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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

KYLE & BETTY DAVIS, 

Plaintiffs, 

v. 

TRANE, U.S., INC., 

Defendants.

Case No. 15-11125 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

ELIZABETH A. STAFFORD

 / 

OPINION AND ORDER ON MOTIONS IN LIMINE [136, 138, 139, 141, 142, 143, 144,

145, 146, 147, 148, 161] 

Kyle Davis was an employee of a contractor tasked with moving an 

approximately five-ton commercial chiller into Wayne Memorial High School on 

March 30, 2012. The chiller fell over during installation, crushed Mr. Davis, and 

rendered him a quadriplegic. 

Plaintiffs, Kyle Davis and his wife Betty Davis, brought this products liability 

suit on March 26, 2015 to recover damages from the allegedly dangerous design of 

the chiller, which was a Model RTWD Series R 70-250 ton water-cooled helical and 

rotary chiller manufactured by Defendant Trane, U.S., Inc. [Dkt. # 1]. Before the 

Court are 12 motions in limine brought by both Plaintiffs [136, 138, 139, 141, 142, 
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161] and Defendant [143, 144, 145, 146, 147, 148]. A hearing was held on 

November 26, 2019, and all but one of these motions were taken under advisement. 

STANDARD OF REVIEW

 “Orders in limine which exclude broad categories of evidence should rarely 

be employed.” Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th 

Cir. 1975). The court should exclude evidence in advance of a trial only when 

evidence is clearly inadmissible on all potential grounds. Indiana Ins. Co. v. Gen. 

Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004) (citing Luce v. United 

States, 469 U.S. 38, 41 n. 4 (1984)). Unless movant makes such a showing, 

evidentiary rulings should be made in trial, so that “questions of foundation, 

relevance and potential prejudice can be resolved in proper context.” Id. The denial 

of a motion in limine, therefore, creates no guarantee that the evidence at issue will 

be admitted at trial. Id. 

ANALYSIS

I. DEFENDANTS’ MOTIONS

Defendant’s Motion in Limine To Exclude Dissimilar “TIM Tickets” and 

Other Incident Evidence [146] and Defendant’s Motion to Exclude Quebec 

Installation Video [147] 

Plaintiffs bring this products liability suit under several theories of negligence: 

negligent design, negligent failure to warn, implied warranty, express warranty, and 

negligent misrepresentation. They have also alleged gross negligence and willful 
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disregard. At issue is whether evidence of other similar incidents (“OSI”) is 

admissible to prove negligent design. OSI evidence may also be admissible to prove 

gross negligence or willful disregard where previous accidents are alleged to have 

provided Trane with notice of the chiller’s dangerous design. 

To prove a design defect under Michigan law, a plaintiff must show that 

the product was “not reasonably safe for its foreseeable uses” and that a 

“risk-utility analysis” favored a safer design. Under this approach, a 

plaintiff must show that (1) the product was not reasonably safe when it 

left the control of the manufacturer; and (2) a “feasible alternative 

production practice was available that would have prevented the harm 

without significantly impairing the usefulness or desirability of the product 

to users.” 

Croskey v. BMW of N. Am., Inc., 532 F.3d 511, 515–16 (6th Cir. 2008) (quoting 

M.C.L. 600.2946(2)). 

 The first of the six factors under Michigan’s risk-utility doctrine is “that the 

severity of the injury was foreseeable by the manufacturer.” Id. OSI evidence may 

therefore goes not only to the danger of the chiller’s design, but also to the question 

of whether “the manufacturer exercised reasonable care in making the design 

choices it made.” Prentis v. Yale Mfg. Co., 421 Mich. 670, 688, 365 N.W.2d 176 

(Mich. 1984). 

Whether the jury’s inquiry into this matter will incorporate OSI evidence will 

depend on whether Plaintiff can prove that those incidents are truly similar. Federal 

Rules of Evidence 401 & 403 require evidence introduced at trial to meet minimum 

standards of relevancy. With that in mind, the United States Court of Appeals for the 
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Sixth Circuit has found that other similar incidents must be “substantially similar” 

to the one at issue to be admissible. Surles ex. Rel. Johnson v. Greyhound Lines, Inc., 

474 F.3d 288 (6th Cir. 2007) (quoting Rye v. Black & Decker Mfg. Co., 889 F.2d 

100, 102 (6th Cir.1989)). “Incidents which ‘occurred under similar circumstances or 

share the same cause’ can properly be deemed substantially similar.” Id. For 

instance, in a case where a railing on the fourth floor of a stairwell gave way, 

evidence that the railing on the third floor almost gave way when a worker leaned 

against it is admissible. 

Such evidence is relevant as tending to show the dangerous condition of 

the premises, and [Defendant’s] knowledge of such condition, if it relates 

to an occurrence which happened under substantially the same conditions 

at substantially the same place as the accident in suit and at a time not too 

remote therefrom. 

New York Life Ins. Co. v. Seighman, 140 F.2d 930, 932 (6th Cir. 1944). 

Defendants challenge the admissibility of evidence of 29 incidents that 

Plaintiffs maintain are substantially similar to the March 30, 2012 accident. Plaintiffs 

can prove admissibility if the proposed OSI either a) occurred under similar 

circumstances, or, b) shared the same cause, as the incident for which damages are 

sought. 

The first grouping of other similar incidents can be found in Plaintiff’s 

exhibits of TIM Tickets. Trane produced records in a system called Trane Interaction 

Management (“TIM”) for the purpose of determining whether warranties should be 
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honored on damaged products. Plaintiff has proffered 27 “tickets” from this system 

which record discussions on whether warranties should be honored, and whether 

repair was possible, for various chillers that were damaged during installation, 

typically by falling over. Each ticket provides a brief description of what happened 

and a brief description of the parts of the chiller that were damaged in the fall. 

Photographs of the damaged components are usually attached. One of those TIM 

Tickets refers to the “Quebec Installation,” where a video is also available of an 

RTWD chiller tipping over in a loading bay while a man is doing something behind 

it that is not visible from the video. 

Defendant argues that these incidents are not substantially similar, because 

they occurred under different circumstances and their causality is unknown. Trane 

has observed that Kyle Davis was supervising employees in an attempt to 1) install 

2) a Trane RTWD 250 model chiller 3) on isolator feet 4) by using a tool as a jack 

to elevate the chiller up in the air from underneath 5) without the use of an overhead 

lifting support 6) that tipped over during installation. It argues that exceedingly few 

of these factors can be found in any of the TIM Tickets. 

The Sixth Circuit has cautioned against “too narrowly” defining similar 

circumstances. Rimer v. Rockwell, 641 F.2d 450, 456 (6th Cir. 1981). The substantial 

similarity rule does not require that products be identical, but only that there be 

“substantial similarity among the variables relevant to the plaintiff's theory of 
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defect.” Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1248 (10th Cir. 2000). This 

rule has been adopted by the Sixth Circuit in Clark v. Chrysler Corp., 310 F.3d 461, 

473-74 (6th Cir. 2002) (overruled on other grounds by State Farm Mut. Auto Ins. 

Co. v. Campbell, 538 U.S. 408 (2003)). Relatedly, “the relevance of the evidence 

will thus depend not only on the character of the evidence itself but on the purpose 

for which it is offered.” Koloda v. Gen. Motors Corp., 716 F.2d 373, 375 (6th Cir. 

1983). Plaintiffs offer several purposes for the other similar incidents: 

 To prove the existence of a product defect. 

 To prove notice of a hazardous condition. 

 To prove indifference towards the risk. 

 To prove a plan or a scheme. 

 To prove causation. 

 Relevancy is the tendency of a fact to prove or disprove the truth of a point in 

issue. Incidents that do not take place under similar circumstances might still be 

substantially similar if they share a common cause. Plaintiffs’ proffered common 

cause is the high center of gravity, which makes tip-overs more likely. 

“[A] jury would be far more likely to find that a design is defective if it learns 

that the alleged defect resulted in a number of accidents.” Rimer, 641 F.2d at 456. 

Plaintiffs must, therefore, establish a reasonable connection between the alleged 

defect and the other accidents. If the other accidents were caused by forces not at 

play in Plaintiffs’ accident, they are not relevant. 
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In one unpublished Sixth Circuit opinion, a panel held that a plaintiffs’ 

proposed OSI in an exploding barrel firearm case were properly excluded by the 

district court due to plaintiff’s inability to rule out other causes. 

Although the other incidents identified by the Plaintiffs involved barrel 

failures, they could not point to or rule out any cause of those failures. 

Based on the Plaintiffs’ inability to describe the factual circumstances 

surrounding each failure, the other incidents were properly excluded 

because there was no showing that they were “substantially similar” to 

Rodney’s accident. 

Palatka v. Savage Arms, Inc., 535 F.App'x 448, 460 (6th Cir. 2013); but see 

Cincinatti Ins. Co. v. Banks, 610 F.Appx. 453, 461 (6th Cir. 2015) (holding that 

where an insurer claimed that an insured set the fire that destroyed his house, the 

court did not err by admitting into evidence other house fires that occurred within 

the same area and time span, even though deeper similarities were not shown). 

 Of the 27 TIM Tickets, some are more detailed than others. For instance, the 

July 2009 Edmonton, AB Incident is given only the one-line description: “chiller 

was dropped on it’s [sic] side.” (Dkt. 146-2). By contrast, the June 2010 Jackson, 

TN incident provides a more detailed description of how the chiller tipped over after 

hitting a low spot in the mechanical room while being wheeled on castors. (Id.). 

Defendant has not established that no witness could capably testify that at least some 

of the chiller tip-overs described in the TIM Tickets occurred because of a high 

center of gravity. If Plaintiffs fail to demonstrate either similar circumstances or 

similar cause at trial for any given TIM Ticket, the evidence will be excluded as 

irrelevant. That is not a determination that can be made, however, until it is clear 

exactly how the witnesses characterize the circumstances and causality of the OSI. 
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Defendants also argue that the TIM Tickets are hearsay. Rule 801 of the 

Federal Rules of Evidence provides that a statement is not hearsay if it is offered 

against a party and “was made by the party’s agent or employee within the scope of 

that relationship and while it existed.” FED. R. EVID. 801(d)(2)(D). This is not to say 

that every statement that appears within every TIM Ticket is an opposing party’s 

statement, but the records themselves will not be excluded as hearsay. 

Finally, Defendants argue that OSI evidence will be unfairly prejudicial to 

their case. Rule 403 of the Federal Rules of Evidence provides for the exclusion of 

relevant evidence if its probative value is substantially outweighed by the danger of 

unfair prejudice, confusing the issues, or misleading the jury. Olin-Mathieson Chem. 

Corp. v. Allis-Chalmers Mfg. Co., 438 F.2d 833, 837-838 (6th Cir. 1971). There is 

no indication at this juncture that jurors will be unable to understand the difference 

between the Davis incident on trial and OSI involving different factual backgrounds. 

Defendant’s Motion in Limine to Exclude Tanhyun, Korea Other Incident 

Evidence [145] 

In the Tanhyun, Korea incident, refrigerant leaked from a Trane chiller while 

it was being serviced, and four people died of oxygen deficiency due to the toxic 

effects of the leak. The incident clearly did not arise under similar circumstances or 

from a common cause as the Davis incident, as required by Sixth Circuit law. 

Nevertheless, Plaintiffs argue that this case goes to the magnitude of the risk 
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associated with the chiller, as it proves that Trane acted unreasonably by designing 

an easy-to-tip machine filled with toxic gas. 

What Plaintiffs assume, however, is that a tip-over could cause a refrigerant 

leak. Though this is hardly out of the question — the first thing the crew did after 

the RTWD fell on Davis was test the air for refrigerant — there are no recorded 

cases on the record where a tip-over caused a refrigerant leak. Moreover, Plaintiffs 

could introduce evidence that the refrigerant within the chiller is toxic either by 

stipulation or by questioning a qualified witness. A lurid description of the Tanhyun, 

Korea incident would not be relevant to the issues in this trial. 

Defendant’s Motion in Limine to Exclude Admission of Taicang, China 

Incident Evidence [143] 

 In the Taicang, China incident, a chiller was lifted by overhead chains and, 

while being maneuvered by employees, spun in place and crushed one employee’s 

hands in the chains. After the Taicang China incident, Trane changed the location of 

its lift points on the RTWD to improve lift safety. 

 Trane’s Taicang report lists four corrective actions to avoid similar accidents. 

Though three of the corrective actions involve lifting strategies, the fourth is to 

“design the tip over hazard out of the product.” (Dkt. 143-3). The “RTWD Phase 2 

Lifting Improvement” clarifies what this might mean by noting “[m]ost of condenser 

side bracket lifting point is over [Center of Gravity], can not get high lifting point 

for strength limitation of bolt and space in tubesheet under considered load 
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condition.” (Dkt. 143-4). The report contains graphics with the center of gravity 

labeled and comparisons of the tip angle for RTWD models with different lifting 

points. When Plaintiffs say that the Taicang incident was caused by the RTWD’s 

unusual weight distribution, and when Defendant says that the Taicang incident was 

caused by sub-optimal rigging procedures and lifting points, they are saying the 

same thing. Plaintiffs can colorably argue that incident occurred because the center 

of gravity moved above the supporting cables, causing the sudden inversion. Such a 

narrative of the Taicang incident plausibly suggests a common cause — the high 

center of gravity — with the Davis incident. 

Defendant’s Motion in Limine to Exclude Evidence of Subsequent Remedial 

Measures [148] 

 

In 2015, Trane engineers and officials began discussing efforts to mitigate 

the danger posed by the horizontal movement of Trane chillers. This included a 

warning sign that was eventually implemented and that warned that the chiller was 

top-heavy. 

Federal Rule of Evidence 407 provides: 

When measures are taken that would have made an earlier injury or 

harm less likely to occur, evidence of the subsequent measures is not 

admissible to prove: 

 negligence; 

 culpable conduct; 

 a defect in a product or its design; or 

 a need for a warning or instruction. 
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But the court may admit this evidence for another purpose, such as 

impeachment or — if disputed — proving ownership, control, or the 

feasibility of precautionary measures. 

FED. R. EVID. 407. 

 Plaintiffs seek to circumvent this rule by arguing that subsequently added 

warning label would not have prevented the accident and therefore was not a 

remedial measure. They argue that the new warning label added after the 2015 

discussions was duplicative of the old warnings that were in place when Davis was 

injured. The warning label could not have “made an earlier injury or harm less likely 

to occur” they argue, because the same warning existed in 2012. 

In both the 2012 and 2015 warning, a three-language fine print “WARNING” 

is used with “IMPROPER LIFTING AND MOVING” in the subheading. (Dkt. 148-

7). In the 2015 version, a separate sticker is added to the chiller with the same orange 

WARNING strip, but also a picture of the chiller with red arrows pointing in the 

directions it could fall and the larger print all caps language “EQUIPMENT IS TOP 

HEAVY, USE CAUTION WHEN LIFTING/MOVING EQUIPMENT.” (Dkt. 148-

6; Dkt. 184-8). 

 Though the effect may have been small, a more visible sign making clear that 

the chiller was top heavy and therefore a fall risk certainly tended to decrease the 

risk of tip-overs by more effectively informing the installer of the chiller’s weight 

distribution. Plaintiffs cite no case law for their theory that subsequent remedial 
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measures must be in response to the specific accident at issue, and indeed such a 

theory would add language to Rule 407. Evidence of the subsequently added 

warning sign will be excluded. 

 Defendants also seek to exclude certain discussions regarding the top-heavy 

weight distribution of the chiller. These discussions will be excluded if they part of 

the planning for the subsequent remedial measures. See In Re Air Crash Disaster, 

86 F.3d 498 (6th Cir. 1996) (holding that post-crash internal memoranda considering 

the advisability of a certain safety check that could have prevented the crash were 

“part of a discussion about whether [Defendant] should recommend the check in the 

future” and therefore excludable under Rule 407). They will not be excluded under 

Rule 407, however, when the measures discussed were not actually executed. 

Defendant’s Consolidated Motions in Limine [144] 

Defendant has moved to exclude 25 specific types of evidence. These submotions range from the non-controversial to the ambitious. The issues raised in these 

25 sub-motions will be considered if and when they arise at trial. 

II. PLAINTIFFS’ MOTIONS

Plaintiffs’ Motion in Limine to Exclude Portions of Thornton Testimony and 

Documents [136] 

Nicholas Thornton was employed by the Wayne Westland Community School 

District as the Supervisor of Energy Management Facility Services at the time of the 

accident. He came to the scene after Mr. Davis had been removed by EMS and spoke 
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to several individuals. On the basis of conversations and observations at the scene, 

Thornton wrote a brief report and gave testimony in deposition to the effect that 

Johnson & Wood (Davis’ employer) was at fault for not using a professional rigging 

service like they had told the school district they would. (Dkt. 136-2; 136-3). 

Rule 701 of the Federal Rules of Evidence requires lay witnesses to testify on 

that which is “rationally based on the witness’s perception.” FED. R. EVID. 701(a). 

Thornton will be permitted to testify on the information he gathered from his 

observations while at the scene of the accident. He will not be permitted to testify 

on what he surmised from hearsay conversations or his own hypotheses regarding 

who is at fault for Davis’ injury. 

Plaintiffs argue that Thornton’s Report, which is a brief summary of the events 

of the accident, is inadmissible hearsay and properly excluded under Rule 801. 

Defendant argues in response that the report falls within the business records 

exception to the hearsay rule because the record was “kept in the course of a 

regularly conducted business activity.” FED. R. EVID. 803(6). In order for the report 

to be admissible under this exception, Defendant must also show that “making the 

record was a regular practice of that activity.” Id. There is no evidence on the record 

that Thornton had a regular practice of making reports about contractors’ accidents 

at the school district. 
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Defendant cites two cases that emphasize that non-routinely kept business 

records should not be excluded if the other indicia of trustworthiness mentioned in 

Rule 803(6) are present. See U.S. v. Jacoby, 955 F.2d 1527, 1538 (11th Cir. 1992) 

& Kassel v. Gannett Co., 875 F.2d 935 (1st Cir. 1989). Both of these cases held that 

interruptions in routine record-keeping should not suffice to exclude evidence. In 

this case, there is no indication that Thornton kept routine records of any sort. Absent 

evidence to the contrary, his report will be excluded. 

Plaintiffs’ Motion in Limine to Exclude and Limit Evidence and Argument 

Regarding Non-Parties at Fault / Apportionment [138] 

 On August 10, 2015, Trane filed a notice of nonparty fault against three 

parties: Johnson & Wood, L.L.C. (Davis’ employer); Wayne Westland Community 

Schools; and Melton Truck Lines, Inc. Plaintiff moved to strike the notice of nonparty fault against Johnson & Wood [18]. District Judge Avern Cohn issued a 

Memorandum and Order [24] denying Plaintiff’s motion on February 10, 2016. The 

order analyzed Michigan’s Tort Reform Laws of 1996 and found that under M.C.L. 

600.2957(3), non-party fault could be properly allocated to an employer, even if the 

Workers’ Compensation and Disability Act would bar recovery from the employer. 

Plaintiffs now argue that Johnson & Wood was not properly named as a nonparty at fault, because it could only be at fault by respondeat superior, and that 

respondeat superior is not available for purposes of allocating non-party fault. MCL 

600.2957(1) states in relevant part: 
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In an action based on tort or another legal theory seeking damages for 

personal injury, property damage, or wrongful death, the liability of each 

person shall be allocated under this section by the trier of fact and...in 

direct proportion to the person's percentage of fault. In assessing 

percentages of fault under this subsection, the trier of fact shall consider 

the fault of each person, regardless of whether the person is, or could have 

been, named as a party to the action. 

“The tort-reform statutes have replaced joint and several liability in most cases, 

with each tortfeasor now being liable only for the portion of the total damages 

that reflects that tortfeasor's percentage of fault.” Kaiser v. Allen, 480 Mich. 31, 

37, 746 N.W.2d 92, 95 (Mich. 2008). 

Plaintiffs argue that in interpreting the interplay of vicarious liability doctrines 

and M.C.L. 600.2957(1), the Kaiser court excluded vicariously liable parties from 

non-party fault allocation. Kaiser dealt with the question of whether the commonlaw set-off rule still applied that would spare the owner of a car from statutory 

vicarious liability where a driver (who was not the owner) was at fault for the crash. 

Essential to the Supreme Court’s ruling was the finding that a contrary rule would 

allow a plaintiff to collect twice, once against the owner of the car and a second time 

against the driver. The Court’s holding is as follows: 

To the extent that joint and several liability principles have not been 

abrogated by statute, they remain the law in Michigan. In vicariousliability cases, in which the latent tortfeasor's fault derives completely from 

that of the active tortfeasor, there can be no allocation of fault. 

Kaiser, 480 Mich. at 35–36, 746 N.W.2d at 94. 
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 It would, for instance, be inappropriate for Defendant to assign the same fault 

to active tortfeasors and latent tortfeasors. Plaintiffs are right that the acts or 

omissions of a vicariously liable tortfeasor do not constitute the proximate cause of 

that injury. Here, however, Defendant is alleging multiple acts or omissions by 

Johnson & Wood — including the failure to provide the Manual for the chiller to 

Davis and the failure to instruct him on the proper use of the hydraulic jack — that 

it alleges proximately caused his injury. These acts and omissions are properly 

attributed to Johnson & Wood, not its various employees and corporate officers 

individually. Kaiser certainly does not go so far as to create a rule that no corporate 

entity can be named as a third-party at fault. 

Plaintiff’s Motion in Limine to Exclude Evidence and Argument that the Use 

of a Lifting Device to Jack Up the Chiller was Improper or that the Hydraulic 

Ram was Improperly Used as a Jack [139] 

 Defendant has maintained that Johnson & Wood’s decision to use a Westward 

hydraulic ram to jack up the chiller was dangerous, because 1) Trane’s instructions 

provided that the chiller should only be lifted from overhead or with a forklift, and 

2) Westward instructed that the hydraulic ram should not be used a jack. Plaintiff 

disputes that either Trane’s or Westward’s instructions were actually given and 

argues that evidence that the use of the hydraulic ram was improper is irrelevant and 

prejudicial. 
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The major issue implicated by this motion is whether Trane’s instructions 

adequately conveyed that the use of a jack was improper for installation. The 

Installation and Operation Manual, which Plaintiffs dispute was ever provided to 

Johnson & Wood, states that “[t]he Model RTWD/RTUD chiller should be moved 

by lifting, unless the unit is ordered with the ‘Base Rail Forklifting’ option.” The 

following page contains an all-caps WARNING with “Lifting and Moving 

Instructions!” detailing how the chiller should be lifted. (Dkt. 159-2). Defendant 

interprets this as evidence that the instructions made clear that only overhead lifting 

was proper. Plaintiffs interpret these instructions as evidence that the instructions 

did not explicitly rule out the use of a jack. This is a dispute for the jury to resolve. 

A motion in limine should not be used to resolve the factual questions of 

whether Trane’s instructions precluded maneuvering the chiller by use of a jack and 

whether the hydraulic ram was an appropriate tool to use as a jack. “In light of their 

limited purpose, motions in limine should not be used to resolve factual disputes, 

which remains the function of a motion for summary judgment, with its 

accompanying and crucial procedural safeguards.” Louzon v. Ford Motor Co., 718 

F.3d 556, 561 (6th Cir. 2013) (quoting Williams v. Johnson, 747 F.Supp.2d 10, 14 

(D.D.C.2010)). Arguments that the use of a jack to lift the chiller was improper will 

not be excluded at this juncture. 
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The secondary issue is whether the crew’s use of the Westward hydraulic ram 

was improperly used as a jack. Plaintiff argues that because it is undisputed that the 

ram behaved just as a jack would have behaved, its improper use is irrelevant.

Defendants observe that the use of the ram was the basis for one of the MIOSHA’s 

citations against Johnson & Wood. This does not automatically make the issue 

admissible, as will be discussed in the section on the MIOSHA Report, but it can if 

there is evidence that the violation of safety guidelines caused Davis’ injury. The 

admissibility of evidence regarding the improper use of the ram as a jack will depend 

on whether Defendant produces evidence that the improper use per se (beyond the 

alleged decision to jack up the chiller) was a cause of Davis’ injury. 

Plaintiff’s Motion in Limine to Exclude Evidence or Argument that Trane 

Provided the Installation and Operation Manual to Johnson & Wood or that 

Plaintiff Failed to Read the IOM Manual [141] 

Plaintiffs argue that there is no evidence that Johnson & Wood ever received 

the Installation and Operations Manual (“IOM”) for the chiller, and that Defendant 

should not be able to argue that they did. Plaintiffs and Defendant both offer differing 

interpretations of the testimony of Trane sales engineer Matthew Krusniak, Johnson 

& Wood officer Brian Johnson, Plaintiff Kyle Davis, and Johnson & Wood’s Safety 

Director, Steven Hall. As discussed avove, the purpose of motions in limine is not 

to resolve factual disputes in advance of trial. The question of whether or when 

Johnson & Wood received the IOM is a question for the jury. 
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Plaintiff’s Motion in Limine to Exclude MIOSHA Report, Reference to and 

Reliance on the Report, and Testimony of MIOSHA Inspector [142] 

 Following the incident, the Michigan Occupational Safety and Health 

Administration (“MIOSHA”) conducted an investigation, produced a report, and 

levied fines against Johnson & Wood. Those fines were reduced pursuant to a 

settlement between Johnson & Wood and MIOSHA. Plaintiff argues that evidence 

of the report, of the citations, of the fines, and of the settlement should all be 

excluded. 

 For a “violation of administrative rules and regulations” to be relevant, the 

proponent must establish that “(1) the regulation is intended to protect against the 

injury involved; (2) the plaintiff is within the class intended to be protected by the 

regulation; and (3) the evidence will support a finding that the violation was a 

proximate cause of the injury involved.” Estate of Goodwin by Goodwin v. Nw. 

Michigan Fair Ass'n, 325 Mich. App. 129, 164, 923 N.W.2d 894, 919 (Mich. Ct. 

App. 2018) (citing M. Civ. JI 12.03, use notes; M. Civ. JI 12.05). “[R]elevance must 

be specifically established” before evidence of a violation may be used as evidence 

of negligence. Klanseck v. Anderson Sales & Serv., Inc., 426 Mich. 78, 87, 393 

N.W.2d 356 (Mich. 1986). 

The question therefore is whether evidence of the conduct for which the 

MIOSHA citations were issued would support a finding that such conduct 

proximately caused Davis’ injury. Citation Number one was for violating the rule: 
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“after a load has been raised, it shall be immediately cribbed, blocked, or otherwise 

secured.” (Dkt. 142-2). Citation Number 2 was for violating the rule: “an accident 

prevention program was not developed, maintained, and coordinated with 

employees.” (Id.). It is certainly possible that evidence introduced at trial could 

support a finding that either the lack of support or the lack of an accident prevention 

program proximately caused Davis’ injury. The question of the admissibility of the 

citations is therefore best resolved in light of the evidence presented at trial. 

Trane has conceded that the settlement agreement between Johnson & Wood 

and MIOSHA will be inadmissible at trial. (Dkt. 158, pg. 19). 

Plaintiffs also challenge the admissibility of the MIOSHA report. Rule 803(8) 

of the Federal Rules of Evidence provides for a public record exception for hearsay. 

A record or statement of a public office if: 

(A) it sets out: 

(i) the office’s activities; 

(ii) a matter observed while under a legal duty to report, but not 

including, in a criminal case, a matter observed by law-enforcement 

personnel; or 

(iii) in a civil case or against the government in a criminal case, factual 

findings from a legally authorized investigation; and 

(B) The opponent does not show that the source of information or 

other circumstances indicate a lack of trustworthiness. 

FED. R. EVID. 803(8). 

In determining whether the “sources of information or other circumstances” 

indicate lack of trustworthiness, the Advisory Committee Notes suggests four factors 

for consideration: 
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(1) the timeliness of the investigation; (2) the special skill or experience of 

the official; (3) whether a hearing was held on the level at which 

conducted, and (4) possible motivational problems. 

Baker v. Elcona Homes Corp., 588 F.2d 551, 558 (6th Cir. 1978). 

Looking to the Advisory Committee’s four-part inquiry, the MIOSHA report 

lacks indicia of trustworthiness. The investigation was conducted ten days after the 

incident by an experienced workplace safety investigator, and so the first two factors 

are satisfied. No hearing was held, however, and so the third factor is not satisfied. 

Most problematically, the original copy of the investigative report has been lost, and 

so the only copy of the report has all of the source witnesses’ names redacted. Absent 

the identities of the source’s witnesses, it would be impossible for them to be crossexamined on motivations they may have had for answering the way they did. 

An investigatory report will not be admissible if the sources of its factual 

findings are unreliable. See Miller v. Field, 35 F.3d 1088, 1091 (6th Cir. 1994) 

(holding that Rule 803(8) does not dispense with the requirement that the 

investigator-declarant have first-hand knowledge of his or her factual findings); but 

see Combs v. Wilkinson, 315 F.3d 548, 555–56 (6th Cir. 2002) (admitting a police 

investigation report where the investigator had interviewed 123 witnesses on matters 

which the witnesses had observed.). There is no bright-line rule on how many or 

what types of witness statements should support the admission of an investigative 

report derived from those statements as evidence. 
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“[R]ule 803(8)(C) [should be applied] in a common sense manner, subject to 

the district court's sound exercise of discretion in determining whether the hearsay 

document offered in evidence has sufficient independent indicia of reliability to 

justify its admission.” Miller v. Caterpillar Tractor Co., 697 F.2d 141, 144 (6th 

Cir.1983) (quoting City of New York v. Pullman, Inc., 662 F.2d 910, 914 (2d 

Cir.1981)). As long as the sources in the report remain redacted, the MIOSHA 

Report’s conclusions — derived as they are from these sources, whose motivations 

and sources of knowledge are unknown — are unreliable. The MIOSHA Report will 

therefore be excluded. 

Emergency Motion to Exclude Defense Expert Mattice’s Untimely Rebuttal 

and New Opinions [161] 

Plaintiffs seek to exclude evidence and data produced by Defense expert Jason 

Mattice which they argue was produced two years after expert report disclosures 

were due. For the reasons stated on the Record, this motion is granted. 

CONCLUSION

 Defendant has filed six motions in limine. The Court will exclude evidence of 

the Tanhyun, Korea incident and Trane’s subsequent remedial measures will be 

granted. The admissibility of OSI evidence from the TIM Tickets, the Quebec 

Installation video, and the Taicang China Incident is best determined at trial. 

 Plaintiffs have also filed six motions in limine. The Court will exclude the 

Thornton Report, the MIOSHA Report, and the late-filed Mattice Report. The 
Page 23 of 24

admissibility of the range of other issues implicated by Plaintiffs’ motions will be 

determined at trial. 

 All of the Court’s rulings are tentative and may be amended or reversed 

depending on circumstances and facts which arise at trial. 

Accordingly, 

IT IS ORDERED that Defendant’s Motions to Exclude Tanhyun, Korea 

Other Incident Evidence [145] and to Exclude Evidence of Subsequent Remedial 

Measures [148] are GRANTED IN PART AND DENIED IN PART. 

IT IS FURTHER ORDERED that Defendant’s Motions to Exclude 

Admission of Dissimilar TIM Ticket Other Incident Evidence [146], to Exclude 

Quebec Installation and Video Other Incident Evidence [147], and to Exclude 

Admission of Dissimilar Taicang, China Incident Evidence [143] are DENIED. 

IT IS FURTHER ORDERED that Defendant’s Consolidated Motions in 

Limine [144] are DENIED. 

IT IS FURTHER ORDERED that Plaintiffs’ Motions to Exclude Portions 

of Thornton Testimony and Documents [136] and to Exclude MIOSHA Report, 

Reference to and Reliance on the Report, Citation, and Testimony of MIOSHA 

Inspector [142] are GRANTED IN PART AND DENIED IN PART. 

IT IS FURTHER ORDERED that Plaintiffs’ Motions to Exclude and Limit 

Evidence of Argument Regarding Non-Parties at Fault / Apportionment [138], to 
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Exclude Evidence and Argument that Use of a Lifting Device to Jack Up the Chiller 

was Improper or that the Hydraulic Ram was Improperly Used as a Jack [139], and 

to Exclude Evidence or Argument that Trane Provided the IOM Manual to Johnson 

& Wood or that Plaintiff Failed to Read or Follow the IOM Manual [141] are 

DENIED. 

IT IS FURTHER ORDERED that Plaintiffs’ Emergency Motion to Exclude 

Defense Expert Mattice's Untimely Rebuttal and New Opinions and Data Dump 

[161] is GRANTED. 

SO ORDERED. 

 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: December 12, 2019 Senior United States District Judge