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 THE
CAN-AM COMMANDER VIDEO
A defendant manufacturer in a product liability case moves to preclude
introduction of a video describing the safety features of another model of vehicle
manufactured by the same company, arguing irrelevance and unfair prejudice. The
plaintiff 	objects, 	contending 	the 	video 	is 	relevant 	and 	probative 	of 	its 	claim.
Concluding the probative value outweighs the risk of unfair prejudice, the court
dismisses the motion.
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
manufacturer; 	and 	Tidd’s 	Sport 	Shop, 	Inc. 	(Tidd’s), 	the 	distributor; 	asserting
negligence and strict liability claims against both, respectively. Id. ¶¶ 17-57.
With the date of trial approaching, BRP filed a motion in limine on October 4,
2024, requesting the Court preclude evidence of a video in which BRP representatives
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explain the side protection strategy of the Can-Am Commander (the Can-Am
Commander video), a different model of vehicle than the Maverick X3 the Plaintiff
purchased and drove at the time of his accident. Def. BRP’s Mot. in Lim. No. 11 and
Supporting Br. to Preclude the Can-Am Commander Video (ECF No. 178) (Def.’s
Mot.). On October 15, 2024, Mr. Ratcliffe objected to BRP’s motion, asking the Court
to allow the Can-Am Commander video as either a witness’ prior statement, a
statement of a party opponent, or as part of its expert witnesses’ reliance. Pl. Stephen
J. Ratcliffe’s Obj. to Def. BRP’s Mot. in Lim. No. 11 and Supporting Br. to Preclude
the Can-Am Commander Video (ECF No. 205) (Pl.’s Opp’n).
II. 	THE PARTIES’ POSITIONS
A. 	BRP’s Motion to Preclude the Can-Am Commander Video
BRP asks the Court to preclude the Can-Am Commander Video, which it
attaches to its motion, asserting that, in comparison to the Maverick X3, “these off-
road 	vehicles 	have 	differing 	capabilities 	and 	features 	designed 	to 	maximize
performance in their intended applications.” Def.’s Mot. at 1-3; see also id., Attach. 1,
Can-Am Commander Video (ECF No. 178-1). 	It explains “[t]he Commander is a
hybrid that is best described as a dual purpose side-by-side that can be used for both
utility and recreational purposes. In contrast, the Maverick X3 is a pure sport
vehicle.” Id. at 3. Due to these different purposes, BRP says, “the Commander uses
a net while the Maverick is equipped with a door.” Id. BRP reports that “[b]oth side
structures comply with the [American National Standards Institute Recreational Off-
Highway 	Vehicle 	Association 	(ANSI-ROHVA)] 	requirements 	for 	leg 	and 	upper
extremity protection,” which “requires some barrier structure that should cover a
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defined zone.” 	Id. (citing ANSI-ROHVA § 10). 	BRP contends the ANSI-ROHVA
standard can be satisfied “through a door; a net; or any other material or fixture, so
long as the defined zone is covered.” Id.
BRP argues that “[i]n its design of the Commander, BRP elected to use a net
to meet ROHVA’s zone requirement,” which has led to BRP witnesses referring to the
Commander net as a “safety net.” 	Id. at 3-4. 	In the Maverick X3, however, BRP
claims “it is the door that provides required coverage under ROHVA.” Id. at 4. BRP
emphasizes that Plaintiff has used the references to the Commander’s safety net “to
make the unwarranted leap that all nets must be safety nets,” despite differences in
the side structure of the Commander and the Maverick X3. 	Id. 	BRP requests the
Court preclude evidence of the Commander netting system in the form of the Can-
Am Commander video or any witness testimony referring to the same as unfairly
prejudicial and irrelevant. Id.
The Defendant explains that, in the deposition of BRP representative Allen
Bernais, the witness “was repeatedly asked about [the Can-Am Commander video],”
in which he and a BRP consultant compared various models of aftermarket doors that
could be 	used to 	replace 	the 	standard side 	structure 	netting 	that a 	Can-Am
Commander is produced with originally. Id. at 5 (citing id., Attach. 3, Bernais Dep.
Tr. at 9:5-10:5 (ECF No. 178-3)). As BRP acknowledges:
In the video, Bernais refers to the nets as “safety nets,” mentioning twice
the nets are there for “ROHVA compliance.” ([Can-Am] Commander
Video at 0’55”-1’08”; 4’45”-4’49”[])[.] 	Further, in the footage, he claims
“you need to keep all your parts inside the vehicle . . . that’s again the
reason for the safety net. These safety nets are required by law . . . so
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you don’t, uh, stick any arms out in case of . . . a rollover.” ([Can-Am]
Commander Video at 3’40”-3’56”.)
Id. 	BRP avers that, during Mr. Bernais’ deposition, “on numerous occasions,
Plaintiff’s counsel tried to get Bernais to admit that the Commander nets were for
safety purposes, id. (citing Bernais. Dep. Tr. at 13:9-12; 14:9-13; 17:7-10), and
speculates 	that 	Plaintiff’s 	“argument 	that 	all 	nets—including 	those 	that 	were
accessories for the Maverick X3—should be viewed as safety nets.” 	Id. at 5-6. 	The
Defendant notes that “Bernais refused” and instead “testified that the accessory
netting offered on the X3 were ‘an enhancing feature to prevent debris, wind and offer
protection 	from 	the 	elements,’ 	marketed 	as 	a 	styling 	feature 	for 	the 	‘racing
enthusiast.’” Id. at 6 (citing Bernais Dep. Tr. at 35:6-16; 22:19-20).
BRP submits that Plaintiff’s experts have nonetheless “used the Commander
video as a basis to claim that the addition of a window net[] was a feasible alternative
design for the Subject Vehicle and would have prevented Plaintiff’s injury,” id. (citing
id., Attach. 2, Stephen Batzer Rep. at 2, 8, 21 (ECF No. 178-2)), and have cited Mr.
Bernais’ statements in the Can-Am Commander video to dispute that BRP did not
develop side nets to keep an occupant’s arms in the vehicle. Id. (citing id., Attach. 4,
Nobilini Dep. Tr. at 21:4-14 (ECF No. 178-4)). In fact, BRP asserts, when confronted
with the fact that Mr. Bernais was speaking about the nets for the Commander,
rather than the Maverick X3, Dr. Nobilini responded “[it is] the same principle. It’s
the same—the same mechanism of injury.” Id. (citing Nobilini Dep. Tr. at 22:4-11).
The Defendant then 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
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probable than it would be without the evidence” and the “fact is one of consequence
in determining the action.” Id. at 7 (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 video, bears the burden of proving their
admissibility. Id. (citing United States v. Bartelho, 129 F.3d 663, 670 (1st Cir. 1997)).
Returning to the case at bar, BRP first asserts that the Can-Am Commander
video is irrelevant because the “Plaintiff’s experts would find the Commander’s nets
to be an unacceptable alternative design.” 	Id. at 8 (capitalization altered). 	The
Defendant insists that “the limited-coverage triangular window netting on the
Commander is not an alternative design that Plaintiff claims would have prevented
his injury” and thus the video must be precluded pursuant to Federal Rules of
Evidence 401 and 402. Id.
BRP avers that, “[t]o prevail on a design defect action in Maine, a plaintiff must
show that a ‘product was defectively designed thereby exposing the user to an
unreasonable risk of harm.’” 	Id. (quoting Canning v. Broan-Nutone, LLC, 480 F.
Supp. 2d 392, 410 (D. Me. 2007) (in turn quoting Stanley v. Schiavi Mobile Homes,
Inc., 462 A.2d 1144, 1148 (Me. 1983)); accord Guiggey v. Bombardier, 615 A.2d 1169,
1171 (Me. 1992)). Establishing a design defect involves “an examination of the utility
of [the product’s] design, the risk of the design[,] and the feasibility of safer
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alternatives.” 	Id. 	(quoting 	Stanley, 	462 	A.2d 	at 	1148) 	(alterations 	made 	by
Defendant).
Applying these standards to the present case, BRP postulates that Mr.
Ratcliffe will use Mr. Bernais’ references to “safety nets” in the Can-Am Commander
video to argue that “all nets—including the accessory nets for the Maverick X3—are
safety nets and should be labeled as such,” and as “evidence of a feasible, safer
alternative design.” Id. However, BRP opines that Plaintiff will not be able to do so
because his own experts “opine[] that the [Maverick X3] was defective partly because
it lacked ‘full portal covering window netting’” while the Commander’s limited-
coverage nets only reach “roughly shoulder height.” 	Id. (citing Batzer Rep. at 20;
Nobilini Rep. at 17; Bernais Dep. Tr. at 11:22-25).
BRP further points out that Dr. Batzer and Dr. Nobilini have previously
testified in other cases that “vehicles with partial side netting—similar to the
Commander’s netting—are defective.” 	Id. (citing id., Attach. 6, Batzer Dep. Tr. at
6:20-7:8 (ECF No. 178-6); id., Nobilini Dep. Tr. at 28:6-19). BRP asserts that because
Plaintiff’s 	experts 	“would 	find 	the 	limited-coverage 	triangular 	netting 	on 	the
Commander 	insufficient 	to 	meet 	their 	‘full 	portal’ 	coverage 	standard,” 	the
Commander video “cannot be used to demonstrate a feasible alternative.” 	Id. at 9.
Thus, BRP claims the Can-Am Commander video has no relevance to the present case
and should be precluded. Id.
BRP continues to argue that, should the Court find the Can-Am Commander
video relevant, the Court should nonetheless preclude the video because, despite the
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different purposes of the nets designed for the Commander and the Maverick X3,
respectively, “Plaintiff will use Bernais’[] ‘safety nets’ comments in the video to
mislead the jury into believing all Can-Am nets are ‘safety nets.’” Id. The Defendant
reminds the Court that relevant evidence may be excluded pursuant to Federal Rule
of Evidence 403 and directs the Court to First Circuit caselaw interpreting that rule
to permit a district court to “find its ‘untoward effects’. . . to be so weighty that the
evidence should be excluded.” Id. (citing Galarneau v. Merrill Lynch, Pierce, Fenner
& Smith, Inc., 504 F.3d 189, 205 (1st Cir. 2007) (quoting Faigin v. Kelly, 184 F.3d 67,
80 (1st Cir. 1999))).
In the present case, BRP calls it “obvious” that the Can-Am Commander video
shows a different model of vehicle than the Maverick X3. Id. at 9-10 (citing Nobilini
Dep. Tr. at 22:4-6; Bernais. Dep. Tr. at 64:7-9; Batzer Rep. at 11; Batzer Dep. Tr. at
19:1-2). BRP insists that different models alone would confuse the jury and thus
warrants preclusion of the Can-Am Commander video under Rule 403. 	Id. at 10
(citing Jordan v. Gen. Motors Corp., 624 F. Supp. 72, 77 (E.D. La. 1985); Redman v.
John D. Brush & Co., 111 F.3d 1174, 1178 (4th Cir. 1997)).
Further, BRP reiterates that “the Commander’s nets were designed to serve a
different 	purpose 	(ROHVA 	compliance) 	than 	the 	Maverick 	X3’s 	nets 	(protect
occupants from wind/debris).” Id. (citing Bernais Dep. Tr. at 13:15-19; 35:6-16). The
Defendant posits that, by introducing the Can-Am Commander video, “Plaintiff
wants to confuse the jury, leading them to wonder why Bernais comments in the video
that the Commander’s nets are for safety while BRP claims the Maverick X3’s nets
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are not.” 	Id. 	BRP alleges this will lead the jury to mistakenly believe all Can-Am
nets are safety nets, causing unfair prejudice to BRP and extensive, dilatory cross-
examination on a collateral issue. 	Id. 	Based on its “untoward effects” of confusing
the jury and wasting time, BRP urges the Court to preclude the Can-Am Commander
video. Id. (citing Galarneau, 504 F.3d 189, 205).
B. 	Stephen J. Ratcliffe’s Objection to BRP’s Motion to Preclude the
Can-Am Commander Video
Mr. Ratcliffe objects to BRP’s motion. 	He explains that, in the Can-Am
Commander video, Mr. Bernais “describes a BRP side door net for a different BRP
UTV vehicle as having a safety purpose, ‘so you don’t, uh, stick any arms out in case
of . . . a rollover.’” Pl.’s Opp’n at 1 (citing Def.’s Mot. at 5). Mr Ratcliffe offers three
independent grounds for admitting the Can-Am Commander video: “as a witness’
prior statement ([Federal Rules of Evidence] 613 and 801(d)(1)); a statement of party
opponent (Rule 801(d)(2)); and [as] part of plaintiff’s liability experts’ reliance
materials (Rule 703).” Id. He rejects BRP’s argument that a different vehicle model
makes the video irrelevant, asserting this argument “goes to weight of the prior
statement not its admissibility.” Id.
First addressing relevance under Federal Rule of Evidence 401, Mr. Ratcliffe
argues “the video is relevant to plaintiff’s claim that a window net would have
prevented plaintiff from extending his arm outside the vehicle, and relevant to BRP’s
defense that the Maverick X3 accessory window nets have no safety purpose.” Id. at
1-2. He continues to assert that “Rule 403 dangers are not raised by admission of the
video,” as “[t]here is no danger of confusion because the video makes plain that the
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UTV under discussion, which is right next to Mr. Bernais in the video and visible in
full to everyone, is the Can-Am Commander, not the Maverick X3.” Id. at 2. 	Because
“the two vehicles look significantly dissimilar to each other,” Mr. Ratcliffe insists “no
jury is going to mistake the Maverick X3 for the Commander,” such that there is no
danger of unfair prejudice to BRP. 	Id. 	Rather, the Plaintiff submits, “[a] jury will
easily be able to take the Bernais video in context and weigh its probative value
regarding the safety purpose, if any, of the Maverick X3 window nets” and urges the
Court to let the jury contrast Mr. Bernais’ statements in the Can-Am Commander
video regarding the Commander side door nets with his statements regarding the
Maverick X3 side window nets. Id.
Alternatively, Mr. Ratcliffe contends the Can-Am Commander video should be
allowed to be referenced as reliance material of his experts, Dr. Batzer and Dr.
Nobilini. Id. Pursuant to Rule 703, Plaintiff says, “the video may be referred to and
disclosed to the jury – without the video coming in as evidence.” 	Id. 	He insists the
video would aid the jury’s understanding of his experts’ opinions “because Mr.
Bernais demonstrates the safety purpose in person of door nets on a BRP UTV.” Id.
Mr. Ratcliffe emphasizes that “Rule 703 does not limit plaintiff to the most helpful
reliance materials, it only requires that the materials be helpful to understanding an
expert’s opinions. Id. at 2-3 (citing F ED. R. EVID. 703) (emphasis added by Plaintiff).
Mr. Ratcliffe also disputes BRP’s contention that “[he] may try to use the
Commander side door nets as evidence of a feasible alternative design,” asserting that
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“[he] has never suggested this and his experts have neither disclosed nor testified to
such a[n] . . . idea.” Id. at 3.
In sum, Mr. Ratcliffe urges the Court to deny BRP’s motion to preclude the
Can-Am Commander video as evidence. Id.
III. 	DISCUSSION
After review, the Court concludes the Can-Am Commander video is relevant,
probative, and not unfairly prejudicial to BRP, and also does not constitute hearsay
under the party-opponent rule, Federal Rule of Evidence 801(d)(2). Thus, the Court
dismisses 	without 	prejudice 	the 	Defendant’s 	motion 	to 	preclude 	the 	Can-Am
Commander video as evidence at trial.
BRP argues the Can-Am Commander video is irrelevant to the case because it
involves a different model of vehicle and contradicts the theory of safe design put
forth by Plaintiff’s experts in this and previous trials. Def.’s Mot. at 6-7. The Plaintiff
responds that these arguments merely go to weight, not admissibility, and that Mr.
Bernais’ statements in the Can-Am Commander video are relevant to his claim that
a window net would have prevented the Plaintiff from extending his arm outside the
vehicle and to BRP’s defense that the Maverick X3 accessory window nets have no
safety purpose. 	Pl.’s Opp’n at 1-2. 	Mr. Ratcliffe has the better side of these
arguments.
“[E]vidence 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. Here, the product liability claim brought
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by Mr. Ratcliffe turns on the question of whether the condition of the Maverick X3
vehicle was “unreasonably dangerous” as sold. See 14 M.R.S. § 221. As cited by BRP,
this inquiry involves “an examination of the utility of [the product’s] design, the risk
of the design[,] and the feasibility of safer alternatives.” Stanley, 462 A.2d at 1148.
Plaintiff concedes that it does not purport to use the Can-Am Commander
video as evidence of a feasible alternative design. Pl.’s Opp’n at 3. However, it insists
the video remains relevant to the other questions posed, including utility and risk of
the product’s design. Pl.’s Opp’n at 1-2. 	As a preliminary ruling, the Court agrees
with Mr. Ratcliffe that, despite being a different model of vehicle, the Can-Am
Commander’s use of window netting as a safety feature “so you don’t stick any arms
out in case of . . . a rollover,” Def.’s Mot. at 5 (quoting Can-Am Commander Video at
3’40”-3’56”), is relevant to the questions of the product’s utility and risk. Namely, it
is relevant insofar as it indicates the types of risks that BRP contemplated in its
UTVs and its means of mitigating that risk. 	The fact that BRP used safety netting
in another vehicle to comply with ANSI-ROHVA requirements makes it more
probable that the nets manufactured for the Maverick X3 had a safety purpose.
In addition, the Court concludes that the probative value of this evidence is not
substantially outweighed by any risk of prejudice to the Defendant. Defendant itself
notes that “obviously the vehicle shown in the marketing video was a different model
than the Maverick X3.” Def.’s Mot. at 9. Defendant claims that Mr. Ratcliffe will use
the Can-Am Commander video at trial to confuse the jury, cautioning that the video
“will lead the jury to mistakenly believe all Can-Am nets are safety nets or should be
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labeled as such.” 	Id. at 10. 	The Court thinks this underestimates the jury and the
capacity of defense counsel to dispute the video at trial by explaining the different
purposes of the vehicle models and nets, respectively. Moreover, as Plaintiff correctly
points 	out, 	BRP 	may 	raise 	its 	criticisms 	at 	trial 	to 	undermine 	the 	Can-Am
Commander video’s evidentiary weight, including its observations that the video
shows a different vehicle, that the Maverick X3 uses doors to comply with the ANSI-
ROHVA standard, and that the Plaintiff’s position is inconsistent with the prior
testimony of its expert witnesses. Pl.’s Opp’n at 1. Any prejudicial effect of the video
is further mitigated by the deposition transcript of Mr. Bernais explaining the
distinctions between the vehicles’ and their respective nets’ purposes at greater
length, which the Defendant has designated for presentation at trial. Def.’s Mot. at
10 (citing Bernais Dep. Tr. at 13:15-19; 35:6-16).
BRP further argues that allowing the Can-Am Commander video into evidence
will result in “extensive cross-examination on a matter that is completely collateral
to the actual issues in the litigation.” Def.’s Mot. at 10. As discussed above, the Court
disagrees that a BRP representative’s discussion of the safety purpose of netting is
entirely collateral to this case, and further does not see why an undue amount of time
will be expended on this issue at trial when Defendant has already articulated its
clear and concise bases for distinguishing the purpose of the Can-Am Commander
side netting from the accessory nets of the Maverick X3. Id. at 3-7.
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At bottom, BRP’s arguments have not convinced the Court that the Can-Am
Commander video is irrelevant to the present case, nor that its introduction would
unfairly prejudice the Defendant.
IV. 	SUMMARY
The Court declines at this time to preclude the introduction of the Can-Am
Commander video as evidence at trial. However, the Court notes that, under the law
of the First Circuit, 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 	F ED. 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 DISMISSES without prejudice Defendant BRP’s Motion In Limine
No. 11 and Supporting Brief to Preclude The Can-Am Commander Video (ECF No.
178).
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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