RATCLIFFE v. BRP US INC et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
STEPHEN J. RATCLIFFE, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 1:20-cv-00234-JAW
)
BRP U.S., INC., et al., 	)
)
Defendants. 	)
ORDER ON DEFENDANT BRP’S MOTION IN LIMINE TO EXCLUDE
EVIDENCE OF OTHER ACCIDENTS OR INCIDENTS
Consistent with First Circuit law, the court concludes that a plaintiff in a
product liability claim relating to a vehicle rollover may present evidence of prior
rollovers of the same type of vehicle to argue that the manufacturer and the
distributor had been placed on notice of the general risk of rollover because the record
reveals that the circumstances of the prior rollovers were substantially similar to
those at issue in the case at bar. However, based on the plaintiff’s failure to establish
substantial similarity as to the nature of the prior rollovers and mechanism of
occupants’ injuries in the prior rollovers, the plaintiff may not present evidence of
prior rollovers for the purpose of arguing the defendants’ prior knowledge of the
particular nature of his rollover and the mechanism of his injury without establishing
a proper foundation for admission.
I. 	BACKGROUND
On July 30, 2019, a utility terrain vehicle (UTV) driven by Stephen J. Ratcliffe
overturned, causing significant injuries. Compl. ¶ 15 (ECF No. 1). On July 2, 2020,
Mr. Ratcliffe brought product liability claims against both BRP U.S., Inc. (BRP), the
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manufacturer; 	and 	Tidd’s 	Sport 	Shop, 	Inc. 	(Tidd’s), 	the 	distributor; 	asserting
negligence and strict liability claims against both, respectively.1 Id. ¶¶ 17-57.
In light of the upcoming trial date, on October 4, 2024, BRP filed a motion in
limine to exclude evidence of or reference to other incidents involving Can-Am
Maverick off-road vehicles, the brand of vehicle driven by the Plaintiff at the time of
the injury underlying this case. Def. BRP’s Mot. in Lim. No. 4 and Supporting Br. to
Exclude Evidence of Other Accidents or Incidents (ECF No. 171) (Def.’s Mot.). 	On
October 15, 2024, Mr. Ratcliffe filed his opposition to the exclusion of such evidence.
Pl. Stephen J. Ratcliffe’s Obj. to Def. BRP’s Mot. in Lim. No. 4 and Supporting Br. to
Exclude Evid. of Other Accidents or Incidents (ECF No. 197) (Pl.’s Opp’n).
II. 	THE PARTIES’ POSITIONS
A. 	BRP’s Motion to Exclude Evidence of Other Accidents
BRP moves the Court to exclude the introduction of any evidence of other
accidents or incidents involving Can-Am Maverick off-road vehicles, including but not
limited to the X3 model. 	Def.’s Mot. at 1. 	BRP’s motion focuses on the accounts of
other accidents contained in the report of Mr. Ratcliffe’s design expert, Steven Batzer,
Ph.D., in which Dr. Batzer concludes that “early rollover tendency is supported by
OSIs (other similar incidents) documented by BRP and produced in discovery.” 	Id.
1 	Mr. Ratcliffe’s complaint included a third defendant, ABC Corporation, a fictional placeholder
entity for any additional defendants found during discovery. Pl.’s Resp. to the Ct.’s Order to Show
Cause (ECF No. 19). On October 19, 2020, the Court dismissed all claims against ABC Corporation
because “it is not apparent that this Court would have jurisdiction over Plaintiff’s claims against this
entity” and because the Scheduling Order provided Mr. Ratcliffe with the “opportunity to amend his
Complaint and join any additional defendants identified via discovery.” Order (ECF No. 21). 	Mr.
Ratcliffe has never sought to add any other defendant entities; thus, BRP and Tidd’s are the only
Defendants to the present case.
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(citing Def.’s Mot., Attach. 1, Forensic Eng’g Report (ECF No. 171-1). BRP claims that
Dr. Batzer relies on three particular incidents, titled BRP 004300-09, BRP 004706-
07, and BRP 004334-37, the reports for which BRP attached to its motion as Exhibit
B. 	Id. at 2 (citing id., Attach. 2, OSI Reports (ECF No. 171-2). 	BRP requests the
Court deem the evidence of these other incidents inadmissible for three reasons:
1. The foundation of substantial similarity cannot be met;
2. The reports on which Bat[z]er and Plaintiff rely are inadmissible
hearsay; and
3. Even if Plaintiff could overcome issues of relevancy, these isolated
reports are unfairly prejudicial and inadmissible under Rule 403.
Id. at 3.
First, BRP argues that admitting evidence of dissimilar accidents violates
Rules 401 and 402 of the Federal Rules of Evidence. 	Id. at 4. 	After asserting that
the Plaintiff has failed to demonstrate the similarity of other accidents to the accident
underlying this case, BRP avers that “[i]t is hornbook law that other accident
evidence is only relevant if the other accidents occurred under circumstances
substantially similar to those at issue in the case at bar.” 	Id. (citing Barker v. Deere
& Co., 60 F.3d 158, 162 (3d Cir. 1995) (collecting cases that stand for the “substantial
similarity” principle and stating that “every court of appeals to have considered the
issue agrees”); McKinnon v. Skil Corp., 638 F.2d 270, 277 (1st Cir. 1981)). BRP opines
that the Plaintiff bears the burden of establishing “substantial similarity” through
the explanation of exact circumstances demonstrating the similarity and asserts that
Mr. Ratcliffe “has not proffered any evidence upon which the Court can make a
reasoned determination as to whether the prior incidents involving the Can-Am
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vehicles 	were substantially similar to the 	accident 	that resulted in Plaintiff’s
injuries.” Id. at 5.
Calling Mr. Ratcliffe’s silence on the issue of similarity “deafening,” BRP
endeavors to distinguish the three purportedly similar incidents from Mr. Ratcliffe’s
accident. 	Regarding BRP 004300-4309, BRP notes the incident did not involve a
driver’s-side-leading roll, the injury was to a passenger who failed to use the vehicle’s
safety features, and the dynamics of the accident “are completely different” from the
accident underlying the instant suit. 	Id. at 5-6. 	Next, seeking to distinguish BRP
004334-4337, BRP submits the incident report contains no facts regarding the cause
of the accident or the injuries sustained, with the only customer complaint relating
to the failure of a seatbelt to release. Id. at 6. It asserts that “[t]here is no issue in
this case about seat belt performance and Plaintiff can point to literally nothing to
suggest this is a similar accident.” Id. Finally, with regard to BRP 004706-07, BRP
reports that the rollover was caused by an unidentified mechanical failure while the
vehicle was traveling 45 miles per hour, and resulted in the operator’s ejection from
the vehicle, which BRP argues indicates a failure to use the seatbelt. Id. at 6-7. At
bottom, BRP argues “none of these other incidents are substantially similar to what
happened in this case,” such that the Court should preclude Plaintiff from presenting
them as evidence, either directly or by reference. Id. at 7.
Turning to its second basis for exclusion, BRP submits the reports on which
the Plaintiff relies “are all inadmissible, unreliable hearsay,” asserting the incident
reports, claim letters, and customer complaints “lack any indicia of trustworthiness.”
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Id. (capitalization altered). 	The Defendant cites caselaw from the Third and Fifth
Circuit Courts of Appeal and federal district courts rejecting the admission of reports
and claims from absent third parties on hearsay grounds. Id. at 7-8 (collecting cases).
Comparing the evidence of other incidents relied on by Dr. Batzer in his report to
these cases, BRP requests the Court preclude such evidence as inadmissible hearsay.
Id. at 8.
Third, 	BRP 	insists 	that, 	even 	if 	substantially 	similar 	and 	non-hearsay
incidents existed, the Court should still exclude them as unfairly prejudicial pursuant
to Rule 403 of the Federal Rules of Evidence. 	Id. 	The Defendant asserts that
“[e]vidence of other accidents creates burdensome and confusing collateral issues for
both courts and juries.” Id. at 9 (citing, inter alia, Kinan v. City of Brockton, 876 F.2d
1029, 1034-35 (1st Cir. 1989) (finding that, if allowed to introduce evidence of other
lawsuits, “[t]he merits of the two other cases would become inextricably intertwined
with the case at bar. The result would be confusion and the consumption of a great
deal of unnecessary time”)). Rule 403 was designed to prevent “a series of mini-trials
within this trial regarding tangential issues,” BRP argues, such that the Court should
exclude evidence of other accidents involving Can-Am off-road vehicles. Id. at 10.
B. 	Stephen J. Ratcliffe’s Objection to BRP’s Motion to Exclude
Evidence of Other Accidents
Mr. Ratcliffe objects to BRP’s motion to exclude evidence of other accidents and
incidents involving Can-Am off-road vehicles. Pl.’s Opp’n at 1. He rejects the premise
of BRP’s motion, arguing that he does not seek to introduce evidence of other
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incidents to establish substantial similarity, but rather to establish BRP was on
notice of the risk of Maverick X3 rollovers before his accident occurred. Id.
First, Mr. Ratcliffe asserts BRP’s internal testing documented “multiple cases
of rollovers.” 	Id. at 2. 	(citing id., Attach. 1, Safety Review Mem. (ECF No. 197-1)).
He claims this risk is validated by the other, similar incidents reported to BRP, as
well as records of customer complaints and incident reports predating his purchase
of the Maverick X3. Id. at 2-3 (citing id., Attach. 2, Incident Spreadsheet 1 (ECF No.
197-2); id., Attach. 3, Incident Spreadsheet 2 (ECF No. 197-3).
Mr. Ratcliffe further asserts the safety review memorandum and incident
spreadsheets should be deemed admissible as business records pursuant to Rule
803(6) of the Federal Rules of Evidence. Id. at 3 (citing F ED. R. EVID. 803(6)).
Next, Mr. Ratcliffe highlights how a BRP representative deposed in this case
testified to his previous involvement in a separate lawsuit stemming from another
rollover of a Maverick vehicle which also resulted in amputation. 	Id. (citing id.,
Attach. 5, Dep. Tr. of Marc Lacroix at 7:5-9:13 (ECF No. 197-5)). Mr. Ratcliffe argues
that prior lawsuits against BRP arising from rollover incidents “may be raised by the
plaintiff as probative of notice to BRP or knowledge of BRP, not for the truth of the
matters alleged or substantial similarity of the details of the incidents.” Id.
The Plaintiff further disputes the relevance of the caselaw relied upon by BRP;
specifically, he argues McKinnon involved a claim that a blade guard on a circular
saw was defective, while his own claim relies on the absence of a protective guard.
Id. at 3-4. As such, Mr. Ratcliffe again argues evidence of prior rollovers is relevant
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to establishing BRP’s knowledge of the risk of rollovers. Id. (citing State v. O’Hara,
627 A.2d 1001, 1005 (Me. 1993) (“[E]vidence of the prior incident is relevant to [the
defendant’s] knowledge of the risk that the gun involved in this case was capable of
inadvertently discharging”)). Similarly, Mr. Ratcliffe seeks to distinguish Barker on
the grounds that the Third Circuit found the circumstances of a rollover incident
proffered as evidence different from the plaintiff’s case, in which “an object entered
the operator area and ejected the operator from his seat.” 	Id. at 4 (quoting Barker,
60 F.3d at 163). In his case, Mr. Ratcliffe argues, all rollover incidents “are the exact
same mechanism of injury,” and as such should be allowed by the Court as probative
of BRP’s knowledge of the type of risk. Id. at 4-5.
Finally, Mr. Ratcliffe responds to BRP’s hearsay allegations by reiterating that
he does not seek to introduce reports of other rollover incidents for their truth, but
rather for the non-hearsay purpose of “show[ing] BRP’s knowledge of the risk of
rollover.” Id. at 5 (emphasis in original).
III. 	DISCUSSION
The Court concludes that evidence of other accidents and incidents involving
Can-Am Maverick X3 off-road vehicles is highly probative and not unfairly prejudicial
when introduced for the purpose of proving notice of a general risk of rollover, and
thus the Court will not preclude the presentation of such evidence at the upcoming
trial.
In making this ruling, the Court highlights the distinction between the
admissibility of evidence of other rollovers to demonstrate that BRP was generally on
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notice that its Can-Am Maverick X3 was susceptible to rollovers and the admissibility
of evidence of other rollovers to demonstrate that BRP was on specific notice that its
Can-Am Maverick was susceptible to rollovers of the same mechanism and causing
the same injuries sustained by Mr. Ratcliffe. 	The evidence of prior Maverick X3
rollovers placed BRP on general notice that its UTVs could roll over, and therefore
BRP had an obligation to anticipate and minimize the risk of injury to the occupants
from rollovers. 	To this extent, evidence of prior rollovers is substantially similar to
the rollover in this case.
However, it is another step to contend that, because the Maverick X3 was
susceptible to rollovers, BRP was on notice that the rollovers bore a specific risk of
limb amputation caused by the mechanism in Mr. Ratcliffe’s case. 	Based on the
evidence presently in the record, the Court declines to take this step. 	Two of the
rollovers, as described by BRP, involved seatbelt issues. 	In one of the incidents, an
occupant alleged that she broke her hand when the UTV flipped to her right; she does
not mention an attempt to brace herself nor imply her injury was caused by her hand
being crushed by the vehicle. 	Based on these descriptions, there is an insufficient
similarity between these prior incidents and the mechanism and nature of Mr.
Ratcliffe’s injuries to render them admissible to prove that BRP was on notice that
occupants of the Can-Am Maverick were at risk of incurring the specific mechanism
of injury in this case.
Thus, the Court grants in part and dismisses in part BRP’s motion in limine.
The Court dismisses the motion to the extent it seeks to exclude all evidence of prior
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rollovers; however, the Court grants the motion to the extent it seeks to exclude the
use of prior rollover evidence to demonstrate that BRP was on notice of the precise
mechanism of injury Mr. Ratcliffe sustained.
As correctly cited by BRP, the First Circuit considered the admissibility of
evidence of other accidents in McKinnon, in which it specifically held “[e]vidence of
prior accidents is admissible on the [issues of prior knowledge, existence of the defect,
causation, and negligent design] only if the proponent of the evidence shows that the
accidents occurred under circumstances substantially similar to those at issue in the
case at bar.” 638 F.2d. at 277. The First Circuit did not limit its decision to evidence
presented for the truth of the matter asserted, which is admittedly a necessary
element of hearsay evidence; instead, the First Circuit cited caselaw rejecting the
introduction of prior accidents for each of the four contemplated purposes. Id.
As relevant for providing notice, the First Circuit cited P.B. Mutrie Motor
Transportation, Inc. v. Interchemical Corporation, 378 F.2d 447 (1st Cir. 1967), which
stated, on “the question whether defendant was put on notice of the risk involved,”
that “proof of prior accidents is inadmissible where there is no showing of substantial
identity of circumstances.” 	Id. at 450. 	In Mutrie Motor, the First Circuit admitted
the evidence of other accidents, concluding that “‘substantial identity’ does not mean
absolute identity. It is sufficient if the proponent can show identity of the relevant
circumstances.” Id. That case was based on an overflow during the delivery of liquid
latex to the plaintiff’s storage tank via the “forced air pressure method,” id. at 449;
the defendant sought to exclude the evidence of other overflows of liquid chemicals
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delivered through this method “because of the difference in materials and the absence
of proof that the other receiving lines and tanks were similar to the plaintiff’s.” 	Id.
at 450. 	In affirming the district court’s decision to admit the evidence, the First
Circuit reasoned that “the recent behavior of a process or method could be received to
show, not the cause of the accident, but simply the defendant’s awareness that the
use of a method involves a risk that what happened before may happen again.” 	Id.
at 451.
The First Circuit again adopted this approach in Moulton v. Rival Company,
116 F.3d 22 (1st Cir. 1997), where the Court of Appeals upheld the district court’s
decision to admit evidence of prior accidents involving the defendant’s product, a
potpourri pot, under the “substantial similarity” test. Id., 16 F.3d at 27. In that case,
the 	defendant 	argued 	“there 	[was] 	insufficient 	similarity 	between 	the 	earlier
accidents and plaintiff’s accident, because the circumstances surrounding the spills
were different.” 	Id. 	In Moulton, the First Circuit concluded that the district court
had not erred by allowing “the introduction of the evidence of the other accidents to
show that the product as designed allowed the rapid escape of a significant amount
of extremely hot liquid and was thus defective.” Id.
Based on the record before it, the Court finds the underlying facts and
questions presented in P.B. Mutrie Motor Transportation and Moulton analogous to
the present case. Plaintiff does not seek to introduce the evidence of prior accidents
to argue that the rollover causing Mr. Ratcliffe’s injury occurred in exactly the same
manner. Rather, he wishes to use such evidence to demonstrate that BRP had prior
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knowledge of the general risk of rollover by Maverick X3 vehicles. Pl.’s Mot. at 1. The
Court concludes the prior incidents of rollovers by the same vehicles admissible “to
show, not the cause of the accident, but simply the defendant’s awareness that the
use of a method involves a risk that what happened before may happen again.”
Mutrie Motor, 378 F.2d at 451; see, accord, Pukt v. Nexgrill Indus., No. 14-cv-215-JD,
2016 U.S. Dist. LEXIS 119918, at *3 (D.N.H. Sept. 6, 2016) (“When a party offers
evidence of other accidents to show notice or awareness of a dangerous condition,
however, the similarity requirement is relaxed. In such circumstances, a lack of exact
similarity . . . will not cause exclusion provided the accident was of a kind which
should have served to warn the defendant”) (internal citations and quotation marks
omitted).
Here, the evidence of prior rollovers made BRP aware that the Maverick X3
posed this general risk. 	As described above, however, the Court does not find the
Plaintiff has demonstrated the evidence of other rollovers exhibit sufficient similarity
to Mr. Ratcliffe’s particular mechanism of injury, and as such, will not admit such
evidence for the purpose of arguing BRP knew the Maverick X3 posed a particular
risk of occupants extending limbs and those limbs being crushed during a rollover.
Limiting the introduction of evidence of prior Can-Am Maverick accidents to
prove notice of the general risk of rollover also addresses BRP’s hearsay and undue
prejudice arguments. Def.’s Mot. at 7-10. As noted above, a hearsay objection is only
valid when the movant seeks to introduce evidence for the truth of the matter
asserted. 	See, e.g., United States v. Hudson, 970 F.2d 948, 957 (1st Cir. 1992) (“As
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[the statements] were not being offered for the truth of the matter asserted, they were
not hearsay in any respect”) (citing F ED. R. EVID. 801(c)).
Further, BRP warns the Court of “the dangers of unfair prejudice, confusing
the issues, misleading the jury, and wasting time” by admitting evidence of prior
accidents. 	Def.’s Mot. at 10. 	However, cabining such evidence to prove notice
dramatically reduces any such prejudicial effect. As an essential element of duty-to-
warn claims, evidence that BRP had prior notice of the general risk of rollovers also
holds substantial probative value. As such, the Court concludes introduction of such
evidence to prove notice does not violate the balancing test set out by Rule 403. See
F ED. R. E VID. 403 (“The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence”).
IV. 	SUMMARY
Based strictly upon the record before it and the representations of counsel, the
Court concludes evidence of prior accidents involving the rollover of the Can-Am
Maverick 	X3, 	while not 	presenting 	identical 	circumstances, 	satisfies 	the First
Circuit’s 	interpretation 	of 	the 	substantial 	similarity 	standard 	as 	the 	types 	of
accidents that should have warned BRP of the general risk of rollovers. Further, the
Court concludes that the probative value of such evidence on the issue of whether
BRP had prior notice of the general risk of rollovers outweighs any potential
prejudicial effect on the Defendants.
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At the same time, the Court observes that the First Circuit has written that a
trial court must use “special care” in admitting evidence of purportedly similar
incidents. 	Downey v. Bob’s Disc. Furniture Holdings, 633 F.3d 1, 9 (1st Cir. 2011)
(citing Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1396 (11th Cir. 1997)). 	This
ruling does not preclude BRP from exploring at trial the extent to which the prior
rollovers were circumstantially similar. It only tentatively allows Mr. Ratcliffe, based
on the record before the Court, to introduce evidence of prior rollovers, based on their
apparent similarity, to argue that BRP was on notice that its Maverick X3 was
susceptible to roll over during operation. Based on the record before it, the Court will
not allow Mr. Ratcliffe to present such evidence to argue BRP had specific knowledge
of the mechanism of Mr. Ratcliffe’s injury.
The Court notes that, in his opposition, Mr. Ratcliffe claims the evidence of
prior incidents “will not be offered by the plaintiff to show substantial similarity,” but
rather “to show that BRP was on notice of many Maverick X3 rollovers prior to the
plaintiff’s.” 	Pl.’s Opp’n at 1. 	This framing appears to conflate the standard for
admitting evidence of prior accidents with the proponent’s purpose for introducing it.
As the First Circuit explained in McKinnon, the substantial similarity test applies to
evidence presented for the purpose of proving notice. 	See McKinnon, 638 F.2d. at
277. Thus, Mr. Ratcliffe bears the burden of demonstrating a substantial similarity
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between the prior rollover incidents and his accident at trial; if he fails to do so, the
Court may exclude the evidence.2
Under First Circuit law, it is the obligation of counsel to clarify at trial whether
a ruling on a motion in limine or other evidentiary ruling is definitive. Dimanche v.
Mass. Bay Transp. Auth., 893 F.3d 1, 6 n.6 (1st Cir. 2018). 	In general, “[p]retrial
motions in limine in situations like this need to be renewed and pressed at trial in
order to be preserved.” Id. (citing Fed. R. Evid. 103 advisory committee’s note to 2000
amendment); see also Crowe v. Bolduc, 334 F.3d 124, 133 (1st Cir. 2003) (“Our rule
as to motions in limine is that a party must renew at trial its motion to . . . exclude
evidence if there has been an earlier provisional ruling by motion in limine and a
clear invitation to offer evidence at trial”).
V. 	CONCLUSION
The Court GRANTS in part and DISMISSES in part without prejudice
Defendant BRP’s Motion In Limine No. 4 and Supporting Brief to Exclude Evidence
of Other Accidents or Incidents (ECF No. 171). 	It grants the motion so far as Mr.
Ratcliffe intends to introduce evidence of prior rollovers to argue BRP was on notice
of the particular mechanism of his injury. 	It denies the motion with respect to the
purpose of establishing BRP’s prior knowledge of the Maverick X3’s general risk of
rollover.
2 	Although not mentioned in this motion, evidence of prior rollovers of the Maverick X3 may be
separately admissible to contradict Tidd’s alleged assurance to Mr. Ratcliffe that the Maverick X3 rode
low to the ground and was less susceptible to rollovers than other UTVs.
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SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 5th day of November, 2024
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