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.
Second, 46 of the 52 "other incidents" occurred prior to two design modifications implemented in 1984 and 1985: "The air pressure to the door was increased, to hold them more tightly closed, and a speed sensor was installed to terminate all electrical power to the rear door operating system at speeds in excess of 2 mph." NHTSA EA Closing Report, at 4. Although the NHTSA conclusions may be somewhat skewed because all 52 incidents were not submitted for evaluation, the inescapable conclusion is that the 1984 and 1985 retrofits substantially reduced the likelihood of inadvertent rear door openings. Therefore, the non-retrofitted coaches are not "substantially similar" to the retrofitted bus involved in the March 20, 1990, incident.
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.
2. Punitive Damages
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 standard for a directed verdict"). Therefore, defendant's motion for summary judgment on the punitive damages claims is granted.
2. Bifurcation of Trial
Defendant also moves for bifurcation of the liability and damages phases of the trial in this case. Rule 42(b) provides that:
The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim . . . or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States.
Fed. R. Civ. 42(b). The Court finds that the issues presented in this case do not warrant bifurcation. Considerations of convenience to the parties and witnesses, expedition, and judicial economy weigh against bifurcation. In particular, exclusion of the evidence of other incidents and the punitive damages claims reduces many of the prejudice and complexity issues of concern to defendant. Accordingly, defendant's motion is denied.
3. Attorney-Client Privilege: Testimony of Donald McCandless
Plaintiffs move to compel certain testimony from McCandless, a former Coach Field Service Representative for defendant, regarding the substance of conversations that took place at a 1990 meeting of defendant's legal counsel and McCandless in Pontiac, Michigan ("the Pontiac meeting"). Defendant objects on the grounds that the conversations are protected by attorney-client privilege, while plaintiffs contend the privilege was waived by McCandless's presence at the meeting.
In a diversity case involving claims and defenses under state law, state law governs the issue of attorney-client privilege. Fed. R. Evid. 501. District of Columbia courts have emphasized that the scope of the privilege is determined by the purposes which it is intended to serve and is narrowly construed. Wender v. United Servs. Auto. Ass'n, 434 A.2d 1372, 1373-74 (D.C. 1981). Although District of Columbia law has not addressed the issue of whether the privilege extends to former employees of a client corporation, the development of the privilege has followed Supreme Court precedent. See, e.g., id.
The Supreme Court has held that a corporation's attorneys' conversations with corporate employees are privileged if:
 the communications concern matters within the scope of the employees' corporate duties,  the employees themselves [are] sufficiently aware that they [are] being questioned in order that the corporation [can] obtain legal advice . . . and  the communications [are] considered ". . . confidential" when made, and have been kept confidential by the company.