Exe v. Fleetwood RV, Inc.
| Decision Date | 14 May 2013 |
| Docket Number | Case No: 1:11-CV-70 |
| Parties | RICHARD D. EXE and DONA EXE, Plaintiffs, v. FLEETWOOD RV, INC., Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
On April 8 and 9, 2013, this Court held a evidentiary hearing on Plaintiffs' Motion for Sanctions. (Docket # 135, 136.) During that hearing, Plaintiffs Richard and Dona Exe attempted to introduce an affidavit from John Jewell, their now deceased expert witness, to which Defendant Fleetwood RV, Inc., objected. Likewise, when Fleetwood moved to admit affidavits from Barry Krueckeberg and Douglas Haas, both of whom testified at the hearing, the Exes objected to their admission. As such, the Court kept the record open and instructed the parties to submit further objections to the admission of these affidavits. The parties subsequently filed their objections on April 22, 2013.1 (Docket # 137, 138.)
For the following reasons, the Exes' objections to the admission of the Krueckeberg and Haas affidavits will be OVERRULED, while Fleetwood's objections to the Jewell affidavit will be SUSTAINED.
In January 2010, Richard and Dona Exe, residents of Wisconsin, purchased a 2010Fleetwood Revolution motor home, which began experiencing intermittent electrical or electronic problems, particularly malfunctioning "slide-outs," some time thereafter. (Compl. ¶¶ 1, 4, 6.) As such, on October 15, 2010, the Exes brought suit against Fleetwood, alleging that it breached the terms of the written warranty provided with the motor home by failing to fix these problems in violation of the Magnuson-Moss Warranty Act and Wisconsin law. (See Compl. ¶¶ 6, 11-14.)
The Exes retained John Jewell as an expert witness. (Docket # 81 at 3.) Jewell first examined the motor home in November 2010. (R. Exe Aff. ¶ 6; see Jewell Dep. 82.) Some months later, he prepared a preliminary expert report, which was dated August 1, 2011. (Jewell Dep. 83; see Docket # 55-1 at 1-2.) Jewell set forth seven observations in this report, including a corroded buss bar and an electrical assembly containing relays and other electrical components that was not mounted and left to flop around in a storage compartment under the entrance steps. (Docket # 55-1 at 1.)
Fleetwood conducted its own inspection of the vehicle on November 9, 2011. (Docket # 73-1 at 4.) Barry Krueckeberg, Fleetwood's legal liaison; Doug Haas, Fleetwood's designated expert; Bruce Terlep, Fleetwood's attorney; and the Exes were present at the inspection. (Docket # 73-1 at 5.) The inspection lasted for several hours and included a test drive of the motor home, at the end of which Haas operated its slide outs and leveling system. (Docket # 73-1 at 9.) Krueckeberg videotaped this test of the slide outs and leveling system. (Docket # 73-1 at 9.)
A few days later, on November 12, 2011, Jewell reinspected the Exes' motor home (Docket # 73-1 at 6), preparing a second expert report four days later (Docket # 55-1 at 3-6). Inthis November 2011 report, Jewell noted that it appeared that one of the bolts connecting a circuit to the motor home's buss bar had been recently replaced. (Docket # 55-1 at 5.) During his deposition in February 2012, Jewell testified that he believed the bolt had been changed and further stated, for the first time, that one of the components in the electrical assembly that had previously been flopping around had been secured. (Jewell Dep. 138-39, 207-08.) The Exes maintain that they were the only ones who had possession and control of the motor home, which was stored securely in a storage facility, between Jewell's two inspections. (Docket # 73-1.) As such, they believe that only Fleetwood could have made these changes at the November 9, 2011, inspection. (Docket # 73-1 at 7.)
Accordingly, the Exes brought a motion for sanctions against Fleetwood on July 25, 2012, attaching several affidavits, including one from Jewell dated July 19, 2012. (Docket # 73.) In the motion, the Exes argue that Krueckeberg, Haas, and Terlep conspired to, and actually did, tamper with their motor home during Fleetwood's inspection on November 9, 2011, by securing the "Trimark box" and relays, replacing the bolt, and hiding the videotape of the test drive. (See Docket # 73 at 6-13.) Fleetwood vehemently denies these allegations and filed a response in opposition to the motion on August 30, 2012, that included, among numerous other documents, affidavits from Krueckeberg and Haas. (Docket # 81.)
On January 25, 2013, the Court set an evidentiary hearing on the motion for sanctions, limiting the presentation of evidence to the Exes' allegations that Fleetwood switched out a bolt on the motor home's electrical system and secured an electrical relay box during its November 2011 inspection. (Docket # 111.) The Court further deemed the record complete concerning the video taken during the inspection of the leveling mechanism and "air dump" and the purportedspoliation of that video. (Docket # 111.)
The evidentiary hearing occurred on April 8 and 9, 2013. (Docket # 135, 136.) The Exes, Krueckeberg, Haas, and Terlep all testified at the hearing. Richard Exe testified that, during Jewell's first inspection in November 2010, he observed Jewell lift up the relays as well as the Trimark box from the compartment under the front steps of the motor home.
Jewell did not testify as he had passed away after the Exes' filed their motion and before the hearing. As such, the Exes attempted to introduce Jewell's deposition as well as his affidavit from July 19, 2012, at the hearing. Fleetwood objected to the admission of certain portions of the deposition and the affidavit as a whole. At the very end of the hearing, Fleetwood also sought to introduce affidavits from Krueckeberg and Haas. Like Fleetwood, the Exes objected to their admission. Consequently, the Court kept the record open and directed the parties to file further objections to the admission of the affidavits, which they subsequently did. (Docket # 137, 138.) Although the Exes now seek to exclude only portions of the Krueckeberg and Haas affidavits, Fleetwood moves to keep out the Jewell affidavit in its entirety.
In their brief in opposition to the admission of the Krueckeberg and Haas affidavits, the Exes argue that paragraphs 12 through 14 of the Krueckeberg affidavit and paragraphs 14 and 16 through 21 of the Haas affidavit should be excluded because they reference the video and audio depiction of the leveling system and the discharge of air from the suspension system, issues on which the Court had previously closed the record. (Docket # 137 at 1.) They do not object to the admission of the remainder of the affidavits, finding them merely duplicative of Krueckeberg's and Haas's live testimony at the hearing. (Docket # 137 at 1.) As such, thoseportions of the affidavit will be admitted without further analysis. As to the Exes' efforts to exclude the paragraphs referencing the videotape, leveling system, and "air dump," their sole argument for excluding them is a non-starter.
Although the Court did order the record closed on the videotape, leveling system, and "air dump" issues on January 25, 2013 (Docket # 111), the Krueckeberg and Haas affidavits were already part of the record, having been attached as exhibits to Fleetwood's response to the motion for sanctions and filed on August 30, 2012 (Docket # 81-8 (Affidavit of Douglas Haas filed on August 30, 2012), 81-9 (Affidavit of Barry Krueckeberg filed on August 30, 2012)). Consequently, the paragraphs the Exes seek to exclude as being outside the record are already part of the record. Despite Fleetwood pointing this out in its response (Docket # 141 at 2), the Exes do not attempt to offer an alternative basis for excluding these paragraphs in their reply, stating only that they stand on their original brief. (Docket # 142.)
It is not this Court's role to make arguments for a party. See, e.g., Fabriko Acquisition Corp. v. Prokos, 536 F.3d 605, 609 (7th Cir. 2008) (); United States v. Alden, 527 F.3d 653, 664 (7th Cir. 2008) (). Accordingly, because the Exes' sole argument for excluding the paragraphs in the Krueckeberg and Haas affidavits referencing the videotape and test run of the leveling system is without merit, their objections are OVERRULED. The Krueckeberg and Haas affidavits are therefore admitted in their entirety.
Fleetwood objects to the admission of the Jewell affidavit in its entirety, arguing that itshould be wholly excluded from evidence as inadmissible hearsay and that its admission would violate Fleetwood's right to cross examine Jewell. (Docket # 138 at 6.) The Exes contend that the Jewell affidavit—specifically paragraph 2, which describes Jewell's inspection of the Trimark box and relays—falls under the residual exception to the hearsay rule, encompassed in Federal Rule of Evidence 807. (Docket # 140 at 2-4.) As such, the Exes ask the Court to admit the Jewell affidavit and consider the contents of paragraph 2.2 (Docket # 140 at 6.)
Federal Rule of Evidence 802 prohibits the admission of hearsay statements, FED. R. EVID. 802, defined as out-of-court statements offered into evidence to prove the truth of the matter asserted, United States v. Hicks, 635 F.3d 1063, 1068 (7th Cir. 2011) (citing FED. R. EVID. 801(c)). "[H]earsay is presumptively inadmissible and the burden is on the party seeking admission to overcome that presumption." Rosenbaum v. Freight, Lime & Sand Hauling, Inc., No. 2:10-CV-287, 2013 WL 785481, at *2 (N.D. Ind. Mar. 1, 2013) (citation omitted).
Paragraph 2 of the Jewell affidavit, made out of court and offered to prove the truth of the matters asserted in it, is undoubtedly hearsay. As such, in order...
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