RATCLIFFE v. BRP US INC et al

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 PRECLUDE
SOCIAL MEDIA VIDEOS
A defendant in a product liability case involving a vehicle rollover moves to
preclude the introduction of videos published by the company on its social media
showing stunt riding of its products. 	The plaintiff objects, arguing the videos are
relevant 	to 	and 	probative 	of 	the 	reasonably 	foreseeable 	uses 	of 	the 	vehicle.
Concluding the videos are relevant, probative, and the risk of unfair prejudice is low,
the court agrees with the plaintiff and dismisses the defendant’s motion.
I. 	BACKGROUND
On July 30, 2019, a utility terrain vehicle 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
manufacturer; 	and 	Tidd’s 	Sport 	Shop, 	Inc. 	(Tidd’s), 	the 	distributor; 	asserting
negligence and strict liability claims against both, respectively. Id. ¶¶ 17-57.
With a trial date looming, on October 4, 2024, BRP filed a motion in limine to
preclude introduction of or reference to eight social media marketing videos allegedly
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posted by BRP. Def. BRP’s Mot. in Lim. No. 9 and Supporting Br. to Preclude Social
Media Videos (ECF No. 176) (Def.’s Mot.). On October 15, 2024, Mr. Ratcliffe objected
to BRP’s motion, arguing that the videos posted by BRP are relevant to the issue of
the intended and reasonably foreseeable uses of the vehicle. Pl. Stephen J. Ratcliffe’s
Obj. to Def. BRP’s Mot. in Lim. No. 9 and Supporting Br. to Preclude Social Media
Videos. (ECF No. 203) (Pl.’s Opp’n).
II. 	THE PARTIES’ POSITIONS
A. 	BRP’s Motion to Preclude Social Media Videos
BRP claims the parties do not meaningfully dispute that Mr. Ratcliffe’s
operation of the 2019 Can-Am Maverick X3 vehicle violated numerous warnings
provided by BRP. 	Def.’s Mot. at 1. 	It avers that numerous witnesses have testified
that Mr. Ratcliffe was injured while attempting a “donut,” a dangerous maneuver he
had been warned to avoid by prominent decals posted on the vehicle itself at the time
of purchase and again in the accompanying Operator’s Guide. 	Id. 	BRP anticipates
Mr. Ratcliffe’s argument will refer to videos from Can-Am’s Facebook and other social
media sites, which show riders performing similar stunts, to argue that BRP
encourages dangerous driving in conflict with its warnings. 	Id. at 2. 	Specifically,
BRP seeks to exclude eight social media videos taken from the Cam-Am Off-Road
Facebook page1, as shown to BRP’s corporate witness Marc Lacroix during his
deposition. Id. at 3 (citing id., Attach. 1, Social Media Videos (ECF No. 176-1)). BRP
1 	In the deposition of BRP representative Marc Lacroix, he did not dispute that BRP controls
the Can-Am Off-Road social media accounts. Id., Attach 2, Videotaped Webconference Dep. of Marc
Lacroix at 68:22-70:24; 72:21-75:17; 76:13-77:23; 79:23-81:5; 86:8-89:15; 93:8-93:17; 95:14-96:4; 97:11-
22 (ECF No. 176-2) (Lacroix Dep. Excerpts).
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insists these videos are irrelevant and inadmissible under Federal Rules of Evidence
401 and 402, submitting there is no evidence that the videos “influenced Plaintiff’s
decision to buy the X3 or his subsequent conduct.” Id. at 2-3. In the event the Court
finds the videos relevant, BRP alternatively moves to exclude them as unfairly
prejudicial pursuant to Federal Rule of Evidence 403. Id. at 3.
BRP 	explains 	the 	purpose 	of 	the 	social 	media 	videos 	was 	to 	“generate
awareness first and foremost, and, yes, interest, and to win their hearts and minds,”
and adds the videos were intended to be “exciting for people to watch.” Id. at 3 (citing
Lacroix Dep. Excerpts at 56:7-12; 55:16-23). However, BRP says, the videos “are not
instructional videos” and that “[t]hey merely show what a trained, highly skilled
operator can do when pushing side-by-sides to their limits.” Id. As such, BRP avers,
“[a]nyone with common sense will recognize that novices cannot operate a vehicle in
the same manner as professionals. . .. [and] will know that attempting these types of
maneuvers is dangerous and risky.” 	Id. 	Drawing a comparison to other videos
intended to entertain, BRP insists “no one would expect moviegoers to launch their
car off a ramp after watching a James Bond car chase.” Id.
The Defendant recites that evidence must be relevant to be admissible, and
that evidence is relevant when “it has any tendency to make a fact more or less
probable than it would be without the evidence” and the “fact is one of consequence
in determining the action.” Id. at 5 (quoting F ED. R. EVID. 401, 402). However, BRP
notes 	that 	a 	court 	may 	exclude 	relevant 	evidence 	“if 	its 	probative 	value 	is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
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confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” 	Id. at 5-6 (quoting F ED. R. EVID. 403). 	BRP
contends Mr. Ratcliffe, as the proponent of the evidence, bears the burden of proving
the admissibility of the social media videos. Id. at 6 (citing United States v. Bartelho,
129 F.3d 663, 670 (1st Cir. 1997)).
BRP argues Mr. Ratcliffe has not satisfied this burden. It urges the Court to
exclude the social media videos based on Plaintiff’s failure to demonstrate their
relevance to this litigation and because there is no evidence the videos influenced his
behavior and thus have no bearing on the adequacy of the warnings included with
the purchase of the Maverick X3. Id. In support, the Defendant cites cases in which
other federal courts rejected evidence of marketing and promotional materials as
irrelevant and unfairly prejudicial when not relied upon by the plaintiff or when they
did not depict the same product at issue in the litigation. 	Id. at 6-7 (citing Wolfe v.
McNeil-PPC, Inc., No. 07-cv-348, 2012 U.S. Dist. LEXIS 2160, at *22-23 (E.D. Pa.
Jan. 9, 2012); Redman v. John D. Brush & Co., 111 F.3d 1174, 1178 (4th Cir. 1997);
Haynes v. Am. Motors Corp., 691 F.2d 1268, 1270-71 (8th Cir. 1982)).
Here, BRP argues the social media videos did not influence Mr. Ratcliffe’s
riding behavior because he “denied performing donuts or any other dangerous
maneuver at the time of the accident, insisting that he was performing a routine
‘right-hand turn.’” Id. at 6 (citing id., Attach. 8, S. Ratcliffe Dep. Tr. at 42:9-11; 99:20-
23 (ECF No. 176-8)). Further, BRP points out that there is nothing in the record to
indicate Mr. Ratcliffe viewed any of the specific social media videos shown to Mr.
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Lacroix during his deposition. 	Id. at 6-7. 	The Defendant highlights that Plaintiff’s
experts admit “they have no reason to believe Plaintiff watched any of the National
Donut Day videos[2] before the accident” and, further, that four of the videos in
question had not even been posted at the time of the accident.3 	Id. at 7 (citing id.,
Attach. 3, Nobilini Dep. Tr. at 7:15-18 (ECF No. 176-3); id., Attach. 4, Lenorovitz Dep.
Tr. at 70:9-22 (ECF No. 176-4)). BRP also quotes from the transcript of Mr. Ratcliffe’s
own deposition, asserting the passage serves as an admission that the social media
videos did not influence his riding:
A: Yeah. If I recall, I think the videos that I had seen were a little more
extreme than the type of riding that I would do or I’ve ever experienced,
right?
. . . .
Q: You saw that the video showing - - the videos that you saw showing
this meshing in use on similar vehicles, did you mention - - I wasn’t sure
I heard you - - that a lot of those videos were showing people using these
vehicles in an activity that you wouldn’t be doing? 	Did you say that?
Did I hear that right?
A: They were - - they were - - I don’t know if they were professionals or
just, you know, amateur videos, but they were doing some things that I
myself wouldn’t be able to do, right?
Id. (citing S. Ratcliffe Dep. Tr. at 145:24-146:4, 150:18-151:3).
Even if Mr. Ratcliffe did see the social media videos, BRP emphasizes that “not
all of the vehicles in the videos displayed in the Lacroix deposition show the same
model or model year as the Subject Vehicle (or at least not the Subject Vehicle as it
2 	In the “National Donut Day video”, two UTV’s are seen in slow motion performing
simultaneous donut maneuvers. See Social Media Videos.
3 	As BRP explains, “[t]he date of the accident was July 30, 2019. Four of the videos displayed in
the Lacroix deposition were uploaded to social media afterwards, on October 15, 2019, June 5, 2020,
September 21, 2020, and June 4, 2021.” Def.’s Mot. at 5 n.3.
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is sold).” Id. (emphasis in original). Specifically, it points out that “[t]he June 7, 2019
video includes many different Can-Am models,” “the videos from December 5, 2018,
October 15, 2019, and June 4, 2021 feature a modified X3,” and “the August 13, 2017
video features an X3 Crew.” 	Id. at 7 n.5. 	BRP argues that any marketing videos
showing vehicles other than the Maverick X3 are irrelevant. Id. (citing Haynes, 691
F.2d at 1270-71).
BRP notes that the promotional videos involved professional riders performing
stunts in closed courses, as is commonly done by vehicle manufacturers, which does
not constitute an invitation to users to engage in similar riding. 	Id. at 8 (citing
Lacroix Dep. Excerpts at 92:16-22). In addition, the Defendant posits that none of the
videos shows riders attempting tricks on terrain similar to the gravel pit where Mr.
Ratcliffe’s accident occurred, a distinction that exacerbates the irrelevance of the
videos. 	Id. 	Given all these facts, BRP insists the social media videos have no
tendency to make it more or less likely that the Maverick X3’s warnings were
inadequate and thus should be excluded as irrelevant. Id.
Turning to its undue prejudice argument, BRP asserts in the alternative that,
should the Court find the social media videos relevant, “the videos should still be
precluded as unfairly prejudicial pursuant to Federal Rule of Evidence 403.” 	Id. at
9. 	BRP directs the Court to caselaw in which the First Circuit found “‘untoward
effects’ . . . to be so weighty that the evidence should be excluded,” even if the evidence
helps inform the disputed issues. 	Id. (citing Galarneau v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 504 F.3d 189, 205 (1st Cir. 2007) (quoting Faigin v. Kelly, 184
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F.3d 67, 80 (1st Cir. 1999)). BRP also says that the Court holds “considerable latitude
in determining whether to admit or exclude evidence.” Velazquez v. Abbott Lab’ys,
901 F. Supp. 2d 279, 292 (D.P.R. 2012) (quoting Santos v. Sunrise Med., 351 F.3d 587,
592 (1st Cir. 2003)).
Applying these standards to the case at bar, BRP argues that “[d]isplaying or
referencing the videos will mislead the jury, as the jury would surely presume that
(i) Plaintiff viewed the videos prior to the accident, and . . . (ii) . . . the videos
influenced Plaintiff’s riding behavior,” despite Mr. Ratcliffe’s claim that he was not
performing donuts at the time of the accident, the fact that four of the eight videos
were not uploaded to social media until after the accident, and the dearth of evidence
that Plaintiff had viewed any of the social media videos prior to purchasing the
vehicle or the accident. 	Id. 	The Defendant further warns the Court that “[d]isplay
or 	reference 	to 	such 	videos 	will 	simply 	waste 	time 	through 	extensive 	cross-
examination.” 	Id. 	at 10. 	Rather, BRP says, “[t]he adequacy of the warnings BRP
provided with the Subject Vehicle should be thoroughly analyzed and scrutinized
during trial, not videos Plaintiff has not viewed.” 	Id. 	Based on the risk of unfair
prejudice, misleading the jury, and wasting time, BRP requests the Court enter an
order “precluding the introduction of such evidence at trial.” Id.
B. 	Stephen J. Ratcliffe’s Objection to BRP’s Motion to Preclude
Social Media Videos
Mr. Ratcliffe objects to BRP’s motion to exclude the social media videos,
arguing that the content of the videos directly contradicts BRP’s likely position that
Mr. Ratcliffe mishandled the vehicle by providing evidence of “what BRP considers is
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appropriate use and what it invites its users to do with the vehicles.” Pl.’s Opp’n at
1. 	Further, Mr. Ratcliffe notes that, for his product liability claims, he must
demonstrate that his use was reasonably foreseeable and an intended use of the
product, as BRP was required to design a reasonably safe vehicle for such uses. 	Id.
He insists that uses “encouraged, promoted, and marketed by BRP” in videos posted
to their social media fit within the category of reasonably foreseeable and intended
use. Id.
Mr. Ratcliffe analogizes BRP’s position to the adage “do as I say and not as I
do,” admitting that the warnings affixed to the Maverick X3 and in the operating
manual urge its users to avoid doing donuts, but pointing out that those warnings
“stand[] in direct contrast” to the social media videos. Id. at 2. The Plaintiff insists
that “the jury is entitled to hear the evidence and deliberate on the topic of what is
and is not the foreseeable intended use of these vehicles.” Id. Mr. Ratcliffe avers the
social media videos “demonstrate that BRP understood its customer base would drive
the vehicles for thrill-seeking purposes,” and “[i]n fact, BRP invited its customer base
to use the vehicles in that manner.” Id. Mr. Ratcliffe points to particular videos as
evidence; first, directing the Court to the June 7, 2019 video, Mr. Ratcliffe notes BRP
posted 	several 	vehicles 	doing 	donuts 	and 	tagged 	the 	post 	with 	the 	hashtag
“#werebuiltforthis.” 	Id. 	Similarly, Mr. Ratcliffe points out the June 4, 2021 video
shows a vehicle performing donuts and BRP included a caption to the post stating:
“Happy National Doughnut Day! . . .. We want YOU to celebrate with us. Drop your
best Doughnut videos in the comments.” Id. at 2-3 (citing Facebook post, dated June
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4, 	2021 	(available 	https://www.facebook.com/watch/?v=897812377511575) 	(last
accessed October 11, 2024) (June 4, 2021 Facebook Post)). 	In the comments to the
June 4, 2021 Facebook post, BRP further engaged with the public in the comment
section, telling a user to “Spin, spin, spin!” Id.
Mr. Ratcliffe reinforces this point by highlighting an alleged contradiction in
the deposition testimony of BRP representative Marc Lacroix. The Plaintiff contends
that Mr. Lacroix “tried to suggest, falsely, that the BRP marketing team included
disclaimers at the bottom of the screen that ‘emphasizes the fact that these are
performed by professional riders in closed environments, and not to perform these.’”
Id. at 3 (quoting id., Attach. 1, Videotaped Webconference Dep. of Marc Lacroix at
17:19-18:4 (ECF No. 203-1) (Lacroix Dep. Tr.)). 	However, the Plaintiff avers that
“[t]his self-serving statement is quickly rebutted by Mr. Lacroix’s own deposition
testimony, as well as the videos themselves attached to BRP’s motion and the
Facebook links from where those videos were obtained which contain no such
disclaimer.” Id. at 4 (internal citations omitted). Mr. Lacroix also notes that BRP’s
marketing team, which manages its social media accounts, “consists of 15-20 people,”
such that BRP’s “claim that it did not market the vehicle to perform donuts would
directly contradict the actions of its entire marketing team on the subject.” Id. (citing
Lacroix Dep. Tr. at 32:8-25.)
Mr. Ratcliffe avers “the BRP ‘brand’ has profited off its marketing strategy” by
posting, in Mr. Lacroix’s words, “content that would appeal to the followers, the fan
base and to customers, not just anything that was posted online,” with the stated goal
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“to generate awareness first and foremost, and, yes, interest, and to win their hearts
and minds.” Id. (quoting Lacroix Dep. Tr. at 49:22-25, 56:10-12). The Plaintiff insists
that “now, because those posts conflict with BRP’s defense, they seek to have this
Court prevent the jury from hearing and seeing the evidence”; he argues the videos
are not unfairly prejudicial. 	Id. 	He puts forth that BRP’s motion “questions the
intelligence of the jury and their ability to understand and parse through this
evidence as it relates to the issues before them” and expresses his faith that “the jury
will be able to appreciate the videos and apply these pieces of evidence to the overall
issues in this case.” Id. at 4-5.
The Plaintiff urges the Court to leave the question of whether the social media
videos bear on the intended use of the vehicles to the jury and asks the Court to deny
Defendant BRP’s motion to exclude the social media videos.
III. 	DISCUSSION
As the Defendant correctly recited, “evidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the evidence;
and (b) the fact is of consequence in determining the action.” F ED. R. EVID. 401. The
Federal Rules direct courts to admit relevant evidence unless the United States
Constitution, a federal statute, the Federal Rules of Evidence, or other rules
prescribed by the Supreme Court instruct otherwise. F ED. R. EVID. 402.
Parties disagree on the evidentiary purpose of the social media videos; the
Defendant argues “[t]here is no evidence that the videos influenced Plaintiff’s
behavior in any manner” in the context of the adequacy of the vehicle’s safety
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warnings, Def.’s Mot. at 6, while the Plaintiff claims the video’s relevance because
“plaintiff must demonstrate in this matter that [his] use was reasonably foreseeable
and intended.” Pl.’s Opp’n at 1.
First, the Court concludes that the social media videos are relevant to Mr.
Ratcliffe’s product liability claims for the purpose of demonstrating the foreseeable
uses of the product. 	As stated by Rule 401, the relevance of a fact depends on the
nature of the action brought—here, Mr. Ratcliffe brings product liability claims for
negligent failure to warn and for design defect pursuant to 14 M.R.S. § 221. Compl.
at 5-10 (ECF No. 1). As Maine courts confronted with 14 M.R.S. § 221 have explained:
the 	relational 	risk-utility 	assessment 	that 	14 	M.R.S.[] 	§ 	221
contemplates is an examination of the utility of the design, the risks of
the design and the feasibility of safer alternatives in relation to the
reasonably foreseeable use of the product by the ordinary user or
consumer.
Redman v. Bic Corp., No. CV-86-1196, 1990 Me. Super. LEXIS 4, at *3 (Jan. 8, 1990).
Similarly, prior decisions of the District of Maine have considered the concept
of a product’s “foreseeable use” in the context of negligent failure to warn cases and
have held a manufacturer has a duty to warn of dangers stemming from foreseeable
use of a product even when the risk is identified post-sale. 	See Davies v. Datapoint
Corp., Civil No. 94-56-P-DMC, 1996 U.S. Dist. LEXIS 13272, at *11 (D. Me. Jan. 19,
1996) (“Accordingly, under Maine negligence law when a manufacturer learns, or in
the 	exercise 	of 	reasonable 	care 	should 	learn, 	of 	dangers 	associated 	with 	the
foreseeable use of its products after they are manufactured and sold, it must take
reasonable steps to warn foreseeable users about those dangers”).
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In accordance with this precedent, the Court finds the company’s own videos
demonstrating the potential functionality of the vehicles for stunt riding relevant to
the foreseeable uses of the products. 	BRP plainly encouraged such behavior,
soliciting videos of similar stunt riding from its customers by asking them to “[d]rop
your best Doughnut videos in the comments” and instructing them to “[s]pin, spin,
spin!” See Pl.’s Opp’n at 2 (citing June 4, 2021 Facebook Post)).
BRP contends that the social media videos “are not instructional videos” and
suggests “like any marketing, the videos are intended to be ‘exciting for people to
watch.’” Def.’s Mot. at 3 (citing Lacroix. Dep. Tr. at 56:7-12; 55:16-23). The Defendant
insists “no one would expect moviegoers to launch their car off a ramp after watching
a James Bond car chase.” 	Id. 	The Court finds this comparison inapposite for
purposes of exclusion. The social media videos were not action movies published by
an unaffiliated Hollywood studio; the videos were published by Can-Am’s Off-Road
brand, on the company’s official Facebook page, to specifically target “the followers,
the fan base, and to customers, not just anything that was posted online.” Pl.’s Opp’n
at 4 (citing Lacroix. Dep. Tr. at 49:22-25). Based on the foregoing, the Court concludes
the social media videos are relevant to the product’s foreseeable uses and proceeds to
consideration of whether the evidence should be excluded under Federal Rule of
Evidence 403.
Federal Rule of Evidence 403 states:
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.
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On this issue, BRP argues that allowing the social media videos into evidence
“would result in unfair prejudice to Defendant BRP (and the jury), as the videos would
mislead the jury, confuse the true issue of whether BRP’s warnings were adequate,
and waste time.” Def.’s Mot. at 8-9. Specifically, it warns the Court that, upon seeing
the videos, “the jury would surely presume that (i) Plaintiff viewed the videos prior
to the accident, and . . . (ii) . . . the videos influenced Plaintiff’s riding behavior.” Id.
at 9.
The Court agrees with the Plaintiff that this underestimates “the intelligence
of the jury and their ability to understand and parse through this evidence as it
relates to the issues before them.” 	Pl.’s Opp’n at 4. 	The Defendant will have
opportunity to undermine the social media videos at trial by presenting its arguments
that the vehicles shown are different and that no evidence indicates Mr. Ratcliffe
reviewed or relied upon the videos in his purchase of the vehicle or subsequent
conduct, including the specific fact that BRP did not post four of the eight videos until
after the date of the underlying incident. 	As such, there is little risk of misleading
the jury or confusing the issues.
Further, as described above, the videos posted on social media by the company
and its solicitation of such conduct by its customers contain highly probative value on
the issue of the uses of the product that BRP could have reasonably foreseen. 	The
balancing 	test 	contemplated 	by 	Rule 	403 	requires 	the 	danger 	of 	an 	unfairly
prejudicial effect to “substantially outweigh” the probative value of the evidence.
F ED. R. EVID. 403. 	The Court concludes the Defendant has not demonstrated this
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balancing test comes out in its favor on the admissibility of the eight videos currently
at issue.
The Defendant points out that Plaintiff has “denied performing donuts or any
other dangerous maneuver at the time of the accident, insisting that he was
performing a routine ‘right-hand turn.’” 	Def.’s Mot. at 6 (citing S. Ratcliffe Dep. Tr.
at 42:9-11; 99:20-23). 	The Plaintiff concedes this point, noting that “BRP holds the
key as to the admissibility of these videos” but arguing “[t]o the extent they take the
position that Mr. Ratcliffe was somehow mishandling the vehicle, these videos are
directly related to what BRP considers is appropriate use and what it invites its users
to do with the vehicles.” Pl’s Opp’n at 1. The Court will not insert itself into the legal
strategy and positions the parties intend to take at trial but will also not preemptively
deny the Plaintiff the ability to raise this response to BRP’s defense, if BRP raises it.
Rather, the Court will leave the issues of evidentiary weight to the jury, where it
belongs.
Finally, BRP supplied eight social media videos that it seeks to bar Mr.
Ratcliffe from introducing into evidence. 	Def.’s Mot. Attach. 1. 	The Court wonders
whether all eight are necessary. 	Even though they are short, the greater the
repetition, the greater the chance for prejudice. 	The Court urges Plaintiff’s counsel
to consider cutting back on the number of social media videos that it seeks to admit
into evidence.
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IV. 	CONCLUSION
The Court DISMISSES without prejudice Defendant BRP’s Motion In Limine
No. 9 and Supporting Brief to Preclude Social Media Videos (ECF No. 176).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 8th day of November, 2024
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