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Callahan v. Toys "R" US-Delaware, Inc.

United States District Court, D. Maryland

May 17, 2017

CALLAHAN, et al., Plaintiffs
v.
Toys “R” US-DELAWARE, Inc., Defendants.

          MEMORANDUM AND ORDER

          J. MARK COULSON UNITED STATES MAGISTRATE JUDGE.

         Plaintiffs, Virginia Callahan and T.G. (a minor), brought this products liability action against Defendants, Toys “R” US-Delaware, Inc. (“Toys ‘R' US”) and Pacific Cycle, Inc. (“Pacific”), following an accident that occurred in 2012 involving T.G. and a bicycle that was manufactured, assembled, and sold by Defendants. Plaintiffs originally filed their complaint in the Circuit Court for Howard County, and Defendants later removed to this Court under diversity jurisdiction. (ECF No. 1). Subsequently, the parties consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c) and Local Rule 301.4. (ECF Nos. 70, 72).

         Following a four-day trial, the jury returned a special verdict finding that that there was no defect in the bicycle, whereupon an Order of Judgment was entered in favor of Defendants on all counts. (ECF Nos. 114, 117). Plaintiffs have since filed a motion for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure. (ECF No.125). Defendants filed their response, (ECF No. 128), Plaintiffs have not filed any reply brief, and the Court finds that no hearing is necessary. Loc. R. 105.6 (D. Md. 2016). For the reasons that follow, Plaintiffs' motion is DENIED.

         In support of their motion, Plaintiffs contend that the Court “made several reversible errors which require the granting of a new trial.” Specifically, they contend: (1) that the Court erred when it permitted Defendants to “vary their theories and evidence from what they put in the Pretrial Order and turn this case from a personal injury case into an inquest into evidence tampering”; (2) that the Court erred “when it granted a spoliation instruction and allowed Defendants to argue that Plaintiffs and their counsel had tampered with evidence”; (3) that the Court erred in “granting a motion in limine that prohibited the jury from inspecting and touching the bike and from taking the bike. . . into the jury room”; (4) that the Court erred in not allowing the jury to test and inspect the bicycle as impeachment evidence of Defendants' expert; and, (5) that the Court erred in excluding undisclosed evidence of testing performed by Plaintiffs' expert.[1]

         Following a jury trial, Federal Rule of Civil Procedure 59(a) “allows the court to grant a new trial on all or some issues ‘for any reason for which a new trial has heretofore been granted in an action at law in federal court.'” Jackson v. Egira, LLC, No. CV RDB-14-3114, 2016 WL 6583604, at *2 (D. Md. Nov. 4, 2016) (citing Fed.R.Civ.P. 59(a)(1)(A)). “Because every litigant is entitled to one fair trial, not two, the decision of whether to grant or deny a motion for a new trial lies within the discretion of the district court.” Id. (internal citations omitted). “The court must exercise its discretion to grant a new trial only if the verdict (1) is against the clear weight of the evidence, (2) is based upon evidence which is false, or (3) will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict.” Id. (internal citations and quotations omitted). “Granting a new trial is not warranted unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done.” Id. Notably, evidentiary errors are harmless if the Court can “say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the errors.” Taylor v. Virginia Union Univ., 193 F.3d 219, 235 (4th Cir.1999) (internal citations, quotation marks, and brackets omitted).

         A. Defendants' Allegedly Undisclosed Change In Theory

         Plaintiffs contend that the Court erred in permitting Defendants to present a theory at trial that was not disclosed in their pretrial memorandum. Specifically, according to Plaintiffs, Defendants' “most important” theory that was disclosed in their pretrial memorandum and advanced during the first three days of trial was that the bicycle did not contain a defect. Yet, Plaintiffs argue, Defendants “completely changed their tactic and all but admitted that the rear brake was defective” on the third day of trial when Defendants noted that the pressure necessary to squeeze the rear brake was different at the time of trial than it had been during Defendants' expert's original inspection. Plaintiffs contend that “[i]n order to account for this change in tactic, Defendants had to blame someone for the allegedly changed condition.” Thus, they assert, Defendants put forward this new, undisclosed theory that Plaintiffs and their counsel had tampered with the evidence.

         The Court does not agree with Plaintiffs' underlying assertions or logic. First, at several instances prior to trial, Defendants made known their belief that the condition of the bicycle “today” (i.e., as it was near the date of the trial) was not the same as it had been at the time of the accident. For example, Defendants' motion in limine, (ECF No. 81), which was submitted on the same date and in conjunction with Defendants' pretrial memorandum, (ECF No. 80), sought to exclude from trial any in-court testing of the bicycle by Plaintiff's expert and by the members of the jury because, among other reasons, Plaintiffs could not establish that the condition of the bicycle was in the same condition as it was when the accident occurred.[2]

         Second, on the third day of trial, the Court allowed Mr. Logan to squeeze the brake outside the presence of the jury after learning that Plaintiffs had given this same opportunity to their own expert. In doing so, Mr. Logan observed that, in his opinion, the brake was much harder to squeeze compared to what he had previously assessed (and videotaped) by a two-finger test at his prior inspection in November 2015. Given that the bicycle had been in the custody of Plaintiffs since that time and that Mr. Logan would have no reason to suspect that the brake would feel any different, there is no way he could have disclosed this “new” opinion ahead of time. Far from an abandonment of his opinion, that at the time of the accident (and his 2015 inspection) the brake was not defective (as the jury, in fact, found), this in-court observation was simply supportive of Defendants' position that the bicycle's condition at the time of trial was not the same as at the time of the accident.

         Third, during the course of trial, it became apparent to the Court and the parties themselves that the bicycle's condition had, in fact, changed from when it was originally inspected by Mr. Logan, in 2015. Though the parties disagree about their significance, two changes were apparent: (1) the seating of the “barrel” at the end of the rear brake cable was different from how it appeared in Mr. Logan's 2015 inspection photos (Tr.3 at 632-640, 657-659, 690-692); and, (2) the position of the handlebars relative to the alignment of the front wheel was different from Mr. Logan's inspection photos (Tr.2 at 207-210; Tr.3 at 618-619, 636). The first change was important to Mr. Logan's opinion regarding the “stickiness” with which the brake handle went back into position after release, and the second change was important to Mr. Logan's theory that the Plaintiffs' accident scenario was inconsistent with the physical evidence. Mr. Logan also testified that neither change, in his opinion, could have occurred absent purposeful effort. (Tr.3 at 655, 691). As with his observation about the increased pressure necessary to operate the rear brake at the time of trial, Mr. Logan could not have disclosed these post-inspection changes in the barrel and handlebar orientation given that the bicycle had remained in the possession of Plaintiffs since that time.

         In summary, Plaintiffs were on notice of Defendants' assertion that the condition of the bicycle at trial was no longer substantially similar to its condition at the time of the accident. Additionally, given that the bicycle was in the Plaintiffs' sole custody and control from the time of Mr. Logan's 2015 inspection, Defendants as a practical matter could not have provided any additional notice of Mr. Logan's observations and evidence at trial that the condition of the bicycle had been changed from the time of his inspection. Further, at no point did Defendants abandon their “most important” argument that the rear break was not defective on the day of the accident. This argument was made during Defendants' opening and closing statements (Tr.1 at 114-118; Tr.4 83); supporting testimony for this argument was elicited through their key witness, Mr. Logan, who said (and showed via a video recording) that the brake functioned properly when he originally inspected it in 2015; and the argument was clearly one that the jury found compelling as it returned its verdict that there was no defect in the bicycle.

         B. The Court's “Spoliation” Instruction Regarding the Post-Inspection Changes in the Bicycle's Condition

         Plaintiffs' next argument concerns the Court's instruction to the jury regarding the change in the position of the bicycle's handlebars relative to the alignment of the front wheel. As indicated above, Mr. Logan inspected the bicycle in November 2015, and then again during trial. Following that latter inspection, Defendants brought to the Court's attention that the orientation of the bicycle's handlebars in relation to the front wheel was significantly different from when Mr. Logan had previously inspected it in 2015. Specifically, Mr. Logan explained, with still-framed pictures of his 2015 recorded inspection as support, that at the time of his 2015 inspection, the alignment between the handlebars and the front wheel was off by roughly 30 degrees. (Tr.3 at 636-640). This, he explained, was noticeably different from the current condition of the bicycle (that is, the condition of the bicycle as it appeared in court) which had near-perfect alignment between the handlebars and front wheel.

         Furthermore, Mr. Logan noted that this change was not easily done. Rather, he testified that it required a forceful manipulation to bring the handle bars and tire back into correct alignment.[3] (Tr.3 at 654-655). Indeed, Plaintiffs' counsel, on several occasions, acknowledged that changing the orientation between the front wheel and handlebars required a purposeful act of force.[4]

         Given this testimony, and the obvious change in the condition of the bicycle, Defendants requested that the Court give a “spoliation” instruction to the jury. In considering Defendants' request, the Court focused on whether such a change was at all significant to the issues and theories advanced at trial. Specifically, the Court noted that Plaintiffs' theory of the accident was a “pitch-over, ” whereby, as a result of the alleged rear brake failure, T.G. over-engaged the front brake, pitching her forward over the handlebars. Defendants, on the other hand, argued that this was an accident brought on by “user error” resulting in what Mr. Logan called a “side-spill.” (Tr.3 at 639). As support for this causation theory, Mr. Logan noted that the post-crash misalignment of the handlebars, which was off by 30 degrees at the time of his product inspection, was more consistent with a “side-spill” type of accident caused by rider error rather than a “pitch-over” caused by a failure of the rear brake as argued by Plaintiffs.

         Because there was no dispute that the alignment between the handlebars and front wheel was now different, that the alteration would have required a purposeful act, that the bicycle had been in the exclusive possession of Plaintiffs, Plaintiffs' counsel, or Plaintiffs' expert, and that the condition of the bicycle at the time of Mr. Logan's inspection was more favorable to Defendants' theory of the accident while the changed condition of the bicycle was supportive of Plaintiffs' theory, (Tr.3 at 636-640), the Court gave the following instruction:

The condition of the front wheel of the bicycle and its position relative to the handlebar has changed between the time Defendants' expert inspected the bicycle and today. The bicycle was in the possession of the plaintiffs during that time.
The position of the front wheel relative to the handlebar was evidence material to Defendants' expert opinion in this case. Therefore, you may, but are not required, to infer that the position of the front wheel relative to the handlebar was in a condition favorable to the Defendants, and unfavorable to the Plaintiffs before this change.
If you make this inference, you should consider it in light of all of the other evidence offered in the case as ...

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