The opinion of the court was delivered by: STANLEY S. HARRIS
Before the Court are defendant's motion to exclude other incidents and to dismiss the punitive damages claim, and plaintiffs' motion to strike defendant's motion; defendant's motion to bifurcate the liability and damages issues; plaintiffs' motion to compel the deposition testimony of Donald McCandless; and defendant's motion to exclude the expert testimony of Philip Bussey and Richard Lurito.
Also before the Court are the responses and replies to the foregoing motions. The Court addresses each of these issues in turn.
1. Admissibility of Evidence of Other Incidents
Defendant moves to exclude evidence of 52 other incidents in which the rear doors of RTS-II coaches inadvertently opened and passengers were injured.
Prior similar incidents may be admissible to show the dangerous nature of a specific condition or a defendant's knowledge of a dangerous condition. E.g., Exum v. General Elec. Co., 260 U.S. App. D.C. 366, 819 F.2d 1158, 1162 (D.C. Cir. 1987); Brooks v. Chrysler Corp., 252 U.S. App. D.C. 29, 786 F.2d 1191, 1195 (D.C. Cir.), cert. denied, 479 U.S. 853, 107 S. Ct. 185, 93 L. Ed. 2d 119 (1986); Edwards v. Consolidated Rail Corp., 567 F. Supp. 1087, 1105-06 (D.D.C. 1983), aff'd, 236 U.S. App. D.C. 135, 733 F.2d 966 (D.C. Cir. 1984), cert. denied, 469 U.S. 883, 105 S. Ct. 252, 83 L. Ed. 2d 189 (1984). This rule is no different in product liability cases. To be admissible, the other incidents must be "substantially similar" to the case at bar. Id. at 1158-59. The degree of substantial similarity required depends on the purpose for which the evidence is offered: a high degree of similarity is essential if offered to prove the dangerousness of a condition, whereas the requirement is somewhat relaxed when offered to prove knowledge thereof. Id. The burden is on the party seeking admission to prove that substantially similar circumstances exist. Edwards, 567 F. Supp. at 1106 n.29.
Plaintiffs wish to use the "other incidents" primarily to prove that defendant was on notice of the dangerousness of the product design.
Even under the relaxed substantial similarity requirement, the Court finds that all 52 prior incidents lack sufficient similarity to the March 20, 1990, incident to be admissible. First, in 33 of the 52 prior incidents, a single motor was used in the rear door system, in contrast to the dual motor used in the case at bar. The Court finds that the differences between the two types of motor systems are substantial. "In the dual motor system, one motor operates each door, while on the single motor system, the doors are connected by a mechanical linkage which is operated by the single motor." National Highway Traffic Safety Administration Engineering Analysis Closing Report, at 1 ("NHTSA EA Closing Report").
The deposition testimony of the parties' experts describes other significant differences between the two systems. The differences between the motor systems fatally undermine the probative value of the single-motor incidents.
Third, and most importantly, the bus operator had made significant maintenance alterations to the door motor in the instant case, which makes it substantially different from the 52 other incidents. Following the March 20 incident, the aluminum casing of one of the rear door motors was found to be fractured. The NHTSA Engineering Analysis revealed that:
The door motor in this case had been overhauled by the bus operator and an incorrect cushioning spring was installed. This spring fractured and pieces of the spring were found inside the failed motor. Wear patterns indicated that the motor had been operating for an extended period of time with the spring loose inside the cylinder. Additionally, improper welding and reinforcement had been performed on the drive arm, contrary to the service instructions provided by the manufacturer -- Vapor.
NHTSA EA Closing Report, at 4. See also Plaintiffs' Pretrial Statement, at 13-16. For the foregoing reasons, defendant's motion to exclude evidence of other incidents is granted.
Consequently, defendant moves to dismiss the punitive damages claims.
Because the Court considers matters outside of the pleadings, the Court treats the motion as one for summary judgment on this issue. Fed. R. Civ. P. 12(b). Punitive damages are not favored under District of Columbia law. BWX Electronics, Inc. v. Control Data Corp., 289 U.S. App. D.C. 114, 929 F.2d 707, 712 (D.C. Cir. 1991). They may be awarded only if plaintiffs prove, by at least a preponderance of the evidence, that defendant's conduct is willful and outrageous, exhibits recklessness and willful disregard of the rights of others, or is aggravated by "'evil motive, actual malice, or deliberate violence or oppression.'"
LeSane v. Hillenbrand Indus., Inc., 791 F. Supp. 871, 873 (D.D.C. 1992) (quoting BWX Electronics, Inc., 929 F.2d at 712)); Raynor v. Richardson-Merrell, Inc., 643 F. Supp. 238, 245 (D.D.C. 1986). Gross negligence is not enough to support a claim. LeSane, 791 F. Supp. at 873. Additionally, the conduct supporting the claim must be "clearly established." Raynor, 643 F. Supp. at 245 (citing Darrin v. Capital Transit Co., 90 A.2d 823, 825 (D.C. Mun. App. 1952)).
Plaintiffs' punitive damages claims are premised on the theory that defendant acted with willful and wanton disregard for the safety of RTS-II passengers. Plaintiffs' Pretrial Statement, at 8-10. Viewing the evidence in the light most favorable to plaintiffs, the Court finds that no reasonable jury could make this finding by a preponderance of the evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986) (noting that the standard for summary judgment "mirrors the ...