UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DARRYL ALEXANDER and EDNA

ALEXANDER,

Plaintiffs,

v.

DEL MONTE CORPORATION and THE

KROGER COMPANY,

Defendants.

 /

Case No. 09-12303

Honorable Patrick J. Duggan

OPINION AND ORDER

 At a session of said Court, held in the U.S.

District Courthouse, Eastern District 

of Michigan, on January 12, 2011.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

Darryl Alexander and his wife, Edna Alexander, filed this action against Del Monte

Corporation (“Del Monte”) and The Kroger Company (“Kroger”) to recover damages for

injuries Mr. Alexander sustained while opening a jar of fruit. Presently before the Court is

Plaintiffs’ Motion in Limine to exclude evidence of the absence of similar incidents or

customer complaints. The matter has been fully briefed by the parties, and the Court

dispenses with oral argument pursuant to Eastern District of Michigan Local Rule 7.1f(2). 

For the reasons stated below, the Court grants Plaintiffs’ Motion.

Plaintiffs argue that evidence of the absence of similar incidents is inadmissible to

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prove the absence of negligence, relying on Grubaugh v. City of St. Johns, 82 Mich. App.

282, 266 N.W.2d 791 (Mich. App. 1978). Defendants contend that such evidence is

admissible in product liability cases, pointing to Koloda v. Gen. Motors Corp., 716 F.2d

373, 376 (6th Cir. 1983). In Koloda, the plaintiff asserted a claim based on a failure to

warn him of a product’s dangerous propensities. Id. at 374. The court noted that “[i]n

actions for failure to warn, knowledge is a major fact question.” Id. Because the absence

of prior accidents could establish that the manufacturer lacked knowledge of any danger,

the court concluded that such evidence was admissible. Id. at 377. Here, Plaintiffs have

only asserted claims for breach of warranty, negligence, and violation of the Michigan

Consumer Protection Act. Defendants have not shown that their knowledge is at issue in

this case, and therefore, Koloda provides little support for their position.

Defendants note that evidence of the absence of prior incidents is admissible even

where a plaintiff asserts a negligence or breach of warranty claim, citing Hammons v. Icon

Health & Fitness, 616 F. Supp. 2d 674, 679 (E.D. Mich. 2009). In Hammons, however,

the plaintiff asserted claims of negligent design and failure to warn of dangers associated

with a product, requiring him to establish the defendant’s knowledge of the alleged defect

and danger. Id. at 681-83. Because Defendants have failed to demonstrate that their

knowledge is relevant to Plaintiffs’ claims, their reliance on Hammons is misplaced.

Accordingly,

IT IS ORDERED that Plaintiffs’ Motion in Limine to exclude evidence of the

absence of similar accidents or customer complaints is GRANTED.

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s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Mark F. Miller, Esq.

Mary A. Kalmink, Esq.

Jack O. Kalmink, Esq.

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