questionDefendants’ experts on how they interpreted and utilized that data in reaching their conclusions,Plaintiffs are free to do so. See, e.g., Bacho, 2016 WL 4607880, at *5 (“Any weaknesses with theNASS data collection may be probed on cross-examination.”); Fox, 2019 WL 3483171, at *25(citing Bacho for the same proposition). 11 Plaintiffs’ argument that the underlying data is “hearsay on hearsay,” (Pls.’ Mot. 13) haslikewise been rejected by other courts. See Fox, 2019 WL 3483171, at *26 (noting that NASS dataand studies “are admissible under the learned treatise exception to the hearsay rule”).4 Finally, Plaintiffs contend that in any event, the Court should preclude reference to thisdata because it has not been established that such incidents are substantially similar to the crash inthis case. (Pls.’ Mot. 13–14.) Plaintiffs miss the point. Defendants and their experts do not rely onthis NASS data as evidence of substantially similar incidents, i.e., to recreate the crash; rather, itis meant to show general scientific principles and circ*mstances surrounding all types of rear-endcrashes. Accordingly, the substantial similarity test does not apply. See, e.g., Tran v. Toyota MotorCorp., 420 F.3d 1310, 1316 (11th Cir. 2005) (“The substantial similarity doctrine does not applyto situations, like this one, where the evidence is pointedly dissimilar and not offered to reenactthe accident.”); Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1396–97 (11th Cir. 1997); Bacho,2016 WL 4607880, at *5 (rejecting this argument and allowing testimony based on NASS data,explaining that “the data must be examined in connection with the proffered opinion”). In short, numerous courts have examined these same arguments Plaintiffs advance here—and rejected them all. And contrary to Plaintiffs’ bald assertion, there is no risk of the jury beingconfused or misled, as the data is reliable, has been reliably applied, and will be reliably presented.Plaintiffs, meanwhile, will have full opportunity to cross-examine Defendants’ witnesses on theNASS data and any perceived limitations or concerns. Finally, the bald assertion that allowing4 Contrary to Plaintiffs’ assertion, use of this data is not analogous to the situation present in Hines.(Pls.’ Mot. 13 n.10.) In Hines, the defendant attempted to enter into evidence an OSHA reportregarding the specific incident that was the subject of the trial. Hines v. Brandon Steel Decks, Inc.,754 F. Supp. 199, 200 (M.D. Ga. 1991). The court found certain portions “suspect for a numberof reasons,” including because the OSHA investigator who drafted the report lacked thequalifications and expertise to do so; the investigator had no first-hand knowledge of the events inquestion; and the investigator was not subject to cross-examination. Id. at 200–01. 12Defendants’ experts to rely on the NASS data as they have will “take up too much time in thistwo-week trial” is just that—a bald, undeveloped, and unsupported assertion, and a false one atthat. 3. Plaintiffs’ MIL No. 3: “Defendants Should Be Precluded From Attempting To Reference That The Rear Left Passenger Seat Cushion And/Or Seatback Position Was Altered Before Defendants’ Inspection Of The Subject Vehicle.” Defendants do not intend to argue that Plaintiffs or their experts have intentionallyspoliated evidence or intentionally tampered with the rear seat position. However, the position ofthe rear seat at the time of the accident is probative of the degree of dynamic rearward deflectionthat Ms. Greene’s driver’s seat experienced during the accident, which the parties dispute. Defenseexpert Dr. David Viano testified that when he inspected the Plaintiffs’ vehicle and its seats onMarch 28, 2018, the rear seat and seat cushion were in a different position (further rearward) thanthey were in earlier inspection photographs taken by Plaintiffs’ experts. (See generally Pls.’ Ex.D, Viano Dep. Tr., at 118:3 to 135:4.) Dr. Viano opines that the rear seat’s position further forwardin the vehicle in prior inspections supports that the driver’s seatback could not have deflected asfar rearward in the accident, because the rear seat’s forward position would have limited the angleof the driver’s seat’s deflection. (Id. at 120:7-14, 121:13-122:1, 125:18-128:15.) This opinion issupported by photographs from earlier inspections and Dr. Viano’s own deposition testimony. Dr. Viano’s factual observations regarding the change in position of the rear seats betweenPlaintiffs’ January 24, 2017 inspection and Dr. Viano’s March 28, 2018 inspection are material toand inform Dr. Viano’s expert opinions in this case regarding the degree of deflectionMs. Greene’s driver’s seat experienced during the November 13, 2016 accident—a central issuein this case. Dr. Viano’s opinions are relevant to the disputed issues in this case and are supportedby competent expert testimony and photographic evidence. See O.C.G.A. § 24-4-402. As theexclusive finders of fact, the jury must be permitted to see the position of the seats in the different 13vehicle inspection photographs and to hear testimony on Dr. Viano’s opinions, on which Plaintiffswill be able to cross-examine Dr. Viano. Plaintiffs’ motion in limine seeking to wholly excluderelevant and admissible evidence from the jury’s consideration is improper and should be denied.See O.C.G.A. § 24-4-402. Moreover, to the extent Plaintiffs now seek to challenge the reliability of Dr. Viano’sopinions and conclusions regarding the rear seat position and the driver’s seat back deflection, thiswas an issue that should have been raised two years ago in a Daubert motion. The Court’sscheduling order required all motions to exclude or limit expert opinions to be filed by November5, 2021. (See June 7, 2021 Scheduling Order.) Now, nearly two years after the deadline and onlytwo months before trial, Plaintiffs improperly and untimely challenge portions of Dr. Viano’sexpert opinions with a one-page motion devoid of any case law or analysis of the admissibility ofexpert testimony. This is precisely the type of unfair surprise and undue prejudice that the GeorgiaRules of Evidence are designed to avoid, not create. See, e.g., Ga. Code § 24-4-403. As such,Plaintiffs’ improper motion in limine should be denied. 4. Plaintiffs’ MIL No. 4: “Defendants Should Be Precluded From Making Any Argument, Testimony, Reference, Or Assertion That A Booster Seat Was In The Rear Seat Of The Subject Vehicle At The Time Of The Subject Incident.” Defendants do not oppose this motion in limine so long as it is reciprocal and Plaintiffs donot open the door. Defendants do not intend to elicit testimony suggesting that there was a boosterseat in the rear of the subject vehicle at the time of the subject crash. 5. Plaintiffs’ MIL No. 5: “Defendants Should Be Precluded From Referencing Unrelated Vehicle Tests Or Safety Standards.” Under Georgia’s risk-utility test, the jury is expressly allowed to consider evidence of“compliance with federal standards or regulations . . . in deciding the question of reasonableness,that is, whether the product design selected was a reasonable one from among the feasible choices 14of which the manufacturer was aware or should have been aware.” Doyle v. VolkswagenwerkAktiengesellschaft, 267 Ga. 574, 577 (1997); see also Banks, 264 Ga. at 736 n.6. In Banks, thecourt explained that a relevant factor for the jury’s consideration is “the collateral safety of afeature other than the one that harmed the plaintiff” as well as “the state of the art at the time theproduct is manufactured.” 264 Ga. at 736 n.6. This makes sense—vehicles and their components are not designed in a vacuum; the designchoices with respect to one feature must be considered in relation to the vehicle as a whole. Here,the front-seat assembly is not a stand-alone feature. It is part of a complex and interrelated systemof components and features—including the restraints and belts, the supplemental restraints (e.g.,airbags, pretensioners), the vehicle’s structure, and more—that, overall, comprise the occupantsafety system. Accordingly, it is entirely appropriate for Defendants to discuss the overall safetyof the Ford Focus vis-à-vis its compliance with federal, internal, and industry regulations and tests.See e.g., Gentry v. Volkswagen of Am., Inc., 238 Ga. App. 785, 786 (1999) (explaining that in thecontext of automotive part defect cases, “compliance with applicable federal standards is [ ] oneof the factors to consider”); Talley v. City Tank Corp., 158 Ga. App. 130, 136 (1981) (holding thatin defective automobile part case, the defense is “entitled to have the ‘defectiveness’ of his productconsidered in the context of the overall original design of the item” (emphasis added)); Tunnell v.Ford Motor Co., No. 4:03-cv-74, 2005 WL 3776353, at *4 (W.D. Va. Apr. 18, 2005) (holding thatin a seatbelt defect case, evidence of “total design package for collision safety” is relevant andotherwise admissible). Nevertheless, Plaintiffs incorrectly contend that such evidence is inadmissible because it“would try to argue that overall—notwithstanding the defective driver’s seat assembly—the FordFocus is a safe vehicle.” (Pls.’ Mot. 17.) In addition to being contrary to the governing law, this 15argument is also logically flawed—it assumes that the driver’s seat assembly is defective and fromthere, argues that Defendants cannot put on evidence to show that in spite of this defect, the Focusis overall a good and safe vehicle and thus Defendants should not be liable. But there is no disputethat it is Plaintiffs’ burden to prove their theory of defect, nor is there any dispute that no suchshowing has been made. Under the current posture, then, the subject vehicle’s overall compliancewith federal and industry standards is plainly relevant and an express factor for the jury to considerin determining whether Plaintiffs meet their burden of proof. See 62.670 Strict Liability; DesignDefect; Compliance with Industry Standards or Government Regulations, Georgia SuggestedPattern Jury Instructions – Civil. Nor have Plaintiffs identified any specific tests or standards, including FMVSS, that theycontend are “unrelated to the performance of the front seat assembly.” (Pls.’ Mot. 17.) As notedabove, the front seat assembly is part of the overall occupant safety system. Thus, applicableFMVSS include not just those that are explicitly related to the seat assembly (FMVSS 202 & 207),but also those relevant to the whole crash-avoidance and -mitigation features as well (e.g., FMVSS201, 208, 214, and others). Plaintiffs’ motion is thus impermissibly vague, and the Court shoulddeny it as such. See Williams, 311 Ga. at 452 (finding a motion in limine impermissibly vaguewhere it fails to identify the specific evidence to exclude). Plaintiffs’ arguments regarding alleged juror confusion about safety standards are similarlyunpersuasive. (Pls.’ Mot. 18.) Again, Georgia law explicitly requires the jury to consider suchcompliance under the risk-utility test, as follows: 16 In determining whether a product was defective, you may consider proof of a manufacturer’s compliance with federal or state safety standards or regulations and industrywide customs, practices, or design standards. Compliance with such standards or regulations is a factor to consider in deciding whether the product design selected was reasonable considering the feasible choices of which the manufacturer knew or should have known. However, a product may comply with such standards or regulations and still contain a design defect.62.670 Strict Liability; Design Defect; Compliance with Industry Standards or GovernmentRegulations, Georgia Suggested Pattern Jury Instructions - Civil. Therefore, any arguments thatjurors may be “confused” or “misled” by such evidence strains credibility.5 Finally, Plaintiffs are incorrect that “should this impermissible character evidence beadmitted, Plaintiffs will be forced to set the record straight” by, for example, providing rebuttal orimpeachment testimony “about ‘safety’ with evidence of other dissimilar incidents.” (Pls.’ Mot.18–19.) Significantly, vehicle tests and safety standards are not “character evidence.” Rather, suchevidence is routinely admitted to show that a manufacturer complied with industry and/orgovernment standards (which, again, is a factor the jury is expressly allowed to consider and thePattern Jury Instructions explicitly address). See Duren v. Paccar, Inc., 249 Ga. App. 756, 757(2001) (explaining the “general rule” that compliance with federal standards is a relevantconsideration in the product liability context); see also 62.670 Strict Liability; Design Defect;Compliance with Industry Standards or Government Regulations, Georgia Suggested Pattern JuryInstructions – Civil.5 Indeed, the Fowler case—cited for the general proposition that “official” reports may confusethe jury—is distinguishable. (Pls.’ Mot. 18.) Plaintiffs presumably cite this case because it dealswith the exclusion of government reports. But FMVSS compliance is not determined or announcedby NHTSA, i.e., there is no “government report” reflecting the compliance. Rather, FMVSScompliance is self-certified by Ford. Moreover, Fowler declined to set forth a general rule thatdocuments or reports promulgated by an agency of the United States government werecategorically prone to mislead a jury. See Fowler v. Firestone Tire & Rubber Co., 92 F.R.D. 1, 2(N.D. Miss. 1980). 17 Moreover, Plaintiffs’ proffered Ninth Circuit law on the unrelated issue of dissimilaraccidents is neither relevant nor persuasive. The first case they cite—Cooper v. Firestone Tire &Rubber Co., 945 F.2d 1103 (9th Cir. 1991)—allowed cross examination of an expert regardingother dissimilar incidents to impeach the expert’s testimony that “a product is generally safe,”because “the witness’s credibility can be undermined by showing that the witness had knowledgeof prior accidents caused by the product,” and the “evidence of other accidents, whether similar ornot, tends to show the witness’s claims of product safety are overstated and the witness thereforemany not be reliable.” Id. at 1105. As the court explained, “[i]t is not the expert’s knowledge ofprior accidents that triggers the admissibility of evidence of other accidents, however, but theexpert’s assertion that the product involved is generally safe,” but if “an expert restricts histestimony to the product’s safety with respect to the type of accident at issue, or acknowledges ondirect examination the occurrence of prior accidents in dissimilar circ*mstances, evidence of suchaccidents will not be relevant to his credibility and will not be admissible.” Id. In other words, theprinciple espoused by Cooper is not a blanket door-opening to evidence of other dissimilarincidents if Defendants offer testimony of the overall safety of the Ford Focus.6 6. Plaintiffs’ MIL No. 6: “Defendants Should Be Precluded From Making Any Argument, Testimony, Reference, Or Assertion That Defendant Alexander Chase Wilson Was Intoxicated At The Time Of The Subject Incident.” Defendants do not oppose this motion in limine so long as it is reciprocal and neitherPlaintiffs, nor Mr. Wilson, open the door. Defendants do not intend to elicit testimony that Mr.Wilson was intoxicated at the time of the crash.6 The other case cited by Plaintiffs—Kim v. General Motors Corp., 203 F. App’x 852 (9th Cir.2006)—is merely quoting Cooper. Id. at 854. And in any event, the court held that the district courtdid not err in “admitting the statistical evidence regarding vehicle crashworthiness and GMs’compliance with Federal Motor Vehicle Safety Standard 216” because even though it included“evidence of dissimilar accidents,” that statistical evidence was appropriate “because it was usedto rebut the testimony of Kim’s expert.” Id. 18 7. Plaintiffs’ MIL No. 7: “Defendants Should Be Precluded From Making Any Argument, Testimony, Reference, Or Assertion That Defendant Alexander Chase Wilson Or The Passengers In The Lincoln Town Car Tried To Flee The Scene Of The Accident.” Defendants do not oppose this motion in limine so long as it is reciprocal and neitherPlaintiffs, nor Mr. Wilson, open the door. Defendants do not intend to elicit testimony regardingwhether any of the occupants in the Lincoln Town Car fled the scene of the crash. 8. Plaintiffs’ MIL No. 8: “Defendants Should Be Precluded From Attempting To Introduce Any Evidence About Plaintiffs’ Family Members Employment With Defendant Ford Or Their Ownership Of Other Ford Vehicles.” Defendants oppose this motion, which seeks to bar evidence of Plaintiffs and their familymembers’ employment with Ford and/or ownership of Ford vehicles. The jury is tasked withdetermining the credibility of the testimony of all witnesses, including Plaintiff Leonard Greene,who is employed by an independently owned Ford dealership. Defendants should be allowed to question Plaintiffs and any of their family members calledto testify in this case whether (1) they continue to drive Ford vehicles, despite Plaintiffs’ allegationsagainst Ford in this case; and (2) they continue to work for Ford or a company that sells Fordvehicles, despite Plaintiffs’ allegations against Ford in this case. These lines of questioning godirectly to the credibility of Plaintiffs’ defect allegations in this case. See O.C.G.A. § 24-6-620(“The credibility of a witness shall be a matter to be determined by the trier of fact, and if the caseis being heard by a jury, the court shall give the jury proper instructions as to the credibility of awitness.”); see also Snowden v. Singletary, 135 F.3d 732, 739 (11th Cir. 1998) (“Witnesscredibility is the sole province of the jury.”). Such questioning is also a valid form of impeachmentevidence. See Paul S. Milich, Ga. Rules Of Evidence § 14:1, Witness impeachment–In general(October 2022 Update) (one of the six general methods of impeaching a witness’s credibility iscontradiction). 19 However, Defendants do not oppose this motion to the extent it seeks to bar argument ortestimony regarding the vehicles driven by the various attorneys in this case. (See Pls.’ Mot. 22n.19.) 9. Plaintiffs’ MIL No. 9: “Defendants Should Be Precluded From Making Any Statement Or Reference That Any Witness Drives A Ford Vehicle.” Defendants oppose this motion which seeks to bar evidence regarding Ford vehicles ownedand/or driven by witnesses at trial. A. Plaintiffs’ expert witnesses As described above in response to Plaintiffs’ MIL No. 8, the jury is tasked with determiningthe credibility of the testimony of all witnesses, including experts. See O.C.G.A. § 24-6-620 (“Thecredibility of a witness shall be a matter to be determined by the trier of fact, and if the case isbeing heard by a jury, the court shall give the jury proper instructions as to the credibility of awitness.”); see also Snowden v. Singletary, 135 F.3d 732, 739 (11th Cir. 1998) (“Witnesscredibility is the sole province of the jury.”). No witness should be precluded or protected fromanswering basic questions about what vehicles he/she or his/her family drives. Such responses arerelevant evidence, as they make it more probable than not that the witnesses’ testimony iscredible—particularly with respect to witnesses whose own personal driving experiences are atodds with their testimony and allegations concerning the vehicle and vehicle safety systems atissue here. O.C.G.A. § 24-7-401. The fact that any of Plaintiffs’ experts would choose to own or drive a vehicle that containsan allegedly dangerous condition and/or defect is relevant to the credibility of that witness’stestimony that such vehicles are allegedly unreasonably dangerous. In other words, Plaintiffs’experts’ contrary actions inform the credibility of their testimony before the jury. See U.S. v. Abel,469 U.S. 45, 52 (1984) (“[T]he jury, as finder of fact and weigher of credibility, has historically 20been entitled to assess all evidence which might bear on the accuracy and truth of a witness’testimony.”). Such evidence is also relevant for impeachment purposes—one of the six generalmethods of impeaching a witness’s credibility is contradiction. See Paul S. Milich, Ga. Rules OfEvidence § 14:1, Witness impeachment–In general (October 2022 Update). B. Defendants’ employees and expert witnesses The credibility of the witnesses will be tested and attacked by both sides. It is neitherimproper, nor unfairly prejudicial, for testimony to be presented to the jury regarding a witness’personal belief and confidence in the very product at issue. A party is not barred from presentingevidence that corroborates or strengthens a witness’s testimony. See e.g., Yale & Towne, Inc. v.Sharpe, 118 Ga. App. 480, 488 (1968) (“It is permissible to strengthen a witness’s testimony byevidence of matters showing its consistency and reasonableness intending to indicate that the factswere as stated by the witness.”). Yet by their motion, Plaintiffs want to be able to attack Defendants’ employees’ andexperts’ credibility on one hand but prevent Defendants from presenting contrary testimony oncredibility on the other hand. The fact employees of Ford and/or Adient or their experts drive Fordvehicles is relevant to those witnesses’ credibility concerning the safety and non-defective natureof Ford vehicles. See S. Ry. Co. v. Lawson, 256 Ga. 798, 802 (1987) (explaining that evidence isrelevant if it “renders the desired inference more probable than it would be without the evidence”).Jurors reasonably could infer that the Defendants’ experts and employees would not drive or lettheir family and friends drive a particular Ford vehicle if they thought it was defective and/ordangerous. Therefore, for the reasons stated above, the Court should deny this motion in limine in full. 21 10. Plaintiffs’ MIL No. 10: “Defendants Should Be Precluded From Attempting To Argue That The Subject Vehicle And Its Systems Or Components Were Reasonably Safe, Not Defective, Or Not Unreasonably Dangerous Because They Have Not Been Recalled.” Plaintiffs’ motion is contrary to Georgia law. Under the risk-utility test, “compliance withfederal standards or regulations is a factor for the jury to consider in deciding the question ofreasonableness, that is, whether the product design selected was a reasonable one from among thefeasible choices of which the manufacturer was aware or should have been aware.” Doyle, 267 Ga.at 577 (explaining that compliance with federal standards is “a piece of the evidentiary puzzle”and should be admitted); see Domingue v. Ford Motor Co., 314 Ga. 59, 65 (June 22, 2022) (notingthat Georgia law authorizes the admission of evidence regarding compliance with federalstandards); Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 78 (July 3, 1995) (finding thatevidence related to the risk-utility test, like federal-standard compliance, falls under a “legitimateevidentiary theory [and] should be admitted”); 62.670 Strict Liability; Design Defect; Compliancewith Industry Standards or Government Regulations, Georgia Suggested Pattern Jury Instructions– Civil. While such compliance does not preclude a finding of defect, it also does not makeevidence of the lack of a product recall inadmissible. See Browning v. Paccar, 214 Ga. App. 496,498 (1994) (“[T]he absence of a recall is not irrelevant where, as here, the manufacturer is engagedin mass production of a vehicle over a period of many years and the claim is that each vehiclesuffered from the same design defect.”). Nor would such evidence confuse or mislead the jury. As Plaintiffs concede, it is the jury’sjob to make the determination of defect. The vehicle’s compliance with applicable federalregulations is expressly a factor for the jury to consider. It strains credulity to think that a factorwhich the jury is expressly allowed to consider would nonetheless confuse or mislead it. 22 Beyond that, this is another instance of Plaintiffs filing an entirely vague and speculativemotion. Th 

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