825 F. Supp. 2d 308
D.N.H.2011Background
- Wrongful death action in D.N.H. arising from collapse of a Handy 2-Step stool; Masello died two weeks after the accident; plaintiffs sue ZAG and Stanley for negligent design, failure to warn, strict products liability, and breach of warranty; diversity jurisdiction exists between New Hampshire decedents’ estates and Israeli/Connecticut defendants; dispute centers on whether a missing toe or a lack of rounded rib edge caused the collapse; OSHA investigated and found a serious violation by Christmas Tree Shops; evidence will be contested at trial regarding damages, pre-existing conditions, and testing of the stool.
- The Handy 2-Step is a molded polypropylene two-step with four legs; Masello fell when the left front leg cracked; missing toe vs. arched rib design is a key disputed fact; some stool pieces were recovered but the toe was not; OSHA found other defective stools in the store.
- The parties advanced motions in limine on multiple evidentiary issues, including the missing piece theory, OSHA report, STR/Ctl tests, Masello’s medical and employment history for damages, and internal marketing materials; several motions were resolved in favor of allowing evidence subject to conditions; the case will proceed to trial with jury.
- ZAG contends the missing toe pre-existed Masello’s use, which supports their theory of collapse; OSHA report supports findings of safety violations; STR testing and CTL records offer potential reliability for design/material failure analysis; Masello’s personnel file and health history bear on damages; the internal brochure bears on superseding/intervening cause.
- The court emphasizes that a pretrial ban on all contested evidence is inappropriate; the jury should weigh competing inferences and assess admissibility and relevance of each piece of evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of missing toe theory evidence | Masello; theory is unsupported and speculative | Toe missing predated Masello’s use; supports design-failure theory | Denied; theory admissible as a disputable, contested issue for the jury |
| Admissibility of OSHA report under Rule 803(8)(C) | OSHA report is untrustworthy and should be excluded | Report is a trustworthy factual investigation with conclusions; probative | Denied; report admissible and probative; not unduly prejudicial |
| Sanction for STR testing destruction of stool | Destruction constitutes spoliation warranting exclusion | Destruction not attributable to fault; STR results still admissible | Denied; STR results may be used; destruction not sanction warranting exclusion |
| Admissibility of CTL 1997/1999 tests under Rule 803(6) | Tests are hearsay and untrustworthy | Records satisfy business-records; rely on them via experts | Denied; CTL records admissible as business records |
| Masello damages evidence from personnel file, drinking, pre-existing conditions | Irrelevant or prejudicial; not admissible | Relevant to damages and life expectancy; probative; limited by 403/404 concerns | Denied; evidence admissible to prove damages and life expectancy with limiting instructions |
Key Cases Cited
- Crowe v. Marchand, 506 F.3d 13 (1st Cir. 2007) (experts may rely on materials prepared by others under Rule 703)
- Lubanski v. Coleco Indus., Inc., 929 F.2d 42 (1st Cir. 1991) (rule for admissibility of accident reports under 803(8)(C))
- Udemba v. Nicoli, 237 F.3d 8 (1st Cir. 2001) (use of prior bad acts to prove damages permissible)