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 PLAINTIFF STEPHEN J. RATCLIFFE’S MOTION IN LIMINE
TO PRECLUDE EVIDENCE, ARGUMENT, AND VIDEO RECORDINGS OF
DRIVING TESTS CONDUCTED IN FLORIDA BY DEFENDANT BRP’S
EXPERT KEVIN BREEN
The plaintiff in a product liability action involving a vehicle rollover moves in
limine to preclude evidence or argument of a driving test conducted in Florida by the
defendant’s expert witness, arguing that circumstantial differences make the test
irrelevant to the material issues of the case and unfairly prejudicial to the plaintiff.
The defendant manufacturer objects, arguing the evidence rebuts the plaintiff’s
claims about the instability of the vehicle in question and demonstrates its expert’s
opinion. The court agrees with the defendant and declines to preclude the evidence.
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.
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On October 4, 2024, Mr. Ratcliffe filed a motion in limine requesting the Court
preclude evidence or argument of driving tests conducted by BRP’s expert, Kevin
Breen, as irrelevant, unfairly prejudicial, and not relied on as a basis for Mr. Breen’s
expert opinion. 	Pl. Stephen J. Ratcliffe’s Mot. in Lim. to Preclude Evid., Arg., and
Video Recordings of Driving Tests Conducted in Fl. by Def. BRP’s Expert Kevin Breen
(ECF No. 185) (Pl.’s Mot.). On October 15, 2024, BRP opposed Mr. Ratcliffe’s motion,
asserting that the evidence is relevant and probative to the Plaintiff’s product defect
and negligence claims. 	Def. BRP’s Resp. in Opp’n to Pl.’s Mot. in Lim. to Preclude
Evid., Arg., and Video Recordings of Driving Tests Conducted in Fl. by Def. BRP’s
Expert Kevin Breen (ECF No. 198) (BRP’s Opp’n). 	Also on October 15, 2024, Tidd’s
joined BRP’s opposition to Mr. Ratcliffe’s motion. Def. Tidd’s Sport Shop, Inc.’s Opp’n
to Pl.’s Mots. In Lim. (ECF No. 215) (Tidd’s Opp’n).
II. 	THE PARTIES’ POSITIONS
A. 	Stephen J. Ratcliffe’s Motion to Preclude Evidence and Video of
Driving Tests Conducted in Florida by BRP’s Expert Kevin
Breen
Mr. Ratcliffe moves the Court to preclude evidence, argument, and video
recordings of the driving tests conducted in an “exemplar vehicle” by BRP’s expert
witness and his colleague. Pl.’s Mot. at 1. He asserts Mr. Breen conducted his tests
after BRP disclosed its expert reports, and thus its “experts did not rely on the driving
tests or the results thereof in forming their disclosed opinions.” 	Id. 	(emphasis in
original). Further, he says, “[t]he driving tests were conducted on a closed, sandy off-
road course in Florida.” 	Id. 	Based on these characteristics, Mr. Ratcliffe asks the
Court to preclude the Florida driving tests and video recordings of the same as
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irrelevant, unfairly prejudicial, and misleading to the jury pursuant to Federal Rules
of Evidence 401 and 403. Id.
Mr. Ratcliffe begins with factual distinctions between the driving tests and
“the terrain where the . . . rollover occurred.” Id. First, he points out that the terrain
where the driving tests were conducted “is predominantly flat and sandy.” Id. Next,
he avers “[t]he apparently fine sandy surface terrain for the driving tests is clearly
different from the more gravelly terrain at Gogan’s pit, which is over 1,700 miles from
the site of the Breen driving tests.” Id. at 2. The Plaintiff further observes that the
driving test “involved Mr. Breen’s son driving in a circle around cones,” that “the
surface is pancake flat,” and that “the radius of the circle was carefully measured
beforehand.” 	Id. at 3-4. 	Based on these distinctions, the Plaintiff argues “[i]t is
misleading to show an exemplar vehicle, operated by the son of BRP’s expert,
performing maneuvers without incident on a dissimilar surface.” Id. at 4.
Mr. Ratcliffe next emphasizes that BRP’s experts did not rely on the driving
tests in forming their expert opinions, quoting a passage from Mr. Breen’s deposition:
Q. 	Do you rely upon that test that your son drove the vehicle around
that fixed point as a basis for your opinions?
A. 	No. I think it demonstrates what I concluded based on the
calculations.
Q. 	So it’s more of a demonstrative-type thing, not the basis of your
opinions or your opinions?
A. 	I would say that’s a better characterization of it, sure.
Q. 	Okay. Is there a reason why you left it out of the report?
A. 	It hadn’t been done on -- the report was issued on October 7th.
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Q. 	When was it done?
A. 	Pardon me?
Q. 	When was it done?
A. 	October 27th, I think.
Q. 	So last week?
A. 	Yes.
Id. at 4-5 (quoting id., Attach. 1, Breen Dep. Tr. at 112:21-113:14 (ECF No. 185-1)).
Mr. Ratcliffe adds that BRP’s expert William Newberry “was not even aware of the
driving tests . . ., or video recordings when he testified,” as demonstrated by his
deposition:
Q. 	Have you seen another demonstration or test where Casey Breen
goes out on a sandy area and drives the exemplar around? Have you
seen that video?
A. 	So, 	like, 	a 	drive-through 	or 	ride-through 	or 	a 	driving
demonstration?
Q. 	Yes.
A. 	I’ve seen that on many occasions, yes.
Q. 	In this case, have you seen that?
A. 	I don’t know that I -- I don’t know that I saw this one. 	I can’t
remember. If it would have been sent to me, I would have included it in
my materials received. I don’t remember.
Q. 	So that’s not something that you rely upon for your opinions in
this case, if I have it correct?
A. 	Yeah. Again, with the same caveat I gave before insofar as they
form Kevin’s opinions that he’s giving to me. Otherwise, not directly --
I’m not directly relying on that driving demonstration for my opinions.
Id. at 5-6 (citing id., Attach. 2, Newberry Dep. Tr. at 181:14-182:9 (ECF No. 185-2)).
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Mr. Ratcliffe urges the Court to preclude evidence of the driving test and video
recordings of it as “misleading, unfairly prejudicial, and . . . not even relevant to the
disclosed opinions of BRP’s experts” pursuant to Federal Rules of Evidence 401 and
403. Id. at 6.
B. 	BRP’s Opposition to Plaintiff’s Motion to Preclude Evidence and
Video of Driving Tests Conducted in Florida by BRP’s Expert
Kevin Breen
BRP opposes the Plaintiff’s motion, asserting that Mr. Ratcliffe cites no legal
support for his requested preclusion and further that the driving test evidence is
relevant to the case at bar. 	BRP first notes that Mr. Breen “is a highly qualified
engineer who was retained to perform a design evaluation of the 2019 Can-Am
Maverick X3.” 	BRP’s Opp’n at 1. 	It continues that Mr. Breen’s “engineering
evaluation involved the analysis of the handling and stability characteristics of the
X3,” which it claims rebuts the opinion of Plaintiff’s expert witness, Stephen Batzer,
who wrote that the Maverick X3 “has a tendency to overturn.” Id. at 1-2 (citing id.,
Attach. 1, Batzer Rep. at 11 (ECF No. 198-1)). 	BRP argues Mr. Breen’s analysis
included “a series of ride and handling tests where the X3 is operated through a full
range of turning maneuvers, in sand, hard packed dirt, through water and over
rocks,” 	which 	led 	to 	his 	opinion 	that 	the 	Maverick 	X3 	“is 	safe[,] 	it 	handles
predictably[,] and it does not overturn easily.” 	Id. at 2. 	BRP insists that it “is
certainly entitled to rebut Batzer’s claim” and that Mr. Breen’s testing is relevant to
doing so. Id.
BRP characterizes the Plaintiff’s argument as: “this evidence is irrelevant and
misleading because the riding and handling evaluation post-dated his expert report
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and because . . . the evaluations were conducted on sand—as opposed to gravel,” and
responds to both points in turn. 	Id. 	Reminding the Court that the question
underlying this case “is whether BRP sold a reasonably safe side-by-side,” BRP
argues Mr. Breen’s design evaluation “included testing to demonstrate and confirm
his opinions, which is exactly what experts are supposed to do.” 	Id. 	It notes that
Plaintiff’s experts did not perform “any testing at all—operational or otherwise—to
support or confirm their opinions, which are littered with ipse dixit.” 	Id. at 2 n.1.
(citing Def. BRP’s Mot. in Lim. No. 1 and Supp. Br. to Exclude the Ops. of Stephen
Batzer (ECF No. 168); Def. BRP’s Mot. in Lim. No. 2 and Supp. Br. to Exclude the
Ops. of Robert J. Nobilini (ECF No. 169); Def. BRP’s Mot. in Lim. No. 3 and Supp. Br.
to Exclude the Ops. of David Lenorovitz (ECF No. 170)). BRP posits that Mr. Breen’s
testing is relevant to the issue of the Maverick X3’s reasonable safety, and further
would aid the jury in understanding Mr. Breen’s opinions. Id. at 2. It continues that
the driving test evidence would not mislead the jury because it does not attempt or
intend to recreate Mr. Ratcliffe’s accident; instead, “it merely shows that the Subject
Vehicle rides and handles safely and predictably across a broad spectrum of off-road
surfaces.” Id.
Beginning with its relevance arguments, BRP recites the standards of relevant
and admissible evidence provided by Federal Rules of Evidence 401 and 402. Id. at
3. 	It points out that this case hinges on “whether the design of the Subject Vehicle
was reasonably safe,” id., and that Mr. Ratcliffe’s expert opines the Maverick X3 is
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“inherently unstable and prone to rollovers.”1 Id. BRP explains that its own expert
performed an engineering analysis and concluded “the Subject Vehicle is neither
defective nor unreasonably dangerous.” 	Id. (citing id., Attach. 2, ESI Prelim.
Investigative Rep. at 18 (ECF No. 198-2)). BRP avers that Mr. Breen “later tested his
opinions by performing his ride and handling evaluation, which confirmed his
opinions.” 	Id. at 3-4 (citing Breen Dep. Tr. at 112:21-25). 	Citing cases from federal
courts outside the First Circuit, BRP insists “[t]his is what experts are supposed to
do and demonstrates the reliability of his opinions.” Id. at 4 (collecting cases). BRP
reiterates its position that the evidence is relevant and will help the jury understand
Mr. Breen’s expert opinions. Id.
BRP adds that the evidence is not misleading nor unfairly prejudicial, arguing
the Plaintiff’s distinctions between the testing conditions and circumstances of Mr.
Ratcliffe’s accident are inapposite because demonstrative testing does not need to be
identical to the accident. Id. It emphasizes “[t]here is a difference between the ride
and handling evaluation video and a video used to recreate an accident,” and insists
the disputed video is demonstrative and confirmatory of Mr. Breen’s opinions. Id. at
4-5. On this point, it directs the Court to a passage from Mr. Breen’s deposition:
1 	In support, BRP quotes a passage from Dr. Batzer’s report:
The 2019 Can-Am Maverick X3 is a high speed, narrow track width vehicle used off
road. It is intended to be a pure sport recreational vehicle. Its geometry, engine size,
and the terrain on which it is used ensure that this vehicle will roll over with a
probability far in excess of that of a passenger vehicle designed for the public roads. In
fact, the subject vehicle was rolled on the first day of use, as are many other vehicles
of this type.
BRP’s Opp’n. at 3 (quoting Batzer Rep. at 11).
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Q. 	Do you rely upon that test that your son drove the vehicle around
that fixed point as a basis for your opinions?
A. 	No. I think it demonstrates what I concluded based on the
calculations.
Q. 	So it’s more of a demonstrative-type thing, not the basis of your
opinion or your opinions?
A. 	I would say that’s a better characterization of it, sure.
Id. at 5 (quoting Breen Dep. Tr. at 112:21-113:4). Because this video is demonstrating
Mr. Breen’s testimony, not purporting to recreate the accident, BRP argues any
circumstantial differences, including soil composition, should go to the evidence’s
weight rather than its admissibility. Id. (citing Szeliga v. Gen. Motors Corp., 728 F.2d
566, 567 (1st Cir. 1984) (“Dissimilarities between experimental and actual conditions
affect the weight of the evidence, not its admissibility”)).
Responding to Mr. Ratcliffe’s argument about the danger of misleading the
jury, BRP cites caselaw from federal district courts in New York and New Jersey to
support its position that “the appropriate relief is not exclusion—it is a limiting
instruction that the ride and handling evaluation video is demonstrative and not
intended to be a recreation of the accident.” Id. at 5-6 (collecting cases). Thus, BRP
urges the Court to reject Plaintiff’s request to preclude introduction of the driving
test evidence pursuant to Rule 403. Id. at 6.
At bottom, BRP avers the driving test evidence and video are relevant and
admissible, and asks the Court to deny Mr. Ratcliffe’s motion to preclude presentation
of the same at trial.
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C. 	Tidd’s Opposition to Plaintiff’s Motions
Tidd’s summarily joins BRP’s opposition to the Plaintiff’s motion to preclude
evidence, argument, and video of driving test conducted in Florida by BRP. 	Tidd’s
Opp’n at 1.
III. 	DISCUSSION
The Court concludes the evidence is relevant to the question of the Maverick
X3’s stability and tendency to rollover and that, as a demonstrative representation of
Mr. Breen’s opinion rather than a purported recreation of the accident, the risk of
unfair prejudice does not substantially outweigh the evidence’s probative value.
Thus, the Court will decline to exclude such evidence.
“[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. Courts should generally admit relevant
evidence unless directed otherwise by the United States Constitution, a federal
statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme
Court. F ED. R. EVID. 402.
Mr. Ratcliffe insists that differences between the circumstances of his accident
and the driving tests conducted by Mr. Breen make the latter irrelevant to the issues
of the case at bar. 	Pl.’s Mot. at 1-3. 	BRP disagrees, arguing the driving tests and
videos demonstrate and confirm the basis for its expert’s opinion that the Maverick
X3 does not pose an unreasonable risk and rebuts the Plaintiff’s claim that the vehicle
was inherently unstable. BRP’s Opp’n at 3-4. The First Circuit’s guidance in Szeliga
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v. General Motors Corp. informs the Court’s resolution of this dispute; in that case,
the First Circuit wrote:
The relevancy of the films to defendant’s theory of causation cannot be
disputed. They were not offered as a re-creation or representation of how
the accident actually happened. The films depicted an experiment
illustrating [the defendant’s expert’s] theory of the cause of the accident.
They 	were 	an 	aid 	to 	the 	jury’s 	understanding 	of 	his 	testimony.
Dissimilarities between experimental and actual conditions affect the
weight of the evidence, not its admissibility.
Szeliga, 728 F.2d at 567 (citing Robbins v. Whelan, 653 F.2d 47, 49 (1st Cir. 1981)).
This Court will not depart with the First Circuit by finding the videos of Mr. Breen’s
testing, introduced in support of an expert’s theory of causation rather than as a re-
creation of the accident, irrelevant based on circumstantial differences.
Finding the 	evidence 	relevant, 	the Court 	turns 	to 	consider whether its
relevance is substantially outweighed by its prejudicial effect pursuant to Federal
Rule of Evidence 403, which directs courts to “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.” F ED. R. EVID. 403. The
Plaintiff 	cautions 	the 	Court 	that 	the 	driving 	test 	evidence 	would be 	unfairly
prejudicial and misleading but does not expand on his reasons for this position. See
Pl.’s Mot. at 1-6. 	BRP responds that the evidence, as demonstrative of its expert’s
opinions, would not be unfairly prejudicial nor mislead the jury as to the distinction
between the circumstances of the accident compared to those of the driving test.
BRP’s Opp’n at 4-6. 	To further limit any potential prejudice, BRP also offers the
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possibility of the Court instructing the jury as to the acceptable purposes of such
evidence. Id. at 5-6.
The Court agrees with the Defendant. 	The different conditions between Mr.
Ratcliffe’s accident and the simulated driving tests are readily apparent and the
Plaintiff will have ample opportunity to highlight these distinctions at trial. 	Thus,
the Court finds it unlikely that the jury will be misled to believe the conditions
purport to recreate Mr. Ratcliffe’s accident and will decline to preclude evidence or
argument relating to Mr. Breen’s driving tests.
Further, 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”).
IV. 	CONCLUSION
The Court DISMISSES without prejudice Plaintiff Stephen J. Ratcliffe’s
Motion In Limine to Preclude Evidence, Argument, and Video Recordings of Driving
Tests Conducted in Florida by Defendant BRP’s Expert Kevin Breen (ECF No. 185).
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SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 9th day of November, 2024
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