United States District Court, S.D. Illinois
PAULA UNDERHILL, Individually and as Special Administrator of the Estate of Galen Underhill, and SEAN UNDERHILL, Plaintiffs,
COLEMAN COMPANY, INC., Defendant
For Paula Underhill, Individually and as Special Administrator of the Estate of Galen Underhill, Sean Underhill, Plaintiffs: Daniel C. Lytle, Gordon R. Broom, HeplerBroom LLC - Edwardsville, Edwardsville, IL; Mark N Stageberg, Law Office of Mark N. Stageberg, Minnetonka, MN.
For Coleman Company, Inc., Defendant: Douglas R. Heise, Robert H. Shultz, Jr., Heyl, Royster et al. - Edwardsville, Edwardsville, IL; Kenneth R. Lang, Matthew K. Holcomb, Scott R. Schillings, Hinkle Law Firm LLC, Wichita, KS.
MEMORANDUM AND ORDER
J. PHIL GILBERT,
This matter comes before the Court on plaintiffs Paul Underhill and Sean Underhill's (collectively " Plaintiffs" ) Memorandum on Substantially Similar Incidents (Doc. 190). Defendant Coleman Company, Inc. (" Coleman" ) filed its response (Doc. 193) to which Plaintiffs replied (Docs. 199 & 200). On May 22, 2014, the Court heard oral argument on the matter pursuant to Federal Rule of Evidence 104. For the following reasons, the Court finds the 44 previous incidents are not admissible into evidence in this case.
On the night of April 9, 2010, Galen Underhill and his son, Sean Underhill, went camping in a pop-up camper in Alhambra, Illinois. To keep warm they used a Powermate Model 5045 propane radiant heater manufactured by Coleman. During the night, the heater released deadly amounts of carbon monoxide (" CO" ). As a result of their exposure to CO, Galen Underhill died and Sean Underhill suffered serious injury.
The Powermate 5045 heater is a large commercial heater, designed to operate off of a 20-pound or larger propane tank, and intended only for outdoor use. Coleman designed this model of heater in 1994, and the heater at issue in this case was manufactured in 1995. The heater contained a warning identical to that depicted in Figure 1 on the page attached to this Order. On April 9, 2010, and previous occasions, Galen Underhill and/or Sean Underhill used the heater while camping.
On January 10, 2012, Plaintiffs filed their six-count complaint against Coleman in the Circuit Court for the Third Judicial Circuit, Madison County, Illinois. Thereafter, Coleman removed the case to the Southern District of Illinois based on diversity of citizenship pursuant to 28 U.S.C. § 1332.
Initially, Plaintiffs alleged a design defect theory, arguing improper placement of the thermocouple and the absence of an oxygen depletion sensor (" ODS" ) made the heater unreasonably dangerous. Plaintiffs' experts provided support for these theories based on their involvement in previous Coleman heater design defect cases and without inspection of the incident heater. Thereafter, the parties conducted an inspection of the incident heater and discovered that the thermocouple was not placed in accordance with design specifications.
On February 14, 2014, the Court instructed Plaintiffs to indicate the other incidents it intends to introduce into evidence with statements as to the legal basis for the admission of such evidence. Currently before the Court is Plaintiffs' memorandum in response to that Order. Plaintiffs seek to introduce evidence of 44 incidents involving various models of Coleman heaters. A brief description of the various models of Coleman heaters is appropriate. Coleman first produced its Focus model heaters in the late 1980s. The Focus 3, 5 and 10 heaters used 16 ounce propane bottles for fuel. The Focus 15 and 30 heaters were bulk-mount heaters designed to attach to a 20-pound propane
tank. Starting in 1995, Coleman began production of the Powermate line of heaters. Powermate heater models 5012, 5014, 5017, and 5045 were bulk-mount heaters. The instant incident involved a Coleman Powermate 5045 heater. The Powermate 5045 heater is a commercial heater that operates off of a 20-pound or larger propane tank. It is rated up to 45,000 BTU of heat output. Of these various models, Plaintiffs seek to introduce the following: three Focus 5 incidents, ten Focus 15 incidents, four Focus 30 incidents, three Powermate 5012 incidents, eleven Powermate 5014 incidents, three Powermate 5017 incidents, and ten Powermate 5045 incidents. The Court will turn to consider which, if any, of these incidents are admissible into evidence.
Other accident evidence " is relevant to show notice to the defendant of the danger, to show existence of the danger, and to show the cause of the accident." Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1268 (7th Cir. 1988). Prior to admission of other accident evidence, the proponent of the evidence " must show that the other accidents occurred under substantially similar circumstances. " Id. (citing Borden, Inc. v. Florida East Coast Ry. Co., 772 F.2d 750, 754 (11th Cir. 1985) (" 'Whether a reasonable inference may be drawn as to the harmful tendency or capacity of [a product] from prior failures depends upon whether the conditions operating to produce the prior failures were substantially similar to the occurrence in question.'" )). " Substantially similar" does not mean " identical." Dewick v. Maytag Corp., 324 F.Supp.2d 894, 904 (N.D.Ill. 2004) (citing Mihailovich v. Laatsch, 359 F.3d 892, 908 (7th Cir. 2004)). Even if a court finds the incidents are substantially similar, the court may exclude the 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." Fed.R.Evid. 403; Nachtsheim, 847 F.2d at 1268.
The Court notes that other courts have had occasion to consider the introduction of other accident evidence in the context of Coleman heaters. For instance, in Daniel v. Coleman Co., 599 F.3d 1045, 1047 (9th Cir. 2010), two men died from CO poisoning while using a Coleman Powermate 5045 heater in their camper. The plaintiff filed a wrongful death claim alleging (1) Coleman failed to provide adequate warnings, and (2) the heater was " defectively designed because it was more dangerous than a reasonable consumer would expect, and because it lacked alternative design features which would have made the heater more safe." Id. The trial court allowed the jury to hear about five other CO deaths resulting from the use of Powermate 5045 heaters in enclosed spaces; however, the trial court excluded other accidents that involved different Coleman heater models. Id.
On appeal, the plaintiff argued that the trial court erred when it excluded other accident information involving the use of other models of Coleman heaters. Id. at 1048. Specifically, the plaintiff argued the other model accidents were relevant " to prove that Coleman had knowledge or notice that its propane heater posed a carbon monoxide danger." Id. The Ninth Circuit rejected the plaintiff's argument finding that there was no need to produce evidence of other incidents to prove notice or knowledge because the parties had already stipulated that " Coleman is aware of ...