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 EXCLUDE
VIDEOS OF OTHER RECREATIONAL VEHICLE ROLLOVERS
A defendant in a product liability case moves to exclude as evidence videos of
rollover incidents involving other vehicles in which the occupants extended their
arms to brace themselves for impact. 	The plaintiff objects and asks the court to
permit the evidence as one of the bases for its expert witness’s opinion. 	The court
concludes the evidence is relevant, probative, and not unfairly prejudicial, such that
it may be disclosed as a basis for the expert opinion; however, if the videos are
referenced at trial, by request of the defendant, the court will issue a limiting
instruction pursuant to Federal Rule of Evidence 703, explaining to the jury that the
videos may be used to evaluate the expert’s opinion, but must not be used for
substantive purposes.
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. Id. ¶¶ 17-57.
On October 4, 2024, BRP filed a motion in limine requesting the Court exclude
evidence of or reference to videos of any rollover incidents involving other vehicles.
Def. BRP’s Mot. in Lim. No. 10 and Supporting Br. to Exclude Videos of Other
Recreational Vehicle Rollovers (ECF No. 177) (Def.’s Mot.). On October 15, 2024, Mr.
Ratcliffe objected to BRP’s motion, asking the Court to allow evidence of other
rollovers as data points considered by its expert witness in forming his opinions. Pl.
Stephen J. Ratcliffe’s Obj. to Def. BRP’s Mot. in Lim. No. 10 and Supporting Br. to
Exclude Videos of Other Recreational Vehicle Rollovers (ECF No. 204) (Pl.’s Opp’n).
II. 	THE PARTIES’ POSITIONS
A. 	BRP’s Motion to Exclude Videos of Other Recreational Vehicle
Rollovers
In sum, BRP moves in limine for the Court to exclude evidence of other
recreational vehicle rollovers, adding in a footnote that its request extends to the
exclusion of non-recreational vehicles, such as cars, based on the Plaintiff’s previous
production of a Jeep rollover video. 	Def.’s Mot. at 1 & n.1. 	Asserting Mr. Ratcliffe
lacks scientific evidence to support his claims “that (i) humans instinctively extend
their hand or arm to brace for impact during recreational vehicle rollovers, and that
(ii) Plaintiff must have exhibited this ‘natural protective response’ in the accident
giving rise to this case,” BRP preemptively responds to the Plaintiff’s anticipated
introduction of other recreational rollovers to prove the purported natural response.
Id.
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BRP asserts that two of Plaintiff’s expert witnesses, Dr. Robert Nobilini and
Dr. Stephen Batzer, both “opine[][—]without relevant scientific support[—]that there
is a ‘natural protective response’ for a person, like Plaintiff, to extend their hand or
arm to brace for impact when they are falling, including in vehicle rollovers.” Id. at
3 (citing id., Attach. 2, Nobilini Dep. Tr. at 29:15-30:23 (ECF No. 177-2); id., Attach.
3, Batzer Rep. at 13-14 (ECF No. 177-3)). Claiming these experts base their opinions
on YouTube videos rather than a scientific study, BRP reiterates its position that the
videos lack substantial similarity to the Plaintiff’s accident and “thus, must be
excluded under the Federal Rules of Evidence.” 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 3 (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,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Id. (quoting F ED. R. EVID. 403). BRP contends Mr.
Ratcliffe, as the party who seeks to admit the videos, bears the burden of proving
their admissibility. Id. (citing United States v. Bartelho, 129 F.3d 663, 670 (1st Cir.
1997)).
Turning to the case at bar, BRP informs the Court that Plaintiff failed to
demonstrate any foundation for the videos’ admissibility and asks the Court to
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exclude the proffered evidence as “unauthentic, hearsay videos.” Id. at 4. BRP notes
that the videos show accidents involving vehicles manufactured by competitors,
primarily Polaris, and contends that BRP designed the vehicle at issue in this
dispute, the Can-Am Maverick X3, to include “doors, [rollover protection structure],
seatbelts, hip restraints, handholds and seats, all of which work in conjunction with
the overall cockpit geometry to provide reasonable level of protection to occupants
when the system is used and used correctly.” Id. These safety features, BRP posits,
are not present in the same combination and design in any of the vehicles shown in
the other rollover videos, diminishing the videos’ relevance to the instant dispute. Id.
Next, BRP asserts that Plaintiff’s experts cannot authenticate the proffered
videos by explaining, for example, “how or why the accident [visualized therein]
occurred,” and points out that the First Circuit has held “evidence of prior accidents
is admissible . . . 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.” 	Id. at 4-5 (quoting Moulton v. Rival Co., 116 F.3d 22, 26–27 (1st Cir. 1997)
(quoting McKinnon v. Skil Corp., 638 F.2d 270, 277 (1st Cir. 1981))). The Defendant
directs the Court to decisions in which other district courts within the First Circuit
have excluded evidence of prior incidents based on the proponent’s failure to establish
substantial similarity between the prior incidents and the incident in the present
case. 	Id. at 5 (citing Bado-Santana v. Ford Motor Co., 482 F. Supp. 2d 197, 201
(D.P.R. 2007) (excluding evidence of other incidents and stating that “plaintiffs have
not described in sufficient detail the circumstances surrounding the rollovers in the
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prior 	accidents 	to 	show 	that 	the 	subject 	accident 	occurred 	under 	similar
circumstances”); Herbst v. L.B.O. Holding, Inc., 783 F. Supp. 2d 262, 270 (D.N.H.
2011) (excluding evidence of other incidents because they either “involved materially
different circumstances,” or “were not sufficiently described for this court to deem
them substantially similar”)).
Applying these precedents to the present case, BRP argues that Mr. Ratcliffe
fails to establish substantial similarity between the accidents visualized in the
proffered videos and his own. Id. It notes Dr. Nobilini made a “general observation”
that the videos “demonstrate the natural tendency of [a rollover] occupant to put their
arm out to protect themselves while falling towards the ground as their vehicles
tipp[ed] over” but argues he did not attempt to explain any substantial similarity nor
analogize the circumstances or conditions of the videos to Plaintiff’s accident. 	Id.
Arguing this omission is dispositive, BRP continues by drawing its own distinctions
between the videos and the Plaintiff’s accident, emphasizing that “none of the rollover
videos display the Can-Am Maverick X3,” “[o]ver 80% of the videos feature Polaris
vehicles,” and “[o]nly 2 of those Polaris vehicles involve a rider performing a donut
. . .. [while] [i]n the rest, the accident dynamics of each are completely different with
differing speeds, roll rates, and roll angles.” Id. at 5-6 (citing id., Attach. 1, Chart of
Pl.’s Expert’s YouTube Videos (ECF No. 177-1)). 	BRP insists that, based on these
factors, the human response in this case lacks substantial similarity with the human
responses shown in the rollover events in the proffered videos. Id. at 6.
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BRP continues that only five of the twenty-one videos show vehicles equipped
with doors like the Maverick X3, and that one of these five shows a Jeep SUV rather
than a recreational vehicle.1 	BRP claims that Dr. Nobilini acknowledged in his
deposition that “the purpose of the [Maverick X3’s] doors were to keep limbs in the
vehicle,” id. (citing Nobilini Dep. Tr. at 24:16-20), and asserts that Plaintiff’s experts
should not have used videos of vehicles with different safety components from the
Maverick X3 to compare the human response. 	Id. 	At bottom, BRP insists that Mr.
Ratcliffe has failed to show substantial similarity between the rollovers shown in the
proffered videos and his own accident and asks the Court to grant its request to
exclude direct evidence or indirect reference to the videos as irrelevant pursuant to
Rules 401 and 402. Id.
In the alternative, BRP argues that, even if the Court does deem the videos to
be relevant, the Court should nevertheless exclude them as unfairly prejudicial
pursuant to Federal Rule of Evidence 403, claiming “the videos are misleading [and]
would confuse the jury.” Id. It emphasizes that “the Court may use its discretion to
exclude [evidence of prior accidents] if it finds the potential prejudice that could be
caused outweighs its probative value.” 	Id. at 7 (citing Bado-Santana, 364 F. Supp.
2d at 88; see also Carballo–Rodríguez v. Clark Equipment Co., 147 F. Supp. 2d 66, 74
(D.P.R. 2001) (citation fixed) (citing McKinnon, 638 F.2d at 277)). 	BRP warns the
Court that “[e]vidence of other accidents creates burdensome and confusing collateral
issues for both courts and juries.” 	Id. (citing, inter alia, Kinan v. City of Brockton,
1 	BRP notes that seven of the twenty-one videos “are too difficult to properly determine.”
Def.’s Mot. at 6.
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876 F.2d 1029, 1034-35 (1st Cir. 1989)). Plaintiff’s own expert, BRP says, admits the
videos could mislead the jury, in support quoting an exchange from Dr. Nobilini’s
deposition:
Q: The—have you done any testing with humans to see how they
respond to being inverted inside a roll cage?
A: Inside a roll cage? You mean during a rollover event?
Q: Yes.
A: I’ve analyzed and I’ve said in my report that I looked at 26 YouTube
videos in real world accidents to evaluate even response to these types
of accidents.
Q: Okay.
A: In the 26 that exact same protective response is observed in those—
in those vehicle occupants.
Q: Well, you’d agree with me that those 26 YouTube videos, there could
be 26 others where people react differently, correct?
A: Oh, sure.
Q: I mean, there are –
A: There could be.
Id. at 8 (quoting Nobilini Dep. Tr. at 32:1-17). 	BRP characterizes this exchange as
Dr. Nobilini’s concession “that the videos he produced of other rollovers are not a
representative sample of the human response to a rollover event,” and asserts this
admission contradicts the expert’s report in which he opines that humans have a
natural protective response in rollover events regardless of warnings to keep their
arms and hands in the vehicle. Id. at 8-9 (citing id., Attach. 4, Nobilini Rep. at 14-15
(ECF No. 177-4)). BRP accordingly concludes the videos of the other rollover events
would mislead the jury. Id. at 9.
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Further, BRP notes that its own expert witness, Steven Hall, conducted his
own research of internet rollover videos and identified twenty-seven videos of side-
by-side rollover accidents in which the driver’s hands remained on the wheel during
the rollover event. Id. (citing id., Attach. 5, Hall Video Collection (ECF No. 177-5)).
In twenty-two of Mr. Hall’s videos, BRP points out, the vehicle in the incident has
doors, thus making them more substantially similar to the Maverick X3 than the
vehicles shown in the videos proffered by the Plaintiff. 	Id. 	BRP avers “[t]his very
clearly illustrates that the videos produced by Batzer and Nobilini are not a
representative sample of the human response in rollovers,” such that the Plaintiff’s
proffered videos “will mislead the jury into believing humans respond in the same
manner during each rollover event regardless of warning—by extending their arms
to brace for impact.” Id. 	BRP continues that the videos would confuse the issues if
presented to a jury, arguing this case “is already a highly complex product liability
case” and suggesting:
It would be very prejudicial to the jury to ask them to view videos of
other 	rollovers 	for 	the 	purpose 	of 	proving 	a 	“natural 	protective
response,” when they will likely be viewing the video in broader terms—
looking at the type of accident, whether the vehicle has doors, whether
there is window netting, whether the driver was operating the vehicle
negligently, whether the terrain was rough, and whether the vehicle was
similar to the Subject Vehicle.
Id. at 9-10.
BRP additionally argues that admitting the video evidence in this case would
create a series of mini-trials on tangential issues, which it asserts “is precisely the
type of sideshow Rule 403 was designed to prevent.” Id. at 7 (collecting cases). BRP
warns the Court that it “will be forced to counter with its own videos and argue that,
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in Plaintiff’s videos, the vehicles have different restraint systems, have different
warnings, were being operated negligently, and the videos lack context.” 	Id. at 10.
BRP 	indicates 	this 	will 	lead 	to 	“many 	hours—and 	possibly 	days—of 	cross-
examination on the videos alone” and “the videos would only serve the purpose of
wasting time.” Id. BRP thus requests the Court to exclude the evidence pursuant to
Federal Rule of Evidence 403. Id.
BRP concludes the videos of other rollover accidents are inadmissible and
should be precluded from being introduced as evidence or referenced at trial. Id.
B. 	Stephen J. Ratcliffe’s Objection to BRP’s Motion to Exclude
Videos of Other Recreational Vehicle Rollovers
Mr. Ratcliffe objects to BRP’s motion to exclude videos of other rollover
accidents, characterizing the motion as “another meritless attempt to preclude
plaintiff’s biomechanical engineering expert, Robert Nobilini, Ph.D., from offering his
‘natural response’ opinion and/or disclosing the materials he reviewed and relied on
in forming his opinions.” 	Pl.’s Mot. at 1. 	The Plaintiff agrees with BRP that the
videos in question show “unplanned rollovers where in many instances the occupants
extending their rollover-leading arm outside of the roll cage apparently to brace their
fall”; however, Mr. Ratcliffe insists that he “does not seek to admit the rollover videos
into evidence . . .. 	Instead [his expert] will discuss the videos and the jury may see
them under Rule 703.” Id. Mr. Ratcliffe avers that the videos “are data points that
Dr. Nobilini considered in forming his opinions” as “part of his review of occupants’
responses to unplanned rollovers.” 	Id. at 1-2. 	He contends that the videos may be
considered under Federal Rule of Evidence 703, describing it as “black letter law that
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an expert may base his opinion on material that would not otherwise be admissible,”
and claiming “[t]he unplanned UTV rollover videos are the type of material an expert
would discover when researching safety concerns in the UTV industry generally, and
occupant rollover responses specifically.” Id. at 2.
Responding to BRP’s arguments that the videos show vehicles different from
the Maverick X3 at issue in this case, Mr. Ratcliffe insists this argument “clearly goes
to weight,” not admissibility. 	Id. 	Further, he asserts BRP’s “‘not substantially
similar’ argument is entirely inapplicable because the videos would be referenced as
this 	expert’s 	reliance 	materials, 	not 	as independent 	evidence 	of 	other similar
incidents. None of the cases cited by BRP are Rule 703 decisions.” Id. (emphasis in
original). Instead, Mr. Ratcliffe opines, these arguments should be “fodder for cross
examination.” Id. He says the same of BRP’s criticism of Dr. Nobilini for not carrying
out his own unplanned rollover study, pointing out that BRP also did not carry out
such a study. 	Id. at 2. 	He further notes the legitimate ethical and safety concerns
posed by such a study, arguing that “[u]nder the circumstances it is reasonable for
biomechanic experts to review material that is already published, including real life
responses to UTV rollovers.” Id. at 2-3. Mr. Ratcliffe also corrects BRP’s description
of Dr. Nobilini’s conclusion, clarifying that “Dr. Nobilini never claims that occupants
cannot hold on during a rollover, only that there is evidence of a human response to
extend one’s arm.” Id. at 3.
Finally, Mr. Ratcliffe responds to Defendant’s argument that its human factors
expert, Mr. Hall, has identified twenty-seven videos of vehicle rollovers in which the
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occupants do not extend their arm. 	Id. 	Plaintiff contends that “Mr. Hall may base
his opinions on such materials” and “[b]oth experts may be cross-examined vigorously
on their reliance materials.” 	Id. 	Mr. Ratcliffe asserts the videos relied on by Dr.
Nobilini are not unfairly prejudicial to BRP, pointing out that “[i]t would be vastly
more prejudicial were Nobilini to have relied exclusively on videos of Maverick X3
rollovers, which would give the impression that the X3 has a greater propensity for
rolling over than other UTVs.” Id. Further, Mr. Ratcliffe says, the risk of prejudice
is reduced where the Defendant’s expert “has even more videos of UTV rollovers
which comport with BRP’s contention that occupants do not have a natural protective
response to extend their arms.” Id.
Based on the foregoing, Mr. Ratcliffe asks the Court to deny BRP’s motion. Id.
III. 	DISCUSSION2
The Court recognizes substantial legal similarities between the present motion
and Defendant’s Motion in Limine No. 8 to Exclude Evidence of a YouTube Video
Featuring Matt Parks (ECF No. 175); based on its analysis under the same Federal
Rules of Evidence and jurisprudence governing an expert’s reliance materials, the
Court reaches a similar conclusion here. 	See Order on Def. BRP’s Mot. In Lim. to
Exclude Evidence of a YouTube Video Featuring Matt Parks (ECF No. 262). 	Thus,
the Court will allow Dr. Nobilini to refer to the videos as the basis of his opinions.
2 	Plaintiff’s Opposition does not mention Dr. Batzer’s report at all. See Pl.’s Opp’n at 1-3. While
the vast majority of the Defendant’s argument relate to the use of the videos by Dr. Nobilini, BRP does
include several references to Dr. Batzer’s expert report and the Court notes Dr. Batzer does include
“video collection of unplanned UTV overturns” in his list of “Materials Received and Reviewed.” Batzer
Rep. at 3-4. 	Thus, for the purposes of this motion, the Court will consider the videos of other vehicle
rollovers as the basis for the opinions of both Dr. Nobilini and Dr. Batzer.
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The parties disagree on the evidentiary purpose of the videos of other vehicle
rollovers, and consequentially dispute which of the Federal Rules of Evidence should
apply to their introduction. 	BRP moves to exclude the admission of the videos as
direct evidence offered for its truth, Def.’s Mot. at 1-2, while Mr. Ratcliffe explains
that he only seeks to discuss the videos as “data points that Dr. Nobilini considered
in forming his opinions.” Pl.’s Opp’n at 1. Rule 703 of the Federal Rules of Evidence
states:
An expert may base an opinion on facts or data in the case that the
expert has been made aware of or personally observed. If experts in the
particular field would reasonably rely on those kinds of facts or data in
forming an opinion on the subject, they need not be admissible for the
opinion to be admitted. But if the facts or data would otherwise be
inadmissible, the proponent of the opinion may disclose them to the jury
only if their probative value in helping the jury evaluate the opinion
substantially outweighs their prejudicial effect.
F ED. R. EVID. 703. Mr. Ratcliffe posits that “[t]he unplanned UTV rollover videos are
the type of material an expert would discover when researching safety concerns in
the UTV industry generally, and occupant rollover responses specifically.” Pl.’s Opp’n
at 2. 	The Court concludes this approach is logical and accepts the point that the
ethical and safety implications of conducting an unplanned rollover study justify
reliance on video evidence. 	See Pl.’s Opp’n at 2-3. 	Thus, BRP’s assertions that the
video evidence should be excluded because the accidents lack “substantial similarity”
fails because, under Rule 702, the “[facts or data] need not be admissible for the
opinion to be admitted.” F ED. R. EVID. 703. The Court agrees with the Plaintiff that
the arguments the Defendant marshals, and the cases it cites, in support are
inapposite to the issue presently before the Court in ruling on this motion in limine.
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The question, then, becomes whether the Court should allow the videos of other
vehicle rollovers to be disclosed to the jury. 	BRP argues that the videos are
inadmissible as irrelevant and unfairly prejudicial. Def.’s Mot. at 4-10. The Plaintiff
does not engage with the question of relevance or the “substantial similarity” test;
rather, Plaintiff asserts that Rule 703 permits the introduction of evidence that would
otherwise be inadmissible as an expert’s reliance materials. 	Pl.’s Opp’n at 2. 	The
balancing test of Rule 703 requires the Court to consider whether “their probative
value 	in 	helping 	the 	jury 	evaluate 	the 	opinion 	substantially 	outweighs 	their
prejudicial effect.” Id.
In this case, the Court determines the risk of prejudice to be low. BRP will be
given ample opportunity to levy its criticisms of Plaintiff’s experts’ opinions during
cross-examination, including its concerns regarding the different types of vehicles,
safety features, and accident circumstances. Def.’s Mot. at 4-5. The Court thinks it
unlikely that the videos will mislead or confuse the jury, as BRP will have the
opportunity to highlight these differences and Mr. Ratcliffe only seeks to disclose
them to support his expert’s opinion that there exists a natural human bracing
response during a rollover event. See Pl.’s Opp’n at 3.
Indeed, as the Court will allow Dr. Nobilini to refer to the contents of the
videos, it is not clear to the Court that BRP would maintain its objection to their being
shown to the jury. As the Court understands BRP’s position, it firmly maintains that
these videos show incidents markedly unlike the Ratcliffe accident, and the Court
does not know how BRP plans to cross-examine Dr. Nobilini on his rendition of what
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the videos reveal without showing the videos at least to Dr. Nobilini, 	If BRP cross-
examines Dr. Nobilini on the content of the videos without showing the videos to the
jury, the Court is confused about how BRP will be able to engage in an effective cross-
examination. Thus, the Court wonders whether BRP’s protests against admissibility
are more cry than wool.
Furthermore, Defendant will be able to introduce its own expert witness, Mr.
Hall, who may present his own findings, based on his own video evidence, that no
such natural response exists. Def,’s Mot. at 9; Pl.’s Opp’n at 3. Finally, BRP warns
the Court of the extreme delay that “mini-trials” on each of the video accidents may
impose; 	the 	Court 	finds 	this 	unlikely 	based 	on 	the 	Plaintiff’s 	narrow 	and
straightforward purpose for introducing the videos.
Contrasting the limited risk of unfair prejudice with the potential probative
value, the Court finds that real life responses to UTV rollovers hold high probative
value on the question of whether there is a natural human response to extend an arm
to brace oneself during a rollover event. 	In the absence of an academic study,
magnified by safety and ethical concerns of conducting one, the Court agrees with the
Plaintiff 	that “their probative value in helping 	the jury 	evaluate 	the 	opinion
substantially outweighs their prejudicial effect.” See F ED. R. EVID. 703.
Thus, the Court concludes first that Dr. Nobilini may testify to the content of
the videos and how they affected his opinions. 	Once Dr. Nobilini testifies as to the
video content, it is a short step to admit the videos themselves, and the Court is
inclined to do so. However, pursuant to the Advisory Committee’s Note to Rule 703,
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upon request from BRP, the Court will inform the jury that the videos may only be
considered for the purposes of evaluating the experts’ opinions, not for substantive
truth. 	See F ED. R. EVID. 703, notes of advisory comm. on 2000 amends. (“If the
otherwise inadmissible information is admitted under this balancing test, the trial
judge must give a limiting instruction upon request, informing the jury that the
underlying information must not be used for substantive purposes”).
In sum, the Court agrees with the Plaintiff that the videos of other rollovers
are relevant to whether a “natural response” to extend an arm during a rollover exists
and that Plaintiff’s experts were entitled to consider the videos in generating their
expert opinions in this case. Further, the Court finds the evidence highly probative
on this issue and, moreover, concludes that the risk of prejudice to BRP to be low in
light of BRP’s own experts on the subject and the opportunity to cross-examine
Plaintiff’s experts; thus, the Court will allow introduction of the videos at trial, but
upon request from BRP, the Court will give a limiting instruction to inform the jury
that the videos must not be used for substantive purposes. See F ED. R. EVID. 703,
notes of advisory comm. on 2000 amends.
IV. 	CONCLUSION
The Court DISMISSES without prejudice Defendant BRP’s Motion In Limine
No. 10 and Supporting Brief to Exclude Videos of Other Recreational Vehicle
Rollovers (ECF No. 177).
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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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