Estate of Thompson ex rel. Thompson v. Kawasaki Heavy Industries, Ltd. (933 F. Supp. 2d 1111, 2013)

United States District Court for the Northern District of Iowa 2013-02-25

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Full opinion text

MEMORANDUM OPINION AND ORDER REGARDING THE PARTIES’ PRETRIAL MOTIONS

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I. INTRODUCTION.......................................................1120

A. Factual Background.................................................1120

B. Procedural Background.............................................1121

II. LEGAL ANALYSIS.....................................................1123

A. Standards For Pretrial Evidentiary Challenges.......................1123

1. Rule 104 And Preliminary Questions Of Admissibility..............1123

2. Relevance and prejudice standards...............................1124

3. Hearsay and exceptions.........................................1125

B. Kawasaki’s Pretrial Motions........................................1126

1. Exclusion of hearsay statements and lay opinions of Mr. Lachioma ..........................................................1126

a. Testimony about what Mr. Welter said........................1126

i. Arguments of the parties...............................1126

ii. Analysis..............................................1126

b. Testimony about how the accident occurred...................1128

i. Arguments of the parties...............................1128

ii. Analysis..............................................1129

c. Testimony about statements from internet fora or “enthusiast publications”..................................1131

i. Arguments of the parties...............................1131

ii. Analysis..............................................1132

2. Exclusion of hearsay testimony of Randy Thompson...............1133

a. Arguments of the parties.....................................1133

b. Analysis....................................................1134

3. Motion to bifurcate proceedings..................................1136

a. Arguments of the parties.....................................1136

b. Analysis....................................................1137

4. Exclusion of similar incidents evidence...........................1138

a. Arguments of the parties.....................................1138

b. Analysis....................................................1139

3. Exclusion of causation opinions of the plaintiffs’ expert............1140

a. Arguments of the parties.......!.............................1140

b. Analysis....................................................1141

C. The Thompsons’ Motion To Exclude Evidence.........................1143

1. Evidence no longer in dispute....................................1143

2. Evidence still in dispute.........................................1144

a. Evidence of the lack of other claims and “wobble/weave” incidents.................................................1144

i. Arguments of the parties...............................1144

ii. Analysis.......................■.......................1144

b. Evidence that Scott Thompson caused his death or failed to mitigate his damages......................................1146

i. Arguments of the parties...............................1146

ii. Analysis..............................................1146

c. Evidence of emergency responders’ opinions about causation.... 1147

i. Arguments of the parties...............................1147

ii. Analysis..............................................1147

d. Evidence that Scott Thompson was speeding ..................1148

i. Arguments of the parties...............................1148

ii. Analysis..............................................1148

e. Compliance with or absence of safety standards................1149

i. Argument of the parties................................1149

ii. Analysis..............................................1150

f Evidence of collateral source benefits.........................1150

i. Arguments of the parties...............................1150

ii. Analysis..............................................1150

g. Evidence of adverse Daubert rulings..........................1151

i. Arguments of the parties...............................1151

ii. Analysis........ .....................................1151

III. CONCLUSION................... .....................................1152

In this diversity action under Iowa products liability law, arising from a motorcycle accident, the plaintiffs asserted design defect and manufacturing defect claims against the motorcycle manufacturer and the manufacturer of an adjustable steering damper incorporated into the motorcycle’s steering mechanism. I granted summary judgment in favor of the defendants on the manufacturing defect claim and dismissed all claims against the steering damper manufacturer. Thus, this matter is proceeding to trial only on the plaintiffs’ design defect claim against the motorcycle manufacturer. All parties still in the action at the deadline for pretrial motions filed such motions, which I must now resolve.

I. INTRODUCTION

A. Factual Background

As I explained in my recent summary judgment ruling, see February 11, 2013, Memorandum Opinion And Order Regarding Defendants’ Motions For Summary Judgment (docket no. 99), published at Thompson v. Kawasaki Heavy Indus., Ltd., 922 F.Supp.2d 780, 2013 WL 494453 (N.D.Iowa Feb. 11, 2013), at about sunset on March 21, 2009, Scott Thompson was riding his 2007 Kawasaki Ninja ZX-10R motorcycle in a convoy with two friends on county road K-22 in Plymouth County, Iowa. One of Thompson’s friends, Dave Lachioma, who was also riding a 2007 Ninja motorcycle, led the convoy, the other friend, Michael Welter, followed in his car, and Thompson brought up the rear on his motorcycle. While driving northbound on K-22, Thompson passed Welter, who was driving at 60 to 65 mph. A few seconds after Thompson passed him, Welter observed the taillight of Thompson’s motorcycle wobble from side to side. Although Welter observed that it looked like Thompson was regaining control of his motorcycle, Thompson was tossed from the motorcycle, slid on his back, feet first, across the highway, and landed in a ditch on the west side of the highway. The motorcycle continued upright in the northbound lane for another several hundred feet, before exiting the highway on the east side. As a result of the accident, Thompson suffered a burst fracture at the T3-T4 vertebrae, causing paralysis below that level. Thompson died on December 25, 2011.

Turning to essential background on motorcycle performance, “kickback” occurs when there is a disturbance to the motorcycle, such as a gap in the pavement might cause, that creates handlebar vibrations. “Convergence” occurs when kickback decreases and disappears as the motorcycle continues to run. In contrast, “expansion” occurs when kickback continues to increase as the motorcycle continues to run. Kickback expansion, in turn, can turn into “wobble” of the motorcycle, but if kickback convergence occurs within an acceptable time frame, “wobble” is avoided. Wobble can make it difficult for a rider to control the motorcycle.

The parties agree that a “steering damper” is a device with which a motorcycle can be equipped for the purpose of minimizing kickback and bringing about faster convergence — indeed, in litigation of the defendants’ summary judgment motions, Kawasaki expressly conceded that a steering damper is a “safety device” for that purpose. In general, the higher the dampening force in a steering damper, the quicker kickback can be dampened. A “dampening curve” provides the various dampening levels at a particular velocity (piston speed) for a particular steering damper. The dampening curves are generated through laboratory tests by a hydraulic machine referred to as a “dyno machine” (dynamometer). A steering damper may be adjustable, that is, have different “click positions,” which adjust the dampening to rider preferences. In the claims remaining before the court, the plaintiffs allege that Thompson’s motorcycle accident was the result of the defective design of his 2007 Ninja ZX-10R motorcycle, because the steering damper on the motorcycle was insufficient and the motorcycle was not reasonably stable.

Defendant Kawasaki Heavy Industries, Ltd. (KHI), a Japanese company, admits that it is responsible for the design,.developmental testing, and manufacture of the 2007 Kawasaki ZX-10R model motorcycle at issue in this case. Defendant Kawasaki Motors Corp., U.S.A. (KMC), a Delaware corporation with its principal place of business in Irvine, California, admits that it is responsible for the marketing of the motorcycle in question in the United States and the wholesale sale of the motorcycle in question to independent dealers in the United States. The parties agree that the motorcycle in question was equipped with a steering damper, as an Original Equipment Manufacturer (OEM) component,' designed and manufactüred by former defendant Ohlins Racing, AB (Ohlins), a Swedish company with its principal place of business in Vasby, Sweden.

The parties agree that both the 2006 and 2007 models of the Ninja ZX-10R motorcycles are part of Kawasaki’s 1010 motorcycle platform and that'they have the identical chassis. Indeed, they agree that the only difference between the 2006 and the 2007 model year Ninja ZX-10R is that the steering dampers on the two models are different. In over a year-and-a half of development of the model year 2006 Ninja ZX-10R motorcycle, Kawasaki selected the Ohlins model SD-1790 steering damper with specific dampening levels and values that Kawasaki believed provided the optimal performance for the customer and the best fit for the 2006 model year. On March 10,- 2006, however, Kawasaki made the decision to modify the steering damper on the 2007 Ninja ZX-10R by reducing the dampening value. This decision followed a test ride in which the mounting bracket for the steering damper failed. The parties agree that, on April 11, 2006, Mr. Bjork-man, an Ohlins design engineer, wrote an e-mail to Kawasaki about the change, in which he' stated, “I don’t think you want very much less damping either, because there is almost no function left.” Plaintiffs’ Appendix at 47, Exhibit 3. The parties dispute whether Mr.'Bjorkman was stating a safety concern or -simply relaying performance'concerns from racing customers. Ultimately, Kawasaki selected the Ohlins model SD-1791 steering damper for the 2007 Ninja ZX-10R motorcycle to replace the SD-1790 steering damper that had been used on the 2006 Ninja ZX-10R. Although the parties dispute the precise values, they agree that the steering damper on the 2007 Ninja ZX-10R model had significantly less viscous dampening for the motorcycle system (a maximum of 1750 newtons at .6 meters per second) than the steering damper on the 2006 Ninja ZX-10R (a maximum of either 4000 or 3600 newtons at .6 meters per second).

B. Procedural Background

On March 16, 2011, prior to Scott Thompson’s death,- Randy W. Thompson and Vicky J. Thompson, individually and as personal representatives of Scott Thompson, filed a Complaint (docket no. 2), initiating this action against various defendants, including KHI, KMC, and Ohlins, and alleging claims arising from Scott Thompson’s accident. The Thompsons filed their First Amended Complaint (docket no. 48), on April 23, 2012, after Scott Thompson’s death. In their First Amended Complaint, the Thompsons asserted claims of “strict liability product defects,” alleging both “design” and “manufacturing” defects, “breach of implied warranty of fitness for a particular purpose,” and “negligence” against KHI and KMC, in Counts I, II, and III, respectively; similar claims against Ohlins, in Counts IV, V, and VI, respectively; and a claim for “punitive damages” against KHI, KMC, and Ohlins in Count VIII. KMC and KHI filed separate Answers (docket nos. 49 and 50, respectively) on May 4, 2012, and Ohlins filed its Answer (docket no. 52) on May 7, 2012, denying the claims against them in the Thompsons’ First Amended Complaint.

On November 5, 2012, KMC and KHI, referring to themselves collectively as “Kawasaki,” filed their Motion For Partial Summary Judgment (docket no. 64), seeking summary judgment in their favor on that part of the Thompsons’ “product defect” claim alleging a “manufacturing defect” — but not on the part alleging a “design defect” — then’ “breach of implied warranty” claim, their “negligence” claim, and their prayer for “punitive damages.” On November 5, 2012, Ohlins filed its Joinder In Motion For Summary Judgment (docket no. 66), seeking summary judgment in its favor on the same claims as Kawasaki, but accompanied by a separate brief, statement of undisputed facts, and appendix. After obtaining authorization and extensions of time to do so, Ohlins filed its November 27, 2011, Supplemental (Amended And Substituted) Motion For Summary Judgment (docket no. 71), adding that Ohlins was also entitled to summary judgment on the Thompsons’ “design defect” claim. The parties filed resistances and replies in opposition to and further support of the summary judgment motions. Notably, in their Resistances, the Thompsons expressly did not resist summary judgment on their “breach of implied warranty” and “negligence” claims, because they believed that Iowa law recognizes only a single claim for liability for product defects, pursuant to the Restatement (Third) of Torts, Product Liability (Restatement (Third)), encompassing design and manufacturing defects and negligence principles. They noted that they intended to pursue their “design defect” claims and their prayer for “punitive damages” on such claims against both Kawasaki and Ohlins, however.

On February 11, 2013, I granted that part of Kawasaki’s November 5, 2012, joint Motion For Partial Summary Judgment (docket no. 64) seeking summary judgment on the Thompsons’ “manufacturing defect” claim in Count I, the “breach of implied warranty of fitness for a particular purpose” claim in Count II, and the “negligence” claim in Count III, but denied that part of Kawasaki’s Motion seeking summary judgment on the Thompsons’ prayer for “punitive damages” in Count VIII on the remaining “design defect” cause of action against Kawasaki in Count 1.1 granted Ohlins’s November 27, 2011, Supplemental (Amended And Substituted) Motion For Summary Judgment (docket no. 71) in its entirety, and dismissed Ohlins from this action. Thus, this action is proceeding to trial, currently scheduled to begin on March 18, 2013, only on the “design defect” claim against Kawasaki in Count I and the prayer for “punitive damages” on that underlying cause of action in Count VIII.

On January 24, 2013, while the summary judgment motions were still pending, the parties filed numerous pretrial motions, most of them challenging the admissibility of certain evidence. Specifically, Kawasaki and Ohlins filed two joint motions in limine: (1) their Joint Motion In Limine [ ] To Exclude Hearsay Statements And Lay Opinion Testimony Of David Lachioma (docket no. 89); and (2) their Joint Motion In Limine [] To Exclude Hearsay Testimony Of Randy Thompson (docket no. 90). Kawasaki filed three separate motions in limine: (1) its Motion To Bifurcate Punitive Damages From General Liability And To Exclude All References To Punitive Damages Issues During The Compensatory Damages Phase Of The Trial (docket no. 92); (2) its Motion In Limine To Preclude Introduction Of Other Similar Incidents At Trial (docket no. 94); and (3) its Motion In Limine To Exclude Causation Opinions Of Plaintiffs’ Expert, Mark Ezra (docket no. 97). Then-defendant Ohlins filed a separate Motion In Limine (docket no. 93), challenging eight categories of evidence and adopting and incorporating by reference any motions in limine or topics addressed in Kawasaki’s motions in limine, to the extent that it had not formally joined in any such motions, and a separate, sealed Motion In Limine To Exclude Expert Testimony (docket no. 95). For their part, the Thompsons filed a Motion In Limine (docket no. 96), challenging eleven categories of evidence.

On February 8, 2013 — a few days before I filed my ruling on the defendants’ summary judgment motions, in which I granted Ohlins’s Motion For Summary Judgment and dismissed Ohlins from this action — Ohlins filed its Resistance To Plaintiffs’ Motion In Limine (docket no. 98). On February 11, 2013, the day that I filed my summary judgment ruling, Kawasaki and the Thompsons filed their resistances to the other pretrial motions. On February 20, 2013, Kawasaki filed reply briefs in support of all of its pretrial motions, with the exception of the motion to bifurcate proceedings.

Because I have dismissed Ohlins from this action, and Kawasaki has not expressly joined in either of Ohlins’s separate pretrial motions, Ohlins’s motions are denied as moot. I turn to. the resolution of the pretrial motions by the remaining parties.

II. LEGAL ANALYSIS

A. Standards For Pretrial Evidentiary Challenges

The majority of the remaining parties’ pretrial motions are motions in hmine challenging the admissibility of various categories of evidence. The exception is Kawasaki’s motion to bifurcate liability and punitive damages proceedings, but that motion also involves “evidentiary” issues. Therefore, I will begin my legal analysis with a summary of generally applicable evidentiary standards.

1. Rule 104 And Preliminary Questions Of Admissibility

As a preliminary matter, I note that Rule 104 of the Federal Rules of Evidence provides, generally, that “[preliminary questions concerning ... the admissibility of evidence shall be determined by the court....” Fed.R.Evid. 104. Such preliminary questions may depend upon such things as whether the factual conditions or legal standards for the admission of certain evidence have been met. See id., Advisory Committee Notes, 1972 Proposed Rule. This rule, like the other rules of evidence, must be “construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that truth may be ascertained and proceedings justly determined.” Fed.R.Evid. 102. I conclude that preliminary determination of the admissibility of the evidence put at issue in the parties’ pretrial motions will likely serve the ends of a fair and expeditious presentation of issues to the jury.

2. Relevance and prejudice standards

Rule 401 of the Federal Rules of Evidence defines relevant evidence as evidence that “(a) ... has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Rule 402 provides that relevant evidence is generally admissible, but irrelevant evidence is not.

Rule 403 provides for exclusion of even relevant evidence on various grounds, as follows:

The court may exclude relevant 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. As the Eighth Circuit Court of Appeals recently explained,

[Ujnder Rule 403, the [challenged evidence’s] probative value must be substantially outweighed by unfair prejudice. “Evidence is not unfairly prejudicial because it tends to prove guilt, but because it tends to encourage the jury to find guilt from improper reasoning. Whether there was unfair prejudice depends on whether there was an undue tendency to suggest decision on an improper basis.” United States v. Farrington, 499 F.3d 854, 859 (8th Cir.2007) (quotations omitted).

United States v. Muhlenbruch, 634 F.3d 987, 1001 (8th Cir.2011) (emphasis in the original); United States v. Myers, 503 F.3d 676, 681 (8th Cir.2007) (“Rule 403 ‘does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party’s case. The rule protects against evidence that is unfairly prejudicial, that is, if it tends to suggest decision on an improper basis.’ ” (quoting Wade v. Haynes, 663 F.2d 778, 783 (8th Cir.1981), aff'd sub nom. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983)).

The Advisory Committee Notes to Rule 403 explain that a decision on an “improper basis” is “commonly, though not necessarily, an emotional one.” Fed. R.Evid. 403, Advisory Committee Notes; see also United States v. Jiminez, 487 F.3d 1140, 1145 (8th Cir.2007) (quoting this note); United States v. Dierling, 131 F.3d 722, 730-31 (8th Cir.1997) (considering whether evidence was unfairly prejudicial, because it might lead to a decision on an improper basis, where it purportedly had no connection to the charged offense and revealed grisly or violent behavior that made the defendant appear “dangerous”). Unfairly prejudicial evidence has also been described as evidence that is “ ‘so inflammatory on [its] face as to divert the jury’s attention from the material issues in the trial.’ ” United States v. Adams, 401 F.3d 886, 900 (8th Cir.2005) (quoting United States v. Shoffner, 71 F.3d 1429, 1433 (8th Cir.1995)). “Under Rule 403, district courts have broad discretion to assess unfair prejudice, and are reversed only for an abuse of discretion.” Myers, 503 F.3d at 681 (citing United States v. Henderson, 416 F.3d 686, 693 (8th Cir.2005), cert. denied, 546 U.S. 1175, 126 S.Ct. 1343, 164 L.Ed.2d 57 (2006)); accord Muklenbruch, 634 F.3d at 1001 (“We review the district court’s decision not to exclude evidence under Rule 403 for an abuse of discretion.”).

Where evidence may otherwise be inadmissible pursuant to Rule 403, the Eighth Circuit Court of Appeals and the Federal Rules of Evidence recognize that a limiting instruction on the proper uses of certain evidence may mitigate potential prejudice from such evidence. See, e.g., United States v. Cowling, 648 F.3d 690, 699 (8th Cir.2011) (“Moreover, the risk of unfair prejudice was reduced by a cautionary instruction to the jury, given when the evidence was first admitted.”); United States v. Young, 644 F.3d 757, 761 (8th Cir.2011) (concluding that the district court did not abuse its discretion in admitting evidence for the limited purpose set forth in its instruction); United States v. Walker, 470 F.3d 1271, 1275 (8th Cir.2006) (“[A] limiting instruction [concerning proper use of evidence of a prior conviction] diminishes the danger of unfair prejudice arising from the admission of the evidence.”); see also Fed.R.Evid. 105 (requiring a limiting instruction when the court admits evidence for a limited purpose).

3. Hearsay and exceptions

Rule 801(c) of the Federal Rules of Evidence defines “hearsay” as follows:

(c) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

Fed.R.Evid. 801(c). Rule 802 provides that “[h]earsay is not admissible,” unless provided otherwise by “a federal statute,” “these rules,” or “other rules prescribed by the Supreme Court.” Fed.R.Evid. 802. Thus, as the Eighth Circuit Court of Appeals has explained, “The Federal Rules of Evidence make hearsay inadmissible, subject to several exceptions.” United States v. Constantine, 674 F.3d 985, 989 (8th Cir.2012).

Rule 801(d) expressly identifies certain statements as “not hearsay.” Fed. R.Evid. 801(d). Rule 803 identifies “exceptions” to the hearsay rule “regardless of whether the declarant is available as a witness”; Rule 804 identifies “exceptions” to the hearsay rule “if the declarant is unavailable as a witness”; and Rule 807 defines a “residual exception” to the hearsay rule. Evidence admissible pursuant to a “hearsay exception” may nevertheless be excluded pursuant to Rule 403, if its probative value is substantially outweighed by its potential for unfair prejudice. See Constantine, 674 F.3d at 990.

With these rules, in mind, I turn to consideration of the admissibility of the evidence challenged by the parties, noting other standards for admissibility or exclusion of evidence where they are applicable.

B. Kawasaki’s Pretrial Motions

As noted above, Kawasaki has filed five pretrial motions, two of them jointly with former defendant Ohlins. I will consider those motions in turn.

1. Exclusion of hearsay statements and lay opinions of Mr. Lachioma

Kawasaki (with Ohlins) filed a Motion In Limine [ ] To Exclude Hearsay Statements And Lay Opinion Testimony Of David Lachioma (docket no. 89). More specifically, Kawasaki seeks to exclude the following testimony by Mr. Lachioma: (1) testimony that Mr. Welter, the only eyewitness to Scott Thompson’s accident, said Scott Thompson’s motorcycle “wobbled” immediately before the accident; (2) testimony about how the accident occurred; and (3) testimony about his recollections of statements on internet fora or in any other “enthusiast publications” related to motorcycles. I will consider the admissibility of these three challenged categories of testimony by Mr. Lachioma in turn.

a. Testimony about what Mr. Welter said

i. Aryuments of the parties

Kawasaki argues that Mr. Lachioma’s testimony about what Mr. Welter said about the motorcycle accident is “classic” inadmissible hearsay and that Mr. Welter is presumably able to testify about his own perceptions of the accident. Kawasaki also argues that no hearsay exception is applicable to such testimony, because Mr. Welter’s purported statement occurred so long after he observed the accident that his purported statement cannot be considered an “excited utterance” or “present sense impression.” Kawasaki argues that the forty-five minutes or more that had elapsed between the accident and Mr. Welter’s purported statement about it to Mr. Lachioma were sufficient time for reflection and deliberation and the abatement-of the immediate stress from observing the accident.

The Thompsons argue, however, that Mr. Lachioma will testify that, at the time that Mr. Welter made the statement, he was still “distraught” and visibly upset from witnessing the accident. More specifically, they argue that Mr. Lachioma’s testimony about what Mr. Welter said meets the requirements for an “excited utterance” under the Rule. 803(2) hearsay exception and that courts have recognized that lapses longer than forty-five minutes do not necessarily disqualify statements from this exception.

ii. Analysis

There is no doubt that Mr. Lachioma’s testimony about what Mr. Welter said about the accident is hearsay within the meaning of Rule 801 and would, thus, be excluded pursuant to Rule 802, unless some exception applies. See Constantine, 674 F.3d at 989.. However, the Thompsons argue that this testimony is admissible under either the “excited utterance” hearsay exception in Rule 803(2) or the “state of mind” hearsay exception in Rule 803(3).

Rule 803(2) states that “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused,” is “not excluded by the rule against hearsay.” Fed.R.Evid. 803(2). As the Eighth Circuit Court of Appeals has explained, “For the excited utterance exception to apply, the declarant’s condition at the time of making the statement must be such that the statement was spontaneous, excited, or impulsive rather than the product of reflection and deliberation.” Reed v. Thalacker, 198 F.3d 1058, 1061 (8th Cir.1999) (internal quotation marks omitted). This standard follows from the theory behind the exception, which “is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.” Advisory Committee’s Note on Fed.R.Evid. 803(2); United States v. Demery, 674 F.3d 776, 781 (8th Cir.2011) (“ ‘The rationale of the excited utterance exception is that the stress -of nervous excitement or physical shock stills the reflective faculties, thus removing an impediment to truthfulness.’ ” (quoting United States v. DeMarce, 564 F.3d 989, 997 (8th Cir.2009)).

The district court’s task is to determine whether the declarant was “under the stress of excitement caused by” the circumstances. Fed.R.Evid. 803(2). As the Eighth Circuit Court of Appeals has explained,

We have held that to determine whether a declarant was still under the stress of excitement when he or she made a statement, we may consider the lapse of time between the startling event and the statement, whether the statement was made in response to an inquiry, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement.

Reed, 198 F.3d at 1061; accord Demery, 674 F.3d at 781 (“In determining whether a declarant was under the stress of excitement caused by a startling event when she made a statement, ‘we consider the lapse of time between the startling event and the statement, whether the statement was made in response to an inquiry, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement.’ ” (quoting United States v. Wilcox, 487 F.3d 1163, 1170 (8th Cir.2007)).

It does not appear that the Eighth Circuit Court of Appeals has ever established a benchmark or rule of thumb about how much time between the startling event and the statement is too much for this exception to apply. Compare United States v. Bercier, 506 F.3d 625, 630 (8th Cir.2007) (where statements “were made less than thirty minutes after the incident,” the lapse of time did not make the statements inadmissible), with United States v. Marrowbone, 211 F.3d 452, 455 (8th Cir.2000) (finding that allegations of abuse made three hours after the alleged abuse were not excited utterances because of the lapse of time). The court has, upon occasion, found that the exception was applicable to periods longer than half an hour. See United States v. Kenyon, 481 F.3d 1054, 1062 (8th Cir.2007) (noting that the court had found a “close question” in a prior case, where a nine-year-old girl’s statement was 45 to 75 minutes after the alleged sexual assault, but finding no abuse of discretion in admitting the evidence as an excited utterance, in United States v. Iron Shell, 633 F.2d 77, 86-87 (8th Cir.1980)). Rather than establishing a rule of thumb concerning elapsed time, the court has observed that courts “ ‘examine whether the declarant’s' stress or excitement was continuous from the time of the event until the time of the statements.’ ” Demery, 674 F.3d at 781 (quoting Wilcox, 487 F.3d at 1170).

Kawasaki focuses almost exclusively on the lapse of time between Scott Thompson’s accident and Mr. Welter’s statement to Mr. Lachioma — admittedly somewhere between 45 and 90 minutes— as disproving that the statement was an “excited utterance” within the Rule 803(2) exception. As the evidence has been presented to me in a pretrial evidentiary motion, however, it appears that Mr. Lachioma will provide adequate testimony to demonstrate that, in the circumstances, Mr. Welter was still “distraught” and “under the stress of excitement” caused by the “startling event” of Scott Thompson’s accident right in front of him. See Fed. R.Evid. 403(2); Demery, 674 F.3d at 781; Reed, 198 F.3d at 1061. To put it another way, Mr. Welter was under “ ‘stress or excitement [that] was continuous from the time of [Scott Thompson’s accident] until the time of [Mr. Welter’s] statements [to Mr. Lachioma].” Demery, 674 F.3d at 781. Mr. Welter was not a nine-year-old girl, but he had witnessed a terrible accident involving one of his best friends and had been continuously stressed by the aftermath of attempting to get help for Scott Thompson before making the statement to Mr. Lachioma. Although the shorter route to introducing Mr. Welter’s statement about the accident would seem to be through testimony by Mr. Welter, Rule 803(2) does not require that the declarant be “unavailable,” and Mr. Lachioma’s testimony may, to some extent, corroborate Mr. Welter’s later recollection of events as reflected in Mr. Welter’s testimony.

Kawasaki relies on my conclusion in a prior case that ten minutes between an incident and the allegedly “excited utterance” was sufficient lapse of time to undermine admissibility of the hearsay statement pursuant to Rule 803(2), citing Shannon v. Koehler, No. C 08-4059-MWB, 2011 WL 923416, *3 (N.D.Iowa March 7, 2011). However, the cireumstances in Shannon reasonably led to a different conclusion about whether the declarant had been continuously stressed by the incident. See Demery, 674 F.3d at 781. In Shannon, in between the “startling event,” an altercation between the plaintiff and the defendant police officer, the declarant had gone to the restroom with another witness, returned to the bar in which the incident happened, was surrounded by other police officers, was led outside and placed inside an officer’s car where she made a recorded statement, and made some of her statements after reflection and deliberation in response to an inquiry by the officer questioning her, rather than as spontaneous statements made contemporaneously with the startling event. Shannon, 2011 WL 923416 at *3. In contrast, the record so far suggests that Mr. Welter’s statement to Mr. Lachioma was spontaneous, while still stressed by Scott Thompson’s accident and with no opportunity for deliberation or reflection.

This portion of Kawasaki’s challenge to Mr. Lachioma’s testimony is denied without prejudice to reassertion, if the evidence at trial demonstrates that the circumstances in which the allegedly “excited utterance” was made were not what they appear to be on the present record.

b. Testimony about how the accident occurred

i. Arguments of the parties

Kawasaki also seeks to exclude testimony by Mr. Lachioma about how the accident occurred. Kawasaki asserts that Mr. Lachioma is not an expert and that his lay testimony about what caused the accident is not properly admissible. Kawasaki argues that Mr. Laehioma did not actually witness Scott Thompson’s accident, because he was ahead of Scott Thompson and Mr. Welter; he lacks the technical and specialized knowledge to know what constitutes “wobble” and how it occurs; and his opinion is based solely on what Mr. Welter said about the accident. Similarly, Kawasaki asserts that Mr. Laehioma should be precluded from testifying to his opinion that black marks on the road were caused by Scott Thompson’s leather jacket when he slid off his motorcycle, rather than by skidding tires, because that testimony relates to a central issue of causation that is the domain of experts. Kawasaki also argues that Mr. Lachioma’s opinions should be excluded pursuant to Rule 403, because they are more prejudicial than probative or may mislead or confuse the jurors. Kawasaki’s basis for exclusion of the evidence pursuant to Rule 403, however, is the same as its basis for exclusion of this evidence generally — that Mr. Lachioma is not an expert.

The Thompsons argue that Mr. Lachioma is qualified by “practical experience” to give opinions about how the accident happened and that his observations of black marks on the road at the scene are relevant and admissible. The Thompsons point out that Mr. Laehioma was an experienced motorcycle rider and, indeed, was riding precisely the same model of motorcycle as Scott Thompson, but he had changed out the Ohlins steering damper for an after-market model with more dampening effect; he had just ridden over the same road surface as Scott Thompson when Scott Thompson had his accident; he was familiar with Scott Thompson’s riding habits, because they frequently rode together; he had also previously experienced a high-speed “wobble” incident while riding his motorcycle; he had reviewed videos of other motorcycle riders experiencing high-speed “wobble”; he observed where Scott Thompson and his motorcycle came to rest; and he examined the steering damper on Scott Thompson’s motorcycle after the accident. The Thompsons also argue that Mr. Laehioma can testify to his personal observations of the black marks on the roadway, which he photographed, and explain his reasons for believing that they were not tire skid marks, but were from Scott Thompson’s jacket. It is not clear, however, whether the Thompsons assert that Mr. Lachioma’s testimony meets the requirements for an “expert” or a “lay” opinion: They do not assert that Mr. Laehioma was ever disclosed as an “expert witness” in this case, but they do rely on Mr. Lachioma’s skill and knowledge and they assert that the relative skill or knowledge of an expert goes to the weight of his or her testimony, not to its admissibility.

Kawasaki’s reply in support of this motion focuses entirely on Mr. Lachioma’s testimony about how the accident occurred. In its reply, Kawasaki argues that (1) Mr. Laehioma possesses no experience, skill, knowledge, training, or education in any discipline that is relevant to his opinions; (2) Mr. Lachioma’s opinions are not based on sufficient facts or reliable methods but on inadmissible evidence, including YouTube videos, unverified anecdotes, anonymous Internet postings, an ad hoc accident investigation, and rank speculation; and (3) the Thompsons’ last-minute designation of Mr. Laehioma as an expert constitutes a flagrant violation of the Scheduling Order in this case.

ii. Analysis

The Eighth Circuit Court of Appeals has explained,

Rule 701 states that a witness not testifying as an expert may offer opinion testimony so long as the testimony is “rationally based on the perception of the witness.” Fed.R.Evid. 701(a). “ ‘Personal knowledge or perceptions based on experience’ is sufficient foundation for lay opinion testimony.” United States v. Smith, 591 F.3d 974, 982 (8th Cir.2010) (quoting In re Air Crash at Little Rock Arkansas on June 1, 1999, 291 F.3d 503, 515-16 (8th Cir.), cert. denied, 537 U.S. 974, 123 S.Ct. 435, 154 L.Ed.2d 331 (2002)).

United States v. Faulkner, 636 F.3d 1009, 1018 (8th Cir.2011); United States v. Smith, 591 F.3d 974, 982 (8th Cir.2010) (“ ‘Rule 701 provides that if a witness is not testifying as an expert, then any testimony by the witness expressing his or her opinion or inferences is limited to those that are rationally based on the witness’s perception and helpful to understanding the witness’s testimony or determining a fact in issue.’ ” (quoting U.S. Salt, Inc. v. Broken Arrow, Inc., 563 F.3d 687, 690 (8th Cir.2009), with emphasis added here). On the other hand,

[A] lay witnesses’s opinion must not be based on “scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.R.Evid. 701. This inquiry requires a case-by-case analysis of both the witness and the witnesses’s [sic] opinion. See In re Air Crash, 291 F.3d at 515-16.

Smith, 591 F.3d at 982-83.

The Thompsons appear to want it both ways as to Mr. Lachioma’s testimony about what caused Scott Thompson’s accident: On the one hand, they assert that he is stating an opinion based not only on his “personal observations” and his “practical experience,” but on the other hand, they seek to demonstrate his “technical” knowledge of motorcycles and Scott Thompson’s motorcycle in particular. Compare Fed. R.Evid. 701 (stating that lay opinions are admissible so long as they are “rationally based on the perception of the witness”); Faulkner, 636 F.3d at 1018 (same), with Fed.R.Evid. 702 (stating standards for expert opinions, based on “scientific, technical, or other specialized knowledge”); Smith, 591 F.3d at 982-83 (explaining that lay opinions cannot be based on “scientific, technical, or other specialized knowledge” within the scope of Rule 702). Indeed, they seem to argue that Mr. Lachioma’s qualifications meet the standards for “expert” opinions, even though they are not based on formal training.

Mr. Lachioma was not timely disclosed as an “expert,” so that his opinions are limited to the scope and basis of “lay” opinions. Mr. Lachioma did not observe Scott Thompson’s accident, and he cannot use Mr. Welter’s statement about what happened as a substitute for such personal observation to state a “lay” opinion. See Faulkner, 636 F.3d at 1018 (the basis for lay opinions must be personal knowledge or perceptions); Smith, 591 F.3d at 982 (expressly stating that this is the limit of a lay witness’s admissible opinion). Mr. Lachioma can certainly testify about anything that he did, in fact, observe for himself about the scene of the accident and, to the extent that his opinion is based on such personal observations and his personal experience, he may offer it. Id. However, he will not be permitted to stray into opinions based on “scientific, technical, or other specialized knowledge within the scope of Rule 702.” See Smith, 591 F.3d at 982-83.

More specifically, Mr. Lachioma can testify to circumstances that, he personally, observed at the accident scene, such as the relative locations of Scott Thompson and the motorcycle after the accident and the condition of and marks on the road surface on which the accident occurred. To the extent that he can testify that he has observed road marks made by tires and road marks made by skidding a leather-clad rider across the road surface, he may testify to his belief that the black marks found on the road after Scott Thompson’s accident appeared to him to be caused by Scott Thompson’s leather jacket as he skidded across the road surface after being ejected from the motorcycle. Although Mr. Lachioma cannot testify as to the nature or cause of motorcycle “wobble” in the technical sense, he can testify about his understanding of “wobble” in the lay sense, based on what he has personally seen or personally experienced, such as his own personal experience of what he describes as “wobble.” He can also testify that he changed out the OEM Ohlins steeling damper on his 2007 Ninja motorcycle, the identical model of motorcycle that Scott Thompson was riding, for an after-market steering damper and what he perceived to be the effect of the change on what he describes as “wobble.” To the extent that he personally observed it, he can testify to the “click” position Scott Thompson preferred and the condition of Scott Thompson’s steering damper, and he may also testify that he examined the steering damper after the accident and what “click” position it appeared to be in at that time. What he plainly cannot testify to is any opinion about the cause- of Scott Thompson’s accident, because he admittedly did not actually observe the accident.

This portion of Kawasaki’s challenge to Mr. Lachioma’s testimony is granted to the extent that Mr. Lachioma’s testimony about Scott Thompson’s accident must be “rationally based on [his] perception,” but not on “scientific, technical, or other specialized knowledge.” Id.

c. Testimony about statements from internet fora or “enthusiast publications”

i. Arguments of the parties

Finally, as to Mr. Lachioma’s testimony, Kawasaki seeks to exclude testimony about Mr. Lachioma’s recollections of statements on internet fora or in any other “enthusiast publications” related to motorcycles. Kawasaki argues that such postings and publications are, themselves, inadmissible hearsay. Kawasaki also argues that statements in such sources are irrelevant, because the opinions and comments of anonymous internet users concerning motorcycles are irrelevant to whether or not Scott Thompson’s motorcycle was defectively designed, as they are unverified and unverifiable comments. Kawasaki also argues that such opinions and comments are unfairly prejudicial, because there is no basis whatsoever for jurors to assess their credibility.

The Thompsons argue that Mr. Lachioma’s decision to replace the Ohlins steering damper on his motorcycle, which was otherwise'the same model as Scott Thompson’s motorcycle, was based, in part, on Mr. Lachioma’s experience riding with the OEM Ohlins steering damper compared to other steering dampers. They contend that Mr. Lachioma will also explain that another reason that he replaced his OEM Ohlins steering damper with a different after-market one was customer comments relating to the OEM Ohlins steering damper on Ninja ZX-10R internet fora. The Thompsons argue that, without an explanation of this reason, jurors will be left to speculate as to why Mr. Lachioma replaced the OEM Ohlins steering damper with the after-market steering damper. They also argue that the statements in the publications that Mr. Lachioma will mention are not being offered for their truth— so that they are not hearsay — but to show Mr. Lachioma’s reasons (presumably, his “state of mind”) for replacing the Ohlins steering damper. The Thompsons also argue that such evidence is not unfairly prejudicial, but the lack of a full explanation is prejudicial to them, because it will confuse and mislead the jury.

ii. Analysis

In pertinent part, Rule 803(3) excepts from the hearsay rule “[a] statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.... ” Fed.R.Evid. 803(3); D.J.M. ex rel. D.M. v. Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 763 (8th Cir.2011) (“Federal Rule of Evidence 803(3) provides that a statement of the declarant’s ‘then existing state of mind’ is not excludable hearsay.”). The state of mind at issue is the declarant’s, not the testifying witness’s. See First Nat’l Bank in Sioux Falls v. First Nat’l Bank South Dakota, 679 F.3d 763, 768 (8th Cir.2012). However, such statements may also be admissible because they show the effect of the out-of-court statements on the listener. D.J.M., 647 F.3d at 763 (citing Curtis Lumber Co., Inc. v. Louisiana Pac. Corp., 618 F.3d 762, 783 n. 18 (8th Cir.2010)). “ ‘A key circumstantial guarantee of trustworthiness in respect to Rule 803(3) is that it requires that the statement be contemporaneous with the declarant’s “then existing” state of mind, emotion, sensation, or physical condition.’ ” United States v. Barraza, 576 F.3d 798, 805 (8th Cir.2009) (quoting United States v. Naiden, 424 F.3d 718, 722 (8th Cir.2005)). Thus, it does not reach “self-serving declarations about a past attitude or state of mind.” United States v. Partyka, 561 F.2d 118, 125 (8th Cir.1977), quoted in Naiden, 424 F.3d at 722.

Mr. Lachioma’s statement of his reasons for replacing the steering damper, to the extent that those reasons are based on his own observations and experience riding his 2007 Ninja motorcycle, are admissible as showing his “then-existing state of mind.” See Fed.R.Evid. 803(3); D.J.M., 647 F.3d at 763 (“Federal Rule of Evidence 803(3) provides that a statement of the declarant’s ‘then existing state of mind’ is not excludable hearsay.”). They are not admissible, however, “to prove the fact remembered or believed,” that is, that there was a problem with the steering damper of the 2007 Ninja motorcycle. Fed.R.Evid. 803(3). The line between the two is a gray one, inviting consideration of the admissibility of such testimony under Rule 403, see Constantine, 674 F.3d at 990 (noting that evidence admissible pursuant to a “hearsay exception” may nevertheless be excluded pursuant to Rule 403, if its probative value is substantially outweighed by its potential for unfair prejudice), a matter to which I will return below.

The Thompsons have at least an arguable basis for asserting that the statements in various publications that Mr. Lachioma might repeat are not hearsay, because they are not offered for their truth, see Fed.R.Evid. 801, and that, at each level of hearsay — both the statements themselves and Mr. Lachioma’s reiteration of them, see Fed.R.Evid. 805 (hearsay in hearsay is admissible if each layer meets an exception) — the “then-existing state of mind” exception of Rule 803(3) would apply, reflecting the original declarant’s belief about the steering damper on the 2007 Ninja motorcycle and Mr. Lachioma’s reasons for changing the steering damper on his 2007 Ninja motorcycle. See D. J.M., 647 F.3d at 763 (statements of a declarant’s then-existing state of mind may also be admissible because they showed the effect of the out-of-court statements on the listener).

I do not discount that Mr. Lachioma’s statement of his reasons for changing his steering damper, based on his own observations and experience and based on what others said about the steering damper or the steering on the 2007 Ninja motorcycle in various paper or on-line, publications, pose a potential for prejudice, in that they might be taken for their truth, not for their indication of the declarants’ state of mind or their effect on Mr. Lachioma’s decision. See Fed.R.Evid. 403 (evidence may be excluded if it is more prejudicial than probative); Muhlenbruch, 634 F.3d at 1001 (explaining that evidence is unduly prejudicial if, for example, it suggests a decision on an improper basis); Myers, 503 F.3d at 681 (same). Moreover, evidence that other people disliked the steering damper on the 2007 Ninja is largely cumulative of Mr. Lachioma’s explanation of his reasons, based on his own observations and experience riding the 2007 Ninja with the OEM steering damper. Fed. R.Evid. 403 (relevant evidence may also be excluded as cumulative).

Nevertheless, I conclude that Mr. Lachioma can testify that his reasons for changing the steering damper on his 2007 Ninja motorcycle included both his own observations about and experience with the OEM Ohlins steering damper and his reading of reviews and comments about the OEM Ohlins steering damper and other steering dampers on internet fora or in other publications. Neither his reasons nor the statements of others on which he based his reasons can be offered for their truth, but only to show their effect on Mr. Lachioma’s state of mind. See D.J.M., 647 F.3d at 763 (statements of a declarant’s then-existing state of mind may also be admissible because they showed the effect of the out-of-court statements on the listener). Moreover, the purposes for which the statements can and cannot be used are easily addressed in a limiting instruction at the time that such evidence is offered, if Kawasaki so requests. Such a limiting instruction on the proper uses of certain evidence will mitigate the potential prejudice, if there is any, from such evidence. See,’ e.g., Cowling; 648 F.3d at 699 (“Moreover, the risk of unfair prejudice was reduced by a cautionary instruction to the jury, given when the evidence was first admitted.”).

Thus, the last part of this Motion In Limine concerning Mr. Lachioma’s testimony is denied.

2. Exclusion of hearsay testimony of Randy Thompson

Kawásaki (with Ohlins) also filed a Motion In Limine [] To Exclude Hearsay Testimony Of Randy Thompson (docket no. 90). In this motion, Kawasaki seeks to exclude testimony by Randy Thompson that his son, Scott Thompson, told him that he always had the steering damper on his motorcycle at the highest setting.

a. Arguments of the parties

Kawasaki argues that this evidence is inadmissible because (1) it is hearsay; (2) it violates the “physical facts rule” as it is in direct contradiction to objective photographic evidence; and (3) any probative value is substantially outweighed by the risk of misleading and confusing the jury and prejudicing Kawasaki. More specifically, Kawasaki argues that Randy Thompson’s testimony about what Scott Thompson said is hearsay, because it is offered to prove the truth of the matter asserted, the “click” position of the- steering damper on Scott Thompson’s motorcycle at the time of the accident. Kawasaki argues that, without Scott Thompson present in court, under oath, and subject to cross-examination, his statement is inherently unreliable and should not be presented to the jury as evidence. Kawasaki also argues that the “physical facts rule” bars such testimony, because it is undisputed that Scott Thompson’s steering damper was not set at the highest setting, based on photographs taken immediately after the accident. Finally, Kawasaki argues that this evidence is unfairly prejudicial, because the statement lacks probative value, because it is hearsay and it conflicts with objective photographic evidence, and because it is highly likely to confuse or mislead the jury.

In response, the Thompsons argue that Scott Thompson’s statement to his father is admissible pursuant to Rule 804(a)(4), because he is “unavailable” owing to his death, and pursuant to Rule 807, the “residual hearsay exception.” They argue that Scott Thompson’s statement is trustworthy and reliable because it was stated relatively soon after he returned home from his acute hospital care from the accident, but before the particular steering damper or its setting came to the forefront in the litigation. They also argue that Scott Thompson’s statement is not contrary to “physical fact,” because the experts in the case have opined that the steering damper at issue was set in click position 5, 11, or 17 (where 5 was the highest) at the time of the accident. Thus, they argue that this evidence is probative on a contested issue and not unfairly prejudicial or misleading.

In reply, Kawasaki argues that the hearsay statement in question does not meet the requirements of the Rule 807 “residual hearsay exception.” Kawasaki denies that the statement has equivalent circumstantial guarantees of trustworthiness, because it is contrary to the photographic evidence; the photographs are more probative of the setting on the steering damper at the time of the accident; and admitting such evidence would not further any of the purposes of the rules of evidence or the interests of justice.

b. Analysis

Kawasaki contends that this evidence should be excluded, because it violates the “physical facts rule” as it is in direct contradiction to objective photographic evidence. Kawasaki is correct that, decades ago, the Eighth Circuit Court of Appeals recognized,

‘Where undisputed physical facts are entirely inconsistent with and opposed to testimony necessary to make a case for the plaintiff, the physical facts must control. No jury can be allowed to return a verdict based upon oral testimony which is flatly opposed to physical facts, the existence of which is incontrovertibly established. Stolte v. Larkin, 8 Cir., 110 F.2d 226, 229 (1940).’ Born v. Osendorf, 8 Cir., 329 F.2d 669, 672 [ (1964) ].

Wood v. United States, 342 F.2d 708, 713-14 (8th Cir.1965). Other Circuit Courts of Appeals have reiterated this rule more recently, stating it in terms of “indisputable physical facts” and “incontrovertibly established” facts. See, e.g., Whitehead v. Bond, 680 F.3d 919, 925 (7th Cir.2012) (stating the rule as contradiction of “indisputable physical facts”); Estate of Trentadue v. United States, 397 F.3d 840, 864 (10th Cir.2005) (stating the rule as “flatly opposed to physical facts, the existence of which is incontrovertibly established”). Kawasaki cannot rely on this rule, however, where experts disagree on whether the “click” setting of Thompson’s steering damper was 5, 11, or 17, based on their review of the physical evidence. In these circumstances, the “click” setting is not “undisputedly,” “indisputably,” or “incontrovertibly” established. Rather, Scott Thompson’s statement about the “click” setting that he used is consistent with at least some expert conclusions drawn from the physical facts. Thus, the “physical facts rule” does not bar Randy Thompson’s testimony about Scott Thompson’s statement about the “click” setting of the steering damper on his motorcycle.

There is no question, however, that Scott Thompson’s statement about the setting of the steering damper on his motorcycle is hearsay, that is, that it is an out-of-court statement offered for its truth. Fed.R.Evid. 801. Hearsay is excluded, unless it meets a “hearsay exception.” Fed. R.Evid. 802; Constantine, 674 F.3d at 989. The Thompsons argue that this statement is, indeed, admissible pursuant to the Rule 807 “residual hearsay exception.”

Rule 807 establishes the “residual” or “catch-all” exception to the rule prohibiting the admission of hearsay. Fed.R.Evid. 807; United States v. White Bull, 646 F.3d 1082, 1091 (8th Cir.2011). “A statement having circumstantial guarantees of trustworthiness can be admitted under Rule 807 if the court determines that it meets the other requirements of Rule 807, including materiality, probative value, the interests of justice, and notice.” United States v. Halk, 634 F.3d 482, 488-89 (8th Cir.2011). Somewhat more specifically, -

For a hearsay statement to be admissible under Rule 807, the rule requires that:

(1) the statement has equivalent circumstantial guarantees of trustworthiness to the other hearsay exceptions; (2) the statement is offered as evidence of a material fact; (3) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; (4) the general purposes of the rules and the interests of justice will best be served by its admission; and (5) adequate notice must be given to the opposing party.

United States v. Peneaux, 432 F.3d 882, 891 (8th Cir.2005).

White Bull, 646 F.3d at 1091. As to the first requirement, “ ‘[trustworthiness is analyzed under a broad totality of the circumstances test.’ ” Halk, 634 F.3d at 489 (quoting United States v. Shields, 497 F.3d 789, 794 (8th Cir.2007)). Those circumstances include “ ‘the circumstances at the time of the declaration and the credibility of the declarant.’ ” Id. (quoting United States v. Thunder Horse, 370 F.3d 745, 748 (8th Cir.2004), with emphasis added in Halk). “Rule 807 is applicable only in exceptional circumstances.” Id. (citing United States v. Dorian, 803 F.2d 1439, 1443-44 (8th Cir.1986), as stating that “Congress intended the residual hearsay exception to be used very rarely and only in exceptional circumstances”).

On the present record, whether or not Randy Thompson’s testimony about what Scott Thompson told him about the “click” position of the steering damper on his motorcycle meets the requirements for admissibility pursuant to the “residual hearsay exception” in Rule 807 is a close question. See White Bull, 646 F.3d at 1091. There is no question now that the “click” position of the steering damper is a material fact, and no question that Scott Thompson’s testimony about it is evidence of that fact. Id. Although the parties dispute the relative probative value of such testimony, id., as the Thompsons argue, Scott Thompson is the only person who had first-hand knowledge of how he set his steering damper, and I have rejected Kawasaki’s “physical facts rule” argument. It is also clear that Kawasaki has had adequate notice that the evidence will be offered, in light of Kawasaki’s challenge to that evidence. Id.

Consequently, the potentially dispositive issue in the Rule 807 analysis is whether or not the statement has equivalent circumstantial guarantees of trustworthiness to other hearsay exceptions, id., considering the totality of the circumstances, including the timing of the statement and the declarant’s credibility. Halk, 634 F.3d at 489. The troubling issue here is not just the precise timing of . the declarant’s statement, but the timing of the reporting witness’s first report of the statement. If the record at trial demonstrates that Scott Thompson first made the statement before it was apparent that the steering damper or the “click” position of that steering damper would be at the center of this litigation, then the declarant’s credibility is less likely to be an issue. See id. (noting that the credibility of the declarant is relevant to the Rule 807 “trustworthiness” analysis). At the same time, when the reporting witness, Randy Thompson, first reported Scott Thompson’s st